applied (except for changes
in application in which such accountants concur and present fairly the financial
position of Loan Parties on a Consolidated Basis at such date and the results of
its operations for such period).
Since June 30, 2009, there has been no change
in the condition, financial or otherwise, of Loan Parties on a Consolidated
Basis from that shown on the balance sheet as of such date, the effect of which
could reasonably be expected to have a Material Adverse Effect individually or
in the aggregate.
5.6.
Organization Name.
The exact name of each Loan Party is set forth on the signature pages of this
Agreement.
No Loan Party has been known by any other corporate, limited
liability company or partnership name in the past five years and no Loan Party
sells Inventory under any other name except as set forth on Schedule 5.6, nor
has any Loan Party 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 except for the recapitalization of Loan Parties as of
the Original Closing Date.
5.7.
O.S.H.A. and Environmental Compliance.
(A)
EACH LOAN PARTY HAS DULY COMPLIED IN ALL
MATERIAL RESPECTS WITH, AND ITS FACILITIES, BUSINESS, ASSETS, PROPERTY,
LEASEHOLDS 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; THERE HAVE BEEN NO
OUTSTANDING CITATIONS, NOTICES OR ORDERS OF NON-COMPLIANCE ISSUED TO ANY LOAN
PARTY OR RELATING TO ITS BUSINESS, ASSETS, PROPERTY, LEASEHOLDS OR EQUIPMENT
UNDER ANY SUCH LAWS, RULES OR REGULATIONS, IN EACH CASE EXCEPT AS SET FORTH ON
SCHEDULE 5.7.
(B)
EACH LOAN PARTY HAS BEEN ISSUED ALL REQUIRED
FEDERAL, STATE AND LOCAL LICENSES, CERTIFICATES OR PERMITS RELATING TO ALL
APPLICABLE ENVIRONMENTAL LAWS, EXCEPT AS SET FORTH ON SCHEDULE 5.7.
(C)
(I) THERE ARE NO VISIBLE SIGNS OF RELEASES,
SPILLS, DISCHARGES, LEAKS OR DISPOSAL (EACH, A "RELEASE") OF HAZARDOUS
SUBSTANCES AT, UPON, UNDER OR WITHIN ANY REAL PROPERTY; (II) TO THE BEST
KNOWLEDGE OF THE LOAN PARTIES, THERE ARE NO UNDERGROUND STORAGE TANKS OR
POLYCHLORINATED BIPHENYLS ON ANY REAL PROPERTY; (III) TO THE BEST KNOWLEDGE OF
THE LOAN PARTIES, THE REAL PROPERTY HAS NEVER BEEN USED AS A TREATMENT, STORAGE
OR DISPOSAL FACILITY OF HAZARDOUS WASTE; AND (IV) NO HAZARDOUS SUBSTANCES ARE
PRESENT ON ANY REAL PROPERTY, EXCEPTING SUCH QUANTITIES AS ARE HANDLED IN
ACCORDANCE WITH ALL APPLICABLE MANUFACTURER'S INSTRUCTIONS AND
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GOVERNMENTAL REGULATIONS AND IN PROPER STORAGE CONTAINERS AND AS ARE NECESSARY
FOR THE OPERATION OF THE COMMERCIAL BUSINESS OF ANY LOAN PARTY OR OF ITS
TENANTS, IN EACH CASE EXCEPT AS SET FORTH ON SCHEDULE 5.7.
5.8.
Solvency; No Litigation, Violation,
Indebtedness or Default.
(A)
BORROWER AND VERRAZANO TAKEN AS A WHOLE IS
SOLVENT, ABLE TO PAY ITS DEBTS AS THEY MATURE, HAS CAPITAL SUFFICIENT TO CARRY
ON ITS BUSINESS AND ALL BUSINESSES IN WHICH IT IS ABOUT TO