Common use of Conditions to the Obligations of the Purchasers Clause in Contracts

Conditions to the Obligations of the Purchasers. The obligations of the Purchasers to consummate the Acquisition Transactions are subject to the fulfillment, prior to or concurrently with the Closing, of the following conditions: (a) the representations and warranties of the Seller contained in this Agreement shall be true and correct in all material respects as of the Closing Date as if made on such date; (b) the Seller shall have duly performed or complied in all material respects with all of the agreements, covenants and obligations to be performed or complied with by the Seller under the terms of this Agreement on or prior to the Closing Date; (c) the Seller shall have executed and delivered each of the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers shall have received a certificate from the Seller, dated as of the Closing Date, executed by an officer of the Seller, certifying that the conditions set forth in paragraphs (a), (b) and (d) above have been fulfilled; and (f) the Purchasers shall have received an opinion, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel to the Seller, addressed to the Purchasers to the effect set forth in Exhibit J hereto.

Conditions to the Obligations of the Purchasers. The obligations obligation of ----------------------------------------------- the Purchasers to consummate the Acquisition Transactions are purchase and sale of the Shares and the Warrants shall be subject to the fulfillment, satisfaction at or prior to or concurrently with the Closing, Closing of the following conditions: (a) All of the representations and warranties of the Seller contained Company set forth in this Agreement shall be true and correct as if made on and as of the Closing Date. (b) The Company shall have in all material respects as of the Closing Date as if made on such date; (b) the Seller shall have duly fully performed or and complied in all material respects with all of the agreements, covenants agreements and obligations conditions required under this Agreement to be performed or complied with by the Seller under the terms of this Agreement it on or prior to the Closing Date;. (c) the Seller The Company shall have executed and delivered to each of the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers shall have received Purchaser a certificate from the Seller, dated as of the Closing Date, executed by an officer one of the Seller, certifying that the conditions set forth in paragraphs (a), (b) and (d) above have been fulfilled; and (f) the Purchasers shall have received an opinion, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel to the Seller, addressed to the Purchasers its officers to the effect set forth in Sections 3.3(a) and (b). (d) The Certificate of Amendment shall have been filed with the Department of State of the State of New York and the Company shall have delivered to each Purchaser a copy thereof certified by the Department of State of the State of New York or other reasonably satisfactory evidence of such filing. (e) The Company shall have delivered to each Purchaser a stock certificate representing the Shares, and a warrant certificate representing the Warrants, to be issued and sold to such Purchaser at the Closing. (f) The Company shall have executed and delivered to each of the Purchasers the Rights Agreement. (g) The Purchasers shall have received an opinion of Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx in the form set forth in Exhibit J heretoE dated the Closing Date. (h) The Purchasers shall have received copies of resolutions of the Company's Board of Directors, certified by the Secretary of Seller, approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. (i) The Company shall have delivered to each Purchaser a copy of its Restated Certificate of Incorporation, including the Certificate of Amendment, and By-laws certified by its Secretary or an Assistant Secretary as true and correct as of the Closing Date. (j) The Company shall have delivered to each Purchaser a certificate of its Secretary or an Assistant Secretary as to the incumbency and signatures of the officers of the Company executing this Agreement, the Rights Agreement, the Warrants and the certificates representing the Shares, together with evidence of the incumbency of such Secretary or Assistant Secretary. (k) All corporate and other proceedings taken or to be taken in connection with the transactions contemplated by this Agreement at or before such Closing, and all instruments and other documents incident thereto, shall be satisfactory in form and substance to the Purchasers and their counsel.

