Common use of Conditions of the Agents’ Obligations Clause in Contracts

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities shall be subject to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Closing Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Date), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) the respective signers have each carefully examined the Offering Documents, and any amendments and supplements thereto, and, to the best of their knowledge, in the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than in the ordinary course of business.

Conditions of the Agents’ Obligations. The Agent's obligations of the Agent under this Agreement shall be subject to act as agent the accuracy of the representations and warranties of the Company hereunder and the Bank in this Agreement as of the date of this Agreement and as of the Closing Date (which for purposes of this Agreement, the term "Closing Date" is the date on which the terms of the Escrow Agreement have been satisfied and the funds held thereby are to be disbursed to the Company in accordance therewith), and are further subject to the performance by the Company of its obligations under this Agreement, and to find purchasers the following additional terms and conditions: (a) The Registration Statement shall have become effective not later than 5:00 P.M., Indianapolis time, on the date of this Agreement or on such later date and time as shall be consented to in writing by the Agent; if the filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules, the Prospectus shall have been filed in the manner and within the time period required by Rule 424(b) of the Rules; at the Closing Date, no stop order shall have been issued or proceedings therefor initiated or threatened by the Commission; and any request of the Commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Agent. (b) At the Closing Date, the Agent shall have received the opinion of Bose McKixxxx & Xvanx XXX, counsel for the Company, dated the Closing Date, addressed to the Agent and in a form and scope reasonably satisfactory to counsel for the Agent to the effect that: (i) Each of the Company and the Bank (A) is a corporation or banking corporation, as applicable, duly organized and validly existing under the laws of the State of Indiana, and (B) is not required to be qualified to do business in any jurisdiction outside Indiana, except where the failure to so qualify would not have a material adverse effect on the Company or the Bank; (ii) Each of the Company and the Bank has full corporate power and authority and all material authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies necessary to own or lease their respective properties and conduct their respective businesses as described in the Registration Statement and Prospectus; (iii) The Company has authorized capital stock and outstanding capital stock as set forth in the Prospectus; the Shares have been duly authorized and validly issued; upon receipt by the Company of payment therefor in accordance with the terms of this Agreement, the Shares and all other shares of capital stock of the Company will be fully paid and nonassessable and are not subject to preemptive rights; the capital stock and stock options of the Company conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus; (iv) The Company has no directly or indirectly held subsidiary other than the Bank; (v) The Company is the registered holder of all of the outstanding capital stock of the Bank, and all such shares of stock so held have been duly authorized and validly issued, fully paid and nonassessable and are owned free and clear of any liens, encumbrances or other claims or restrictions whatsoever, subject to the provisions of the Indiana Financial Institutions Act; (vi) The certificates evidencing the Shares are in the form approved by the Board of Directors of the Company, comply with the Bylaws and the Articles of Incorporation of the Company, and comply as to form and in all other material respects with applicable legal requirements; (vii) This Agreement has been duly and validly authorized, executed and delivered by the Company, and is the legal, valid and binding agreement and obligation of the Company enforceable in accordance with its terms, except (A) as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting enforcement of creditors' rights or by general equity principles, whether applied in an action at law or in equity, or by the discretionary nature of specific performance, injunctive relief, and other equitable remedies, including the appointment of a receiver, and (B), with respect to provisions relating to indemnification and contribution, to the extent they are held by a court of competent jurisdiction to be void or unenforceable as against public policy; (viii) The Company is conveying to purchasers of the Shares good and valid title to the Shares, free and clear of any liens, encumbrances, security interests, restrictions, and adverse claims; (ix) To the best of such counsel's knowledge or as set forth in the Prospectus, after due inquiry, there are (A) no contracts or other documents which are required to be filed as exhibits to the Registration Statement other than those filed as exhibits thereto, (B) no legal or governmental proceedings pending or threatened against the Company or the Bank, (C) no statutes or regulations applicable to the Company or the Bank which are of a character required to be disclosed in the Registration Statement and Prospectus which have not been so disclosed and properly described therein, and (D) no certificates, permits, grants or other consents, approvals, orders, licenses or authorizations from regulatory officials or bodies, which are required to be obtained or maintained by the Company or the Bank and which are of a character required to be disclosed in the Registration Statement and Prospectus which have not been so disclosed and properly described therein; (x) The statements in the Registration Statement and the Prospectus, insofar as they are descriptions of corporate documents, stock option plans, contracts, agreements or other documents specifically identified in the Registration Statement or descriptions of laws, regulations, or regulatory requirements, or refer to compliance with law or to statements of law or legal conclusions, are correct in all material respects; (xi) To the best of such counsel's knowledge, after due inquiry, the execution, delivery and performance of this Agreement, the consummation of the transactions herein contemplated and the compliance with the terms and provisions hereof by the Company will not give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in a breach of any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or require any consent under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or the Bank pursuant to the terms of, any lease, indenture, mortgage, note or other agreement or instrument to which the Company or the Bank is a party or by which either of them or either of their properties or businesses is or may be bound or affected, nor will such action result in any violation of the provisions of the articles of incorporation, charter or bylaws of the Company or the Bank or any statute or any order, rule, or regulation applicable to the Company or the Bank of any court or any federal, state, local or other regulatory authority or other governmental body, the effect of which, in any such case, would be expected to have a material adverse effect on the Company or the Bank; (xii) To the best of such counsel's knowledge, after due inquiry, no consent, approval, authorization or order of any court or governmental agency or body, domestic or foreign, is required to be obtained by the Company or the Bank in connection with the execution and delivery of this Agreement or the sale of the Shares to the Agent as contemplated by this Agreement, except such as have been obtained; (xiii) To the best of such counsel's knowledge, after due inquiry, (A) neither the Company nor the Bank is in breach of, or in default (and no event has occurred which, with notice or lapse of time, or both, would constitute a default) under, any lease, indenture, mortgage, note, or other agreement or instrument to which the Company or the Bank is a party; or (B) neither the Company nor the Bank is in violation of any term or provision of either of their articles of incorporation, charter or bylaws, or of any franchise, license, grant, permit, judgment, decree, order, statute, rule or regulation; and (C) neither the Company nor the Bank has received any notice of conflict with the asserted rights of others in respect of Intangibles necessary for the commencement or conduct of its business, the effect of which, in any such case, would be expected to have a material adverse effect on the Company or the Bank; (xiv) The Registration Statement and the Prospectus and any amendments or supplements thereto (other than financial statement and notes, any related schedules or other financial information contained in such Prospectus or amendment or supplement thereto, as to which such counsel need express no opinion or belief) comply as to form in all material respects with the requirements of the Securities Act and the Rules; and (xv) The Registration Statement is effective under the Securities Act, and any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) and, to the best of such counsel's knowledge, after due inquiry, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto has been issued, and no proceedings for that purpose have been instituted or threatened or are contemplated by the Commission. In rendering the foregoing opinion, such counsel may rely upon certificates of public officials (as to matters of fact and law) and officers of the Company and the Bank (as to matters of fact), and include customary qualifications in its opinion as are acceptable to the Agent and its counsel. Copies of all such certificates shall be subject furnished to counsel to the Agent on the Closing Date. In addition, such counsel shall state that they have participated in conferences with officials of the Company and its independent auditors, and representatives of the Agent and its counsel at which the content of the Registration Statement and Prospectus and related matters were discussed, and also had discussions with such officials of the Company with a view toward a clear understanding on their part of the requirements of the Act with reference to the preparation of registration statements and prospectuses. Such counsel did not independently verify the accuracy