TO HAVE OBTAINED, MADE OR COMPLIED WITH SUCH CONSENT
WOULD NOT HAVE A MATERIAL ADVERSE EFFECT, ALL OF WHICH WILL HAVE BEEN DULY
OBTAINED, MADE OR COMPILED PRIOR TO THE CLOSING DATE AND WHICH ARE IN FULL FORCE
AND EFFECT AND (D) WILL NOT CONFLICT WITH, NOR RESULT IN ANY BREACH IN ANY OF
THE PROVISIONS OF OR CONSTITUTE A DEFAULT UNDER OR RESULT IN THE CREATION OF ANY
LIEN EXCEPT PERMITTED ENCUMBRANCES UPON ANY ASSET OF SUCH BORROWER UNDER THE
PROVISIONS OF ANY AGREEMENT, CHARTER DOCUMENT, INSTRUMENT, BY-LAW OR OTHER
INSTRUMENT TO WHICH SUCH BORROWER IS A PARTY OR BY WHICH IT OR ITS PROPERTY IS A
PARTY OR BY WHICH IT MAY BE BOUND.
5.2.
FORMATION AND QUALIFICATION.
(A)
EACH BORROWER IS DULY INCORPORATED AND IN GOOD STANDING UNDER THE
LAWS OF THE STATE LISTED ON SCHEDULE 5.2(A) AND IS QUALIFIED TO DO BUSINESS AND
IS IN GOOD STANDING IN THE STATES LISTED ON SCHEDULE 5.2(A) WHICH CONSTITUTE ALL
STATES IN WHICH QUALIFICATION AND GOOD STANDING ARE NECESSARY FOR SUCH BORROWER
TO CONDUCT ITS BUSINESS AND OWN ITS PROPERTY AND WHERE THE FAILURE TO SO QUALIFY
COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON SUCH
BORROWER.
EACH BORROWER HAS DELIVERED TO AGENT TRUE AND COMPLETE COPIES OF ITS
CERTIFICATE OF INCORPORATION AND BY-LAWS AND WILL PROMPTLY NOTIFY AGENT OF ANY
AMENDMENT OR CHANGES THERETO.
(B)
THE ONLY SUBSIDIARIES OF EACH BORROWER ARE LISTED ON SCHEDULE
5.2(B).
5.3.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS
AND WARRANTIES OF SUCH BORROWER CONTAINED IN THIS AGREEMENT AND THE OTHER
DOCUMENTS TO WHICH IT IS A PARTY SHALL BE TRUE AT THE TIME OF SUCH BORROWER'S
EXECUTION OF THIS AGREEMENT AND THE OTHER DOCUMENTS TO WHICH IT IS A PARTY, AND
SHALL SURVIVE THE EXECUTION, DELIVERY AND ACCEPTANCE THEREOF BY THE PARTIES
THERETO AND THE CLOSING OF THE TRANSACTIONS DESCRIBED THEREIN OR RELATED
THERETO.
5.4.
TAX RETURNS.
EACH BORROWER'S FEDERAL TAX IDENTIFICATION NUMBER IS
SET FORTH ON SCHEDULE 5.4.
EACH BORROWER HAS FILED ALL FEDERAL, STATE AND LOCAL
TAX RETURNS AND OTHER REPORTS EACH IS REQUIRED BY LAW TO FILE AND HAS PAID ALL
TAXES, ASSESSMENTS, FEES AND OTHER GOVERNMENTAL CHARGES THAT ARE DUE AND
PAYABLE.
EXCEPT AS SET FORTH ON SCHEDULE 5.4, FEDERAL, STATE AND LOCAL INCOME
TAX RETURNS OF EACH BORROWER HAVE BEEN EXAMINED AND REPORTED UPON BY THE
APPROPRIATE TAXING AUTHORITY OR CLOSED BY APPLICABLE STATUTE AND SATISFIED FOR
ALL FISCAL YEARS PRIOR TO AND INCLUDING THE FISCAL YEAR ENDING DECEMBER 31,
2008.
THE PROVISION FOR TAXES ON THE BOOKS OF EACH BORROWER IS ADEQUATE FOR ALL
YEARS NOT CLOSED BY APPLICABLE STATUTES, AND FOR ITS CURRENT FISCAL YEAR, AND NO
BORROWER HAS ANY KNOWLEDGE OF ANY DEFICIENCY OR ADDITIONAL ASSESSMENT IN
CONNECTION THEREWITH NOT PROVIDED FOR ON ITS BOOKS.
55
5.5.
FINANCIAL STATEMENTS.
(A)
THE PRO FORMA BALANCE SHEET OF BORROWERS ON A CONSOLIDATED BASIS
(THE "PRO FORMA BALANCE SHEET") FURNISHED TO AGENT ON THE CLOSING DATE REFLECTS
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED