Common use of Absence of Certain Changes Clause in Contracts

Absence of Certain Changes. Since January 1, 2006, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Other than as set forth in the SEC Documents or as set forth in Schedule 3(l), 2006since the date of the Company's most recent SEC Documents, there has been no material adverse change or development in the businessand no material adverse development, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have which constitutes a Material Adverse Effect. Since January 1December 31, 20062004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess outside of $100,000 owed to itthe ordinary course of business. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, Insolvent (as defined below)be Insolvent. For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)) (other than any future lease liabilities as such exist on the date hereof), (ii) the Company Person is unable to pay its debts and liabilitiesliabilities (other than any future lease liabilities as such exist on the date hereof), subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts (other than any future lease liabilities as such exist on the date hereof) that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 2.16, 2006since December 31, 2007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1December 31, 20062007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1June 30, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1June 30, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person (as defined in Section 3(q)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(q)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is currently proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company MSMI or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectsubsidiaries. Since January 1December 31, 20062005, the Company MSMI or Guarantor has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company MSMI has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company MSMI have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, MSMI will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the CompanyMSMI’s assets is less than the amount required to pay the CompanyMSMI’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company MSMI is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company MSMI intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company MSMI has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062015, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062015, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, will not as of the date hereofbe, and after giving effect to the transactions contemplated hereby to occur at the Closing will not beClosing, Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person, (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 2.16, 2006since December 31, 2007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1December 31, 20062007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do soproceedings. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062014, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062014, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company, individually, and the Company is and its Subsidiaries, on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing any Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o)the Notes), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as set forth in the SEC Documents, 2006since the date of the Company’s most recent audited financial statements contained in a Form 10-Q, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in a Form 10-Q, neither the Company nor any of its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had except as disclosed in the SEC Documents, made any capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived the ordinary course of business. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at on the Closing date hereof, will not be, Insolvent (as defined below). For purposes of this Section 3(j), “be Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 500,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since March 31, 2022, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since March 31, 2022, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000 outside the ordinary course of business. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2006 there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, Neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not benot, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1The Company represents that since December 31, 20062023, there has been no material adverse change or development in the businessassets, properties, operations, condition (financial or otherwise), results of operations or prospects financial condition of the Company or its Subsidiaries that has had or could reasonably be expected to have taken as a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to itwhole. The Company has not taken any steps with any governmental agency or authority or any other regulatory or self-regulatory agency or authority to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason reasonable basis to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The As of the Bridge Note Closing, the Company is not not, and, as of the date hereofConvertible Note Closing, and after giving effect to the transactions contemplated hereby to occur at the Closing Convertible Note Closing, New Adagio will not be, be Insolvent (as defined belowherein). For purposes of this Section 3(j), “Insolvent” means means, with respect to any person (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company such person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and maturedmatured in the ordinary course, (iiiii) the Company such person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature in the ordinary course or (iviii) the Company such person has unreasonably small capital with which to conduct the business in which it is engaged engaged, as such business is now conducted conducted. For purposes of the foregoing, the amount of any contingent liability at any time shall be computed as the amount that, in light of all facts and is proposed circumstances existing at the time, represents the amount that could reasonably be expected to be conductedbecome an actual liability.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” " means with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2004, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and or is proposed about to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k)(i), 2006since December 31, 2019, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1Except as disclosed in Schedule 3(k)(ii), 2006since December 31, 2019, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor to the Company’s Knowledge does the Company have or any knowledge or reason to Subsidiary believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not and its Subsidiaries as a whole are not, as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person, (iw) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(q)), (iix) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iiiy) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (ivz) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2002, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial condition, or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectany Subsidiary. Since January 1December 31, 20062002, the Company has not (i) declared or paid any dividendsdividends (other than in connection with the Company's 3% Cumulative Convertible Preferred Stock), (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereofCompany, and after giving effect to the transactions contemplated hereby to occur at the Closing each Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1June 30, 20062020, there has been no material adverse change or to, and no material adverse development in in, the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1June 30, 20062020, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any material assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had material capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived the ordinary course of business. