Common use of Purchaser Conditions to Closing Clause in Contracts

Purchaser Conditions to Closing. The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being satisfied or waived: (i) each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date, including, without limitation the issuance of Securities as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”); (ii) the Company shall have delivered to Purchaser a certificate, in the form acceptable to Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (A) the resolutions as adopted by the Company’s board of directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, (B) the Certificate of Incorporation of the Company, as amended (reflecting the filed Certificate of Designations), (C) the Bylaws of the Company as in effect at the Closing (the “Secretary’s Certificate”); (iii) the Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the Closing Date; (iv) the Company shall have filed the Certificate of Designations with the Secretary of State of the Company’s jurisdiction of incorporation and such Certificate of Designations shall be in full force and effect; (v) the Company shall have delivered to Purchaser the Company Closing Documents; (vi) there shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall have been approved for, and began trading on, either the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (the “Uplisting”); (viii) from the date hereof to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities; (ix) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (x) the Company shall not be exposed to any regulatory enforcement action; and (xi) any other conditions contained herein or the other Transaction Documents.

Purchaser Conditions to Closing. The obligations of the Purchaser hereunder in connection with the Closing are subject At or prior to the following conditions being satisfied or waivedClosing, unless waived by Purchaser: (i) each and every representation and warranty No material law or Order shall have been enacted, entered, issued, promulgated or enforced by any Governmental Entity that prohibits or restrains any of the Transactions and (ii) no material action shall have been commenced by or before any Governmental Entity that seeks to restrain or materially and adversely alter the Transactions that in the reasonable good faith determination of Purchaser would render it unlawful to consummate the Transactions. (b) The representations and warranties of Seller and Company contained herein shall be true and correct as of the date when made in all material respects, with respect to representations and warranties not qualified by materiality, or in all respects, with respect to representations and warranties qualified by materiality, as of the Closing Date as though originally made at that time (except on and as of the Closing Date and as though the Closing Date were substituted for the date of this Agreement throughout such representations and warranties, unless such representations and warranties that by their terms speak as of a specific an earlier date, in which case they shall be true and correct as of such date. (c) Seller and the Company shall have performed, satisfied performed all obligations and complied with all covenants set forth in all respects with the covenants, agreements and conditions this Agreement that are required to be performed, satisfied performed or complied with by the Company it at or prior to the Closing Date, including, without limitation the issuance of Securities as required by the Transaction Documents Date in all material respects. (d) Seller and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock reserved for issuance as may be required shall deliver to fulfill its obligations pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer all of the following: (i) written resignations of all officers and directors of Company, dated effective as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”); (ii) the Company shall have delivered to Purchaser a certificate, in the form acceptable to Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (A) the resolutions as adopted by the Company’s board of directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, (B) the Certificate of Incorporation of the Company, as amended (reflecting the filed Certificate of Designations), (C) the Bylaws of the Company as in effect at the Closing (the “Secretary’s Certificate”); (iii) the Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the Closing Date; (ivii) the Company shall have filed the Certificate of Designations with the Secretary of State a certificate of the Company’s jurisdiction Seller and Company signed by Seller and an authorized officer of incorporation Company to the effect that the conditions in Section 7.2(b) and Section 7.2(c) have been satisfied; (iii) a certificate of an executive officer of Company certifying to true and correct copies of the organizational documents of Company and certifying to a true and correct copy of the resolutions of the Board of Directors and of the sole stockholder of Company approving the Transactions, and certifying that such Certificate of Designations shall be resolutions are in full force and effect; (iv) a certificate of good standing (or comparable certificates, including certificates of existence) as of a recent date with respect to Company issued by the appropriate Governmental Entity in each state where Company is organized; (v) the Company shall have delivered to Purchaser the Company Closing Documents;Books and Records of Company; and (vi) there all other documents, instruments, certificates or other items required to be delivered at the Closing by Company or Seller pursuant to this Agreement. (e) Purchaser shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, received a fairness opinion from Business Valuation Advisors LLC in connection with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall have been approved for, and began trading on, either the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (the “Uplisting”); (viii) from the date hereof Acquisition that is acceptable to the Closing Date, trading Purchaser in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities; (ix) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (x) the Company shall not be exposed to any regulatory enforcement action; and (xi) any other conditions contained herein or the other Transaction Documentsits reasonable discretion.

