Common use of Conditions to Purchasers Clause in Contracts

Conditions to Purchasers. OBLIGATIONS The respective obligations of the Purchasers hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; since the latest date as of which information is given in the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations of the Company; and the Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (D) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto.

Conditions to Purchasers. OBLIGATIONS The respective obligations of the Purchasers hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; since the latest date as of which information is given in the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations of the Company; and the Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Illinois Commerce Commission, Indiana Utility Regulatory Commission, Michigan Public Service Commission, Public Utilities Commission of Ohio, Pennsylvania Public Utility Commission, and Public Service Commission of Wisconsin and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (D) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto.

Conditions to Purchasers. OBLIGATIONS Obligations at the Initial Closing. The respective obligations obligation of each Purchaser to purchase and pay for the Purchasers hereunder are Initial Shares to be purchased by it at the Initial Closing is subject to the satisfaction, on the date hereof, of each of the following conditionsconditions set forth in this Section 2.01, except that the cross-receipt required under Section 2.01 (I) below will be satisfied only on the date of the Initial Closing. These conditions are for each Purchaser's sole benefit and may be waived (in whole or in part) by each Purchaser provided that the waiver of any of the following conditions by such individual Purchaser shall not constitute a waiver of such conditions by any other Purchaser. A. The representations and warranties of the Company set forth in Article III hereof shall be true and correct in all material respects as of the date hereof. B. All covenants, agreements and conditions contained in this Agreement to be performed by the Company on or prior to the date hereof shall have been performed or complied with, except for the filing of the Certificate of Designation, in all material respects. C. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment and restatement of the existing Stockholders' Agreement, dated as of August 7, 2000, by and among the Company, AOL and Riverview Media Corp. ("Riverview"), as amended, in substantially the form attached hereto as Exhibit C (the "Restated AOL/ODC Stockholders' Agreement"). D. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment and restatement of the existing Registration Rights Agreement, dated as of August 7, 2000, by and between the Company, AOL and Riverview, in substantially the form attached hereto as Exhibit D (the "Restated AOL/ODC Registration Rights Agreement"). E. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser an amendment to the existing Registration Rights and Stockholders' Agreement, dated as of August 11, 2000, by and among the Company, AOL, Riverview, Banco Itau, Banco Itau, S.A., a Brazilian Sociedade Anonima ("BISA"), Banco Xxxxxx, X.X., a Brazilian Sociedade Anonima ("BBSA") and Itau Bank Limited, a Cayman limited liability company ("Itau Bank"), in substantially the form attached hereto as Exhibit E (the "Restated Itau Agreement"). F. The Company and the other Purchasers who are parties thereto shall have duly executed and delivered to each such Purchaser a Voting Agreement, to be dated the date hereof, by and among the Company, ODC and AOL (the "Voting Agreement"), in substantially the form attached hereto as Exhibit F and which shall include as an exhibit thereto the Amendment to the Restated Certificate, in the form attached hereto as Exhibit G (the "Amended Certificate," and together with the Restated AOL/ODC Stockholders' Agreement, the Restated AOL/ODC Registration Rights Agreement, the Restated Itau Agreement , the Certificate of Designation and the Voting Agreement, the "Related Agreements"). G. Each Purchaser shall have received all of the following materials or each of the following documents shall have been delivered, prior to or on the date hereof: (Ai) The Registration Statement shall have become effective and no stop order suspending the effectiveness A certified copy of the Registration Statement shall be in effectRestated Certificate, and no proceedings for such purpose shall be pending before as amended or threatened restated to the date hereof. (ii) A copy of the Restated By-laws of the Company which has been certified by the Commission; since Secretary or an Assistant Secretary of the latest date Company to be true, complete and correct; (iii) A certificate of the Secretary or an Assistant Secretary of the Company which shall certify the Company's resolutions of the Board (and its committees and members) providing for the approval of this Agreement and the Related Agreements, the names of the officers of the Company authorized to sign this Agreement, the Related Agreements, the certificates for the Shares and the other documents, instruments or certificates to be delivered pursuant to this Agreement or the Related Agreements by the Company or any of its officers, together with the true signatures of such officers; (iv) A Certificate of the Secretary of State of the State of Delaware as of which information is given in to the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations due incorporation and good standing of the Company; and and (v) A legal opinion from counsel to the Purchasers or Company, in the Representative form attached hereto as Exhibit H. H. Each Purchaser shall have received on a copy of the Closing Date fairness opinion delivered to the customary form Financing Committee of compliance certificatethe Board by Xxxxxxx Lynch, dated the Closing Date and signed Pierce, Xxxxxx & Xxxxx Incorporated, or another investment banking firm selected by the President or a Vice President Financing Committee of the Company, including Board in its sole discretion (the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened"Investment Bank"). (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice PresidentI. A cross-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially receipt in the form set forth in attached hereto as Exhibit A hereto. (D) The Purchasers or I, pursuant to which the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as Company acknowledges receipt of the Closing Date, to purchase price received from each Purchaser in connection with the effect set forth in Exhibit C heretoInitial Closing.

