ITS SUBSIDIARIES, IS REQUIRED TO BE OBTAINED BY THE
BORROWER OR ANY OF ITS SUBSIDIARIES IN CONNECTION WITH THE EXECUTION AND
DELIVERY OF THE LOAN DOCUMENTS, THE BORROWINGS UNDER THIS AGREEMENT, THE PAYMENT
AND PERFORMANCE BY THE BORROWER OF THE OBLIGATIONS OR THE LEGALITY, VALIDITY,
BINDING EFFECT OR ENFORCEABILITY OF ANY OF THE LOAN DOCUMENTS.
5.4
FINANCIAL STATEMENTS.
THE DECEMBER 31, 2006 CONSOLIDATED
FINANCIAL STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES HERETOFORE DELIVERED
TO THE LENDERS WERE PREPARED IN ACCORDANCE WITH THE AGREEMENT ACCOUNTING
PRINCIPLES IN EFFECT ON THE DATE SUCH STATEMENTS WERE PREPARED AND FAIRLY
PRESENT THE CONSOLIDATED FINANCIAL CONDITION AND OPERATIONS OF THE BORROWER AND
ITS SUBSIDIARIES AT SUCH DATE AND THE CONSOLIDATED RESULTS OF THEIR OPERATIONS
FOR THE PERIOD THEN ENDED.
5.5
MATERIAL ADVERSE CHANGE.
SINCE DECEMBER 31, 2006, THERE HAS
BEEN NO CHANGE IN THE BUSINESS, PROPERTY, CONDITION (FINANCIAL OR OTHERWISE) OR
RESULTS OF OPERATIONS OF THE BORROWER AND ITS SUBSIDIARIES WHICH COULD
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
5.6
TAXES.
THE BORROWER AND ITS SUBSIDIARIES HAVE FILED ALL
MATERIAL UNITED STATES FEDERAL TAX RETURNS AND ALL OTHER TAX RETURNS WHICH ARE
REQUIRED TO BE FILED AND HAVE PAID ALL TAXES DUE PURSUANT TO SAID RETURNS OR
PURSUANT TO ANY ASSESSMENT RECEIVED BY THE BORROWER OR ANY OF ITS SUBSIDIARIES,
EXCEPT SUCH TAXES, IF ANY, AS ARE BEING CONTESTED IN GOOD FAITH AND AS TO WHICH
ADEQUATE RESERVES HAVE BEEN PROVIDED IN ACCORDANCE WITH AGREEMENT ACCOUNTING
PRINCIPLES.
NO TAX LIENS HAVE BEEN FILED AND NO CLAIMS ARE BEING ASSERTED WITH
RESPECT TO ANY SUCH TAXES CLAIMED TO BE DUE AND PAYABLE THAT WOULD, IF ADVERSELY
DETERMINED, HAVE A MATERIAL ADVERSE EFFECT.
THE CHARGES, ACCRUALS AND RESERVES
FOR TAXES ON THE BOOKS OF THE BORROWER AND ITS SUBSIDIARIES (TO THE EXTENT IN
EXCESS OF $5,000,000) ARE ADEQUATE UNDER AGREEMENT ACCOUNTING PRINCIPLES.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, THE ONLY
REPRESENTATIONS AND WARRANTIES MADE BY THE BORROWER WITH RESPECT TO MATTERS
RELATING TO TAXES SHALL BE THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS
SECTION 5.6, AND THIS AGREEMENT SHALL NOT BE INTERPRETED IN ANY MANNER THAT IS
CONTRARY HERETO.
5.7
LITIGATION AND CONTINGENT OBLIGATIONS.
EXCEPT AS SET FORTH IN
THE MOST RECENT CONSOLIDATED FINANCIAL STATEMENTS PROVIDED TO THE ADMINISTRATIVE
AGENT PURSUANT TO SECTION 5.4 OR SECTION 6.1, RESPECTIVELY, THERE IS NO
LITIGATION, ARBITRATION, GOVERNMENTAL INVESTIGATION, PROCEEDING OR INQUIRY
PENDING OR, TO THE KNOWLEDGE OF ANY OF THEIR OFFICERS, THREATENED AGAINST OR
AFFECTING THE BORROWER OR ANY OF ITS SUBSIDIARIES WHICH COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT OR WHICH SEEKS TO PREVENT, ENJOIN OR
DELAY THE MAKING OF ANY CREDIT
38
Extensions.
Other than any liability incident to any litigation, arbitration or
proceeding, which, if decided adversely, would not reasonably be expected to
have a Material Adverse Effect, the Borrower has no material contingent
liabilities or obligations not provided for or disclosed in the most recent
consolidated financial statements provided to the Administrative Agent pursuant
to Section