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 BRIDGE LOAN 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 LOANS, 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
50
or instrument containing restrictions, or subject to any charter or corporate
restriction, that could be reasonably expected to have a Material Adverse
Effect.
(J)
SOLVENCY. BMCA AND ITS SUBSIDIARIES, TAKEN AS A WHOLE ARE SOLVENT
(ASSUMING THAT NEITHER BMCA NOR ANY OF ITS SUBSIDIARIES HAS ANY LIABILITY IN
RESPECT OF ASBESTOS