3.5(B),
SINCE THE BALANCE SHEET DATE, THE COMPANY AND THE SUBSIDIARIES HAVE CONDUCTED
THEIR BUSINESS ONLY IN THE ORDINARY COURSE OF BUSINESS.
WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SINCE THE BALANCE SHEET DATE, EXCEPT AS SET FORTH
IN SCHEDULE 3.5(B), NEITHER THE COMPANY NOR ANY SUBSIDIARY HAS:
(I)
EXCEPT AS CONTEMPLATED BY THIS
AGREEMENT, ISSUED, DELIVERED OR AGREED (CONDITIONALLY OR UNCONDITIONALLY) TO
ISSUE OR DELIVER, OR GRANTED ANY OPTION, WARRANT OR OTHER RIGHT TO PURCHASE, ANY
OF ITS CAPITAL STOCK OR OTHER EQUITY INTEREST OR ANY SECURITY CONVERTIBLE INTO
ITS CAPITAL STOCK OR OTHER EQUITY INTEREST;
(II)
ISSUED, DELIVERED OR AGREED (CONDITIONALLY
OR UNCONDITIONALLY) TO ISSUE OR DELIVER ANY OF ITS BONDS, NOTES OR OTHER DEBT
SECURITIES, OR BORROWED OR AGREED TO BORROW ANY FUNDS;
(III)
PAID ANY OBLIGATION OR LIABILITY (ABSOLUTE
OR CONTINGENT) OTHER THAN CURRENT LIABILITIES REFLECTED ON THE BALANCE SHEET AND
CURRENT LIABILITIES INCURRED SINCE THE BALANCE SHEET DATE IN THE ORDINARY COURSE
OF BUSINESS;
(IV)
DECLARED, SET ASIDE OR MADE, OR AGREED TO
DECLARE, SET ASIDE OR MAKE, ANY PAYMENT OF DIVIDENDS OR DISTRIBUTIONS TO ITS
STOCKHOLDERS OR PURCHASED OR REDEEMED, OR AGREED TO PURCHASE OR REDEEM, ANY OF
ITS CAPITAL STOCK OR OTHER EQUITY INTEREST, IT BEING UNDERSTOOD THAT PURSUANT TO
THE TERMS OF THE CERTIFICATE OF INCORPORATION, DIVIDENDS ACCRUE WHETHER OR NOT
DECLARED (BUT HAVE NOT BEEN PAID) ON THE OUTSTANDING SERIES A PREFERRED STOCK,
SERIES C-1 PREFERRED STOCK, SERIES C-2 PREFERRED STOCK AND SERIES C-3 PREFERRED
STOCK;
(V)
EXCEPT IN THE ORDINARY COURSE OF BUSINESS,
MADE ANY AMENDMENT OR TERMINATION OF ANY COMPANY AGREEMENT;
20
(VI)
UNDERTAKEN OR COMMITTED TO UNDERTAKE CAPITAL
EXPENDITURES EXCEEDING $200,000 OR ACQUIRED ANY REAL PROPERTY;
(VII)
SOLD, LEASED (AS LESSOR), TRANSFERRED OR
OTHERWISE DISPOSED OF, OR MORTGAGED OR PLEDGED, OR IMPOSED OR SUFFERED TO BE
IMPOSED ANY ENCUMBRANCE (OTHER THAN A PERMITTED ENCUMBRANCE) ON, ANY OF THE
ASSETS REFLECTED ON THE BALANCE SHEET OR ANY ASSETS ACQUIRED BY IT AFTER THE
BALANCE SHEET DATE, EXCEPT FOR INVENTORY AND MINOR AMOUNTS OF PERSONAL PROPERTY
SOLD OR OTHERWISE DISPOSED OF FOR FAIR VALUE IN THE ORDINARY COURSE OF BUSINESS;
(VIII)
CANCELED ANY DEBTS OWED TO OR CLAIMS HELD BY IT
(INCLUDING THE SETTLEMENT OF ANY CLAIMS OR LITIGATION) OR WAIVED ANY OTHER
RIGHTS HELD BY IT OTHER THAN IN THE ORDINARY COURSE OF BUSINESS;
(IX)
CREATED, INCURRED OR ASSUMED, OR AGREED TO
CREATE, INCUR OR ASSUME, ANY INDEBTEDNESS OR ENTERED INTO, AS LESSEE, ANY
CAPITAL LEASE (AS DEFINED IN STATEMENT OF FINANCIAL ACCOUNTING STANDARDS
NO. 13);
(X)
ACCELERATED OR DELAYED COLLECTION OF NOTES
OR ACCOUNTS RECEIVABLE IN ADVANCE OF OR BEYOND THEIR REGULAR DUE DATES OR THE
DATES WHEN THE SAME WOULD HAVE BEEN COLLECTED IN THE ORDINARY COURSE OF
BUSINESS;
(XI)
DELAYED OR ACCELERATED PAYMENT OF ANY
ACCOUNT PAYABLE BEYOND OR IN ADVANCE OF ITS DUE DATE OR THE DATE WHEN SUCH
ACCOUNT PAYABLE WOULD HAVE BEEN PAID IN THE ORDINARY COURSE OF BUSINESS;
(XII)
WRITTEN OFF ANY NOTES OR ACCOUNTS RECEIVABLE
OR PORTIONS THEREOF AS UNCOLLECTIBLE