OR
DISCLOSED ALL LIABILITY RESERVES THAT ARE REQUIRED TO BE RESERVED OR DISCLOSED
IN ACCORDANCE WITH GAAP.
(B)
NONE OF THE INFORMATION (FINANCIAL OR OTHERWISE) FURNISHED BY OR
ON BEHALF OF BORROWER TO LENDER HEREUNDER OR IN CONNECTION WITH THE LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY CONTAINS ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY
TO MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN NOT MISLEADING IN THE LIGHT
OF THE CIRCUMSTANCES UNDER WHICH SUCH STATEMENTS WERE MADE.
EXCEPT AS SET FORTH
ON SCHEDULE 4.8(B), TO THE KNOWLEDGE OF BORROWER, THERE ARE NO FACTS THAT COULD
RESULT, INDIVIDUALLY OR IN THE AGGREGATE, IN A MATERIAL ADVERSE EFFECT AND HAVE
NOT BEEN SET FORTH IN THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR IN OTHER
DOCUMENTS DELIVERED TO LENDER IN CONNECTION HEREWITH.
4.9.
Absence of Changes.
Except as set forth on Schedule 4.9, since the
Balance Sheet Date to the date hereof and other than pursuant to transactions
contemplated by this Agreement and the Related Agreements:
(A)
THERE HAS BEEN NO ACTION, EVENT OR OCCURRENCE WHICH HAS HAD A
MATERIAL ADVERSE EFFECT;
(B)
BORROWER HAS NOT PERMITTED ANY OF ITS ASSETS, TANGIBLE OR
INTANGIBLE, TO BECOME SUBJECT TO ANY ENCUMBRANCES, EXCEPT FOR (I) LIENS FOR
CURRENT TAXES AND ASSESSMENTS NOT YET DUE, (II) PERMITTED LIENS AND (III) OTHER
ENCUMBRANCES WHICH ARE NOT REASONABLY LIKELY, INDIVIDUALLY OR IN THE AGGREGATE,
TO HAVE A MATERIAL ADVERSE EFFECT;
(C)
THERE HAS BEEN NO SALE, ASSIGNMENT, MORTGAGE, PLEDGE, LICENSE OR
TRANSFER OF ANY TANGIBLE OR INTANGIBLE ASSETS OF BORROWER EXCEPT AS NOT
PROHIBITED BY THIS AGREEMENT;
12
(D)
EXCEPT FOR (I) THE INDEBTEDNESS EVIDENCED BY THE NOTE, THE
COMERICA AGREEMENT, AND THE GE CAPITAL FACILITY; AND (B) LIABILITIES INCURRED,
AND LIABILITIES UNDER CONTRACTS OR CAPITALIZED LEASE OBLIGATIONS, IN EACH CASE,
ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS, BORROWER HAS NOT INCURRED ANY
INDEBTEDNESS TO ANY PERSON, OR MADE ANY AGREEMENT OR COMMITMENT THEREFOR;
(E)
SINCE DECEMBER 31, 2007, THERE HAS BEEN NO CHANGE IN THE
RESPECTIVE ACCOUNTING METHODS, PRACTICES OR POLICIES FOLLOWED BY BORROWER, OR
ANY CHANGE IN DEPRECIATION OR AMORTIZATION POLICIES OR RATES THERETOFORE ADOPTED
UNLESS REQUIRED BY GAAP; AND
(F)
BORROWER IS NOT IN DEFAULT IN ANY RESPECT UNDER ANY CONTRACT
EXCEPT WHERE ANY SUCH DEFAULT WOULD NOT REASONABLY BE EXPECTED TO, INDIVIDUALLY
OR IN THE AGGREGATE, RESULT IN A MATERIAL ADVERSE EFFECT.
4.10.
Litigation.
Except as set forth in Schedule 4.10 or as described in
filings with the SEC, there is no civil action, suit, claim, hearing,
investigation or proceeding pending (for which proper service has been made) or,
to the knowledge of Borrower, threatened against Borrower, or any property or
assets owned or possessed by Borrower, or, to the extent relating in any manner
to Borrower or the ability to consummate the transactions hereunder, any of
Borrower executives that is reasonably likely, either individually or in the
aggregate, to (a) adversely affect the validity of this Agreement, the Note