Conditions to the Obligations of the Purchasers. The obligations obligation of the Purchasers each Purchaser to consummate the Acquisition Transactions are subject contemplated to occur at the Closing shall be further conditioned upon the satisfaction or fulfillment, at or prior to or concurrently with the Closing, of the following conditions, unless waived by each such Purchaser: (a) The terms, conditions and provisions of the Credit Documents shall be satisfactory to such Purchaser in all material respects, including without limitation provisions relating to principal amounts, rates of interest, terms of mandatory and permitted prepayments, prepayment charges (if any), fees and expenses, representations and warranties warranties, affirmative and negative covenants, conditions to disbursements of loan funds, defaults and remedies therefor, and collateral, it being acknowledged that such terms, conditions and provisions shall be deemed to be satisfactory to such Purchaser if they are in the aggregate at least as favorable to the Company as the terms of the Seller contained commitment letter referred to in this Section 5.5(f). The disbursements of loan funds contemplated by the Credit Agreement to occur on the Closing Date shall be made in accordance with the terms thereof concurrently with the Closing and such Purchaser shall have received such evidence thereof as it may request. (b) On the Closing Date, counsel to each Purchaser shall have received the legal fees and expenses required to be paid or reimbursed by the Company as provided in Section 10.4 for statements rendered on or prior to the Closing Date. (c) For each SBIC Holder, the Company shall have prepared the Size Status Declaration on Form 480, the Assurance of Compliance for Nondiscrimination on Form 652 and the Portfolio Financing Report on Form 1031 (Parts A and B) (collectively, the "SBA Compliance Documents"), the Company shall have duly executed and delivered the Forms 480 and 652 to each SBIC Holder, and all of the information set forth in the SBA Compliance Documents shall be true and correct in all material respects as respects. The Company shall have delivered a list, after giving effect to the transactions contemplated by this Agreement, of: (a) the name of each of the Closing Date as if made on such date; Company's directors, (b) the Seller shall have duly performed or complied in all material respects with all name and title of each of the agreements, covenants Company's officers and obligations to be performed or complied with by the Seller under the terms of this Agreement on or prior to the Closing Date; (c) the Seller shall have executed and delivered name of each of the agreements, instruments Company's stockholders and other documents required to be delivered the number and class of shares held by it at the Closing pursuant to Section 3.2(a)(i) through (xii);each stockholder. (d) The closing of the Seller Alabama License Transfer, and the other transactions contemplated in the Central Alabama Agreement, shall have repaid all amounts owing under been consummated in accordance with the Bank Credit Facility terms of the Central Alabama Agreement, and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers Purchaser shall have received a certificate from such evidence thereof as it may request, and Mercury I's rights under the Seller, dated as of the Closing Date, executed by an officer of the Seller, certifying that the conditions set forth in paragraphs (a), (b) and (d) above Central Alabama Agreement shall have been fulfilled; and (f) the Purchasers shall have received an opinion, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel assigned to the Seller, addressed Company pursuant to documentation satisfactory in form and substance to the Purchasers to the effect set forth in Exhibit J heretoPurchasers.

Conditions to the Obligations of the Purchasers. The obligations obligation of the ----------------------------------------------- Purchasers to consummate the Acquisition Transactions are purchase and sale of the Shares and the Warrants shall be subject to the fulfillment, satisfaction at or prior to or concurrently with the Closing, Closing of the following conditions: (a) All of the representations and warranties of the Seller contained Company set forth in this Agreement shall be true and correct as if made on and as of the Closing Date. (b) The Company shall have in all material respects as of the Closing Date as if made on such date; (b) the Seller shall have duly fully performed or and complied in all material respects with all of the agreements, covenants agreements and obligations conditions required under this Agreement to be performed or complied with by the Seller under the terms of this Agreement it on or prior to the Closing Date;. (c) the Seller The Company shall have executed and delivered to each of the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers shall have received Purchaser a certificate from the Seller, dated as of the Closing Date, executed by an officer one of the Seller, certifying that the conditions set forth in paragraphs (a), (b) and (d) above have been fulfilled; and (f) the Purchasers shall have received an opinion, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel to the Seller, addressed to the Purchasers its officers to the effect set forth in Exhibit J heretoSections 3.3(a) and (b). (d) The Certificate of Amendment shall have been filed with the Department of State of the State of New York and the Company shall have delivered to each Purchaser a copy thereof certified by the Department of State of the State of New York or other reasonably satisfactory evidence of such filing. (e) The Company shall have delivered to each Purchaser a stock certificate representing the Shares, and a warrant certificate representing the Warrants, to be issued and sold to such Purchaser at the