BREACH OR DEFAULT UNDER ANY CONTRACT ON THE PART OF THE OTHER PARTIES THERETO,
AND NO EVENT HAS OCCURRED WHICH WITH THE GIVING OF NOTICE OR THE LAPSE OF TIME,
OR BOTH, WOULD CONSTITUTE
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A DEFAULT UNDER ANY CONTRACT.
EXCEPT AS SET FORTH IN SCHEDULE 4.10, THERE IS NO
DISPUTE BETWEEN THE PARTIES TO ANY CONTRACT AS TO THE INTERPRETATION THEREOF OR
AS TO WHETHER ANY PARTY IS IN BREACH OR DEFAULT THEREUNDER, AND NO PARTY TO ANY
CONTRACT HAS INDICATED TO SIRIUS ITS INTENTION TO TERMINATE ANY CONTRACT.
SIRIUS IS NOT A PARTY TO ANY COVENANT OR OBLIGATION OF ANY NATURE LIMITING THE
FREEDOM OF SIRIUS TO COMPETE IN ANY LINE OF BUSINESS AND BINDING ON BUYER AFTER
THE CLOSING.
COMPLETE AND CORRECT COPIES OF ALL CONTRACTS LISTED OR REFERRED TO
IN SCHEDULE 4.10 HAVE EITHER BEEN MADE AVAILABLE TO BUYER OR, IF NOT PROVIDED
BECAUSE OF PENDING ANTITRUST MATTERS OR CONFIDENTIALITY REQUIREMENTS, SHALL BE
PROVIDED AS SOON AS PRACTICABLE TO THE EXTENT PERMITTED BY THE ANTITRUST
AUTHORITIES OR THE COUNTERPARTIES TO SUCH CONTRACTS, AS APPLICABLE.
SECTION 4.11
TRADEMARKS, TRADE NAMES AND INTELLECTUAL PROPERTY.
SCHEDULE 4.11 CONTAINS AN ACCURATE AND COMPLETE LIST OF (A) ALL REGISTERED
UNITED STATES AND FOREIGN TRADEMARKS, SERVICEMARKS, TRADE NAMES, FICTITIOUS
NAMES, BRAND NAMES, BUSINESS NAMES, DESIGNS AND LOGOS OWNED OR USED BY SIRIUS IN
CONNECTION WITH ITS BUSINESS, AND ALL REGISTRATIONS THEREOF, (B) ALL REGISTERED
COPYRIGHTS OWNED OR USED BY SIRIUS IN CONNECTION WITH ITS BUSINESS, AND (C) ALL
PATENTS (INCLUDING ALL REISSUES, DIVISIONS, CONTINUATIONS AND EXTENSIONS
THEREOF) AND PENDING PATENT APPLICATIONS OWNED OR USED BY SIRIUS IN CONNECTION
WITH ITS BUSINESS (COLLECTIVELY, INCLUDING ALL RIGHTS TO ANY OF THE FOREGOING,
THE "SCHEDULED INTELLECTUAL PROPERTY").
SIRIUS HAS THE RIGHT TO USE ALL
SCHEDULED INTELLECTUAL PROPERTY, AS WELL AS ALL OTHER INTELLECTUAL PROPERTY USED
BY SIRIUS IN CONNECTION WITH ITS BUSINESS, IN THE CONDUCT OF ITS BUSINESS AS IT
IS CURRENTLY BEING CONDUCTED, AND THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT WILL NOT HAVE THE EFFECT OF TERMINATING ANY SUCH RIGHT.
EXCEPT AS SET
FORTH IN SCHEDULE 4.11, THERE IS NO PENDING OR THREATENED ACTION OR CLAIM THAT
WOULD IMPAIR ANY SUCH RIGHT.
SECTION 4.12
FINANCIAL STATEMENTS; BUDGET.
(A)
THE UNAUDITED FINANCIAL STATEMENTS OF SIRIUS AS OF AND FOR THE
THREE YEARS ENDED DECEMBER 31, 2006 AND AS OF AND FOR THE THREE MONTHS ENDED
MARCH 31, 2007 (THE "UNAUDITED FINANCIAL STATEMENTS") PRESENT FAIRLY, IN ALL
MATERIAL RESPECTS, THE FINANCIAL CONDITION OF SIRIUS AT THE RESPECTIVE DATES OF
THE BALANCE SHEETS INCLUDED THEREIN AND THE RESULTS OF OPERATIONS, CASH FLOWS
AND MEMBERS' EQUITY OF SIRIUS FOR THE RESPECTIVE PERIODS SET FORTH THEREIN AND
HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
IN THE UNITED STATES CONSISTENTLY APPLIED ("GAAP"), SUBJECT TO THE ABSENCE OF
NOTES AND NORMAL RECURRING YEAR END ADJUSTMENTS (THE EFFECT OF WHICH WILL NOT,
INDIVIDUALLY OR IN THE AGGREGATE, BE MATERIALLY ADVERSE).
A COPY OF THE
UNAUDITED FINANCIAL STATEMENTS IS ATTACHED HERETO AS SCHEDULE 4.12(A).
(B)
AT THE CLOSING, THE