FOR THE FISCAL QUARTER ENDED ON THAT DATE (I) WERE PREPARED IN ACCORDANCE
WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIOD COVERED THEREBY, EXCEPT AS
OTHERWISE EXPRESSLY NOTED THEREIN, AND (II) FAIRLY PRESENT IN ALL MATERIAL
RESPECTS THE FINANCIAL CONDITION OF THE PARENT AND ITS SUBSIDIARIES AS OF THE
DATE THEREOF AND THEIR RESULTS OF OPERATIONS FOR THE PERIOD COVERED THEREBY,
SUBJECT, IN THE CASE OF CLAUSES (I) AND (II), TO THE ABSENCE OF FOOTNOTES AND TO
NORMAL YEAR-END AUDIT ADJUSTMENTS.
93
(C)
SINCE THE DATE OF THE AUDITED FINANCIAL
STATEMENTS, THERE HAS BEEN NO EVENT OR CIRCUMSTANCE, EITHER INDIVIDUALLY OR IN
THE AGGREGATE, THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
(D)
THE CONSOLIDATED FORECASTED BALANCE SHEET
AND STATEMENTS OF INCOME AND CASH FLOWS OF THE PARENT AND ITS SUBSIDIARIES
DELIVERED PURSUANT TO SECTIONS 4.01 OR 6.01 WERE PREPARED IN GOOD FAITH ON THE
BASIS OF THE ASSUMPTIONS STATED THEREIN, WHICH ASSUMPTIONS WERE BELIEVED TO BE
FAIR IN LIGHT OF THE CONDITIONS EXISTING AT THE TIME OF DELIVERY OF SUCH
FORECASTS (IT BEING UNDERSTOOD THAT ACTUAL RESULTS MAY VARY FROM SUCH FORECASTS
AND THAT SUCH VARIATIONS MAY BE SIGNIFICANT).
5.06
Litigation.
There are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Loan
Parties, threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, by or against any Loan Party or any of its
Subsidiaries or against any of its properties or revenues that (a) affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06,
either individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.07
No Default.
No Loan Party or any Subsidiary is
in default under or with respect to, or party to, any (a) Material Contract or
(b) any Material Indebtedness which, in the case of this clause (b), could
reasonably be expected to have a Material Adverse Effect.
No Default or Event
of Default has occurred and is continuing or would result from the consummation
of the transactions contemplated by this Agreement or any other Loan Document.
5.08
Ownership of Property; Liens.
(A)
EACH OF THE LOAN PARTIES AND EACH
SUBSIDIARY THEREOF HAS GOOD RECORD AND MARKETABLE TITLE IN FEE SIMPLE TO ALL
REAL ESTATE THAT IS SUBJECT TO A MORTGAGE, AND HAS VALID LEASEHOLD INTERESTS IN
ALL REAL PROPERTY NECESSARY IN THE ORDINARY CONDUCT OF ITS BUSINESS, IN EACH
CASE FREE AND CLEAR OF ALL LIENS, OTHER THAN PERMITTED ENCUMBRANCES, EXCEPT FOR
SUCH DEFECTS IN TITLE AND LEASEHOLD INTERESTS AS COULD NOT, INDIVIDUALLY OR IN
THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
EACH
OF THE LOAN PARTIES AND EACH SUBSIDIARY HAS GOOD AND INDEFEASIBLE TITLE TO,
VALID LEASEHOLD INTERESTS IN, OR VALID LICENSES TO USE, ALL PERSONAL PROPERTY
AND ASSETS MATERIAL TO THE ORDINARY CONDUCT OF ITS BUSINESS, FREE AND CLEAR OF