RESULT IN OR
REQUIRE THE CREATION OR IMPOSITION OF ANY LIEN WHATSOEVER UPON ANY OF THE
PROPERTIES OR ASSETS OF BORROWER OR ANY OF ITS SUBSIDIARIES (OTHER THAN LIENS
GRANTED PURSUANT TO THE COLLATERAL DOCUMENTS).
(D)
APPROVALS.
NO APPROVAL, CONSENT OR AUTHORIZATION OF, OR NOTICE TO
OR FILING WITH, ANY GOVERNMENTAL AUTHORITY OR ANY SECURITIES EXCHANGE IS
REQUIRED IN CONNECTION WITH THE EXECUTION, DELIVERY OR PERFORMANCE BY ANY LOAN
PARTY OF ANY OF THE LOAN DOCUMENTS OR THE GRANTING OF A LIEN ON ANY OF THE
COLLATERAL IN THE MANNER AND FOR THE PURPOSE CONTEMPLATED BY THE COLLATERAL
DOCUMENTS, EXCEPT (I) FILINGS AND RECORDING TO PERFECT SUCH LIENS, (II) THOSE
OBTAINED ON OR PRIOR TO THE CLOSING DATE AND (III) THOSE WHICH, IF NOT OBTAINED,
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
(E)
LICENSES AND PERMITS.
EACH OF THE BORROWER AND EACH OF THE
BORROWER'S SUBSIDIARIES OWNS OR POSSESSES OR IS LICENSED OR OTHERWISE HAS THE
RIGHT TO USE ALL PERMITS AND OTHER GOVERNMENTAL APPROVALS AND AUTHORIZATIONS,
FRANCHISES, AUTHORIZATIONS AND OTHER RIGHTS THAT ARE REASONABLY NECESSARY FOR
THE OPERATIONS OF ITS BUSINESS AS CURRENTLY CONDUCTED, WITHOUT, TO THE KNOWLEDGE
OF BORROWER OR ANY OF ITS SUBSIDIARIES, CONFLICT WITH THE RIGHTS OF ANY OTHER
PERSON WITH RESPECT THERETO, EXCEPT WHERE THE FAILURE TO BE SO LICENSED OR TO
HAVE SUCH PERMITS WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
(F)
FINANCIAL REPORTS.
(I)
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 CONSUMMATION OF THE TRANSACTIONS ON THE
CLOSING DATE, (II) THE LOANS TO BE MADE AND (III) THE PAYMENT OF FEES AND
EXPENSES IN CONNECTION WITH THE FOREGOING.
THE PRO FORMA BALANCE SHEET HAS BEEN
PREPARED BASED ON THE BEST INFORMATION AVAILABLE TO THE BORROWER AS OF THE DATE
OF DELIVERY THEREOF, AND PRESENTS FAIRLY IN ALL MATERIAL RESPECTS ON A PRO FORMA
BASIS THE ESTIMATED FINANCIAL POSITION OF BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES AS AT MARCH 31, 2007, ASSUMING THAT THE EVENTS SPECIFIED IN THE
PRECEDING SENTENCE HAD ACTUALLY OCCURRED AT SUCH DATE.
35
(II)
THE CONSOLIDATED BALANCE SHEETS OF THE BORROWER AND ITS
SUBSIDIARIES AS AT DECEMBER 31, 2004, DECEMBER 31, 2005, DECEMBER 31, 2006 AND
MARCH 31, 2007, AND THE RELATED CONSOLIDATED STATEMENTS OF EARNINGS AND CASH
FLOWS OF THE BORROWER AND ITS SUBSIDIARIES FOR THE FISCAL YEAR ENDED DECEMBER
31, 2004 AND DECEMBER 31, 2005 AND DECEMBER 31, 2006 AND THE FISCAL QUARTER
ENDED MARCH 31, 2007 COPIES OF EACH OF WHICH HAVE BEEN FURNISHED TO EACH LENDER,
FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE CONSOLIDATED FINANCIAL CONDITION OF
THE BORROWER AND ITS SUBSIDIARIES AS AT SUCH RESPECTIVE DATES AND THE
CONSOLIDATED RESULTS OF THE OPERATIONS OF THE BORROWER AND ITS SUBSIDIARIES FOR
SUCH RESPECTIVE PERIODS ENDED ON SUCH DATES, ALL IN ACCORDANCE WITH GAAP,
CONSISTENTLY APPLIED; PROVIDED THAT SUCH FINANCIAL STATEMENTS DELIVERED FOR ANY
PERIOD OTHER THAN A