OWING THEREUNDER) SHALL HAVE BEEN
PAID OFF AND SATISFIED IN FULL THROUGH THE CONVERSION OF ALL SUCH INDEBTEDNESS
INTO SHARES AND WARRANTS ISSUABLE HEREUNDER (WITH THE "INVESTMENT AMOUNT" OF
EACH HOLDER OF SUCH INDEBTEDNESS BEING EQUAL TO THE AMOUNT OF INDEBTEDNESS SO
CONVERTED AND RETIRED, AND ANY AMOUNT NOT CONVERTIBLE INTO A WHOLE NUMBER OF
SHARES BEING SETTLED BY THE COMPANY IN CASH) SO THAT, UPON THE CLOSING NO
INDEBTEDNESS OF THE COMPANY FOR BORROWED MONEY WILL REMAIN OUTSTANDING; AND
(IX)
COMPANY DELIVERABLES.
THE COMPANY SHALL
HAVE DELIVERED THE CLOSING COMPANY DELIVERABLES IN ACCORDANCE WITH
SECTION 2.1(B).
(E)
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE COMPANY TO SELL SHARES AND WARRANTS.
THE OBLIGATION OF THE COMPANY TO SELL
SHARES AND WARRANTS AT THE CLOSING IS SUBJECT TO THE SATISFACTION OR WAIVER BY
THE COMPANY, AT OR BEFORE THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS:
(I)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR CONTAINED HEREIN SHALL BE TRUE
AND CORRECT AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE
ON AND AS OF SUCH DATE;
(II)
PERFORMANCE.
EACH INVESTOR SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THE
8
TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY SUCH
INVESTOR AT OR PRIOR TO THE CLOSING;
(III)
NO INJUNCTION.
NO STATUTE, RULE,
REGULATION, EXECUTIVE ORDER, DECREE, RULING OR INJUNCTION SHALL HAVE BEEN
ENACTED, ENTERED, PROMULGATED OR ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY
OF COMPETENT JURISDICTION THAT PROHIBITS THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS; AND
(IV)
INVESTORS DELIVERABLES.
EACH INVESTOR SHALL
HAVE DELIVERED ITS INVESTOR DELIVERABLES IN ACCORDANCE WITH SECTION 2.1(C).
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
THE COMPANY HEREBY MAKES THE FOLLOWING REPRESENTATIONS AND WARRANTIES
TO EACH INVESTOR:
(A)
SUBSIDIARIES.
THE COMPANY HAS NO DIRECT OR
INDIRECT SUBSIDIARIES.
ALL REFERENCES IN THIS AGREEMENT TO SUBSIDIARIES SHALL
BE DISREGARDED UNTIL SUCH TIME AS THE COMPANY HAS ANY SUBSIDIARIES.
(B)
ORGANIZATION AND QUALIFICATION.
THE COMPANY
AND EACH SUBSIDIARY ARE DULY INCORPORATED OR OTHERWISE ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF THE JURISDICTION OF ITS
INCORPORATION OR ORGANIZATION (AS APPLICABLE), WITH THE REQUISITE POWER AND
AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS
AS CURRENTLY CONDUCTED.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN VIOLATION
OF ANY OF THE PROVISIONS OF ITS RESPECTIVE CERTIFICATE OR ARTICLES OF
INCORPORATION, BYLAWS OR OTHER ORGANIZATIONAL OR CHARTER DOCUMENTS.
THE COMPANY
AND EACH SUBSIDIARY ARE DULY QUALIFIED TO CONDUCT ITS RESPECTIVE BUSINESSES AND
ARE IN GOOD STANDING AS A FOREIGN CORPORATION OR OTHER ENTITY IN EACH
JURISDICTION IN WHICH THE NATURE OF THE BUSINESS CONDUCTED OR PROPERTY OWNED BY
IT MAKES SUCH QUALIFICATION NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED OR IN GOOD STANDING, AS THE CASE MAY BE, COULD NOT, INDIVIDUALLY OR IN
THE AGGREGATE, HAVE OR REASONABLY BE