OF INSURANCE, WITH REPUTABLE INSURERS OF RECOGNIZED FINANCIAL
RESPONSIBILITY, IN SUCH AMOUNTS AND COVERING SUCH RISKS AS ARE REASONABLE IN THE
BUSINESSES IN WHICH THEY ARE ENGAGED, AND ALL SUCH INSURANCE IS IN FULL FORCE
AND EFFECT.
(XXXV)
ABSENCE OF REGISTRATION RIGHTS. THERE ARE NO PERSONS WITH
REGISTRATION RIGHTS OR OTHER SIMILAR RIGHTS TO HAVE ANY SECURITIES (OTHER THAN
THE SECURITIES) OF THE COMPANY REGISTERED PURSUANT TO THE REGISTRATION
STATEMENT.
(XXXVI)
SOLVENCY. THE COMPANY IS, AND IMMEDIATELY AFTER THE CLOSING TIME (AS
DEFINED IN SECTION 2(B) HEREOF) WILL BE, SOLVENT.
AS USED HEREIN, THE TERM
"SOLVENT" MEANS, WITH RESPECT TO THE COMPANY ON A PARTICULAR DATE, THAT ON SUCH
DATE (A) THE FAIR MARKET VALUE OF THE ASSETS OF THE COMPANY IS GREATER THAN THE
TOTAL AMOUNT OF LIABILITIES (INCLUDING CONTINGENT LIABILITIES) OF THE COMPANY,
(B) THE PRESENT FAIR SALABLE VALUE OF THE ASSETS OF THE COMPANY IS GREATER THAN
THE AMOUNT THAT WILL BE REQUIRED TO PAY THE PROBABLE LIABILITIES OF THE COMPANY
ON ITS DEBTS AS THEY BECOME ABSOLUTE AND MATURED, (C) THE COMPANY IS ABLE TO
REALIZE UPON ITS ASSETS AND PAY ITS DEBTS AND OTHER LIABILITIES, INCLUDING
CONTINGENT OBLIGATIONS, AS THEY MATURE, AND (D) THE COMPANY DOES NOT HAVE
UNREASONABLY SMALL CAPITAL.
(XXXVII)
NO DISTRIBUTION OF UNAUTHORIZED MATERIALS.
THE COMPANY HAS NOT
DISTRIBUTED AND, PRIOR TO THE LATER TO OCCUR OF (I) THE CLOSING TIME (AS DEFINED
IN SECTION 2(B) HEREOF) AND (II) COMPLETION OF THE DISTRIBUTION OF THE
SECURITIES, WILL NOT DISTRIBUTE ANY OFFERING MATERIAL IN
10
CONNECTION WITH THE OFFERING AND SALE OF THE SECURITIES OTHER THAN THE OFFERING
MEMORANDUM OR OTHER MATERIALS, IF ANY, APPROVED BY THE REPRESENTATIVE.
(XXXVIII)
STABILIZATION. NEITHER COMPANY NOR ANY OF ITS OFFICERS, DIRECTORS OR
CONTROLLING PERSONS HAS TAKEN, DIRECTLY OR INDIRECTLY, ANY ACTION DESIGNED TO
CAUSE OR TO RESULT IN, OR THAT HAS CONSTITUTED OR WHICH MIGHT REASONABLY BE
EXPECTED TO CONSTITUTE, THE STABILIZATION OR MANIPULATION OF THE PRICE OF ANY
SECURITY OF THE COMPANY TO FACILITATE THE SALE OR RESALE OF THE SECURITIES.
(XXXIX)
SUPPLY OF MERCHANDISE. NO SUPPLIER OF MERCHANDISE TO THE COMPANY OR
ANY SUBSIDIARY HAS CEASED SHIPMENTS OF MERCHANDISE TO THE COMPANY OR ANY
SUBSIDIARY, OTHER THAN IN THE NORMAL AND ORDINARY COURSE OF BUSINESS CONSISTENT
WITH PAST PRACTICES, WHICH CESSATION WOULD NOT RESULT IN A MATERIAL ADVERSE
EFFECT.
(XL)
SENIOR CREDIT FACILITY.
AS OF THE DATE HEREOF, THE COMPANY IS
NOT AWARE OF ANY FACT WHICH WILL PREVENT IT, ON OR PRIOR TO THE CLOSING TIME (AS
DEFINED IN SECTION 2(B) HEREOF), TO BORROW FUNDS UNDER THE SENIOR CREDIT
FACILITY, IN AMOUNTS THAT ARE SUFFICIENT, TOGETHER WITH THE PROCEEDS FROM THE
PROCEEDS OF THE OFFERING OF SECURITIES CONTEMPLATED BY THIS AGREEMENT, AS
DESCRIBED IN THE OFFERING MEMORANDUM TO REPURCHASE THE SUBORDINATED NOTES
PURSUANT TO THE TERMS OF THE TENDER OFFER AND CONSENT SOLICITATION, OR OTHERWISE
REDEEM THE SUBORDINATED NOTES.
(XLI)
TENDER OFFER AND CONSENT SOLICITATION.
THE COMPANY HAS RECEIVED
SUCH NUMBER OF CONSENTS IRREVOCABLY DEPOSITED PURSUANT TO THE TENDER OFFER AND
CONSENT