SHALL MEAN, FOR ANY PERSON ON A PARTICULAR DATE, THAT ON
SUCH DATE, (A) THE FAIR VALUE OF THE PROPERTY OF SUCH PERSON IS GREATER THAN THE
TOTAL AMOUNT OF LIABILITIES, INCLUDING, WITHOUT LIMITATION, CONTINGENT
LIABILITIES, OF SUCH PERSON, (B) THE PRESENT FAIR SALABLE VALUE OF THE ASSETS OF
SUCH PERSON IS NOT LESS THAN THE AMOUNT THAT WILL BE REQUIRED TO PAY THE
PROBABLE LIABILITY OF SUCH PERSON ON ITS DEBTS AS THEY BECOME ABSOLUTE AND
MATURED, (C) SUCH PERSON DOES NOT INTEND TO, AND DOES NOT BELIEVE THAT IT WILL,
INCUR DEBTS AND LIABILITIES BEYOND SUCH PERSON'S ABILITY TO PAY AS SUCH DEBTS
AND LIABILITIES MATURE, (D) SUCH PERSON IS NOT ENGAGED IN A BUSINESS OR A
TRANSACTION, AND IS NOT ABOUT TO ENGAGE IN A BUSINESS OR A TRANSACTION, FOR
WHICH SUCH PERSON'S PROPERTY WOULD CONSTITUTE AN UNREASONABLY SMALL CAPITAL AND
(E) SUCH PERSON IS ABLE TO PAY ITS DEBTS AS THEY BECOME DUE AND PAYABLE.
(XXXV)
EXCEPT AS DESCRIBED IN THE SECTION ENTITLED "PLAN OF DISTRIBUTION"
OR "RELATED PARTY TRANSACTIONS - ADVISORY AGREEMENT" IN THE OFFERING MEMORANDUM,
THERE ARE NO CONTRACTS, AGREEMENTS OR UNDERSTANDINGS BETWEEN ANY ISSUER AND ANY
OTHER PERSON OTHER THAN THE INITIAL PURCHASERS THAT WOULD GIVE RISE TO A VALID
CLAIM AGAINST SUCH ISSUER OR THE INITIAL PURCHASERS FOR A BROKERAGE COMMISSION,
FINDER'S FEE OR LIKE PAYMENT IN CONNECTION WITH THE ISSUANCE, PURCHASE AND SALE
OF THE NOTES.
(XXXVI)
THE STATISTICAL AND MARKET-RELATED DATA AND FORWARD-LOOKING
STATEMENTS (WITHIN THE MEANING OF SECTION 27A OF THE ACT AND SECTION 21E OF THE
EXCHANGE ACT) INCLUDED IN THE OFFERING MEMORANDUM ARE BASED ON OR DERIVED FROM
SOURCES THAT THE
18
ISSUERS BELIEVE TO BE RELIABLE AND ACCURATE IN ALL MATERIAL RESPECTS AND
REPRESENT THEIR GOOD FAITH ESTIMATES THAT ARE MADE ON THE BASIS OF DATA DERIVED
FROM SUCH SOURCES.
(XXXVII)
AS OF THE CLOSING DATE, EACH OF THE REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SUBSIDIARIES SET FORTH IN THE EACH OF THE TRANSACTION
DOCUMENTS WILL BE TRUE AND CORRECT AS IF MADE AT AND AS OF SUCH DATE (OTHER THAN
TO THE EXTENT ANY SUCH REPRESENTATION OR WARRANTY IS EXPRESSLY MADE AS TO ONLY A
CERTAIN OTHER DATE).
(XXXVIII)
EACH CERTIFICATE SIGNED BY ANY OFFICER OF THE ISSUERS AND DELIVERED
TO THE INITIAL PURCHASERS OR COUNSEL FOR THE INITIAL PURCHASERS PURSUANT TO, OR
IN CONNECTION WITH, THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION AND
WARRANTY UNDER THIS AGREEMENT BY THE ISSUERS TO THE INITIAL PURCHASERS AS TO THE
MATTERS COVERED BY SUCH CERTIFICATE.
(xxxix)
Except as set forth in the Offering Memorandum or as would not,
individually or in the aggregate, have a Material Adverse Effect, there is no
strike, slowdown or work stoppage with the employees of the Company or any of
its subsidiaries.
(XL)
THE COMPANY HAS DELIVERED TO THE INITIAL PURCHASERS A TRUE AND
CORRECT COPY OF EACH OF THE TRANSACTION DOCUMENTS, TOGETHER WITH ALL RELATED
AGREEMENTS AND ALL SCHEDULES AND EXHIBITS THERETO, AND THERE SHALL HAVE