Purchaser Conditions to Closing. The obligations obligation of the Purchaser Purchasers to make the loans hereunder in connection with on the Closing are Date is subject to the satisfaction of the following conditions being satisfied or waivedprecedent: (a) The Purchasers shall have received the following, each dated as of the Closing Date (unless otherwise specified) and in such number of copies as the Purchasers shall have reasonably requested: (i) each this Agreement, duly completed and every representation executed by the Borrower; (ii) the Security Agreement, duly completed and warranty executed by the Borrower, together with evidence of the Company proper filing of a Form UCC-1 statement acceptable to the Agent; (iii) the opinion of XxXxxxxxx Will & Xxxxx, LLP, counsel to the Borrower, in form and substance reasonably satisfactory to the Agent; (iv) the Guaranty Agreement, duly completed and executed by the parties thereto; (v) the Intercreditor Agreement, duly completed and executed by the parties thereto; (vi) the Guarantor Subordination Agreement, duly completed and executed by the parties thereto; (vii) the Pledge Agreement, duly completed and executed by the parties thereto; (viii) the Notes, duly completed and executed by the Borrower; and (ix) such other agreements, documents and assurances as the Agent may reasonably request in connection with the transactions described in or contemplated by the Loan Documents. (b) The Agent shall have received a certificate, signed by the president, the chief executive officer, the chief operating officer or the chief financial officer of the Borrower, dated the Closing Date and in form and substance reasonably satisfactory to the Agent, certifying that (i) all representations and warranties of the Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct as of the date when made and in all respects) as of the Closing Date as though originally made at that time Date, both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the application of the proceeds thereof (except for representations and warranties that speak to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects) as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the Company application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2011, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Effect, and (iv) all conditions set forth in this Section 3.1 have been satisfied or waived as required hereunder. (c) The Agent shall have performedreceived a certificate of the secretary or an assistant secretary of the Borrower, satisfied dated the Closing Date and complied in form and substance reasonably satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all respects with amendments thereto of the covenantsBorrower, agreements certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and conditions required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Board of the Borrower, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such other Loan Documents, and attaching all such copies of the documents described above. (d) The Agent shall have received (i) a certificate as of a recent date of the good standing of the Borrower, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (ii) a certificate as of a recent date of the qualification of the Borrower to conduct business as a foreign corporation in such jurisdictions in which it is qualified to do business as a foreign corporation and for which its failure to be performedduly qualified or licensed would result in a Material Adverse Effect, satisfied from the Secretary of State (or complied with comparable Governmental Authority) of such jurisdiction. (e) The Agent shall have received certified reports from an independent search service reasonably satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the Borrower as debtor, and the results thereof shall be reasonably satisfactory to the Agent. (f) The Agent shall have received evidence in form and substance reasonably satisfactory to it that all filings, recordings, registrations and other actions necessary to perfect the Liens created by the Company at Security Documents shall have been completed, or prior arrangements reasonably satisfactory to the Agent for the completion thereof shall have been made. (g) Since December 31, 2011, both immediately before and after giving effect to the consummation of the Transactions, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that would reasonably be expected to have a Material Adverse Effect. (h) The Agent shall have received evidence in form and substance reasonably satisfactory to it that all of the requirements of Section 6.8 have been satisfied, including receipt of certificates of insurance naming the Agent as loss payee or additional insured, as its interests may appear. (i) The Agent shall have received evidence in form and substance reasonably satisfactory to it that all existing term debt owed by the Borrower to Bank of America will be paid in full on the Closing Date. (j) The Agent shall have received an operating financial forecast for the Borrower (including an operating and capital budget) for the twenty four months following the Closing Date, includingincluding projections of (a) consolidated balance sheets of the Borrower at the end of each month of such period, without limitation (b) consolidated statements of income and expense for each month of such period, (c) consolidated statements of cash flow of the Borrower for each month of such period and (d) a budget of capital expenditures to be incurred by the Borrower for such period, all of the foregoing to be in reasonable detail and certified on behalf of Borrower by a responsible officer of Borrower as having been prepared in good faith and to the best knowledge and ability of Borrower. (k) The Borrower shall have delivered to the Agent a balance sheet of the Borrower as of the end of May, 2012, and a statement of income and a statement of cash flows of the Borrower for such month and for the current fiscal year to date certified on behalf of Borrower by a responsible officer of Borrower. (l) The Agent shall have received written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the loan to be made hereunder. (m) The Agent shall have received financial information regarding the Guarantor satisfactory to the Agent in its reasonable discretion. (n) The Agent shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested. (o) The Borrower shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of Securities as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock reserved for issuance as may be required to fulfill its obligations Notes pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer this Agreement in compliance with such laws. (p) Each of the Companyrepresentations