to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03
No Conflicts.
The Transactions (a) do not require any consent or
approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are in
full force and effect, (ii) filings necessary to perfect Liens created by the
Loan Documents and (iii) consents, approvals, registrations, filings, permits or
actions the failure to obtain or perform which could not reasonably be expected
to result in a Material Adverse Effect, (b) will not violate the Organizational
Documents of any Company, (c) will not violate any Requirement of Law, (d) will
not violate or result in a default or require any consent or approval under any
indenture, agreement or other instrument binding upon any Company or its
property, or give rise to a right thereunder to require any payment to be made
by any Company, except for violations, defaults or the creation of such rights
that could not reasonably be expected to result in a Material Adverse Effect,
and (e) will not result in the creation or imposition of any Lien on any
property of any Company, except Liens created by the Loan Documents and
Permitted Liens.
SECTION 3.04
Financial Statements; Projections.
(A)
HISTORICAL FINANCIAL STATEMENTS.
BORROWER HAS HERETOFORE
DELIVERED TO THE LENDERS THE CONSOLIDATED BALANCE SHEETS AND RELATED STATEMENTS
OF INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS OF BORROWER (I) AS OF, AND FOR
THE FISCAL YEARS ENDED, DECEMBER 31, 2005, DECEMBER 31, 2004 AND DECEMBER 31,
2003, AUDITED BY AND ACCOMPANIED BY THE UNQUALIFIED OPINION OF DELOITTE & TOUCHE
LLP, INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS OF AND FOR THE NINE-MONTH
PERIOD ENDED SEPTEMBER 30, 2006 AND FOR THE COMPARABLE PERIOD OF THE PRECEDING
FISCAL YEAR, IN EACH CASE, CERTIFIED BY THE CHIEF FINANCIAL OFFICER OF
BORROWER.
SUCH FINANCIAL STATEMENTS AND ALL FINANCIAL STATEMENTS DELIVERED
PURSUANT TO SECTIONS 5.01(A), (B) AND (C) HAVE BEEN PREPARED IN ACCORDANCE WITH
GAAP AND PRESENT FAIRLY AND ACCURATELY THE FINANCIAL CONDITION AND RESULTS OF
OPERATIONS AND CASH FLOWS OF BORROWER AS OF THE DATES AND FOR THE PERIODS TO
WHICH THEY RELATE.
(B)
NO LIABILITIES.
EXCEPT AS SET FORTH IN THE FINANCIAL STATEMENTS
REFERRED TO IN SECTION 3.04(A), OR AS WILL BE SET FORTH IN THE NEXT FINANCIAL
STATEMENTS TO BE DELIVERED PURSUANT TO SECTION 5.01(A), (B) OR (C), AS
APPLICABLE, THERE ARE NO LIABILITIES OF ANY COMPANY OF ANY KIND, WHETHER
ACCRUED, CONTINGENT, ABSOLUTE, DETERMINED, DETERMINABLE OR OTHERWISE, WHICH
COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, AND THERE
IS NO EXISTING CONDITION, SITUATION OR SET OF CIRCUMSTANCES WHICH COULD
REASONABLY BE EXPECTED TO RESULT IN SUCH A LIABILITY, OTHER THAN LIABILITIES
UNDER THE LOAN DOCUMENTS.
SINCE DECEMBER 31, 2005, THERE HAS BEEN NO EVENT,
CHANGE, CIRCUMSTANCE OR OCCURRENCE THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAS
HAD OR COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(C)
PRO