THE COMPANY AND DATED AS OF THE SECOND CLOSING DATE, THAT ALL
CONDITIONS TO THE SECOND CLOSING HAVE BEEN SATISFIED.
(C)
THE OBLIGATION OF THE BUYER(S) HEREUNDER TO ACCEPT THE NOTES AT
THE THIRD CLOSING IS SUBJECT TO THE SATISFACTION, AT OR BEFORE THE THIRD CLOSING
DATE, OF EACH OF THE FOLLOWING CONDITIONS, PROVIDED THAT THESE CONDITIONS ARE
FOR THE BUYER'S SOLE BENEFIT AND MAY BE WAIVED BY THE BUYER AT ANY TIME IN ITS
SOLE DISCRETION:
(I)
THE COMMON STOCK SHALL BE AUTHORIZED FOR QUOTATION OR TRADING ON
THE PRIMARY MARKET, TRADING IN THE COMMON STOCK SHALL NOT HAVE BEEN SUSPENDED
FOR ANY REASON.
(II)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS (EXCEPT TO THE EXTENT THAT ANY OF SUCH
REPRESENTATIONS AND WARRANTIES IS ALREADY QUALIFIED AS TO MATERIALITY IN
SECTION 3 ABOVE, IN WHICH CASE, SUCH REPRESENTATIONS AND WARRANTIES SHALL BE
TRUE AND CORRECT WITHOUT FURTHER QUALIFICATION) AS OF THE DATE WHEN MADE AND AS
OF THE SECOND CLOSING DATE AS THOUGH MADE AT THAT TIME (EXCEPT FOR
REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE) AND THE COMPANY
SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH THE
COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY THE COMPANY AT OR PRIOR TO THE SECOND CLOSING
DATE.
(III)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO THE BUYERS THE
NOTES IN THE RESPECTIVE AMOUNTS SET FORTH OPPOSITE EACH BUYERS NAME ON SCHEDULE
I ATTACHED HERETO.
(IV)
THE COMPANY SHALL HAVE CERTIFIED, IN A CERTIFICATE EXECUTED BY TWO
OFFICERS OF THE COMPANY AND DATED AS OF THE SECOND CLOSING DATE, THAT ALL
CONDITIONS TO THE SECOND CLOSING HAVE BEEN SATISFIED.
9.
INDEMNIFICATION.
(A)
IN CONSIDERATION OF THE BUYER'S EXECUTION AND DELIVERY OF THIS
AGREEMENT AND ACQUIRING THE NOTES HEREUNDER, AND IN ADDITION TO ALL OF THE
COMPANY'S OTHER OBLIGATIONS UNDER THIS AGREEMENT, THE COMPANY SHALL DEFEND,
PROTECT, INDEMNIFY AND HOLD HARMLESS THE BUYER(S) AND EACH OTHER HOLDER OF THE
NOTES, AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (INCLUDING,
WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT) (COLLECTIVELY, THE "BUYER INDEMNITEES") FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS,
PENALTIES, FEES, LIABILITIES AND DAMAGES, AND EXPENSES IN CONNECTION THEREWITH
(IRRESPECTIVE OF WHETHER ANY SUCH BUYER INDEMNITEE IS A PARTY TO THE ACTION FOR
WHICH INDEMNIFICATION HEREUNDER IS SOUGHT), AND INCLUDING REASONABLE ATTORNEYS'
FEES AND DISBURSEMENTS (THE "INDEMNIFIED LIABILITIES"), INCURRED BY THE BUYER
INDEMNITEES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO
(A) ANY MISREPRESENTATION OR BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY
THE COMPANY IN THIS AGREEMENT, THE NOTES OR THE OTHER TRANSACTION DOCUMENTS OR
ANY OTHER CERTIFICATE, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY,
(B) ANY BREACH OF ANY COVENANT, AGREEMENT OR OBLIGATION OF THE COMPANY CONTAINED
IN THIS AGREEMENT, OR THE OTHER TRANSACTION DOCUMENTS OR