Conditions to Purchasers. OBLIGATIONS Obligations to Effect the Transactions Contemplated Hereby. The respective obligations of the Purchasers hereunder are to effect the transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the applicable Closing Date of the following additional conditions: (Aa) The Registration Statement Company shall have become effective performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the applicable Closing Date, and no stop order suspending the effectiveness representations and warranties of the Registration Statement Company contained in this Agreement shall be true and correct in effectall material respects (if not qualified by materiality) and true and correct (if so qualified) on and as of the date of this Agreement and at and as of the applicable Closing Date as if made at and as of the applicable Closing Date, and no proceedings for except to the extent that any such purpose representation or warranty expressly relates to another date (in which case, as of such date). (b) The consent or approval of each third party whose consent or approval shall be pending before or threatened by required in connection with the Commission; since the latest date as of which information is given in the Registration Statement, there transactions contemplated hereby shall have been no material adverse change obtained. (c) The Company and the stockholders listed on the signature pages thereto shall have executed and delivered the Stockholders Agreement substantially in the business, business prospects, properties, financial condition or results of operations of the Company; and the form attached hereto as Exhibit A. (d) Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. XxxxxxXxxxxxxx & Xxxxxxxx LLP, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing DateCompany, substantially in the form set forth in attached hereto as Exhibit A hereto.B. (De) The Purchasers or Company and the Representative stockholders listed on the signature pages thereto shall have received on executed and delivered the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, Registration Rights Agreement substantially in the form set forth attached hereto as Exhibit C. (f) Since the date of this Agreement, there shall not have been any change or events which have resulted or would in Exhibit B heretoreasonable probability result in a Material Adverse Effect. (Eg) The Purchasers or the Representative Company, GECC and JOL shall have received on executed and delivered the Closing Date a letter from Xxxxxx Xxxxxxxx LLPIndebtedness Amendment substantially in the form attached hereto as Exhibit D. (h) The Company shall have filed the Certificate of Designation substantially in the form attached hereto as Exhibit E with the Delaware Secretary of State. (i) Purchasers shall have completed their business, independent public accountants -3- for legal and financial due diligence review and the Company, dated as results of the Closing Date, such review shall be satisfactory to the effect set forth Purchasers in Exhibit C heretotheir sole judgment.

Conditions to Purchasers. OBLIGATIONS The respective obligations of the Purchasers hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; since the latest date as of which information is given in the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations of the Company; and the Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (D) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto.

Conditions to Purchasers. OBLIGATIONS The respective obligations of the Purchasers hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; since the latest date as of which information is given in the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations of the Company; and the Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Virginia State Corporation Commission, the Illinois Commerce Commission and the Public Utility Service Commission of Kentucky and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (D) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto.

Conditions to Purchasers. OBLIGATIONS The respective obligations of the Purchasers hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission; since the latest date as of which information is given in the Registration Statement, there shall have been no material adverse change in the business, business prospects, properties, financial condition or results of operations of the Company; and the Purchasers or the Representative shall have received on the Closing Date the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (DC) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (ED) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto. -3- V. CONDITIONS TO COMPANY'S OBLIGATIONS The obligations of the Company hereunder are subject to the following conditions: (A) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. (B) The Company shall have received on the Closing Date the full purchase price of the New Debentures purchased hereunder.

