Common use of Conditions to Obligations of the Purchasers Clause in Contracts

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.

Conditions to Obligations of the Purchasers. The obligations obligation of each of the Purchasers to consummate effect the Purchase shall be Closing is subject to the fulfillment on satisfaction or prior waiver delivered to the Closing other Party of each of the following conditionsconditions precedent: (a) No statute, rule or regulation or order The representations and warranties of any court or administrative agency the Sellers set forth in this Agreement that are qualified as to materiality shall be in effect which prohibits true and correct and the consummation representations and warranties of the transactions Sellers that are not qualified as to materiality shall be consummated at true and correct in all material respects, in each case, as of the Closing as though made as of the Closing;; provided that, to the extent that any such representation or warranty speaks as of a specified date, it need only be true and correct as of such date. (b) The waiting period Each of the Sellers shall have performed or complied with in all material respects its agreements and covenants (in each case, disregarding any materiality qualifiers contained therein) required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act to be performed or complied with under this Agreement as of 1976, as amended, applicable or prior to the Closing. (c) No Legal Proceeding shall be pending wherein an unfavorable judgment, order, decree, stipulation or injunction would (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause the transaction contemplated by this Agreement to be rescinded following consummation or (iii) impose a Burdensome Condition on the Purchasers, and no such judgment, order, decree, stipulation or injunction shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justicebe in effect. (cd) Each The Sellers shall have obtained at their own expense (except as provided in Section 8.2(d) of the representations and warranties Disclosure Letter) each of the Company contained consents, authorizations, orders, permits and approvals listed in this Agreement Section 2.2(a) of the Disclosure Letter (and shall have provided copies thereof to the Purchasers), each of which shall be true in full force and correct effect. (e) The Title Company shall at the Closing be irrevocably and unconditionally committed to issue each of the Title Policies upon payment of the premium, and such Title Policies shall not contain any exceptions to title other than the standard preprinted exceptions (unless the Purchasers pay for extended coverage and deliver to the Title Company the surveys necessary to remove the survey exceptions, in which case the standard preprinted exceptions shall not appear in the Title Policy) and the Permitted Liens, and the Sellers shall have delivered all affidavits, gap indemnities, no change affidavits for the surveys (to the extent applicable) and other customary agreements as reasonably requested by the Title Company in connection with the issuance of the Title Policies and any extended coverage requested by the Purchasers. (f) Either (i) the applicable Purchasers shall have received the Health Care Licensing Approvals, or written assurances satisfactory to the applicable Purchasers that the Health Care Licensing Approvals will be granted, effective as of the Closing Date or (except ii) (A) in accordance with all of the provisions of Section 6.6, the Sellers shall have executed or caused BPMSL, as applicable, to have executed the Interim Operating Agreements with respect to each of the Facilities to be owned and/or operated by the Delayed Approval Purchasers (the “Interim Operating Facilities”) and (B) as of the Closing Date, each of the Interim Operating Facilities shall be duly licensed in the name of the applicable Seller and the applicable Seller shall be certified to participate in Medicaid with respect to each of the Interim Operating Facilities which was so certified immediately prior to the extent such representations and warranties are made as Closing Date. (g) None of the Sellers shall have (i) applied for or consented to the appointment of a particular datereceiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) become unable, or admitted in which writing its inability, to pay its debts generally as they mature, (iii) made a general assignment for the benefit of its or any of its creditors, (iv) been dissolved or liquidated in full or in part, (v) commenced a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consented to any such representations relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it or (vi) taken any action for the purpose of effecting any of the foregoing, and warranties an order for relief entered or such proceeding shall have been true and correct in all material respects as not be dismissed, discharged or stayed within ninety (90) days of such datecommencement. (h) and the Company The Sellers shall have delivered to the Purchasers a certificatecertified copies of any required corporate, dated partnership or limited liability company approvals required for the Closing Date execution and signed by consummation of this Agreement, the Company Seller Documents and all transactions contemplated hereby and thereby. (i) Each of the Sellers shall have executed and delivered to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized Escrow Agent their respective Seller Documents and approved the issuance and sale of the Securities to provided the Purchasers by the affirmative vote of a majority of the votes cast at such meetingitems listed in Section 9.2(a)(xii), provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”xiii) and (xiv). (ej) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company Xxxxx shall have executed a registration rights agreement substantially in and delivered to the form attached hereto as Exhibit A;Escrow Agent the Pledge Agreement. (gk) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed On or prior to the date hereof that is one (the “Stockholders Agreement”); (h1) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed Business Day prior to the date hereof; andClosing Date, the Nevada Owners shall have entered into management agreements for the Nevada Facilities with the Manager. (il) The Purchasers shall have received an opinionsuch other certificates and instruments as are reasonable and customary for a buyer to request in connection with the Closing. (m) The Closing Effective Gross Income shall not have decreased by five percent (5%) or more when compared with the Base Effective Gross Income. (n) The Sellers shall have delivered a certificate from the manager or general partner of each of the Sellers, addressed to themin a representative and not a personal capacity, and dated the Closing Date, from counsel to the Company effect that each of the conditions specified in form and substance reasonably satisfactory clauses (a)-(d) in this Section 8.2 (insofar as clause (c) relates to the Purchasers with respect to completion of corporate action and enforceabilitya Legal Proceeding involving any Seller) are satisfied. (o) As used in this Section 8.2:

Conditions to Obligations of the Purchasers. The obligations of the Purchasers each Purchaser to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of Ciba and the Company Sellers contained in this Agreement shall be true and correct in all material respects when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (db) The holders Each of Common Stock of Ciba and the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects Sellers shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fc) Each of Ciba and the Sellers shall have delivered to each Purchaser an officer's certificate certifying as to Ciba and such Seller's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The transactions contemplated by the Hexcel Agreement shall be consummated simultaneously with the transactions contemplated hereby and the Purchasers and the Company shall have executed a and delivered the governance agreement in the form of Exhibit B hereto (the "Governance Agreement"), the registration rights agreement in the form of Exhibit C hereto (the "Registration Rights Agreement"), and all other agreements, documents and instruments required to be delivered in connection therewith; (e) Each Purchaser and Ciba shall have executed and delivered a Pledge Agreement in the form of Exhibit D hereto (the "Pledge Agreement"); (f) Such Purchaser shall have received the opinions substantially in the form attached hereto as set forth on Exhibit A; (g) The PurchasersE from either Cravath, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The PurchasersSwaine & Xxxxx, the Company Xxxx X . XxXxxx, Esq. or Switzerland counsel for Ciba and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; andSellers; (i) The Purchasers Majority Lenders (as defined in the Credit Agreement) shall have received executed an opinionagreement, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect Purchasers, consenting to completion the transactions contemplated hereby and (ii) the agreements, each dated as of corporate action the date hereof, from the Company's employees set forth on Exhibit F hereto shall be in full force and enforceabilityeffect as of the Closing; (i) Xx. Xxxx X. Lee's employment agreement attached hereto as Exhibit G and all other agreements contemplated thereby shall be in full force and effect as of the Closing; (j) The Consent and Termination Agreement in the form attached as Exhibit H (the "Consent and Termination Agreement") shall have been executed and delivered by Ciba and the Company and the Indenture shall have been amended in the manner set forth in Section 3.02 of the Consent and Termination Agreement; and (k) Neither the Company nor any of its subsidiaries shall have suffered any change, event, or development or series of changes, events or developments which individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be transactions contemplated by this Agreement are subject to the fulfillment satisfaction or waiver by the Purchasers, on or prior to the Closing Date, of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation each of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation Fundamental Representations of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained Partnership set forth in this Agreement shall be true and correct as of the Closing in all material respects (except to the extent such other than representations and warranties that are made qualified as to materiality, material adverse effect or words of a particular datesimilar import, in which case such representations and warranties shall have been be true and correct in all material respects respects) on and as of the date hereof and as of the Closing Date, with the same force and effect as though made on and as of such date; provided, however, that the representation and warranty set forth in Section 3.6(a) shall be deemed to be true and correct solely for the purpose of this Section 6.3(a) (but not for any other purpose), if the total number of Common Units, the total number of Subordinated Units and the Company total number of corresponding Notional General Partner Units set forth therein, do not vary from the actual total number of Common Units, the actual total number of Subordinated Units and the actual total number of corresponding Notional General Partner Units on the date hereof by more than 2%; provided, further, for the purposes of clarification, this Section 6.3(a) shall not limit any of the Purchasers’ rights or remedies under Article VII. (b) the Partnership shall not have breached in any material respect its obligations set forth in Section 5.2(b) unless such breach has been cured at or prior to the Closing Date; (c) the Purchasers shall have delivered received from the Partnership (i) a copy of the Partnership’s certificate of formation, certified by the Secretary of State of the State of Delaware to be true and complete as of a date no more than five (5) days prior to the Purchasers Closing Date and the Organizational Documents of each of its Operating Subsidiaries, certified by the Secretary of the Partnership and each of the Operating Subsidiaries to be true and complete as of the Closing Date; (ii) a copy, certified by the Secretary of the Partnership and each of the Operating Subsidiaries to be true and complete as of the Closing Date, of the operating agreement or bylaws thereof; and (iii) a certificate, dated not more than ten (10) days prior to the Closing Date and signed by Date, of the Company Secretary of State of the State of Delaware as to the effect set forth in this Section 5.1(c)Partnership’s good standing; (d) The holders of Common Stock the Purchasers shall have received from the Partnership copies certified by the Secretary or other appropriate officer thereof to be true and complete as of the Company present in person or by proxy at a duly called meeting Closing Date of the Company’s stockholders shall have authorized and approved the issuance and sale resolutions of the Securities board of directors, board of managers or similar governing body of each Partnership party to any Transaction Document authorizing the Purchasers by the affirmative vote execution and delivery of a majority this Agreement and each of the votes cast at other Transaction Documents to which such meeting, provided that Partnership Entity is a party and the total votes cast on the proposal represent at least 50% consummation of the Common Stock entitled to vote thereon (transactions contemplated hereby and thereby and that such resolutions were duly adopted and certifying that such resolutions have not been rescinded or amended as of the “Company Stockholder Approval”).Closing Date; (e) The Company in all material respects the Purchasers shall have performedreceived from the Partnership an incumbency certificate, satisfied dated as of the Closing Date, signed by a duly authorized officer thereof and complied with giving the name and bearing a specimen signature of each Person who shall be authorized to sign, in the name and on behalf of the Partnership Entities, this Agreement and each of its covenants the other Transaction Documents to which the Partnership Entities are or are to become a party, and agreements set forth in this Agreement to be performed, satisfied give notices and complied with prior to or at Closingtake other action on behalf of the Partnership Entities under each of such documents; (f) The Purchasers and the Company Partnership shall have executed a registration rights agreement substantially in received the form attached hereto as Exhibit Aproceeds of the Debt Financing; (g) The Purchasers, the PCP Entities and Penske Partnership shall have delivered the Partnership Agreement Amendment, duly executed a stockholders agreement substantially in by the form agreed prior to the date hereof (the “Stockholders Agreement”)General Partner; (h) The Purchasers, the Company and the other parties thereto Partnership shall have delivered a counterpart, duly executed a termination of by the Second Partnership, to the Amended and Restated Stockholders Agreement substantially in Registration Rights Agreement; (i) the form agreed prior Partnership shall have delivered a certificate, duly executed by an executive officer of the General Partner, dated as of the Closing Date, to the date hereofeffect that each of the conditions specified in Section 6.3(a) and Section 6.3(b) have been satisfied; and (ij) The Purchasers each of the Partnership Entities shall have received an opinion, addressed delivered each document required to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory be delivered by it to the Purchasers with respect to completion of corporate action and enforceabilityunder this Agreement.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have executed and delivered the Registration Rights Agreement and the Termination Agreement referred to in Sections 4.14 and 4.18, respectively, and each such agreement shall be in full force and effect; (d) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (e) The Conversion Shares shall have been duly authorized and reserved for issuance; (f) The Purchasers and the Company Company's Certificate of Incorporation shall have executed a registration rights agreement substantially in been amended to expressly elect not to be governed by Section 203 of the form attached hereto as Exhibit A;DGCL; and (g) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially delivered the Capitalization Certificate referred to in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilitySection 4.13.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have executed and delivered the Registration Rights Agreement and the Termination Agreement referred to in Sections 4.14 and 4.18, respectively, and each such agreement shall be in full force and effect; (d) The Certificate of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificate of Designation shall be in full force and effect; (e) The Conversion Shares shall have been duly authorized and reserved for issuance; (f) The Purchasers and the Company Company's Certificate of Incorporation shall have executed a registration rights agreement substantially in been amended to expressly elect not to be governed by Section 203 of the form attached hereto as Exhibit A;DGCL; and (g) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially delivered the Capitalization Certificate referred to in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilitySection 4.13.

