BY A BORROWER OR GUARANTOR AND SETS FORTH THE OWNERS AND/OR
OPERATORS THEREOF.
8.3
FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE.
ALL FINANCIAL STATEMENTS
RELATING TO ANY BORROWER OR GUARANTOR WHICH HAVE BEEN OR MAY HEREAFTER BE
DELIVERED BY ANY BORROWER OR GUARANTOR TO AGENT AND LENDERS HAVE BEEN PREPARED
IN ACCORDANCE WITH GAAP (EXCEPT AS TO ANY INTERIM FINANCIAL STATEMENTS, TO THE
EXTENT SUCH STATEMENTS ARE SUBJECT TO NORMAL YEAR-END ADJUSTMENTS AND DO NOT
INCLUDE ANY NOTES) AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL
CONDITION AND THE RESULTS OF OPERATION OF SUCH BORROWER AND GUARANTOR AS AT THE
DATES AND FOR THE PERIODS SET FORTH THEREIN.
EXCEPT AS DISCLOSED IN ANY INTERIM
FINANCIAL STATEMENTS FURNISHED BY BORROWERS AND GUARANTORS TO AGENT PRIOR TO THE
DATE OF THIS AGREEMENT, THERE HAS BEEN NO ACT, CONDITION OR EVENT WHICH HAS HAD
OR IS REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT SINCE THE DATE OF THE
MOST RECENT AUDITED FINANCIAL STATEMENTS OF ANY BORROWER OR GUARANTOR FURNISHED
BY ANY BORROWER OR GUARANTOR TO AGENT PRIOR TO THE DATE OF THIS AGREEMENT.
THE
PROJECTIONS DATED JUNE 2, 2005 FOR THE FISCAL YEARS ENDING 2005 THROUGH 2009
THAT HAVE BEEN DELIVERED TO AGENT OR ANY PROJECTIONS HEREAFTER DELIVERED TO
AGENT HAVE BEEN PREPARED IN LIGHT OF THE PAST OPERATIONS OF THE BUSINESSES OF
BORROWERS AND GUARANTORS AND ARE BASED UPON ESTIMATES AND ASSUMPTIONS STATED
THEREIN, ALL OF WHICH BORROWERS AND GUARANTORS HAVE DETERMINED TO BE REASONABLE
AND FAIR IN LIGHT OF THE THEN CURRENT CONDITIONS AND CURRENT FACTS AND REFLECT
THE GOOD FAITH AND REASONABLE ESTIMATES OF BORROWERS AND GUARANTORS OF THE
FUTURE FINANCIAL PERFORMANCE OF PARENT AND ITS SUBSIDIARIES AND OF THE OTHER
INFORMATION PROJECTED THEREIN FOR THE PERIODS SET FORTH THEREIN.
8.4
PRIORITY OF LIENS; TITLE TO PROPERTIES.
THE SECURITY INTERESTS AND LIENS
GRANTED TO AGENT UNDER THIS AGREEMENT AND THE OTHER FINANCING AGREEMENTS
CONSTITUTE VALID AND PERFECTED FIRST PRIORITY LIENS AND SECURITY INTERESTS IN
AND UPON THE COLLATERAL SUBJECT ONLY TO THE LIENS INDICATED ON SCHEDULE 8.4 TO
THE INFORMATION CERTIFICATE AND THE OTHER LIENS PERMITTED UNDER SECTION 9.8
HEREOF.
EACH BORROWER AND GUARANTOR HAS GOOD AND MARKETABLE FEE SIMPLE TITLE TO
OR VALID LEASEHOLD INTERESTS IN ALL OF ITS REAL PROPERTY AND GOOD, VALID AND
MERCHANTABLE TITLE TO ALL OF ITS OTHER PROPERTIES AND ASSETS SUBJECT TO NO
LIENS, MORTGAGES, PLEDGES, SECURITY INTERESTS, ENCUMBRANCES OR CHARGES OF ANY
KIND, EXCEPT THOSE GRANTED TO AGENT AND SUCH OTHERS AS ARE SPECIFICALLY LISTED
ON SCHEDULE 8.4 TO THE INFORMATION CERTIFICATE OR PERMITTED UNDER SECTION 9.8
HEREOF.
8.5
TAX RETURNS.
EACH BORROWER AND GUARANTOR HAS FILED, OR CAUSED TO BE FILED,
IN A TIMELY MANNER ALL TAX RETURNS, REPORTS AND DECLARATIONS WHICH ARE REQUIRED
TO BE FILED BY IT.
ALL INFORMATION IN SUCH TAX RETURNS, REPORTS AND
DECLARATIONS IS COMPLETE AND ACCURATE IN ALL MATERIAL RESPECTS.
EACH BORROWER
AND GUARANTOR HAS PAID OR CAUSED TO BE PAID ALL TAXES DUE AND PAYABLE OR CLAIMED
DUE AND PAYABLE IN ANY ASSESSMENT RECEIVED