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a any such creditor to do so. The Company is not as of the date hereofand its Subsidiaries, individually and on a consolidated basis, after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3.1(j), “Insolvent” means means, with respect to any Person, (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o))indebtedness, (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 2.16, 2006since December 31, 2008, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1December 31, 20062008, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 2.16, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2014, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2014, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1the date of the most recent quarterly report on Form 10-Q, 2006except as specifically disclosed in the SEC Documents filed not later than 10 days prior to the date hereof, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), ) or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1, 2006the date of the most recent quarterly report on Form 10-Q and except as specifically disclosed in the SEC Documents filed not later than 10 days prior to the date hereof, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 1,000,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, matured or (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conductedmature.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 2.16, 2006since December 31, 2009, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1December 31, 20062009, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means with respect to any Person, (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1, 2006, there has been no change or development Except as disclosed in the business, properties, operations, condition (financial or otherwiseSchedule 3(l), results of operations or prospects of the Company or its Subsidiaries since June 30, 2005, nothing has occurred that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2005, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 250,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 500,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not benot, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the Company’s SEC Documents and in Schedule 4.9, 2006since December 31, 2009, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed the SEC Documents and in Schedule 4.9, 2006since December 31, 2009, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 25,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it25,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j)4.9, “Insolvent” means means, with respect to any Person (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o)4.16), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062013, there has been no change event, occurrence or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or that could reasonably be expected to have result in a Material Adverse Effect. Since January 1December 31, 20062013, except as otherwise disclosed in the Memorandum, neither the Company nor its Subsidiary has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had other than expenditures made in connection with the transactions contemplated by this Agreement and reflected as offering expenses in the Memorandum, made any capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess the ordinary course of $100,000 owed to itbusiness. The Neither the Company nor its Subsidiary has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or its Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as As of the date hereof, hereof and after giving effect to the transactions contemplated hereby to occur at the Closing will not beClosing, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means (i) the present fair saleable value of the Company’s assets of the Company and its Subsidiary, taken as a whole, is less than the amount required to pay the Company’s and its Subsidiary’s total Indebtedness (as defined in Section 3(o)below), (ii) the Company is unable and its Subsidiary are able to pay its their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends and its Subsidiary do not intend to incur or believes believe that it they will incur debts that would be beyond its their ability to pay as such debts mature or mature, and (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged and its Subsidiary, taken as such business is now conducted and is proposed to be conducteda whole, are solvent under Israeli law.

Absence of Certain Changes. Since January 1the date of the last audited financial statements included in the SEC Documents, 2006except as disclosed in Schedule 3(l), (i) there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, and (ii) the Company has not (iA) declared or paid any dividends, (iiB) sold any assets, individually or in the aggregate, in excess of $100,000 250,000 outside of the ordinary course of business, business or (iiiC) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it250,000. The Company has not taken any steps to seek protection pursuant to filed a petition or commencement of a proceeding under any bankruptcy law nor does and, to the Company Company’s knowledge, none of the Company’s creditors have any knowledge or reason to believe that its creditors intend to initiate initiated involuntary bankruptcy proceedings or any against the Company and the Company does not have actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1, 2006, there There has been no material adverse change or development in the businessassets, properties, operations, condition (financial or otherwise), results of operations or prospects financial condition of the Company or its Subsidiaries that has had or could reasonably be expected to have New Adagio taken as a Material Adverse Effectwhole. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company New Adagio has not taken any steps with any governmental agency or authority or any other regulatory or self-regulatory agency or authority to seek protection pursuant to any bankruptcy law nor does the Company New Adagio have any knowledge or reason reasonable basis to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Convertible Note Closing, will not be, be Insolvent (as defined belowherein). For purposes of this Section 3(j)6.7, “Insolvent” means means, with respect to any person (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company such person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and maturedmatured in the ordinary course, (iiiii) the Company such person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature in the ordinary course or (iviii) the Company such person has unreasonably small capital with which to conduct the business in which it is engaged engaged, as such business is now conducted conducted. For purposes of the foregoing, the amount of any contingent liability at any time shall be computed as the amount that, in light of all facts and is proposed circumstances existing at the time, represents the amount that could reasonably be expected to be conductedbecome an actual liability.