THE ADDITIONAL INVESTMENT RIGHTS AND
THE WARRANTS AND (B) THE GRANTING OF THE SECURITY INTERESTS IN THE COLLATERAL TO
SECURE THE NOTES, SUBJECT TO ANY PRIOR PERFECTED SECURITY INTERESTS SECURING THE
SENIOR INDEBTEDNESS, TOGETHER WITH SUCH OTHER AGREEMENTS AS THE BUYERS SHALL
REASONABLY REQUIRE TO ENSURE THAT THE BUYERS ENJOY FULL RIGHTS WITH RESPECT TO
THE COLLATERAL, EVIDENCE OF WHICH SHALL HAVE BEEN PROVIDED TO THE BUYERS.
(M)
IN ACCORDANCE WITH THE TERMS OF THE SECURITY
DOCUMENTS, THE COMPANY AND THE SHALL HAVE DELIVERED TO THE AGENT (AS DEFINED IN
THE PLEDGE AND SECURITY AGREEMENT) CERTIFICATES, IF ISSUED, REPRESENTING THE
SHARES OF CAPITAL STOCK OF ITS SUBSIDIARIES PLEDGED UNDER THE PLEDGE AND
SECURITY AGREEMENT, ALONG WITH DULY EXECUTED BLANK STOCK POWERS.
(N)
THE COMPANY SHALL HAVE RENEGOTIATED OR REPAID ALL OF ITS EXISTING MATERIAL DEBT
AND LEASE OBLIGATIONS, ALL ON TERMS SATISFACTORY TO THE BUYERS.
(O)
THE COMPANY, SILICON VALLEY BANK AND THE SENIOR AGENT SHALL HAVE
DULY EXECUTED AND DELIVERED THE SUBORDINATION AGREEMENT IN THE FORM OF EXHIBIT M
ANNEXED HERETO (AS AMENDED OR MODIFIED FROM TIME TO TIME, THE "SUBORDINATION
AGREEMENT").
THE EXECUTION AND DELIVERY OF THE SUBORDINATION AGREEMENT AND THE
PLEDGE AND SECURITY AGREEMENT BY THE SENIOR AGENT IN THE NAME AND ON BEHALF OF
THE BUYERS IS HEREBY AUTHORIZED AND APPROVED BY THE BUYERS.
(P)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER SUCH OTHER DOCUMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT AS SUCH BUYER OR ITS COUNSEL MAY REASONABLY REQUEST.
26
8.
TERMINATION.
IN THE EVENT THAT THE
CLOSING SHALL NOT HAVE OCCURRED WITH RESPECT TO A BUYER ON OR BEFORE FIVE (5)
BUSINESS DAYS FROM THE DATE HEREOF DUE TO THE COMPANY'S OR SUCH BUYER'S FAILURE
TO SATISFY THE CONDITIONS SET FORTH IN SECTIONS 6 AND 7 ABOVE (AND THE
NONBREACHING PARTY'S FAILURE TO WAIVE SUCH UNSATISFIED CONDITION(S)), THE
NONBREACHING PARTY SHALL HAVE THE OPTION TO TERMINATE THIS AGREEMENT WITH
RESPECT TO SUCH BREACHING PARTY AT THE CLOSE OF BUSINESS ON SUCH DATE WITHOUT
LIABILITY OF ANY PARTY TO ANY OTHER PARTY; PROVIDED, HOWEVER, THIS IF THIS
AGREEMENT IS TERMINATED PURSUANT TO THIS SECTION 8, THE COMPANY SHALL REMAIN
OBLIGATED TO REIMBURSE THE NON-BREACHING BUYERS FOR THE EXPENSES DESCRIBED IN
SECTION 4(G) ABOVE.
9.
MISCELLANEOUS.
(A)
GOVERNING LAW; JURISDICTION; JURY TRIAL.
ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND
INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTIONS)
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTIONS OTHER THAN THE
STATE OF NEW YORK.
EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK,
BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED
HEREIN, AND HEREBY IRREVOCABLY WAIVES, AND AGREES