ACT OF 1940, AS AMENDED.
SECTION 3.08.
REGULATION U.
NEITHER THE COMPANY NOR ANY OF THE SUBSIDIARIES IS
ENGAGED IN THE BUSINESS OF PURCHASING OR CARRYING MARGIN STOCK.
THE VALUE OF
THE MARGIN STOCK OWNED DIRECTLY OR INDIRECTLY BY THE COMPANY OR ANY SUBSIDIARY
WHICH IS SUBJECT TO ANY ARRANGEMENT HEREUNDER IS LESS THAN AN AMOUNT EQUAL TO
25% OF THE VALUE OF ALL ASSETS OF THE COMPANY AND/OR SUCH SUBSIDIARY SUBJECT TO
SUCH ARRANGEMENT (AS DESCRIBED IN THE DEFINITION OF "INDIRECTLY SECURED" IN
SECTION 221.2 OF REGULATION U ISSUED BY THE BOARD OF GOVERNORS OF THE FEDERAL
RESERVE SYSTEM).
SECTION 3.09.
ENVIRONMENTAL MATTERS.
THE OPERATIONS OF THE COMPANY AND EACH
MATERIAL SUBSIDIARY COMPLY IN ALL MATERIAL RESPECTS WITH ALL ENVIRONMENTAL LAWS,
THE NONCOMPLIANCE WITH WHICH WOULD MATERIALLY ADVERSELY AFFECT THE BUSINESS OF
THE COMPANY OR THE ABILITY OF THE COMPANY TO OBTAIN CREDIT ON COMMERCIALLY
REASONABLE TERMS.
SECTION 3.10.
DISCLOSURE.
NONE OF THE CONFIDENTIAL INFORMATION MEMORANDUM
(INCLUDING THE REPORTS OF THE COMPANY TO THE SECURITIES AND EXCHANGE COMMISSION
INCLUDED THEREIN) OR ANY OTHER WRITTEN INFORMATION PREPARED AND FURNISHED BY
49
OR ON BEHALF OF THE LOAN PARTIES TO ANY AGENT OR LENDER IN CONNECTION WITH THE
NEGOTIATION OF THIS AGREEMENT OR DELIVERED HEREUNDER (AS MODIFIED OR
SUPPLEMENTED BY OTHER INFORMATION SO FURNISHED) CONTAINS AS OF THE DATE THEREOF
(OR, IN THE CASE OF ANY SUCH INFORMATION THAT IS NOT DATED, THE EARLIEST DATE ON
WHICH SUCH INFORMATION IS FURNISHED TO THE ADMINISTRATIVE AGENT OR ANY LENDER)
ANY MATERIAL MISSTATEMENT OF FACT OR OMITS TO STATE ANY MATERIAL FACT NECESSARY
TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH
THEY WERE MADE, NOT MISLEADING; PROVIDED THAT, WITH RESPECT TO PROJECTED
FINANCIAL INFORMATION, THE COMPANY REPRESENTS ONLY THAT SUCH INFORMATION WAS
PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED TO BE REASONABLE AT THE
TIME.
SECTION 3.11.
SUBSIDIARY GUARANTORS.
THE SUBSIDIARY GUARANTORS INCLUDE ALL THE
MATERIAL SUBSIDIARIES, OTHER THAN FOREIGN SUBSIDIARIES.
SECTION 3.12.
SOLVENCY.
AS OF THE INITIAL BORROWING DATE, AFTER GIVING EFFECT
TO THE BORROWINGS HEREUNDER ON SUCH DATE, (A) THE FAIR VALUE OF THE ASSETS OF
THE COMPANY AND THE SUBSIDIARIES, AT A FAIR VALUATION, WILL EXCEED THEIR DEBTS
AND LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE; (B) THE PRESENT FAIR
SALEABLE VALUE OF THE PROPERTY OF THE COMPANY AND THE SUBSIDIARIES WILL BE
GREATER THAN THE AMOUNT THAT WILL BE REQUIRED TO PAY THE PROBABLE LIABILITY IN
RESPECT OF THEIR DEBTS AND OTHER LIABILITIES, SUBORDINATED, CONTINGENT OR
OTHERWISE, AS SUCH DEBTS AND OTHER LIABILITIES BECOME ABSOLUTE AND MATURED;
(C) THE COMPANY AND THE SUBSIDIARIES WILL BE ABLE TO PAY THEIR DEBTS AND
LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND
LIABILITIES BECOME ABSOLUTE AND MATURED; AND (D) THE COMPANY AND THE
SUBSIDIARIES WILL NOT HAVE UNREASONABLY SMALL CAPITAL WITH WHICH TO CONDUCT THE
BUSINESSES IN WHICH THEY ARE ENGAGED AS SUCH BUSINESSES ARE NOW CONDUCTED AND
ARE PROPOSED TO BE CONDUCTED.
SECTION 3.13.
LIMITATION OF DEBT FROM
LENDERS THAT ARE NOT QUALIFYING BANKS.
EACH