STATE ANY MATERIAL FACT NECESSARY TO MAKE SUCH INFORMATION AND
DATA (TAKEN AS A WHOLE) NOT MATERIALLY 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
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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 PREPARED IN
GOOD FAITH BASED UPON 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 Historical Financial
Statements, in each case present or will, when provided, present fairly in all
material respects the financial position and results of operations of the
Borrower and its Subsidiaries at the respective dates of such information and
for the respective periods covered thereby subject, in the case of the unaudited
financial information, to changes resulting from audit, normal year end audit
adjustments and the absence of footnotes.
The Historical Financial Statements
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes thereto.
There has been no Material Adverse Change
since December 31, 2004, other than solely as a result of changes in general
economic conditions.
8.10
Tax Returns and Payments, etc Holdings and its Subsidiaries have
filed all Federal income tax returns and all other material tax returns,
domestic and foreign, required to be filed by them and have paid all material
taxes and assessments payable by them that have become due, other than those not
yet delinquent or contested in good faith.
Holdings and its 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 and foreign income taxes applicable for all prior fiscal
years and for the current fiscal year to the Effective Date.
8.11
COMPLIANCE WITH ERISA EACH PLAN IS IN COMPLIANCE WITH ERISA, THE
CODE AND ANY APPLICABLE 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 TO
ANY OF THE BORROWER, ANY SUBSIDIARY THEREOF OR ANY ERISA AFFILIATE; NO PLAN
(OTHER THAN A MULTIEMPLOYER PLAN) HAS AN ACCUMULATED OR WAIVED FUNDING
DEFICIENCY (OR IS REASONABLY LIKELY TO HAVE SUCH A DEFICIENCY); NONE OF
HOLDINGS, ANY SUBSIDIARY THEREOF OR ANY ERISA AFFILIATE HAS INCURRED (OR IS
REASONABLY LIKELY EXPECTED TO INCUR) ANY LIABILITY TO OR ON ACCOUNT OF A PLAN
PURSUANT TO