WHICH THEY WERE MADE, NOT MISLEADING.
AS OF THEIR RESPECTIVE DATES, THE
FINANCIAL STATEMENTS OF THE COMPANY INCLUDED IN THE SEC DOCUMENTS COMPLIED AS TO
FORM IN ALL MATERIAL RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE
PUBLISHED RULES AND REGULATIONS OF THE SEC WITH RESPECT THERETO.
SUCH FINANCIAL
STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES, CONSISTENTLY APPLIED, DURING THE PERIODS INVOLVED (EXCEPT (I) AS MAY
BE OTHERWISE INDICATED IN SUCH FINANCIAL STATEMENTS OR THE NOTES THERETO, OR
(II) IN THE CASE OF UNAUDITED INTERIM STATEMENTS, TO THE EXTENT THEY MAY EXCLUDE
FOOTNOTES OR MAY BE CONDENSED OR SUMMARY STATEMENTS) AND FAIRLY PRESENT IN ALL
MATERIAL RESPECTS THE FINANCIAL POSITION OF THE COMPANY AS OF THE DATES THEREOF
AND THE RESULTS OF ITS OPERATIONS AND CASH FLOWS FOR THE PERIODS THEN ENDED
(SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL YEAR-END AUDIT
ADJUSTMENTS).
NO OTHER INFORMATION PROVIDED BY OR ON BEHALF OF THE COMPANY TO
THE BUYERS WHICH IS NOT INCLUDED IN THE SEC DOCUMENTS, INCLUDING, WITHOUT
LIMITATION, INFORMATION REFERRED TO IN SECTION 2(D) OF THIS AGREEMENT, CONTAINS
ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITS TO STATE ANY MATERIAL FACT
9
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCE UNDER WHICH THEY ARE OR WERE MADE, NOT MISLEADING.
(L)
ABSENCE OF CERTAIN CHANGES.
SINCE
DECEMBER 31, 2003, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE AND NO MATERIAL
ADVERSE DEVELOPMENT IN THE BUSINESS, PROPERTIES, OPERATIONS, CONDITION
(FINANCIAL OR OTHERWISE) OR RESULTS OF OPERATIONS OF THE COMPANY OR ITS
SUBSIDIARIES.
EXCEPT AS DISCLOSED IN SCHEDULE 3(L), SINCE DECEMBER 31, 2003,
THE COMPANY HAS NOT (I) DECLARED OR PAID ANY DIVIDENDS, (II) SOLD ANY ASSETS,
INDIVIDUALLY OR IN THE AGGREGATE, IN EXCESS OF $100,000 OUTSIDE OF THE ORDINARY
COURSE OF BUSINESS OR (III) HAD CAPITAL EXPENDITURES, INDIVIDUALLY OR IN THE
AGGREGATE, IN EXCESS OF $500,000.
THE COMPANY HAS NOT TAKEN ANY STEPS TO SEEK
PROTECTION PURSUANT TO ANY BANKRUPTCY LAW NOR DOES THE COMPANY HAVE ANY
KNOWLEDGE OR REASON TO BELIEVE THAT ITS CREDITORS INTEND TO INITIATE INVOLUNTARY
BANKRUPTCY PROCEEDINGS OR ANY ACTUAL KNOWLEDGE OF ANY FACT THAT WOULD REASONABLY
LEAD A CREDITOR TO DO SO.
EXCEPT AS DISCLOSED IN SCHEDULE 3(L), THE COMPANY AND
ITS SUBSIDIARIES, INDIVIDUALLY AND ON A CONSOLIDATED BASIS, ARE NOT AS OF THE
DATE HEREOF, AND AFTER GIVING EFFECT TO THE TRANSACTIONS CONTEMPLATED HEREBY TO
OCCUR AT THE CLOSING, WILL NOT BE INSOLVENT (AS DEFINED BELOW).
FOR PURPOSES OF
THIS SECTION 3(L), "INSOLVENT" MEANS, WITH RESPECT TO ANY PERSON (AS DEFINED IN
SECTION 3(S)), (I) THE PRESENT FAIR SALEABLE VALUE OF SUCH PERSON'S ASSETS IS
LESS THAN THE AMOUNT REQUIRED TO PAY SUCH PERSON'S TOTAL INDEBTEDNESS (AS
DEFINED IN SECTION 3(S)), (II) THE COMPANY IS UNABLE TO PAY ITS DEBTS AND
LIABILITIES, SUBORDINATED, CONTINGENT OR OTHERWISE, AS SUCH DEBTS AND
LIABILITIES BECOME ABSOLUTE AND MATURED, (III) SUCH PERSON INTENDS TO INCUR OR
BELIEVES THAT IT WILL INCUR DEBTS THAT WOULD BE BEYOND ITS ABILITY TO