A
LENDER (THE "SENIOR LENDER"); PROVIDED THAT PURCHASER AND SUCH SENIOR LENDER
SHALL ENTER INTO AN INTERCREDITOR AGREEMENT THAT
ASSET PURCHASE AGREEMENT - PAGE 13
WILL (I) PRESERVE, AS FIRST PRIORITY LIENS, THE LIENS GRANTED PURSUANT TO THE
SECURITY AGREEMENT, (II) PERMIT PAYMENT AND PERFORMANCE OBLIGATIONS OF PURCHASER
WITH RESPECT TO THE COLLATERAL AND THE SECURED NOTE ON A SENIOR BASIS WITH A
PRIORITY AHEAD OF ANY OBLIGATION OF PURCHASER UNDER SUCH FACILITY, AND
(III) WILL OTHERWISE CONTAIN TERMS AND CONDITIONS REASONABLY SATISFACTORY TO THE
PURCHASER.
SECTION 5.2
CONDITIONS TO THE OBLIGATION OF PURCHASER TO CLOSE. THE
OBLIGATION OF PURCHASER TO EFFECT THE CLOSING IS SUBJECT TO THE SATISFACTION (OR
WAIVER BY PURCHASER) PRIOR TO THE CLOSING OF THE FOLLOWING FURTHER CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES. THE REPRESENTATIONS AND WARRANTIES
OF SELLERS CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT AT AND AS OF
THE CLOSING DATE WITH THE SAME FORCE AND EFFECT AS THOUGH MADE AT AND AS OF THE
CLOSING DATE, EXCEPT THAT THE FINANCIAL STATEMENTS REFERRED TO IN SECTION 2.7
SHALL HAVE BEEN UPDATED THROUGH THE END OF THE MONTH PRIOR TO THE CLOSING DATE.
SELLERS SHALL EACH HAVE DELIVERED TO PURCHASER A CERTIFICATE SIGNED BY A DULY
AUTHORIZED OFFICER OF SELLERS FAMILIAR WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT, DATED THE CLOSING DATE, TO THE EFFECT SET FORTH IN THIS
SECTION 5.2(A).
(B)
COVENANTS. THE COVENANTS AND AGREEMENTS OF SELLERS TO BE PERFORMED
ON OR PRIOR TO THE CLOSING PURSUANT TO THIS AGREEMENT AND THE CLOSING AGREEMENTS
SHALL HAVE BEEN DULY PERFORMED IN ALL MATERIAL RESPECTS, AND PURCHASER SHALL
HAVE RECEIVED A CERTIFICATE TO SUCH EFFECT DATED THE CLOSING DATE AND EXECUTED
BY A DULY AUTHORIZED OFFICER OF SELLERS FAMILIAR WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT.
(C)
PROCEEDINGS, INSTRUMENTS SATISFACTORY. ALL PROCEEDINGS, CORPORATE
OR OTHERWISE, TO BE TAKEN BY SELLERS IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND ALL DOCUMENTS INCIDENT THERETO, INCLUDING
THE CLOSING AGREEMENTS, SHALL BE REASONABLY SATISFACTORY IN FORM AND SUBSTANCE
TO PURCHASER AND PURCHASER'S COUNSEL, AND SELLERS SHALL HAVE MADE AVAILABLE TO
PURCHASER FOR EXAMINATION THE ORIGINALS OR TRUE AND CORRECT COPIES OF ALL
DOCUMENTS WHICH PURCHASER MAY REASONABLY REQUEST IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE CLOSING AGREEMENTS. AT
CLOSING, SELLERS SHALL DELIVER A COPY OF THE RESOLUTIONS OF THEIR RESPECTIVE
BOARDS OF DIRECTORS AND, IF REQUIRED, THEIR RESPECTIVE EQUITYHOLDERS AUTHORIZING
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE CLOSING AGREEMENTS.
(D)
ASSIGNMENT OF TRANSFERRED ASSETS. SELLERS SHALL HAVE EXECUTED AND
DELIVERED TO PURCHASER THE CLOSING AGREEMENTS, INCLUDING THE TRANSFER AND
ASSIGNMENT DOCUMENTS AND ANY OTHER ASSIGNMENTS, ENDORSEMENTS, AGREEMENTS OR
DOCUMENTS AS REQUIRED HEREIN TO VEST OWNERSHIP OF THE TRANSFERRED ASSETS IN
PURCHASER, INCLUDING WITHOUT LIMITATION THE MULTI-PARTY AGREEMENT, AND, SUBJECT
TO RECEIPT BY SELLERS OF THE PURCHASE PRICE, DELIVERED TO PURCHASER ANY PHYSICAL
DOCUMENT REPRESENTING THE SBLC LICENSE.
(E)
AGENT RESERVE ACCOUNT. THE AGENT RESERVE ACCOUNT SHALL HAVE BEEN
FUNDED IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 4.9.
(F)
SBA APPROVAL.