dates thereof and for the periods indicated therein
and has been prepared in accordance with GAAP, consistently applied, except the
Latest Balance Sheet and other interim unaudited financial statements do not
contain the footnotes required by GAAP.
(B)
ATTACHED HERETO ON THE "PROJECTIONS SCHEDULE" IS A TRUE AND
COMPLETE COPY OF THE LATEST PROJECTIONS OF THE CONSOLIDATED INCOME AND CASH
FLOWS OF THE COMPANY GROUP AND EAG FOR THE FISCAL YEAR ENDING OCTOBER 31, 2006.
SUCH PROJECTIONS HAVE BEEN PREPARED IN GOOD FAITH AND ARE BASED ON UNDERLYING
ASSUMPTIONS OF THE COMPANY WHICH PROVIDE A REASONABLE BASIS FOR THE PROJECTIONS
CONTAINED THEREIN, ARE IN THE SAME FORM AS THE BUDGET FOR THE FISCAL YEAR ENDING
OCTOBER 31, 2005 THAT HAS BEEN DELIVERED TO ABRY AND HAVE BEEN ADJUSTED TO
REFLECT THE ACQUISITION OF EAG.
2F.
SEC Filings.
(A)
SINCE NOVEMBER 1, 2001, THE COMPANY HAS MADE ALL FILINGS WITH THE
SEC THAT IT HAS BEEN REQUIRED TO MAKE UNDER THE SECURITIES ACT AND THE EXCHANGE
ACT (SUCH REPORTS COLLECTIVELY, THE "PUBLIC REPORTS").
EACH OF THE PUBLIC
REPORTS AS OF ITS DATE COMPLIED WITH THE SECURITIES ACT OR THE EXCHANGE ACT, AS
APPLICABLE, AND THE RULES PROMULGATED THEREUNDER OR PURSUANT THERETO IN ALL
MATERIAL RESPECTS.
NONE OF THE PUBLIC REPORTS, AS OF THEIR RESPECTIVE DATES,
CONTAINED ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMITTED TO STATE A MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE THEREIN, IN LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING, EXCEPT TO THE EXTENT
THAT A PUBLIC REPORT LISTED ON THE "PUBLIC REPORTS SCHEDULE" WAS CORRECTED BY A
PUBLIC REPORT SUBSEQUENTLY FILED WITH THE SEC.
(B)
EACH REQUIRED FORM, REPORT AND DOCUMENT CONTAINING FINANCIAL
STATEMENTS THAT THE COMPANY HAS FILED WITH OR SUBMITTED TO THE SEC SINCE JULY
31, 2002 WAS ACCOMPANIED BY THE CERTIFICATIONS REQUIRED TO BE FILED OR SUBMITTED
BY THE COMPANY'S CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER PURSUANT TO
THE SARBANES-OXLEY ACT OF 2002 AND THE RULES AND REGULATIONS PROMULGATED UNDER
SUCH ACT OR THE EXCHANGE ACT (COLLECTIVELY, THE "SARBANES-OXLEY ACT"), AND NO
SUCH CERTIFICATE HAS BEEN MODIFIED OR WITHDRAWN.
NEITHER THE COMPANY, ANY
SUBSIDIARY OF THE COMPANY NOR ANY OF ITS OFFICERS HAS RECEIVED NOTICE FROM ANY
GOVERNMENTAL ENTITY QUESTIONING OR CHALLENGING THE ACCURACY, COMPLETENESS,
CONTENT, FORM OR MANNER OF FILING OR SUBMISSION OF SUCH CERTIFICATIONS.
SECTION 3.
Representations of Purchasers; Legends.
3A.
Representations of Purchasers.
Each of the Purchasers, on a
several (and not a joint and several) basis, hereby represents and warrants to
the Company that each of the representations and warranties made by a Purchaser
in Section 10C (other than Section 10C(ii)) of the Note Purchase Agreement would
be true and correct as of the Closing Date with respect to such first referenced
Purchaser, if (i) references to "the Company" or "the Company Group" in such
sections were references to the Company, and (ii) references to "the Notes" in
such sections were references to the Warrants and Underlying Common Stock.
3B.