and warranties contained in Article IV and in the other Loan Documents shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, dated in which case it shall be true and correct in all respects) on and as of the Closing Date, both immediately before and after giving effect to the foregoing effect and as loan to be made (except to the extent any such other matters as may be reasonably requested by Purchaser in the form acceptable representation or warranty is expressly stated to Purchaser (the “Officer’s Certificate”); (ii) the Company shall have delivered to Purchaser a certificate, in the form acceptable to Purchaser, executed by the Secretary of the Company and dated as of the Closing Date, as to (A) the resolutions as adopted by the Company’s board of directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, (B) the Certificate of Incorporation of the Company, as amended (reflecting the filed Certificate of Designations), (C) the Bylaws of the Company as in effect at the Closing (the “Secretary’s Certificate”); (iii) the Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation been made as of a date within ten specific date, in which case such representation or warranty shall be true and correct in all material respects (10except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects) days as of such date). (q) No Default or Event of Default shall have occurred and be continuing on such date, both immediately before and after giving effect to the loan to be made hereunder. (r) The Borrower shall have reimbursed the Purchasers for any of their fees, costs and expenses incurred in connection with this Agreement and the other Loan Documents, not to exceed $50,000 (excluding any out of pocket costs and expenses). (s) No material litigation by any Person shall be pending or threatened with respect to the Borrower. (t) Agent shall have received a waiver, in form and substance reasonably satisfactory to it, from the landlord of Borrower’s primary facility 00000 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000. (u) All third-party consents or approvals necessary to consummate the loan contemplated hereunder, including the approval from all necessary Governmental Authorities of the Closing Date; (iv) Purchasers’ CAPCO investment application related to the Company shall have filed the Certificate of Designations with the Secretary of State of the Company’s jurisdiction of incorporation and such Certificate of Designations shall be in full force and effect; (v) the Company shall have delivered to Purchaser the Company Closing Documents; (vi) there Transactions shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall have been approved for, and began trading on, either the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (the “Uplisting”); (viii) from the date hereof to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities; (ix) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (x) the Company shall not be exposed to any regulatory enforcement action; and (xi) any other conditions contained herein or the other Transaction Documentsobtained.

Purchaser Conditions to Closing. The obligations of the Purchaser hereunder in connection with each Tranche Closing, and, with the Closing exception of 2.3(ii) and (iii) below, with respect to each Final Tranche Installment Date, are subject to the following conditions being satisfied or waived: (i) each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the applicable Tranche Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable Initial Tranche Closing Date, including, without limitation the issuance of all Securities prior to the date of such Tranche Closing as required by this Section 2.3 and the Transaction Documents and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock Conversion Shares reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Tranche Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”); (ii) the Company shall have delivered to Purchaser a certificate, in the form acceptable previously provided to the Company by the Purchaser, executed by the Secretary of the Company and dated as of the applicable Tranche Closing Date, as to (A) the resolutions as adopted by the Company’s board Board of directors Directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, which resolutions shall have remained in full force and effect, (B) the Certificate of Incorporation of the Company, as amended Company (reflecting the filed Certificate of Designations), Certificate) and (CD) the Bylaws of the Company as in effect at the applicable Closing (the “Secretary’s Certificate”); (iii) the Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the applicable Tranche Closing Date; (ivix) the Company shall have filed the Certificate of Designations with the Secretary of State as of the Company’s jurisdiction of incorporation and such Certificate of Designations shall be applicable Tranche Closing Date or Final Tranche Installment Date, as applicable, trading in full force and effect; (v) the Company shall have delivered to Purchaser the Company Closing Documents; (vi) there shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall be listed on the Principal Market and shall not have been approved for, and began trading on, either suspended by the NASDAQ Capital Market, the NASDAQ Global Market SEC or the NASDAQ Global Select Principal Market (the “Uplisting”); (viii) from the date hereof and, at any time prior to the applicable Tranche Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authoritiesauthorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, and without regard to any factors unique to the Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing; (ixx) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (xxi) current indebtedness of the Company, on a consolidated basis with its Subsidiaries, shall not be in excess of $5,000,000 (excluding any Existing Debt or other indebtedness held by the Purchaser); (xii) the Company shall not be exposed to any additional regulatory enforcement actionaction beyond those disclosed in the SEC Documents; (xiii) the Company shall have terminated its At-the-Market offering; (xiv) the average Closing Price (as defined in the Certificate) of the Common Stock during the prior Three (3) Trading Days preceding each Tranche Closing shall have been equal to or greater than the Floor Price (as defined in the Certificate), provided, that in the event that this Section 2.3(b)(xiv) shall not have been met as of the applicable Tranche Closing Date, the Purchaser shall make the applicable Tranche Purchase Price within Two (2) Trading Days of the condition set forth in this Section 2.3(b)(xiv) having been met; and (xi) any other conditions contained herein or the other Transaction Documents.