Closing. (f) The Company shall have executed and delivered to each of the Purchasers the Rights Agreement. (g) The Purchasers shall have received an opinion of Salans Xxxxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxx in form and substance reasonably satisfactory to the Purchasers. (h) The Purchasers shall have received copies of resolutions of the Company's Board of Directors, certified by the Secretary of the Company, approving the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. (i) The Company shall have delivered to each Purchaser a copy of its Restated Certificate of Incorporation, including the Certificate of Amendment, and By-Laws certified by its Secretary or an Assistant Secretary as true and correct as of the Closing Date. (j) The Company shall have delivered to each Purchaser a certificate of its Secretary or an Assistant Secretary as to the incumbency and signatures of the officers of the Company executing this Agreement, the Rights Agreement, the Warrants and the certificates representing the Shares, together with evidence of the incumbency of such Secretary or Assistant Secretary. (k) The Company shall have delivered to each Purchaser a certificate of the Department of State of the State of New York as to the good standing of the Company in such state, dated as of a date not more than seven days prior to the Closing Date. (l) The Company shall have executed and delivered to each Purchaser for which it is applicable a regulatory side letter and such other forms and documents as are necessary for each Purchaser subject to the rules and regulations of the Small Business Administration to comply therewith. (m) The Purchasers shall have received reasonably satisfactory evidence that, under the Nasdaq's rules and policies, the issuance and sale of the Shares and the Warrants may be made without the approval of the Company's shareholders and without the imposition of conditions or limitations on the Company deemed unduly burdensome by the Purchasers. (n) All corporate and other proceedings taken or to be taken in connection with the transactions contemplated by this Agreement at or before such Closing, and all instruments and other documents incident thereto, shall be satisfactory in form and substance to the Purchasers and their counsel.

Conditions to the Obligations of the Purchasers. The respective obligations of each Purchaser hereunder in connection with the Purchasers to consummate the Acquisition Transactions are Closing shall be subject to the fulfillment, prior to satisfaction or concurrently with the Closing, waiver of the following conditions: (i) this Agreement duly executed by the Company shall have been delivered to each Purchaser; (ii) legal opinions of the Company’s U.S. counsel and Canadian counsel, in each case dated the Closing Date and in substantially the form that is customary for a transaction of this nature and reasonably acceptable to each Purchaser, shall have been delivered to each Purchaser; (iii) a copy of the Company’s treasury order, reservation order and instructions to the Transfer Agent, in the form attached hereto as Exhibit B, instructing the Transfer Agent to (a) deliver that number of Common Shares to be issued to each Purchaser: (i) directing delivery via the DWAC system registered in the name of each such Purchaser or its nominee as each such Purchaser shall direct and (b) reserve 130% of the maximum number of Warrant Shares as are issuable upon exercise of the Warrants issued to the Purchasers, shall have been executed by the Company, countersigned by the Transfer Agent and delivered to each Purchaser (iv) a copy of the warrant certificate representing that number of Warrants to be issued to each Purchaser registered in the name of each such Purchaser or as each such Purchaser shall direct shall have been delivered to such Purchaser (with the original warrant certificate representing such Warrants to be delivered to such Purchaser within three Trading Days of the Closing Date); (v) in the case of the U.S. Purchaser, the Prospectus shall have been delivered to the U.S. Purchaser (which Prospectus may be delivered to the U.S. Purchaser in accordance with Rule 172 under the U.S. Securities Act); (vi) in the case of the Offshore Purchaser, the Prospectus shall have been delivered to the Offshore Purchaser, for informational purposes only; (vii) the Canadian Prospectus shall have been delivered to each of the U.S. Purchaser and Offshore Purchaser; (viii) the accuracy in all material respects of the representations and warranties of the Seller Company contained herein, and (i) in the case of the U.S. Purchaser those representations and warranties set forth in Appendix A to this Agreement shall be true Agreement, and correct (ii) in all material respects as the case of the Offshore Purchaser those representations and warranties set forth in Appendix B to this Agreement, in each case on the Closing Date (unless such representations and warranties were delivered as if made on such of a specific date;); and (bix) the Seller shall have duly performed or complied in all material respects with all of the agreementsobligations, covenants and obligations agreements of the Company required to be performed or complied with by the Seller under the terms of this Agreement on at or prior to the Closing Date; (c) the Seller Date shall have executed and delivered each of been performed by the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers shall have received a certificate from the Seller, dated as of the Closing Date, executed by an officer of the Seller, certifying that the conditions set forth in paragraphs (a), (b) and (d) above have been fulfilled; and (f) the Purchasers shall have received an opinion, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel to the Seller, addressed to the Purchasers to the effect set forth in Exhibit J heretoCompany.

