CONSTRAINTS ON OPERATING
ACTIVITIES AND ANY POTENTIAL LIABILITIES TO THIRD PARTIES) WHICH WOULD HAVE A
MATERIAL ADVERSE EFFECT.
(Q)
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES IS AN "INVESTMENT COMPANY", OR AN "AFFILIATED PERSON" OF, OR
"PROMOTER" OR "PRINCIPAL UNDERWRITER" FOR, AN "INVESTMENT COMPANY", AS SUCH
TERMS ARE DEFINED IN THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED. NEITHER THE
SALE OF ANY NOTE, NOR THE APPLICATION OF THE PROCEEDS OR REPAYMENT THEREOF BY
THE COMPANY, NOR THE CONSUMMATION OF THE OTHER TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, WILL VIOLATE ANY PROVISION OF SUCH ACT OR ANY RULE,
REGULATION OR ORDER OF THE COMMISSION THEREUNDER.
(R)
NEITHER THE COMPANY NOR ANY AFFILIATE (AS
DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT, AN "AFFILIATE")
OF THE COMPANY HAS DIRECTLY, OR THROUGH ANY AGENT, (I) SOLD, OFFERED FOR SALE,
SOLICITED OFFERS TO BUY OR OTHERWISE NEGOTIATED IN RESPECT OF, ANY SECURITY (AS
DEFINED IN THE SECURITIES ACT) WHICH IS OR WILL BE INTEGRATED WITH THE SALE OF
THE NOTE OR THE PRIMARY SHARES IN A MANNER THAT WOULD REQUIRE THE REGISTRATION
UNDER THE SECURITIES ACT OF THE NOTE OR THE PRIMARY SHARES OR (II) OFFERED,
SOLICITED OFFERS TO BUY OR SOLD THE NOTE OR THE PRIMARY SHARES BY ANY FORM OF
"GENERAL SOLICITATION" OR "GENERAL ADVERTISING" (AS THOSE TERMS ARE USED IN
REGULATION D UNDER THE SECURITIES ACT) OR IN ANY MANNER INVOLVING A "PUBLIC
OFFERING" WITHIN THE MEANING OF SECTION 4(2) OF THE SECURITIES ACT.
(S)
ASSUMING THE ACCURACY OF THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER SET FORTH IN SECTION 7, IT IS
NOT NECESSARY IN CONNECTION WITH THE OFFER, SALE AND DELIVERY OF THE NOTE AND
THE PRIMARY SHARES TO THE PURCHASER IN THE MANNER CONTEMPLATED BY THIS AGREEMENT
TO REGISTER THE NOTE OR THE PRIMARY SHARES UNDER THE SECURITIES ACT OR TO
QUALIFY AN INDENTURE UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED.
(T)
THE COMPANY'S FILINGS WITH THE SECURITIES
AND EXCHANGE COMMISSION MADE ON OR AFTER JANUARY 1, 2004 DID NOT, AT THE TIME OF
FILING, CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A
MATERIAL FACT NECESSARY TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING, EXCEPT TO THE EXTENT
INFORMATION WAS CORRECTED IN OR SUPERSEDED BY SUBSEQUENT FILINGS.
(U)
THE CONSOLIDATED BALANCE SHEETS OF THE
COMPANY AND ITS SUBSIDIARIES AT DECEMBER 31, 2005, AND THE RELATED CONSOLIDATED
STATEMENTS OF OPERATIONS, CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(DEFICIT) AND CONSOLIDATED STATEMENTS OF CASH FLOWS OF THE COMPANY AND ITS
SUBSIDIARIES FOR THE FISCAL YEAR THEN ENDED, ACCOMPANIED BY AN OPINION OF
PRICEWATERHOUSECOOPERS, LLP, INDEPENDENT PUBLIC ACCOUNTANTS (TOGETHER WITH ANY
RELATED SCHEDULES AND NOTES, THE "FINANCIAL STATEMENTS"), FAIRLY PRESENT IN ALL
MATERIAL RESPECTS THE
6
CONSOLIDATED FINANCIAL CONDITION OF THE COMPANY AND ITS SUBSIDIARIES AS AT SUCH
DATE AND THE CONSOLIDATED RESULTS OF OPERATIONS OF THE COMPANY AND ITS
SUBSIDIARIES FOR THE PERIOD ENDED ON SUCH DATE, ALL IN