Purchaser Conditions to Closing. The obligations Purchaser’s obligation to purchase, acquire and accept all of the Purchaser hereunder Seller’s rights, title and interest in connection with and to the Purchased Assets at the Closing are and to pay the Purchase Price at the Closing is subject to the fulfillment as of the Closing Date of the following conditions being satisfied (unless waived in writing by the Purchaser): a. FDA Approval shall have occurred on or waived:prior to October 31, 2024; (i) each b. all representations and every representation warranties of Seller contained herein and warranty of in the Company other Transaction Documents shall be true and correct as of the date when made and in all material respects as of the Closing Date as though originally made at that time (except for that such materiality qualifier shall not be applicable to any representations and warranties that speak already are qualified or modified by materiality in the text thereof), as though made on and as of a specific such dates (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date) and ); c. the Company Seller shall have performeddelivered to the Purchaser a certificate of an officer of the Seller, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to dated the Closing Date, including, without limitation (i) certifying as to the issuance Seller’s organizational documents and the attached resolutions adopted by the board of Securities as required directors of the Seller authorizing the transactions contemplated by the Transaction Documents and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”); (ii) setting forth the Company incumbency of the officer or officers of the Seller who have executed and delivered the Transaction Documents, including therein a signature specimen of each such officer; d. the Seller shall have delivered to the Purchaser a certificate, in the form acceptable to Purchaser, Bill of Sale executed by the Secretary of the Company and dated as of the Closing Date, as to (A) the resolutions as adopted by the Company’s board of directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, (B) the Certificate of Incorporation of the Company, as amended (reflecting the filed Certificate of Designations), (C) the Bylaws of the Company as in effect at the Closing (the “Secretary’s Certificate”)Seller; (iii) e. the Company Seller shall have delivered to the Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued Counterparty Instruction executed by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of Seller and shall have completed the Closing DateSeller information in Schedule 1.2; (iv) f. the Company Seller shall have filed delivered or caused to be delivered to the Certificate Purchaser an opinion of Designations with WilmerHale, special counsel to the Secretary of State of Seller, dated the Company’s jurisdiction of incorporation Effective Date and such Certificate of Designations shall be in full force form and effectsubstance satisfactory to the Purchaser and its counsel; (v) g. the Company Seller shall have delivered to the Purchaser a valid, properly executed IRS Form W-9 certifying that the Company Closing Documents; (vi) there shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall have been approved for, and began trading on, either the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (the Seller is exempt from U.S. federal “Uplisting”); (viii) from the date hereof to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities; (ix) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (x) the Company shall not be exposed to any regulatory enforcement actionbackup” withholding tax; and (xih. the Seller shall have delivered to the Purchaser financing statements naming the Purchaser as the “Buyer” of the Purchased Assets and the Secured Party, to create, evidence and perfect the sale, contribution, assignment, transfer, conveyance and grant of the Purchased Assets pursuant to Section 2.1(b) any other conditions contained herein or and the other Transaction Documentsback-up security interest granted pursuant to Section 2.1(f).

