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.
SECTION 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; OFFICER'S 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 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.
(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 OTHER THAN AS PROVIDED ON SCHEDULE 3.14
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.
14
(E)
GOOD STANDING.
THE PARENT SHALL HAVE DELIVERED TO THE AGENT, ACTING
ON BEHALF OF THE PURCHASERS, CERTIFICATES OF GOOD STANDING WITH RESPECT TO EACH
BORROWER DATED AS OF A DATE NO EARLIER THAN 15 DAYS PRIOR TO THE ANY SUCH
CLOSING FROM THE JURISDICTION OF INCORPORATION OF SUCH BORROWER.
(F)
SECRETARY'S CERTIFICATE.
THE PARENT SHALL HAVE DELIVERED TO THE
AGENT, ACTING ON BEHALF OF THE PURCHASERS, A CERTIFICATE EXECUTED BY THE