HAS TIMELY FILED ALL FORMS,
REPORTS AND DOCUMENTS (INCLUDING ALL EXHIBITS) REQUIRED TO BE FILED BY IT WITH
THE SEC SINCE FEBRUARY 1, 2002 (THE "SEC REPORTS").
THE SEC REPORTS (I) WERE
PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS
AMENDED, AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER (THE "SECURITIES
ACT") OR THE EXCHANGE ACT, AS THE CASE MAY BE, AND THE RULES AND REGULATIONS
PROMULGATED THEREUNDER, AND (II) DID NOT AT THE TIME THEY WERE FILED CONTAIN ANY
UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT REQUIRED TO
BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN
THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
NO
SUBSIDIARY IS REQUIRED TO FILE ANY FORM, REPORT OR OTHER DOCUMENT WITH THE SEC.
AS OF THE DATE HEREOF, THE COMPANY IS ELIGIBLE TO REGISTER SECURITIES ON
FORM S-3 OF THE SECURITIES ACT.
(B)
EACH OF THE CONSOLIDATED FINANCIAL
STATEMENTS (INCLUDING, IN EACH CASE, ANY NOTES THERETO) CONTAINED IN THE SEC
REPORTS WAS PREPARED IN ACCORDANCE WITH UNITED STATES GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES ("GAAP") APPLIED ON A CONSISTENT BASIS THROUGHOUT THE
PERIODS INDICATED (EXCEPT AS MAY BE INDICATED IN THE NOTES THERETO) AND THE
COMPANY'S BOOKS AND RECORDS, AND EACH FAIRLY PRESENTED THE CONSOLIDATED
FINANCIAL POSITION, RESULTS OF OPERATIONS AND
13
CASH FLOWS OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS AT THE RESPECTIVE
DATES THEREOF AND FOR THE RESPECTIVE PERIODS INDICATED THEREIN EXCEPT AS
OTHERWISE NOTED THEREIN (SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL
YEAR-END ADJUSTMENTS WHICH INDIVIDUALLY OR IN THE AGGREGATE DID NOT HAVE, AND
WOULD NOT REASONABLY BE EXPECTED TO HAVE, A MATERIAL ADVERSE EFFECT).
THE BOOKS
AND RECORDS OF THE COMPANY AND EACH SUBSIDIARY HAVE BEEN, AND ARE BEING,
MAINTAINED IN ACCORDANCE WITH APPLICABLE LEGAL AND ACCOUNTING REQUIREMENTS IN
ALL MATERIAL RESPECTS.
(C)
EXCEPT AS AND TO THE EXTENT SET FORTH ON
THE CONSOLIDATED BALANCE SHEET OF THE COMPANY AND THE CONSOLIDATED SUBSIDIARIES
AS OF JANUARY 31, 2004 INCLUDED IN THE COMPANY FORM 10-K FOR THE YEAR ENDED
JANUARY 31, 2004, INCLUDING THE NOTES THERETO, NONE OF THE COMPANY OR ANY
CONSOLIDATED SUBSIDIARY HAS ANY LIABILITIES OR OBLIGATIONS OF ANY NATURE
(WHETHER ACCRUED, ABSOLUTE, CONTINGENT OR OTHERWISE), EXCEPT FOR LIABILITIES OR
OBLIGATIONS INCURRED SINCE JANUARY 31, 2004 THAT WOULD NOT, INDIVIDUALLY OR IN
THE AGGREGATE, REASONABLY BE EXPECTED TO (A) PREVENT OR MATERIALLY DELAY
CONSUMMATION OF THE TRANSACTIONS, (B) OTHERWISE PREVENT OR MATERIALLY DELAY
PERFORMANCE BY THE COMPANY OF ANY OF ITS MATERIAL OBLIGATIONS UNDER THIS
AGREEMENT OR ANY ANCILLARY AGREEMENT OR (C) HAVE A MATERIAL ADVERSE EFFECT.
(D)
THE COMPANY HAS PREVIOUSLY MADE AVAILABLE TO
THE INVESTORS IN THE ELECTRONIC DATA ROOM A COMPLETE AND CORRECT COPY OF ANY
AMENDMENT OR MODIFICATION WHICH HAS NOT YET BEEN FILED WITH THE SEC TO ANY
AGREEMENT, DOCUMENT OR OTHER INSTRUMENT WHICH PREVIOUSLY HAD BEEN FILED BY THE
COMPANY WITH THE SEC PURSUANT TO THE SECURITIES ACT OR THE