ARRANGERS, ADMINISTRATIVE AGENT
AND/OR ANY LENDER ON OR BEFORE THE CLOSING DATE (INCLUDING (I) THE CONFIDENTIAL
INFORMATION MEMORANDUM AND (II) ALL INFORMATION CONTAINED IN THE CREDIT
DOCUMENTS) FOR PURPOSES OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREIN CONTAINED ANY UNTRUE STATEMENT OR OMITTED TO
STATE ANY MATERIAL FACT NECESSARY TO MAKE SUCH INFORMATION AND DATA (TAKEN AS A
WHOLE) NOT MISLEADING AT SUCH TIME IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH
SUCH INFORMATION OR DATA WAS FURNISHED, IT BEING UNDERSTOOD AND AGREED THAT FOR
PURPOSES OF THIS SECTION 8.8(A), SUCH FACTUAL INFORMATION AND DATA SHALL NOT
INCLUDE PROJECTIONS AND PRO FORMA FINANCIAL INFORMATION.
(B)
THE PROJECTIONS AND PRO FORMA FINANCIAL
INFORMATION CONTAINED IN THE INFORMATION AND DATA REFERRED TO IN PARAGRAPH
(A) ABOVE WERE BASED ON GOOD FAITH ESTIMATES AND ASSUMPTIONS BELIEVED BY SUCH
PERSONS TO BE REASONABLE AT THE TIME MADE, IT BEING RECOGNIZED BY THE LENDERS
THAT SUCH PROJECTIONS AS TO FUTURE EVENTS ARE NOT TO BE VIEWED AS FACTS AND THAT
ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED BY ANY SUCH PROJECTIONS MAY
DIFFER FROM THE PROJECTED RESULTS.
8.9.
Financial Condition; Financial Statements.
The (a) unaudited historical consolidated financial information of the Borrower
as set forth in the Confidential Information Memorandum, and (b) the Historical
Financial Statements, in each case present or will, when provided, present
fairly in all material respects the combined financial position of the Borrower
at the respective dates of said information, statements and results of
operations for the respective periods covered thereby.
The financial statements
referred to in clause (b) of this Section 8.9 have been prepared in accordance
with GAAP consistently applied except to the extent provided in the notes to
said financial statements.
There has been no Material Adverse Change since
December 31, 2004.
8.10.
Tax Returns and Payments.
Each of Holdings, the
Borrower and the Subsidiaries has filed all federal income tax returns and all
other material tax returns, domestic and foreign, required to be filed by it and
has paid all material taxes and assessments payable by it that have become due,
other than those not yet delinquent or contested in good faith and for which
adequate reserves have been established in accordance with GAAP.
Each of
Holdings, the Borrower and each of the Subsidiaries have paid, or have provided
adequate reserves (in the good faith judgment of the management of the Borrower)
in accordance with GAAP for the payment of, all material federal, state,
provincial and foreign income taxes applicable for all prior fiscal years and
for the current fiscal year to the Closing Date.
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8.11.
Compliance with ERISA.
(A)
EACH PLAN IS IN COMPLIANCE WITH ERISA, THE
CODE AND ANY APPLICABLE REQUIREMENT OF LAW; NO REPORTABLE EVENT HAS OCCURRED (OR
IS REASONABLY LIKELY TO OCCUR) WITH RESPECT TO ANY PLAN; NO PLAN IS INSOLVENT OR
IN REORGANIZATION (OR IS REASONABLY LIKELY TO BE INSOLVENT OR IN
REORGANIZATION), AND NO WRITTEN NOTICE OF ANY SUCH INSOLVENCY OR REORGANIZATION
HAS BEEN GIVEN