Common use of SEC Filings; Financial Statements; Internal Controls Clause in Contracts

SEC Filings; Financial Statements; Internal Controls. (a) The Company has filed all forms, reports, statements and other documents required to be filed by it with the SEC since August 16, 2006 (collectively, the “SEC Reports”). Each of the SEC Reports, as amended prior to the date of this Agreement, complied in all material respects with the applicable requirements of the Securities Act and the Exchange Act, each as in effect on the date so filed. None of the SEC Reports contained, when filed as finally amended prior to the date of this Agreement, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) The audited consolidated financial statements (including any notes thereto) contained in the Company’s Annual Report on Form 10-K for each of the fiscal years ended December 31, 2006 and December 31, 2007 filed with the SEC (i) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the period indicated (except as may be indicated in the notes thereto) and (ii) each presented fairly, in all material respects, the consolidated financial position of the Company as of the date thereof and the combined/consolidated results of operations, changes in members’ and stockholders’ equity and cash flows of the Company for the fiscal year ended December 31, 2006 or December 31, 2007, as applicable, except as otherwise noted therein. The unaudited consolidated financial statements of the Company (including any notes thereto) for all interim periods included in the Company’s Quarterly Reports on Form 10-Q filed with the SEC since January 1, 2007 (i) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) each presented fairly, in all material respects, the consolidated financial position of the Company and the combined/consolidated results of operations, changes in members’ and stockholders’ equity and cash flows of the Company as of and for the periods indicated, as applicable (subject to normal and recurring year-end adjustments which were not and are not expected to have a Material Adverse Effect). Except as would not reasonably be expected to have a Material Adverse Effect, the books and records of the Company and each Company Subsidiary have been, and are being, maintained in accordance with applicable legal and accounting requirements. (c) The Company has designed disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) to ensure that material information relating to the Company, including the consolidated Company Subsidiaries, is made known to Co-Chief Executive Officers and the Chief Financial Officer of the Company by others within those entities. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (or persons performing the equivalent functions) (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company internal control over financial reporting.

SEC Filings; Financial Statements; Internal Controls. (a) The Company has timely filed all forms, reports, statements schedules, declarations, statements, applications and other documents required to be filed by it with the SEC since August 16January 1, 2006 2004 (collectively, the “SEC Company Reports”). Each , each of the SEC Reportswhich, as amended prior to the date of this Agreementwhen filed, complied in all material respects with the applicable requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “Securities Act”) and the Exchange Act, each as in effect on the date so filed. None of the SEC Company Reports contained(including any financial statements or schedules included or incorporated by reference therein), when filed as finally amended prior to the date of this Agreementfiled, contained any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. None of the Company’s subsidiaries is required to file any forms, reports or documents with the SEC under the Exchange Act. As of the date of this Agreement, there are no unresolved comments issued by the Staff of the SEC with respect to any of the Company Reports. (b) The Each of the audited consolidated and unaudited financial statements (including any notes theretorelated notes) contained included in the Company’s Annual Report on Form 10-K for each Company Reports, when filed, complied in all material respects with all applicable accounting requirements and with the published rules and regulations of the fiscal years ended December 31SEC with respect thereto, 2006 and December 31, 2007 filed with the SEC (i) were has been prepared in accordance with United States generally accepted accounting principles (“GAAP”) (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q of the SEC) applied on a consistent basis throughout the period indicated periods involved (except as may be indicated in the notes thereto) and (ii) each and, when filed, fairly presented fairly, in all material respects, the consolidated financial position of the Company as of the date thereof and the combined/consolidated results of operations, changes in members’ and stockholders’ equity and cash flows of the Company for the fiscal year ended December 31, 2006 or December 31, 2007, as applicable, except as otherwise noted therein. The unaudited consolidated financial statements of the Company (including any notes thereto) for all interim periods included in the Company’s Quarterly Reports on Form 10-Q filed with the SEC since January 1, 2007 (i) were prepared in accordance with GAAP applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and (ii) each presented fairly, in all material respects, the consolidated financial position of the Company and its subsidiaries at the combined/respective date thereof and the consolidated results of operations, changes in members’ its and stockholders’ equity their operations and cash flows of the Company as of and for the periods indicatedindicated (subject, as applicable (subject in the case of unaudited quarterly statements, to normal and recurring year-end adjustments audit adjustments, which were not and are not expected to have a Material Adverse Effectbe material in amount). Except as would not reasonably be expected to have a Material Adverse EffectAs of the date of this Agreement, all of the Company’s subsidiaries are consolidated for accounting purposes. The financial books and records of the Company and each Company Subsidiary its subsidiaries have been, been made available to Newco and are being, maintained true and correct in accordance with applicable legal and accounting requirementsall material respects. (c) The Company has designed established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 and Rule 15d-15 under the Exchange Act Rules 13a-15(e) Act); such disclosure controls and 15d-15(e)) procedures are designed to ensure that material information relating to the Company, including the its consolidated Company Subsidiariessubsidiaries, is made known required to Co-Chief Executive Officers and the Chief Financial Officer of be disclosed by the Company by others within those entities. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting, in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s auditors principal executive officer and its principal financial officer to allow timely decisions regarding required disclosure; and, except as has been disclosed prior to the date of this Agreement in reports filed by the Company with the SEC in accordance with applicable SEC requirements, such disclosure controls and procedures are effective to provide reasonable assurance that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms. With respect to each Annual Report on Form 10-K, each Quarterly Report on Form 10-Q and each amendment of any such report included in the Company Reports filed after the effective date of the Xxxxxxxx-Xxxxx Act of 2002, the principal executive officer and the audit committee principal financial officer of Company have made all certifications required by the Xxxxxxxx-Xxxxx Act of 2002 and any related rules and regulations promulgated by the SEC. (d) Neither the Company nor any of its subsidiaries nor, to the Knowledge of the Board of Directors Company, any director, officer, agent, employee or other person acting on behalf of the Company (or persons performing the equivalent functions) any of its subsidiaries, has: (i) all significant deficiencies and material weaknesses used any corporate or other funds for unlawful contributions, payments or gifts, or made any unlawful expenditures relating to political activity to government officials or others or established or maintained any unlawful or unrecorded funds, in any case in violation of Section 30A of the Exchange Act; or (ii) accepted or received any unlawful contributions, payments, gifts or expenditures. Except as set forth in the design or operation Company Reports filed by the Company and publicly available prior to the date of internal control over financial reporting which are reasonably likely to adversely affect this Agreement (the “Filed Company Reports”), in the period between the Company’s ability proxy statement dated June 20, 2005 and the date of this Agreement, no event has occurred that would be required to recordbe reported under “Certain Relationships and Related Transactions” pursuant to Item 404 of Regulation S-K promulgated by the SEC. (e) Neither the Company nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, processabsolute, summarize contingent or otherwise), except liabilities or obligations: (i) as and report financial information to the extent set forth on the audited consolidated balance sheet of the Company and its subsidiaries as of December 31, 2004 (such balance sheet, the “Balance Sheet”, and such date, the “Balance Sheet Date”) (including the notes thereto) included in the Filed Company Reports; or (ii) any fraud, whether or not material, that involves management or other employees who have a significant role incurred after the Balance Sheet Date and prior to the date of this Agreement in the ordinary course of business consistent with past practice, none of which individually is material to the business, results of operations or financial condition of the Company internal control over financial reportingand its subsidiaries, taken as a whole, or (iii) incurred after the date hereof and permitted under Section 5.01 hereof. (f) The Company has made available to Newco a complete and correct copy of any amendments or modifications which have not yet been filed with the SEC to Contracts which previously had been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act.