Conditions to Purchasers. OBLIGATIONS The respective Obligations at the Tranche B Closing. Each Purchaser's obligations at the Tranche B Closing, including without limitation its obligation to purchase Preferred Shares and Warrants at such Closing, are conditioned upon the fulfillment (or waiver by the Purchaser) of each of the Purchasers hereunder following events as of the date of such Closing: 5.2.1 the representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects as of such date as if made on such date; 5.2.2 the Company shall have complied with or performed in all material respects all of the agreements, obligations and conditions set forth in this Agreement, the Registration Rights Agreement and the Certificate of Designation that are subject required to be complied with or performed by the Company at any time prior to such Closing; 5.2.3 the Company shall have delivered to the following conditions:Purchaser a certificate, signed -17- by an officer of the Company, certifying that the conditions specified in paragraphs 5.2.1, 5.2.2 and 5.2.9 hereof have been fulfilled as of such Closing; (A) The Registration Statement 5.2.4 the Company shall have become effective delivered to the Purchaser an opinion of counsel for the Company, dated as of such date, in substantially the form set forth on Exhibit 5.2.4 hereto, and no stop order suspending covering such additional matters as may reasonably be requested by the effectiveness of Purchaser; 5.2.5 the Registration Statement Company shall have delivered duly executed certificates representing the Preferred Shares and Warrants being so purchased; 5.2.6 the Common Stock shall be in effect, designated for quotation and no proceedings for such purpose shall be pending before or threatened by actively traded on the Commission; since the latest date as of which information is given in the Registration Statement, Nasdaq National Market; 5.2.7 there shall have been no material adverse change in the business, Company's consolidated business prospects, properties, or financial condition or results of operations since the date of the Company; 's most recent audited financial statements contained in the Disclosure Documents; 5.2.8 the Company shall have authorized and reserved for issuance not less than one hundred and seventy five percent (175%) of the Purchasers aggregate number of shares of Common Stock issuable upon conversion or exercise of (i) all of the Preferred Shares and Warrants then outstanding and (ii) all of the Preferred Shares and Warrants to be issued at such Closing (such number to be determined using the Conversion Price or exercise price in effect on the date of such Closing and without regard to any restriction on the ability of a Purchaser to convert Preferred Shares or exercise the Warrants as of such date); 5.2.10 a Mandatory Redemption Event (as defined in the Certificate of Designation) or any other event entitling a Purchaser to exercise a right of redemption under this Agreement, the other Transaction Documents or the Representative Certificate of Designation shall not have occurred and be continuing; and 5.2.11 in the event that the Tranche B Closing is to occur (A) prior to the end of the Initial Tranche B Period, the Closing Bid Price (as defined in the Certificate of Designation) for the Common Stock must be at or above eight dollars ($8.00) on the day immediately prior to the Tranche B Closing Date, or (B) after the end of the Initial Tranche B Period, the Company shall have received the approval of its stockholders for the matters described in paragraph 4.15 above and the Closing Bid Price (as defined in the Certificate of Designation) for the Common Stock must be at or above eight dollars ($8.00) on the Closing Date day immediately prior to the customary form of compliance certificate, dated the Closing Date and signed by the President or a Vice President of the Company, including the foregoing. The officer executing such certificate may rely upon the best of his or her knowledge as to proceedings pending or threatened. (B) At the Tranche B Closing Date, there shall be in full force and effect an order or orders, satisfactory to counsel for the Purchasers, of the California Public Utility Commission and of such other regulatory authorities, if any, as may have jurisdiction over the issue and sale of the New Debentures by the Company to the Purchasers, authorizing such issue and sale as herein and in the Registration Statement provided, and none of such orders shall contain any conditions inconsistent with the provisions of this Agreement or of the Registration Statement. (C) The Purchasers or the Representative shall have received on the Closing Date an opinion of Xxxxxxx X. Xxxxxx, Esq., Vice President-General Counsel of the Company, or other counsel to the Company satisfactory to the Purchasers and counsel to the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit A hereto. (D) The Purchasers or the Representative shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Purchasers, dated the Closing Date, substantially in the form set forth in Exhibit B hereto. (E) The Purchasers or the Representative shall have received on the Closing Date a letter from Xxxxxx Xxxxxxxx LLP, independent public accountants -3- for the Company, dated as of the Closing Date, to the effect set forth in Exhibit C hereto.