or completeness of the statements made in the Registration Statement and Prospectus; however, based on such counsel's examination of the Registration Statement and the Prospectus and on its participation in the above-mentioned conferences, nothing has come to the attention of such counsel that gives them reason to believe that the Registration Statement or Prospectus (other than financial statements and notes, any related schedules or other financial information contained in such Registration Statement or Prospectus as to which such counsel need express no opinion or belief), at the time the Registration Statement became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (other than financial statement and notes, any related schedules or other financial information contained in such Prospectus or amendment or supplement thereto, as to which such counsel need express no opinion or belief), as of the date of the opinion, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) On or prior to the Closing Date, the Agent shall have been furnished such documents, certificates and opinions as it may reasonably require for the purpose of enabling it to review the matters referred to in subsection (b) of this Section 3, and in order to evidence the accuracy, completeness or satisfaction of the representations, warranties or conditions herein contained. (d) Prior to the Closing Date, (i) there shall have been no material adverse change in the condition or prospects, financial or otherwise, of the Company or the Bank except as set forth in the Prospectus; (ii) there shall have been no material transaction, not in the ordinary course of business, entered into by the Company or the Bank except as set forth in the Registration Statement and Prospectus, other than transactions referred to or contemplated therein or to which the Agent has given its written consent; (iii) neither the Company nor the Bank shall be in default (nor shall an event have occurred which, with notice or lapse of time, or both, would constitute a default) under any provision of any material agreement, understanding or instrument relating to any outstanding indebtedness that is material in amount; (iv) no action, suit or proceeding, at law or in equity, shall be pending or threatened against the Company or the Bank before or by any court or Federal, state or other commission, board or other administrative agency having jurisdiction over the Company or the Bank, as the case may be, which is expected to have a material adverse effect on the Company or the Bank; and (v) no stop order shall have been issued under the Securities Act and no proceedings therefor shall have been initiated or be threatened by the Commission. (e) At the Closing Date, the Agent shall have received a certificate signed by the Chairman of the Board, the President, and the Treasurer of the Company dated the Closing Date to the effect that the conditions set forth in subsection (d) above have been satisfied and as to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and Section 2 hereof. (f) At or prior to the Closing Date, the Company (i) Agent shall have conducted its business received a "blue sky" memorandum (upon which the Agent may rely) of Leagre Chanxxxx & Millxxx XXX, counsel for the Agent, addressed to the Agent and in form and scope reasonably satisfactory to the usual and ordinary manner as Agent concerning compliance with the same is being conducted as blue sky or securities laws of the date hereof and states listed in Exhibit A attached to this Agreement. (iig) except All proceedings taken in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from connection with the sale of the Securities other than Shares as may be set forth in the Offering Documents. 9.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement herein contemplated shall be reasonably satisfactory in all respects form and substance to the Agent and to counsel to for the Agent, who and the Agent shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, received from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to for the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the Companyfavorable opinion, dated as of the Closing Date, with respect to such of the effect that: matters set forth under Subsections (b) (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date ), (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Datevi), (vii), and (xv) of this Section 3, and with respect to such other related matters as the Company has complied Agent may require, if the failure to receive a favorable opinion with all respect to such other related matters would cause the agreements and has satisfied all Agent to deem it inadvisable to proceed with the conditions on its part to be performed or satisfied at or sale of the Shares. (h) No order suspending the sale of the Shares prior to the Closing Date; and (ii) , in any jurisdiction listed in Exhibit A, shall have been issued on the respective signers have each carefully examined the Offering DocumentsClosing Date, and any amendments and supplements thereto, andno proceedings for that purpose shall have been instituted or, to the best Agent's knowledge or that of their knowledge, in the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and shall be contemplated. (bi) The NASD, upon review of the Company has terms of the public offering of the Shares, shall not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than have objected to the Agent's participation in the ordinary course same. If any condition to the Agent's obligations hereunder to be fulfilled prior to or at the Closing Date is not so fulfilled, the Agent may terminate this Agreement pursuant to Section 8(c) hereof or, if the Agent so elects, waive any such conditions which have not been fulfilled or extend the time of businesstheir fulfillment.

Conditions of the Agents’ Obligations. 5.1. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities Agent provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedherein, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereof, of its obligations hereunder and to the following additional conditions: 9.1 Counsel (a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the Agent knowledge of the Company or the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)Agent’s satisfaction. 9.2 (b) The Agent shall not have disclosed to advised the Company that the Offering DocumentsRegistration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, fact that in the Agent’s reasonable opinion of counsel to the Agent, is material, or omits to state a fact, which, fact that in the Agent’s reasonable opinion of such counsel, is material and is required to be stated therein, therein or is necessary to make the statements therein, under the circumstances in which they were made, therein not misleading. 9.3 Between (c) Except as contemplated in the date hereof Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Closing DateProspectus, the Company there shall not have sustained been any loss on account material change in the capital stock of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall or any material adverse change, or any development that may reasonably be no proceeding instituted expected to cause a material adverse change, in the condition (financial or threatened against the Company before or by any federal or state commissionother), regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchisesprospects, license, permits, net worth or results of operations or financial condition or income of the Company considered as an entityCompany, or any change in the rating assigned to any securities of the Company. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Closing Date, the Company (id) The Agent shall have conducted its business in the usual and ordinary manner as the same is being conducted received as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale effectiveness of the Securities other than as may be set forth in Registration Statement hereunder (the Offering Documents. 9.6 The authorization “Commencement Date”) an opinion of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the CompanyCounsel, dated as of the Closing Date, Commencement Date to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; the Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or by the nature of its business makes such qualification necessary (including every jurisdiction in which it owns or leases property), except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company; to the best of such counsel’s knowledge, the Company has no subsidiary or subsidiaries (other than Xxxxxxx Alabama, Inc., Xxxxxxx Properties, LLC, Xxxxxxx Properties of Tennessee, L.P., Xxxxxxx Outdoor Advertising Company, SIE Corporation, Xxxxxxx Hospitality, LLC, Xxxxxxx Inns Financing 0l, L.P. and Xxxxxxx Inns Financing Trust I) and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization; and the Company has all requisite corporate power and authority to own, lease, license and operate its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus or any document incorporated by reference therein. (ii) The certificates evidencing the Stock are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued; and all of the outstanding shares of capital stock of the Company are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The shares of Stock, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. The Stock is the subject of an effective registration statement permitting its sale in the manner contemplated by this Agreement. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and, to the knowledge of such counsel, there is no commitment, plan or arrangement to issue, any share of capital stock, of the Company or any security convertible into or exercisable or exchangeable for, capital stock of the Company. The Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus. (iii) The descriptions contained or incorporated by reference in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate, and insofar as such statements constitute a summary of documents referred to therein, matters of law or legal conclusions, are fair summaries of the material provisions thereof and accurately present the information required with respect to such documents and matters. All statutes, legal or governmental proceedings, and all agreements and other documents required to be described in the Registration Statement (or incorporated by reference therein) have been so described. All agreements and other documents known to such counsel to be required to be filed as exhibits to the Registration Statement have been so filed or incorporated by reference therein. (iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Stock by the Company. This Agreement has been duly and validly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms. (v) The Registration Statement, when it became effective, the Prospectus, each of the documents incorporated by reference in the Registration Statement and the Prospectus and each amendment or supplement thereto, on the date of filing thereof with the Commission (except for the financial statements and notes and schedules and other financial and statistical information included therein, as to which such counsel expresses no opinion) complied as to form in all material respects with the requirements of the Act and the Rules and Regulations and the Exchange Act and the rules and regulations promulgated thereunder, as the case may be. (vi) The Registration Statement has become effective under the Act and; if applicable, the filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by Rule 424(b) of the Rules and Regulations; and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened or pending. The Stock has been approved for quotation on the Nasdaq National Market. (vii) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. (viii) To the best of such counsel’s knowledge, the conditions for use of a Registration Statement on Form S-3 set forth in the General Instructions to Form S-3 have been satisfied with respect to the Company and the transactions contemplated by this Agreement and the Registration Statement. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials, and with respect to matters of Georgia law, they may rely upon the opinion of Xxxxxx X. Xxxxxx, Esq., general counsel to the Company. Copies of such certificates and opinion shall be furnished to the Agent and its counsel. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for any accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing no facts have come to the attention of such counsel which have caused such counsel to believe that the Registration Statement at the time it (including each post-effective amendment thereto) became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus and any amendments or supplements thereto, on the date of filing thereof with the Commission and at the Commencement Date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any belief with respect to matters of title to properties owned by the Company or as to the financial statements and schedules and other financial information included or incorporated by reference in the Registration Statement or the Prospectus). (e) The Agent shall have received from the Company a certificate, or certificates, signed by the Chairman of the Board, the President or a Vice President and by the principal financial or accounting officer of the Company, dated as of the Commencement Date and, if requested, dated as of the first business day of each calendar quarter thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects correct, as if made at and as of the Closing Commencement Date or the Certificate Date (other than representations and warranties which by their terms are specifically limited to a date other than as the Closing Datecase may be), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andCommencement Date and each such Certificate Date (as the case may be); (ii) No stop order suspending the respective signers have each carefully examined effectiveness of the Offering DocumentsRegistration Statement has been issued, and any amendments and supplements thereto, andno proceeding for that purpose has been instituted or, to the best knowledge of their knowledgesuch officer after due inquiry, in is threatened, by the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since Commission; (iii) Since the date hereof, of this Agreement there has occurred no event required to be set forth in an amended amendment or supplemented Offering Documentssupplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and (iv) Since the date of this Agreement, there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company, which has not been set forth; except as set forth described in the Offering Documents, since the respective dates as of which an amendment or the periods for which the information is given in the Offering Documents and prior supplement to the date Registration Statement or Prospectus (directly or by incorporation). All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Agent. The Company will furnish the Agent with such conformed copies of such certificateopinions, (a) there has not been any substantially adverse changecertificates, financial letters and otherwise, in other documents as the affairs of condition in the Company, and (b) the Company has not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than in the ordinary course of businessAgent shall reasonably request.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities shall be subject to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 11.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 11.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, fact which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 11.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between 11.4 Except as set forth in the Offering Documents , during the time period between the date hereof and the Initial Put Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect effect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 11.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Initial Put Closing Date, the Company (i) shall have conducted its business in all material respects in the usual and ordinary manner as the same is being conducted as of Capstone Partners, L.C. 10.9 - 12 Copywrite 2000 the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents except for reductions for matters discussed in the Equity Line Agreements and without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 11.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto hereto and to this Agreement shall be reasonably satisfactory in all material respects matters to the Agent or counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 11.7 The Company shall have furnished to the Agent Investor, with a true and correct copy to the Agent, the opinion, dated the Closing Date, addressed to the AgentInvestor, from counsel to the Company, as required by the Subscription AgreementEquity Line Agreement in substantially the form attached to the Equity Line Agreement as an exhibit. 9.8 11.8 The Company shall have furnished to the Agent a due diligence certificate of signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Date), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and; (ii) the respective signers have each Company has carefully examined the Offering Documents, and any amendments and supplements thereto, and, to the best of their its knowledge, all statements contained in the Offering memorandumDocuments, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially material adverse change, financial and otherwise, in the affairs of condition in of the Company, and (b) except as disclosed in the Offering Documents, the Company has not incurred any material liabilities, direct or contingent, contingent or entered into any material transactions, otherwise than in the ordinary course of business; and Capstone Partners, L.C. 10.9 - 13 Copywrite 2000 (iii) the Company has provided true and correct copies of all documents in its possession or which it could obtain that were requested by Agent pursuant to any due diligence inquiry.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities shall be subject to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 11.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 11.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, fact which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 11.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between 11.4 Except as set forth in the Disclosure Documents to the Subscripton Agreement, during the time period between the date hereof and the Initial Tranche Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 11.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Initial Tranche Closing Date, the Company (i) shall have conducted its business in all material respects in the usual and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents except for reductions for matters discussed in the Subscription Agreements and without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 11.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto hereto and to this Agreement shall be reasonably satisfactory in all material respects matters to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 11.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement.Agreement in substantially the form attached to the Subscription Agreement as Exhibit D. 9.8 11.8 The Company shall have furnished to the Agent a due diligence back up certificate of signed by the Chief Executive Officer and the Chief Financial Officer of the CompanyCompany (a copy of which is attached hereto as Exhibit C), dated as of the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Date), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and; (ii) the respective signers have each Company has carefully examined the Offering Documents, and any amendments and supplements thereto, and, to the best of their its knowledge, all statements contained in the Offering memorandumDocuments, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially material adverse change, financial and otherwise, in the affairs of condition in of the Company, and (b) except as disclosed in the Offering Documents, the Company has not incurred any material liabilities, direct or contingent, contingent or entered into any material transactions, otherwise than in the ordinary course of business; and (iii) the Company has provided true and correct copies of all documents in its possession or which it could obtain that were requested by Agent pursuant to any due diligence inquiry.