Conditions to Obligations of the Purchasers. The obligations obligation of each Purchaser to purchase the Purchasers Series C Shares and the Warrants to consummate be purchased by such Purchaser at the Purchase Closing in accordance with Section 3.2 shall be subject to the fulfillment satisfaction or waiver by such Purchaser of the following conditions precedent on or prior to the Closing of each of the following conditionsDate: (a) No statute, rule or regulation or order the Series C Preferred Stock Certificate of any court or administrative agency Designation shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect which prohibits the consummation of the transactions to be consummated at Closingand shall not have been modified in any manner; (b) The waiting period required as of the Closing Date there shall be an absence of (i) any general suspension of trading in, or limitation on prices for securities on any national securities or bulletin board exchange or over-the-counter market, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, or (iii) the commencement or escalation of a war or material armed hostilities or other international or national calamity involving the United States and having an adverse effect on the functioning of the financial markets in the United States; (c) the representations and warranties made by the Hxxx-Xxxxx-Company in Article IV hereof shall be true and correct in all respects to the extent they are qualified by materiality or Material Adverse Effect, and to the extent not so qualified shall be true and correct in all material respects; (d) the Company shall have paid the Closing Fee and the Purchaser Expenses to such Purchaser, in each case as contemplated under Section 10.5 of this Agreement; (e) the authorization and issuance of the Series C Shares, the Warrants, the Conversion Shares and the Warrant Shares will not prevent the Company from listing the Common Stock on AMEX; (f) the Company shall have received all consents and approvals, including Board of Director, stockholder, Governmental Agency and third party consents or approvals, that are required to be obtained in connection with the transactions contemplated under this Agreement and the Related Documents, including the issuance of the Securities in accordance with the terms of this Agreement and the Related Documents; (g) one individual designated by the Purchasers holding a majority of the number of shares of Underlying Common Stock (the “Requisite Purchasers”) as contemplated by Section 8.6 (the “Series C Director”) shall have been duly nominated and elected to serve as a member of the Board of Directors, effective as of the Closing Date; (h) since March 31, 2005, no Material Adverse Effect shall have occurred; (i) such Purchaser shall have received evidence satisfactory to such Purchaser that the Company has satisfied in full all of its obligations under the Subordinated Notes and the Subordinated Notes shall no longer be issued or outstanding; (j) the Company shall have satisfied the listing requirements of Sections 101(c), 102, 121, 123, 802, 803, 804 and 807 of the AMEX Company Guide; (k) no stop order or suspension of trading shall have been imposed by the SEC or any other governmental regulatory body with respect to public trading in the Common Stock on the pink sheets; (l) the following documents and items shall have been delivered to such Purchaser at or prior to the Closing: (i) fully executed and delivered Warrants providing for the purchase upon exercise thereof of the Warrant Shares satisfactory in form and substance to such Purchaser, which Warrants shall be in full force and effect on the Closing Date without further amendment or modification thereto; (ii) the written opinion of Xxxxxx Antitrust Improvements Act & Whitney LLP, counsel to the Company, dated as of 1976the Closing Date and satisfactory in form and substance to the Purchasers; (iii) a counterpart of the Amended and Restated Investor Rights Agreement duly executed and delivered by the Company and each Person required to amend and restate the Amended and Restated Investor Rights Agreement, and the Amended and Restate Investor Rights Agreement shall be in full force and effect; (iv) certificates evidencing ownership of the Series C Shares, duly executed and delivered by the Company; (v) a certificate of a duly authorized officer of the Company dated as amendedof the Closing Date certifying that (A) the closing conditions described in Sections 7.1(a), applicable (b), (c), (e), (f), (g), (h), (j) and (k) have been satisfied and (B) the resolutions of the Board of Directors attached thereto (which resolutions shall have, among other things, (x) authorized all of the transactions contemplated by this Agreement and the Related Documents, approved the Related Documents (including the filing of the Series C Preferred Stock Certificate of Designation and the issuance of the Securities) and (y) duly nominated and elected the Series C Director to the Board of Directors effective as of the Closing Date; (vi) fully executed consent of the holders of the Series B Shares to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division Related Documents and the waiver of any pre-emptive or anti-dilution rights such Persons may have in respect of the United States Department of Justice.transactions contemplated by this Agreement and the Related Documents; (cvii) Each of a fully executed amendment to the representations Rights Plan satisfactory in form and warranties of the Company contained in this Agreement substance to such Purchaser, which amendment shall be true in full force and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated effect on the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)without further amendment or modification thereto; (dviii) The holders of Common Stock fully executed copies of the Company present Lock-Up Agreements required by Section 8.8 and such Lock-Up Agreements shall be in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized full force and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereofeffect; and (iix) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel such other documents relating to the Company in form and substance reasonably satisfactory to transactions contemplated hereby as the Purchasers with respect to completion of corporate action and enforceabilitymay reasonably request.