Purchaser Conditions to Closing. The obligations obligation of the Purchaser Purchasers to make the loans hereunder in connection with on the Closing are Date is subject to the satisfaction of the following conditions being satisfied or waivedprecedent: (a) The Purchasers shall have received the following, each dated as of the Closing Date (unless otherwise specified) and in such number of copies as the Purchasers shall have reasonably requested: (i) each this Agreement, duly completed and every representation executed by the Borrower; (ii) the Security Agreement, duly completed and warranty executed by the Borrower, together with evidence of the Company proper filing of a Form UCC-1 statement acceptable to the Agent; (iii) the opinion of McGuireWoods, LLP, counsel to the Borrower, in form and substance reasonably satisfactory to the Agent; (iv) the opinion of Xxxxxxxx X. Xxxxx, counsel to the Corporate Guarantors and the Personal Guarantor, in form and substance reasonably satisfactory to the Agent; (v) the Personal Guaranty Agreement, duly completed and executed by the parties thereto; (vi) the Corporate Guaranty Agreement, duly completed and executed by the parties thereto; (vii) the Intercreditor Agreement, duly completed and executed by the parties thereto; (viii) the Mortgage, duly completed with the exception of the legal description and executed by the parties thereto; (ix) the Mortgage Escrow Agreement, duly completed and executed by the parties thereto; (x) the Personal Guarantor Subordination Agreement, duly completed and executed by the parties thereto; (xi) the Pledge Agreement, duly completed and executed by the parties thereto; (xii) the Notes, duly completed and executed by the Borrower; and (xiii) such other agreements, documents and assurances as the Agent may reasonably request in connection with the transactions described in or contemplated by the Loan Documents. (b) The Agent shall have received a certificate, signed by the president, the chief executive officer, the chief operating officer or the chief financial officer of the Borrower, dated the Closing Date and in form and substance reasonably satisfactory to the Agent, certifying that (i) all representations and warranties of the Borrower contained in this Agreement and the other Loan Documents are true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct as of the date when made and in all respects) as of the Closing Date as though originally made at that time Date, both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the application of the proceeds thereof (except for representations and warranties that speak to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects) as of such date), (ii) no Default or Event of Default has occurred and is continuing, both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the Company application of the proceeds thereof, (iii) both immediately before and after giving effect to the consummation of the Transactions, the making of the loan hereunder and the application of the proceeds thereof, no Material Adverse Effect has occurred since December 31, 2012, and there exists no event, condition or state of facts that could reasonably be expected to result in a Material Adverse Effect, and (iv) all conditions set forth in this Section 3.1 have been satisfied or waived as required hereunder. (c) The Agent shall have performedreceived a certificate of the secretary or an assistant secretary of the Borrower, satisfied dated the Closing Date and complied in form and substance reasonably satisfactory to the Agent, certifying (i) that attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other organizational document and all respects with amendments thereto of the covenantsBorrower, agreements certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and conditions required that the same has not been amended since the date of such certification, (ii) that attached thereto is a true and complete copy of the bylaws of the Borrower, as then in effect and as in effect at all times from the date on which the resolutions referred to in clause (iii) below were adopted to and including the date of such certificate and (iii) that attached thereto is a true and complete copy of resolutions adopted by the Board of the Borrower, authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, and as to the incumbency and genuineness of the signature of each officer of the Borrower executing this Agreement or any of such other Loan Documents, and attaching all such copies of the documents described above. (d) The Agent shall have received (i) a certificate as of a recent date of the good standing of the Borrower, under the laws of its jurisdiction of organization, from the Secretary of State (or comparable Governmental Authority) of such jurisdiction, and (ii) a certificate as of a recent date of the qualification of the Borrower to conduct business as a foreign corporation in such jurisdictions in which it is qualified to do business as a foreign corporation and for which its failure to be performedduly qualified or licensed would result in a Material Adverse Effect, satisfied from the Secretary of State (or complied with comparable Governmental Authority) of such jurisdiction. (e) The Agent shall have received certified reports from an independent search service reasonably satisfactory to it listing any judgment or tax lien filing or Uniform Commercial Code financing statement that names the Borrower as debtor, and the results thereof shall be reasonably satisfactory to the Agent. (f) The Agent shall have received evidence in form and substance reasonably satisfactory to it that all filings, recordings, registrations and other actions necessary to perfect the Liens created by the Company at Security Documents shall have been completed, or prior arrangements reasonably satisfactory to the Agent for the completion thereof shall have been made. (g) Since December 31, 2012, both immediately before and after giving effect to the consummation of