CORPORATION AND GOOD STANDING ISSUED BY THE
SECRETARY OF STATE (OR COMPARABLE OFFICE) OF EACH JURISDICTION IN WHICH THE
COMPANY CONDUCTS BUSINESS, AS OF A DATE WITHIN 10 DAYS OF THE CLOSING DATE.
(G)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER A CERTIFIED COPY OF THE CERTIFICATE OF INCORPORATION AS CERTIFIED BY THE
SECRETARY OF STATE OF THE STATE OF DELAWARE WITHIN TEN (10) DAYS OF THE CLOSING
DATE.
(H)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER A CERTIFICATE, EXECUTED BY THE SECRETARY OF THE COMPANY AND DATED AS OF
THE CLOSING DATE, AS TO (I) THE RESOLUTIONS CONSISTENT WITH SECTION 3(B) AS
ADOPTED BY THE COMPANY'S BOARD OF DIRECTORS IN A FORM REASONABLY ACCEPTABLE TO
SUCH BUYER, (II) THE CERTIFICATE OF INCORPORATION AND (III) THE BYLAWS, EACH AS
IN EFFECT AT THE CLOSING, IN THE FORM ATTACHED HERETO AS EXHIBIT K.
25
(I)
THE REPRESENTATIONS AND WARRANTIES OF
THE COMPANY SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS (EXCEPT FOR THOSE
REPRESENTATIONS AND WARRANTIES THAT ARE QUALIFIED BY MATERIALITY OR MATERIAL
ADVERSE EFFECT, WHICH SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF THE DATE
WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE AT THAT TIME (EXCEPT FOR
REPRESENTATIONS AND WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE) AND 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 CLOSING
DATE.
SUCH BUYER 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 BUYER
IN THE FORM ATTACHED HERETO AS EXHIBIT L.
(J)
THE COMPANY SHALL HAVE DELIVERED TO SUCH
BUYER A LETTER FROM THE COMPANY'S TRANSFER AGENT CERTIFYING THE NUMBER OF SHARES
OF COMMON STOCK OUTSTANDING AS OF A DATE WITHIN FIVE DAYS OF THE CLOSING DATE.
(K)
THE COMMON STOCK (I) SHALL BE DESIGNATED
FOR QUOTATION OR LISTED ON THE PRINCIPAL MARKET AND (II) SHALL NOT HAVE BEEN
SUSPENDED, AS OF THE CLOSING DATE, BY THE SEC OR THE PRINCIPAL MARKET FROM
TRADING ON THE PRINCIPAL MARKET NOR SHALL SUSPENSION BY THE SEC OR THE PRINCIPAL
MARKET HAVE BEEN THREATENED, AS OF THE CLOSING DATE, EITHER (A) IN WRITING BY
THE SEC OR THE PRINCIPAL MARKET OR (B) BY FALLING BELOW THE MINIMUM LISTING
MAINTENANCE REQUIREMENTS OF THE PRINCIPAL MARKET.
(L)
THE COMPANY SHALL HAVE OBTAINED ALL
GOVERNMENTAL, REGULATORY OR THIRD PARTY CONSENTS AND APPROVALS, IF ANY,
NECESSARY TO BE OBTAINED PRIOR TO THE CLOSING DATE FOR THE SALE OF THE
SECURITIES.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY SHALL
ALSO HAVE OBTAINED THE CONSENT OR WAIVER OF SILICON VALLEY BANK UNDER THE
DOCUMENTS AND AGREEMENTS EVIDENCING OR RELATING TO THE SENIOR INDEBTEDNESS, WITH
RESPECT TO (A) THE ISSUANCE OF THE NOTES,