AT FEBRUARY 28, 2009 (SUCH FINANCIAL STATEMENTS
PROVIDING SALES AND PRE-TAX INCOME INFORMATION), COPIES OF WHICH HAVE BEEN
DELIVERED TO EACH LENDER, WERE PREPARED IN ACCORDANCE WITH GAAP (SUBJECT, IN THE
CASE OF SUCH UNAUDITED STATEMENTS, TO THE ABSENCE OF FOOTNOTES AND TO NORMAL
YEAR-END ADJUSTMENTS) AND PRESENT FAIRLY THE CONSOLIDATED FINANCIAL CONDITION OF
THE COMPANY AND ITS SUBSIDIARIES AS AT SUCH DATES AND THE RESULTS OF THEIR
OPERATIONS FOR THE PERIODS THEN ENDED.
THE COMPANY HAS DELIVERED TO THE
ADMINISTRATIVE AGENT A DRAFT OF THE AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF
THE COMPANY AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2008 (THE "DRAFT 2008
FINANCIAL STATEMENTS"), WHICH WERE PREPARED IN ACCORDANCE WITH GAAP, THE
FINANCIAL RESULTS OF WHICH ARE CONSISTENT IN ALL RESPECTS WITH THE PRELIMINARY
CONSOLIDATED FINANCIAL INFORMATION PREVIOUSLY PROVIDED BY THE COMPANY WITH
RESPECT TO THE FINANCIAL PERFORMANCE OF THE COMPANY AND ITS SUBSIDIARIES IN
FISCAL YEAR 2008.
THE FINAL AUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE
COMPANY AND ITS SUBSIDIARIES AS AT DECEMBER 31, 2008 (THE "FINAL 2008 FINANCIAL
STATEMENTS") WILL BE DELIVERED TO THE ADMINISTRATIVE AGENT BY APRIL 20, 2009
(CERTIFIED WITHOUT ADVERSE REFERENCE TO GOING CONCERN VALUE AND WITHOUT
QUALIFICATION BY DELOITTE & TOUCHE LLP OR OTHER INDEPENDENT AUDITORS OF
RECOGNIZED STANDING SELECTED BY THE COMPANY AND REASONABLY ACCEPTABLE TO THE
ADMINISTRATIVE AGENT) AND SUCH FINAL 2008 FINANCIAL STATEMENTS WILL HAVE NO
MATERIAL CHANGES (TO THE EXTENT ADVERSE TO ANY LOAN PARTY) FROM THE DRAFT 2008
FINANCIAL STATEMENTS ON WHICH THE ADMINISTRATIVE AGENT AND EACH LENDER HAS
RELIED IN DETERMINING TO ENTER INTO THIS AGREEMENT AND TO PROVIDE THE
COMMITMENTS.
39
9.5
NO MATERIAL ADVERSE CHANGE.
SINCE
DECEMBER 31, 2008 THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE BUSINESS,
ASSETS, LIABILITIES, PROPERTIES, CONDITION (FINANCIAL OR OTHERWISE) OR RESULTS
OF OPERATIONS OF THE LOAN PARTIES TAKEN AS A WHOLE.
9.6
LITIGATION AND CONTINGENT LIABILITIES.
NO
LITIGATION (INCLUDING DERIVATIVE ACTIONS), ARBITRATION PROCEEDING OR
GOVERNMENTAL INVESTIGATION OR PROCEEDING IS PENDING OR, TO THE COMPANY'S
KNOWLEDGE, THREATENED AGAINST ANY LOAN PARTY WHICH MIGHT REASONABLY BE EXPECTED
TO HAVE A MATERIAL ADVERSE EFFECT, EXCEPT AS SET FORTH IN SCHEDULE 9.6.
OTHER
THAN ANY LIABILITY INCIDENT TO SUCH LITIGATION OR PROCEEDINGS, NO LOAN PARTY HAS
ANY MATERIAL CONTINGENT LIABILITIES NOT LISTED ON SCHEDULE 9.6 OR PERMITTED BY
SECTION 11.1.
9.7
OWNERSHIP OF PROPERTIES; LIENS.
EACH LOAN
PARTY OWNS GOOD AND, IN THE CASE OF REAL PROPERTY, MARKETABLE TITLE TO ALL OF
ITS MATERIAL PROPERTIES AND ASSETS, REAL AND PERSONAL, TANGIBLE AND INTANGIBLE,
OF ANY NATURE WHATSOEVER (INCLUDING PATENTS, TRADEMARKS, TRADE NAMES, SERVICE
MARKS AND COPYRIGHTS), FREE AND CLEAR OF ALL LIENS, CHARGES AND CLAIMS
(INCLUDING INFRINGEMENT CLAIMS WITH RESPECT TO PATENTS, TRADEMARKS, SERVICE
MARKS, COPYRIGHTS AND THE LIKE) OTHER THAN PERMITTED LIENS.
9.8
EQUITY OWNERSHIP; SUBSIDIARIES.
ALL ISSUED
AND OUTSTANDING CAPITAL SECURITIES OF THE LOAN PARTIES (OTHER THAN THE COMPANY)
ARE DULY AUTHORIZED AND VALIDLY ISSUED, FULLY-PAID, NON-ASSESSABLE, AND FREE AND
CLEAR OF ALL LIENS OTHER THAN THOSE IN FAVOR OF THE ADMINISTRATIVE AGENT, AND
SUCH SECURITIES WERE ISSUED IN