Conditions to Obligations of the Purchasers. The obligations of each of the Purchasers to consummate the Purchase fulfill its obligations under Section 2.1 hereof shall be subject to the fulfillment on satisfaction or waiver prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date (except or on the date when made in the case of any representation or warranty which specifically relates to an earlier date); the Company shall have performed, in all material respects, each of its covenants and agreements contained in this Agreement to be performed prior to the extent such Closing; and the Placement Agent shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the foregoing effect. (b) Each of the representations and warranties are made as of a particular date, the Selling Shareholders contained in which case such representations and warranties the Redemption Agreement shall have been be true and correct in all material respects as of the date of such agreement and as of the Closing Date as if made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date) ); the Selling Shareholders shall have performed, in all material respects, each of their covenants and agreements contained in the Redemption Agreement to be performed prior to the Closing; and the Company shall have delivered to received a certificate signed by the Purchasers a certificateShareholder Representative, dated the Closing Date Date, to the foregoing effect. (c) The Company shall have delivered to each Purchaser a Senior Note and/or a certificate evidencing shares of Common Stock, as the case may be, in each case registered in the name of the Purchaser, sufficient to evidence the Securities to be issued and signed sold by the Company and purchased by the Purchaser, against payment therefor to the effect set forth in Company, as such investment has been identified on the Investor Signature Page to this Section 5.1(c);Agreement. (d) The holders of Common Stock of Company and the Company present in person or by proxy at a duly called meeting of the Company’s stockholders Selling Shareholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at executed such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)Redemption Agreement. (e) The Company in all material respects shall have performed, satisfied obtained the requisite stockholder approval of an amendment to its Certificate of Incorporation to increase its authorized Common Stock to 25,000,000 shares and complied its authorized Preferred Stock to 5,000,000 shares and shall have filed with each the Secretary of its covenants and agreements set forth State of the State of Delaware the appropriate documentation in this Agreement order to be performed, satisfied and complied with prior to or at Closing;effect such amendment. (f) The Purchasers and the Company shall have executed delivered to the Placement Agent a registration rights agreement substantially certificate signed by its Chief Executive Officer, dated as of the Closing Date, certifying on behalf of the Company that the undersigned has reviewed on behalf of the Company the information, financial or otherwise, contained in the form attached hereto Private Placement Memorandum and, to the best knowledge of the undersigned, as Exhibit A;of the respective dates thereof, none of such information (except for the information covered by Section 4.2(g)(iii) as to which such certificate shall not speak) contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (g) The Purchasers, the PCP Entities and Penske Xx. Xxxxxx X. Townsend shall have executed a stockholders agreement substantially in the form agreed prior delivered to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed Placement Agent a termination certificate signed by Xx. Xxxxxxxx, the Chairman elect of the Second Amended Board of Directors and Restated Stockholders Agreement substantially proposed Chief Executive Officer of the Company, dated as of the Closing Date, certifying that: (i) the Company has assumed the provisions of the letter agreement, dated as of February 3, 1997, as amended on August 6, 1997, between the Placement Agent and Xxxxxx X. Xxxxxxxx (the "Letter Agreement"), and has accepted and agreed to all of the obligations set forth in such Letter Agreement, including without limitation, the provisions regarding fees and expenses, indemnification and contribution and Post Offering Engagement, as defined in the form agreed prior to the date hereofLetter Agreement; and (iii) The Purchasers shall have received an opinion, addressed to them, and dated Xx. Xxxxxxxx has read the Closing Date, from counsel Private Placement Memorandum; and (iii) to the best knowledge of Xx. Xxxxxxxx, the information set forth in the Private Placement Memorandum regarding Xx. Xxxxxxxx and the information which the Private Placement Memorandum describes as having been provided by Xx. Xxxxxxxx, including, without limitation, information regarding the future plans of the Company or its new management or board of directors, does not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in form and substance reasonably satisfactory to the Purchasers with respect to completion light of corporate action and enforceabilitythe circumstances under which they were made, not misleading.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (ai) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closingcontemplated hereby; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eii) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fiii) The Purchasers representations and warranties of the Company in Section 3 shall be true and correct in all material respects as of the date of Closing; (iv) The Company shall have executed a registration rights agreement substantially in and delivered to each of the form attached hereto as Exhibit APurchasers the Registration Rights Agreement; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially obtained sufficient waivers of pre-emptive rights from all holders of capital stock who possess such rights so as to allow the consummation of the transactions contemplated by this Agreement. (vi) The Amended Certificate shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the form agreed prior to laws of the date hereof (State of Delaware and the “Stockholders Agreement”)Amended Certificate shall be in full force and effect; (hvii) Mayer, Brown, Rowe & Maw shall have delivered an opinion in form and substance reaxxxxbly satisfactory to Purchasers; (viii) The Company shall have delivered a good standing certificate for the Company (or a copy thereof) to each of the Purchasers; (ix) The Company shall have received all consents, authorizations, and approvals necessary to complete the transactions contemplated hereby, including, without limitation, the Required Consents. (x) The Company shall have delivered to each Purchaser a certificate of the Company, dated the date of the Closing and executed by the Chief Executive Officer of the Company, certifying as to the fulfillment of the conditions specified in Sections 6(a)(ii), (iii), (vi), (xii) and (xiii) of this Agreement; (xi) The Company shall have delivered to each Purchaser a certificate of the Company, dated the date of the Closing and executed by the Secretary of the Company, certifying: (a) the corporate proceedings taken by the Company's Board of Directors and, if required, stockholders approving this Agreement and the other parties thereto shall have executed a termination Registration Rights Agreement and the transactions contemplated hereby and thereby; (b) the Amended Certificate; and (c) the By-laws of the Second Amended Company; (xii) No claim, action, cause of action, suit, litigation, arbitration, investigation, hearing, charge, complaint, demand, notice or proceeding to, from, by or before any Governmental Authority shall be pending or threatened wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by the Agreement or (ii) cause any of the transactions contemplated by the Agreement to be rescinded following consummation (and Restated Stockholders Agreement substantially no such injunction, judgment, order, decree, ruling, or charge shall be in the form agreed prior to the date hereofeffect); and (ixiii) The Purchasers There shall not have received an opinionoccurred any event, addressed circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityhave a Material Adverse Effect.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired be subject to the fulfillment at or been terminated by prior to the Federal Trade Commission and the Antitrust Division Closing Date of the United States Department of Justice.following additional conditions: (ca) Each of The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (if not qualified by materiality) and true and correct (if so qualified) on and as of the date of this Agreement and at and as of the Closing Date (as modified by the matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to the Purchasers in accordance with Section 6.4 hereof) as if made at and as of the Closing Date, except to the extent that any such representations and warranties are made as of a particular date, representation or warranty expressly relates to another date (in which case such representations and warranties shall have been true and correct in all material respects case, as of such date) and the Company Purchasers shall have delivered received a certificate from the Company signed by an executive officer), to such effect; (b) No action or proceeding shall be pending against the Company or the Purchasers before any court of competent jurisdiction which action or proceeding has been brought by a certificateGovernmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, dated restrain, enjoin or restrict the Closing Date consummation of the transactions contemplated by this Agreement or the other Transaction Documents; (c) All consents, approvals, authorizations and signed permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in connection with the transactions contemplated by this Agreement and the Company to the effect set forth in this Section 5.1(c)other Transaction Documents shall have been obtained, taken or made; (d) The holders of Common Stock of All conditions to the Company present in person or by proxy at a duly called meeting of the Company’s stockholders Second Closing shall have authorized been satisfied, and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).Second Closing shall occur concurrently herewith; and (e) The Company in all material respects Purchasers shall have performedreceived an opinion of Xxxxxx, satisfied and complied with each of its covenants and agreements set forth in this Agreement Xxxxx & Xxxxxxx LLP, counsel to be performedthe Company, satisfied and complied with prior to or at Closing; (f) The Purchasers and containing the Company shall have executed a registration rights agreement substantially opinions in the form attached hereto as Exhibit A; (g) The PurchasersB with such provisions concerning scope of firm's inquiry, law covered by opinion, reliance by the PCP Entities firm, assumptions, definition of firm's "knowledge", qualifications, limitations and Penske similar matters as shall have executed a stockholders agreement substantially in the form agreed prior be reasonably acceptable to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityCompany.

Conditions to Obligations of the Purchasers. The respective obligations of each Purchaser hereunder in connection with the Purchasers to consummate the Purchase shall be Closing are subject to the fulfillment on or prior to the Closing of each of the following conditionsconditions being met: (ai) No statute, rule or regulation or order of any court or administrative agency shall be the accuracy in effect which prohibits all respects on the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each Closing Date of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing herein (except to the extent such representations and or warranties are made as of a particular date, in which case such representations by their terms qualified by materiality or Material Adverse Effect) and warranties shall have been true and correct in all material respects as of such datethose representations and warranties not so qualified; (ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed or waived; (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; (iv) the Company shall have delivered to The Bank of New York, as Collateral Agent under the Purchasers Security Agreement, appropriate financing statements on Form UCC-1 in form for filing under the Uniform Commercial Code or other applicable local law of each jurisdiction in which the filing of a certificatefinancing statement or giving of notice may be required, dated the Closing Date and signed or reasonably requested by the Company Collateral Agent, to perfect the effect set forth in this Section 5.1(c)security interests intended to be created by the Security Agreement; (dv) The holders of Common Stock of Xxxxxx & Xxxxxxx, LLC shall have surrendered to the Company present in person or by proxy at a duly called meeting of for cancellation the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meetingOutstanding Xxxxxx Warrants, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially issued to Xxxxxx & Xxxxxxx LLC or its assignee new warrants to purchase 71,429 shares of Common Stock at an exercise price of $7.00 per share; and (vi) the issuance of the Letter of Credit (subject to escrow arrangements to be released by the L/C Bank upon confirmation of receipt by the L/C Bank of the funds referred to in paragraph 6 of the form Escrow Account Disbursement Instructions attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”K); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired be subject to the fulfillment at or been terminated by prior to the Federal Trade Commission and the Antitrust Division Closing Date of the United States Department of Justice.following additional conditions: (ca) Each of The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Date, and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (if not qualified by materiality) and true and correct (if so qualified) on and as of the date of this Agreement and at and as of the Closing Date (as modified by the matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to the Purchasers in accordance with Section 6.4 hereof) as if made at and as of the Closing Date, except to the extent that any such representations and warranties are made as of a particular date, representation or warranty expressly relates to another date (in which case such representations and warranties shall have been true and correct in all material respects case, as of such date) and the Company Purchasers shall have delivered received a certificate from the Company signed by an executive officer), to such effect; (b) No action or proceeding shall be pending against the Company or the Purchasers before any court of competent jurisdiction which action or proceeding has been brought by a certificateGovernmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, dated restrain, enjoin or restrict the Closing Date consummation of the transactions contemplated by this Agreement or the other Transaction Documents; (c) All consents, approvals, authorizations and signed permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in connection with the transactions contemplated by this Agreement and the Company to the effect set forth in this Section 5.1(c)other Transaction Documents shall have been obtained, taken or made; (d) The holders of Common Stock of All conditions to the Company present in person or by proxy at a duly called meeting of the Company’s stockholders Second Closing shall have authorized been satisfied, and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).Second Closing shall occur concurrently herewith; and (e) The Company in all material respects Purchasers shall have performedreceived an opinion of Morgxx, satisfied and complied with each of its covenants and agreements set forth in this Agreement Xxxxx & Xockxxx XXX, counsel to be performedthe Company, satisfied and complied with prior to or at Closing; (f) The Purchasers and containing the Company shall have executed a registration rights agreement substantially opinions in the form attached hereto as Exhibit A; (g) The PurchasersB with such provisions concerning scope of firm's inquiry, law covered by opinion, reliance by the PCP Entities firm, assumptions, definition of firm's "knowledge", qualifications, limitations and Penske similar matters as shall have executed a stockholders agreement substantially in the form agreed prior be reasonably acceptable to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityCompany.

