ANY OF ITS
SUBSIDIARIES ARE (I) IN VIOLATION OF ITS CHARTER OR BY-LAWS OR SIMILAR
ORGANIZATIONAL DOCUMENTS; (II) IN DEFAULT,
6
AND NO EVENT HAS OCCURRED THAT, WITH NOTICE OR LAPSE OF TIME OR BOTH, WOULD
CONSTITUTE SUCH A DEFAULT, IN THE DUE PERFORMANCE OR OBSERVANCE OF ANY TERM,
COVENANT OR CONDITION CONTAINED IN ANY INDENTURE, MORTGAGE, DEED OF TRUST, LOAN
AGREEMENT OR OTHER AGREEMENT OR INSTRUMENT TO WHICH THE COMPANY OR ITS
SUBSIDIARIES ARE A PARTY OR BY WHICH THE COMPANY OR ITS SUBSIDIARIES ARE BOUND
OR TO WHICH ANY OF THE PROPERTY OR ASSETS OF THE COMPANY OR ITS SUBSIDIARIES ARE
SUBJECT; OR (III) IN VIOLATION OF ANY LAW OR STATUTE OR ANY JUDGMENT, ORDER,
RULE OR REGULATION OF ANY COURT OR ARBITRATOR OR GOVERNMENTAL OR REGULATORY
AUTHORITY, EXCEPT, IN THE CASE OF EACH OF CLAUSES (II) AND (III) ABOVE, FOR ANY
SUCH VIOLATION OR DEFAULT THAT WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
TO THE COMPANY'S
KNOWLEDGE, NO OTHER PARTY UNDER ANY MATERIAL CONTRACT OR OTHER AGREEMENT TO
WHICH IT OR A SUBSIDIARY IS A PARTY IS IN DEFAULT IN ANY RESPECT THEREUNDER
WHERE SUCH DEFAULT WOULD HAVE A MATERIAL ADVERSE EFFECT.
(I)
NO MATERIAL ADVERSE CHANGE.
EXCEPT AS SET FORTH IN OR OTHERWISE
CONTEMPLATED BY THE REGISTRATION STATEMENT (EXCLUSIVE OF ANY AMENDMENT THEREOF)
OR THE PROSPECTUS (EXCLUSIVE OF ANY SUPPLEMENT THERETO), SINCE THE DATE OF THE
MOST RECENT FINANCIAL STATEMENTS OF THE COMPANY INCLUDED OR INCORPORATED BY
REFERENCE IN THE REGISTRATION STATEMENT AND THE PROSPECTUS AND PRIOR TO EACH
SETTLEMENT DATE, (I) THERE HAS NOT BEEN AND WILL NOT HAVE BEEN ANY CHANGE IN THE
CAPITAL STOCK OF THE COMPANY (EXCEPT FOR CHANGES IN THE NUMBER OF OUTSTANDING
SHARES OF COMMON STOCK OF THE COMPANY DUE TO THE ISSUANCE OF SHARES UPON THE
EXERCISE OR CONVERSION OF SECURITIES EXERCISABLE FOR, OR CONVERTIBLE INTO,
SHARES OF COMMON STOCK OUTSTANDING ON THE DATE HEREOF) OR LONG-TERM DEBT OF THE
COMPANY OR OF ITS SUBSIDIARIES OR ANY DIVIDEND OR DISTRIBUTION OF ANY KIND
DECLARED, SET ASIDE FOR PAYMENT, PAID OR MADE BY THE COMPANY ON ANY CLASS OF
CAPITAL STOCK, THAT HAS RESULTED IN OR THAT WOULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT TO THE COMPANY AND ITS SUBSIDIARIES TAKEN AS
A WHOLE; (II) OTHER THAN THIS AGREEMENT, NEITHER THE COMPANY NOR ITS
SUBSIDIARIES HAVE ENTERED OR WILL ENTER INTO ANY TRANSACTION OR AGREEMENT, NOT
IN THE ORDINARY COURSE OF BUSINESS, THAT IS MATERIAL TO THE COMPANY AND ITS
SUBSIDIARIES TAKEN AS A WHOLE OR INCURRED OR WILL INCUR ANY LIABILITY OR
OBLIGATION, DIRECT OR CONTINGENT, NOT IN THE ORDINARY COURSE OF BUSINESS, THAT
IS MATERIAL TO THE COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE; (III) THERE
HAS NOT BEEN ANY MATERIAL ADVERSE CHANGE IN THE BUSINESS, PROPERTIES,
MANAGEMENT, FINANCIAL POSITION, STOCKHOLDERS' EQUITY, OR RESULTS OF OPERATIONS
OF THE COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE; AND (IV) NEITHER THE
COMPANY NOR ITS