AMENDMENTS AND REAUTHORIZATION ACT OF 1986, AS AMENDED, THE FEDERAL CLEAN WATER
ACT, AS AMENDED, THE FEDERAL CLEAN AIR ACT, AS AMENDED, THE TOXIC SUBSTANCES
CONTROL ACT, OR ANY STATE AND LOCAL ANALOGUE (HEREINAFTER "ENVIRONMENTAL LAWS"),
EXCEPT WHERE THE FAILURE TO COMPLY COULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
(B)
NEITHER BORROWER HAS KNOWLEDGE OF ANY CLAIM, AND HAS NOT RECEIVED
NOTICE OF A WRITTEN COMPLAINT, ORDER, DIRECTIVE, CLAIM, REQUEST FOR INFORMATION
OR CITATION, AND TO SUCH BORROWER'S KNOWLEDGE NO PROCEEDING HAS BEEN INSTITUTED
RAISING A CLAIM AGAINST SUCH BORROWER INDICATING OR ALLEGING ANY DAMAGE TO THE
ENVIRONMENT OR ANY LIABILITY OR OBLIGATION UNDER OR VIOLATION OF ANY
ENVIRONMENTAL LAW AND (II) NEITHER BORROWER IS SUBJECT TO ANY ORDER, DECREE,
INJUNCTION OR OTHER DIRECTIVE OF ANY GOVERNMENTAL AUTHORITY.
3.21
Offering of Purchased Shares and Warrants.
No form of general
solicitation or general advertising was used by the Borrowers or any of their
agents or representatives in connection with the offer and sale of the Notes and
the Warrants.
3.22
SEC Reports; Disclosure.
(a)
The Parent has filed all required
forms, reports and documents with the Securities and Exchange Commission (the
"SEC") since June 22, 2007, each of which has complied in all material respects
with all applicable requirements of the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder, each as in effect on the date such forms,
reports and documents were filed.
The Parent has made available to the
Purchasers, in the form
10
filed with the SEC (including any amendments thereto) its (i) Annual Report on
Form 10-K for the year ended March 31, 2009; (ii) Quarterly Report on Form 10-Q
for the quarterly period ended June 30, 2009; (iii) Current Report on Form 8-K
dated September 21, 2009 and (iv) all definitive proxy statements relating to
the Parent's meeting of shareholders (whether annual or special) held since June
22, 2007 (collectively, the "SEC Reports").
(B)
NONE OF (I) THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE
DISCLOSURE SCHEDULE AND THE SCHEDULES AND EXHIBITS ATTACHED HERETO), (II) ANY
LOAN DOCUMENT, OR (III) THE SEC REPORTS CONTAINS ANY UNTRUE STATEMENT OF A
MATERIAL FACT OR OMITS TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE
STATEMENTS CONTAINED HEREIN IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE NOT MISLEADING.
THERE IS NO FACT WHICH, TO THE KNOWLEDGE OF EITHER
BORROWER, HAS NOT BEEN DISCLOSED TO THE PURCHASERS, WHICH COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE ABILITY OF EITHER BORROWER TO
PERFORM ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS OR THIS AGREEMENT.
3.23
Financial Statements.
Included in the SEC Reports are the audited
consolidated financial statements of the Parent as at and for the years ended
March 31, 2009 and 2008 and the unaudited consolidated financial statements of
the Parent for the fiscal quarter ended June 30, 2009 (the "Financial
Statements").
The Financial Statements have been prepared in