ITS
PROPERTY, EXCEPT FOR THE BENEFIT OF THE AGENT AND THE BANKS.
SECTION 4.4
ENFORCEABLE OBLIGATIONS.
EACH LOAN DOCUMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY EACH COMPANY WHICH IS A PARTY THERETO AND CONSTITUTES
THE LEGAL, VALID AND BINDING OBLIGATIONS OF EACH COMPANY, ENFORCEABLE AGAINST
EACH COMPANY IN ACCORDANCE WITH ITS RESPECTIVE TERMS.
SECTION 4.5
TITLE TO PROPERTIES.
EACH COMPANY HAS GOOD AND INDEFEASIBLE
TITLE TO, OR VALID LEASEHOLD INTERESTS IN, AS APPLICABLE, ALL OF ITS PROPERTY,
FREE AND CLEAR OF ALL LIENS (EXCEPT PERMITTED LIENS), NEGATIVE PLEDGES AND ANY
OTHER ADVERSE CLAIMS OF ANY NATURE, EXCEPT ANY OF THE FOREGOING WHICH ARE FOR
THE BENEFIT OF THE AGENT AND THE BANKS.
EXCEPT AS SET FORTH IN SCHEDULE 4.5
THERE ARE NO FINANCING STATEMENTS, LIEN INSTRUMENTS, ABSTRACTS OF JUDGMENT,
LEVIES, EXECUTIONS OR OTHER FILINGS OF RECORD IN ANY JURISDICTION NAMING ANY
COMPANY AS "DEBTOR", "MORTGAGOR", "OBLIGOR" OR THE LIKE, OR COVERING ANY
PROPERTY OF ANY COMPANY, EXCEPT THOSE EVIDENCING PERMITTED LIENS.
SECTION 4.6
FINANCIAL CONDITION.
(A)
FINANCIAL STATEMENTS.
EACH BORROWER HAS DELIVERED TO THE AGENT
COPIES OF THE (I) AUDITED CONSOLIDATED BALANCE SHEET OF THE COMPANIES AS OF EACH
OF DECEMBER 31, 1999, 2000, 2001 AND 2002, AND THE RELATED AUDITED CONSOLIDATED
STATEMENTS OF INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS FOR THE YEARS ENDED ON
SUCH DATES; (II) COPIES OF THE UNAUDITED CONSOLIDATED BALANCE SHEET OF THE
COMPANIES AS OF 2003, AND THE RELATED UNAUDITED CONSOLIDATED STATEMENTS OF
INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS FOR 2003; AND (III) COPIES OF THE
UNAUDITED CONSOLIDATED BALANCE SHEET OF THE COMPANIES AS OF MARCH 31, 2004 AND
THE RELATED UNAUDITED CONSOLIDATED STATEMENTS OF INCOME AND CASH FLOWS FOR THE
QUARTER ENDED ON SUCH DATE.
SUCH FINANCIAL STATEMENTS (TOGETHER WITH RELATED
SCHEDULES AND NOTES, THE "FINANCIAL STATEMENTS") ARE TRUE, COMPLETE AND
ACCURATE, FAIRLY PRESENT THE FINANCIAL CONDITION OF THE COMPANIES AS OF THE
RESPECTIVE DATES THEREOF AND HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP APPLIED
THROUGHOUT THE PERIODS COVERED THEREBY ON A BASIS CONSISTENT WITH THAT OF PRIOR
PERIODS, SUBJECT TO NORMAL YEAR-END AUDIT ADJUSTMENTS. WITHOUT LIMITING THE
REPRESENTATION SET FORTH IN THIS SECTION, THE BORROWERS AND THE PARENT COMPANY
WISH TO ADVISE THE AGENT AND THE BANKS THAT ON FEBRUARY 4, 2004, THE COMPANY'S
FORMER INDEPENDENT AUDITOR, KPMG PEAT MARWICK, LLP NOTIFIED THE PARENT COMPANY
THAT THEIR AUDITORS' REPORT DATED FEBRUARY 26, 2003 FOR THE CONSOLIDATED
FINANCIAL
15
STATEMENTS OF PARENT COMPANY DATED AS OF DECEMBER 31, 2002 AND 2001 AND FOR THE
THREE YEARS ENDED DECEMBER 31, 2002, 2001 AND 2000 SHOULD NO LONGER BE RELIED
UPON.
AS OF THE DATE HEREOF, NO COMPANY HAS ANY (I) OBLIGATIONS, LIABILITIES OR
OTHER INDEBTEDNESS (INCLUDING GUARANTEES); OR (II) INVESTMENTS IN ANY PERSON
WHICH ARE (SEPARATELY OR IN THE AGGREGATE) NOT REFLECTED IN SUCH FINANCIAL
STATEMENTS; AND THERE HAS BEEN NO MATERIAL ADVERSE EFFECT SINCE THE DATE OF THE
FINANCIAL STATEMENTS, EXCEPT EVENTS AND CIRCUMSTANCES SPECIFICALLY LISTED AND
SPECIFICALLY DESCRIBED ON ANNEX D-1 AND/OR ANNEX D-2 TO THE EXTENT THEY ARE
CURRENTLY IN