THEREIN, IN LIGHT
OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
NO EVENT OR
CIRCUMSTANCE HAS OCCURRED OR INFORMATION EXISTS WITH RESPECT TO THE COMPANY OR
ANY OF ITS SUBSIDIARIES OR ITS OR
14
their business, properties, prospects, operations or financial conditions,
which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed.
The Company acknowledges and agrees that no Purchaser makes or has
made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 3.2.
(AA)
NO VIOLATION.
THE ISSUANCE AND SALE OF THE SECURITIES CONTEMPLATED HEREBY
DOES NOT CONFLICT WITH OR VIOLATE ANY RULES OR REGULATIONS OF THE TRADING
MARKET.
(BB)
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 THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY FURTHER ACKNOWLEDGES THAT NO
PURCHASER IS ACTING AS A FINANCIAL ADVISOR OR FIDUCIARY OF THE COMPANY OR ANY
OTHER PURCHASER (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 SUCH
PURCHASER'S 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. THE
COMPANY FURTHER ACKNOWLEDGES THAT NO PURCHASER HAS MADE ANY PROMISES OR
COMMITMENTS OTHER THAN AS SET FORTH IN THIS AGREEMENT AND THE OTHER TRANSACTION
DOCUMENTS TO WHICH IT IS A PARTY, INCLUDING ANY PROMISES OR COMMITMENTS FOR ANY
ADDITIONAL INVESTMENT BY ANY SUCH PURCHASER IN THE COMPANY.
(CC)
INVESTMENT COMPANY.
THE COMPANY IS NOT, AND IS NOT AN AFFILIATE OF, AN
INVESTMENT COMPANY WITHIN THE MEANING OF THE INVESTMENT COMPANY ACT OF 1940, AS
AMENDED.
(DD)
RANKING.
EXCEPT AS SET FORTH ON SCHEDULE 3.1(DD), AS OF THE DATE OF THIS
AGREEMENT, NO INDEBTEDNESS OF THE COMPANY IS SENIOR TO, OR PARI PASSU WITH, THE
NOTES 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).
(EE)
INDEBTEDNESS.
EXCEPT AS SET FORTH ON SCHEDULE 3.1(EE) AND TRADE PAYABLES
ARISING IN THE ORDINARY COURSE OF BUSINESS NOT MORE THAN SIXTY (60) DAYS PAST
DUE, THE COMPANY DOES NOT HAVE ANY INDEBTEDNESS.
(FF)
TAXES.
EXCEPT FOR MATTERS THAT WOULD NOT, INDIVIDUALLY OR IN THE
AGGREGATE, REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, THE
COMPANY AND EACH OF ITS SUBSIDIARIES (I) HAS MADE