UNUSUAL FORWARD OR
LONG-TERM COMMITMENT THAT IS NOT REFLECTED IN THE FINANCIAL STATEMENTS OR THE
NOTES THERETO AND WHICH IN ANY SUCH CASE IS REQUIRED BY GAAP SET FORTH THEREIN.
(II)
ON AND AS OF THE CLOSING DATE, THE
PROJECTIONS OF THE BORROWER AND ITS SUBSIDIARIES IS BASED ON GOOD FAITH
ESTIMATES AND ASSUMPTIONS MADE BY THE MANAGEMENT OF THE BORROWER; PROVIDED THAT
THE PROJECTIONS ARE NOT TO BE VIEWED AS FACT AND THAT ACTUAL RESULTS DURING THE
PERIOD OR PERIODS COVERED BY THE FINANCIAL PLAN MAY DIFFER FROM SUCH FINANCIAL
PLAN AND THAT THE DIFFERENCES MAY BE MATERIAL.
(E)
ABSENCE OF MATERIAL ADVERSE EFFECT.
THERE
HAS BEEN NO ACT, CONDITION OR EVENT WHICH HAS HAD OR IS REASONABLY LIKELY TO
HAVE A MATERIAL ADVERSE EFFECT SINCE DECEMBER 31, 2009.
(F)
LITIGATION.
THERE ARE NO LEGAL OR OTHER
PROCEEDINGS OR INVESTIGATIONS PENDING OR, TO THE KNOWLEDGE OF THE BORROWER,
THREATENED AGAINST ANY CREDIT PARTY BEFORE ANY COURT, TRIBUNAL OR REGULATORY
AUTHORITY WHICH WOULD, IF ADVERSELY DETERMINED, ALONE OR TOGETHER, HAVE A
MATERIAL ADVERSE EFFECT.
(G)
GOVERNMENTAL APPROVALS AND FILINGS.
NO
APPROVAL, ORDER, CONSENT, AUTHORIZATION, CERTIFICATE, LICENSE, PERMIT OR
VALIDATION OF, OR EXEMPTION OR OTHER ACTION BY, OR FILING, RECORDING OR
REGISTRATION WITH, OR NOTICE TO, ANY GOVERNMENTAL BODY WHICH HAS NOT BEEN
OBTAINED IS OR WILL BE NECESSARY IN CONNECTION WITH THE EXECUTION AND DELIVERY
OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, CONSUMMATION BY THE CREDIT PARTIES
OF THE TRANSACTIONS HEREIN OR THEREIN CONTEMPLATED, OR PERFORMANCE OF OR
COMPLIANCE WITH THE TERMS AND CONDITIONS HEREOF OR THEREOF, OTHER THAN THE
FILINGS AND RECORDATIONS CONTEMPLATED BY THE SECURITY DOCUMENTATION.
NO CREDIT
PARTY IS SUBJECT TO REGULATION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF
2005, THE FEDERAL POWER ACT, THE INTERSTATE COMMERCE ACT OR THE INVESTMENT
COMPANY ACT OF 1940 OR TO ANY FEDERAL, STATE OR PROVINCIAL STATUTE OR REGULATION
LIMITING THE ABILITY OF THE BORROWER TO INCUR INDEBTEDNESS FOR MONEY BORROWED.
NO CREDIT PARTY IS AN "INVESTMENT COMPANY" OR A COMPANY
44
"CONTROLLED" BY AN "INVESTMENT COMPANY", WITHIN THE MEANING OF THE INVESTMENT
COMPANY ACT OF 1940, AS AMENDED.
(H)
ABSENCE OF CONFLICTS.
THE EXECUTION AND
DELIVERY BY EACH CREDIT PARTY OF THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY AND PERFORMANCE BY IT HEREUNDER AND THEREUNDER WILL NOT
VIOLATE ANY LAW (INCLUDING, WITHOUT LIMITATION, REGULATIONS T, U AND X OF THE
FEDERAL RESERVE BOARD).
EXCEPT AS WOULD NOT BE REASONABLY EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT, THE EXECUTION AND DELIVERY BY EACH CREDIT PARTY OF THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY AND PERFORMANCE BY
IT HEREUNDER AND THEREUNDER, WILL NOT CONFLICT WITH OR RESULT IN A BREACH OF ANY
ORDER, WRIT, INJUNCTION, RESOLUTION, DECREE OR OTHER SIMILAR DOCUMENT OR
INSTRUMENT OF ANY COURT OR GOVERNMENTAL BODY OR ITS CERTIFICATE OF INCORPORATION
OR BY-LAWS OR SIMILAR CONSTITUENT DOCUMENTS OR CREATE (WITH OR WITHOUT THE
GIVING OF NOTICE OR LAPSE OF TIME, OR BOTH) A DEFAULT