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.
(IX)
USE OF PROCEEDS.
THE PROCEEDS OF ANY LOAN SHALL BE USED SOLELY
TO SATISFY 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 THE ISDA
SECURITY DOCUMENTS ARE EFFECTIVE TO CREATE, IN FAVOR OF PARTY A, A LEGAL, VALID
AND ENFORCEABLE LIEN ON ALL OF THE COLLATERAL PURPORTED TO BE COVERED THEREBY,
AND ALL NECESSARY AND APPROPRIATE RECORDINGS AND FILINGS HAVE BEEN MADE IN ALL
NECESSARY AND APPROPRIATE PUBLIC OFFICES, AND ALL OTHER NECESSARY AND
APPROPRIATE ACTION (INCLUDING PAYMENT OF ALL FILING,