THE
DISCLOSED LITIGATION FROM THAT DESCRIBED ON SCHEDULE 4.01(F) HERETO.
69
(G)
FINANCIAL STATEMENTS. (I) (A) THE CONSOLIDATED BALANCE SHEET OF
BMCA AND ITS SUBSIDIARIES AS OF DECEMBER 31, 2006, AND THE RELATED CONSOLIDATED
STATEMENT OF INCOME AND CONSOLIDATED STATEMENT OF CASH FLOWS OF BMCA AND ITS
SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED, ACCOMPANIED BY AN UNQUALIFIED
OPINION OF ERNST & YOUNG LLP, INDEPENDENT PUBLIC ACCOUNTANTS, COPIES OF WHICH
HAVE BEEN FURNISHED TO EACH LENDER PARTY, FAIRLY PRESENT THE CONSOLIDATED
FINANCIAL CONDITION OF BMCA AND ITS SUBSIDIARIES AS AT SUCH DATE AND THE
CONSOLIDATED RESULTS OF OPERATIONS OF BMCA AND ITS SUBSIDIARIES FOR THE PERIOD
ENDED ON SUCH DATE, ALL IN ACCORDANCE WITH GAAP, AND (B) SINCE DECEMBER 31,
2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE.
(II)
THE CONSOLIDATED FORECASTED BALANCE SHEETS, STATEMENTS OF INCOME
AND STATEMENTS OF CASH FLOWS OF BMCA AND ITS SUBSIDIARIES DELIVERED TO THE
LENDER PARTIES IN FEBRUARY 2007, AND ALL OTHER WRITTEN INFORMATION IN CONNECTION
THEREWITH, OR OTHERWISE REQUIRED TO BE DELIVERED PURSUANT TO SECTION 5.03 WERE
PREPARED IN GOOD FAITH ON THE BASIS OF THE ASSUMPTIONS STATED THEREIN, WHICH
ASSUMPTIONS WERE FAIR IN LIGHT OF THE CONDITIONS EXISTING AT THE TIME OF
DELIVERY OF SUCH FORECASTS, AND REPRESENTED, AT THE TIME OF DELIVERY, BMCA'S
GOOD FAITH AND REASONABLE ESTIMATE OF THE FUTURE FINANCIAL PERFORMANCE OF BMCA
AND ITS SUBSIDIARIES.
(III)
NO WRITTEN INFORMATION, EXHIBIT OR REPORT DELIVERED OR FURNISHED
BY OR ON BEHALF OF ANY LOAN PARTY TO ANY AGENT OR ANY LENDER PARTY IN CONNECTION
WITH THE NEGOTIATION AND SYNDICATION OF THE LOAN DOCUMENTS OR PURSUANT TO THE
TERMS OF THE LOAN DOCUMENTS, INCLUDING WITHOUT LIMITATION THE INFORMATION
MEMORANDUM WHEN DELIVERED, CONTAINED OR WILL CONTAIN (WHEN TAKEN TOGETHER) AT
THE TIME SUCH INFORMATION WAS OR WILL BE DELIVERED OR FURNISHED ANY UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL FACT NECESSARY TO
MAKE THE STATEMENTS MADE THEREIN AT THE TIME MADE NOT MISLEADING.
(IV)
NO BORROWER IS ENGAGED IN THE BUSINESS OF EXTENDING CREDIT FOR THE
PURPOSE OF PURCHASING OR CARRYING MARGIN STOCK, AND EXCEPT FOR THE PURCHASE OF
THE SHARES OF ELK, NO PROCEEDS OF ANY ADVANCE OR DRAWINGS UNDER ANY LETTER OF
CREDIT WILL BE USED TO PURCHASE OR CARRY ANY MARGIN STOCK OR TO EXTEND CREDIT TO
OTHERS FOR THE PURPOSE OF PURCHASING OR CARRYING ANY MARGIN STOCK.
(H)
INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
NEITHER ANY LOAN PARTY NOR ANY OF ITS SUBSIDIARIES IS AN "INVESTMENT COMPANY",
OR AN "AFFILIATED PERSON" OF, OR "PROMOTER" OR "PRINCIPAL UNDERWRITER" FOR, AN
"INVESTMENT COMPANY", AS SUCH TERMS ARE DEFINED IN THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED. NEITHER ANY LOAN PARTY NOR ANY OF ITS SUBSIDIARIES IS A
"HOLDING COMPANY", OR A "SUBSIDIARY COMPANY" OF A "HOLDING COMPANY", OR AN
"AFFILIATE" OF A "HOLDING COMPANY" OR OF A "SUBSIDIARY COMPANY" OF A "HOLDING
COMPANY", AS SUCH TERMS ARE DEFINED IN THE PUBLIC UTILITY HOLDING COMPANY ACT OF
2005, AS AMENDED. NEITHER THE