COMPANY DATED THE CLOSING AND CERTIFYING:
(A) THAT
ATTACHED THERETO IS A TRUE AND COMPLETE COPY OF THE BYLAWS OF THE COMPANY AS IN
EFFECT ON THE DATE OF SUCH CERTIFICATION; (B) THAT ATTACHED THERETO IS A TRUE
AND COMPLETE COPY OF ALL RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF THE
COMPANY AUTHORIZING THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT
AND THE SECURITY AND PLEDGE AGREEMENT, THE ISSUANCE, SALE AND DELIVERY OF THE
NOTE, AND THAT ALL SUCH RESOLUTIONS ARE IN FULL FORCE AND EFFECT AND ARE ALL THE
RESOLUTIONS ADOPTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT; (C) THAT THE CERTIFICATE OF INCORPORATION OF THE COMPANY HAS NOT BEEN
AMENDED SINCE THE DATE OF THE LAST AMENDMENT REFERRED TO IN THE CERTIFICATE
DELIVERED PURSUANT TO CLAUSE (I)(B) ABOVE; AND (D) TO THE INCUMBENCY AND
SPECIMEN SIGNATURE OF EACH OFFICER OF THE COMPANY EXECUTING ANY OF THIS
AGREEMENT, THE SECURITY AND PLEDGE AGREEMENT, THE NOTE AND ANY CERTIFICATE OR
INSTRUMENT FURNISHED PURSUANT HERETO, AND A CERTIFICATION BY ANOTHER OFFICER OF
THE COMPANY AS TO THE INCUMBENCY AND SIGNATURE OF THE OFFICER SIGNING THE
CERTIFICATE REFERRED TO IN THIS CLAUSE (II); AND
(III)
SUCH ADDITIONAL SUPPORTING DOCUMENTS AND
OTHER INFORMATION WITH RESPECT TO THE OPERATIONS AND AFFAIRS OF THE COMPANY AS
THE PURCHASER OR ITS COUNSEL MAY REASONABLY REQUEST.
12
All such documents will be satisfactory in form and substance to the Purchaser
and its counsel.
(G)
PREEMPTIVE AND FIRST REFUSAL RIGHTS.
ALL
STOCKHOLDERS OF THE COMPANY HAVING ANY PREEMPTIVE OR FIRST REFUSAL RIGHTS WITH
RESPECT TO THE ISSUANCE OF THE NOTE WILL HAVE IRREVOCABLY WAIVED THE SAME IN
WRITING OR ALL SUCH RIGHTS WILL HAVE EXPIRED.
(H)
FEES OF PURCHASER'S COUNSEL.
THE COMPANY
WILL HAVE PAID IN ACCORDANCE WITH SECTION 7.01 THE FEES AND DISBURSEMENTS OF THE
PURCHASER'S COUNSEL INVOICED AT THE CLOSING; PROVIDED, HOWEVER, THAT THE
PURCHASER MAY DEDUCT SUCH AMOUNTS FROM THE CONSIDERATION TO BE DELIVERED TO THE
COMPANY FOR THE PURCHASE OF THE NOTE PURSUANT TO SECTION 1.01.
ARTICLE V
COVENANTS OF THE COMPANY
The Company agrees that, so long as the Note is outstanding, except to the
extent compliance in any case or cases is waived in writing by the then Holder
of the Note:
SECTION 5.01.
FINANCIAL STATEMENTS, REPORTS, ETC.
THE COMPANY WILL
FURNISH TO THE HOLDER:
(A)
WITHIN NINETY (90) DAYS AFTER THE END OF
EACH FISCAL YEAR OF THE COMPANY A CONSOLIDATED BALANCE SHEET OF THE COMPANY AND
ITS SUBSIDIARIES, IF ANY, AS OF THE END OF SUCH FISCAL YEAR AND THE RELATED
CONSOLIDATED STATEMENTS OF INCOME FOR THE FISCAL YEAR THEN ENDED, PREPARED IN
ACCORDANCE WITH GAAP AND CERTIFIED BY A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS
OF RECOGNIZED NATIONAL STANDING SELECTED BY THE BOARD OF DIRECTORS OF THE
COMPANY;
(B)
WITHIN FORTY FIVE (45) DAYS AFTER THE END
OF EACH FISCAL QUARTER IN EACH FISCAL YEAR A CONSOLIDATED BALANCE SHEET OF THE
COMPANY AND ITS SUBSIDIARIES, IF ANY, AND THE RELATED CONSOLIDATED STATEMENTS OF
INCOME UNAUDITED BUT