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been prepared as of September 30, 2006 and reflects as of such date, on a Pro
Forma Basis for the transactions contemplated herein to occur on the Closing
Date, the Consolidated financial condition of Holdings, and the assumptions
expressed therein are reasonable based on the information available to Holdings
and the Borrower at such date and on the Closing Date.
4.5
MATERIAL ADVERSE EFFECT.
SINCE SEPTEMBER 24, 2005, THERE HAVE BEEN
NO EVENTS, CIRCUMSTANCES, DEVELOPMENTS OR OTHER CHANGES IN FACTS THAT WOULD, IN
THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT.
4.6
SOLVENCY.
BOTH BEFORE AND AFTER GIVING EFFECT TO (A) THE LOANS AND
LETTERS OF CREDIT MADE OR ISSUED ON OR PRIOR TO THE DATE THIS REPRESENTATION AND
WARRANTY IS MADE, (B) THE DISBURSEMENT OF THE PROCEEDS OF SUCH LOANS, (C) THE
CONSUMMATION OF THE RELATED TRANSACTIONS AND (D) THE PAYMENT AND ACCRUAL OF ALL
TRANSACTION COSTS IN CONNECTION WITH THE FOREGOING, BOTH THE LOAN PARTIES TAKEN
AS A WHOLE AND THE BORROWER ARE SOLVENT.
4.7
LITIGATION.
THERE ARE NO PENDING (OR, TO THE KNOWLEDGE OF ANY
GROUP MEMBER, THREATENED) ACTIONS, INVESTIGATIONS, SUITS, PROCEEDINGS, AUDITS,
CLAIMS, DEMANDS, ORDERS OR DISPUTES AFFECTING THE BORROWER OR ANY OF ITS
SUBSIDIARIES WITH, BY OR BEFORE ANY GOVERNMENTAL AUTHORITY OTHER THAN THOSE THAT
CANNOT REASONABLY BE EXPECTED TO AFFECT THE OBLIGATIONS, THE LOAN DOCUMENTS, THE
LETTERS OF CREDIT, THE RELATED DOCUMENTS, THE RELATED TRANSACTIONS AND THE OTHER
TRANSACTIONS CONTEMPLATED THEREIN AND WOULD NOT, IN THE AGGREGATE, HAVE A
MATERIAL ADVERSE EFFECT.
4.8
TAXES.
ALL FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND FRANCHISE
AND OTHER MATERIAL TAX RETURNS, REPORTS AND STATEMENTS (COLLECTIVELY, THE "TAX
RETURNS") REQUIRED TO BE FILED BY ANY TAX AFFILIATE HAVE BEEN FILED WITH THE
APPROPRIATE GOVERNMENTAL AUTHORITIES IN ALL JURISDICTIONS IN WHICH SUCH TAX
RETURNS ARE REQUIRED TO BE FILED, ALL SUCH TAX RETURNS ARE TRUE AND CORRECT IN
ALL MATERIAL RESPECTS, AND ALL TAXES, CHARGES AND OTHER IMPOSITIONS REFLECTED
THEREIN OR OTHERWISE DUE AND PAYABLE HAVE BEEN PAID PRIOR TO THE DATE ON WHICH
ANY LIABILITY MAY BE ADDED THERETO FOR NON-PAYMENT THEREOF EXCEPT FOR THOSE
CONTESTED IN GOOD FAITH BY APPROPRIATE PROCEEDINGS DILIGENTLY CONDUCTED AND FOR
WHICH ADEQUATE RESERVES ARE MAINTAINED ON THE BOOKS OF THE APPROPRIATE TAX
AFFILIATE IN ACCORDANCE WITH GAAP.
EXCEPT AS DISCLOSED ON SCHEDULE 4.8, AS OF
THE CLOSING DATE, NO TAX RETURN IS UNDER AUDIT OR EXAMINATION BY ANY
GOVERNMENTAL AUTHORITY AND NO NOTICE OF SUCH AN AUDIT OR EXAMINATION OR ANY
ASSERTION OF ANY CLAIM FOR TAXES HAS BEEN GIVEN OR MADE BY ANY GOVERNMENTAL
AUTHORITY.
PROPER AND ACCURATE AMOUNTS HAVE BEEN WITHHELD BY EACH TAX AFFILIATE
FROM THEIR RESPECTIVE EMPLOYEES FOR ALL PERIODS IN FULL AND COMPLETE COMPLIANCE
WITH THE TAX, SOCIAL SECURITY AND UNEMPLOYMENT WITHHOLDING PROVISIONS OF
APPLICABLE REQUIREMENTS OF LAW AND SUCH WITHHOLDINGS HAVE BEEN TIMELY PAID TO
THE RESPECTIVE GOVERNMENTAL AUTHORITIES.
NO TAX AFFILIATE HAS PARTICIPATED IN A
"REPORTABLE TRANSACTION" WITHIN THE MEANING OF TREASURY REGULATION
SECTION 1.6011-4(B) OR HAS BEEN
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A MEMBER OF AN