Common use of SEC and Other Documents; Financial Statements; Undisclosed Liabilities Clause in Contracts

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common Stock, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration Statement, which are set forth in Schedule 3.5(a), each in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Except as and to the extent set forth in the Company Reports and the Company's financial statements filed with the SEC or in any Schedule hereto, to the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (d) The books of account and other financial records of the Company and each of its Subsidiaries are in all respects true and complete, have been maintained in accordance with good business practices, and are accurately reflected in all respects in the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) 5.1 The Company has delivered or made available to Buyer Xxxxx Xxxxxxx and Xxxx Xxxxxxxxx, on behalf of the Contributors the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common StockInitial Public Offering, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration StatementStatement up through the date hereof, each of which are set forth in Schedule 3.5(a), each ) and are in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) 5.2 Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings stockholders' equity (deficit) or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) 5.3 Except as and to the extent set forth in the Company Reports and the Company's financial statements filed with the SEC or in any Schedule hereto, to the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (d) The books of account and other financial records of the Company and each of its Subsidiaries are in all respects true and complete, have been maintained in accordance with good business practices, and are accurately reflected in all respects in the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common StockInitial Public Offering, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration StatementStatement up through the date hereof, each of which are set forth in Schedule 3.5(a), each ) and are in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings stockholders' equity (deficit) or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Except The Company has delivered to Buyer a balance sheet, dated as and of January 1, 1998, adjusted to give effect to the extent set forth in transactions contemplated by this Agreement, the Company Reports Kane Purchase Agreement and the Company's financial statements filed with Konover Purchase Agreement as if such trxxxxctions had occurred on January 1, 1998 (the SEC or in any Schedule hereto, to "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet is based on the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (d) The books of account and other financial records consolidated balance sheets of the Company and each of its Subsidiaries are in all respects true and completeas of December 31, 1997 which the Company believes have been maintained prepared in accordance with good business practicesGAAP; provided, that the columns labeled "Kane" and "Konover" on the Pro Forma Balance Sheet are accurately reflected in all respects in based on the termx of the Kane Purchase Agreement and the Konover Purchase Agreement, respectively, xxd, where applicable, financial statements included in prepared by management of Kane and Konover, respectively. The Pro Forma Balance Sheet fairly presexxx the pxx xxxxa financial position of the Company Reports, except, as of its date in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effectaccordance with GAAP consistently applied.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the Purchaser the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common Stock, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, including annual and quarterly reports, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration Statement, which documents are set forth listed in Schedule 3.5(a)2.5(a) attached hereto, each in the form (including exhibits and any amendments thereto) filed with the SEC Commission (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the The Company Reports were filed with the SEC Commission in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder and any applicable state securities laws (the "Securities Laws"). As of their respective dates, dates the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not materially misleading. There is no unresolved violation of the Securities Laws asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the any related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholdersshareholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involvedinvolved ("GAAP"), except as may be noted therein and except, in the case of the unaudited statements, subject to normal recurring year-end adjustments adjustments. The Company has heretofore furnished the Purchaser with a pro forma consolidated balance sheet of the Company, as of the Closing Date, giving effect to the issuance of the Convertible Notes. (c) Except as set forth on Schedules 2.5(c), 2.8, 2.11, 2.15 and 2.26 attached hereto and except in connection with the transactions contemplated hereby, since December 31, 1998, no Transaction Party and, with respect to clauses (i), (ii) and (xv) only, no Practice has: (i) failed, in any material respect to conduct its business in the ordinary course in a manner consistent with past practice; (ii) experienced any change, event or circumstance that could reasonably be expected to have a Material Adverse Effect; (iii) other than in the ordinary course of business consistent with past practice, purchased, sold, leased, pledged, encumbered or otherwise acquired or disposed of any properties or assets relating to its business or operations; (iv) experienced any material