CLAIM, CITATION OR NOTICE BY ANY
GOVERNMENTAL AUTHORITY OR ANY OTHER PARTY, NOR IS ANY PENDING OR, TO THE BEST OF
THE BORROWER'S KNOWLEDGE, THREATENED. THE BORROWER HAS NO MATERIAL LIABILITY,
CONTINGENT OR OTHERWISE, IN CONNECTION WITH ANY VIOLATION OF ANY ENVIRONMENTAL
LAW.
5.12
SOLVENCY, ETC.
AS OF THE DATE HEREOF, AND
IMMEDIATELY PRIOR TO AND AFTER GIVING EFFECT TO THE BORROWER UNDERTAKING ANY
OBLIGATION HEREUNDER, (A) THE FAIR VALUE OF THE BORROWER'S ASSETS IS GREATER
THAN THE AMOUNT OF ITS LIABILITIES (INCLUDING DISPUTED, CONTINGENT AND
UNLIQUIDATED LIABILITIES) AS SUCH VALUE IS ESTABLISHED AND LIABILITIES EVALUATED
AS REQUIRED UNDER THE SECTION 548 OF THE UNITED STATES BANKRUPTCY CODE, (B) THE
PRESENT FAIR SALEABLE VALUE OF THE BORROWER'S ASSETS IS NOT LESS THAN THE AMOUNT
THAT WILL BE REQUIRED TO PAY THE PROBABLE LIABILITY ON ITS DEBTS AS THEY BECOME
ABSOLUTE AND MATURED, (C) THE BORROWER IS ABLE TO REALIZE UPON ITS ASSETS AND
PAY ITS DEBTS AND OTHER LIABILITIES (INCLUDING DISPUTED, CONTINGENT AND
UNLIQUIDATED LIABILITIES) AS THEY MATURE IN THE NORMAL COURSE OF BUSINESS,
(D) THE BORROWER DOES NOT INTEND TO, AND DOES NOT BELIEVE THAT IT WILL, INCUR
DEBTS OR LIABILITIES BEYOND ITS ABILITY TO PAY AS SUCH DEBTS AND LIABILITIES
MATURE, AND (E) THE BORROWER IS NOT ENGAGED IN BUSINESS OR A TRANSACTION, AND IS
NOT ABOUT TO ENGAGE IN BUSINESS OR A TRANSACTION, FOR WHICH ITS PROPERTY WOULD
CONSTITUTE UNREASONABLY SMALL CAPITAL.
5.13
ERISA OBLIGATIONS.
ALL EMPLOYEE PLANS OF THE
BORROWER MEET THE MINIMUM FUNDING STANDARDS OF SECTION 302 OF ERISA AND 412 OF
THE INTERNAL REVENUE CODE WHERE APPLICABLE, AND EACH SUCH EMPLOYEE PLAN THAT IS
INTENDED TO BE QUALIFIED WITHIN THE MEANING OF SECTION 401 OF THE INTERNAL
REVENUE CODE OF 1986 IS QUALIFIED.
NO WITHDRAWAL LIABILITY HAS BEEN
22
INCURRED UNDER ANY SUCH EMPLOYEE PLANS AND NO "REPORTABLE EVENT" OR "PROHIBITED
TRANSACTION" (AS SUCH TERMS ARE DEFINED IN ERISA), HAS OCCURRED WITH RESPECT TO
ANY SUCH EMPLOYEE PLANS, UNLESS APPROVED BY THE APPROPRIATE GOVERNMENTAL
AGENCIES.
THE BORROWER HAS PROMPTLY PAID AND DISCHARGED ALL OBLIGATIONS AND
LIABILITIES ARISING UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
("ERISA") OF A CHARACTER WHICH IF UNPAID OR UNPERFORMED MIGHT RESULT IN THE
IMPOSITION OF A LIEN AGAINST ANY OF ITS PROPERTIES OR ASSETS.
5.14
LABOR RELATIONS.
EXCEPT AS COULD NOT REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT, (I) THERE ARE NO STRIKES,
LOCKOUTS OR OTHER LABOR DISPUTES AGAINST THE BORROWER OR, TO THE BEST KNOWLEDGE
OF THE BORROWER, THREATENED, (II) HOURS WORKED BY AND PAYMENT MADE TO EMPLOYEES
OF THE BORROWER HAVE NOT BEEN IN VIOLATION OF THE FAIR LABOR STANDARDS ACT OR
ANY OTHER APPLICABLE LAW, AND (II) NO UNFAIR LABOR PRACTICE COMPLAINT IS PENDING
AGAINST THE BORROWER OR, TO THE BEST KNOWLEDGE OF THE BORROWER, THREATENED
BEFORE ANY GOVERNMENTAL AUTHORITY.
5.15
LENDING RELATIONSHIP.
THE RELATIONSHIP HEREBY
CREATED BETWEEN THE BORROWER AND THE BANK IS AND HAS BEEN CONDUCTED ON AN OPEN
AND ARM'S LENGTH BASIS IN WHICH NO FIDUCIARY RELATIONSHIP EXISTS AND