NOT TO
BE VIEWED AS FACT AND THAT ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED
BY SUCH FINANCIAL INFORMATION MAY DIFFER FROM THE PROJECTED RESULTS SET FORTH
THEREIN BY A MATERIAL AMOUNT AND NO CREDIT PARTY, HOWEVER, MAKES ANY
REPRESENTATION AS TO THE ABILITY OF ANY COMPANY TO ACHIEVE THE RESULTS SET FORTH
IN ANY SUCH PROJECTIONS.
AS OF THE CLOSING DATE, THE DOCUMENTS FILED BY
BORROWER WITH THE SEC UNDER THE EXCHANGE ACT (INCLUDING, IN EACH CASE, ALL
AMENDMENTS AND SUPPLEMENTS THERETO) SINCE DECEMBER 31, 2003, IN EACH CASE, SHALL
BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AND NO SUCH DOCUMENT CONTAINS ANY
UNTRUE STATEMENT OF MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT REQUIRED TO
BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MATERIALLY MISLEADING.
EACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THE ARGOSY ACQUISITION
AGREEMENT MADE BY EACH OF BORROWER AND ARGOSY AND THEIR RESPECTIVE SUBSIDIARIES
THEREIN ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN MADE AND AT AND AS OF
THE CLOSING DATE AS IF MADE ON AND AS OF THE CLOSING DATE (UNLESS EXPRESSLY
STATED TO RELATE TO A SPECIFIC EARLIER DATE, IN WHICH CASE SUCH REPRESENTATIONS
AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF SUCH
EARLIER DATE) (IT BEING UNDERSTOOD THAT THE REPRESENTATION OR WARRANTY IN THIS
SENTENCE THAT PERTAINS TO REPRESENTATIONS AND WARRANTIES IN THE ARGOSY
ACQUISITION AGREEMENT MADE BY ARGOSY AND ITS SUBSIDIARIES (WITHOUT GIVING EFFECT
TO THE CONSUMMATION OF THE ARGOSY ACQUISITION) SHALL BE LIMITED TO THE KNOWLEDGE
OF BORROWER).
THERE IS NO FACT KNOWN TO BORROWER OR ANY OF ITS RESTRICTED
SUBSIDIARIES THAT WOULD HAVE A MATERIAL ADVERSE EFFECT THAT HAS NOT BEEN
DISCLOSED HEREIN, IN THE OTHER CREDIT DOCUMENTS, IN THE CONFIDENTIAL INFORMATION
MEMORANDUM, OR IN ANY OTHER DOCUMENTS, CERTIFICATES AND WRITTEN STATEMENTS
FURNISHED TO LEAD ARRANGERS, THE OTHER AGENTS AND THE LENDERS FOR USE IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE OTHER CREDIT
DOCUMENTS, OR IN ANY DOCUMENTS FILED BY BORROWER WITH THE SEC UNDER THE EXCHANGE
ACT.
EACH CREDIT PARTY UNDERSTANDS THAT ALL SUCH STATEMENTS, REPRESENTATIONS
AND
103
WARRANTIES SHALL BE DEEMED TO HAVE BEEN RELIED UPON BY THE LENDERS AS A MATERIAL
INDUCEMENT TO MAKE EACH EXTENSION OF CREDIT HEREUNDER.
SECTION 8.17.
SOLVENCY.
AS OF EACH FUNDING DATE, IMMEDIATELY PRIOR TO (IN
THE CASE OF THE INITIAL FUNDING DATE) AND IMMEDIATELY FOLLOWING THE CONSUMMATION
OF THE TRANSACTIONS AND THE EXTENSIONS OF CREDIT TO OCCUR ON SUCH FUNDING DATE,
BORROWER (ON A CONSOLIDATED BASIS WITH ITS RESTRICTED SUBSIDIARIES) IS AND WILL
BE SOLVENT (AFTER GIVING EFFECT TO SECTION 6.07) (IN THE CASE OF THE INITIAL
FUNDING DATE, ASSUMING THE ABSENCE OF A DEFAULT OR EVENT OF DEFAULT, REGARDLESS
OF THE EXISTENCE THEREOF).
SECTION 8.18.
SUBORDINATED DEBT.
THE OBLIGATIONS ARE SENIOR DEBT WITH
RESPECT TO ALL INDEBTEDNESS OF BORROWER OR ANY OF ITS RESTRICTED SUBSIDIARIES
THAT IS CONTRACTUALLY SUBORDINATED