FINANCIAL CONDITION OF BMCA AND ITS SUBSIDIARIES AS AT SUCH
DATE AND THE CONSOLIDATED RESULTS OF OPERATIONS OF BMCA AND ITS SUBSIDIARIES FOR
THE PERIOD ENDED ON SUCH DATE, ALL IN ACCORDANCE WITH GAAP, AND (B) SINCE
DECEMBER 31, 2006, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE.
(II)
THE CONSOLIDATED FORECASTED BALANCE
SHEETS, STATEMENTS OF INCOME AND STATEMENTS OF CASH FLOWS OF BMCA AND ITS
SUBSIDIARIES DELIVERED TO THE LENDERS IN FEBRUARY 2007, AND ALL OTHER WRITTEN
INFORMATION IN CONNECTION THEREWITH, OR OTHERWISE REQUIRED TO BE DELIVERED
PURSUANT TO SECTION 5.03 WERE PREPARED IN GOOD FAITH ON THE BASIS OF THE
ASSUMPTIONS STATED THEREIN, WHICH ASSUMPTIONS WERE FAIR IN LIGHT OF THE
CONDITIONS EXISTING AT THE TIME OF DELIVERY OF SUCH FORECASTS, AND REPRESENTED,
AT THE TIME OF DELIVERY, BMCA'S GOOD FAITH AND REASONABLE ESTIMATE OF THE FUTURE
FINANCIAL PERFORMANCE OF BMCA AND ITS SUBSIDIARIES.
(III)
NO WRITTEN INFORMATION, EXHIBIT OR REPORT
DELIVERED OR FURNISHED BY OR ON BEHALF OF ANY LOAN PARTY TO ANY AGENT OR ANY
LENDER IN CONNECTION WITH THE NEGOTIATION AND SYNDICATION OF THE LOAN DOCUMENTS
OR PURSUANT TO THE TERMS OF THE LOAN DOCUMENTS, INCLUDING WITHOUT LIMITATION THE
INFORMATION MEMORANDUM WHEN DELIVERED, CONTAINED OR WILL CONTAIN (WHEN TAKEN
TOGETHER) AT THE TIME SUCH INFORMATION WAS OR WILL BE DELIVERED OR FURNISHED ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL FACT
NECESSARY TO MAKE THE STATEMENTS MADE THEREIN AT THE TIME MADE NOT MISLEADING.
(IV)
NO BORROWER IS ENGAGED IN THE BUSINESS OF
EXTENDING CREDIT FOR THE PURPOSE OF PURCHASING OR CARRYING MARGIN STOCK, AND
EXCEPT FOR THE PURCHASE OF THE SHARES OF ELK, NO PROCEEDS OF ANY TERM LOAN
ADVANCE WILL BE USED TO PURCHASE OR CARRY ANY MARGIN STOCK OR TO EXTEND CREDIT
TO OTHERS FOR THE PURPOSE OF PURCHASING OR CARRYING ANY MARGIN STOCK.
(H)
INVESTMENT COMPANY ACT; PUBLIC UTILITY
HOLDING COMPANY ACT.
NEITHER ANY LOAN PARTY NOR ANY OF ITS SUBSIDIARIES IS AN
"INVESTMENT COMPANY", OR AN "AFFILIATED PERSON" OF, OR "PROMOTER" OR "PRINCIPAL
UNDERWRITER" FOR, AN "INVESTMENT COMPANY", AS SUCH TERMS ARE DEFINED IN THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED.
NEITHER ANY LOAN PARTY NOR ANY OF
ITS SUBSIDIARIES IS A "HOLDING COMPANY", OR A "SUBSIDIARY COMPANY" OF A "HOLDING
COMPANY", OR AN "AFFILIATE" OF A "HOLDING COMPANY" OR OF A "SUBSIDIARY COMPANY"
OF A "HOLDING COMPANY", AS SUCH TERMS ARE DEFINED IN THE PUBLIC UTILITY HOLDING
COMPANY ACT OF 2005, AS AMENDED.
NEITHER THE MAKING OF ANY TERM LOAN ADVANCES,
NOR THE APPLICATION OF THE PROCEEDS OR REPAYMENT THEREOF BY THE BORROWERS, NOR
THE CONSUMMATION OF THE OTHER TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS,
WILL VIOLATE ANY PROVISION OF ANY SUCH ACT OR ANY RULE, REGULATION OR ORDER OF
THE SECURITIES AND EXCHANGE COMMISSION THEREUNDER.
(I)
NO BURDENSOME RESTRICTIONS.
NEITHER ANY
LOAN PARTY NOR ANY OF ITS SUBSIDIARIES IS A PARTY TO ANY INDENTURE, LOAN OR
CREDIT AGREEMENT OR ANY LEASE OR OTHER AGREEMENT
57
OR INSTRUMENT CONTAINING RESTRICTIONS, OR SUBJECT TO