Conditions to Obligations of the Purchasers. (a) The obligations obligation of the Purchasers to consummate the Purchase transactions contemplated hereunder shall be subject to the fulfillment on satisfaction or waiver by the Purchasers at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (ci) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding for this purpose all references in such representations and warranties to any materiality and Material Adverse Effect qualifications) as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c);Material Adverse Effect, (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eii) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fiii) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (i) and (ii) of this Section 5.2; (iv) The Designated Shareholders and the Company shall have executed a registration rights agreement substantially entered into Management Stockholders Agreements in the form attached hereto as of Exhibit A5.2(iv) (the "Shareholders Agreements"), with each of Mark K. Ruport, Steven M. Johnson, James Hale, Thomas M. Raffexxx, Xxxx X. Xey and Xxxxxx X. Xxgoxxx xxx xxe Xxxxxxxxxxxx Xxxxxmexxx xxxxx xe in full xxxxx xxx xxfect; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed and delivered a stockholders agreement substantially Registration Rights Agreement in the form agreed prior of Exhibit 5.2(v) (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (vi) The Certificate of Designation shall have been duly filed with the Secretary of State of the State of Delaware and shall be in full force and effect; (vii) The Shares initially issuable upon conversion or exercise, as the case may be, of the Preferred Stock and Warrants shall have been duly authorized and reserved for issuance and such Shares shall have been listed on the NASDAQ, subject to official notice of issuance; (viii) The Purchaser shall have received at the Closing an opinion of the E*Law Group, outside counsel to the date hereof (Company, in the “Stockholders Agreement”form of Exhibit 5.2(viii); (hix) The PurchasersThere shall not have occurred since September 30, the Company and the other parties thereto shall have executed 1999 any change or development or series of changes or developments (including without limitation as a termination result of the Second Amended and Restated Stockholders Agreement substantially any change in the form agreed prior Law) which has resulted in or could reasonably be expected to result individually or in the date hereofaggregate in a Material Adverse Effect; and (x) The Board of Directors shall have amended the by-laws of the Company to provide that (i) The Purchasers the Board of Directors consists of eight directors, one of whom shall have received an opinionbe the Preferred Designee and (ii) the provisions of the Certificate of Designation, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to extent inconsistent with the Purchasers with respect to completion of corporate action and enforceabilityby-laws, shall be expressly controlling.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (ai) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closingcontemplated hereby; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (cii) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eiii) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fiv) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (ii) and the (iii) of this Section 6(a); (v) The Company shall have executed a registration rights agreement substantially in and delivered to each of the form attached hereto as Exhibit APurchasers the Registration Rights Agreement; (gvi) The Purchasers, Amended Certificate shall have been duly filed with the PCP Entities Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and Penske the Amended Certificate shall be in full force and effect; (vii) The Company shall have executed a stockholders agreement substantially in and delivered to Microsoft the form agreed prior to the date hereof (the “Stockholders Engineering and Marketing Agreement”); (hviii) The Purchasers, the Company and the other parties thereto shall have executed a termination of and delivered to Microsoft the Second Amended Warrant; (ix) The Conversion Shares and Restated Stockholders Agreement substantially the Warrant Shares shall have been duly authorized and reserved for issuance; (x) Mayer, Brown & Platt shall have delivered an opinion in the form agreed prior and subxxxxxe xxxxxnabxx xxtisfactory to the date hereofPurchasers; and (ixi) The Purchasers There shall not have received an opinionoccurred any event, addressed circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityhave a Material Adverse Effect.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated by this Agreement shall be subject to the fulfillment on or prior to Purchasers' waiver, at or before the Closing Closing, of each of the following conditions: (a) No statuteOther than the representations and warranties of Vendors set out in Section 3.1, rule Section 3.3, Section 3.6 and Section 3.23, the representations and warranties of each of the Vendors contained in this Agreement, the other Transaction Documents and any certificate or regulation or order other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any court representation or administrative agency warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in effect which prohibits the consummation all respects). The representations and warranties of the transactions to Vendors set out in Section 3.1, Section 3.3, Section 3.6 and Section 3.23 shall be consummated true and correct in all respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at Closing;and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation Each of the transactions contemplated Vendors shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement and each of the other Transaction Documents to be performed or complied with by it before or on the Closing Date; provided that, with respect to agreements, covenants and conditions that are qualified by materiality, each of the Vendors shall have expired or been terminated by the Federal Trade Commission performed such agreements, covenants and the Antitrust Division of the United States Department of Justiceconditions, as so qualified, in all respects. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties No Action shall have been true and correct in all material respects as commenced against the Purchasers, any of such date) and the Vendors or the Company that would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) All approvals, consents and waivers that are listed in Section 3.5 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to the Purchasers, at or before the Closing. (e) All consents, renunciations, authorizations or approvals of each applicable Governmental Authority and any other Person which, in the Purchaser's reasonable opinion, must be obtained prior to the Closing in order to give effect to: (i) the purchase of the Shares and the transactions contemplated herein; (ii) all other transactions related to the foregoing, including any approval of the Exchange (if applicable), having been obtained to the Purchaser's satisfaction or in accordance with any applicable Contracts or applicable Laws. (f) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect. (g) The Transaction Documents (other than this Agreement) shall have been executed and delivered by the parties thereto and true and complete copies thereof shall have been delivered to the Purchasers. (h) The Purchasers shall have received a certificate, dated the Closing Date and signed by each of the Company to Vendors, that each of the effect conditions set forth in this Section 5.1(c); (d6.2(a) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall and Section 6.2(b) have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)been satisfied. (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionresignations of the directors and officers of the Company under Section 5.5. (j) The Vendors shall have delivered to the Purchasers a certificate of good standing for the Company from the Registrar appointed under the Business Corporations Act (British Columbia) dated no more than one Business Day prior to the Closing Date. (k) Each of the Vendors shall have delivered, addressed or caused to thembe delivered, to the Purchasers share certificates representing the Shares, free and dated clear of Encumbrances, duly endorsed in blank or accompanied by forms of share transfers or other instruments of transfer duly executed in blank. (l) The Vendors shall have delivered, or caused to be delivered, to the Purchasers a copy of the Company's share register reflecting the transfer of the Shares to the Purchaser. (m) The Vendors shall have delivered to the Purchasers documentation evidencing that all current or former employees, consultants and Independent Contractors of the Company have assigned any and all right, licence, claim or interest whatsoever in or with respect to any of the Corporate IP consistent with the representation and warranty set out in Section 3.12(e). (n) The Vendors shall have remitted to the appropriate Governmental Authority such Taxes and other amounts required to be remitted by the Company and provide evidence of same to the Purchasers. (o) The Vendors shall obtain any required consents triggered by the transactions contemplated pursuant to this Agreement from the entities listed in Section 3.5(c) of the Disclosure Schedules, in order for the Company to be compliant with its obligations pursuant to agreements with these entities, before the Closing Date. (p) As of the Closing Date, from counsel to the Company shall have at least $100,000 in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityWorking Capital.

