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 COLLATERAL, THE
PROPERTY OR
37
THE BUSINESS, 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 MORTGAGE
BORROWER AND, TO BORROWER'S KNOWLEDGE, THE COLLATERAL AND THE PROPERTY (I) ARE
TRUE, COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS, (II) ACCURATELY REPRESENT
THE FINANCIAL CONDITION OF BORROWER, MORTGAGE BORROWER, THE COLLATERAL AND THE
PROPERTY, AS APPLICABLE, 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, MORTGAGE BORROWER, THE
COLLATERAL OR THE PROPERTY FROM THAT SET FORTH IN SAID FINANCIAL STATEMENTS.
4.9
TAX FILINGS.
TO THE EXTENT REQUIRED, BORROWER HAS FILED AND HAS
CAUSED MORTGAGE BORROWER TO FILE (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 OR MORTGAGE BORROWER, AS
APPLICABLE.
BORROWER BELIEVES THAT BORROWER AND MORTGAGE BORROWER'S TAX RETURNS
(IF ANY) PROPERLY REFLECT THE INCOME AND TAXES OF BORROWER AND MORTGAGE
BORROWER, AS APPLICABLE, 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
NO PLAN ASSETS.
AS OF THE DATE HEREOF AND THROUGHOUT THE TERM (I)
NO LOAN PARTY IS OR WILL 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
ANY LOAN PARTY 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) NO LOAN PARTY IS
OR WILL BE A "GOVERNMENTAL PLAN" WITHIN THE MEANING OF SECTION 3(32) OF ERISA,
AND (IV) TRANSACTIONS BY OR WITH ANY LOAN PARTY 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
MORTGAGE 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 SECTION 3(35) OF
ERISA) OR A "MULTIEMPLOYER PENSION