ON THE BASIS OF THE ASSUMPTIONS STATED THEREIN,
WHICH ASSUMPTIONS WERE FAIR IN THE LIGHT OF CONDITIONS EXISTING AT THE TIME OF
DELIVERY OF SUCH FORECASTS, AND REPRESENTED, AT THE TIME OF DELIVERY AND ON THE
EFFECTIVE DATE, THE COMPANY'S BEST ESTIMATE OF THE FUTURE FINANCIAL PERFORMANCE
OF THE COMPANY AND ITS SUBSIDIARIES BUT SUBJECT TO THE INHERENT UNCERTAINTIES
ASSOCIATED WITH ALL FORECASTS OF FUTURE ECONOMIC PERFORMANCE.
(H)
EXCEPT AS SET FORTH IN SCHEDULE 4.01(H), OR
IN THE DISCLOSURES OF THE COMPANY IN ITS PUBLIC FILINGS WITH THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION PRIOR TO THE DATE HEREOF, THERE IS NO ACTION,
SUIT, INVESTIGATION, LITIGATION OR PROCEEDING AFFECTING ANY LOAN PARTY OR ANY OF
ITS SUBSIDIARIES, INCLUDING ANY ENVIRONMENTAL ACTION, PENDING OR, TO THE BEST
KNOWLEDGE OF THE COMPANY, THREATENED BEFORE ANY COURT, GOVERNMENT AGENCY OR
ARBITRATOR THAT (I) COULD BE REASONABLY LIKELY TO HAVE A MATERIAL ADVERSE EFFECT
OR (II) PURPORTS TO AFFECT THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY LOAN
DOCUMENT OR THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(I)
NO LOAN PARTY OR SUBSIDIARY OF A LOAN
PARTY IS ENGAGED IN THE BUSINESS OF EXTENDING CREDIT FOR THE PURPOSE OF
PURCHASING OR CARRYING MARGIN STOCK (OTHER THAN PURCHASES OF THE SHARES OF
COMMON STOCK OF THE COMPANY PERMITTED BY SECTION 5.02(G), ALL SUCH SHARES TO BE
RETIRED UPON PURCHASE), AND NO PROCEEDS OF ANY ADVANCE OR DRAWINGS UNDER ANY
LETTER OF CREDIT 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.
(J)
ALL FILINGS AND OTHER ACTIONS NECESSARY
OR DESIRABLE TO PERFECT AND PROTECT THE SECURITY INTEREST IN THE COLLATERAL
CREATED UNDER THE COLLATERAL DOCUMENTS ENTERED INTO AS OF THE DATE OF THIS
REPRESENTATION AND TO THE EXTENT REQUIRED THEREBY HAVE BEEN DULY MADE OR TAKEN
AND ARE IN FULL FORCE AND EFFECT, SUBJECT TO SECTION 5.01(L), AND THE COLLATERAL
DOCUMENTS ENTERED INTO AS OF THE DATE OF THIS REPRESENTATION CREATE FOR THE
BENEFIT OF THE SECURED PARTIES A VALID AND, TOGETHER WITH SUCH FILINGS AND OTHER
ACTIONS, PERFECTED FIRST PRIORITY SECURITY INTEREST IN THE COLLATERAL SECURING
THE PAYMENT OF THE SECURED OBLIGATIONS SUBJECT TO SECTION 5.01(L), AND ALL
FILINGS AND OTHER ACTIONS NECESSARY OR DESIRABLE TO PERFECT AND PROTECT SUCH
SECURITY INTEREST HAVE BEEN DULY TAKEN BY THE LOAN PARTIES TO THE EXTENT
REQUIRED BY THIS
SECTION 4.01, SUBJECT TO SECTION 5.01(L).
THE LOAN PARTIES OR THEIR
SUBSIDIARIES ARE THE LEGAL AND BENEFICIAL OWNERS OF THE COLLATERAL FREE AND
CLEAR OF ANY LIEN (OTHER THAN PERMITTED LIENS), EXCEPT FOR THE LIENS AND
SECURITY INTERESTS CREATED OR PERMITTED UNDER THE LOAN DOCUMENTS
(K)
NEITHER ANY LOAN PARTY NOR ANY OF ITS
SUBSIDIARIES IS (I) 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 OR (II) A
"HOLDING COMPANY," OR A "SUBSIDIARY COMPANY" OF A "HOLDING COMPANY"