Conditions to Obligations of the Purchasers. (a) The obligations of the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired be subject to the fulfillment at or been terminated by prior to the Federal Trade Commission and the Antitrust Division First Closing Date of the United States Department of Justice.following additional conditions: (ci) Each of The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Dates, and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (if not qualified by materiality) and true and correct (if so qualified) on and as of the date of this Agreement and at and as of the Closing Dates (as modified by the matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to the Purchasers in accordance with Section 6.4 hereof) as if made at and as of each Closing Date, except to the extent that any such representations and warranties are made as of a particular date, representation or warranty expressly relates to another date (in which case such representations and warranties shall have been true and correct in all material respects case, as of such date) and the Company Purchasers shall have delivered to received a certificate from the Purchasers a certificate, dated the Closing Date and Company signed by the Company an executive officer, to the effect set forth in this Section 5.1(c)such effect; (dii) The holders No action or proceeding shall be pending against the Company or the Purchasers before any court of Common Stock competent jurisdiction which action or proceeding has been brought by a Governmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, restrain, enjoin or restrict the consummation of the Company present in person or transactions contemplated by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closingthe other Transaction Documents; (fiii) All consents, approvals, authorizations and permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been obtained, taken or made; (iv) The Purchasers and the Company shall have executed a registration rights agreement substantially received an opinion of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Company, containing the opinions in the form attached hereto as Exhibit AB with such provisions concerning scope of firm's inquiry, law covered by opinion, reliance by the firm, assumptions, definition of firm's "knowledge", qualifications, limitations and similar matters as shall be reasonably acceptable to the Company; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially in the form agreed prior and delivered to the date hereof (Purchasers the “Stockholders Investment Agreement”), and such Investment Agreement shall be in full force and effect; (hvi) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior delivered to the date hereofPurchasers the Co-Sale and Voting Agreement, and such Co-Sale and Voting Agreement shall be in full force and effect; and (ivii) The Purchasers Company shall have received an opinionreached agreement with other investors, addressed to themincluding Xxxx Xxxxxxxxx and Xxxx Xxxxxxxxxx, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory acceptable to the Purchasers to invest at least $3,000,000 in the securities of the Company on terms no more favorable than those of the Purchasers. (b) The obligations of the Purchasers to effect the transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Second Closing Date of the following additional conditions: (i) No action or proceeding shall be pending against the Company or the Purchasers before any court of competent jurisdiction which action or proceeding has been brought by a Governmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, restrain, enjoin or restrict the consummation of the transactions contemplated by this Agreement or the other Transaction Documents; and (ii) All consents, approvals, authorizations and permits of, actions by, filings with respect to completion of corporate action or notifications to, Governmental Entities and enforceabilitythird parties required in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been obtained, taken or made.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated by this Agreement shall be subject to the fulfillment on or the Purchasers’ waiver, at or prior to the Closing Closing, of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of Other than the representations and warranties of the Company Seller and CPSL contained in Section 3.01, Section 3.02, Section 3.03, Section 3.05, and Section 3.17, the representations and warranties of the Seller and CPSL contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent such those representations and warranties are made that address matters only as of a particular specified date, the accuracy of which shall be determined as of that specified date in which case such all respects). The representations and warranties of the Seller and CPSL contained in Section 3.01, Section 3.02, Section 3.03, Section 3.05, and Section 3.17 shall have been be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). (b) The Seller and CPSL shall have duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by it prior to or on the Company Closing Date; provided, that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Seller and CPSL, as applicable, shall have performed such agreements, covenants, and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against the Purchasers, the Seller, or CPSL, that would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect. (e) The Purchasers shall have received resignations of the directors and officers of CPSL pursuant to Section 5.05 hereof, which shall be dated as of the Closing Date. (f) CPSL shall have delivered to the Purchasers a stamped Certificate of Incorporation from the Secretary of State of the State of Nevada. (g) The Seller shall have delivered, or caused to be delivered, (i) to the Purchasers a copy of the duly executed irrevocable stock power sent to the Transfer Agent (or other instrument of transfer satisfactory to the Transfer Agent to effect the transfer of the Shares), and (ii) to the Transfer Agent such instructions and other documentation satisfactory to the Transfer Agent to effect the transfer of the Shares in book-entry form. (h) The Purchasers shall have received a (i) certificate, dated as of the Closing Date and signed by a duly authorized officer of the Seller, that each of the conditions with respect to the Seller and as set forth in Section 7.02(a) and Section 7.02(b) have been satisfied and (ii) certificate dated the Closing Date and signed by a duly authorized officer of CPSL, that each of the Company conditions with respect to the effect CPSL and as set forth in this Section 5.1(c); (d7.02(a) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall and Section 7.02(b) have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)been satisfied. (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received (i) a certificate of the Secretary or an opinionAssistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the management and/or members of the Seller authorizing the execution, addressed to themdelivery, and dated performance of this Agreement and the Closing Dateconsummation of the transactions contemplated hereby, from counsel and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby, and (ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of CPSL authorizing the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby. (j) The Purchasers shall have received a (i) certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying the names and signatures of the Persons of the Seller authorized to sign this Agreement and the Company in form other documents to be delivered hereunder and substance reasonably satisfactory (ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of CPSL certifying the names and signatures of the officers of CPSL authorized to sign this Agreement and the other documents to be delivered hereunder. (k) The Seller and CPSL shall have delivered to the Purchasers with respect such other documents or instruments as the Purchasers reasonably requests and are reasonably necessary to completion of corporate action and enforceabilityconsummate the transactions contemplated by this Agreement.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are affected by agreement to or consummation of any of the pending transactions listed on Schedule 4.1 or made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered the Amended and Restated Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially acquired all of the outstanding equity interests in Internext, LLC on the terms set forth in the form agreed prior to the date hereof (the “Stockholders Merger Agreement”);. (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion of Willkie Farr & Gallagher, addressed to them, and dated the Closing Date, from outside counsel to the Company, xxxx xxxxxxt tx xxx xxx incorporation, due authorization, validity of the Preferred Shares, securities act exemption and the valid and binding nature of this Agreement, the Registration Rights Agreement and the Certificates of Designation; (i) The Company in form shall not have entered into any agreement or become bound by the terms of any instrument or security which would prevent the Company from paying cash dividends on the Series G Preferred Stock on a current basis; and (j) There shall not have occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and substance reasonably satisfactory its Subsidiaries taken as a whole (including Concentric if the Merger is consummated); provided, however, that no material adverse effect shall be deemed to have occurred hereunder to the Purchasers extent such occurrence arises solely out of any event, circumstances, condition, fact, effect, or other matter with respect to completion the consummation of corporate action the Merger or the failure of the Merger to be consummated, the failure to obtain shareholder approval of the Merger or the termination of the Merger Agreement, or (y) on the ability of the Company and enforceabilitysuch Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions.

Conditions to Obligations of the Purchasers. The obligations of ------------------------------------------- the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights ------------------- Agreement"), and the Registration Rights Agreement shall be in full force and --------- effect; (e) The Company shall have executed and delivered a Termination Agreement in the form of Exhibit 5.2(e) hereto (the "Termination Agreement"), --------------------- and the Termination Agreement shall be in full force and effect; (f) The Purchasers Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Company Certificates of Designation shall have executed a registration rights agreement substantially be in the form attached hereto as Exhibit Afull force and effect; (g) The Purchasers, the PCP Entities and Penske Conversion Shares shall have executed a stockholders agreement substantially in been duly authorized and reserved for issuance and such Conversion Shares shall have been approved for listing on the form agreed prior NMS, subject to the date hereof (the “Stockholders Agreement”)official notice of issuance; (h) The PurchasersPurchasers shall have received an opinion from (i) the General Counsel of the Company, with respect to good standing, non-contravention and the capitalization of the Company and (ii) Xxxxx & Xxxxxxx L.L.P., outside counsel to the other parties thereto shall have executed a termination Company, with respect to the due incorporation, due authorization, validity of the Second Amended New Preferred Shares, Securities Act of 1933 exemption and Restated Stockholders the valid and binding nature of this Agreement, the Termination Agreement substantially and the Registration Rights Agreement, in the form agreed prior to the date hereof; andof Exhibit 5.2(h)(i) and Exhibit 5.2(h)(ii), respectively; (i) The Purchasers shall have received an opinionopinion from Xxxxxxx Xxxx & Xxxxxxxxx, addressed to them, and dated the Closing Date, from outside counsel to the Company, in the form of Exhibit 5.2(i) hereto; (j) There shall not have occurred any event, circumstances, condition, fact, effect or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company in form and substance reasonably satisfactory its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform any material obligation under this Agreement or to consummate the Purchasers with respect to completion of corporate action and enforceabilitytransactions contemplated hereby.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are affected by agreement to or consummation of any of the pending transactions listed on Schedule 4.1 or made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske Company shall have executed entered into a stockholders binding agreement substantially to acquire all of the equity interest it does not currently own in Internext, LLC, and the form agreed prior terms of such agreement shall be consistent with the term sheet previously delivered to the date hereof (the “Stockholders Agreement”)Purchasers; (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion of Willkie Farr & Gallagher, addressed to them, and dated the Closing Date, from outside counsel to the Company, witx xxxxxxx xx thx xxx xxxorporation, due authorization, validity of the Preferred Shares, securities act exemption and the valid and binding nature of this Agreement, the Registration Rights Agreement and the Certificates of Designation; (i) The Company shall not have entered into any agreement or become bound by the terms of any instrument or security, including without limitation, the Senior Credit Facility, which would prevent the Company from paying cash dividends on the Series C Preferred Stock on a current basis; and (j) There shall not have occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (ii) any material disruption of or material adverse change in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityfinancial, banking or capital market conditions.

Conditions to Obligations of the Purchasers. The obligations of ------------------------------------------- the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights ------------------- Agreement"), and the Registration Rights Agreement shall be in full force and --------- effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion reasonably acceptable to the Purchasers from (i) the General Counsel of the Company, addressed with respect to themgood standing, non-contravention and dated the Closing Datecapitalization of the Company and (ii) Xxxxx & Xxxxxxx L.L.P., from outside counsel to the Company in form and substance reasonably satisfactory to the Purchasers Company, with respect to completion the due incorporation, due authorization, validity of corporate action the Preferred Shares, securities act exemption and enforceabilitythe valid and binding nature of this Agreement and the Registration Rights Agreement; and (h) There shall not have occurred any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform any material obligation under this Agreement or to consummate the transactions contemplated hereby.

