OF CONTROL OFFER UPON A CHANGE
OF CONTROL IF A THIRD PARTY MAKES THE CHANGE OF CONTROL OFFER IN THE MANNER, AT
THE TIMES AND OTHERWISE IN COMPLIANCE WITH THE REQUIREMENTS SET FORTH IN THIS
SECTION 4.17 AND ALL OTHER PROVISIONS OF THIS AGREEMENT APPLICABLE TO A CHANGE
OF CONTROL OFFER MADE BY THE BORROWER AND REPAYS ALL LOANS AS TO WHICH OFFERS
FOR PREPAYMENT HAVE BEEN VALIDLY ACCEPTED AND NOT WITHDRAWN PURSUANT TO THE
TERMS OF SUCH CHANGE OF CONTROL OFFER.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and to make
the Loans, Holdings and the Borrower hereby jointly and severally represent and
warrant to each Agent and each Lender that:
5.1.
FINANCIAL CONDITION.
(A)
THE UNAUDITED PRO FORMA CONSOLIDATED
BALANCE SHEET OF HOLDINGS AND ITS CONSOLIDATED SUBSIDIARIES AS AT DECEMBER 31,
2007 (INCLUDING THE NOTES THERETO) (THE "PRO FORMA BALANCE SHEET"), COPIES OF
WHICH HAVE HERETOFORE BEEN FURNISHED TO EACH LENDER, HAS BEEN PREPARED GIVING
EFFECT (AS IF SUCH EVENTS HAD OCCURRED ON SUCH DATE) TO (I) THE LOANS TO BE MADE
ON THE CLOSING DATE AND THE USE OF PROCEEDS THEREOF AND (II) THE PAYMENT OF
PREMIUMS, FEES AND EXPENSES IN CONNECTION WITH THE FOREGOING.
THE PRO FORMA
BALANCE SHEET PRESENTS FAIRLY IN ALL MATERIAL RESPECTS ON A PRO FORMA BASIS THE
ESTIMATED FINANCIAL
POSITION OF HOLDINGS AND ITS CONSOLIDATED SUBSIDIARIES AS
AT DECEMBER 31, 2007, ASSUMING THAT THE EVENTS SPECIFIED IN THE PRECEDING
SENTENCE HAD ACTUALLY OCCURRED AT SUCH DATE.
33
(B)
THE AUDITED CONSOLIDATED BALANCE SHEETS OF HOLDINGS AS AT DECEMBER 31,
2006, DECEMBER 31, 2005 AND DECEMBER 31, 2004, AND THE RELATED CONSOLIDATED
STATEMENTS OF INCOME AND OF CASH FLOWS FOR THE FISCAL YEARS ENDED ON SUCH DATES
(INCLUDING ANY RELATED SCHEDULES AND NOTES THERETO), REPORTED ON BY AND
ACCOMPANIED BY A REPORT FROM DELOITTE & TOUCHE LLP, PRESENT FAIRLY IN ALL
MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL CONDITION OF HOLDINGS AS AT SUCH
DATE, AND THE CONSOLIDATED RESULTS OF ITS OPERATIONS AND ITS CONSOLIDATED CASH
FLOWS FOR THE RESPECTIVE FISCAL YEARS THEN ENDED.
ALL SUCH FINANCIAL
STATEMENTS, INCLUDING ANY RELATED SCHEDULES AND NOTES THERETO, HAVE BEEN
PREPARED IN ACCORDANCE WITH GAAP APPLIED CONSISTENTLY THROUGHOUT THE PERIODS
INVOLVED (EXCEPT AS DISCLOSED THEREIN). AS OF THE CLOSING DATE, NO GROUP MEMBER
HAS ANY MATERIAL OBLIGATIONS UNDER GUARANTEES, CONTINGENT LIABILITIES AND
LIABILITIES FOR TAXES, OR ANY LONG-TERM LEASES OR UNUSUAL FORWARD OR LONG-TERM
COMMITMENTS, INCLUDING ANY INTEREST RATE OR FOREIGN CURRENCY SWAP OR EXCHANGE
TRANSACTION OR OTHER OBLIGATION IN RESPECT OF DERIVATIVES, THAT ARE NOT
REFLECTED IN THE MOST RECENT FINANCIAL STATEMENTS REFERRED TO IN THIS
PARAGRAPH.
DURING THE PERIOD FROM DECEMBER 31, 2006 TO AND INCLUDING THE DATE
HEREOF THERE HAS BEEN NO DISPOSITION BY HOLDINGS OR ANY OF ITS SUBSIDIARIES OF
ANY MATERIAL PART OF ITS BUSINESS OR PROPERTY.
5.2.
No Change.
As of the Closing Date, since December 31, 2006, there
has been no development, event or circumstance that, individually or in the