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)satisfaction of the Agent and Agent's counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between the date hereof and the Closing Date, the Company (c) There shall not have sustained occurred any loss on account of firechange, explosion, flood, accident, calamity or any other cause of such character as would development involving a prospective change, which materially and adversely affect its affects the Company's condition (financial or otherwise), earnings, operations, properties, business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business prospects from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all proceedings duly qualified under the Trust Indenture Act and other legal matters incident thereto shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all general equity principles. (e) All corporate proceedings and other legal matters relating to in connection with this Agreement as Agreement, the Agent may reasonably requireform of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to Agent's counsel, in all material respects, and Agent's counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Dorsey & Whitney LLP, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Xxxxxal Closing Date, satisfactory in form and substance to the Agent and Agent's counsel, which includes the opinions as set forth in Exhibit B attached hereto. Such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to Agent's counsel. (g) On the Initial Closing Date, the Agent shall have received from KPMG LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2001 and 2000, and the related consolidated statements of income, changes in stockholders' equity, and cash flows for each of the years in the three-year period then ended, all audited by them and incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the stockholders' and directors' meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements filed on a Form 10-Q included or incorporated by reference in the Registration Statement; and (D) reviewed the unaudited consolidated balance sheet of the Company as of September 30, 2002 and the unaudited consolidated statements of income for the three and nine-month periods ended September 30, 2002 and 2001, each of which has been filed as Exhibit 99.1 to the Company's Form 8-K, dated October 16, 2002 and incorporated by reference in the Registration Statement. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) Any material modifications should be made to the unaudited consolidated financial statements incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) The unaudited consolidated financial statements incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, as they apply to Form 10-Q; (C) At a specified date not more than five (5) business days prior to the date of the letter, there was any change in: (i) the capital stock, (ii) the short-term indebtedness or long-term debt of the Company and its consolidated subsidiaries, or (iii) stockholders' equity, as compared with amounts shown on the latest balance sheet incorporated by reference in the Registration Statement; or (D) For the period from the closing date of the latest income statement filed on a Form 10-Q incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, or any development involving a prospective change, which materially and adversely affects the Company's condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Prospectus (or in the Incorporated Documents as of the date of such certificate). (i) The Agent shall have received a certificate of Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and since to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the articles of incorporation of the Company, as amended to the date hereofof the certificate, and stating that there have been no changes or amendments to the attached certificate of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to (A) the amendment of said certificate of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Delaware and has occurred paid all of its corporate franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the bylaws of the Company as in effect as of the date of such certificate and no event required resolutions have been adopted by the Board of Directors or stockholders of the Company relating to be set forth in an amended changes or supplemented Offering Documentsamendments to the attached bylaws. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, which has the issuance and sale of the Notes and other related matters, and such resolutions have not been set forth; except amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior Registration Statement. (j) Dorsey & Whitney LLP shall deliver to the date Agent a Blue Sky Memxxxxxxm rxxxxxxxly satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken. (k) The Company shall have furnished to the Agent and to Agent's Counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and Agent's counsel. All statements contained in any certificate, (a) there letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any substantially adverse changetime prior to, financial and otherwise, in the affairs Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of condition in the Company, and (b) Agent to the Company has and shall not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Company as specified in the ordinary course of businessSection 8.02.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)satisfaction of the Agent and the Agent's counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company of its reasonable belief that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between , or, if the date hereof and Agent has so advised the Closing DateCompany, the Company shall not have sustained any loss on account of firetaken reasonable action to investigate such belief and, explosionwhere appropriate, flood, accident, calamity amend the Registration Statement or any other cause of supplement the Prospectus so as to correct such character as would materially adversely affect its business statement or property considered as an entire entity, whether omission or not effect such loss is covered by insurancecompliance. 9.4 Between the date hereof (c) There shall not have occurred any change that materially and the Closing Date, there shall be no litigation instituted or threatened against adversely affects the Company's condition (financial or otherwise), and there shall be no proceeding instituted earnings, operations, properties or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all proceedings duly qualified under the Trust Indenture Act and other legal matters incident thereto shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all general equity principles. (e) All corporate proceedings and other legal matters relating to in connection with this Agreement as Agreement, the Agent may reasonably requireform of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to the Agent's counsel, in all material respects, and the Agent's counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Drinker Xxxxxx & Xxxxx LLP, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Initial Closing Date, satisfactory in form and substance to the Agent and the Agent's counsel, which includes the opinions as set forth in Exhibit B attached hereto. Such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent's counsel. (g) On the Initial Closing Date, the Agent shall have received from Deloitte & Touche LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2003 and 2002, and the related consolidated statements of income, changes in stockholders' equity, and cash flows for each of the years in the two-year period then ended, all audited by them and incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the stockholders' and directors' meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included or incorporated by reference in the Registration Statement; and (D) reviewed the unaudited consolidated balance sheet of the Company as of March 31, June 30 and September 30, 2004 and the unaudited consolidated statements of income for the three, six and nine-month periods ended March 31, 2004 and 2003, June 30, 2004 and 2003, and September 30, 2004 and 2003, respectively, each of which has been incorporated by reference in the Registration Statement. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (C) the unaudited amounts of revenues, income before provision for income taxes, net income and ratio of earnings to fixed charges of the Company included or incorporated by reference in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the capital stock, (ii) short term indebtedness or long-term debt of the Company and its consolidated subsidiaries, or (iii) stockholders' equity, as compared with amounts shown on the latest balance sheet incorporated by reference in the Registration Statement; or (E) for the period from the closing date of the latest income statement filed on a Form 10-QSB incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documentsany development involving a prospective change, which has not been set forth; materially and adversely affects the Company's condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Offering Documents, since Prospectus (or in the Incorporated Documents as of the date of such certificate). (vi) Subsequent to the respective dates as of which or the periods for which the information is given in the Offering Documents Registration Statement and prior to the date of such certificateProspectus, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilitiesliabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the financial statements incorporated by reference in the Registration Statement, there has not been any material transactionschange in the capital stock, otherwise or any material increase in the short-term debt or long-term debt (other than consistent with past practices), or in the issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the certificate of incorporation of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached certificate of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to (A) the amendment of said certificate of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Delaware and has paid all of its corporate franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the bylaws of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to changes or amendments to the attached bylaws. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement. (j) Drinker Xxxxxx & Xxxxx LLP shall deliver to the Agent a Blue Sky Memorandum reasonably satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken. (k) The Company shall have furnished to the Agent and to the Agent's counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and the Agent's counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any time prior to, the Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of the Agent to the Company and shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Company as specified in Section 8.03.