damage, destruction or loss to or of any of its assets which would notare necessary to the conduct of its business; (v) except in the ordinary course of business consistent with past practice, made or agreed to make any increase in the compensation or severance arrangement of any officer, director or employee; (vi) experienced material adverse changes in lease rates under existing leases; (vii) written down or cancelled any material Indebtedness or waived or released any right or claim which individually or in the aggregate is material; (viii) suffered any judgment with respect to, or made any settlement of, any claim, suit, action or proceeding which could reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. ; (cix) Except effected any material change in accounting practices and procedures, other than changes required as a result of changes in GAAP; (x) amended its organizational documents; (xi) incurred or assumed any Indebtedness or guaranteed or otherwise become responsible for any such liabilities, obligations or Indebtedness; (xii) acquired or agreed to acquire by merging or consolidation with, or by purchasing the assets or stock, of or by any other manner, any Person or division thereof or otherwise acquire or agree to acquire any assets (other than inventory) which are material to any Transaction Party taken together; (xiii) initiated or settled any material litigation to which any Transaction Party is a party; (xiv) failed to preserve intact its business organization; (xv) failed to keep available the services of its officers and to the extent set forth in the Company Reports and the Company's financial statements filed material employees; (xvi) adopted or increased any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with the SEC or in any Schedule hereto, to the Company's knowledge, none of the Company or any of its Subsidiaries has employees; (xvii) failed to maintain its reserves in a manner consistent with the policies and principles used by the Company in connection with the preparation of the balance sheets included in or incorporated by reference into the Company Reports; (xviii) issued or sold any Liabilities shares of capital stock or any other securities, or issued any securities convertible into, or options warrants or rights to purchase or subscribe to, or entering into any arrangement or contract with respect to the issue and sale of, any shares of its capital stock or any other securities, or made any other changes in its capital structure; (nor do there exist any circumstancesxix) that would, individually experienced material changes in HMO or other payor contracts with respect to the purchase price paid for Practice-related services or in volume reductions as set forth therein; (xx) experienced material changes with respect to existing contracts with radiologists; or (xxi) agreed to any of the aggregate, reasonably be expected to result in a Material Adverse Effectforegoing. (d) The books of account and other financial records of After giving effect to the transactions contemplated hereby, except for the Convertible Notes, neither the Company and each nor any of its Subsidiaries are in all respects true and complete, shall have been maintained in accordance with good business practices, and are accurately reflected in all respects in the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effectany outstanding Indebtedness except for Indebtedness listed on Schedule 2.5(d).

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common StockInitial Public Offering, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration StatementStatement up through the date hereof, each of which are set forth in Schedule 3.5(a), each ) and are in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings stockholders' equity (deficit) or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Except The Company has delivered to Buyer a balance sheet, dated as and of January 1, 1998, adjusted to give effect to the extent set forth in transactions contemplated by this Agreement, the Company Reports Xxxx Purchase Agreement and the Company's financial statements filed with Konover Purchase Agreement as if such transactions had occurred on January 1, 1998 (the SEC or in any Schedule hereto, to "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet is based on the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (d) The books of account and other financial records consolidated balance sheets of the Company and each of its Subsidiaries are in all respects true and completeas of December 31, 1997 which the Company believes have been maintained prepared in accordance with good business practicesGAAP; provided, that the columns labeled "Xxxx" and "Xxxxxxx" on the Pro Forma Balance Sheet are accurately reflected in all respects in based on the terms of the Xxxx Purchase Agreement and the Konover Purchase Agreement, respectively, and, where applicable, financial statements included in prepared by management of Xxxx and Xxxxxxx, respectively. The Pro Forma Balance Sheet fairly presents the pro forma financial position of the Company Reports, except, as of its date in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effectaccordance with GAAP consistently applied.