LAW OR REGULATION OF ANY COURT OR FEDERAL,
STATE, COUNTY OR LOCAL GOVERNMENT OR ANY OTHER GOVERNMENTAL, REGULATORY OR
ADMINISTRATIVE AGENCY OR AUTHORITY WHICH IS APPLICABLE TO SUCH PURCHASER OR ANY
OF ITS ASSETS, PROPERTIES OR BUSINESSES.
4.11
Brokers or Finders.
Such Purchaser has not
incurred, nor will it incur, directly or indirectly, as a result of any action
taken by such Purchaser, any liability for brokerage or finders' fees or agents'
commissions or any similar charges in connection with this Agreement or the
issuance of the Notes and the Warrants or any transaction contemplated hereby or
thereby. Such Purchaser agrees to indemnify and hold harmless the Borrowers from
any liability for any commission or compensation in the nature of a finders' fee
(and the costs and expenses of defending against such liability or asserted
liability) for which such Purchaser, or any of its respective officers,
employees or representatives is responsible.
5.
CONDITIONS OF THE PARTIES.
5.1
Conditions of Purchasers' Obligations at any
Closing.
The obligations of each Purchaser under Section 1 of this Agreement
are subject to the satisfaction by the Borrowers on or before such Closing of
each of the following conditions:
(A)
REPRESENTATIONS AND WARRANTIES. THE
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS CONTAINED IN SECTION 3 SHALL BE
TRUE AND CORRECT ON AND AS OF THE INITIAL CLOSING DATE AND SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS ON AND AS OF ANY SUBSEQUENT CLOSING DATE WITH
THE SAME FORCE AND EFFECT AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES HAD BEEN
MADE ON SUCH DATE.
(B)
PERFORMANCE. THE BORROWERS 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)
NO MATERIAL ADVERSE EFFECT; COMPLIANCE
CERTIFICATE. NO MATERIAL ADVERSE EFFECT SHALL HAVE OCCURRED BETWEEN THE DATE
HEREOF AND SUCH CLOSING DATE AND THE PRESIDENT AND/OR CHIEF EXECUTIVE OFFICER OF
EACH BORROWER SHALL DELIVER TO THE AGENT, ACTING ON
13
BEHALF OF THE PURCHASERS, AT EACH SUCH CLOSING A CERTIFICATE STATING THAT THE
CONDITIONS SPECIFIED IN SECTIONS 5.1(A), (B) AND (C) HAVE BEEN FULFILLED AND
STATING THAT NO MATERIAL ADVERSE EFFECT HAS OCCURRED BETWEEN THE DATE HEREOF AND
SUCH CLOSING DATE.
(D)
CONSENTS AND APPROVALS. ALL AUTHORIZATIONS,
APPROVALS, PERMITS, OR CONSENTS, IF ANY, OF ANY GOVERNMENTAL AUTHORITY OR
REGULATORY BODY OF THE UNITED STATES OR OF ANY STATE OR ANY CREDITOR OF THE
BORROWERS OR ANY OTHER PERSON THAT ARE REQUIRED IN CONNECTION WITH THE LAWFUL
ISSUANCE AND SALE OF THE NOTES AND THE WARRANTS AT SUCH CLOSING PURSUANT TO THIS
AGREEMENT SHALL BE DULY OBTAINED AND EFFECTIVE AS OF EACH SUCH CLOSING AND THE
PURCHASE AND PAYMENT OF THE NOTES AND THE WARRANTS TO BE PURCHASED BY THE
PURCHASERS AT EACH SUCH CLOSING ON THE TERMS AND CONDITIONS AS PROVIDED HEREIN
SHALL NOT VIOLATE ANY APPLICABLE LAW.
(E)
GOOD STANDING; QUALIFICATION TO DO
BUSINESS. THE PARENT SHALL HAVE DELIVERED TO THE AGENT, ACTING ON BEHALF OF THE
PURCHASERS,