WITHDRAWAL FROM ANY SUCH PLAN; AND NEITHER THE COMPANY NOR ANY OTHER
MEMBER OF THE CONTROLLED GROUP HAS RECEIVED ANY NOTICE THAT ANY MULTIEMPLOYER
PENSION PLAN IS IN REORGANIZATION, THAT INCREASED CONTRIBUTIONS MAY BE REQUIRED
TO AVOID A REDUCTION IN PLAN BENEFITS OR THE IMPOSITION OF ANY EXCISE TAX, THAT
ANY SUCH PLAN IS OR HAS BEEN FUNDED AT A RATE LESS THAN THAT REQUIRED UNDER
SECTION 412 OF THE CODE, THAT ANY SUCH PLAN IS OR MAY BE TERMINATED, OR THAT ANY
SUCH PLAN IS OR MAY BECOME INSOLVENT.
9.10
INVESTMENT COMPANY ACT.
NO LOAN PARTY IS AN
"INVESTMENT COMPANY" OR A COMPANY "CONTROLLED" BY AN "INVESTMENT COMPANY" OR A
"SUBSIDIARY" OF AN "INVESTMENT COMPANY," WITHIN THE MEANING OF THE INVESTMENT
COMPANY ACT OF 1940.
9.11
INTENTIONALLY OMITTED.
9.12
REGULATION U.
THE COMPANY IS NOT ENGAGED
PRINCIPALLY, OR AS ONE OF ITS IMPORTANT ACTIVITIES, IN THE BUSINESS OF EXTENDING
CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING MARGIN STOCK.
9.13
TAXES.
EACH LOAN PARTY HAS TIMELY FILED ALL TAX
RETURNS AND REPORTS REQUIRED BY LAW TO HAVE BEEN FILED BY IT AND HAS PAID ALL
TAXES AND GOVERNMENTAL CHARGES DUE AND PAYABLE WITH RESPECT TO SUCH RETURN,
EXCEPT ANY SUCH TAXES OR CHARGES WHICH ARE BEING DILIGENTLY CONTESTED IN GOOD
FAITH BY APPROPRIATE PROCEEDINGS AND FOR WHICH ADEQUATE RESERVES IN ACCORDANCE
WITH GAAP SHALL HAVE BEEN SET ASIDE ON ITS BOOKS.
THE LOAN PARTIES HAVE MADE
ADEQUATE RESERVES ON THEIR BOOKS AND RECORDS IN ACCORDANCE WITH GAAP FOR ALL
TAXES THAT HAVE ACCRUED BUT WHICH ARE NOT YET DUE AND PAYABLE.
NO LOAN PARTY
HAS PARTICIPATED IN ANY TRANSACTION THAT RELATES TO A YEAR OF THE TAXPAYER
(WHICH IS STILL OPEN UNDER THE APPLICABLE STATUTE OF LIMITATIONS) WHICH IS A
"REPORTABLE TRANSACTION" WITHIN THE MEANING OF TREASURY REGULATION
SECTION 1.6011-4(B)(2) (IRRESPECTIVE OF THE DATE WHEN THE TRANSACTION WAS
ENTERED INTO).
9.14
SOLVENCY, ETC.
ON THE CLOSING DATE, AND
IMMEDIATELY PRIOR TO AND AFTER GIVING EFFECT TO THE ISSUANCE OF EACH LETTER OF
CREDIT AND EACH BORROWING HEREUNDER AND THE USE OF THE PROCEEDS THEREOF, WITH
RESPECT TO EACH LOAN PARTY OTHER THAN INACTIVE SUBSIDIARIES, INDIVIDUALLY,
(A) THE FAIR VALUE OF ITS ASSETS IS GREATER THAN THE AMOUNT OF ITS LIABILITIES
(INCLUDING DISPUTED, CONTINGENT AND UNLIQUIDATED LIABILITIES) AS SUCH VALUE IS
ESTABLISHED AND LIABILITIES EVALUATED IN ACCORDANCE WITH GAAP, (B) THE PRESENT
FAIR SALEABLE VALUE OF ITS 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) IT 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
41
OF BUSINESS, (D) IT 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) IT IS NOT ENGAGED IN BUSINESS OR A TRANSACTION, AND IS NOT ABOUT
TO ENGAGE