BEHALF OF EACH ADDITIONAL PURCHASER, SUCH ADDITIONAL
PURCHASER'S ADDITIONAL NOTES.
(C)
ADDITIONAL WARRANTS. WITH RESPECT TO ANY
SUBSEQUENT CLOSING, THE PARENT SHALL DELIVER TO THE AGENT, ACTING ON BEHALF OF
EACH ADDITIONAL PURCHASER, SUCH ADDITIONAL PURCHASER'S ADDITIONAL WARRANTS.
(D)
SUBORDINATION AGREEMENT. THE BORROWERS SHALL
HAVE EXECUTED AND DELIVERED TO EACH ADDITIONAL PURCHASER THE SUBORDINATION
AGREEMENT.
5.4
Conditions of Borrowers' Obligations at any
Closing.
The obligations of the Borrowers to consummate the transactions
contemplated by this Agreement are subject to the satisfaction by the Purchasers
on or before any such Closing of each of the following conditions:
(A)
REPRESENTATIONS AND WARRANTIES. THE
REPRESENTATIONS AND WARRANTIES OF THE EACH PURCHASERS CONTAINED IN SECTION 4
SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF SUCH CLOSING
WITH THE SAME FORCE AND EFFECT AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES HAD
BEEN MADE ON AND AS OF THE DATE OF SUCH CLOSING; PROVIDED, HOWEVER, THAT
REPRESENTATIONS AND WARRANTIES THAT CONTAIN A MATERIALITY QUALIFICATION SHALL BE
TRUE AND CORRECT IN ALL RESPECTS.
(B)
PERFORMANCE. EACH PURCHASER SHALL HAVE
PERFORMED AND COMPLIED WITH ALL CONDITIONS CONTAINED IN THIS AGREEMENT THAT ARE
REQUIRED TO BE PERFORMED OR COMPLIED WITH BY IT ON OR BEFORE SUCH CLOSING.
(C)
CONSENTS AND APPROVALS. ALL AUTHORIZATIONS,
APPROVALS, OR PERMITS, IF ANY, OF ANY GOVERNMENTAL AUTHORITY OR ANY OTHER PERSON
THAT ARE REQUIRED IN CONNECTION WITH THE LAWFUL ISSUANCE AND SALE OF THE NOTES
AND THE WARRANTS TO SUCH PURCHASER PURSUANT TO THIS AGREEMENT SHALL BE DULY
OBTAINED AND EFFECTIVE AS OF SUCH CLOSING AND THE PURCHASE AND PAYMENT OF THE
NOTES AND THE WARRANTS TO BE PURCHASED BY THE PURCHASERS AT SUCH CLOSING ON THE
TERMS AND CONDITIONS AS PROVIDED HEREIN SHALL NOT VIOLATE ANY APPLICABLE LAW.
15
(D)
PURCHASE PRICE. THE PURCHASERS SHALL HAVE
DELIVERED TO THE BORROWERS THE APPLICABLE PURCHASE PRICE FOR THE NOTES AND THE
WARRANTS BEING PURCHASED ON SUCH CLOSING DATE.
(E)
SUBORDINATION AGREEMENT. EACH PURCHASER
SHALL HAVE EXECUTED AND DELIVERED TO THE BORROWERS AND SVB THE SUBORDINATION
AGREEMENT.
6.
EVENTS OF DEFAULT AND REMEDIES.
6.1
Events of Default. So long as the Notes are
outstanding an Event of Default with respect to the Notes shall mean the
occurrence and existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by any
Law applicable to the Borrowers):
(A)
THE BORROWERS FAIL TO PAY WHEN DUE AND
PAYABLE ANY PORTION OF THE NOTE INDEBTEDNESS AT STATED MATURITY, UPON
ACCELERATION OR OTHERWISE.
(B)
THE BORROWERS FAIL OR NEGLECT TO PERFORM,
KEEP, OR OBSERVE IN ANY MATERIAL RESPECT ANY TERM, PROVISION, CONDITION,
COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT OR ANY LOAN DOCUMENT AND SUCH
FAILURE OR NEGLECT (OTHER THAN THOSE SET FORTH IN SECTION 2 OF EXHIBIT E) TO
PERFORM REMAINS IN EFFECT FOR A PERIOD OF 10 DAYS.
(C)
ANY MATERIAL PORTION OF THE BORROWERS'
ASSETS IS SEIZED, ATTACHED, SUBJECTED TO A WRIT OR DISTRESS WARRANT, IS LEVIED
UPON OR COMES INTO THE