Conditions to Obligations of the Purchasers. (a) The obligations of ------------------------------------------- the Purchasers to consummate the Purchase shall be subject to the fulfillment on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired be subject to the fulfillment at or been terminated by prior to the Federal Trade Commission and the Antitrust Division First Closing Date of the United States Department of Justice.following additional conditions: (ci) Each of The Company shall have performed in all material respects all obligations required to be performed by it under this Agreement at or prior to the Closing Dates, and the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects (if not qualified by materiality) and true and correct (if so qualified) on and as of the date of this Agreement and at and as of the Closing Dates (as modified by the matters or circumstances reflected in the Updated Schedules, if any, provided by the Company to the Purchasers in accordance with Section 6.4 hereof) as if made at and as of each Closing Date, except to the extent that any such representations and warranties are made as of a particular date, representation or warranty expressly relates to another date (in which case such representations and warranties shall have been true and correct in all material respects case, as of such date) and the Company Purchasers shall have delivered to received a certificate from the Purchasers a certificate, dated the Closing Date and Company signed by the Company an executive officer, to the effect set forth in this Section 5.1(c)such effect; (dii) The holders No action or proceeding shall be pending against the Company or the Purchasers before any court of Common Stock competent jurisdiction which action or proceeding has been brought by a Governmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, restrain, enjoin or restrict the consummation of the Company present in person or transactions contemplated by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closingthe other Transaction Documents; (fiii) All consents, approvals, authorizations and permits of, actions by, filings with or notifications to, Governmental Entities and third parties required in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been obtained, taken or made; (iv) The Purchasers and the Company shall have executed a registration rights agreement substantially received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Company, containing the opinions in the form attached hereto as Exhibit AB with such provisions concerning scope of --------- firm's inquiry, law covered by opinion, reliance by the firm, assumptions, definition of firm's "knowledge", qualifications, limitations and similar matters as shall be reasonably acceptable to the Company; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially in the form agreed prior and delivered to the date hereof (Purchasers the “Stockholders Investment Agreement”), and such Investment Agreement shall be in full force and effect; (hvi) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior delivered to the date hereofPurchasers the Co-Sale and Voting Agreement, and such Co-Sale and Voting Agreement shall be in full force and effect; and (ivii) The Purchasers Company shall have received an opinionreached agreement with other investors, addressed to themincluding Xxxx Xxxxxxxxx and Xxxx Xxxxxxxxxx, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory acceptable to the Purchasers to invest at least $3,000,000 in the securities of the Company on terms no more favorable than those of the Purchasers. (b) The obligations of the Purchasers to effect the transactions contemplated by this Agreement shall be subject to the fulfillment at or prior to the Second Closing Date of the following additional conditions: (i) No action or proceeding shall be pending against the Company or the Purchasers before any court of competent jurisdiction which action or proceeding has been brought by a Governmental Entity and which is reasonably likely to have a Material Adverse Effect or to prohibit, restrain, enjoin or restrict the consummation of the transactions contemplated by this Agreement or the other Transaction Documents; and (ii) All consents, approvals, authorizations and permits of, actions by, filings with respect to completion of corporate action or notifications to, Governmental Entities and enforceabilitythird parties required in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall have been obtained, taken or made.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (ai) No statute, rule or regulation or order of any court or administrative agency Governmental Authority shall be in effect which prohibits the consummation of the transactions to be consummated at Closingcontemplated hereby; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eii) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fiii) The Purchasers representations and warranties of the Company in Section 3 shall be true and correct in all material respects as of the date of Closing; (iv) The Company shall have executed a registration rights agreement substantially in and delivered to each of the form attached hereto as Exhibit APurchasers the Registration Rights Agreement; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially in obtained sufficient waivers of pre-emptive rights from all holders of capital stock who possess such rights so as to allow the form agreed prior to consummation of the date hereof (the “Stockholders transactions contemplated by this Agreement”); (hvi) The Purchasers, Amended Certificate shall have been duly filed with the Company Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the other parties thereto Amended Certificate shall be in full force and effect; (vii) Mayer, Brown, Xxxx & Maw LLP shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received delivered an opinion, addressed to them, and dated the Closing Date, from counsel to the Company opinion in form and substance reasonably satisfactory to Purchasers; (viii) The Company shall have delivered a good standing certificate for the Purchasers with respect Company (or a copy thereof) to completion each of the Purchasers; (ix) The Company shall have received all consents, authorizations, and approvals necessary to complete the transactions contemplated hereby, including, without limitation, the Required Consents; (x) The Company shall have delivered to each Purchaser a certificate of the Company, dated the date of the Closing and executed by the Chief Executive Officer of the Company, certifying as to the fulfillment of the conditions specified in Sections 6(a)(ii), (iii), (vi), (xii) and (xiii) of this Agreement; (xi) The Company shall have delivered to each Purchaser a certificate of the Company, dated the date of the Closing and executed by the Secretary of the Company, certifying: (a) the corporate action proceedings taken by the Company's Board of Directors and, if required, stockholders approving this Agreement and enforceabilitythe Registration Rights Agreement and the transactions contemplated hereby and thereby; (b) the Amended Certificate; and (c) the By-laws of the Company; (xii) No claim, action, cause of action, suit, litigation, arbitration, investigation, hearing, charge, complaint, demand, notice or proceeding to, from, by or before any Governmental Authority shall be pending or threatened wherein an unfavorable injunction, judgment, order, decree, ruling, or charge would (i) prevent consummation of any of the transactions contemplated by this Agreement or (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation (and no such injunction, judgment, order, decree, ruling, or charge shall be in effect); and (xiii) There shall not have occurred any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a Material Adverse Effect.

Conditions to Obligations of the Purchasers. The obligations obligation of the Purchasers to consummate the Purchase shall be Merger is subject to the fulfillment on satisfaction (or prior to the Closing of each waiver by any Purchaser) of the following additional conditions: (a) No statute, rule or regulation or order of any court or administrative agency The Company shall be in effect which prohibits the consummation have obtained all of the waivers, permits, consents, approvals or other authorizations, and effected all of the registrations, filings and notices, referred to in Section 8.2 which are required on the part of the Company or the Subsidiaries, except for any failure of which to obtain or effect would not, individually or in the aggregate, have a Material Adverse Effect on the ability of the parties to consummate the transactions to be consummated at Closingcontemplated by this Agreement; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained set forth in this Agreement shall be true and correct as of the date of this Agreement and shall be true and correct as of the Closing (as though made as of the Closing, except to the extent that any such representations representation and warranties are warranty is expressly made as of to a particular different date, in which case case, such representations and warranties shall have been be true and correct as of such date, and except to the extent that the inaccuracy of any such representation or warranty is the result of events or circumstances occurring subsequent to the date of this Agreement and any such inaccuracies, individually or in the aggregate, would not have a Material Adverse Effect on the ability of the parties to consummate the transactions contemplated by this Agreement; (c) the Company shall have performed or complied with in all material respects its agreements and covenants required to be performed or complied with under this Agreement as of such date) and the Company shall have delivered or prior to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Closing; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting and Seller shall have delivered the deliverables required under Section 2.6(a) and the Purchasers shall have received such other certificates and instruments (including certificates of good standing of the Company’s stockholders shall have authorized and approved ) as are required by this Agreement or as they may reasonably request in connection with the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).Closing; (e) The the Funded Indebtedness owed by the Company in to all material respects Affiliates of the Company shall have performed, satisfied and complied with each not exceed an aggregate of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at $250,000 upon Closing;; and (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinioncompleted their due diligence exercise to their satisfaction, addressed to themin their absolute and sole discretion, concerning the business and affairs and assets of the Company, and dated the Closing Date, from counsel Seller has agreed to the Company in form and substance make such changes to Seller's disclosure schedules as Purchaser may reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityrequest.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be transactions contemplated by this Agreement are subject to the fulfillment on or prior to waiver, at or before the Closing of each Date, of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency The representations and warranties made by the Company in this Agreement shall have been true when made and shall be in effect which prohibits the consummation true on and as of the transactions to be consummated at ClosingClosing Date as if made on and as of the Closing Date; (b) The waiting period required Company shall have performed all agreements to be performed by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by it under this Agreement shall have expired on or been terminated by before the Federal Trade Commission and the Antitrust Division of the United States Department of Justice.Closing Date; (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the The Company shall have delivered to the Purchasers a an officer’s certificate, dated the Closing Date and signed by the Company Date, certifying to the effect satisfaction of the conditions set forth in clauses (a) and (b) of this Section 5.1(c)4.1; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized executed and approved delivered a Registration Rights Agreement in the issuance and sale form of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon Exhibit D hereto (the “Company Stockholder ApprovalRegistration Rights Agreement”)., and the Registration Rights Agreement shall be in full force and effect; (e) The Company in all material respects shall have performed, satisfied filed Certificates of Designation in the form of Exhibits A and complied B (the “Certificates of Designation”) with each the Secretary of its covenants State of the State of Delaware in accordance with the laws of the State of Delaware and agreements set forth such Certificates of Designation shall be in this Agreement to be performed, satisfied full force and complied with prior to or at Closingeffect; (f) The Purchasers and the Company Shares shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities been duly authorized and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereofreserved for issuance; and (ig) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from opinions of one or more counsel to the Company Company, with respect to the matters set forth in Exhibit C, in form and substance reasonably satisfactory to the Purchasers. (h) The Purchasers shall have received copies of the summary minutes of the Special Committee and the Board of Directors approving and authorizing the execution, delivery and performance of this Agreement and the other Transaction Documents certified as of the Closing Date by their respective secretary or assistant secretary as being in full force and effect without modification or amendment. (i) The Company shall have made or obtained, as applicable, all consents, approval orders, authorizations, registrations, qualifications, designations, declarations, filings and consents of any Persons, in each case that are necessary in connection with respect the transactions contemplated by this Agreement and the other Transaction Documents, and each of the foregoing shall be in full force and effect and in form and substance reasonably satisfactory to completion the Purchasers. (j) At the Closing, the sale and issuance by the Company, and the purchase by the Purchasers, of corporate action the shares of Preferred Stock to be issued thereat and enforceabilitythe issuance by the Company of the Shares underlying the Convertible Preferred Stock shall be legally permitted by all applicable laws to which any Purchaser or the Company are subject, and there shall be no effective injunction, writ, preliminary restraining order or any order of any nature issued by any Governmental Authority directing that the transactions provided for herein or in any other Transaction Document not be consummated as provided herein and therein.

