BE PAID UNDER THIS
SECTION 2(C) WILL BE PAID ON THE CLOSING DATE AND SHALL BE $5,000 FOR SUCH
EXPENSES REFERRED TO IN THIS SECTION 2(C).
(D)
THE CLOSING PAYMENT AND THE EXPENSES REFERRED TO IN THE PRECEDING
CLAUSE (C) (NET OF DEPOSITS PREVIOUSLY PAID BY THE COMPANY) SHALL BE PAID AT
CLOSING OUT OF FUNDS HELD PURSUANT TO THE ESCROW AGREEMENT (AS DEFINED BELOW)
AND A DISBURSEMENT LETTER (THE "DISBURSEMENT LETTER").
3.
CLOSING, DELIVERY AND PAYMENT.
3.1
CLOSING. SUBJECT TO THE TERMS AND CONDITIONS HEREIN, THE CLOSING
OF THE TRANSACTIONS CONTEMPLATED HEREBY (THE "CLOSING"), SHALL TAKE PLACE ON THE
DATE HEREOF, AT SUCH TIME OR PLACE AS THE COMPANY AND THE PURCHASER MAY MUTUALLY
AGREE (SUCH DATE IS HEREINAFTER REFERRED TO AS THE "CLOSING DATE").
3.2
DELIVERY. PURSUANT TO THE ESCROW AGREEMENT, AT THE CLOSING ON THE
CLOSING DATE, THE COMPANY WILL DELIVER TO THE PURCHASER, AMONG OTHER THINGS, THE
NOTE, AND THE WARRANT AND THE PURCHASER WILL DELIVER TO THE COMPANY, AMONG OTHER
THINGS, THE AMOUNTS SET FORTH IN THE DISBURSEMENT LETTER BY CERTIFIED FUNDS OR
WIRE TRANSFER. THE COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT PURCHASER'S
OBLIGATION TO PURCHASE THE NOTE FROM THE COMPANY ON THE CLOSING DATE SHALL BE
CONTINGENT UPON THE SATISFACTION (OR WAIVER BY THE PURCHASER IN ITS SOLE
DISCRETION) OF THE ITEMS AND MATTERS SET FORTH IN THE CLOSING CHECKLIST PROVIDED
BY THE PURCHASER TO THE COMPANY ON OR PRIOR TO THE CLOSING DATE.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY. THE COMPANY HEREBY
REPRESENTS AND WARRANTS TO THE PURCHASER AS FOLLOWS
4.1
ORGANIZATION, GOOD STANDING AND QUALIFICATION. EACH OF THE COMPANY
AND EACH OF ITS SUBSIDIARIES IS A CORPORATION, PARTNERSHIP OR LIMITED LIABILITY
COMPANY, AS THE CASE MAY BE, DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD
STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION. EACH OF THE COMPANY
AND EACH OF ITS SUBSIDIARIES HAS THE CORPORATE, LIMITED LIABILITY COMPANY OR
PARTNERSHIP, AS THE CASE MAY BE, POWER AND AUTHORITY TO OWN AND OPERATE ITS
PROPERTIES AND ASSETS AND, INSOFAR AS IT IS OR SHALL BE A PARTY THERETO, TO
(1) EXECUTE AND DELIVER (I) THIS AGREEMENT, (II) THE NOTE AND THE WARRANT TO BE
ISSUED IN CONNECTION WITH THIS AGREEMENT, (III) THE MASTER SECURITY AGREEMENT
DATED AS OF THE DATE HEREOF BETWEEN THE COMPANY, CERTAIN
2
SUBSIDIARIES OF THE COMPANY AND THE PURCHASER (AS AMENDED, MODIFIED AND/OR
SUPPLEMENTED FROM TIME TO TIME, THE "MASTER SECURITY AGREEMENT"), (IV) THE
REAFFIRMATION AND RATIFICATION AGREEMENT DATED AS OF THE DATE HEREOF BY AND
AMONG THE COMPANY, CERTAIN SUBSIDIARIES AND THE PURCHASER (AS AMENDED, MODIFIED
OR SUPPLEMENTED, THE "REAFFIRMATION AGREEMENT"), WHICH REAFFIRMS AND RATIFIES
THE OBLIGATIONS OF THE COMPANY AND THE SUBSIDIARIES UNDER (A) THAT CERTAIN
SECURITY AGREEMENT BY AND AMONG THE COMPANY, CERTAIN SUBSIDIARIES OF THE COMPANY
AND THE PURCHASER DATED AS OF AUGUST 25, 2005 (AS AMENDED, MODIFIED AND/OR
SUPPLEMENTED FROM TIME TO TIME, THE "SECURITY AGREEMENT") AND REAFFIRMED ON
FEBRUARY 10, 2006; (B) THAT CERTAIN SECURITY AGREEMENT DATED AS OF AUGUST 25,