the Transactions, there shall not have occurred (i) a Material Adverse Effect or (ii) any event, condition or state of facts that would reasonably be expected to have a Material Adverse Effect. (h) The Agent shall have received evidence in form and substance reasonably satisfactory to it that all of the requirements of Section 6.8 have been satisfied, including receipt of certificates of insurance naming the Agent as loss payee or additional insured, as its interests may appear. (i) The Agent shall have received an operating financial forecast for the Borrower (including an operating and capital budget) for the twenty four months following the Closing Date, includingincluding projections of (a) consolidated balance sheets of the Borrower at the end of each month of such period, without limitation (b) consolidated statements of income and expense for each month of such period, (c) consolidated statements of cash flow of the Borrower for each month of such period and (d) a budget of capital expenditures to be incurred by the Borrower for such period, all of the foregoing to be in reasonable detail and certified on behalf of Borrower by a responsible officer of Borrower as having been prepared in good faith and to the best knowledge and ability of Borrower. (j) The Borrower shall have delivered to the Agent a balance sheet of the Borrower as of the end of September, 2013, and a statement of income and a statement of cash flows of the Borrower for such month and for the current fiscal year to date certified on behalf of Borrower by a responsible officer of Borrower. (k) The Agent shall have received written instructions from an Authorized Officer of the Borrower, including wire transfer information, directing the payment of the proceeds of the loan to be made hereunder. (l) The Agent shall have received financial information regarding the Personal Guarantor satisfactory to the Agent in its reasonable discretion, together with a certification of such information by the Personal Guarantor’s tax accountant in a form satisfactory to the Agent. (m) The Agent shall have received such other documents, certificates, opinions and instruments in connection with the transactions contemplated hereby as it shall have reasonably requested. (n) The Borrower shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of Securities as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares of Series A Preferred Stock and Common Stock reserved for issuance as may be required to fulfill its obligations Notes pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer this Agreement in compliance with such laws. (o) Each of the Companyrepresentations and warranties contained in Article IV and in the other Loan Documents shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, dated in which case it shall be true and correct in all respects) on and as of the Closing Date, both immediately before and after giving effect to the foregoing effect loan to be made (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct in all material respects (except to the extent such representation or warranty is already qualified by materiality, in which case it shall be true and correct in all respects) as to of such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”date);. (iip) the Company No Default or Event of Default shall have delivered occurred and be continuing on such date, both immediately before and after giving effect to Purchaser the loan to be made hereunder. (q) The Borrower shall have reimbursed the Purchasers for any of their fees, costs and expenses incurred in connection with this Agreement and the other Loan Documents. (r) No material litigation by any Person shall be pending or threatened with respect to the Borrower. (s) Agent shall have received a certificatewaiver, in form and substance reasonably satisfactory to it, from the landlord of Borrower’s primary facility 00000 Xxxxxxx Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000. (t) The Agent shall have received evidence in form acceptable and substance reasonably satisfactory to Purchaser, executed it that all existing Indebtedness owed by the Secretary of Borrower pursuant to the Company and dated as of Enhanced Note Purchase Agreement will be paid in full on the Closing Date, as to (A) the resolutions as adopted by the Company’s board of directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, (B) the Certificate of Incorporation of the Company, as amended (reflecting the filed Certificate of Designations), (C) the Bylaws of the Company as in effect at the Closing (the “Secretary’s Certificate”);. (iiiu) the Company The Agent shall have delivered received a payoff letter in form and substance reasonably satisfactory to Purchaser a certificate evidencing it with respect to the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the Closing Date; (iv) the Company shall have filed the Certificate of Designations with the Secretary of State of the Company’s jurisdiction of incorporation and such Certificate of Designations shall be in full force and effect;Enhanced Note Purchase Agreement. (v) All third-party consents or approvals necessary to consummate the Company shall have delivered loan contemplated hereunder, including the approval from all necessary Governmental Authorities of the Purchasers’ Jobs for Texas investment application related to Purchaser the Company Closing Documents; (vi) there Transactions shall have been no breach of an obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; (vii) the Company’s Common Stock shall have been approved for, and began trading on, either the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global Select Market (the “Uplisting”); (viii) from the date hereof to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities; (ix) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect; (x) the Company shall not be exposed to any regulatory enforcement action; and (xi) any other conditions contained herein or the other Transaction Documentsobtained.