Conditions of the Agents’ Obligations. The Agent's obligations to act ------------------------------------- as agent of the Company hereunder and to find purchasers for the Securities shall be subject to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no material litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Closing Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any material liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, and except as otherwise contemplated hereby, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Securities Purchase Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and or the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Date), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) the respective signers have each carefully examined the Offering Documents, and any amendments and supplements thereto, and, to the best of their knowledge, in the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than in the ordinary course of businessform attached hereto.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)satisfaction of the Agent and the Agent’s counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company of its reasonable belief that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between , or, if the date hereof and Agent has so advised the Closing DateCompany, the Company shall not have sustained taken reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement or omission or effect such compliance. (c) There shall not have occurred any loss on account of firechange, explosion, flood, accident, calamity or any other cause of such character as would development involving a prospective change, that materially and adversely affect its affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business prospects from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all proceedings duly qualified under the Trust Indenture Act and other legal matters incident thereto shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all general equity principles. (e) All corporate proceedings and other legal matters relating to in connection with this Agreement as Agreement, the Agent may reasonably requireform of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to the Agent’s counsel, in all material respects, and the Agent’s counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Xxxxxxxxx & Xxxxxx PLLP, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Initial Closing Date, satisfactory in form and substance to the Agent and the Agent’s counsel, which includes the opinions as set forth in Exhibit B attached hereto. Each such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent’s counsel. (g) On the Initial Closing Date, the Agent shall have received from KPMG, LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2005 and 2004, and the related consolidated statements of income, changes in shareholders’ equity, and cash flows for each of the years in the two-year period then ended, all audited by them and included or incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the shareholders’ and directors’ meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included or incorporated by reference in the Registration Statement; and (D) reviewed the unaudited consolidated balance sheet of the Company as of , 2006 and the unaudited consolidated statements of income for the -month period ended , 2006, each of which has been included or incorporated by reference in the Registration Statement. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (C) the unaudited amounts of revenues, income before provision for income taxes, net income and ratio of earnings to fixed charges of the Company included or incorporated by reference in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the capital stock, (ii) short term indebtedness or long-term debt of the Company and its consolidated subsidiaries, or (iii) shareholders’ equity, as compared with amounts shown on the latest balance sheet incorporated by reference in the Registration Statement; or (E) for the period from the closing date of the latest income statement filed on a Form 10-Q incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documentsany development involving a prospective change, which has not been set forth; materially and adversely affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Offering Documents, since Prospectus (or in the Incorporated Documents as of the date of such certificate). (vi) Subsequent to the respective dates as of which or the periods for which the information is given in the Offering Documents Registration Statement and prior to the date of such certificateProspectus, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilitiesliabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the financial statements incorporated by reference in the Registration Statement, there has not been any material transactionschange in the capital stock, otherwise or any material increase in the short-term debt or long-term debt (other than consistent with past practices), or in the issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of the Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the articles of incorporation of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached articles of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or shareholders of the Company relating to (A) the amendment of said articles of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Minnesota and has paid all of its corporate franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the bylaws of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or shareholders of the Company relating to changes or amendments to the attached bylaws. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement. (j) Xxxxxxxxx & Xxxxxx PLLP shall deliver to the Agent a Blue Sky Memorandum reasonably satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken. (k) The Company shall have furnished to the Agent and to the Agent’s counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and the Agent’s counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any time prior to, the Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of the Agent to the Company and shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Company as specified in Section 8.03.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)satisfaction of the Agent and the Agent’s counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company of its reasonable belief that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between , or, if the date hereof and Agent has so advised the Closing DateCompany, the Company shall not have sustained taken reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement or omission or effect such compliance. (c) There shall not have occurred any loss on account of firechange, explosion, flood, accident, calamity or any other cause of such character as would development involving a prospective change, that materially and adversely affect its affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business prospects from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all proceedings duly qualified under the Trust Indenture Act and other legal matters incident thereto shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all general equity principles. (e) All corporate proceedings and other legal matters relating to in connection with this Agreement as Agreement, the Agent may reasonably requireform of Registration Statement and the Prospectus, and the Company registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to the Agent’s counsel, in all material respects, and the Agent’s counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Xxxxxxxxx & Xxxxxx PLLP, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Initial Closing Date, satisfactory in form and substance to the Agent and the Agent’s counsel, which includes the opinions as set forth in Exhibit B attached hereto. Each such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent’s counsel. (g) On the Initial Closing Date, the Agent shall have received from Virchow, Xxxxxx & Company, LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of October 1, 2006 and September 31, 2005, and the related consolidated statements of income, changes in shareholders’ equity, and cash flows for each of the years in the two-year period then ended, all audited by them and included or incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the shareholders’ and directors’ meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included or incorporated by reference in the Registration Statement; and (D) reviewed the unaudited consolidated balance sheet of the Company as of [_________, 2007] and the unaudited consolidated statements of income for the four-month period ended [_________, 2007], each of which has been included or incorporated by reference in the Registration Statement. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (C) the unaudited amounts of revenues, income before provision for income taxes, net income and ratio of earnings to fixed charges of the Company included or incorporated by reference in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the capital stock, (ii) short term indebtedness or long-term debt of the Company and its consolidated subsidiaries, or (iii) shareholders’ equity, as compared with amounts shown on the latest balance sheet incorporated by reference in the Registration Statement; or (E) for the period from the closing date of the latest income statement filed on a Form 10-Q incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documentsany development involving a prospective change, which has not been set forth; materially and adversely affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Offering Documents, since Prospectus (or in the Incorporated Documents as of the date of such certificate). (vi) Subsequent to the respective dates as of which or the periods for which the information is given in the Offering Documents Registration Statement and prior to the date of such certificateProspectus, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilitiesliabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the financial statements incorporated by reference in the Registration Statement, there has not been any material transactionschange in the capital stock, otherwise or any material increase in the short-term debt or long-term debt (other than consistent with past practices), or in the issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of the Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the articles of incorporation of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached articles of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or shareholders of the Company relating to (A) the amendment of said articles of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Minnesota and has paid all of its corporate franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the bylaws of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or shareholders of the Company relating to changes or amendments to the attached bylaws. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement. (j) Xxxxxxxxx & Xxxxxx PLLP shall deliver to the Agent a Blue Sky Memorandum reasonably satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken. (k) The Company shall have furnished to the Agent and to the Agent’s counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and the Agent’s counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any time prior to, the Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of the Agent to the Company and shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Company as specified in Section 8.03.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)reasonable satisfaction of the Agent and the Agent’s counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company of its reasonable belief that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between , or, if the date hereof and Agent has so advised the Closing DateCompany, the Company shall not have sustained taken reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement or omission or effect such compliance. (c) There shall not have occurred any loss on account of firechange that materially and adversely affects the Company’s condition (financial or otherwise), explosionearnings, floodoperations, accidentproperties, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business prospects from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all duly qualified under the Trust Indenture Act and shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. (e) All proceedings and other legal matters incident thereto in connection with this Agreement, the form of Registration Statement and to this Agreement the Prospectus, and the registration, authorization, issue, sale and delivery of the Notes shall be have been reasonably satisfactory in all respects to counsel to the Agent’s counsel, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of in all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably requirematerial respects, and the Company Agent’s counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Winthrop & Weinstine, dated the Closing DateP.A., addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Initial Closing Date and satisfactory in form and substance to the Agent and the Agent’s counsel, which includes the opinions as set forth in Exhibit B attached hereto. Such counsel, in rendering the foregoing opinion, may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent’s counsel. (g) On the Initial Closing Date, the Agent shall have received from Lxxxx Xxxxxxx Xxxxxxx & Company, LLP a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2005 and 2004, and the related consolidated statements of operations, changes in deficit, and cash flows for each of the years in the two-year period then ended, all audited by them and included in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the members’ and directors’ meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on any unaudited financial statements included in the Registration Statement; and (D) read the unaudited consolidated balance sheet of the Company as of , 2006 and the unaudited consolidated statements of operations for the -month period ended , 2006. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited consolidated financial statements of the Company included therein; (C) the unaudited amounts of consolidated revenues, net income and ratio of earnings (loss) to fixed charges of the Company included in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited consolidated financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the equity interests, (ii) short term indebtedness or long-term debt of the Company and its consolidated variable interest entities, or (iii) members’ equity, as compared with amounts shown on the latest balance sheet included in the Registration Statement; or (E) for the period from the closing date of the latest income statement included in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any changes, as compared with the corresponding period of the previous year, in consolidated revenues, net income or in the ratio of earnings (loss) to fixed charges; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its variable interest entities subject to the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documentsany development involving a prospective change, which has not been set forth; materially and adversely affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Offering Documents, since Prospectus. (vi) Subsequent to the respective dates as of which or the periods for which the information is given in the Offering Documents Registration Statement and prior to the date of such certificateProspectus, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilitiesliabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the Registration Statement, there has not been any material transactionschange in the equity interests, otherwise or any material increase in the short-term debt or long-term debt (other than consistent with past practices), or in the issuance of options (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the equity interests, of the Company, or any material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which could reasonably be expected to result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of the Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the organizational documents of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached organizational documents of the Company, and no resolutions have been adopted by the Board of Directors or members of the Company relating to (A) the amendment of said organizational documents; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Ohio and has paid any franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the governance documents of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or members of the Company relating to changes or amendments to the attached governance documents. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities shall be subject to the accuracy, as of the Closing Date, of the representations and warranties on the part of the Company herein contained, to the fulfillment of or compliance by the Company with all covenants and conditions hereof, and to the following additional conditions: 9.1 Counsel to the Agent shall not have objected in writing or shall not have failed to give his consent to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably). 9.2 The Agent shall not have disclosed to the Company that the Offering Documents, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, in the opinion of counsel to the Agent, is material, or omits to state a fact, which, in the opinion of such counsel, is material and is required to be stated therein, or is necessary to make the statements therein, under the circumstances in which they were made, not misleading. 9.3 Between the date hereof and the Closing Date, the Company shall not have sustained any loss on account of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no material litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Closing Date, the Company (i) shall have conducted its business in the usual and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any material liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, and except as otherwise contemplated hereby, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Securities Purchase Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and or the Chief Financial Officer of the Company, dated as of the Closing Date, to the effect that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects at and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than the Closing Date), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and (ii) the respective signers have each carefully examined the Offering Documents, and any amendments and supplements thereto, and, to the best of their knowledge, in the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documents, which has not been set forth; except as set forth in the Offering Documents, since the respective dates as of which or the periods for which the information is given in the Offering Documents and prior to the date of such certificate, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than in the ordinary course of businessform attached hereto.

Conditions of the Agents’ Obligations. 5.1. The Agent's obligations to act as agent of the Company hereunder and to find purchasers for the Securities Agent provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedherein, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereof, of its obligations hereunder and to the following additional conditions: 9.1 Counsel (a) The Registration Statement shall have been declared effective. No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the Agent knowledge of the Company or the Agent, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)Agent’s satisfaction. 9.2 (b) The Agent shall not have disclosed to advised the Company that the Offering DocumentsRegistration Statement or the Prospectus, or any amendment thereof or supplement thereto, contains an untrue statement of fact, which, fact that in the Agent’s reasonable opinion of counsel to the Agent, is material, or omits to state a fact, which, fact that in the Agent’s reasonable opinion of such counsel, is material and is required to be stated therein, therein or is necessary to make the statements therein, under the circumstances in which they were made, therein not misleading. 9.3 Between (c) Except as contemplated in the date hereof Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Closing DateProspectus, the Company there shall not have sustained been any loss on account material change in the capital stock of fire, explosion, flood, accident, calamity or any other cause of such character as would materially adversely affect its business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall or any material adverse change, or any development that may reasonably be no proceeding instituted expected to cause a material adverse change, in the condition (financial or threatened against the Company before or by any federal or state commissionother), regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchisesprospects, license, permits, net worth or results of operations or financial condition or income of the Company considered as an entityCompany, or any change in the rating assigned to any securities of the Company. 9.5 Except as contemplated herein or as set forth in the Offering Documents, during the period subsequent to the most recent financial statements contained in the Offering Documents, if any, and prior to the Closing Date, the Company (id) The Agent shall have conducted its business in the usual and ordinary manner as the same is being conducted received as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale effectiveness of the Securities other than as may be set forth in Registration Statement hereunder (the Offering Documents. 9.6 The authorization “Commencement Date”) an opinion of the Securities by the Company and all proceedings and other legal matters incident thereto and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all corporate proceedings and other legal matters relating to this Agreement as the Agent may reasonably require, and the Company shall have furnished such counsel such documents as he may have requested to enable him to pass upon the matters referred to in this subparagraph. 