STATEMENTS THEREIN, IN LIGHT OF
THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING. THE FINANCIAL
STATEMENTS OF THE BORROWER INCLUDED IN THE SEC REPORTS COMPLY IN ALL MATERIAL
RESPECTS WITH APPLICABLE ACCOUNTING REQUIREMENTS AND THE RULES AND REGULATIONS
OF THE COMMISSION WITH RESPECT THERETO AS IN EFFECT AT THE TIME OF FILING. SUCH
FINANCIAL STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS DURING THE PERIODS INVOLVED
("GAAP"), EXCEPT AS MAY BE OTHERWISE SPECIFIED IN SUCH FINANCIAL STATEMENTS OR
THE NOTES THERETO OR IN THE CASE OF UNAUDITED FINANCIAL STATEMENTS, AS PERMITTED
BY FORM 10-Q OF THE COMMISSION, AND FAIRLY PRESENT IN ALL MATERIAL RESPECTS THE
FINANCIAL POSITION OF THE BORROWER AND ITS CONSOLIDATED SUBSIDIARIES AS OF AND
FOR THE DATES THEREOF AND THE RESULTS OF OPERATIONS AND CASH FLOWS FOR THE
PERIODS THEN ENDED, SUBJECT, IN THE CASE OF UNAUDITED STATEMENTS, TO NORMAL,
IMMATERIAL, YEAR-END AUDIT ADJUSTMENTS. ALL MATERIAL CONTRACTS, AS SUCH
CONTRACTS ARE DEFINED IN §601(A)(10) OF REG. S-K UNDER THE SECURITIES ACT, TO
WHICH THE BORROWER OR ANY SUBSIDIARY IS A PARTY OR TO WHICH THE PROPERTY OR
ASSETS OF THE BORROWER OR ANY SUBSIDIARY ARE SUBJECT ARE INCLUDED AS PART OF OR
SPECIFICALLY IDENTIFIED IN THE SEC REPORTS.
(I)
PRESS RELEASES.
THE PRESS RELEASES
DISSEMINATED BY THE BORROWER DURING THE THREE (3) YEARS PRECEDING THE DATE OF
THIS AGREEMENT TAKEN AS A WHOLE DO NOT 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 THEREIN, IN LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING.
(J)
MATERIAL CHANGES.
SINCE THE DATE OF
THE LATEST AUDITED FINANCIAL STATEMENTS INCLUDED WITHIN THE SEC REPORTS, EXCEPT
AS SPECIFICALLY DISCLOSED IN THE SEC REPORTS, (I) THERE HAS BEEN NO EVENT,
OCCURRENCE OR DEVELOPMENT THAT HAS HAD OR THAT COULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT, (II) THE BORROWER HAS NOT INCURRED ANY
LIABILITIES (CONTINGENT OR OTHERWISE) OTHER THAN (A) TRADE PAYABLES AND ACCRUED
EXPENSES INCURRED IN THE ORDINARY COURSE OF BUSINESS CONSISTENT WITH PAST
PRACTICE AND (B) LIABILITIES NOT REQUIRED TO BE REFLECTED IN THE BORROWER'S
FINANCIAL STATEMENTS PURSUANT TO GAAP OR REQUIRED TO BE DISCLOSED IN FILINGS
MADE WITH THE COMMISSION, (III) THE BORROWER HAS NOT ALTERED ITS METHOD OF
ACCOUNTING OR THE IDENTITY OF ITS AUDITORS, (IV) THE BORROWER HAS NOT DECLARED
OR MADE ANY DIVIDEND OR DISTRIBUTION OF CASH OR OTHER PROPERTY TO ITS
STOCKHOLDERS OR PURCHASED, REDEEMED OR MADE ANY AGREEMENTS TO PURCHASE OR REDEEM
ANY SHARES OF ITS CAPITAL STOCK, AND (V) THE BORROWER HAS NOT ISSUED ANY EQUITY
SECURITIES TO ANY OFFICER, DIRECTOR OR AFFILIATE, EXCEPT PURSUANT TO EXISTING
BORROWER STOCK OPTION AND STOCK PURCHASE PLANS.
8
(K)
LITIGATION.
THERE IS NO ACTION WHICH (I)
ADVERSELY AFFECTS OR CHALLENGES THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY
OF THE TRANSACTION DOCUMENTS OR THE SECURITIES OR (II) COULD, IF THERE WERE AN