OR IN THE AGGREGATE, THAT HAS HAD OR WOULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(E)
THE CONSOLIDATED PRO FORMA BALANCE SHEET OF THE BORROWER AND ITS
SUBSIDIARIES AND THE RELATED CONSOLIDATED PRO FORMA STATEMENTS OF INCOME OF THE
BORROWER AND ITS SUBSIDIARIES DELIVERED IN ACCORDANCE WITH SECTION 4.01(A)(XII),
CERTIFIED BY THE CHIEF EXECUTIVE OFFICER, CHIEF FINANCIAL OFFICER OR A SENIOR
VICE PRESIDENT OF THE BORROWER, FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE
CONSOLIDATED PRO FORMA FINANCIAL CONDITION OF THE BORROWER AND ITS SUBSIDIARIES
AS AT SUCH DATE AND THE CONSOLIDATED PRO FORMA RESULTS OF OPERATIONS OF THE
BORROWER AND ITS SUBSIDIARIES FOR THE PERIOD ENDED ON SUCH DATE, IN EACH CASE
GIVING EFFECT TO THE TRANSACTION, ALL IN ACCORDANCE WITH GAAP.
AS OF THE
CLOSING DATE, THE BORROWER AND ITS SUBSIDIARIES HAVE NO LIABILITIES (ABSOLUTE OR
CONTINGENT) EXCEPT FOR (I) LIABILITIES REFLECTED ON SUCH PRO FORMA BALANCE SHEET
AND (II) LIABILITIES WHICH WOULD NOT REASONABLY BE EXPECTED TO HAVE A COMPANY
MATERIAL ADVERSE EFFECT.
(F)
THE CONSOLIDATED FORECASTED BALANCE SHEETS, STATEMENTS OF INCOME
AND STATEMENTS OF CASH FLOWS OF THE COMPANY AND ITS SUBSIDIARIES OR THE BORROWER
AND ITS SUBSIDIARIES, AS APPLICABLE, DELIVERED TO THE LENDERS PURSUANT TO
SECTION 4.01(A)(XIII) OR 6.01 WERE PREPARED IN GOOD FAITH ON THE BASIS OF THE
ASSUMPTIONS STATED THEREIN, WHICH ASSUMPTIONS WERE
BELIEVED BY THE COMPANY TO
BE REASONABLE
IN LIGHT OF THE CONDITIONS EXISTING AT THE TIME OF DELIVERY OF
SUCH FORECASTS AND AT THE CLOSING DATE, AND REPRESENTED, AT THE TIME OF
DELIVERY, THE COMPANY'S BEST ESTIMATE OF ITS FUTURE FINANCIAL PERFORMANCE; IT
BEING UNDERSTOOD AND AGREED THAT (A) ANY FINANCIAL OR BUSINESS PROJECTIONS
FURNISHED BY THE COMPANY OR THE BORROWER, AS THE CASE MAY BE, ARE SUBJECT TO
SIGNIFICANT UNCERTAINTIES AND CONTINGENCIES, WHICH MAY BE BEYOND THE CONTROL OF
THE COMPANY OR THE BORROWER, AS THE CASE MAY BE, (B) NO ASSURANCE IS GIVEN BY
THE COMPANY OR THE BORROWER, AS THE CASE MAY BE, THAT THE RESULTS OR FORECAST IN
ANY SUCH PROJECTIONS WILL BE
64
REALIZED AND (C) THE ACTUAL RESULTS MAY DIFFER FROM THE FORECAST RESULTS SET
FORTH IN SUCH PROJECTIONS AND SUCH DIFFERENCES MAY BE MATERIAL.
5.06
LITIGATION; LABOR CONTROVERSY.
THERE ARE NO ACTIONS, SUITS,
PROCEEDINGS, CLAIMS, DISPUTES OR INVESTIGATIONS PENDING OR, TO THE KNOWLEDGE OF
THE BORROWER OR THE COMPANY AFTER DUE AND DILIGENT INVESTIGATION, THREATENED OR
CONTEMPLATED, AT LAW, IN EQUITY, IN ARBITRATION OR BEFORE ANY GOVERNMENTAL
AUTHORITY, BY OR AGAINST ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES OR AGAINST
ANY OF THEIR PROPERTIES OR REVENUES, OR ANY LABOR CONTROVERSY, THAT (A) PURPORT
TO AFFECT OR PERTAIN TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR ANY RELATED
DOCUMENT OR THE CONSUMMATION OF THE TRANSACTION, OR (B) EITHER INDIVIDUALLY OR
IN THE AGGREGATE, WOULD REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
5.07
NO DEFAULT.
NEITHER ANY LOAN PARTY NOR ANY OF ITS SUBSIDIARIES IS
IN DEFAULT UNDER OR WITH RESPECT TO, OR A PARTY TO, ANY CONTRACTUAL OBLIGATION