(II), WHERE SUCH VIOLATION OR DEFAULT WOULD NOT,
SINGLY OR IN THE AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT.
(U)
THERE IS NO ACTION, SUIT OR PROCEEDING BEFORE OR BY ANY
GOVERNMENTAL ENTITY, ARBITRATOR OR COURT, DOMESTIC OR FOREIGN, NOW PENDING OR,
TO THE KNOWLEDGE OF THE COMPANY AFTER DUE INQUIRY, THREATENED AGAINST OR
AFFECTING THE COMPANY OR ANY OF ITS SUBSIDIARIES, EXCEPT FOR SUCH ACTIONS, SUITS
OR PROCEEDINGS THAT, IF ADVERSELY DETERMINED, WOULD NOT, SINGLY OR IN THE
AGGREGATE, ADVERSELY AFFECT THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY
THE OPERATIVE DOCUMENTS OR HAVE A MATERIAL ADVERSE EFFECT; AND THE AGGREGATE OF
ALL PENDING LEGAL OR GOVERNMENTAL PROCEEDINGS TO WHICH THE COMPANY OR ANY OF ITS
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 WHO CERTIFIED THE FINANCIAL
STATEMENTS(DEFINED BELOW) ARE INDEPENDENT ACCOUNTANTS OF THE COMPANY AND ITS
SUBSIDIARIES WITHIN THE MEANING OF THE SECURITIES ACT, AND THE 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 COMPANY AND ITS CONSOLIDATED SUBSIDIARIES FOR THE
FISCAL YEAR ENDED DECEMBER 31, 2007 (THE "FINANCIAL STATEMENTS") AND THE INTERIM
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES FOR THE QUARTER ENDED SEPTEMBER 30, 2008 (THE "INTERIM FINANCIAL
STATEMENTS") PROVIDED TO TABERNA ARE THE MOST RECENT AVAILABLE AUDITED AND
UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS OF THE COMPANY AND ITS CONSOLIDATED
SUBSIDIARIES, RESPECTIVELY, AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS, IN
ACCORDANCE WITH U.S. GENERALLY ACCEPTED ACCOUNTING PRINCIPLES ("GAAP"), THE
FINANCIAL POSITION OF THE COMPANY 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
13
PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED THROUGHOUT THE PERIODS
INVOLVED (EXCEPT AS OTHERWISE NOTED THEREIN).
(X)
NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES HAS ANY MATERIAL
LIABILITY, WHETHER ASSERTED OR 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 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 ANY OF ITS SUBSIDIARIES THAT COULD GIVE RISE TO ANY SUCH
LIABILITY), EXCEPT FOR (I) LIABILITIES SET FORTH IN THE FINANCIAL STATEMENTS OR
THE INTERIM FINANCIAL STATEMENTS AND (II) 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 ALL OF ITS SUBSIDIARIES SINCE THE DATE OF THE
MOST RECENT BALANCE