HAD OR COULD REASONABLY BE
EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON THE RIGHTS OR REMEDIES OF THE
PURCHASER, OR ON THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS TO THE
PURCHASER; AND TRADING IN ANY SECURITIES OF THE COMPANY SHALL NOT HAVE BEEN
SUSPENDED OR MATERIALLY LIMITED BY THE SEC OR THE PRINCIPAL MARKET.
(III)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE
SECOND CLOSING DATE AS THOUGH MADE AT THAT TIME (EXCEPT TO THE EXTENT THAT ANY
OF SUCH REPRESENTATIONS AND WARRANTIES IS ALREADY QUALIFIED AS TO MATERIALITY OR
MATERIAL ADVERSE EFFECT IN SECTION 3 ABOVE, IN WHICH CASE, SUCH REPRESENTATIONS
AND WARRANTIES SHALL BE TRUE AND CORRECT IN ALL RESPECTS).
(IV)
THE COMPANY SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL
MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THE
TRANSACTION DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY THE COMPANY
AT OR PRIOR TO THE SECOND CLOSING DATE.
(V)
THE PURCHASER SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY BOTH
THE CHIEF EXECUTIVE OFFICER AND CHIEF FINANCIAL OFFICER OF THE COMPANY, DATED AS
OF THE SECOND CLOSING DATE AND INCLUDING AN UPDATE AS OF SUCH SECOND CLOSING
DATE, CERTIFYING AS TO THE MATTERS IN CLAUSES (I) AND (II) OF THE REPRESENTATION
CONTAINED IN SECTION 3(C) AND CERTIFYING AS TO THE SATISFACTION OF SECTIONS
7(B)(III) AND 7(B)(IV) (SUBJECT TO UPDATE OF CLAUSES (I) AND (II) OF
SECTION 3(C)).
(VI)
THE COMPANY SHALL NOT HAVE BREACHED ANY MATERIAL PROVISION OF ANY
OF THE TRANSACTION DOCUMENTS OR THE CERTIFICATE OF DESIGNATIONS.
(VII)
WITH RESPECT TO INDEBTEDNESS OF THE COMPANY UNDER THE SAFEGUARD
LOAN (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY GUARANTEES OR INDEMNIFICATION
OBLIGATIONS OF THE COMPANY RELATED TO THE SAFEGUARD LOAN), THE PURCHASER SHALL
HAVE RECEIVED SUCH PAY-OFF LETTERS, TERMINATION AGREEMENTS, TERMINATION
STATEMENTS, RELEASES OF FUNDED MORTGAGES AND OTHER RELEASES TO BE DELIVERED
AGAINST REPAYMENT BY THE COMPANY AT OR PRIOR TO THE SECOND CLOSING AS THE
PURCHASER SHALL HAVE REASONABLY REQUESTED, ALL IN FORM AND SUBSTANCE
SATISFACTORY TO THE LENDER(S) TO THE COMPANY (IN THEIR SOLE DISCRETION) AND
REASONABLY SATISFACTORY TO THE PURCHASER.
THE PURCHASER SHALL HAVE RECEIVED
DULY EXECUTED RELEASES (INCLUDING UCC-3 TERMINATION STATEMENTS) OF ALL LIENS
(OTHER THAN PERMITTED LIENS) ON THE ASSETS OF THE COMPANY RELATING TO THE
SAFEGUARD LOAN IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE PURCHASER
AND ITS COUNSEL.
(c)
Conditions to the Purchaser's Obligation to Purchase on each
Subsequent Closing Date.
The Obligation of the Purchaser hereunder to purchase
the applicable Preferred Shares from the Company at each Subsequent Closing is
subject to the satisfaction, at or before each Subsequent Closing, of each of
the following conditions.
These conditions are for the Purchaser's sole benefit
and may be waived by the Purchaser at any time in its sole discretion:
31
(I)
THERE SHALL NOT HAVE OCCURRED OR BECOME KNOWN TO THE PURCHASER
ANY EVENTS OR CHANGES SINCE