COMPANY SINCE THE DATE HEREOF.
(B)
CONDITIONS TO COMPANY'S OBLIGATIONS.
THE OBLIGATION OF THE COMPANY
TO SELL AND ISSUE THE COMPANY COMMON STOCK AT THE CLOSING IS SUBJECT TO THE
FULFILLMENT TO THE SATISFACTION OF THE COMPANY, AT OR PRIOR TO THE CLOSING DATE,
OF THE FOLLOWING CONDITIONS, ANY OF WHICH MAY BE WAIVED BY THE COMPANY:
(I)
AT THE CLOSING, APOLLO SHALL DELIVER OR CAUSE TO BE DELIVERED
TO THE COMPANY, THIS AGREEMENT DULY EXECUTED BY APOLLO;
(II)
ALL REPRESENTATIONS AND WARRANTIES OF APOLLO CONTAINED HEREIN
SHALL REMAIN TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE.
(III)
AS OF THE CLOSING DATE, THERE SHALL HAVE BEEN NO MATERIAL
ADVERSE EFFECT WITH RESPECT TO EARTH BIOFUELS SINCE THE DATE HEREOF.
3
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1
Representations and Warranties of the Company.
The Company hereby
makes the following representations and warranties as of the date hereof to
Apollo:
(A)
ORGANIZATION AND QUALIFICATION.
THE COMPANY IS AN ENTITY DULY
INCORPORATED OR OTHERWISE ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER
THE LAWS OF THE JURISDICTION OF ITS INCORPORATION, WITH THE REQUISITE POWER AND
AUTHORITY TO OWN AND USE ITS PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS
AS CURRENTLY CONDUCTED.
THE COMPANY IS NOT IN VIOLATION OF ANY OF THE
PROVISIONS OF ITS CERTIFICATE OR ARTICLES OF INCORPORATION OR BYLAWS.
THE
COMPANY IS DULY QUALIFIED TO CONDUCT BUSINESS AND IS IN GOOD STANDING AS A
FOREIGN CORPORATION OR OTHER ENTITY IN EACH JURISDICTION IN WHICH THE NATURE OF
THE BUSINESS CONDUCTED OR PROPERTY OWNED BY IT MAKES SUCH QUALIFICATION
NECESSARY, EXCEPT WHERE THE FAILURE TO BE SO QUALIFIED OR IN GOOD STANDING, AS
THE CASE MAY BE, WOULD NOT HAVE OR REASONABLY BE EXPECTED TO RESULT IN (I) A
MATERIAL ADVERSE EFFECT ON THE LEGALITY, VALIDITY OR ENFORCEABILITY OF ANY
TRANSACTION DOCUMENT OR (II) A MATERIAL ADVERSE EFFECT ON THE RESULTS OF
OPERATIONS, ASSETS, BUSINESS OR FINANCIAL CONDITION OF THE COMPANY (EITHER OF
(I) OR (II), A "MATERIAL ADVERSE EFFECT").
(B)
AUTHORIZATION; ENFORCEMENT.
THE COMPANY HAS THE REQUISITE CORPORATE
POWER AND AUTHORITY TO ENTER INTO AND TO CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY EACH OF THE TRANSACTION DOCUMENTS AND OTHERWISE TO CARRY OUT ITS
OBLIGATIONS THEREUNDER.
THE EXECUTION AND DELIVERY OF EACH OF THE TRANSACTION
DOCUMENTS BY THE COMPANY AND THE CONSUMMATION BY IT OF THE TRANSACTIONS
CONTEMPLATED THEREBY HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE
PART OF THE COMPANY AND NO FURTHER ACTION IS REQUIRED BY THE COMPANY IN
CONNECTION THEREWITH.
EACH TRANSACTION DOCUMENT HAS BEEN (OR UPON DELIVERY WILL
HAVE BEEN) DULY EXECUTED BY THE COMPANY AND, WHEN DELIVERED IN ACCORDANCE WITH
THE TERMS HEREOF, ASSUMING THE VALID EXECUTION AND DELIVERY THEREOF BY APOLLO,
WILL CONSTITUTE THE VALID AND BINDING OBLIGATION OF THE COMPANY ENFORCEABLE
AGAINST THE COMPANY IN ACCORDANCE WITH ITS TERMS, EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM
AND OTHER LAWS OF GENERAL APPLICATION AFFECTING ENFORCEMENT OF CREDITORS' AND
CONTRACTING PARTIES RIGHTS