OF THE DATE THEREOF ON A PRO
FORMA CONSOLIDATED AND CONSOLIDATING BASIS AFTER TAKING INTO ACCOUNT THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND THE OTHER
INVESTMENT DOCUMENTS TO BE CONSUMMATED AS OF THE CLOSING DATE.
THE PRO FORMA
BALANCE SHEET HAS BEEN PREPARED BY THE COMPANY IN ACCORDANCE WITH GAAP AND
FAIRLY PRESENTS IN ALL MATERIAL RESPECTS THE ASSETS AND LIABILITIES OF THE GROUP
AND EACH GROUP MEMBER AS OF THE DATE THEREOF, REFLECTING THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT TO BE CONSUMMATED ON THE CLOSING
DATE AND BASED ON THE ASSUMPTIONS SET FORTH THEREIN.
(E)
THE PROJECTIONS OF THE COMPANY DATED JANUARY 13, 2004 FOR
IDENTIFICATION, HERETOFORE DELIVERED TO WMF (I) WERE PREPARED BY THE COMPANY IN
THE ORDINARY COURSE OF ITS OPERATIONS CONSISTENT WITH PAST PRACTICE, (II) ARE
THE MOST CURRENT PROJECTIONS PREPARED BY THE COMPANY RELATING TO THE PERIODS
COVERED THEREBY, AND (III) ARE BASED ON ASSUMPTIONS WHICH WERE REASONABLE WHEN
MADE AND SUCH ASSUMPTIONS AND PROJECTIONS ARE REASONABLE ON THE DATE HEREOF.
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS DELIVERED TO ANY PERSON ANY
LATER DATED PROJECTIONS.
5.12
OPERATING COMPANY.
THE COMPANY IS "AN ENTITY THAT
IS PRIMARILY ENGAGED, DIRECTLY OR THOUGH A MAJORITY OWNED SUBSIDIARY OR
SUBSIDIARIES, IN THE PRODUCTION OR SALE OF A PRODUCT OR SERVICE OTHER THAN THE
INVESTMENT OF CAPITAL" WITHIN THE MEANING OF THE U.S. DEPARTMENT OF LABOR PLAN
ASSET REGULATIONS, 29 C.F.R. § 2510.3-101.
5.13
DISCLOSURE.
(A)
AGREEMENT AND OTHER DOCUMENTS.
THIS AGREEMENT, TOGETHER WITH
ALL EXHIBITS AND SCHEDULES HERETO, AND THE AGREEMENTS, CERTIFICATES AND OTHER
DOCUMENTS FURNISHED TO THE PURCHASER BY THE COMPANY AND ITS SUBSIDIARIES AT THE
CLOSING, DO NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE
A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED HEREIN OR
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING.
(B)
MATERIAL ADVERSE EFFECT.
THERE IS NO FACT KNOWN TO THE COMPANY
WHICH THE COMPANY HAS NOT DISCLOSED TO THE PURCHASER IN WRITING WHICH COULD
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
5.14
ABSENCE OF CERTAIN CHANGES OR EVENTS.
EXCEPT AS SET
FORTH ON SCHEDULE 5.14, SINCE SEPTEMBER 30, 2003, OTHER THAN AS CONTEMPLATED BY
THE INVESTMENT DOCUMENTS, NO GROUP MEMBER HAS (I) ISSUED ANY CAPITAL STOCK,
BONDS OR OTHER SECURITIES, (II) BORROWED ANY AMOUNT OR INCURRED ANY LIABILITIES
(ABSOLUTE OR CONTINGENT) OTHER THAN IN THE ORDINARY COURSE OF BUSINESS, (III)
DISCHARGED OR SATISFIED ANY LIEN OR INCURRED OR PAID ANY OBLIGATION OR LIABILITY
(ABSOLUTE OR CONTINGENT), OTHER THAN IN THE ORDINARY COURSE OF BUSINESS, IN
EXCESS OF $10,000, (IV) DECLARED OR MADE ANY PAYMENT OR DISTRIBUTION TO
STOCKHOLDERS OR MEMBERS, AS APPROPRIATE, OR PURCHASED OR REDEEMED ANY SHARES OF
ITS CAPITAL STOCK OR OTHER SECURITIES, (V) MORTGAGED, PLEDGED OR SUBJECTED
25
TO LIEN ANY OF ITS ASSETS, TANGIBLE OR INTANGIBLE, (VI) SOLD, ASSIGNED OR
TRANSFERRED ANY OF ITS TANGIBLE ASSETS, OR CANCELED ANY DEBTS OR CLAIMS,