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since November 16, 2005, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since November 16, 2005, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually individually, in excess of $100,000, or in the aggregate, in excess of $500,000 or (iv) waived 250,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (ivi v) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as specifically disclosed in the SEC Documents filed not later than 10 days prior to the date hereof, 2006since December 31, 2004, there has been no material adverse change or and no material adverse development in the business, properties, assets, operations, condition (financial or otherwise), results of operations operations, financial condition or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1September 30, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company Company, is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(r)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2014, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries Subsidiaries; provided, however, that has had or could reasonably be expected the financial statements include a going concern paragraph and the conditions giving rise to have a Material Adverse Effectthe going concern qualification are continuing. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2014, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do soproceedings. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted; provided, however, that as reflected in the Company’s unaudited financial statement included in the Company’s Form 10-Q report for the quarter ended June 30, 2015, (i) the Company’s total assets were $40,602, (ii) current and total liabilities were $472,142, (iii) the Company had a stockholders’ deficit of $431,540, and (iv) the Company does not anticipate that at September 30, 2015, there will be any positive change in its financial condition.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents or on Schedule 3.16, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectsubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1March 31, 20062007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since March 31, 2007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1the date of the Company’s most recent audited financial statements contained in a Form 10-K, 2006except as disclosed in the SEC Documents filed subsequent to such Form 10-K, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1, 2006the date of the Company’s most recent audited financial statements contained in a Form 10-K, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 assets outside of the ordinary course of business, business or (iii) had made any material capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess the ordinary course of $100,000 owed to itbusiness. The Company has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company have any knowledge or reason to believe that any of its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereofnot, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means means, (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)below), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, matured or (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the mature. The Company has not engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conductedcapital.

Absence of Certain Changes. Since January 1December 31, 20062004, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company. Except as disclosed in Schedule 3(l), since December 31, 2004, neither the Company or nor any of its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 4.9, 2006since December 31, 2008, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 4.9, 2006since December 31, 2008, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 25,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it25,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j)4.9, “Insolvent” means means, with respect to any Person (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o)4.16), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2003, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess 100,000 outside of $100,000 owed to itthe ordinary course of business. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1March 31, 20062007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1March 31, 20062007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 5,000,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as expressly disclosed in the SEC Documents filed at least ten (10) days prior to the date hereof, 2006since December 31, 2001 there has been no material adverse change or and no material adverse development in the business, properties, assets, operations, condition (financial or otherwise), results of operations operations, financial conditions or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to itSubsidiaries. The Company has not taken any steps steps, and does not currently expect to take any steps, to seek protection pursuant to any bankruptcy law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j3(g), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur incur, or believes that it will incur incur, debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. Except as disclosed in Schedule 3(g), since December 31, 2002 the Company has not declared or paid any dividends, sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business or had capital expenditures, individually or in the aggregate, in excess of $100,000.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l) or in the SEC Documents listed in Schedule 3(l), since September 30, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), ) or results of operations or prospects of the Company or its Subsidiaries that has had taken as a whole. Except as disclosed in Schedule 3(l) or could reasonably be expected to have a Material Adverse Effect. Since January 1in the SEC Documents listed in Schedule 3(l), since September 30, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l) or as set forth in the SEC Documents, 2006since December 31, 2013, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2013, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), since December 31, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 300,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since September 30, 2007, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since September 30, 2007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, since December 31, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062013, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062013, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, will not as of the date hereofbe, and after giving effect to the transactions contemplated hereby to occur at the Closing will not beClosing, Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l) or the SEC Documents, 2006since December 31, 2004, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial condition, or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 2,000,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it2,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and or is proposed about to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062003, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. For the purposes of this Section 3(l) to the extent a liability is deemed “contingent” in the determination of whether the Company is Insolvent, any assets that would be realized upon the occurrence of the contingency and satisfaction of the contingent liability (by way of example, such as the right of the Company to realize subrogation, reimbursement or contribution rights after fully satisfying obligations to a third party), shall be included as assets in such determination.