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (ai) The Company BPP has delivered or made available to Buyer the registration statement Contributors, or there are commercially available to BPP in the ordinary course, all annual, quarterly or current reports of the Company BPP filed with the Securities Commission under the Exchange Act, and Exchange Commission ("SEC") in connection with the CompanyBPP's initial public offering of Company Common Stockregistration statement bearing number 333-31591, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of in each case (except the Company Registration Statement, since January 1,1994 (except as to the Company Registration Statement as to which the applicable date shall be the effective date thereof), which are set forth in Schedule 3.5(a3.2(e)(i), each in the form (including exhibits and any amendments thereto) filed with the SEC Commission (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the The Company Reports were filed with the SEC Commission in a timely manner and constitute all forms, reports and documents required to be filed by the Company BPP under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws")thereunder. As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws Act, the Exchange Act and the rules and regulations promulgated thereunder and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in 54 the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that as to the compliance of the Company Reports with the requirements of the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder, insofar as such representation is made as to matters of form established in the Securities Act, the Exchange Act and the rules and regulations promulgated hereunder, and assuming that such Company Reports were prepared under the direction of and with the advice of independent counsel and auditors to BPP, it is a representation made to BPP's knowledge. There is no unresolved violation or position asserted or comments issued by any Government Authority with respect to any of the Company Reports. (bii) Each Except as set forth in Schedule 3.2(e)(ii), each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedulesSchedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedulesSchedules) fairly presented the results of operations, retained earnings or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, involved except as may be noted therein and except, in in, the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effectadjustments. (ciii) Except as and to the extent set forth in the Company Reports and the Company's financial statements filed with the SEC or in any Schedule or Exhibit hereto, to the Company's knowledge, none of BPP, the Company Operating Partnership or any of its the Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse EffectLiabilities. (d) The books of account and other financial records of the Company and each of its Subsidiaries are in all respects true and complete, have been maintained in accordance with good business practices, and are accurately reflected in all respects in the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the Purchaser the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common Stock, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, including annual and quarterly reports, proxy statement or information statement which are set forth in Schedule 2.5(a) attached hereto, and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration Statement, which are set forth in Schedule 3.5(a), each in the form (including exhibits and any amendments thereto) filed with the SEC Commission (and including the March 31, 1998 10-K of the Company which has not yet been filed, collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the The Company Reports were filed (or, in the case of the March 31, 1998 10-K, will be filed) with the SEC Commission in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder and any applicable state securities laws (the "Securities Laws"). As of their respective datesdates (and, as of the date hereof, in the case of the March 31, 1998, 10-K), the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the any related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholdersshareholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involvedinvolved ("GAAP"), except as may be noted therein and except, in the case of the unaudited statements, subject to normal recurring year-end adjustments adjustments. The Company has heretofore furnished the Purchaser with a pro forma combined balance sheet of the Company, as of June 30, 1998, giving effect to the issuance of the Preferred Stock and Warrants. (c) Except as set forth on Schedule 2.5(c) attached hereto and except in connection, with the transactions contemplated hereby and the Senior Credit Documents, since December 31, 1997, no Transaction Party has: (i) failed to conduct its business in the ordinary course in a manner consistent with past practice; (ii) experienced any change, event or circumstance that could reasonably be expected to have a Material Adverse Effect; (iii) other than in the ordinary course of business consistent with past practice, purchased, sold, leased, pledged, encumbered or otherwise acquired or disposed of any properties or assets relating to its business or operations; (iv) experienced any material damage, destruction or loss to or of any of its assets which would notare necessary to the conduct of its business; (v) except in the ordinary course of business consistent with past practice, made or agreed to make any increase in the compensation or severance arrangement of any officer, director or employee; (vi) paid (or committed to pay) any management fee or made (or committed to make) any loan or distribution of its property or assets, or declared, paid or set aside for payment any dividend or distribution with respect to its equity securities, or purchased or redeemed (or committed to purchase or redeem) any of its equity securities; (vii) written down or canceled any material Indebtedness or waived or released any right or claim which individually or in the aggregate is material; (viii) suffered any judgment with respect to, or made any settlement of, any claim, suit, action or proceeding which could reasonably be expected to have, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. ; (cix) Except effected any material change in accounting practices and procedures, other than changes required as and to the extent set forth a result of changes in GAAP; (x) amended