NOTE.
THE FOREGOING FEE IS
REFERRED TO HEREIN AS THE "CLOSING PAYMENT."
(C)
THE COMPANY SHALL REIMBURSE THE PURCHASER
FOR ITS REASONABLE EXPENSES (INCLUDING LEGAL FEES AND EXPENSES) INCURRED IN
CONNECTION WITH THE PREPARATION AND NEGOTIATION OF THIS AGREEMENT AND THE
RELATED AGREEMENTS (AS HEREINAFTER DEFINED), AND EXPENSES INCURRED IN CONNECTION
WITH THE PURCHASER'S DUE DILIGENCE REVIEW OF THE COMPANY AND ITS SUBSIDIARIES
(AS DEFINED IN SECTION 4.2) AND ALL RELATED MATTERS.
AMOUNTS REQUIRED TO BE
PAID UNDER THIS SECTION 2(C) WILL BE PAID ON THE CLOSING DATE AND SHALL BE
$10,000
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, THE WARRANT AND THE INTEREST SHARES 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.
2
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 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,