Absence of Certain Changes. Since January 1December 31, 20062004, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2013, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have taken as a Material Adverse Effectwhole, other than as publicly disclosed. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2013, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or 7,100,000 in respect of exploration capital expenditures, $43,300,000 in respect of development capital expenditures (iv) waived net of pre-commercial production revenues), $7,200,000 in respect of ongoing capital expenditures and $1,700,000 in respect of fixed asset purchases. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing each Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062003, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), ) or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Except as disclosed in Schedule 3(l), the Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2008, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2008, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 25,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it25,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 6, 20062017, there has been no change event, occurrence or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or that could reasonably be expected to have result in a Material Adverse Effect. Since January 1December 6, 20062017, neither the Company nor its Subsidiary has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had other than expenditures made in connection with the transactions contemplated by this Agreement made any capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess the ordinary course of $100,000 owed to itbusiness. The Neither the Company nor its Subsidiary has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or its Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as As of the date hereof, hereof and after giving effect to the transactions contemplated hereby to occur at the Closing will not beClosings, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means (i) the present fair saleable value of the Company’s assets of the Company and its Subsidiary, taken as a whole, is less than the amount required to pay the Company’s and its Subsidiary’s total Indebtedness (as defined in Section 3(o)below), (ii) the Company is unable and its Subsidiary are able to pay its their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends and its Subsidiary do not intend to incur or believes believe that it they will incur debts that would be beyond its their ability to pay as such debts mature or mature, and (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged and its Subsidiary, taken as such business is now conducted and is proposed to be conducteda whole, are solvent under U.S. law.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2020, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or any of its Subsidiaries. Since December 31, 2020, neither the Company nor any of its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had made any capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived the ordinary course of business. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not bebe Insolvent. Neither the Company nor any of its Subsidiaries has engaged in any business or in any transaction, Insolvent (as defined below). For purposes of this Section 3(j)and is not about to engage in any business or in any transaction, “Insolvent” means (i) the present fair saleable value of for which the Company’s or such Subsidiary’s remaining assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Other than as set forth in the SEC Documents, 2006since the date of the Company’s most recent SEC Documents, there has been no material adverse change or development in the businessand no material adverse development, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have which constitutes a Material Adverse EffectEffect as defined in Section 3(a) of this Agreement. Since January 1December 31, 20062004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess 50,000 outside of $100,000 owed to itthe ordinary course of business. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing each Closing, will not be, Insolvent (as defined below)be Insolvent. For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person, (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), since September 30, 2006, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or and its Subsidiaries that has had or could reasonably be expected to have Subsidiaries, taken as a Material Adverse Effectwhole. Since January 1Except as disclosed in Schedule 3(l), since September 30, 2006, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 250,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not benot, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1, 2006the filing date of the Company’s registration statement and prospectus as set forth in Part I of Schedule 3(l), there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1Except as disclosed in Part II of Schedule 3(l), 2006since December 31, 2002, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as Indebtedness(as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except in the ordinary course of business, since May 15, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectsubsidiaries. Since January 1May 15, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j)Section, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and or is proposed about to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l) or as set forth in the SEC Documents, 2006since December 31, 2014, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2014, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2010, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2010, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person, (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2007, there has been no material adverse change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have Subsidiaries, taken as a Material Adverse Effectwhole. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2007, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 2,500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 2,500,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1, 20062003, except as disclosed in Schedule 3(l), there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1, 20062003, the Company has not not: (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 250,000 outside of the ordinary course of business, or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means "INSOLVENT" means: (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o)3(r) below), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature mature, or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062019 (the “10-K Date”), and other than as disclosed in the SEC Documents, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or any of its Subsidiaries that has had or could reasonably be expected to have taken as a Material Adverse Effectwhole. Since January 1the 10-K Date, 2006, neither the Company nor any of its Subsidiaries has not (i) declared or paid taken any dividends, (ii) sold any assets, individually or in action that if taken after the aggregate, in excess of $100,000 outside date hereof would require the consent of the ordinary course Purchaser pursuant to Section 5.1(b). Neither the Company nor any of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law applicable Law relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge Knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge Knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and and, after giving effect to the transactions contemplated hereby to occur at by the Closing Definitive Documents, will not be, Insolvent (as defined below)Insolvent. For purposes Neither the Company nor any of this Section 3(j)its Subsidiaries has engaged in any business or in any transaction, “Insolvent” means (i) the present fair saleable value of and does not plan to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s remaining assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2005, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could would reasonably be expected to have result in a Material Adverse Effect. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually assets outside of the ordinary course of business or in the aggregate, in excess of $100,000 (iii) had capital expenditures outside of the ordinary course of business, (iii) had capital expenditures, individually or in . Neither the aggregate, in excess Company nor any of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge Knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person (as defined in Section 3(r)) (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since Except as disclosed in any SEC Documents that were filed with the SEC at least five (5) days prior to the date of this Agreement or as set forth in Schedule 3(g), since January 1, 20062015, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company has not taken any steps steps, and the Company currently does not expect to take any steps, to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its the creditors of the Company intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is not as of the date hereof, and nor after giving effect to the transactions contemplated hereby to occur at the Closing hereby, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(g), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur incur, prior to December 31, 2018, or believes that it will incur incur, prior to December 31, 2018, debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. Except as disclosed in Schedule 3(g), since January 1, 2015, the Company has not declared or paid any dividends or sold any assets outside of the ordinary course of business, individually or in the aggregate, in excess of $50,000. Except as disclosed in Schedule 3(g), since January 1, 2015, the Company has not had any capital expenditures outside the ordinary course of its business in excess of $50,000.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2011, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2011, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1March 31, 20062011, there has not been any event or condition of any character which has materially adversely affected, or may be expected to materially adversely affect, the Company’s business or prospects, including, but not limited to any material adverse change in the condition, assets, Liabilities (existing or contingent) or business of the Company from that shown in the Financial Statements. As of the date hereof, there has been no change material adverse changes or development developments in the business, properties, operations, condition (financial or otherwise), results of operations ) or prospects of the Company or its Subsidiaries that has had have resulted, or could reasonably be expected to have a Material Adverse Effect. Since January 1, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregateresult, in excess of $100,000 outside of a material adverse effect on the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to itCompany. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j4(5), “Insolvent” means means, with respect to the Company, (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness Liabilities (as defined in Section 3(o)existing or contingent), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(q)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1, 2006the date of the latest audited financial statements included within the SEC Documents, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since the date of the latest audited financial statements included within the SEC Documents, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 250,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it250,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or and its Subsidiaries that has had or could reasonably be expected to have taken as a Material Adverse Effectwhole. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as included in the SEC Documents, 2006since the Company’s quarterly report on Form 10-Q for the period ended August 31, 2011 (the “Quarterly Statement Date”) there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1the Quarterly Statement Date, 2006, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis are not as of the date hereof, hereof and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person) (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20062020 (the “10-K Date”), and other than as disclosed in the SEC Documents, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or any of its Subsidiaries that has had or could reasonably be expected to have taken as a Material Adverse Effectwhole. Since January 1the 10-K Date, 2006, neither the Company nor any of its Subsidiaries has not (i) declared or paid taken any dividends, (ii) sold any assets, individually or in action that if taken after the aggregate, in excess of $100,000 outside date hereof would require the consent of the ordinary course Purchaser pursuant to Section 5.1(b). Neither the Company nor any of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law applicable Law relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge Knowledge or reason to believe that its any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge Knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and and, after giving effect to the transactions contemplated hereby to occur at by the Closing Definitive Documents, will not be, Insolvent (as defined below)Insolvent. For purposes Neither the Company nor any of this Section 3(j)its Subsidiaries has engaged in any business or in any transaction, “Insolvent” means (i) the present fair saleable value of and does not plan to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s remaining assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as set forth on Schedule 3(l)(i), since March 31, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l)(ii), since March 31, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 