its organizational documents; (xi) incurred or assumed any Indebtedness or guaranteed or otherwise become responsible for any such liabilities, obligations or Indebtedness; (xii) other than in the Company Reports ordinary course of business consistent with past practice, acquired or agreed to acquire by merging or consolidation with, or by purchasing the assets or stock, of or by any other manner, any Person or division thereof or otherwise acquire or agree to acquire any assets (other than inventory) which are material to any Transaction Party taken together; (xiii) initiated or settled any material litigation to which any Transaction Party is a party; (xiv) failed to preserve intact its business organization; (xv) failed to keep available the services of its officers and the Company's financial statements filed employees; (xvi) adopted or increased any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with the SEC or in any Schedule hereto, to the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities employees; (nor do there exist any circumstancesxvii) that would, individually or in the aggregate, reasonably be expected failed to result maintain its reserves in a Material Adverse Effectmanner consistent with the policies and principles used by the Company in connection with the preparation of the balance sheets included in or incorporated by reference into the Company Reports; (xviii) other than shares or options issued to employees, as set forth on Schedule 2.2, issued or sold any shares of capital stock or any other securities, or issued any securities convertible into, or options warrants or rights to purchase or subscribe to, or entering into any arrangement or contract with respect to the issue and sale of, any shares of its capital stock or any other securities, or made any other changes in its capital structure; or (xix) agreed to any of the foregoing. (d) The books of account and other financial records of Except as set forth on Schedule 2.5(c), after giving effect to the transactions contemplated hereby, neither the Company and each nor any of its Subsidiaries are in all respects true and complete, shall have been maintained in accordance with good business practices, and are accurately reflected in all respects in any outstanding Indebtedness except for Indebtedness under the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse EffectCredit Agreement.

SEC and Other Documents; Financial Statements; Undisclosed Liabilities. (a) The Company has delivered or made available to Buyer the registration statement of the Company filed with the Securities and Exchange Commission ("SEC") in connection with the Company's initial public offering of Company Common StockInitial Public Offering, and all exhibits, amendments and supplements thereto (collectively, the "Company Registration Statement"), and each registration statement, report, proxy statement or information statement and all exhibits thereto prepared by it or relating to its properties since the effective date of the Company Registration StatementStatement up through the date hereof, each of which are set forth in Schedule 3.5(a), each ) and are in the form (including exhibits and any amendments thereto) filed with the SEC (collectively, the "Company Reports"). Except as set forth in Schedule 3.5(a), the Company Reports were filed with the SEC in a timely manner and constitute all forms, reports and documents required to be filed by the Company under the Securities Act, the Exchange Act and the rules and regulations promulgated thereunder (the "Securities Laws"). As of their respective dates, the Company Reports (i) complied as to form in all material respects with the applicable requirements of the Securities Laws and (ii) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading. There is no unresolved violation asserted or comments issued by any Government Authority with respect to any of the Company Reports. (b) Each of the balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presented the financial position of the entity or entities to which it relates as of its date and each of the statements of operations, stockholders' equity (deficit) and cash flows included in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presented the results of operations, retained earnings stockholders' equity (deficit) or cash flows, as the case may be, of the entity or entities to which it relates for the periods set forth therein, in each case in accordance with United States generally accepted accounting principles ("GAAP") consistently applied during the periods involved, except as may be noted therein and except, in the case of the unaudited statements, normal recurring year-end adjustments which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (c) Except The Company has delivered to Buyer a balance sheet, dated as and of January 1, 1998, adjusted to give effect to the extent set forth in transactions contemplated by this Agreement, the Company Reports Xxxx Purchase Agreement and the Company's financial statements filed with Konover Purchase Agreement as if such transactions had occurred on January 1, 1998 (the SEC or in any Schedule hereto, to "Pro Forma Balance Sheet"). The Pro Forma Balance Sheet is based on the Company's knowledge, none of the Company or any of its Subsidiaries has any Liabilities (nor do there exist any circumstances) that would, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. (d) The books of account and other financial records consolidated balance sheets of the Company and each of its Subsidiaries are in all respects true and completeas of December 31, have been maintained in accordance with good business practices, and are accurately reflected in all respects in the financial statements included in the Company Reports, except, in each case, as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.1997 which the