ADJUSTMENTS) AND PRESENT FAIRLY IN ALL MATERIAL RESPECTS, BORROWERS' AND
THEIR SUBSIDIARIES' FINANCIAL CONDITION AS OF THE DATE THEREOF AND RESULTS OF
OPERATIONS FOR THE PERIOD THEN ENDED. THERE HAS NOT BEEN A MATERIAL ADVERSE
CHANGE WITH
23
RESPECT TO BORROWERS AND THEIR SUBSIDIARIES SINCE THE DATE OF THE LATEST
CONSOLIDATED FINANCIAL STATEMENTS SUBMITTED TO AGENT ON OR BEFORE THE CLOSING
DATE.
4.12
FRAUDULENT TRANSFER.
(A)
EACH BORROWER IS SOLVENT.
(B)
NO TRANSFER OF PROPERTY IS BEING MADE BY ANY BORROWER OR ANY
SUBSIDIARY AND NO OBLIGATION IS BEING INCURRED BY ANY BORROWER OR ANY SUBSIDIARY
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS WITH THE INTENT TO HINDER, DELAY, OR DEFRAUD EITHER PRESENT OR
FUTURE CREDITORS OF BORROWERS OR THEIR SUBSIDIARIES.
(C)
NONE OF THE BORROWERS AT THIS TIME CONTEMPLATES FILING A PETITION
IN BANKRUPTCY OR FOR AN ARRANGEMENT OR REORGANIZATION OR SIMILAR PROCEEDING
UNDER ANY LAW OF ANY JURISDICTION, NOR, TO THE KNOWLEDGE OF THE BORROWERS, IS
THE SUBJECT OF ANY ACTUAL, PENDING OR THREATENED BANKRUPTCY, INSOLVENCY OR
SIMILAR PROCEEDINGS UNDER ANY LAW OF ANY JURISDICTION.
4.13
EMPLOYEE BENEFITS. EXCEPT AS SET FORTH ON SCHEDULE 4.13, NONE OF
BORROWERS, ANY OF THEIR SUBSIDIARIES, OR ANY OF THEIR ERISA AFFILIATES
MAINTAINS, CONTRIBUTES TO, OR HAS ANY LIABILITY (CONTINGENT OR OTHERWISE) WITH
RESPECT TO, ANY BENEFIT PLAN OR MULTIEMPLOYER PLAN. EACH OF BORROWERS, THEIR
SUBSIDIARIES AND THEIR ERISA AFFILIATES HAVE SATISFIED THE MINIMUM FUNDING
STANDARDS OF ERISA AND THE IRC WITH RESPECT TO EACH BENEFIT PLAN TO WHICH IT IS
OBLIGATED TO CONTRIBUTE AND HAS MADE ALL CONTRIBUTIONS REQUIRED UNDER THE TERMS
OF EACH MULTIEMPLOYER PLAN TO WHICH IT IS OBLIGATED TO CONTRIBUTE. NO ERISA
EVENT HAS OCCURRED NOR HAS ANY OTHER EVENT OCCURRED THAT MAY RESULT IN AN ERISA
EVENT THAT REASONABLY COULD BE EXPECTED TO RESULT IN A MATERIAL ADVERSE CHANGE.
NONE OF BORROWERS, ANY OF THEIR SUBSIDIARIES, OR ANY OF THEIR ERISA AFFILIATES
IS REQUIRED TO PROVIDE SECURITY TO ANY BENEFIT PLAN UNDER SECTION 401(A)(29) OF
THE IRC. EACH PLAN HAS BEEN MAINTAINED IN ALL MATERIAL RESPECTS WITH ERISA AND
THE IRC, TO THE EXTENT APPLICABLE, AND OTHER APPLICABLE LAW.
4.14
ENVIRONMENTAL CONDITION.
(A)
THE OPERATIONS OF THE BORROWERS AND THEIR RESPECTIVE SUBSIDIARIES
ARE IN COMPLIANCE WITH ALL APPLICABLE LIMITATIONS, RESTRICTIONS, CONDITIONS,
STANDARDS, PROHIBITIONS, REQUIREMENTS AND OBLIGATIONS OF ENVIRONMENTAL LAWS AND
RELATED ORDERS OF ANY COURT OR OTHER GOVERNMENTAL AUTHORITY;
(B)
THERE ARE NOT ANY EXISTING, PENDING OR, TO THE KNOWLEDGE OF ANY
BORROWER, THREATENED ACTIONS, SUITS, CLAIMS, INVESTIGATIONS, INQUIRIES OR
PROCEEDINGS BY OR BEFORE ANY COURT OR ANY OTHER GOVERNMENTAL AUTHORITY DIRECTED
AGAINST BORROWERS OR THEIR RESPECTIVE SUBSIDIARIES THAT PERTAIN OR RELATE TO
(I) ANY REMEDIAL OBLIGATIONS UNDER ANY APPLICABLE ENVIRONMENTAL LAW,
(II) VIOLATIONS BY ANY BORROWER OR ANY OF ITS SUBSIDIARIES OF ANY ENVIRONMENTAL
LAW, (III) PERSONAL INJURY OR PROPERTY DAMAGE CLAIMS RELATING TO A RELEASE OF
CHEMICALS OR HAZARDOUS MATERIALS, OR (IV) RESPONSE, REMOVAL, OR REMEDIAL COSTS
UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
("CERCLA")