9.7 The Company shall have furnished to the Agent the opinion, dated the Closing Date, addressed to the Agent, from counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of the CompanyCounsel, dated as of the Closing Date, Commencement Date to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; the Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or by the nature of its business makes such qualification necessary (including every jurisdiction in which it owns or leases property), except for such jurisdictions where the failure to so qualify would not have a material adverse effect on the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company; to the best of such counsel’s knowledge, the Company has no subsidiary or subsidiaries (other than Xxxxxxx Alabama, Inc., Xxxxxxx Properties, LLC, Xxxxxxx Properties of Tennessee, L.P., Xxxxxxx Outdoor Advertising Company, SIE Corporation and Xxxxxxx Hospitality, LLC) and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization; and the Company has all requisite corporate power and authority to own, lease, license and operate its assets and properties and conduct its business as now being conducted and as described in the Registration Statement and the Prospectus or any document incorporated by reference therein. (ii) The certificates evidencing the Stock are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued; and all of the outstanding shares of capital stock of the Company are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The shares of Stock, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. The Stock is the subject of an effective registration statement permitting its sale in the manner contemplated by this Agreement. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and, to the knowledge of such counsel, there is no commitment, plan or arrangement to issue, any share of capital stock, of the Company or any security convertible into or exercisable or exchangeable for, capital stock of the Company. The Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus. (iii) The descriptions contained or incorporated by reference in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate, and insofar as such statements constitute a summary of documents referred to therein, matters of law or legal conclusions, are fair summaries of the material provisions thereof and accurately present the information required with respect to such documents and matters. All statutes, legal or governmental proceedings, and all agreements and other documents required to be described in the Registration Statement (or incorporated by reference therein) have been so described. All agreements and other documents known to such counsel to be required to be filed as exhibits to the Registration Statement have been so filed or incorporated by reference therein. (iv) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Stock by the Company. This Agreement has been duly and validly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms. (v) The Registration Statement, when it became effective, the Prospectus, each of the documents incorporated by reference in the Registration Statement and the Prospectus and each amendment or supplement thereto, on the date of filing thereof with the Commission (except for the financial statements and notes and schedules and other financial and statistical information included therein, as to which such counsel expresses no opinion) complied as to form in all material respects with the requirements of the Act and the Rules and Regulations and the Exchange Act and the rules and regulations promulgated thereunder, as the case may be. (vi) The Registration Statement has become effective under the Act and; if applicable, the filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by Rule 424(b) of the Rules and Regulations; and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened or pending. The Stock has been approved for quotation on the Nasdaq National Market. (vii) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended. (viii) To the best of such counsel’s knowledge, the conditions for use of a Registration Statement on Form S-3 set forth in the General Instructions to Form S-3 have been satisfied with respect to the Company and the transactions contemplated by this Agreement and the Registration Statement. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials, and with respect to matters of Georgia law, they may rely upon the opinion of Xxxxxx X. Xxxxxx, Esq., general counsel to the Company. Copies of such certificates and opinion shall be furnished to the Agent and its counsel. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for any accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing no facts have come to the attention of such counsel which have caused such counsel to believe that the Registration Statement at the time it (including each post-effective amendment thereto) became effective, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus and any amendments or supplements thereto, on the date of filing thereof with the Commission and at the Commencement Date, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any belief with respect to matters of title to properties owned by the Company or as to the financial statements and schedules and other financial information included or incorporated by reference in the Registration Statement or the Prospectus). (e) The Agent shall have received from the Company a certificate, or certificates, signed by the Chairman of the Board, the President or a Vice President and by the principal financial or accounting officer of the Company, dated as of the Commencement Date and, if requested, dated as of the first business day of each calendar quarter thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation: (i) The representations and warranties of the Company in this Agreement are true and correct in all material respects correct, as if made at and as of the Closing Commencement Date or the Certificate Date (other than representations and warranties which by their terms are specifically limited to a date other than as the Closing Datecase may be), and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andCommencement Date and each such Certificate Date (as the case may be); (ii) No stop order suspending the respective signers have each carefully examined effectiveness of the Offering DocumentsRegistration Statement has been issued, and any amendments and supplements thereto, andno proceeding for that purpose has been instituted or, to the best knowledge of their knowledgesuch officer after due inquiry, in is threatened, by the Offering memorandum, and any amendments and supplements thereto, all statements contained in the Offering Documents are true and correct, and neither the Offering Documents, nor any amendment or supplement thereto, includes any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein under the circumstances in which they were made not misleading, and since Commission; (iii) Since the date hereof, of this Agreement there has occurred no event required to be set forth in an amended amendment or supplemented Offering Documentssupplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and (iv) Since the date of this Agreement, there has not been any material adverse change in the assets or properties, business, results of operations, prospects or condition (financial or otherwise) of the Company, which has not been set forth; except as set forth described in the Offering Documents, since the respective dates as of which an amendment or the periods for which the information is given in the Offering Documents and prior supplement to the date Registration Statement or Prospectus (directly or by incorporation). All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Agent. The Company will furnish the Agent with such conformed copies of such certificateopinions, (a) there has not been any substantially adverse changecertificates, financial letters and otherwise, in other documents as the affairs of condition in the Company, and (b) the Company has not incurred any material liabilities, direct or contingent, or entered into any material transactions, otherwise than in the ordinary course of businessAgent shall reasonably request.

Conditions of the Agents’ Obligations. The Agent's obligations to act as agent obligation of the Company hereunder and Agent to find purchasers for sell the Securities Notes on a best efforts basis as provided herein shall be subject to the accuracy, as of the Closing Date, accuracy of the representations and warranties on the part of the Company herein containedCompany, to the fulfillment of or compliance performance by the Company with all covenants and conditions hereofof its obligations hereunder, and to the satisfaction of the following additional conditions: 9.1 Counsel (a) The Registration Statement shall be effective, and no stop order suspending the effectiveness thereof shall have been issued and no proceedings for that purpose shall have been initiated or, to the Agent knowledge of the Company, or the Agent, threatened by the Commission or any state securities commission or similar regulatory body. Any request of the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall not have objected in writing or shall not have failed to give his consent been complied with to the Offering Documents (which objection or failure to give consent shall not have been done unreasonably)satisfaction of the Agent and the Agent’s counsel. 9.2 (b) The Agent shall not have disclosed to advised the Company of its reasonable belief that the Offering DocumentsRegistration Statement or Prospectus, or any amendment thereof or supplement thereto, contains an any untrue statement of fact, which, in the opinion of counsel to the Agent, a fact which is material, material or omits to state a fact, which, in the opinion of such counsel, fact which is material and is required to be stated therein, therein or is necessary to make the statements contained therein, under in light of the circumstances in under which they were made, not misleading. 9.3 Between , or, if the date hereof and Agent has so advised the Closing DateCompany, the Company shall not have sustained taken reasonable action to investigate such belief and, where appropriate, amend the Registration Statement or supplement the Prospectus so as to correct such statement or omission or effect such compliance. (c) There shall not have occurred any loss on account of firechange, explosion, flood, accident, calamity or any other cause of such character as would development involving a prospective change, that materially and adversely affect its affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or property considered as an entire entity, whether or not such loss is covered by insurance. 9.4 Between the date hereof and the Closing Date, there shall be no litigation instituted or threatened against the Company, and there shall be no proceeding instituted or threatened against the Company before or by any federal or state commission, regulatory body or administrative agency or other governmental body, domestic or foreign, wherein an unfavorable ruling, decision or finding would materially adversely affect the business, franchises, license, permits, operations or financial condition or income of the Company considered as an entity. 