THE CASE MAY
BE, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
52
SECTION 3.03.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE TRANSACTIONS (A) DO
NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH, OR ANY
OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY OR SUPERVISORY ORGANIZATION, EXCEPT
SUCH AS HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT AND EXCEPT
FILINGS NECESSARY TO PERFECT LIENS CREATED UNDER THE LOAN DOCUMENTS, (B) WILL
NOT VIOLATE ANY MATERIAL REQUIREMENT OF LAW APPLICABLE TO THE BORROWER OR ANY
SUBSIDIARY, (C) WILL NOT VIOLATE OR RESULT IN A DEFAULT UNDER ANY MATERIAL
INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON THE BORROWER OR ANY
SUBSIDIARY OR THEIR RESPECTIVE ASSETS, OR GIVE RISE TO A RIGHT THEREUNDER TO
REQUIRE ANY PAYMENT TO BE MADE BY THE BORROWER OR ANY SUBSIDIARY OR GIVE RISE TO
A RIGHT OF, OR RESULT IN, TERMINATION, CANCELATION OR ACCELERATION OF ANY
OBLIGATION THEREUNDER AND (D) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF
ANY LIEN ON ANY ASSET OF THE BORROWER OR ANY SUBSIDIARY, EXCEPT LIENS CREATED
UNDER THE LOAN DOCUMENTS.
SECTION 3.04.
FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECTS.
(A)
THE
BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEETS
AND STATEMENTS OF INCOME, SHAREHOLDERS EQUITY AND CASH FLOWS (I) AS OF AND FOR
THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2004 AND 2005, REPORTED ON BY KPMG
LLP, INDEPENDENT PUBLIC ACCOUNTANTS AND (II) AS OF AND FOR THE FISCAL QUARTER
AND THE PORTION OF THE FISCAL YEAR ENDED SEPTEMBER 30, 2006, CERTIFIED BY ITS
CHIEF FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL
MATERIAL RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH
FLOWS OF THE BORROWER AND THE SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS
IN ACCORDANCE WITH GAAP, SUBJECT TO YEAR END AUDIT ADJUSTMENTS AND THE ABSENCE
OF FOOTNOTES IN THE CASE OF THE FINANCIAL STATEMENTS REFERRED TO IN CLAUSE (II)
ABOVE.
(B)
THE BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS A PRO FORMA
CONSOLIDATED BALANCE SHEET AND RELATED PRO FORMA CONSOLIDATED STATEMENTS OF
INCOME AND CASH FLOWS OF THE BORROWER AS OF AND FOR THE FOUR FISCAL QUARTER
PERIOD ENDED SEPTEMBER 30, 2006, PREPARED AFTER GIVING EFFECT TO THE ACQUISITION
AND THE OTHER TRANSACTIONS THAT ARE TO OCCUR ON OR PRIOR TO THE EFFECTIVE DATE.
SUCH PRO FORMA FINANCIAL STATEMENTS (I) HAVE BEEN PREPARED IN GOOD FAITH BASED
ON INFORMATION AVAILABLE TO THE BORROWER AND THE SAME ASSUMPTIONS USED TO
PREPARE THE PRO FORMA FINANCIAL STATEMENTS INCLUDED IN THE INFORMATION
MEMORANDUM (WHICH ASSUMPTIONS ARE BELIEVED BY THE BORROWER TO BE REASONABLE),
(II) ACCURATELY REFLECT ALL ADJUSTMENTS NECESSARY TO GIVE EFFECT TO THE
TRANSACTIONS THAT ARE TO OCCUR ON OR PRIOR TO THE EFFECTIVE DATE IN ACCORDANCE
WITH THE REQUIREMENTS OF GAAP AND ARTICLE XI OF REGULATION