the remedies in respect of the Collateral pursuant to the
Collateral Documents.
All applicable waiting periods in connection with the
Transaction have expired without any action having been taken by any
Governmental Authority restraining, preventing or imposing materially adverse
conditions upon the Transaction or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any Lien
on, any properties now owned or hereafter acquired by any of them.
5.04
Binding Effect.
This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by each Loan Party that is party thereto.
This Agreement
constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each
Loan Party that is party thereto in accordance with its terms.
5.05
Financial Statements; No Material Adverse
Effect.
(a)
The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrowers and their respective Subsidiaries as of the date thereof and
their results of operations for the period covered thereby in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrowers and their Subsidiaries
as of the date thereof, including liabilities for taxes, material commitments
and Indebtedness.
(B)
THE UNAUDITED CONSOLIDATED BALANCE SHEET OF
HOLDINGS AND ITS SUBSIDIARIES DATED MARCH 31, 2007, AND THE RELATED CONSOLIDATED
STATEMENTS OF INCOME OR OPERATIONS, SHAREHOLDERS' EQUITY AND CASH FLOWS FOR THE
FISCAL QUARTER ENDED ON THAT DATE (I) WERE PREPARED IN ACCORDANCE WITH GAAP
CONSISTENTLY APPLIED THROUGHOUT THE PERIOD COVERED THEREBY, EXCEPT AS OTHERWISE
EXPRESSLY NOTED THEREIN, AND (II) FAIRLY PRESENT THE FINANCIAL CONDITION OF
HOLDINGS AND ITS SUBSIDIARIES AS OF THE DATE THEREOF AND THEIR RESULTS OF
OPERATIONS FOR THE PERIOD COVERED THEREBY, SUBJECT, IN THE CASE OF CLAUSES
(I) AND (II), TO THE ABSENCE OF FOOTNOTES AND TO NORMAL YEAR-END AUDIT
ADJUSTMENTS.
(C)
EXCEPT AS SET FORTH ON SCHEDULE
4.01(A)(XV), SINCE THE DATE OF THE AUDITED FINANCIAL STATEMENTS, THERE HAS BEEN
NO EVENT OR CIRCUMSTANCE, EITHER INDIVIDUALLY OR IN THE AGGREGATE, THAT HAS HAD
OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(D)
THE CONSOLIDATED AND CONSOLIDATING PRO FORMA
BALANCE SHEET OF HOLDINGS AND ITS SUBSIDIARIES AS AT MARCH 31, 2007, AND THE
RELATED CONSOLIDATED AND CONSOLIDATING PRO FORMA STATEMENTS OF INCOME AND CASH
FLOWS OF THE BORROWERS AND THEIR SUBSIDIARIES FOR THE
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twelve months then ended, certified by the chief financial officer or treasurer
of the Borrowers, copies of which have been furnished to each Lender, fairly
present the consolidated and consolidating pro forma financial condition of
Holdings and its Subsidiaries as at such date and the consolidated and
consolidating pro forma results of operations of Holdings and its Subsidiaries