SUCH RELATED DOCUMENT, IN WHICH CASE SUCH REPRESENTATION AND
WARRANTY SHALL BE TRUE AND CORRECT AS OF SUCH EARLIER DATE) AND NO DEFAULT, OR
EVENT THAT, WITH THE GIVING OF NOTICE OR LAPSE OF TIME OR BOTH, WOULD CONSTITUTE
A DEFAULT, HAS OCCURRED THEREUNDER.
AS OF THE CLOSING DATE, ALL APPLICABLE
WAITING PERIODS IN CONNECTION WITH THE ACQUISITION HAVE EXPIRED OR HAVE BEEN
TERMINATED WITHOUT ANY ACTION BEING TAKEN BY ANY GOVERNMENTAL AUTHORITY
(INCLUDING ANY REQUISITE WAITING PERIOD (AND ANY EXTENSION THEREOF) UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976).
(D)
SUBORDINATED NOTE.
THE OBLIGATIONS CONSTITUTE "SENIOR DEBT"
OR ANY SIMILAR CONCEPT UNDER AND AS DEFINED IN THE SUBORDINATED NOTE DOCUMENTS.
NO OTHER INDEBTEDNESS QUALIFIES AS "SENIOR DEBT" OR ANY SIMILAR CONCEPT UNDER
THE SUBORDINATED NOTE DOCUMENTS.
SECTION 4.3
OWNERSHIP OF GROUP MEMBERS.
SET FORTH ON SCHEDULE 4.3
IS A COMPLETE AND ACCURATE LIST SHOWING, AS OF THE CLOSING DATE, FOR EACH GROUP
MEMBER OTHER THAN HOLDINGS, ITS JURISDICTION OF ORGANIZATION, THE NUMBER OF
SHARES OF EACH CLASS OF STOCK OUTSTANDING ON THE CLOSING DATE AND THE NUMBER AND
PERCENTAGE OF THE OUTSTANDING SHARES OF EACH SUCH CLASS OWNED (DIRECTLY OR
INDIRECTLY) BY THE BORROWER OR HOLDINGS.
AS OF THE CLOSING DATE, ALL
OUTSTANDING STOCK OF EACH GROUP MEMBER HAS BEEN VALIDLY ISSUED, IS FULLY PAID
AND NON-ASSESSABLE (TO THE EXTENT APPLICABLE) AND, EXCEPT IN THE CASE OF
HOLDINGS, IS OWNED BENEFICIALLY AND OF RECORD BY A GROUP MEMBER FREE AND CLEAR
OF ALL LIENS OTHER THAN PERMITTED LIENS.
AS OF THE CLOSING DATE, THERE ARE NO
STOCK EQUIVALENTS WITH RESPECT TO THE STOCK OF ANY GROUP MEMBER (OTHER THAN
HOLDINGS).
AS OF THE CLOSING DATE, THERE ARE NO CONTRACTUAL OBLIGATIONS OR
OTHER UNDERSTANDINGS TO WHICH ANY GROUP MEMBER IS A PARTY WITH RESPECT TO
(INCLUDING ANY RESTRICTION ON) THE ISSUANCE, VOTING, SALE OR PLEDGE OF ANY STOCK
OR STOCK EQUIVALENT OF ANY GROUP MEMBER.
SECTION 4.4
FINANCIAL STATEMENTS.
(A)
EACH OF (I) THE AUDITED
CONSOLIDATED BALANCE SHEET OF HOLDINGS AS AT DECEMBER 31, 2009, AND THE RELATED
CONSOLIDATED STATEMENTS OF INCOME, RETAINED EARNINGS AND CASH FLOWS OF HOLDINGS
FOR THE FISCAL YEAR THEN ENDED, CERTIFIED BY KPMG LLP, AND (II) SUBJECT TO THE
ABSENCE OF FOOTNOTE DISCLOSURE AND NORMAL YEAR-END AUDIT ADJUSTMENTS, THE
UNAUDITED CONSOLIDATED BALANCE SHEETS OF HOLDINGS AS AT FEBRUARY 28, 2010 AND
70
THE RELATED CONSOLIDATED STATEMENTS OF INCOME, RETAINED EARNINGS AND CASH FLOWS
OF HOLDINGS FOR THE TWO (2) MONTHS THEN ENDED, COPIES OF EACH OF WHICH HAVE BEEN
FURNISHED TO THE ADMINISTRATIVE AGENT, FAIRLY PRESENT IN ALL MATERIAL RESPECTS
THE CONSOLIDATED FINANCIAL POSITION, RESULTS OF OPERATIONS AND CASH FLOW OF THE
GROUP MEMBERS AS AT THE DATES INDICATED AND FOR THE PERIODS INDICATED IN
ACCORDANCE WITH GAAP.
(B)
ON THE CLOSING DATE, (I) NONE OF HOLDINGS OR ITS SUBSIDIARIES
HAS ANY MATERIAL LIABILITY OR OBLIGATION (INCLUDING INDEBTEDNESS, GUARANTY
OBLIGATIONS, CONTINGENT LIABILITIES AND LIABILITIES FOR TAXES, LONG-TERM LEASES
AND UNUSUAL FORWARD OR LONG-TERM COMMITMENTS) THAT IS NOT REFLECTED IN THE
FINANCIAL STATEMENTS REFERRED TO