AS A DIRECTOR OF XCEL JAPAN AND (B) GALLANT THEIN
AS THE STATUTORY AUDITOR OF XCEL JAPAN, AND SUCH DIRECTOR AND STATUTORY AUDITOR
SHALL REPRESENT THAT THEY HAVE NO CLAIMS AGAINST XCEL JAPAN;
(XI)
A DULY EXECUTED ACCEPTANCE OF DIRECTORS AND
STATUTORY AUDITOR OF XCEL JAPAN AND DULY EXECUTED RESOLUTIONS OF THE BOARD OF
DIRECTORS OF XCEL JAPAN APPOINTING NEW REPRESENTATIVE DIRECTORS IN FORM
SUBMITTED BY BUYERS' COUNSEL;
(XII)
EVIDENCE (IN THE FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BUYER) OF TERMINATION OF ALL AGREEMENTS REGARDING VOTING,
TRANSFER, RESTRICTIONS OR ENCUMBRANCES ON THE XCEL JAPAN SHARES, RIGHTS OF
REPURCHASE OR OTHER ARRANGEMENTS RELATED TO THE XCEL JAPAN SHARES THAT ARE IN
EFFECT PRIOR TO CLOSING;
(XIII)
DULY EXECUTED SATISFACTIONS, TERMINATION
STATEMENTS AND/OR RELEASES, TO THE EXTENT REQUIRED, TO RELEASE ANY EXISTING
LIENS, CLAIMS OR ENCUMBRANCES;
(XIV)
EVIDENCE (IN THE FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BUYER) THAT SELLER'S INVESTMENT BANKERS, ATTORNEYS AND/OR OTHER
ADVISORS AND ANY OTHER SIMILAR AGENTS OR REPRESENTATIVES HAVE BEEN PAID IN FULL
PRIOR TO THE CLOSING AND/OR THAT SELLER HAS NO LIABILITY TO ANY SUCH PARTIES FOR
TRANSACTION
COSTS;
(XV)
EVIDENCE (IN THE FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BUYER) THAT THE EQUIPMENT LOANS AND LEASES SET FORTH ON
SCHEDULE 1 HAVE BEEN PAID IN FULL;
(XVI)
EVIDENCE (IN THE FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO BUYER) THAT ALL INTERCOMPANY ACCOUNTS BETWEEN THE DIGITRAN
BUSINESS OR XCEL JAPAN, ON THE ONE HAND, AND PARENT OR ANY SUBSIDIARY OF PARENT,
ON THE OTHER HAND,
22
HAVE BEEN SETTLED, EXCEPT FOR INTERCOMPANY ACCOUNTS BETWEEN THE DIGITRAN
BUSINESS AND XCEL JAPAN;
(XVII)
CERTIFICATES OF SELLER'S LEGAL EXISTENCE AND
CORPORATE AND TAX GOOD STANDING FROM THE STATE OF NEW JERSEY AND THE STATE OF
CALIFORNIA AND FROM SUCH OTHER JURISDICTIONS WHERE SELLER'S ACTIVITIES REQUIRE
QUALIFICATION AS A FOREIGN CORPORATION IN CONNECTION WITH THE OPERATION OF THE
DIGITRAN BUSINESS;
(XVIII)
A SECRETARY OR CLERK'S CERTIFICATE OF SELLER DATED AS
OF THE DATE OF THE CLOSING CERTIFYING AS TO THE INCUMBENCY AND SIGNATURE OF ANY
OFFICER OF SELLER EXECUTING ANY DOCUMENT BEING DELIVERED TO BUYER IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND ATTACHED TO SUCH
CERTIFICATE SHALL BE CERTIFIED COPIES OF THE RESOLUTIONS OF THE BOARD OF
DIRECTORS OF SELLER AND PARENT, AUTHORIZING THE EXECUTION AND DELIVERY OF THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
(XIX)
SUCH TAX WAIVERS FROM SUCH JURISDICTIONS AS ARE
CUSTOMARY FOR A TRANSACTION OF THIS TYPE;
(XX)
OPINIONS FROM SELLER'S COUNSEL (BOTH UNITED
STATES AND JAPAN COUNSEL) IN THE FORMS SET FORTH ON EXHIBIT 2.9(A)(XX) ATTACHED
HERETO;
(XXI)
SUCH OTHER DEEDS, BILLS OF SALE, ENDORSEMENTS,
ASSIGNMENTS, AFFIDAVITS AND OTHER GOOD AND SUFFICIENT INSTRUMENTS OF SALE,
ASSIGNMENT, CONVEYANCE AND TRANSFER INCLUDING, WITHOUT LIMITATION, INSTRUMENTS
NECESSARY FOR THE TRANSFER OF ANY VEHICLES INCLUDED IN THE PURCHASED ASSETS IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO BUYER AND ITS COUNSEL, AS ARE
REQUIRED TO EFFECTIVELY VEST IN BUYER GOOD AND MARKETABLE TITLE IN AND TO ALL OF
THE PURCHASED ASSETS, FREE AND CLEAR OF ANY AND ALL ENCUMBRANCES;