IS NOT
8
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 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, 2005, THERE HAS
BEEN NO MATERIAL ADVERSE CHANGE AND NO MATERIAL ADVERSE DEVELOPMENT IN THE
BUSINESS, PROPERTIES, OPERATIONS, CONDITION (FINANCIAL OR OTHERWISE), RESULTS OF
OPERATIONS OR PROSPECTS OF THE COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE.
EXCEPT AS DISCLOSED IN SECTION 3(L) TO THE DISCLOSURE SCHEDULES, SINCE DECEMBER
31, 2005, 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 $100,000.
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 WHICH WOULD
REASONABLY LEAD A CREDITOR TO DO SO.
THE COMPANY IS 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 (I) THE PRESENT FAIR SALEABLE VALUE OF THE COMPANY'S
ASSETS IS LESS THAN THE AMOUNT REQUIRED TO PAY THE COMPANY'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) THE COMPANY INTENDS TO INCUR OR
BELIEVES THAT IT WILL INCUR DEBTS THAT WOULD BE BEYOND ITS ABILITY TO PAY AS
SUCH DEBTS MATURE OR (IV) THE COMPANY HAS UNREASONABLY SMALL CAPITAL WITH WHICH
TO CONDUCT THE BUSINESS IN WHICH IT IS ENGAGED AS SUCH BUSINESS IS NOW CONDUCTED
AND IS PROPOSED TO BE CONDUCTED.
(M)
NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES.
EXCEPT FOR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, NO EVENT, LIABILITY,
DEVELOPMENT OR CIRCUMSTANCE HAS OCCURRED OR EXISTS WITH RESPECT TO THE COMPANY,
ITS SUBSIDIARIES OR THEIR RESPECTIVE BUSINESS, PROPERTIES, PROSPECTS, OPERATIONS
OR FINANCIAL CONDITION, THAT WOULD BE REQUIRED TO BE DISCLOSED BY THE COMPANY
UNDER APPLICABLE SECURITIES LAWS ON A CURRENT REPORT ON FORM 8-K FILED WITH THE
SEC.
(N)
CONDUCT OF BUSINESS; REGULATORY PERMITS.
NEITHER THE COMPANY NOR
ITS SUBSIDIARIES IS IN VIOLATION OF ANY TERM OF OR IN DEFAULT UNDER ITS
CERTIFICATE OF INCORPORATION OR BYLAWS OR THEIR ORGANIZATIONAL CHARTER OR
CERTIFICATE OF INCORPORATION OR BYLAWS, RESPECTIVELY.
NEITHER THE COMPANY NOR
ANY OF ITS SUBSIDIARIES IS IN VIOLATION OF ANY JUDGMENT, DECREE OR ORDER OR ANY
STATUTE, ORDINANCE, RULE OR REGULATION APPLICABLE TO THE COMPANY OR ITS
SUBSIDIARIES, AND NEITHER THE