UNDER THIS AGREEMENT
(COLLECTIVELY, THE "TRANSACTIONS") AND IS ACCURATE, COMPLETE AND CORRECT AND
FAIRLY REFLECTS, IN ALL MATERIAL ASPECTS, THE FINANCIAL POSITION OF BORROWERS ON
A CONSOLIDATED BASIS AS OF THE CLOSING DATE AFTER GIVING EFFECT TO THE
TRANSACTIONS, AND HAS BEEN PREPARED IN ACCORDANCE WITH GAAP, CONSISTENTLY
APPLIED, EXCEPT FOR PERIOD ADJUSTMENTS AND THE ABSENCE OF FOOTNOTES.
THE PRO
FORMA BALANCE SHEET HAS BEEN CERTIFIED ON BEHALF OF BORROWERS AS ACCURATE,
COMPLETE AND CORRECT IN ALL MATERIAL RESPECTS BY THE PRESIDENT OR CHIEF
FINANCIAL OFFICER OF BORROWING AGENT.
SUBJECT TO PERIOD ADJUSTMENTS AND THE
ABSENCE OF FOOTNOTES, ALL FINANCIAL STATEMENTS REFERRED TO IN THIS SUBSECTION
5.5(A), INCLUDING THE RELATED SCHEDULES AND NOTES THERETO, HAVE BEEN PREPARED,
IN ACCORDANCE WITH GAAP, EXCEPT AS MAY BE DISCLOSED IN SUCH FINANCIAL
STATEMENTS.
(B)
THE TWELVE-MONTH CASH FLOW PROJECTIONS OF BORROWERS ON A
CONSOLIDATED BASIS AND THEIR PROJECTED BALANCE SHEETS AS OF THE CLOSING DATE,
COPIES OF WHICH ARE ANNEXED HERETO AS EXHIBIT 5.5(B) (THE "PROJECTIONS") WERE
PREPARED BY THE CHIEF FINANCIAL OFFICER OF BORROWING AGENT ON BEHALF OF
BORROWERS, ARE BASED ON UNDERLYING ASSUMPTIONS WHICH PROVIDE A REASONABLE BASIS
FOR THE PROJECTIONS CONTAINED THEREIN AND REFLECT BORROWERS' JUDGMENT BASED ON
PRESENT CIRCUMSTANCES OF THE MOST LIKELY SET OF CONDITIONS AND COURSE OF ACTION
FOR THE PROJECTED PERIOD.
THE CASH FLOW PROJECTIONS TOGETHER WITH THE PRO FORMA
BALANCE SHEET, ARE REFERRED TO AS THE "PRO FORMA FINANCIAL STATEMENTS".
(C)
THE CONSOLIDATED AND CONSOLIDATING BALANCE SHEETS OF BORROWERS,
THEIR SUBSIDIARIES AND SUCH OTHER PERSONS DESCRIBED THEREIN (INCLUDING THE
ACCOUNTS OF ALL SUBSIDIARIES FOR THE RESPECTIVE PERIODS DURING WHICH A
SUBSIDIARY RELATIONSHIP EXISTED) AS OF DECEMBER 31, 2008, AND THE RELATED
STATEMENTS OF INCOME, CHANGES IN STOCKHOLDER'S EQUITY, AND CHANGES IN CASH FLOW
FOR THE PERIOD ENDED ON SUCH DATE, ALL ACCOMPANIED BY REPORTS THEREON CONTAINING
OPINIONS BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, COPIES OF WHICH HAVE BEEN
DELIVERED TO AGENT, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP, CONSISTENTLY
APPLIED (EXCEPT FOR CHANGES IN APPLICATION IN WHICH SUCH ACCOUNTANTS CONCUR AND
PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE FINANCIAL POSITION OF BORROWERS
AND THEIR SUBSIDIARIES AT SUCH DATE AND THE RESULTS OF THEIR OPERATIONS FOR SUCH
PERIOD.
SINCE DECEMBER 31, 2008, THERE HAS BEEN NO CHANGE IN THE CONDITION,
FINANCIAL OR OTHERWISE, OF BORROWERS OR THEIR SUBSIDIARIES AS SHOWN ON THE
CONSOLIDATED BALANCE SHEET AS OF SUCH DATE AND NO CHANGE IN THE AGGREGATE VALUE
OF MACHINERY, AND EQUIPMENT OWNED BY BORROWERS AND THEIR RESPECTIVE
SUBSIDIARIES, EXCEPT CHANGES IN THE ORDINARY COURSE OF BUSINESS, NONE OF WHICH
INDIVIDUALLY OR IN THE AGGREGATE HAS BEEN MATERIALLY ADVERSE.
5.6.
ENTITY NAMES.
EXCEPT AS SET FORTH ON SCHEDULE 5.6, NO BORROWER
HAS BEEN KNOWN BY ANY OTHER CORPORATE NAME IN THE PAST FIVE (5) YEARS AND DOES
NOT SELL INVENTORY UNDER ANY OTHER NAME NOR HAS ANY BORROWER BEEN THE SURVIVING
CORPORATION OF A MERGER OR CONSOLIDATION OR ACQUIRED ALL OR SUBSTANTIALLY ALL OF
THE ASSETS OF ANY PERSON DURING THE PRECEDING FIVE (5) YEARS.
56
5.7.
O.S.H.A.