9.5 Except as contemplated herein or as business prospects from that set forth in the Offering DocumentsRegistration Statement or Prospectus, during the period subsequent and which is material and adverse or that makes it impracticable or inadvisable to the most recent financial statements contained in proceed with the Offering Documents, if any, of the Notes as contemplated by the Prospectus and prior to the Closing Date, the Company this Agreement. (id) The Indenture shall have conducted its business in the usual been duly authorized, executed and ordinary manner as the same is being conducted as of the date hereof and (ii) except in the ordinary course of business, the Company shall not have incurred any liabilities or obligations (direct or contingent) or disposed of any assets, or entered into any material transaction or suffered or experienced any substantially adverse change in its condition, financial or otherwise. At the Closing Date, the equity account of the Company shall be substantially the same as reflected in the most recent balance sheet contained in the Offering Documents without considering the proceeds from the sale of the Securities other than as may be set forth in the Offering Documents. 9.6 The authorization of the Securities delivered by the Company and all proceedings duly qualified under the Trust Indenture Act and other legal matters incident thereto shall constitute a valid and binding obligation of the Company enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to this Agreement shall be reasonably satisfactory in all respects to counsel to the Agent, who shall have furnished the Agent on the Closing Date with such favorable opinion with respect to the sufficiency of all general equity principles. (e) All corporate proceedings and other legal matters relating to in connection with this Agreement as Agreement, the Agent may reasonably requireform of Registration Statement and the Prospectus, and the registration, authorization, issue, sale and delivery of the Notes by the Company shall have been reasonably satisfactory to the Agent’s counsel, in all material respects, and the Agent’s counsel shall have been furnished with such counsel such documents papers and information as he it may reasonably have requested to enable him it to pass upon the matters referred to in this subparagraphSection. 9.7 (f) The Company Agent shall have furnished to received the Agent the opinionopinion of Akin, dated the Closing DateGump, addressed to the AgentStrauss, from Xxxxx & Xxxx, L.L.P., counsel to the Company, as required by the Subscription Agreement. 9.8 The Company shall have furnished to the Agent a certificate of the Chief Executive Officer and the Chief Financial Officer of for the Company, dated as of the Initial Closing Date, satisfactory in form and substance to the Agent and the Agent’s counsel, which includes the opinions as set forth in Exhibit B attached hereto. In rendering the foregoing opinion, such counsel may rely as to questions of fact upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to the Agent’s counsel. (g) On the Initial Closing Date, the Agent shall have received from HoganTaylor a letter, dated as of the Initial Closing Date, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable rules and regulations thereunder, and further stating that: (i) In their opinion, the consolidated balance sheets of the Company as of December 31, 2007 and 2006, and the related consolidated statements of income, changes in stockholders’ equity, and cash flows for each of the years in the two-year period then ended, all audited by them and included or incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. (ii) For purposes of the letter they have: (A) read the minutes of the stockholders’ and directors’ meetings of the Company; (B) inquired of certain officials of the Company responsible for financial and accounting matters; (C) performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 100, Interim Financial Information, on any unaudited financial statements included or incorporated by reference in the Registration Statement; and (D) reviewed the unaudited consolidated balance sheet of the Company as of September 30, 2008 and the unaudited consolidated statement of income for the three month period ended September 30, 2008, each of which has been included or incorporated by reference in the Registration Statement. (iii) Nothing came to their attention as a result of the procedures described above that caused them to believe that: (A) any material modifications should be made to the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America; (B) the unaudited consolidated financial statements included or incorporated by reference in the Registration Statement do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act and the Securities Exchange Act of 1934, as amended, or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (C) the unaudited amounts of revenues, income before provision for income taxes, and net income of the Company included or incorporated by reference in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; (D) at a specified date not more than five Business Days prior to the date of the letter, there was any change in: (i) the capital stock, (ii) short term indebtedness or long-term debt of the Company and its consolidated subsidiaries, or (iii) stockholders’ equity, as compared with amounts shown on the latest balance sheet incorporated by reference in the Registration Statement; or (E) for the period from the closing date of the latest income statement filed on a Form 10-Q incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by such accountants, there were any material changes, as compared with the corresponding period of the previous year, in revenues or net income; except in all cases set forth in clauses (C) and (D) above, for changes which the Registration Statement discloses have occurred or may occur or which are described in such letter. (iv) They have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentage and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquires, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal financial officer of the Company, to the effect that: (i) the The representations and warranties of the Company in this Agreement are true and correct in all material respects at as if made on and as of the Closing Date (other than representations and warranties which by their terms are specifically limited to a date other than of the Closing Date)certificate, and the Company has complied with all the agreements and has satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; andunder this Agreement. (ii) No stop order or other order suspending the respective signers effectiveness of the Registration Statement or any amendment thereof or the qualification of the Notes for offering or sale have each carefully examined the Offering Documentsbeen issued, and any amendments and supplements thereto, andno proceedings for that purpose have been instituted or, to the best of their his knowledge, in are contemplated by the Offering memorandum, Commission or any state or regulatory body. (iii) The signer of said certificate has carefully examined the Registration Statement and the Prospectus and any amendments and thereof or supplements thereto, . (iv) Such documents contain all statements contained in and information required to be included therein; the Offering Documents are true and correctRegistration Statement, and neither the Offering Documents, nor or any amendment or supplement theretothereof, includes does not contain any untrue statement of a material fact or omits omit to state a any material fact required to be stated therein or necessary to make the statements therein under not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in under which they were made made, not misleading. (v) There has not occurred any change, and since the date hereof, there has occurred no event required to be set forth in an amended or supplemented Offering Documentsany development involving a prospective change, which has not been set forth; materially and adversely affects the Company’s condition (financial or otherwise), earnings, operations, properties, business or business prospects except as set forth on contemplated in the Offering Documents, since Prospectus (or in the Incorporated Documents as of the date of such certificate). (vi) Subsequent to the respective dates as of which or the periods for which the information is given in the Offering Documents Registration Statement and prior to the date of such certificateProspectus, (a) there has not been any substantially adverse change, financial and otherwise, in the affairs of condition in the Company, and (b) the Company has not incurred any material liabilitiesliabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the financial statements incorporated by reference in the Registration Statement, there has not been any material transactionschange in the capital stock, otherwise or any material increase in the short-term debt or long-term debt (other than consistent with past practices), or in the issuance of options or restricted stock awards (other than to directors and employees of the Company), warrants, convertible securities or other rights to purchase the capital stock of the Company, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company. (vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company. (i) The Agent shall have received a certificate of the Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows: (i) Attached thereto are true and correct copies of the certificate of incorporation of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached certificate of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to (A) except as is otherwise expressly described in or incorporated by reference into the Registration Statement or Prospectus, in particular, the preapproved reverse split, the amendment of said certificate of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in good standing in the State of Delaware and has paid all of its corporate franchise taxes due as of the date of such certificate. (ii) Attached thereto is a true and correct copy of the bylaws of the Company as in effect as of the date of such certificate and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to changes or amendments to the attached bylaws. (iii) Attached thereto are true and correct copies of the resolutions of the Board of Directors of the Company relating to the preparation and signing of the Registration Statement and this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the Offering. (iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement. (j) Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P. shall deliver to the Agent a blue sky memorandum reasonably satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken. (k) The Company shall have furnished to the Agent and to the Agent’s counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and the Agent’s counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any time prior to, the Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of the Agent to the Company and shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Company as specified in Section 8.03.