OF THE CLOSING DATE AS THOUGH 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
AND ITS SUBSIDIARIES SHALL HAVE PERFORMED, SATISFIED AND COMPLIED WITH THE
COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION DOCUMENTS TO BE
PERFORMED, SATISFIED OR COMPLIED WITH BY THE COMPANY OR ANY OF ITS SUBSIDIARIES
AT OR PRIOR TO THE CLOSING DATE.
SUCH 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 SUCH PURCHASER, INCLUDING AN UPDATE AS OF THE CLOSING
DATE OF THE REPRESENTATIONS CONTAINED IN SECTION 3(C) ABOVE.
(III)
SUCH PURCHASER SHALL HAVE RECEIVED (A) THE OPINIONS OF CLIFFORD
CHANCE US LLP, SKLAR WARREN CONWAY & WILLIAMS LLP AND THEODORE R.
30
Maloney, dated as of the Closing Date, which opinions will address, among other
things, laws of the States of Nevada, New York and Delaware applicable to the
transactions contemplated hereby and the security interests provided pursuant to
the Collateral Agreement, in form, scope and substance reasonably satisfactory
to such Purchaser and in substantially the form of Exhibits K-1, K-2 and K-3,
respectively attached hereto.
(IV)
THE COMPANY SHALL HAVE EXECUTED AND DELIVERED TO SUCH PURCHASER
THE NOTE CERTIFICATES AND THE WARRANTS (IN SUCH DENOMINATIONS AS SUCH PURCHASER
SHALL REQUEST) FOR THE NOTES AND THE WARRANTS BEING PURCHASED BY SUCH PURCHASER
AT THE CLOSING.
(V)
THE BOARD OF DIRECTORS SHALL HAVE ADOPTED RESOLUTIONS CONSISTENT
WITH SECTION 3(B) ABOVE AND IN A FORM REASONABLY ACCEPTABLE TO SUCH PURCHASER
(THE "RESOLUTIONS").
(VI)
AS OF THE CLOSING DATE, THE COMPANY SHALL HAVE RESERVED OUT OF ITS
AUTHORIZED AND UNISSUED COMMON STOCK, SOLELY FOR THE PURPOSE OF EFFECTING THE
CONVERSION OF THE NOTES AND THE EXERCISE OF THE WARRANTS, AT LEAST 29,166,667
SHARES OF COMMON STOCK (SUCH NUMBER TO BE ADJUSTED FOR ANY STOCK SPLITS, STOCK
DIVIDENDS, STOCK COMBINATIONS OR OTHER SIMILAR TRANSACTIONS INVOLVING THE COMMON
STOCK THAT ARE EFFECTIVE AT ANY TIME AFTER THE DATE OF THIS AGREEMENT).
(VII)
THE IRREVOCABLE TRANSFER AGENT INSTRUCTIONS SHALL HAVE BEEN
DELIVERED TO AND ACKNOWLEDGED IN WRITING BY THE COMPANY'S TRANSFER AGENT, AND
THE COMPANY SHALL HAVE DELIVERED A COPY THEREOF TO SUCH PURCHASER.
(VIII)
THE COMPANY SHALL HAVE DELIVERED TO SUCH PURCHASER CERTIFICATES OF
GOOD STANDING FOR THE COMPANY AND EACH GUARANTOR, IN EACH CASE DATED AS OF A
DATE WITHIN FIVE (5) DAYS OF THE CLOSING DATE.
(IX)
THE COMPANY SHALL HAVE DELIVERED TO SUCH PURCHASER A SECRETARY'S
CERTIFICATE, DATED AS OF THE CLOSING DATE, CERTIFYING (A) THAT THE ATTACHED
RESOLUTIONS ARE TRUE, COMPLETE AND CORRECT AND REMAIN UNAMENDED AND IN FULL
FORCE AND EFFECT, (B) AS TO THE CERTIFICATE OF INCORPORATION OF THE COMPANY,
CERTIFIED AS OF A DATE WITHIN FIVE (5) DAYS OF THE CLOSING DATE, BY THE
SECRETARY OF STATE OF THE STATE OF DELAWARE,