Conditions to the Obligations of the Purchasers. The obligations obligation of the Purchasers to consummate the Acquisition Transactions transactions contemplated by this Agreement are subject to the fulfillmentsatisfaction of, prior to or concurrently with waiver by the ClosingPurchasers of, of the following conditionsconditions precedent on or before the Closing Date: (a) the The representations and warranties of the Seller contained Selling Companies in Article V of this Agreement Agreement, if qualified by a reference to materiality or Material Adverse Effect, shall be true and correct and, if not so qualified, shall be true and correct in all material respects respects, in each case at and as of the date of this Agreement and at and as of the Closing Date with the same effect as if made on at and as of Closing (except to the extent a different date is specified therein, in which case at and as of such specified date;). (b) Each of the Seller Selling Companies shall have duly performed or and complied in all material respects with all of the agreements, its covenants and obligations agreements contained in this Agreement and in any Related Agreement to be performed or complied with by the Seller under the terms of this Agreement such Selling Company on or prior to the Closing Date;. (c) the Seller shall have executed and delivered each of the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the The Purchasers shall have received a certificate from the Sellercertificate, dated as of the Closing Date, executed signed by an executive officer of the Sellereach Selling Company, certifying that each of the conditions set forth in paragraphs (aSection 4.1(a) and Section 4.1(b), (b) and as applicable to each such Selling Company, have been satisfied as of Closing. (d) above The Purchasers shall have received written evidence reasonably satisfactory to Purchasers that all Consents and approvals set forth in Schedule 4.1(d) of the Disclosure Memorandum (the “Required Consents”) have been fulfilled; andobtained without material conditions or qualifications. (e) No action or proceeding by any Governmental Authority or other Person shall have been instituted and no Legal Requirement shall have been enacted or come into effect, after the date hereof, (i) that enjoins, restrains, prohibits or results in substantial damages to the Purchasers or any of their Affiliates in respect of any provision of this Agreement or any Related Agreement or the consummation of the transactions contemplated hereby or thereby or (ii) that imposes or confirms any material limitation, or that would reasonably be expected to impose or confirm any material limitation, on the operation of the Business or on the ability of the Purchasers or any of their Affiliates effectively to exercise full rights of ownership of the Transferred Assets. (f) The Selling Companies shall have delivered to the Purchasers, without expense to the Purchaser, any certificates, affidavits or other documents reasonably required by the Purchasers’ title insurer (if any) to permit the Purchasers to obtain or update title insurance insuring fee simple marketable title to the Owned Real Property free and clear of all Liens other than Permitted Liens. (g) The Purchasers shall have received an opinionfrom the Selling Companies ISRA Closing Compliance from the NJDEP for the Owned Real Property and the Selling Companies shall have fully funded the ISRA Remediation Funding Source (and any other financial assurance needed in connection with ISRA Closing Compliance) as set forth in Section 7.6(a). (h) The Real Property Purchaser shall have determined, in good faith, based upon consultation with its environmental consultants and counsel, that the ISRA Remediation Funding Source and the Additional Remediation Funding Source are, in the aggregate, adequate to fully remediate all Liability and Losses under any Environmental Laws at or related to the Owned Real Property or arising from Release of a Hazardous Substance at the Owned Real Property, all in accordance with applicable Legal Requirements. (i) [Reserved] (j) The Selling Companies shall have delivered a complete and accurate aging accounts payable report, reasonably satisfactory to the Business Assets Purchaser, dated as of the date hereof, of Andrxxx & Xurtx X.X.P., counsel and within five (5) days prior to the SellerClosing Date. (k) The Selling Companies shall have delivered a restated Disclosure Memorandum dated, addressed and including disclosures through and including, the Closing Date. (l) The Real Estate Purchaser shall have received a Phase II Environmental Assessment of the Owned Real Property with results that are satisfactory to the Purchasers Real Estate Purchaser, in its sole discretion. (m) Seller shall not have materially breached the terms and conditions of the Inventory Agreement and failed to cure (or be in the process of curing) after receipt of written notice thereof pursuant to the effect set forth in Exhibit J heretoterms of the Inventory Agreement.

