AT
CLOSING OUT OF FUNDS HELD PURSUANT TO THE ESCROW AGREEMENT (AS DEFINED BELOW)
AND A DISBURSEMENT LETTER (THE "DISBURSEMENT LETTER").
4.
CLOSING, DELIVERY AND PAYMENT.
4.1
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").
4.2
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 (IT BEING UNDERSTOOD THAT $964,500 OF THE PROCEEDS OF THE NOTE
SHALL BE PLACED IN THE RESTRICTED ACCOUNT (AS DEFINED IN THE RESTRICTED ACCOUNT
AGREEMENT REFERRED TO BELOW)). 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.
5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
HEREBY REPRESENTS AND WARRANTS TO THE PURCHASER AS FOLLOWS
5.1
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 REAFFIRMATION
AND RATIFICATION AGREEMENT DATED AS OF THE DATE HEREOF AMONG THE COMPANY,
CERTAIN SUBSIDIARIES OF THE COMPANY AND THE PURCHASER (AS AMENDED, MODIFIED
AND/OR SUPPLEMENTED FROM TIME TO TIME, THE "REAFFIRMATION AGREEMENT"), (IV) THE
REGISTRATION RIGHTS
2
Agreement relating to the Securities dated as of the date hereof between the
Company and the Purchaser (as amended, modified and/or supplemented from time to
time, the "Registration Rights Agreement"), (v) the Funds Escrow Agreement dated
as of the date hereof among the Company, the Purchaser and the escrow agent
referred to therein, substantially in the form of Exhibit D hereto (as amended,
modified and/or supplemented from time to time, the "Escrow Agreement"), (vi)
the Restricted Account Agreement dated as of the date hereof among the Company,
the Purchaser and North Fork Bank (as amended, restated, modified and/or
supplemented from time to time, the "Restricted Account Agreement"), (vii) the
Restricted Account Side Letter related