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 SECOND RESTATED 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 SECOND RESTATED
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 OBLIGATIONS.
(C)
NO BORROWER IS IN VIOLATION OF ANY APPLICABLE STATUTE, LAW, RULE,
REGULATION OR ORDINANCE IN ANY RESPECT WHICH COULD REASONABLY BE EXPECTED TO
HAVE A MATERIAL ADVERSE EFFECT, NOR IS ANY BORROWER IN VIOLATION OF ANY ORDER OF
ANY COURT, GOVERNMENTAL BODY OR ARBITRATION BOARD OR TRIBUNAL.
(D)
NO BORROWER NOR ANY MEMBER OF THE CONTROLLED GROUP MAINTAINS OR
CONTRIBUTES TO ANY PLAN OTHER THAN THOSE LISTED ON SCHEDULE 5.8(D) HERETO.
(I) NO PLAN HAS INCURRED ANY "ACCUMULATED FUNDING DEFICIENCY," AS DEFINED IN
SECTION 302(A)(2) OF ERISA AND SECTION 412(A) OF THE CODE, WHETHER OR NOT
WAIVED, AND EACH BORROWER AND EACH MEMBER OF THE CONTROLLED GROUP HAS MET ALL
APPLICABLE MINIMUM FUNDING REQUIREMENTS UNDER SECTION 302 OF ERISA IN RESPECT OF
EACH PLAN; (II) EACH PLAN WHICH IS INTENDED TO BE A QUALIFIED PLAN UNDER SECTION
401(A) OF THE CODE AS CURRENTLY IN EFFECT HAS BEEN DETERMINED BY THE INTERNAL
REVENUE SERVICE TO BE QUALIFIED UNDER SECTION 401(A) OF THE CODE AND THE TRUST
RELATED THERETO IS EXEMPT FROM FEDERAL INCOME TAX UNDER SECTION 501(A) OF THE
CODE; (III) NEITHER ANY BORROWER NOR ANY MEMBER OF THE CONTROLLED GROUP HAS
INCURRED ANY LIABILITY TO THE PBGC OTHER THAN FOR THE PAYMENT OF PREMIUMS, AND
THERE ARE NO PREMIUM PAYMENTS WHICH HAVE BECOME DUE WHICH ARE UNPAID; (IV) NO
PLAN HAS BEEN TERMINATED BY THE PLAN ADMINISTRATOR THEREOF NOR BY THE PBGC, AND
THERE IS NO OCCURRENCE WHICH WOULD CAUSE THE PBGC TO INSTITUTE PROCEEDINGS UNDER
TITLE IV OF ERISA TO