TO PLEDGED EQUITY IN FOREIGN SUBSIDIARIES.
(F)
THE CONSOLIDATED BALANCE SHEET OF THE
BORROWER AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2008, AND THE RELATED
CONSOLIDATED STATEMENTS OF INCOME AND CASH FLOWS OF THE BORROWER AND ITS
SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED, WHICH HAVE BEEN FURNISHED TO EACH
LENDER PARTY, PRESENT FAIRLY THE FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OF THE BORROWER AND ITS SUBSIDIARIES AS OF SUCH DATE AND FOR SUCH PERIOD, ALL IN
ACCORDANCE WITH GAAP CONSISTENTLY APPLIED.
SINCE DECEMBER 31, 2008, OTHER THAN
THE COMMENCEMENT OF THE CASES AND THE MATTERS DISCLOSED IN THE BORROWER'S ANNUAL
REPORT ON FORM 10-K FOR THE FISCAL YEAR ENDED DECEMBER 31, 2008, THERE HAS NOT
OCCURRED A MATERIAL ADVERSE CHANGE.
(G)
THE DIP BUDGET AND ALL PROJECTED
CONSOLIDATED BALANCE SHEETS, INCOME STATEMENTS AND CASH FLOW STATEMENTS OF THE
BORROWER AND ITS SUBSIDIARIES DELIVERED TO THE LENDER PARTIES 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 DIP BUDGET OR PROJECTIONS, AS THE CASE MAY BE, IT BEING
UNDERSTOOD THAT PROJECTIONS ARE SUBJECT TO SIGNIFICANT UNCERTAINTIES AND
CONTINGENCIES MANY OF WHICH ARE BEYOND THE BORROWER'S CONTROL, AND THAT NO
GUARANTEES CAN BE GIVEN THAT THE FORECASTS WILL BE REALIZED.
(H)
NO INFORMATION, EXHIBIT OR REPORT FURNISHED
BY OR ON BEHALF OF THE BORROWER TO THE ADMINISTRATIVE AGENT OR ANY LENDER IN
CONNECTION WITH THE NEGOTIATION AND SYNDICATION OF THE LOAN DOCUMENTS OR
PURSUANT TO THE TERMS OF THE LOAN DOCUMENTS CONTAINED ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMITTED TO STATE A MATERIAL FACT NECESSARY TO MAKE THE
STATEMENTS, TAKEN AS A WHOLE, MADE THEREIN NOT MISLEADING IN ANY MATERIAL
RESPECT IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH SUCH STATEMENTS WERE MADE.
73
(I)
EXCEPT AS SET FORTH ON SCHEDULE
4.01(I) AND THE CASES, THERE IS NO ACTION, SUIT, INVESTIGATION, LITIGATION OR
PROCEEDING AFFECTING THE BORROWER OR ANY OF ITS SUBSIDIARIES, INCLUDING ANY
ENVIRONMENTAL ACTION, PENDING OR THREATENED BEFORE ANY COURT, GOVERNMENTAL
AUTHORITY OR ARBITRATOR THAT (I) COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT OR (II) PURPORTS TO ADVERSELY AFFECT THE LEGALITY, VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT, ANY NOTE OR ANY OTHER LOAN DOCUMENT.
(J)
THE BORROWER IS NOT ENGAGED IN THE
BUSINESS OF EXTENDING CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING MARGIN
STOCK, AND NO PROCEEDS OF ANY ADVANCE OR ANY DRAWING 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.
(K)
THE BORROWER AND EACH OF ITS SUBSIDIARIES
OWNS, OR IS LICENSED TO USE, ALL INTELLECTUAL PROPERTY NECESSARY FOR THE CONDUCT
OF ITS BUSINESS AS CURRENTLY CONDUCTED EXCEPT FOR THOSE THE FAILURE TO OWN OR
LICENSE WHICH COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE
EFFECT.
NO CLAIM HAS BEEN ASSERTED AND