HAS BEEN A PARTY TO, OR THE SUBJECT OF A
BANKRUPTCY PROCEEDING FOR THE PAST TEN (10) YEARS.
4.8
FULL AND ACCURATE DISCLOSURE. NO STATEMENT OF FACT MADE BY BORROWER
IN ANY OF THE LOAN DOCUMENTS CONTAINS ANY UNTRUE STATEMENT OF A MATERIAL FACT OR
OMITS TO STATE ANY MATERIAL FACT NECESSARY TO MAKE STATEMENTS CONTAINED THEREIN
NOT MISLEADING. THERE IS NO MATERIAL FACT PRESENTLY KNOWN TO BORROWER THAT HAS
NOT BEEN DISCLOSED TO LENDER WHICH ADVERSELY AFFECTS, OR, AS FAR AS BORROWER CAN
FORESEE, MIGHT ADVERSELY AFFECT, THE PROPERTY OR THE BUSINESS,
29
OPERATIONS OR CONDITION (FINANCIAL OR OTHERWISE) OF BORROWER. ALL FINANCIAL
DATA, INCLUDING THE STATEMENTS OF CASH FLOW AND INCOME AND OPERATING EXPENSE,
THAT HAVE BEEN +DELIVERED TO LENDER IN RESPECT OF BORROWER AND, TO BORROWER'S
KNOWLEDGE, THE PROPERTY (I) ARE TRUE, COMPLETE AND CORRECT IN ALL MATERIAL
RESPECTS, (II) ACCURATELY REPRESENT THE FINANCIAL CONDITION OF
BORROWER AND THE
PROPERTY AS OF THE DATE OF SUCH REPORTS, AND (III) TO THE EXTENT PREPARED BY AN
INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM, HAVE BEEN PREPARED IN ACCORDANCE
WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIODS COVERED, EXCEPT AS
DISCLOSED THEREIN. BORROWER DOES NOT HAVE ANY CONTINGENT LIABILITIES,
LIABILITIES FOR TAXES, UNUSUAL FORWARD OR LONG-TERM COMMITMENTS, UNREALIZED OR
ANTICIPATED LOSSES FROM ANY UNFAVORABLE COMMITMENTS OR ANY LIABILITIES OR
OBLIGATIONS NOT EXPRESSLY PERMITTED BY THIS AGREEMENT. SINCE THE DATE OF SUCH
FINANCIAL STATEMENTS, THERE HAS BEEN NO MATERIALLY ADVERSE CHANGE IN THE
FINANCIAL CONDITION, OPERATIONS OR BUSINESS OF BORROWER OR THE PROPERTY FROM
THAT SET FORTH IN SAID FINANCIAL STATEMENTS.
4.9
TAX FILINGS. TO THE EXTENT REQUIRED, BORROWER HAS FILED (OR HAS
OBTAINED EFFECTIVE EXTENSIONS FOR FILING) ALL FEDERAL, STATE AND LOCAL TAX
RETURNS REQUIRED TO BE FILED AND HAVE PAID OR MADE ADEQUATE PROVISION FOR THE
PAYMENT OF ALL FEDERAL, STATE AND LOCAL TAXES, CHARGES AND ASSESSMENTS PAYABLE
BY BORROWER. BORROWER BELIEVES THAT ITS TAX RETURNS (IF ANY) PROPERLY REFLECT
THE INCOME AND TAXES OF BORROWER FOR THE PERIODS COVERED THEREBY, SUBJECT ONLY
TO REASONABLE ADJUSTMENTS REQUIRED BY THE INTERNAL REVENUE SERVICE OR OTHER
APPLICABLE TAX AUTHORITY UPON AUDIT.
4.10
ERISA; NO PLAN ASSETS. AS OF THE DATE HEREOF AND THROUGHOUT THE TERM
(I) BORROWER IS NOT AND WILL NOT BE AN "EMPLOYEE BENEFIT PLAN," AS DEFINED IN
SECTION 3(3) OF ERISA, SUBJECT TO TITLE I OF ERISA, (II) NONE OF THE ASSETS OF
BORROWER CONSTITUTES OR WILL CONSTITUTE "PLAN ASSETS" OF ONE OR MORE SUCH PLANS
WITHIN THE MEANING OF 29 C.F.R. SECTION 2510.3-101, (III) BORROWER IS NOT AND
WILL NOT BE A "GOVERNMENTAL PLAN" WITHIN THE MEANING OF SECTION 3(32) OF ERISA,
AND (IV) TRANSACTIONS BY OR WITH BORROWER ARE NOT AND WILL NOT BE SUBJECT TO
STATE STATUTES REGULATING INVESTMENT OF, AND FIDUCIARY OBLIGATIONS WITH RESPECT
TO, GOVERNMENTAL PLANS. AS OF THE DATE HEREOF, NEITHER BORROWER, NOR ANY MEMBER
OF A "CONTROLLED GROUP OF CORPORATIONS" (WITHIN THE MEANING OF SECTION 414 OF
THE CODE) MAINTAINS, SPONSORS OR CONTRIBUTES TO A "DEFINED BENEFIT PLAN" (WITHIN
THE MEANING OF