Common use of Conditions on the Closing Date Clause in Contracts

Conditions on the Closing Date. The obligation of the Purchaser to purchase the Note pursuant to Section 2.1 shall be subject to the condition that: (i) the Company shall have duly executed and delivered to the Purchaser the Note and Warrants; (ii) the representations and warranties made by the Company in Section 4 hereof shall be true and correct at the Closing Date, with the same force and effect as if they had been made on and as of such date, the business and assets of the Company shall not have been adversely affected in any material way prior to the Closing Date, and the Company shall have performed and complied with all obligations and conditions herein required to be performed or complied with by it on or prior to the Closing Date; (iii) all corporate and other proceedings in connection with the transactions contemplated at the Closing Date, and all documents and instruments incident to such transactions, shall be reasonably satisfactory in substance and form to the Purchaser, which shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request; (iv) the Company shall have reserved for issuance shares of Common Stock issuable upon conversion of the Note or exercise of the Warrants; (v) all authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state or foreign government that are required in connection with and prior to the lawful sale and issuance of the Note and Warrants pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the Closing Date; and (vi) no order enjoining the sale of the Note and Warrants shall have been issued and no proceedings for such purpose shall be pending or, to the Company’s knowledge, threatened by any governmental authority having jurisdiction over this transaction and at the Closing Date the sale and issuance of the Note and Warrants shall be legally permitted by all laws and regulations to which the Purchaser and the Company are subject.

Conditions on the Closing Date. The obligation of the Purchaser each of Lessee and Lessor to purchase the Note pursuant to Section 2.1 perform its obligations hereunder shall be subject to the condition that: satisfaction or waiver of the following conditions precedent on or prior to the Closing Date (except that the obligation of any party hereto shall not be subject to such party’s own performance or compliance): (i) This Agreement and the Company Guaranty dated as of February 18, 2005 by the Guarantor (the “Guaranty”) shall have been duly executed and delivered to by the Purchaser the Note and Warrants; parties thereto; (ii) All proceedings taken in connection with the representations Closing Date and warranties made all documents and instruments to be delivered thereon or relating thereto shall be reasonably satisfactory to each party, and each party shall have received copies of such documents as such party may reasonably request in connection therewith, all in form and substance reasonably satisfactory to such party and its counsel; (iii) (A) Lessor shall have received the opinions, each dated the Closing Date and in form and substance satisfactory to the Lessor, of (1) Txxxxxx X’Xxxxx, Esq., General Counsel to Lessee and Guarantor; and (2) Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, special counsel to Lessee and Guarantor; and (B) Lessee shall have received the opinions, each dated the Closing Date and in form and substance satisfactory to the Lessee, of (1) Oxxxxx X. X. Champagne, Esq., General Counsel to Lessor; and (2) Winston & Sxxxxx LLP, special counsel to Lessor; (iv) Lessor shall have received (A) copies of Lessee’s Certificate of Incorporation, certified by the Company in Section 4 hereof shall be true and correct at the Closing Date, with the same force and effect as if they had been made on and as Secretary of such date, the business and assets State of the Company shall not have been adversely affected in any material way State of Delaware no earlier than the fifteenth day prior to the Closing Date, and Bylaws, accompanied by an Officer’s Certificate, dated the Company shall Closing Date, of such corporation, stating that such documents are in full force and effect and have performed and complied with all obligations and conditions herein required to be performed or complied with by it on or not been amended since the respective dates thereof, (B) certificate of existence from the Secretary of State of the State of Delaware dated no earlier than the fifteenth day prior to the Closing Date; , with respect to Lessee, (iiiC) all corporate a Certificate of the Secretary of Lessee, dated the Closing Date, certifying that Lessee’s Board of Directors has duly adopted resolutions authorizing the execution, delivery and other proceedings performance by such corporation of the Operative Agreements to which it is a party and that such resolutions are in connection with full force and effect and have not been amended since the transactions contemplated at date of their adoption, and certifying as to the incumbency of the officers of Lessee executing each of the Operative Agreements; (v) Lessor shall have received (A) copies of Guarantor’s Certificate of Incorporation, certified by the Secretary of State of the State of Delaware no earlier than the fifteenth day prior to the Closing Date, and all Bylaws, accompanied by an Officer’s Certificate, dated the Closing Date, of such corporation, stating that such documents are in full force and instruments incident to such transactionseffect and have not been amended since the respective dates thereof, shall be reasonably satisfactory in substance and form (B) certificate of existence from the Secretary of State of the State of Delaware dated no earlier than the fifteenth day prior to the PurchaserClosing Date, with respect to Guarantor, (C) a Certificate of the Secretary of Guarantor, dated the Closing Date, certifying that the Guarantor’s Board of Directors has duly adopted resolutions authorizing the execution, delivery and performance by such corporation of the Operative Agreements to which it is a party and that such resolutions are in full force and effect and have not been amended since the date of their adoption, and certifying as to the incumbency of the officers of Guarantor executing each of the Operative Agreements; and (vi) Lessee shall have received all such counterpart originals or certified or other (A) copies of such documents as they may reasonably request; (iv) Lessor’s Certificate of Incorporation, certified by the Company shall have reserved for issuance shares Secretary of Common Stock issuable upon conversion State of the Note or exercise State of Delaware no earlier than the Warrants; (v) all authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state or foreign government that are required in connection with and fifteenth day prior to the lawful sale Closing Date, and issuance of the Note and Warrants pursuant to this Agreement shall have been duly obtained and shall be effective on and as of Bylaws, accompanied by an Officer’s Certificate, dated the Closing Date; , of such corporation, stating that such documents are in full force and effect and have not been amended since the respective dates thereof, (viB) no order enjoining certificate of existence from the sale Secretary of State of the Note and Warrants shall have been issued and State of Delaware dated no proceedings for such purpose shall be pending or, earlier than the fifteenth day prior to the Company’s knowledgeClosing Date, threatened by any governmental authority having jurisdiction over this transaction and at with respect to Lessor, (C) a Certificate of the Secretary of Lessor, dated the Closing Date Date, certifying that the sale Lessor’s Board of Directors has duly adopted resolutions authorizing the execution, delivery and issuance performance by such corporation of the Note and Warrants shall be legally permitted by all laws and regulations Operative Agreements to which it is a party and stating that such resolutions are in full force and effect and have not been amended since the Purchaser date of their adoption, and certifying as to the Company are subjectincumbency of the officers of Lessor executing each of the Operative Agreements.

