OF
THEIR RESPECTIVE SUBSIDIARIES IS A PARTY OR OF WHICH ANY OF THEIR RESPECTIVE
PROPERTIES OR ASSETS IS SUBJECT, INCLUDING ORDINARY ROUTINE LITIGATION
INCIDENTAL TO THE BUSINESS, ARE NOT EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT.
(V)
THE ACCOUNTANTS OF THE COMPANY AND THE
GUARANTOR WHO CERTIFIED THE FINANCIAL STATEMENTS(DEFINED BELOW) ARE INDEPENDENT
PUBLIC ACCOUNTANTS OF THE COMPANY, THE GUARANTOR AND THEIR RESPECTIVE
SUBSIDIARIES WITHIN THE MEANING OF THE SECURITIES ACT, AND THE
12
RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") THEREUNDER.
(W)
THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS
(INCLUDING THE NOTES THERETO) AND SCHEDULES OF THE GUARANTOR ITS CONSOLIDATED
SUBSIDIARIES FOR THE FISCAL YEAR ENDED JUNE 30, 2008 (THE "FINANCIAL
STATEMENTS") AND THE INTERIM UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE
GUARANTOR AND ITS CONSOLIDATED SUBSIDIARIES FOR THE QUARTERS ENDED SEPTEMBER 30,
2008, DECEMBER 31, 2008 AND MARCH 31, 2008 (THE "INTERIM FINANCIAL STATEMENTS")
PROVIDED TO TABERNA ARE THE MOST RECENT AVAILABLE AUDITED AND UNAUDITED
CONSOLIDATED FINANCIAL STATEMENTS OF THE GUARANTOR AND EACH OF ITS CONSOLIDATED
SUBSIDIARIES, INCLUDING THE COMPANY, RESPECTIVELY, AND FAIRLY PRESENT IN ALL
MATERIAL RESPECTS, IN ACCORDANCE WITH U.S. GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES ("GAAP"), THE FINANCIAL POSITION OF THE GUARANTOR AND ITS
CONSOLIDATED SUBSIDIARIES AND THE RESULTS OF OPERATIONS AND CHANGES IN FINANCIAL
CONDITION AS OF THE DATES AND FOR THE PERIODS THEREIN SPECIFIED, SUBJECT, IN THE
CASE OF INTERIM FINANCIAL STATEMENTS, TO YEAR-END ADJUSTMENTS (WHICH ARE
EXPECTED TO CONSIST SOLELY OF NORMAL RECURRING ADJUSTMENTS).
SUCH CONSOLIDATED
FINANCIAL STATEMENTS AND SCHEDULES HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP
CONSISTENTLY APPLIED THROUGHOUT THE PERIODS INVOLVED (EXCEPT AS OTHERWISE NOTED
THEREIN).
(X)
NEITHER THE COMPANY NOR THE GUARANTOR HAS
ANY MATERIAL LIABILITY, WHETHER ASSERTED OR, TO THE KNOWLEDGE OF THE COMPANY AND
GUARANTOR, UNASSERTED, WHETHER ABSOLUTE OR CONTINGENT, WHETHER ACCRUED OR
UNACCRUED, WHETHER LIQUIDATED OR UNLIQUIDATED, AND WHETHER DUE OR TO BECOME DUE,
INCLUDING ANY LIABILITY FOR TAXES (AND, TO THE KNOWLEDGE OF THE COMPANY AND
GUARANTOR, THERE IS NO PAST OR PRESENT FACT, SITUATION, CIRCUMSTANCE, CONDITION
OR OTHER BASIS FOR ANY PRESENT OR FUTURE ACTION, SUIT, PROCEEDING, HEARING,
CHARGE, COMPLAINT, CLAIM OR DEMAND AGAINST THE COMPANY OR THE GUARANTOR THAT
COULD GIVE RISE TO ANY SUCH LIABILITY), EXCEPT FOR (I) LIABILITIES SET FORTH IN
THE FINANCIAL STATEMENTS, THE INTERIM FINANCIAL STATEMENTS OR AS DISCLOSED IN
THE COMPANY'S OR GUARANTOR'S 1934 ACT REPORTS (II) LIABILITIES RELATING TO THE
SECURITIES AND THE GUARANTEE; AND (III) NORMAL FLUCTUATIONS IN THE AMOUNT OF THE
LIABILITIES REFERRED TO IN CLAUSE (I) ABOVE OCCURRING IN THE ORDINARY COURSE OF
BUSINESS OF THE COMPANY AND THE GUARANTOR SINCE THE DATE OF THE MOST RECENT
BALANCE SHEET INCLUDED IN SUCH FINANCIAL STATEMENTS.
(Y)
SINCE THE RESPECTIVE DATES OF THE MOST
RECENT INTERIM FINANCIAL STATEMENTS, THERE HAS NOT BEEN (A) ANY MATERIAL ADVERSE
CHANGE (OTHER THAN ANY MATERIAL ADVERSE CHANGE DIRECTLY OR INDIRECTLY
ATTRIBUTABLE TO THE PASSAGE OF TIME IN CONNECTION WITH THE EXISTENCE OF ANY
DEFAULT UNDER THE CREDIT FACILITIES) OR (B) ANY DIVIDEND OR DISTRIBUTION OF ANY
KIND DECLARED, PAID