AND STATEMENTS OF EQUITY
AND CASH FLOWS OF MX HOLDINGS (I) AS OF AND FOR THE FISCAL YEAR ENDED JUNE 30,
2008, REPORTED BY ERNST & YOUNG LLP, INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) AS
OF AND FOR THE FISCAL QUARTER ENDING MARCH 31, 2009, CERTIFIED BY ITS CHIEF
FINANCIAL OFFICER.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL
RESPECTS, THE FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF MX
HOLDINGS AND ITS SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS IN
ACCORDANCE WITH GAAP, SUBJECT TO YEAR-END AUDIT ADJUSTMENTS AND THE ABSENCE OF
FOOTNOTES IN THE CASE OF THE STATEMENTS REFERRED TO IN CLAUSE (II) ABOVE.
(B)
SINCE MARCH 31, 2009, NO EVENT HAS OCCURRED
WHICH HAS OR COULD REASONABLY BE EXPECTED TO HAVE, AND NO SERIES OF EVENTS HAS
OCCURRED WHICH IN THE AGGREGATE HAS OR COULD REASONABLY BE EXPECTED TO HAVE, A
MATERIAL ADVERSE EFFECT.
(VII)
INSURANCE.
SUCH PARTY MAINTAINS, WITH
FINANCIALLY SOUND AND REPUTABLE INSURANCE COMPANIES, INSURANCE IN SUCH AMOUNTS
AND AGAINST SUCH RISKS AS ARE CUSTOMARILY MAINTAINED BY COMPANIES ENGAGED IN THE
SAME OR SIMILAR BUSINESSES OPERATING IN THE SAME OR SIMILAR LOCATIONS; PROVIDED,
THAT, EXCEPT FOR DIRECTORS AND OFFICERS INSURANCE, SUCH PARTY MAY SELF-INSURE TO
THE SAME EXTENT AS OTHER COMPANIES ENGAGED IN SIMILAR BUSINESSES AND OWNING
SIMILAR PROPERTIES IN THE SAME GENERAL AREAS IN WHICH SUCH PARTY OPERATES.
(VIII)
MATERIAL CONTRACTS AND LICENSES.
(A)
EXHIBIT 5(J)(VIII)(A) SETS FORTH A LIST OF ALL
MATERIAL CONTRACTS AS OF THE DATE OF THIS AGREEMENT.
TO SUCH PARTY'S KNOWLEDGE,
AFTER DUE INQUIRY, AND WITHOUT PREJUDICE TO ANY DISPUTE THAT THEY MAY HAVE WITH
ANY THIRD PARTY, NO BREACH, DEFAULT OR EVENT OF DEFAULT (EACH AS DEFINED IN THE
APPLICABLE MATERIAL CONTRACT) HAS OCCURRED AND IS CONTINUING WITH RESPECT TO ANY
PARTY TO ANY MATERIAL CONTRACT.
(B)
TO SUCH PARTY'S KNOWLEDGE, AFTER DUE INQUIRY,
SUCH PARTY OWNS, HAS THE RIGHT TO USE OR HAS THE BENEFIT OF, ALL PERMITS,
LICENSES, TRADEMARKS, PATENTS, FRANCHISES AND SIMILAR RIGHTS WITH RESPECT TO THE
USAGE OF TECHNOLOGY OR OTHER PROPERTY (OTHER THAN THOSE CONSTITUTING
GOVERNMENTAL APPROVALS) THAT ARE NECESSARY OR ADVISABLE FOR THE CONDUCT OF ITS
BUSINESS AS CONTEMPLATED HEREIN, EXCEPT WHERE IT COULD NOT REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
18
(IX)
USE OF PROCEEDS.
THE PROCEEDS OF ANY LOAN
SHALL BE USED SOLELY TO SATISFY ANY SG NOVATION PAYMENTS, ANY THIRD PARTY
LIQUIDATION PAYMENTS AND ANY THIRD PARTY NOVATION PAYMENTS, EACH IN ACCORDANCE
WITH PART 10.
(X)
TITLE AND ISDA SECURITY DOCUMENTS.
(A)
SUCH PARTY OWNS AND HAS GOOD, LEGAL AND
MARKETABLE TITLE TO THE COLLATERAL PURPORTED TO BE OWNED BY IT AND COVERED BY
THE ISDA SECURITY DOCUMENTS, FREE AND CLEAR OF ALL LIENS OTHER THAN PERMITTED
LIENS.
(B)
UPON THE FILING OF THE UCC-1 FINANCING
STATEMENTS AND THE UCC-3 FINANCING STATEMENT AMENDMENTS DELIVERED PURSUANT TO
THIS AGREEMENT, UPON THE EXECUTION OF THE REQUIRED CONTROL AGREEMENTS AND UPON
ANY NECESSARY FILINGS WITH THE UNITED STATES PATENT AND TRADEMARK OFFICE, THE
PROVISIONS OF