IS AWARE) WHICH IS
IN VIOLATION OF
LAW, OR (IV) VIOLATED IN ANY MATERIAL RESPECT ANY PROVISION OF THE FOREIGN
CORRUPT PRACTICES ACT OF 1977, AS AMENDED
(EE)
ACCOUNTANTS.
THE COMPANY'S ACCOUNTANTS ARE SET
FORTH ON SCHEDULE 3.1(EE) OF THE DISCLOSURE SCHEDULE.
TO THE COMPANY'S
KNOWLEDGE, SUCH ACCOUNTANTS, WHO THE COMPANY EXPECTS WILL EXPRESS THEIR OPINION
WITH RESPECT TO THE FINANCIAL STATEMENTS TO BE INCLUDED IN THE COMPANY'S ANNUAL
REPORT ON FORM 10-KSB FOR THE YEAR ENDED DECEMBER 31, 2004, ARE A REGISTERED
PUBLIC ACCOUNTING FIRM AS REQUIRED BY THE SECURITIES ACT.
(FF)
SENIORITY.
AS OF EACH CLOSING DATE, NO
INDEBTEDNESS OR OTHER EQUITY OF THE COMPANY IS SENIOR TO THE DEBENTURES IN RIGHT
OF PAYMENT, WHETHER WITH RESPECT TO INTEREST OR UPON LIQUIDATION OR DISSOLUTION,
OR OTHERWISE, OTHER THAN INDEBTEDNESS SECURED BY PURCHASE MONEY SECURITY
INTERESTS (WHICH IS SENIOR ONLY AS TO UNDERLYING ASSETS COVERED THEREBY) AND
CAPITAL LEASE OBLIGATIONS (WHICH IS SENIOR ONLY AS TO THE PROPERTY COVERED
THEREBY).
(GG)
NO DISAGREEMENTS WITH ACCOUNTANTS AND LAWYERS.
THERE ARE NO DISAGREEMENTS OF ANY KIND PRESENTLY EXISTING, OR REASONABLY
ANTICIPATED BY THE COMPANY TO ARISE, BETWEEN THE ACCOUNTANTS AND LAWYERS
FORMERLY OR PRESENTLY EMPLOYED BY THE COMPANY AND, EXCEPT AS SET FORTH IN
SCHEDULE 3.1(GG), THE COMPANY IS CURRENT WITH RESPECT TO ANY FEES OWED TO ITS
ACCOUNTANTS AND LAWYERS.
(HH)
ACKNOWLEDGMENT REGARDING PURCHASERS' PURCHASE OF
SECURITIES.
THE COMPANY ACKNOWLEDGES AND AGREES THAT EACH OF THE PURCHASERS IS
ACTING SOLELY IN THE CAPACITY OF AN ARM'S LENGTH PURCHASER WITH RESPECT TO THE
TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY
FURTHER ACKNOWLEDGES THAT NO PURCHASER IS ACTING AS A FINANCIAL ADVISOR OR
FIDUCIARY OF THE COMPANY (OR IN ANY SIMILAR CAPACITY) WITH RESPECT TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY AND ANY ADVICE GIVEN BY ANY
PURCHASER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES OR AGENTS IN CONNECTION
WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY IS MERELY
INCIDENTAL TO THE PURCHASERS' PURCHASE OF THE SECURITIES.
THE COMPANY FURTHER
REPRESENTS TO EACH PURCHASER THAT THE COMPANY'S DECISION TO ENTER INTO THIS
AGREEMENT HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY BY THE COMPANY AND ITS REPRESENTATIVES.
(ii)
Environmental Laws.
The Company and its
Subsidiaries (i) are to the Company's knowledge in compliance with any and all
applicable foreign, federal, state
17
and local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval; except where such
noncompliance or failure to receive permits, licenses or approvals referred to
in clauses (i), (ii) or (iii) above could not have, or reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(jj)
Employee Benefit Plans; ERISA.
(I)
SCHEDULE