Conditions to Obligations of the Purchasers. Holding and the Company at Closing. The obligations of each Purchaser, Holding and the Purchasers Company to consummate the Purchase shall transactions contemplated hereby to be consummated at the Closing are subject to the fulfillment on satisfaction or waiver at or prior to the Closing Date of each of the following conditions: (a) No statute, rule no preliminary or regulation permanent injunction or order of other Order by any court or administrative agency shall be in effect Governmental Entity which prohibits prevents the consummation of the transactions contemplated hereby shall have been issued and remain in effect (each party agreeing to be consummated at Closinguse its reasonable best efforts to have any such injunction or Order lifted); (b) The waiting period required no statute, rule, regulation or other Law shall have been enacted by any Governmental Entity which would prevent or make illegal the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act consummation of 1976the transactions contemplated by this Agreement; (c) any Consents, as amended, applicable to Filings and Approvals that are necessary for the consummation of the transactions contemplated by this Agreement shall have expired been made or been terminated by obtained except where (i) the Federal Trade Commission Company's failure to make or obtain such Consents, Filings and Approvals would not have a Material Adverse Effect or a material adverse effect on the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in Company's ability to perform its obligations under this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular dateAgreement, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed provided that any failure by the Company to obtain any necessary or required consents fromany party to lawsuits or other proceedings which challenge the Company's rights to use its network easements, rights-of-way, franchises or licenses shall not be deemed a failure to satisfy this condition, or (ii) the failure of such Purchaser or Holding to obtain such Consents, Filings and Approvals would not have a material adverse effect set forth in on the ability of such Purchaser or Holding, as the case may be, to perform its obligations under this Section 5.1(c)Agreement; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders 's plan of reorganization shall have authorized and approved the issuance and sale of the Securities to the Purchasers been confirmed by the affirmative vote Bankruptcy Court on substantially the terms set forth in the Plan, and an unstayed order by such Bankruptcy Court approving the transactions contemplated by the Company's plan of a majority of reorganization on substantially the votes cast at such meetingterms set forth in the Plan, provided that the total votes cast shall have been entered, on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”).or before December 31, 2002; and (e) The Company in all material respects the other transactions contemplated by the Plan to occur on the Effective Date (including, without limitation, the cancellation of the Notes and the Company's existing equity securities and the issuance of the New Common Stock) shall have performed, satisfied been consummated substantially concurrently with the sale and complied with each of its covenants and agreements purchases under this Agreement on substantially the terms set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityPlan.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are affected by agreement to or consummation of any of the pending transactions listed on Schedule 4.1 or made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered the Amended and Restated Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske Company shall have executed a stockholders agreement substantially acquired all of the outstanding equity interests in Internext, LLC on the terms set forth in the form agreed prior to the date hereof (the “Stockholders Merger Agreement”);. (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion of Xxxxxxx Xxxx & Xxxxxxxxx, addressed to them, and dated the Closing Date, from outside counsel to the Company in form and substance reasonably satisfactory to the Purchasers Company, with respect to completion the due incorporation, due authorization, validity of corporate action the Preferred Shares, securities act exemption and enforceabilitythe valid and binding nature of this Agreement, the Registration Rights Agreement and the Certificates of Designation; (i) The Company shall not have entered into any agreement or become bound by the terms of any instrument or security which would prevent the Company from paying cash dividends on the Series G Preferred Stock on a current basis; and (j) There shall not have occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole (including Concentric if the Merger is consummated); provided, however, that no material adverse effect shall be deemed to have occurred hereunder to the extent such occurrence arises solely out of any event, circumstances, condition, fact, effect, or other matter with respect to the consummation of the Merger or the failure of the Merger to be consummated, the failure to obtain shareholder approval of the Merger or the termination of the Merger Agreement, or (y) on the ability of the Company and such Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate Purchase the Purchase shall be Purchased Assets (other than the Regulated Assets) are subject to the satisfaction or fulfillment on at or prior to the First Closing of each of the following conditions, any of which may be waived in whole or in part by the Purchasers in writing: (ai) No statute, rule The Seller Companies shall have provided the Purchasers with reasonable evidence that the number or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation Adjusted Customer Access Lines as of the transactions First Closing is equal to be consummated at Closing; or greater than the product of (bi) The waiting period required by the HxxxNovember Access Line Count and (ii) seventy-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justicefive percent (75%). (cii) Each of the representations and warranties of made by the Company Seller Companies contained in this Agreement and the Management Agreement (A) that are not qualified as to "materiality" shall be true and correct in all material respects as of the First Closing Date and (B) that are qualified as to "materiality" shall be true and correct in all respects as of the First Closing Date, except to the extent such representations and warranties are made as of a particular expressly stated to be limited to another date, in which case such representations and warranties shall have been be true and correct in all material respects or true and correct in all respects, as the case may be, as of that date, except to the extent that any such representation and warranty is not true and correct in all material respects or in all respects, as the case may be on the First Closing Date, or such other specified date) , solely as a result of acts or omissions by FDN or its Affiliates in connection with their management of the Business and the Company Purchased Assets under the Management Agreement. (iii) The Seller Companies shall have performed and complied in all material respects with all the covenants and agreements required by this Agreement and each Operative Agreement to be performed or complied by them at or prior to the First Closing. (iv) There shall be in effect no Law making illegal or otherwise prohibiting or restraining the consummation of the material transactions contemplated by this Agreement and no suit, action or other proceeding, or injunction or final judgment relating thereto, shall be threatened or be pending before any court, arbitrator or governmental or regulatory official, body or authority in which it is sought to restrain or prohibit the consummation of the material transactions contemplated hereby or to obtain damages or other relief in connection with this Agreement or any Operative Agreement or the consummation of the transactions contemplated hereby or thereby and no investigation that might result in any such suit, action or proceeding shall be pending or threatened. (v) Since September 30, 2002, no event shall have occurred which has had or could reasonably be expected to have a Material Adverse Effect. (vi) The Seller Companies shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock all of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized certificates, instruments and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement other documents required to be performed, satisfied and complied with prior to delivered by them at or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”First Closing pursuant to Section 3.1(b); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.

Conditions to Obligations of the Purchasers. The obligations obligation of the Purchasers each Purchaser to consummate the Purchase transactions contemplated hereunder shall be subject to the fulfillment on or prior to the Closing satisfaction of each of the following conditionsconditions unless waived by the Purchasers in writing: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties made by each of the Company contained in this Agreement Sellers herein shall be true and correct when made, and shall be true and correct as of the Closing (except to with the extent same force and effect as though made at the Closing. The Sellers shall notify the Purchasers in writing of any inaccuracy in such representations and warranties are made as which may arise between the date of a particular datethis Agreement and the Closing. (b) All covenants, agreements and conditions contained in which case such representations and warranties this Agreement to be performed or complied with at or prior to the Closing shall have been true and correct performed or complied with in all material respects as respects. (c) Each of such date) and the Company Sellers shall have duly executed and delivered a letter (a copy of which is delivered herewith) acknowledging certain matters disclosed by the Purchasers to the Purchasers a certificate, dated Sellers in connection with the Closing Date purchase and signed by sale of the Company to the effect set forth in this Section 5.1(c);Shares. (d) The holders lawsuit naming the Purchasers as defendants (CA No. 97-22(RRM), in the United States District Court for the District of Common Stock of Delaware (the Company present in person or by proxy at a duly called meeting of the Company’s stockholders "Court"), shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)been dismissed with prejudice. (e) The Company in all material respects Court shall have performed, satisfied and complied with each approved the settlement of its covenants and agreements set forth the derivative claims made in this Agreement the lawsuit referred to be performed, satisfied and complied with prior to or at Closing;in subsection (d) above. (f) The Purchasers and the Company No action, proceeding or order by any court or governmental body or agency shall have executed a registration rights agreement substantially been threatened in writing, asserted, instituted or entered to restrain or prohibit the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination carrying out of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilitytransactions contemplated by this Agreement.

