AMENDED, THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, THE
SUPERFUND 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.
9
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 filed with the SEC (including any amendments thereto)
its (i) Annual Report on Form 10-K for the year ended March 31, 2008,
(ii) Current Report on Form 8-K dated June 5, 2008, (iii) Current Report on
Form 8-K dated August 12, 2008, (iv) Current Report on Form 8-K dated August 14,
2008, (v) Current Report on Form 8-K dated September 4, 2008, (vi) Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2008 and (vii) 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 DOCUMENTS, 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