PROSPECTUS AS SO SUPPLEMENTED AT ANY TIME PRIOR TO THE
TRADING DAY FOLLOWING THE SETTLEMENT DATE WITH RESPECT TO SUCH SHARES.
ARTICLE VII
CONDITIONS TO THE OBLIGATION OF THE INVESTOR
TO ACCEPT A DRAW DOWN
The obligation of the Investor hereunder to accept a Draw Down Notice and to
acquire and pay for the Shares in accordance therewith is subject to the
satisfaction or waiver, at each Condition Satisfaction Date, of each of the
conditions set forth below.
Other than those conditions set forth in
Section 7.12 which are for the Company's sole benefit and may be waived by the
Company at any time in its sole discretion, the conditions are for the
Investor's sole benefit and may be waived by the Investor at any time in its
sole discretion.
As used in this Agreement, the term "Condition Satisfaction
Date" shall mean, with respect to each Draw Down, the date on which the
applicable Draw Down Notice is delivered to the Investor, each Trading Day of
the applicable Draw Down Pricing Period and each Settlement Date.
SECTION 7.1
ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
EACH OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AS THOUGH MADE AT THAT
TIME EXCEPT FOR REPRESENTATIONS AND WARRANTIES THAT ARE EXPRESSLY MADE AS OF A
PARTICULAR DATE.
21
SECTION 7.2
PERFORMANCE BY THE COMPANY.
THE COMPANY SHALL HAVE, IN ALL
MATERIAL RESPECTS, PERFORMED, SATISFIED AND COMPLIED WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THIS AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE WARRANT TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE
COMPANY ON OR PRIOR TO THE APPLICABLE CONDITION SATISFACTION DATE.
SECTION 7.3
COMPLIANCE WITH LAW.
THE COMPANY SHALL HAVE COMPLIED IN ALL
RESPECTS WITH ALL APPLICABLE FEDERAL, STATE AND LOCAL GOVERNMENTAL LAWS, RULES,
REGULATIONS AND ORDINANCES IN CONNECTION WITH THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY EXCEPT FOR ANY FAILURES TO SO COMPLY WHICH WOULD NOT BE
REASONABLY EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
SECTION 7.4
EFFECTIVE REGISTRATION STATEMENT.
UPON THE TERMS AND
SUBJECT TO THE CONDITIONS SET FORTH IN THE REGISTRATION RIGHTS AGREEMENT, THE
REGISTRATION STATEMENT SHALL HAVE PREVIOUSLY BECOME EFFECTIVE AND SHALL REMAIN
EFFECTIVE AND (I) NEITHER THE COMPANY NOR THE INVESTOR SHALL HAVE RECEIVED
NOTICE THAT THE COMMISSION HAS ISSUED OR INTENDS TO ISSUE A STOP ORDER WITH
RESPECT TO THE REGISTRATION STATEMENT OR THAT THE COMMISSION OTHERWISE HAS
SUSPENDED OR WITHDRAWN THE EFFECTIVENESS OF THE REGISTRATION STATEMENT, EITHER
TEMPORARILY OR PERMANENTLY, OR INTENDS OR HAS THREATENED TO DO SO (UNLESS THE
COMMISSION'S CONCERNS HAVE BEEN ADDRESSED AND THE INVESTOR IS REASONABLY
SATISFIED THAT THE COMMISSION NO LONGER IS CONSIDERING OR INTENDS TO TAKE SUCH
ACTION), AND (II) NO OTHER SUSPENSION OF THE USE OR WITHDRAWAL OF THE
EFFECTIVENESS OF THE REGISTRATION STATEMENT OR THE PROSPECTUS SHALL EXIST.
SECTION 7.5
NO KNOWLEDGE.
THE COMPANY SHALL HAVE NO KNOWLEDGE OF ANY
EVENT THAT