500,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1the date of the Company’s most recent audited financial statements contained in a Form 10-K, 2006except as disclosed in the SEC Documents filed subsequent to such Form 10-K, there has been no material adverse change or and no material adverse development in the business, assets, liabilities, properties, operationsoperations (including results thereof), condition (financial or otherwise), results of operations ) or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1, 2006the date of the Company’s most recent audited financial statements contained in a Form 10-K, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 material assets outside of the ordinary course of business, business or (iii) had made any material capital expenditures, individually or in the aggregate, in excess outside of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess the ordinary course of $100,000 owed to itbusiness. The Company has not taken any steps to seek protection pursuant to any bankruptcy law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company have any knowledge or reason to believe that any of its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereofnot, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means means, (iA) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)below), (iiB) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, matured or (iiiC) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the mature. The Company has not engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.capital. DM_US 86580026-11.096039.0012 0000-0000-0000, v. 1

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l) or the SEC Documents, since September 30, 2006, there has been no change event, occurrence or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could that would reasonably be expected to have result in a Material Adverse Effect. Since January 1Except as disclosed in Schedule 3(l) or as disclosed in the SEC Documents, since September 30, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 1,000,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since September 30, 2010 there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiary. Since January 1September 30, 20062010, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1December 31, 20061997, except as disclosed in the SEC Documents, there has been no material adverse change or and no material adverse development in the business, properties, operations, prospects, condition (financial or otherwise), or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1December 31, 20061997, except as disclosed in the SEC Documents, neither the Company nor any of its subsidiaries has not (i) declared incurred or paid become subject to any dividends, material liabilities (absolute or continent) except liabilities incurred in the ordinary course of business consistent with past practices; (ii) sold discharged or satisfied any material obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business consistent with past practices; (iii) declared or made any payment or distribution of cash or other property to stockholders with respect to its capital stock, or purchased or redeemed, or made agreements to purchase or redeem, any shares of its capital stock; (iv) sold, assigned or transferred any other tangible assets, individually or canceled any debts or claims, except in the aggregateordinary course of business consistent with past practices; (v) suffered any substantial losses or waived any rights of material value, whether or not in excess of $100,000 outside of the ordinary course of business, or suffered the loss of any material amount of existing business; (iiivi) had capital expenditures, individually or made any changes in employee compensation except in the aggregate, in excess ordinary course of $500,000 business consisted with past practices; or (ivvii) waived experienced any material rights problems with respect to any Indebtedness labor or other rights management in excess connection with the terms and conditions of $100,000 owed to ittheir employment. The Company has not taken any steps steps, and does not currently expect to take any steps, to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent” means (i) the present fair saleable value of against the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2013, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2013, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2009, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2009, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 100,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, were not, as of the date of the Original Agreement, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closings, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2002, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial condition, or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectany Subsidiary. Since January 1December 31, 20062002, the Company has not (i) declared or paid any dividendsdividends (other than in connection with the Company's 3% Cumulative Convertible Preferred Stock), (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereofCompany, and after giving effect to the transactions contemplated hereby to occur at the Closing each Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 27, 2003, there has been no material adverse change or and no material adverse development in the business, properties, operations, financial condition (financial or otherwise), results of operations or prospects of the Company or and its Subsidiaries that has had or could reasonably be expected to have Subsidiaries, taken as a Material Adverse Effectwhole. Since January 1Except as disclosed in Schedule 3(l), 2006since December 27, 2003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 3,000,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it3,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as described in the SEC Documents and the Supplemental Disclosure Document, since June 30, 2006, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1Except as disclosed in Schedule 3(l), since June 30, 2006, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it250,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, Insolvent (as defined below)be Insolvent. For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since August 31, 2005, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1Except as disclosed in Schedule 3(l), 2006since August 31, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually assets or in the aggregate, in excess of $100,000 outside of the ordinary course of business, (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents, 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse Effectsubsidiaries. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 50,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after After giving effect to the transactions contemplated hereby to occur at the Closing Closing, the Company will not be, be Insolvent (as defined belowhereinafter defined). For purposes of this Section 3(j)Agreement, “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as specifically disclosed in the SEC Documents filed not later than 10 days prior to the date hereof, 2006since December 31, 2003, there has been no material adverse change or and no material adverse development in the business, properties, assets, operations, condition (financial or otherwise), results of operations operations, financial condition or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1September 30, 20062004, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 500,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it500,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company Company, is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(r)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing applicable Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since September 30, 2002, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062001, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,300,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing each Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectCompany. Since January 1Except as disclosed in Schedule 3(l), 2006since June 30, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing applicable Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Other than as set forth on Schedule 3(l), 2006since December 31, 2005, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), ) or results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived 500,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which that would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)), (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as set forth in Schedule 3(l), 2006since December 31, 2008, there has been no material adverse change or and no material adverse development in the business, assets, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2008, neither the Company nor any of its Subsidiaries has not (i) declared or paid any dividends, (ii) sold any assetsassets to a third party, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in a series of related payments in the aggregate, in excess of $500,000 or (iv) waived 350,000. Neither the Company nor any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it. The Company its Subsidiaries has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “"Insolvent” means " means, with respect to any Person, (i) the present fair saleable value of the Company’s such Person's assets is less than the amount required to pay the Company’s such Person's total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in SCHEDULE 3(L), 2006since December 31, 2003, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it100,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” "INSOLVENT" means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o))indebtedness, contingent or otherwise, (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(k), 2006since December 31, 2002, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to Subsidiaries, except for continued losses in operating results as have a Material Adverse Effectbeen publicly disclosed. Since January 1December 31, 20062002 and except as set forth on Schedule 3(k), the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 1,000,000 outside of the ordinary course of business, except for the sale of a revenue interest to Pxxx Royalty Fund, L.P. (the “Pxxx Royalty Transaction”) and certain of its affiliated entities or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s total current Indebtedness (as defined in Section 3(o3(r)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2007, there has been no material adverse change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1Except as disclosed in Schedule 3(l), 2006since December 31, 2007, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it3,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason reasonable basis to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(l), “Insolvent” means means, with respect to any Person (as defined in Section 3(s)) (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(s)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and maturedmatured in the ordinary course, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature in the ordinary course or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged engaged, as such business is now conducted and conducted, or in which it is proposed about to be conductedengaged.

Absence of Certain Changes. Since January 1Except as disclosed in the SEC Documents available on the XXXXX system, 2006since December 31, 2005, there has been no change or development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect. Since January 1December 31, 20062005, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 1,000,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it1,000,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does and the Company does not have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Closing, will not be, be Insolvent (as defined below). For purposes of this Section 3(j3(k), “Insolvent” means means, with respect to any Person (i) the present fair saleable value of the Companysuch Person’s assets is less than the amount required to pay the Companysuch Person’s total Indebtedness (as defined in Section 3(o3(w)), (ii) the Company such Person is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company such Person intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company such Person has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.

Absence of Certain Changes. Since January 1Except as disclosed in Schedule 3(j), 2006since December 31, 2003, there has been no material adverse change or and no material adverse development in the business, properties, operations, condition (financial or otherwise), results of operations or prospects of the Company or its Subsidiaries that has had or could reasonably be expected to have a Material Adverse EffectSubsidiaries. Since January 1December 31, 20062003, the Company has not (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, in excess of $100,000 250,000 outside of the ordinary course of business, business or (iii) had capital expenditures, individually or in the aggregate, in excess of $500,000 or (iv) waived any material rights with respect to any Indebtedness or other rights in excess of $100,000 owed to it250,000. The Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company is not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the each Closing will not be, Insolvent (as defined below). For purposes of this Section 3(j), “"Insolvent” " means (i) the present fair saleable value of the Company’s 's assets is less than the amount required to pay the Company’s 's total Indebtedness (as defined in Section 3(o3(q)), (ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, (iii) the Company intends to incur or believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) the Company has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.