none of which individually or in the aggregate
has been materially adverse.
5.6.
Entity Names. No Borrower has been known by any other corporate
name in the past five years and does not sell Inventory under any other name
except as set forth on Schedule 5.6, nor has any Borrower been the surviving
corporation of a merger or consolidation or acquired all or substantially all of
the assets of any Person during the preceding five (5) years.
5.7.
O.S.H.A. AND ENVIRONMENTAL COMPLIANCE.
(A)
EACH BORROWER HAS DULY COMPLIED WITH, AND ITS FACILITIES,
BUSINESS, ASSETS, PROPERTY, LEASEHOLDS, REAL PROPERTY AND EQUIPMENT ARE IN
COMPLIANCE IN ALL MATERIAL RESPECTS WITH, THE PROVISIONS OF THE FEDERAL
OCCUPATIONAL SAFETY AND HEALTH ACT, THE ENVIRONMENTAL PROTECTION ACT, RCRA AND
ALL OTHER ENVIRONMENTAL LAWS, AND ANY CANADIAN EQUIVALENT THEREOF WITH RESPECT
TO THE FOREGOING STATUTES; THERE HAVE BEEN NO OUTSTANDING CITATIONS, NOTICES OR
ORDERS OF NON-COMPLIANCE ISSUED TO ANY BORROWER OR RELATING TO ITS BUSINESS,
ASSETS, PROPERTY, LEASEHOLDS OR EQUIPMENT UNDER ANY SUCH LAWS, RULES OR
REGULATIONS.
(B)
EACH BORROWER HAS BEEN ISSUED ALL REQUIRED FEDERAL, STATE AND
LOCAL LICENSES, CERTIFICATES OR PERMITS RELATING TO ALL APPLICABLE ENVIRONMENTAL
LAWS.
(C)
(I) THERE ARE NO VISIBLE SIGNS OF RELEASES, SPILLS, DISCHARGES,
LEAKS OR DISPOSAL (COLLECTIVELY REFERRED TO AS "RELEASES") OF HAZARDOUS
SUBSTANCES AT, UPON, UNDER OR WITHIN ANY REAL PROPERTY OR ANY PREMISES LEASED BY
ANY BORROWER; (II) THERE ARE NO UNDERGROUND STORAGE TANKS OR POLYCHLORINATED
BIPHENYLS ON THE REAL PROPERTY OR ANY PREMISES LEASED BY ANY BORROWER;
(III) NEITHER THE REAL PROPERTY NOR ANY PREMISES LEASED BY ANY BORROWER HAS EVER
BEEN USED AS A TREATMENT, STORAGE OR DISPOSAL FACILITY OF HAZARDOUS WASTE; AND
(IV) NO HAZARDOUS SUBSTANCES ARE PRESENT ON THE REAL PROPERTY OR ANY PREMISES
LEASED BY ANY BORROWER, EXCEPTING SUCH QUANTITIES AS ARE HANDLED IN ACCORDANCE
WITH ALL APPLICABLE MANUFACTURER'S INSTRUCTIONS AND GOVERNMENTAL REGULATIONS AND
IN PROPER STORAGE CONTAINERS AND AS ARE NECESSARY FOR THE OPERATION OF THE
COMMERCIAL BUSINESS OF ANY BORROWER OR OF ITS TENANTS.
5.8.
SOLVENCY; NO LITIGATION, VIOLATION, INDEBTEDNESS OR DEFAULT.
(A)
BEFORE AND AFTER GIVING EFFECT TO THE TRANSACTIONS AND THE FUNDING
OF EACH ADVANCE MADE PURSUANT TO THIS AGREEMENT, EACH BORROWER IS AND WILL BE
SOLVENT, ABLE TO PAY ITS DEBTS AS THEY MATURE, HAS AND WILL HAVE CAPITAL
SUFFICIENT TO CARRY ON ITS BUSINESS AND ALL BUSINESSES IN WHICH IT IS ABOUT TO
ENGAGE, AND (I) AS OF THE CLOSING DATE, THE FAIR PRESENT SALEABLE VALUE OF ITS
ASSETS, CALCULATED ON A GOING CONCERN BASIS, IS IN EXCESS OF THE AMOUNT OF ITS
LIABILITIES AND (II) SUBSEQUENT TO THE CLOSING DATE, THE FAIR SALEABLE VALUE OF
ITS ASSETS (CALCULATED ON A GOING CONCERN BASIS) WILL BE IN EXCESS OF THE AMOUNT
OF ITS LIABILITIES.
(B)
EXCEPT AS DISCLOSED IN SCHEDULE 5.8(B), NO BORROWER HAS (I) ANY
PENDING OR THREATENED LITIGATION, ARBITRATION, ACTIONS OR PROCEEDINGS WHICH
INVOLVE THE POSSIBILITY OF HAVING A MATERIAL ADVERSE EFFECT, AND (II) ANY
LIABILITIES OR INDEBTEDNESS FOR BORROWED MONEY OTHER THAN THE