SEC Filings; Financial Statements; Internal Controls. (a) The Other than the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and September 30, 2005, the Company has filed all forms, reports, statements periodic and other documents current reports required to be filed by it with the SEC since August 16(all such filed reports, 2006 (collectivelytogether with the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2005, June 30, 2005 and September 30, 2005, when filed, the “SEC Reports”). None of the Company’s Subsidiaries is required to file reports with the SEC pursuant to the Exchange Act. Each of the SEC Reports, as amended prior to the date of this Agreementamended, complied or will comply as to form in all material respects with the applicable requirements of the Securities Exchange Act and the Exchange Act, each rules and regulations promulgated thereunder as in effect on the date so filed. None of the SEC Reports contained, contained or will contain when filed as finally or, if amended prior to the date hereof, as of this Agreementthe date of such amendment, any untrue statement of a material fact or omitted to state a material fact required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the date of this Agreement, there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to the SEC Reports. To the Knowledge of the Company, none of the SEC Reports is the subject of ongoing SEC review. (b) The audited consolidated financial statements of the Company (including any related notes thereto), and the unaudited consolidated financial statements of the Company (including any related notes thereto) contained for all interim periods, included in the Company’s Annual Report on Form 10-K for each of the fiscal years ended December 31SEC Reports, 2006 and December 31, 2007 filed with the SEC (i) were prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the period indicated (except as may be indicated in the notes thereto) and (ii) each presented fairly, in all material respects, the consolidated financial position of the Company as of the date thereof and the combined/consolidated results of operations, changes in members’ and stockholders’ equity and cash flows of the Company for the fiscal year ended December 31, 2006 or December 31, 2007, as applicable, except as otherwise noted therein. The unaudited consolidated financial statements of the Company (including any notes related thereto) for all interim the periods ended March 31, 2005, June 30, 2005 and September 30, 2005, in the forms to be included in the Company’s Quarterly Reports on Form 10-Q filed with for the SEC since January 1quarter ended March 31, 2007 2005, June 30, 2005 or September 30, 2005, as applicable (i) were collectively, the “Financial Statements”), have been, or will have been, prepared in accordance with GAAP generally accepted accounting principles as applied in the United States of America (“GAAP”) in all material respects applied on a consistent basis throughout during the periods indicated involved (except as may be indicated otherwise noted therein and, in the notes theretocase of the unaudited consolidated financial statements, subject to normal year-end adjustments) and (ii) each presented fairly, fairly present in all material respects, respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the combined/respective dates thereof and the consolidated results of operations, changes in members’ and stockholders’ equity operations and cash flows of the Company as of and for the periods indicated, as applicable (subject to normal and recurring year-end adjustments which were not and are not expected to have a Material Adverse Effect). Except as would not reasonably be expected to have a Material Adverse Effect, the books and records of the Company and each Company Subsidiary have been, and are being, maintained in accordance with applicable legal and accounting requirementspresented therein. (c) The Company has designed disclosure controls and procedures (as defined is in Exchange Act Rules 13a-15(ecompliance in all material respects with Section 13(b)(2) and 15d-15(e)) to ensure that material information relating to the Company, including the consolidated Company Subsidiaries, is made known to Co-Chief Executive Officers and the Chief Financial Officer of the Company by others within those entities. The Company has disclosed, based on its most recent evaluation of internal control over financial reporting, to the Company’s auditors and the audit committee of the Board of Directors of the Company (or persons performing the equivalent functions) (i) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company internal control over financial reportingExchange Act.