IN EACH CASE OTHER THAN EXISTING UNDER
OR BY REASON OF THE LOAN DOCUMENTS OR APPLICABLE LAW.
(K)
FINANCIAL STATEMENTS.
THE (I) AUDITED FINANCIAL STATEMENTS
DELIVERED PURSUANT TO SECTION 5.2(E)(I)(A), (II) UNAUDITED FINANCIAL STATEMENTS
DELIVERED PURSUANT TO SECTION 5.2(E)(I)(B), ARE COMPLETE AND CORRECT AND FAIRLY
PRESENT ON A CONSOLIDATED BASIS THE ASSETS, LIABILITIES AND FINANCIAL POSITION
OF THE BORROWER AND ITS SUBSIDIARIES AS AT SUCH DATES, AND THE RESULTS OF THE
OPERATIONS AND CHANGES OF FINANCIAL POSITION FOR THE PERIODS THEN ENDED (OTHER
THAN (A) CUSTOMARY YEAR-END ADJUSTMENTS FOR UNAUDITED FINANCIAL STATEMENTS AND
(B) THE POTENTIAL NON-CASH RESTATEMENT OF RETAINED EARNINGS (TO THE EXTENT SUCH
RESTATEMENT IMPACTS RETAINED EARNINGS AS SHOWN ON THE BALANCE SHEETS DELIVERED
PURSUANT TO SECTION 5.2(E)(I)(A) AND SECTION 5.2(E)(I)(B)) AS SPECIFICALLY
DISCLOSED IN WRITING TO THE ADMINISTRATIVE AGENT AND THE LENDERS PRIOR TO THE
DATE HEREOF).
ALL SUCH FINANCIAL STATEMENTS, INCLUDING THE RELATED SCHEDULES
AND NOTES THERETO, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP.
SUCH FINANCIAL
STATEMENTS SHOW ALL MATERIAL INDEBTEDNESS AND OTHER MATERIAL LIABILITIES, DIRECT
OR CONTINGENT, OF THE BORROWER AND ITS SUBSIDIARIES AS OF THE DATE THEREOF,
INCLUDING MATERIAL LIABILITIES FOR TAXES, MATERIAL COMMITMENTS, AND
INDEBTEDNESS, IN EACH CASE, TO THE EXTENT REQUIRED TO BE DISCLOSED UNDER GAAP.
THE PRO FORMA FINANCIAL STATEMENTS AND FORECASTS DELIVERED PURSUANT TO SECTION
5.2(E)(II) WERE PREPARED IN GOOD FAITH ON THE BASIS OF THE ASSUMPTIONS STATED
THEREIN, WHICH ASSUMPTIONS ARE REASONABLE IN LIGHT OF THEN EXISTING CONDITIONS
EXCEPT THAT SUCH FINANCIAL STATEMENTS AND FORECASTS SHALL BE SUBJECT TO NORMAL
YEAR END CLOSING AND AUDIT ADJUSTMENTS.
(L)
NO MATERIAL ADVERSE CHANGE.
SINCE SEPTEMBER 30, 2005, THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE IN THE BUSINESS, ASSETS, LIABILITIES (CONTINGENT
OR OTHERWISE), OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE) OF THE BORROWER
AND ITS SUBSIDIARIES, TAKEN AS A WHOLE, AND NO
53
EVENT HAS OCCURRED OR CONDITION ARISEN THAT COULD REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT.
(M)
SOLVENCY.
AS OF THE CLOSING DATE AND AFTER GIVING EFFECT TO EACH
EXTENSION OF CREDIT MADE HEREUNDER, THE BORROWER AND EACH OF ITS SUBSIDIARIES,
TAKEN AS A WHOLE, WILL BE SOLVENT.
(N)
TITLES TO ASSETS.
EACH OF THE BORROWER AND EACH OF ITS
SUBSIDIARIES HAS (I) SUCH TITLE TO THE REAL PROPERTY OWNED OR LEASED BY IT AS IS
NECESSARY OR DESIRABLE TO THE CONDUCT OF ITS BUSINESS AND (II) VALID AND LEGAL
TITLE TO ALL OF ITS PERSONAL PROPERTY AND ASSETS, INCLUDING, BUT NOT LIMITED TO,
(A) ALL MATERIAL FRANCHISES, LICENSES, COPYRIGHTS, COPYRIGHT APPLICATIONS,
PATENTS, PATENT RIGHTS OR LICENSES, PATENT APPLICATIONS, TRADEMARKS, TRADEMARK
RIGHTS, SERVICE MARKS, SERVICE MARK RIGHTS, TRADE NAMES, TRADE NAME RIGHTS AND
OTHER RIGHTS WITH RESPECT TO THE FOREGOING WHICH ARE REASONABLY NECESSARY TO
CONDUCT ITS BUSINESS AND (B) THOSE REFLECTED ON THE BALANCE SHEETS OF THE
BORROWER AND ITS SUBSIDIARIES DELIVERED PURSUANT TO SECTION 5.2(E), EXCEPT THOSE
PROPERTIES AND/OR ASSETS REFLECTED ON SUCH BALANCE SHEET WHICH HAVE BEEN
DISPOSED OF BY THE BORROWER OR ITS SUBSIDIARIES SUBSEQUENT TO SUCH DATE WHICH
DISPOSITIONS HAVE BEEN IN THE