Conditions to the Obligations of the Purchasers. The obligations of the several Purchasers to consummate purchase the Acquisition Transactions are Senior Notes shall be subject to the fulfillment, prior to or concurrently with the Closing, accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein at the date hereof and the Closing Date, to the accuracy of the statements of the Company or the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their obligations hereunder and to the following additional conditions: (a) The Guarantor shall have furnished to the representations Purchasers in form and warranties substance satisfactory to the Purchasers, the opinion of Xxxxxxxxx X. Xxxxx, Esq., Senior Counsel, or such other counsel for the Seller contained in this Agreement shall Company and the Guarantor as may be true and correct in all material respects as of acceptable to the Purchasers, dated the Closing Date Date, to the effect set forth hereto as if made on such date;Exhibit A-1, and the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, dated the Closing Date, to the effect set forth hereto as Exhibit A-2. (b) the Seller The Purchasers shall have duly performed received from their counsel such opinion or complied in all material respects opinions, dated the Closing Date, with all respect to the issuance and sale of the agreementsSenior Notes, covenants the issuance of the Guarantees, the Senior Indenture and obligations other related matters as the Purchasers may reasonably require, and the Company shall have furnished to be performed such counsel such documents as it requests for the purpose of enabling it to pass upon such matters. (c) The Guarantor shall have furnished to the Purchasers a certificate of the Controller and the Treasurer or complied with by Assistant Treasurer of the Seller under Guarantor, and of the terms President, the Treasurer or the Assistant Treasurer of this Agreement on the Company, dated the Closing Date, in the forms attached hereto as Exhibit B. (d) At or prior to the Closing Date; (c) the Seller shall have executed and delivered each of the agreements, instruments and other documents required to be delivered by it at the Closing pursuant to Section 3.2(a)(i) through (xii); (d) the Seller shall have repaid all amounts owing under the Bank Credit Facility and shall have provided satisfactory evidence that all such amounts have been repaid and that all liens, claims or encumbrances arising under or in respect thereof will be released and terminated as promptly as practicable after the Closing; (e) the Purchasers shall have received a certificate from the Seller, dated as be in possession of the Closing Date, executed by an officer Junior Notes. If (i) any of the Seller, certifying that the conditions set forth specified in paragraphs (a), (b) and (d) above this Section 5 shall not have been fulfilled; and fulfilled when and as provided in this Senior Notes Purchase Agreement, or (fii) the Purchasers shall have received an opinion, dated as any of the date hereof, of Andrxxx & Xurtx X.X.P., counsel to the Seller, addressed opinions and certificates mentioned above or elsewhere in this Senior Notes Purchase Agreement shall not be reasonably satisfactory in form and substance to the Purchasers and their counsel, this Senior Notes Purchase Agreement and all obligations of the Purchasers hereunder may be cancelled on, or at any time prior to, the Closing Date by the Purchasers. Notice of such cancellation shall be given to the effect set forth Company in Exhibit J heretowriting or by telephone or facsimile confirmed in writing.