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.
53
(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 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 FOR THE PERIOD ENDED ON SUCH DATE, IN EACH CASE
GIVING EFFECT TO THE TRANSACTION, ALL IN ACCORDANCE WITH GAAP.
(E)
THE CONSOLIDATED AND CONSOLIDATING FORECASTED BALANCE SHEET,
STATEMENTS OF INCOME AND CASH FLOWS OF HOLDINGS AND ITS SUBSIDIARIES DELIVERED
PURSUANT TO SECTION 4.01 OR SECTION 6.01(D) WERE PREPARED IN GOOD FAITH ON THE
BASIS OF THE ASSUMPTIONS STATED THEREIN, WHICH ASSUMPTIONS WERE FAIR IN LIGHT OF
THE CONDITIONS EXISTING AT THE TIME OF DELIVERY OF SUCH FORECASTS, AND
REPRESENTED, AT THE TIME OF DELIVERY, THE BORROWERS' BEST ESTIMATE OF ITS FUTURE
FINANCIAL CONDITION AND PERFORMANCE.
5.06
Litigation.
There are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of either Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against either Borrower or any of their
respective Subsidiaries or against any of their properties or revenues that
(a) purport to affect or pertain to this Agreement, any other Loan Document, or
any Related Document, (b) except as disclosed on Schedule 5.06(b), purport to
affect or pertain to the consummation of the Transaction or (c) except as
specifically disclosed in Schedule 5.06(c), either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.
5.07
No Default.
Schedule 5.07 sets forth a complete and accurate list
of all Material Contracts to which any Loan Party is a party.
Neither any Loan
Party nor any Subsidiary thereof is in default under or with respect to, or a
party to, any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.