KEPT (INCLUDING IN EACH CASE THE COUNTY OF SUCH
LOCATIONS) AND, EXCEPT AS SET FORTH IN SUCH EXHIBIT 12(D), SUCH LOCATIONS HAVE
NOT CHANGED DURING THE PRECEDING TWELVE MONTHS.
AS OF THE CLOSING DATE, DURING
THE PRIOR TWO YEARS, EXCEPT AS SET FORTH IN EXHIBIT 12(D), NEITHER THE COMPANY
NOR THE SUBSIDIARY GUARANTOR HAS BEEN KNOWN AS OR CONDUCTED BUSINESS IN ANY
OTHER NAME (INCLUDING TRADE NAMES).
THE COMPANY HAS ONLY ONE STATE OF
INCORPORATION.
(E)
BASED UPON THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974 ("ERISA"),
AND THE REGULATIONS AND PUBLISHED INTERPRETATIONS THEREUNDER: (I) THE COMPANY
HAS NOT ENGAGED IN ANY PROHIBITED TRANSACTIONS AS DEFINED IN SECTION 406 OF
ERISA AND SECTION 4975 OF THE INTERNAL REVENUE CODE, AS AMENDED; (II) THE
COMPANY HAS MET ALL APPLICABLE MINIMUM FUNDING REQUIREMENTS UNDER SECTION 302 OF
ERISA IN RESPECT OF ITS PLANS; (III) THE COMPANY HAS NO KNOWLEDGE OF ANY EVENT
OR OCCURRENCE WHICH WOULD CAUSE THE PENSION BENEFIT GUARANTY CORPORATION TO
INSTITUTE PROCEEDINGS UNDER TITLE IV OF ERISA TO TERMINATE ANY EMPLOYEE BENEFIT
PLAN(S); (IV) THE COMPANY HAS NO FIDUCIARY RESPONSIBILITY FOR INVESTMENTS WITH
12
respect to any plan existing for the benefit of persons other than the Company's
employees; and (v) the Company has not withdrawn, completely or partially, from
any multi-employer pension plan so as to incur liability under the Multiemployer
Pension Plan Amendments Act of 1980.
(F)
(G)
TO THE BEST OF ITS KNOWLEDGE, THERE IS NO PENDING OR THREATENED
LITIGATION, ACTION OR PROCEEDING WHICH INVOLVES THE POSSIBILITY OF HAVING A
MATERIAL ADVERSE EFFECT.
(H)
AS OF THE DATE OF ISSUANCE, ALL BALANCE SHEETS AND INCOME STATEMENTS WHICH
HAVE BEEN DELIVERED TO LAURUS FAIRLY, ACCURATELY AND PROPERLY STATE THE
COMPANY'S AND THE SUBSIDIARY GUARANTOR'S FINANCIAL CONDITION ON A BASIS
CONSISTENT WITH THAT OF PREVIOUS FINANCIAL STATEMENTS AND THERE HAS BEEN NO
MATERIAL ADVERSE CHANGE IN THE COMPANY'S OR THE SUBSIDIARY GUARANTOR'S FINANCIAL
CONDITION AS REFLECTED IN SUCH STATEMENTS SINCE THE BALANCE SHEET DATE OF THE
STATEMENTS LAST DELIVERED TO LAURUS AND SUCH STATEMENTS DO NOT FAIL TO DISCLOSE
ANY FACT OR FACTS WHICH MIGHT HAVE A MATERIAL ADVERSE EFFECT ON THE COMPANY'S OR
THE SUBSIDIARY GUARANTOR'S FINANCIAL CONDITION.
(I)
EACH OF THE COMPANY AND THE SUBSIDIARY GUARANTOR POSSESSES ALL OF THE
INTELLECTUAL PROPERTY NECESSARY TO CONDUCT ITS BUSINESS.
TO THE BEST OF ITS
KNOWLEDGE, THERE HAS BEEN NO ASSERTION OR CLAIM OF VIOLATION OR INFRINGEMENT
WITH RESPECT TO ANY INTELLECTUAL PROPERTY.
EXHIBIT 12(I) SETS FORTH ALL
INTELLECTUAL PROPERTY OF THE COMPANY.
(J)
NEITHER THIS AGREEMENT, THE EXHIBITS AND SCHEDULES HERETO, THE ANCILLARY
AGREEMENTS NOR ANY OTHER DOCUMENT DELIVERED BY THE COMPANY OR GUARANTOR
SUBSIDIARY TO LAURUS OR ITS ATTORNEYS OR AGENTS IN CONNECTION HEREWITH OR
THEREWITH OR WITH THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, CONTAIN, ON
THE DATE WHEN MADE, ANY UNTRUE STATEMENT OF A MATERIAL FACT NOR OMIT TO STATE A
MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED HEREIN OR
THEREIN, IN LIGHT OF THE CIRCUMSTANCES IN WHICH THEY ARE MADE, NOT