DELIVERED TO LENDER TRUE, COMPLETE AND CORRECT COPIES
OF THE CONSOLIDATED BALANCE SHEET ("BALANCE SHEET") OF BORROWER AS OF
DECEMBER 31, 2008 ("BALANCE SHEET DATE") AND THE RELATED STATEMENTS OF
OPERATIONS AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED (THE "FINANCIAL
STATEMENTS").
EXCEPT AS SET FORTH ON SCHEDULE 4.8(A), THE UNAUDITED FINANCIAL
STATEMENTS FAIRLY AND ACCURATELY PRESENT IN ALL MATERIAL RESPECTS THE FINANCIAL
POSITION, LIABILITIES AND OBLIGATIONS AND THE RESULTS OF OPERATIONS AS OF THE
DATES AND FOR THE PERIODS INDICATED, AND IN ACCORDANCE WITH GAAP, SUBJECT TO
ADJUSTMENTS.
EXCEPT AS DISCLOSED ON THE BALANCE SHEET OR THE FINANCIAL
STATEMENTS OR ON SCHEDULE 4.8(A), AS OF THE BALANCE SHEET DATE AND THE DATE
HEREOF (X) BORROWER HAS HAD NO OR HAS NO LIABILITIES (WHETHER MATURED OR
UNMATURED, FIXED OR CONTINGENT, LIQUIDATED OR UNLIQUIDATED OR OTHERWISE), OR
OBLIGATIONS, EXCEPT AS MAY HAVE BEEN INCURRED IN THE ORDINARY COURSE OF BUSINESS
FOLLOWING THE BALANCE SHEET DATE, AND (Y) BORROWER HAD OR HAS RESERVED 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;
(D)
EXCEPT FOR (I) THE INDEBTEDNESS EVIDENCED BY THE NOTE, THE
COMERICA AGREEMENT, AND THE GEMINO 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)
THERE HAS BEEN NO CHANGE IN THE RESPECTIVE ACCOUNTING