Conditions on the Closing Date. The obligation of the Purchaser Purchasers to purchase the Note Notes pursuant to Section 2.1 shall be subject to the condition that: (i) the Company shall have duly executed and delivered to the Purchaser Purchasers the Note Notes and Warrants; (ii) the representations and warranties made by the Company in Section 4 hereof shall be true and correct at the Closing Date, with the same force and effect as if they had been made on and as of such date, the business and assets of the Company shall not have been adversely affected in any material way prior to the Closing Date, and the Company shall have performed and complied with all obligations and conditions herein required to be performed or complied with by it on or prior to the Closing Date; (iii) all corporate and other proceedings in connection with the transactions contemplated at the Closing Date, and all documents and instruments incident to such transactions, shall be reasonably satisfactory in substance and form to the PurchaserPurchasers, which shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request; (iv) the Company shall have reserved for issuance shares of Common Stock issuable upon conversion of the Note or exercise of the Warrants; (v) all authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state or foreign government that are required in connection with and prior to the lawful sale and issuance of the Note Notes and Warrants pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the Closing Date; and (vi) no order enjoining the sale of the Note Notes and Warrants shall have been issued and no proceedings for such purpose shall be pending or, to the Company’s knowledge, threatened by any governmental authority having jurisdiction over this transaction and at the Closing Date the sale and issuance of the Note Notes and Warrants shall be legally permitted by all laws and regulations to which the Purchaser and the Company are subject.

Conditions on the Closing Date. The obligation of the Purchaser Purchasers to purchase the Note Notes pursuant to Section 2.1 shall be subject to the condition that: (i) the Company shall have duly executed and delivered to the Purchaser Purchasers the Note Notes and Warrants; (ii) the representations and warranties made by the Company in Section 4 Article 5 hereof shall be true and correct at the Closing Date, with the same force and effect as if they had been made on and as of such date, the business and assets of the Company shall not have been adversely affected in any material way prior to the Closing Date, and the Company shall have performed and complied with all obligations and conditions herein required to be performed or complied with by it on or prior to the Closing Date; (iii) all corporate and other proceedings in connection with the transactions contemplated at the Closing Date, and all documents and instruments incident to such transactions, shall be reasonably satisfactory in substance and form to the PurchaserPurchasers, which shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request; (iv) the Company shall have reserved for issuance shares of Common Stock issuable upon conversion of the Note or exercise of the Warrants; (v) all authorizations, approvals, or permits, if any, of any governmental authority or regulatory body of the United States or of any state or foreign government that are required in connection with and prior to the lawful sale and issuance of the Note Notes and Warrants pursuant to this Agreement shall have been duly obtained and shall be effective on and as of the Closing Date; and (vi) no order enjoining the sale of the Note Notes and Warrants shall have been issued and no proceedings for such purpose shall be pending or, to the Company’s knowledge, threatened by any governmental authority having jurisdiction over this transaction and at the Closing Date the sale and issuance of the Note Notes and Warrants shall be legally permitted by all laws and regulations to which the Purchaser and the Company are subject; and (vii) immediately following the execution of the Notes, the Company would not be in default thereunder and no event of condition shall then exist which shall but for the passage of time result in an event of default.