UNDER OR PURSUANT
TO ANY APPLICABLE LAW OR GOVERNMENTAL REGULATION, AND (C) BE PERMITTED BY THE
LAWS AND REGULATIONS OF THE JURISDICTIONS TO WHICH THE PURCHASER AND THE
PLACEMENT AGENTS ARE SUBJECT.
3.5.
CONSENTS AND PERMITS. THE COMPANY AND THE TRUST SHALL HAVE RECEIVED
ALL CONSENTS, PERMITS AND OTHER AUTHORIZATIONS, AND MADE ALL SUCH FILINGS AND
DECLARATIONS, AS MAY BE REQUIRED FROM ANY PERSON OR ENTITY PURSUANT TO ANY LAW,
STATUTE, REGULATION OR RULE (FEDERAL, STATE, LOCAL AND FOREIGN), OR PURSUANT TO
ANY AGREEMENT, ORDER OR DECREE TO WHICH THE COMPANY OR THE TRUST IS A PARTY OR
TO WHICH EITHER IS SUBJECT, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT.
3.6.
INFORMATION. PRIOR TO OR ON THE CLOSING DATE, THE OFFERORS SHALL
HAVE FURNISHED TO THE PLACEMENT AGENTS SUCH FURTHER INFORMATION, CERTIFICATES,
OPINIONS AND DOCUMENTS ADDRESSED TO THE PURCHASER AND THE PLACEMENT AGENTS,
WHICH THE PLACEMENT AGENTS MAY REASONABLY REQUEST, INCLUDING, WITHOUT
LIMITATION, A COMPLETE SET OF THE OPERATIVE DOCUMENTS OR ANY OTHER DOCUMENTS OR
CERTIFICATES REQUIRED BY THIS SECTION 3; AND ALL PROCEEDINGS TAKEN BY THE
OFFERORS IN CONNECTION WITH THE ISSUANCE, OFFER AND SALE OF THE CAPITAL
SECURITIES AS HEREIN CONTEMPLATED SHALL BE REASONABLY SATISFACTORY IN FORM AND
SUBSTANCE TO THE PLACEMENT AGENTS.
If any condition specified in this Section 3 shall not have been fulfilled when
and as required in this Agreement, or if any of the opinions or certificates
mentioned above or elsewhere in this Agreement shall not be reasonably
satisfactory in form and substance to the Placement Agents, this Agreement may
be terminated by the Placement Agents by notice to the Offerors at any time at
or prior to the Closing Date.
Notice of such termination shall be given to the
Offerors in writing or by telephone or facsimile confirmed in writing.
SECTION 4.
CONDITIONS TO THE OFFERORS' OBLIGATIONS. THE OBLIGATIONS
OF THE OFFERORS TO SELL THE CAPITAL SECURITIES TO THE PURCHASER AND CONSUMMATE
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE SUBJECT TO THE
ACCURACY, AT AND AS OF THE CLOSING DATE, OF THE REPRESENTATIONS AND WARRANTIES
OF THE PLACEMENT AGENTS CONTAINED IN THIS AGREEMENT AND TO THE FOLLOWING FURTHER
CONDITIONS:
4
4.1.
EXECUTED AGREEMENT. THE OFFERORS SHALL HAVE RECEIVED FROM THE
PLACEMENT AGENTS AN EXECUTED COPY OF THIS AGREEMENT.
4.2.
FULFILLMENT OF OTHER OBLIGATIONS. THE PLACEMENT AGENTS SHALL HAVE
FULFILLED ALL OF THEIR OTHER OBLIGATIONS AND DUTIES REQUIRED TO BE FULFILLED
UNDER THIS AGREEMENT PRIOR TO OR AT THE CLOSING.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE OFFERORS. EXCEPT
AS SET FORTH ON THE DISCLOSURE SCHEDULE (AS DEFINED IN SECTION 11.1) ATTACHED
HERETO, IF ANY, THE OFFERORS JOINTLY AND SEVERALLY REPRESENT AND WARRANT TO THE
PLACEMENT AGENTS AND THE PURCHASER AS OF THE DATE HEREOF AND AS OF THE CLOSING
DATE AS FOLLOWS:
5.1.
SECURITIES LAW MATTERS.
(A)
NEITHER THE COMPANY NOR THE TRUST, NOR ANY OF THEIR "AFFILIATES"
(AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES ACT
("REGULATION D")), NOR ANY PERSON ACTING ON ANY OF