OF
WHICH THE COMPANY 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 ACCOUNTING FIRM IS SET FORTH ON SCHEDULE
3.1(EE) OF THE DISCLOSURE SCHEDULE.
TO THE KNOWLEDGE AND BELIEF OF THE COMPANY,
SUCH ACCOUNTING FIRM (I) IS A REGISTERED PUBLIC ACCOUNTING FIRM AS REQUIRED BY
THE EXCHANGE ACT AND (II) SHALL EXPRESS ITS OPINION WITH RESPECT TO THE
FINANCIAL STATEMENTS TO BE INCLUDED IN THE COMPANY'S ANNUAL REPORT ON FORM 10-K
(OR 10-KSB) FOR THE YEAR ENDING DECEMBER 31, 2007.
(FF) SENIORITY.
AS OF THE CLOSING DATE, NO INDEBTEDNESS OR OTHER CLAIM AGAINST
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).
18
(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 COMPANY AND THE ACCOUNTANTS AND LAWYERS FORMERLY OR PRESENTLY
EMPLOYED BY THE COMPANY AND THE COMPANY IS CURRENT WITH RESPECT TO ANY FEES OWED
TO ITS ACCOUNTANTS AND LAWYERS WHICH COULD AFFECT THE COMPANY'S ABILITY TO
PERFORM ANY OF ITS OBLIGATIONS UNDER ANY OF THE TRANSACTION DOCUMENTS.
(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 THEREBY.
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 THE TRANSACTION DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED THEREBY AND ANY ADVICE GIVEN BY ANY PURCHASER OR ANY
OF THEIR RESPECTIVE REPRESENTATIVES OR AGENTS IN CONNECTION WITH THE TRANSACTION
DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED THEREBY 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 AND THE OTHER
TRANSACTION DOCUMENTS HAS BEEN BASED SOLELY ON THE INDEPENDENT EVALUATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY BY THE COMPANY AND ITS REPRESENTATIVES.
(II) ACKNOWLEDGMENT REGARDING PURCHASERS' TRADING ACTIVITY.
NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT OR ELSEWHERE HEREIN TO THE CONTRARY (EXCEPT FOR
SECTIONS 3.2(F) AND 4.15 HEREOF), IT IS UNDERSTOOD AND ACKNOWLEDGED BY THE
COMPANY THAT (I) NONE OF THE PURCHASERS HAS BEEN ASKED TO AGREE BY THE COMPANY,
NOR HAS ANY PURCHASER AGREED, TO DESIST FROM PURCHASING OR SELLING, LONG AND/OR
SHORT, SECURITIES OF THE COMPANY, OR "DERIVATIVE" SECURITIES BASED ON SECURITIES
ISSUED BY THE COMPANY OR TO HOLD THE SECURITIES FOR ANY SPECIFIED TERM, (II)
PAST OR FUTURE OPEN MARKET OR OTHER TRANSACTIONS BY ANY PURCHASER, SPECIFICALLY
INCLUDING, WITHOUT LIMITATION, SHORT SALES OR "DERIVATIVE" TRANSACTIONS,