IN CLAUSE (A) ABOVE OR IN THE NOTES THERETO AND
WHICH IS OTHERWISE PROHIBITED BY THIS AGREEMENT AND (II) SINCE THE DATE OF THE
UNAUDITED FINANCIAL STATEMENTS REFERENCED IN CLAUSE (A)(II) ABOVE, THERE HAS
BEEN NO SALE OF ANY MATERIAL PROPERTY OF HOLDINGS OR ITS SUBSIDIARIES AND (OTHER
THAN THE ACQUISITION) NO ACQUISITION OF ANY MATERIAL PROPERTY.
(C)
THE INITIAL PROJECTIONS HAVE BEEN PREPARED BY HOLDINGS IN
LIGHT OF THE PAST OPERATIONS OF THE BUSINESS OF HOLDINGS AND ITS SUBSIDIARIES
AND THE ACQUIRED BUSINESS AND REFLECT PROJECTIONS FOR THE FOUR-YEAR PERIOD
BEGINNING ON JANUARY 1, 2010 ON A QUARTERLY BASIS THROUGH DECEMBER 31, 2010 AND
ON A YEAR-BY-YEAR BASIS THEREAFTER.
AS OF THE CLOSING DATE, THE INITIAL
PROJECTIONS HAVE BEEN PREPARED IN GOOD FAITH BASED UPON ASSUMPTIONS BELIEVED BY
THE PREPARER THEREOF TO BE REASONABLE (IT BEING UNDERSTOOD AND AGREED THAT
FINANCIAL PROJECTIONS ARE NOT A GUARANTEE OF FINANCIAL PERFORMANCE AND ACTUAL
RESULTS MAY DIFFER FROM FINANCIAL PROJECTIONS AND SUCH DIFFERENCES MAY BE
MATERIAL).
(D)
THE UNAUDITED CONSOLIDATED BALANCE SHEET OF HOLDINGS (THE "PRO
FORMA BALANCE SHEET") DELIVERED TO THE ADMINISTRATIVE AGENT PRIOR TO THE DATE
HEREOF, HAS BEEN PREPARED AS OF FEBRUARY 28, 2010 AND REFLECTS AS OF SUCH DATE,
ON A PRO FORMA BASIS FOR THE RELATED TRANSACTIONS THE CONSOLIDATED FINANCIAL
CONDITION OF HOLDINGS.
SECTION 4.5
MATERIAL ADVERSE EFFECT.
SINCE DECEMBER 31, 2009, NO
MATERIAL ADVERSE EFFECT HAS OCCURRED.
SECTION 4.6
SOLVENCY.
AS OF THE CLOSING DATE, BOTH BEFORE AND AFTER
GIVING EFFECT TO THE RELATED TRANSACTIONS, EACH LOAN PARTY IS SOLVENT.
ON ANY
DATE AFTER THE CLOSING DATE, BOTH BEFORE AND AFTER GIVING EFFECT TO THE LOANS
AND LETTERS OF CREDIT TO BE MADE OR ISSUED ON SUCH DATE AND THE USE OF PROCEEDS
THEREOF, THE LOAN PARTIES TAKEN AS A WHOLE ARE SOLVENT.
SECTION 4.7
LITIGATION.
THERE ARE NO PENDING (OR, TO THE KNOWLEDGE
OF ANY GROUP MEMBER, THREATENED IN WRITING) ACTIONS, INVESTIGATIONS, SUITS,
PROCEEDINGS, AUDITS OR CLAIMS AFFECTING ANY GROUP MEMBER WITH, BY OR BEFORE ANY
GOVERNMENTAL AUTHORITY (X) THAT WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT OR (Y) THAT INVOLVE THE LOAN DOCUMENTS, THE RELATED DOCUMENTS OR
THE RELATED TRANSACTIONS (OTHER THAN PROCEEDINGS, ACTIONS, INVESTIGATIONS OR
SUITS WITH, BY OR BEFORE THE BANKRUPTCY COURT RELATED TO THE ACQUISITION).
SECTION 4.8
TAXES.
EXCEPT AS WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, ALL
FEDERAL, STATE, LOCAL AND FOREIGN TAX RETURNS, REPORTS AND STATEMENTS
(COLLECTIVELY, THE "TAX RETURNS") REQUIRED TO BE FILED BY ANY GROUP MEMBER HAVE
BEEN FILED WITH THE APPROPRIATE GOVERNMENTAL AUTHORITIES IN ALL JURISDICTIONS IN
WHICH SUCH TAX RETURNS ARE REQUIRED TO BE FILED, ALL SUCH TAX RETURNS ARE TRUE
AND CORRECT, AND ALL TAXES, CHARGES AND OTHER IMPOSITIONS REFLECTED THEREIN OR
OTHERWISE DUE AND PAYABLE HAVE BEEN
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PAID PRIOR TO THE DATE ON WHICH ANY LIABILITY MAY BE ADDED THERETO FOR
NON-PAYMENT THEREOF, IN EACH CASE EXCEPT WITH RESPECT TO MATTERS CONTESTED IN
GOOD FAITH BY APPROPRIATE PROCEEDINGS