reasonably be expected to result in any Material Adverse Change.
Section 3.08.
Financial Statements; Financial Projections.
3.08.1.
FINANCIAL STATEMENTS.
THE BORROWER HAS PREVIOUSLY DELIVERED TO
THE AGENT CORRECT AND COMPLETE COPIES OF THE AUDITED CONSOLIDATED BALANCE SHEETS
AND STATEMENTS OF INCOME, RETAINED EARNINGS AND CASH FLOWS OF THE BORROWER AND
ITS SUBSIDIARIES AS OF AND FOR ITS FISCAL YEAR ENDED OCTOBER 31, 2009, INCLUDING
THE FOOTNOTES THERETO.
SUCH FINANCIAL STATEMENTS FAIRLY PRESENT, IN ALL
MATERIAL RESPECTS, THE FINANCIAL CONDITION OF THE BORROWER AND ITS SUBSIDIARIES
AS AT THE END OF THE PERIODS COVERED THEREBY AND THE RESULTS OF THE BORROWER'S
AND ITS SUBSIDIARIES' OPERATIONS AND THE CHANGES IN THE BORROWER'S AND ITS
SUBSIDIARIES' FINANCIAL POSITIONS FOR THE PERIODS COVERED THEREBY, AND WERE
PREPARED IN ACCORDANCE WITH GAAP APPLIED ON A CONSISTENT BASIS THROUGHOUT THE
PERIODS COVERED THEREBY SUBJECT.
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3.08.2.
BOOKS AND RECORDS. (A)
THE BOOKS OF ACCOUNT AND OTHER FINANCIAL
RECORDS OF THE BORROWER AND ITS SUBSIDIARIES AS IN EFFECT ON THE CLOSING DATE
ARE CORRECT AND COMPLETE IN ALL MATERIAL RESPECTS, REPRESENT ACTUAL, BONA FIDE
TRANSACTIONS AND HAVE BEEN MAINTAINED IN ACCORDANCE WITH SOUND BUSINESS AND
ACCOUNTING PRACTICES; AND (B) AS OF THE CLOSING DATE, THE BORROWER AND ITS
SUBSIDIARIES MAINTAIN AN ADEQUATE SYSTEM OF INTERNAL ACCOUNTING CONTROLS AND DO
NOT ENGAGE IN OR MAINTAIN ANY OFF-THE-BOOKS ACCOUNTS OR TRANSACTIONS.
3.08.3.
ABSENCE OF MATERIAL LIABILITY.
AS OF THE CLOSING DATE, EXCEPT
WITH RESPECT TO THE ACQUISITION, NEITHER THE BORROWER NOR ANY OF ITS
SUBSIDIARIES HAVE ANY MATERIAL LIABILITIES OF ANY KIND, WHETHER DIRECT OR
INDIRECT, FIXED OR CONTINGENT OR OTHERWISE WHICH IS NOT DISCLOSED UPON THE
CONSOLIDATED FINANCIAL STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES WHICH
HAVE BEEN PROVIDED TO THE CREDIT PARTIES; OTHER THAN EXECUTORY OBLIGATIONS UNDER
CONTRACTS, LEASES, OR OTHER AGREEMENTS WHICH GAAP WOULD NOT REQUIRE TO BE SET
FORTH IN THE CONSOLIDATED FINANCIAL STATEMENTS OF THE BORROWER AND ITS
SUBSIDIARIES.
3.08.4.
FINANCIAL PROJECTIONS.
THE BORROWER HAS DELIVERED TO THE CREDIT
PARTIES FINANCIAL PROJECTIONS OF THE BORROWER AND ITS SUBSIDIARIES FOR THE
PERIOD
COMMENCING NOVEMBER 1, 2010 AND ENDING OCTOBER 31, 2012.
SUCH
PROJECTIONS SET FORTH IN THE JUDGMENT OF THE BORROWER A REASONABLE RANGE OF
POSSIBLE RESULTS IN LIGHT OF THE HISTORY OF THE BUSINESSES OF THE BORROWER AND
ITS SUBSIDIARIES, AND PRESENT REASONABLY FORESEEABLE CONDITIONS AND THE
INTENTIONS OF THE MANAGEMENT OF THE BORROWER AND ITS SUBSIDIARIES.
IN THE
REASONABLE JUDGMENT OF THE BORROWER, SUCH PROJECTIONS ACCURATELY REFLECT THE
LIABILITIES OF THE BORROWER AND ITS SUBSIDIARIES ON THE CLOSING DATE, AFTER
GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
NO EVENTS
HAVE OCCURRED SINCE THE PREPARATION OF THE PROJECTIONS WHICH WOULD CAUSE THE
PROJECTIONS, TAKEN AS A WHOLE, NOT TO BE REASONABLY ATTAINABLE; PROVIDED,
HOWEVER, THAT SUCH PROJECTIONS ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES AND
CONTINGENCIES, MANY OF WHICH ARE BEYOND THE BORROWER'S CONTROL, THAT NO
ASSURANCES CAN BE GIVEN THAT ANY SUCH PROJECTIONS WILL BE REALIZED AND THAT
ACTUAL RESULTS MAY DIFFER FROM ANY SUCH PROJECTIONS AND SUCH DIFFERENCES MAY BE
MATERIAL.