SEPARATE
ALL OR ANY MATERIAL PORTION OF THE BUSINESS OR ASSETS OF THE TARGET AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE, OR OF THE PARENT AND ITS SUBSIDIARIES, TAKEN AS
A WHOLE OR (D) THAT OTHERWISE WOULD REASONABLY BE EXPECTED TO HAVE A "MATERIAL
ADVERSE EFFECT" (AS DEFINED IN THE MERGER AGREEMENT) ON THE PARENT OR THE
TARGET.
(F)
THERE SHALL NOT HAVE BEEN ANY ACTION TAKEN, OR ANY APPLICABLE LAW
(AS DEFINED IN THE MERGER AGREEMENT) PROPOSED, ENACTED, ENFORCED, PROMULGATED,
ISSUED OR DEEMED APPLICABLE TO THE MERGER, BY ANY GOVERNMENTAL AUTHORITY, OTHER
THAN THE APPLICATION OF THE WAITING PERIOD PROVISIONS OF THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976 TO THE MERGER, THAT
32
WOULD REASONABLY BE EXPECTED, DIRECTLY OR INDIRECTLY, TO RESULT IN ANY OF THE
CONSEQUENCES REFERRED TO IN CLAUSES (A) THROUGH (D) OF SECTION 4.01(E) ABOVE.
(G)
THE ABSENCE OF ANY ACTION, SUIT, INVESTIGATION OR PROCEEDING
PENDING OR, TO THE KNOWLEDGE OF THE PARENT, THREATENED IN ANY COURT OR BEFORE
ANY ARBITRATOR OR GOVERNMENTAL AUTHORITY THAT HAS HAD OR COULD REASONABLY BE
EXPECTED TO MATERIALLY AND ADVERSELY AFFECT THE RIGHTS AND REMEDIES OF THE
ADMINISTRATIVE AGENT OR THE LENDERS UNDER THE LOAN DOCUMENTS.
(H)
THE ADMINISTRATIVE AGENT AND THE LENDERS SHALL HAVE RECEIVED:
(I)
AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE TARGET FOR THE THREE FISCAL
YEARS ENDED ON OR PRIOR TO DECEMBER 31, 2005, UNAUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE TARGET FOR ANY INTERIM QUARTERLY PERIODS THAT HAVE ENDED SINCE
THE MOST RECENT OF SUCH AUDITED FINANCIAL STATEMENTS BUT MORE THAN 45 DAYS PRIOR
TO THE CLOSING DATE, AND PRO FORMA FINANCIAL STATEMENTS AS TO THE PARENT AND ITS
SUBSIDIARIES GIVING EFFECT TO THE MERGER (TO BE BASED ON THE NINE-MONTH PERIOD
ENDED SEPTEMBER 30, 2006), TOGETHER WITH PRO FORMA CALCULATIONS OF THE
CONSOLIDATED INTEREST COVERAGE RATIO AND CONSOLIDATED INDEBTEDNESS TO
CAPITALIZATION RATIO SHOWING PRO FORMA COMPLIANCE WITH SECTION 7.11 FOR SUCH
PERIOD, AND (II) FORECASTS PREPARED BY MANAGEMENT OF THE PARENT OF BALANCE
SHEETS, INCOME STATEMENTS AND CASH FLOW STATEMENTS FOR EACH FISCAL YEAR
FOLLOWING THE CLOSING DATE FOR THE TERM OF THE SENIOR CREDIT FACILITIES.
(I)
THE MERGER AGREEMENT SHALL BE IN FULL FORCE AND EFFECT AND THE
MERGER SHALL HAVE BEEN CONSUMMATED (OR SHALL BE CONSUMMATED SUBSTANTIALLY
CONCURRENTLY WITH THE INITIAL FUNDING UNDER THE FACILITY) ON SUBSTANTIALLY THE
TERMS SET FORTH IN THE MERGER AGREEMENT, WITHOUT ANY AMENDMENT, WAIVER OR
MODIFICATION OF ANY MATERIAL TERM OR CONDITION THAT IS MATERIALLY ADVERSE TO THE
INTERESTS OF THE LENDERS AND THAT IS NOT CONSENTED TO BY THE ADMINISTRATIVE
AGENT.
(J)
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER AND EACH OTHER
LOAN PARTY CONTAINED IN ARTICLE V OR ANY OTHER LOAN DOCUMENT, OR WHICH ARE
CONTAINED IN ANY DOCUMENT FURNISHED AT ANY TIME UNDER OR IN CONNECTION HEREWITH
OR THEREWITH, SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF
THE DATE OF THE CLOSING DATE, EXCEPT TO THE EXTENT THAT SUCH REPRESENTATIONS AND
WARRANTIES SPECIFICALLY REFER TO AN EARLIER DATE, IN WHICH