Conditions to Obligations of the Purchasers. The obligations of the ------------------------------------------- Purchasers to consummate pay the Aggregate Purchase Price and to perform the other covenants and obligations to be performed by the Purchasers on the Closing Date shall be subject to the fulfillment on or prior to the Closing of each satisfaction of the following conditions:conditions (all or any of which may be waived, in whole or in part, by the Purchasers): (a) No statuteThe representations and warranties made by the Trust and the Company herein shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of the Closing Date; provided, rule or regulation or order however, that a failure of any court representations or administrative agency warranties to be true and correct in all material respects shall be in not give rise to a claim or right of termination by the Purchasers hereunder so long as such matters do not have a material adverse effect which prohibits the consummation of on the transactions to be consummated at Closing;contemplated herein. (b) The waiting period Trust and the Company shall have executed and delivered to the Purchasers all of the items and documents provided herein for said delivery. (c) The Trust and the Company shall have performed all covenants and obligations undertaken by the Trust and the Company herein in all material respects and materially complied with all conditions required by this Agreement to be performed or complied with by them on or before the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Closing Date. (d) The Trust shall have been taxed as a real estate investment trust in its most recent federal income tax return, shall be in compliance with all applicable laws, rules and regulations, including the Code, necessary to permit it to be so taxed and the statements set forth in subsection (i), (ii) and (iii) of 1976Section 3.22 shall be true and correct through the Closing Date. The Trust shall not have taken any action or have failed to take any action which could be expected to, as amendedalone or in conjunction with any other factors, applicable to result in the loss of its (or following the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular dateTransaction Documents, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of 's) status as a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)real estate investment trust for federal income tax purposes. (e) The Company in all material respects shall have performedExcept those actions contemplated by the Transaction Documents, satisfied and complied with each including, but not limited to, the consummation of its covenants and agreements set forth in any agreement listed on Schedule 3.23, from the date of this Agreement through the Closing Date, there ------------- shall not have occurred any changes concerning the Trust or the Company that, when combined with all other changes, have had or would reasonably be expected likely to be performed, satisfied and complied with prior to have a material adverse effect on the Trust or at Closing;the Company. (f) The Purchasers charter and by-laws of the Company in effect immediately prior to the Closing shall have executed a registration rights agreement be substantially in the form charter and by-laws attached hereto as Exhibit A; (g) The PurchasersD and Exhibit E, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.respectively . --------- ---------

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are affected by agreement to or consummation of any of the pending transactions listed on Schedule 4.1 or made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske Company shall have executed entered into a stockholders binding agreement substantially to acquire all of the equity interest it does not currently own in Internext, LLC, and the form agreed prior terms of such agreement shall be consistent with the term sheet previously delivered to the date hereof (the “Stockholders Agreement”)Purchasers; (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion of Xxxxxxx Xxxx & Xxxxxxxxx, addressed to them, and dated the Closing Date, from outside counsel to the Company in form and substance reasonably satisfactory to the Purchasers Company, with respect to completion the due incorporation, due authorization, validity of corporate action the Preferred Shares, securities act exemption and enforceabilitythe valid and binding nature of this Agreement, the Registration Rights Agreement and the Certificates of Designation; (i) The Company shall not have entered into any agreement or become bound by the terms of any instrument or security, including without limitation, the Senior Credit Facility, which would prevent the Company from paying cash dividends on the Series C Preferred Stock on a current basis; and (j) There shall not have occurred (i) any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company and its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform on a timely basis any material obligation under this Agreement or to consummate the transactions contemplated hereby; or (ii) any material disruption of or material adverse change in financial, banking or capital market conditions.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated by this Agreement shall be subject to the fulfillment on or the Purchasers’ waiver, at or prior to the Closing Closing, of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of Other than the representations and warranties of the Company Seller and FTRK contained in Section 3.01, Section 3.02, Section 3.03, Section 3.05, and Section 3.17, the representations and warranties of the Seller and FTRK contained in this Agreement and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except to the extent such those representations and warranties are made that address matters only as of a particular specified date, the accuracy of which shall be determined as of that specified date in which case such all respects). The representations and warranties of the Seller and FTRK contained in Section 3.01, Section 3.02, Section 3.03, Section 3.05, and Section 3.17 shall have been be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall be determined as of that specified date in all respects). (b) The Seller and FTRK shall have duly performed and complied in all material respects with all agreements, covenants, and conditions required by this Agreement to be performed or complied with by it prior to or on the Company Closing Date; provided, that, with respect to agreements, covenants, and conditions that are qualified by materiality, the Seller and FTRK, as applicable, shall have performed such agreements, covenants, and conditions, as so qualified, in all respects. (c) No Action shall have been commenced against the Purchasers, the Seller, or FTRK, that would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby. (d) From the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that, individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect. (e) The Purchasers shall have received resignations of the directors and officers of FTRK pursuant to Section 5.05 hereof, which shall be dated as of the Closing Date. (f) FTRK shall have delivered to the Purchasers a stamped Certificate of Incorporation from the Secretary of State of the State of Nevada. (g) The Seller shall have delivered, or caused to be delivered, (i) to the Purchasers a copy of the duly executed irrevocable stock power sent to the Transfer Agent (or other instrument of transfer satisfactory to the Transfer Agent to effect the transfer of the Shares), and (ii) to the Transfer Agent such instructions and other documentation satisfactory to the Transfer Agent to effect the transfer of the Shares in book-entry form. (h) The Purchasers shall have received a (i) certificate, dated as of the Closing Date and signed by a duly authorized officer of the Seller, that each of the conditions with respect to the Seller and as set forth in Section 7.02(a) and Section 7.02(b) have been satisfied and (ii) certificate dated the Closing Date and signed by a duly authorized officer of FTRK, that each of the Company conditions with respect to the effect FTRK and as set forth in this Section 5.1(c); (d7.02(a) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall and Section 7.02(b) have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”)been satisfied. (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received (i) a certificate of the Secretary or an opinionAssistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the management and/or members of the Seller authorizing the execution, addressed to themdelivery, and dated performance of this Agreement and the Closing Dateconsummation of the transactions contemplated hereby, from counsel and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby, and (ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying that attached thereto are true and complete copies of all resolutions adopted by the board of directors of FTRK authorizing the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby. (j) The Purchasers shall have received a (i) certificate of the Secretary or an Assistant Secretary (or equivalent officer) of the Seller certifying the names and signatures of the Persons of the Seller authorized to sign this Agreement and the Company in form other documents to be delivered hereunder and substance reasonably satisfactory (ii) a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of FTRK certifying the names and signatures of the officers of FTRK authorized to sign this Agreement and the other documents to be delivered hereunder. (k) The Seller and FTRK shall have delivered to the Purchasers with respect such other documents or instruments as the Purchasers reasonably requests and are reasonably necessary to completion of corporate action and enforceabilityconsummate the transactions contemplated by this Agreement.

Conditions to Obligations of the Purchasers. The obligations of each of the Purchasers to consummate the Purchase fulfill its obligations under Section 2.1 hereof shall be subject to the fulfillment on satisfaction or waiver prior to the Closing of each of the following conditions: : (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as if made on the Closing Date (except or on the date when made in the case of any representation or warranty which specifically relates to an earlier date); the Company shall have performed, in all material respects, each of its covenants and agreements contained in this Agreement to be performed prior to the extent such Closing; and the Placement Agent shall have received a certificate signed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated the Closing Date, to the foregoing effect. (b) Each of the representations and warranties are made as of a particular date, the Selling Shareholders contained in which case such representations the Exchange and warranties Redemption Agreement shall have been be true and correct in all material respects as of the date of such agreement and as of the Closing Date as if made on the Closing Date (or on the date when made in the case of any representation or warranty which specifically relates to an earlier date) ); the Selling Shareholders shall have performed, in all material respects, each of their covenants and agreements contained in the Exchange and Redemption Agreement to be performed prior to the Closing; and the Company shall have delivered to the Purchasers received a certificate, dated the Closing Date and certificate signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders principal executive officer of Common Stock each of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meetingSelling Shareholders, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceabilityforegoing effect.

Conditions to Obligations of the Purchasers. The All obligations of the Purchasers hereunder to consummate be performed on the Purchase Closing Date are subject to, and conditioned upon, the fulfillment of each of the following conditions on or before the Closing Date unless waived in writing by the Seller in its sole discretion: (a) The representations and warranties of the Seller as set forth in this Agreement shall be subject true, correct and complete on the Closing Date with the same force and effect as if made at and as of such date; (b) The Seller shall have delivered to the fulfillment Escrow Agent the duly endorsed Certificates and the Transfer Forms, and the duly executed Credit Transfer Notice; (c) The Purchasers shall have received any and all consents, approvals or authorizations (governmental or otherwise) and make any declaration or filing with any governmental authority, or any other person, firm, corporation or other entity in connection with the execution or delivery of this Agreement or the consummation of the transactions contemplated hereby; (d) The Seller shall have performed or complied with all of the terms, covenants and conditions of this Agreement to be performed or complied with by the Seller on or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at ClosingDate; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects Seller shall have performed, satisfied and complied paid in full its share of the Escrow Fee (as defined in the Escrow Agreement) in accordance with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing;the Escrow Agreement; and (f) The Purchasers and the Company Seller shall have executed a registration rights agreement substantially in the form attached hereto following documents: i. Escrow Agreement as shown on Exhibit A; (g) The Purchasers, the PCP Entities B; ii. Credit Transfer Notice as shown on Exhibit D; and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders iii. Confidentiality Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.as shown on Exhibit E.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers each Purchaser to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of Ciba and the Company Sellers contained in this Agreement shall be true and correct in all material respects when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c); (db) The holders Each of Common Stock of Ciba and the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects Sellers shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fc) Each of Ciba and the Sellers shall have delivered to each Purchaser an officer's certificate certifying as to Ciba and such Seller's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The transactions contemplated by the Hexcel Agreement shall be consummated simultaneously with the transactions contemplated hereby and the Purchasers and the Company shall have executed a and delivered the governance agreement in the form of Exhibit B hereto (the "Governance Agreement"), the registration rights agreement in the form of Exhibit C hereto (the "Registration Rights Agreement"), and all other agreements, documents and instruments required to be delivered in connection therewith; (e) Each Purchaser and Ciba shall have executed and delivered a Pledge Agreement in the form of Exhibit D hereto (the "Pledge Agreement"); (f) Such Purchaser shall have received the opinions substantially in the form attached hereto as set forth on Exhibit AE from either Cravath, Swaine & Moore, John J . McGraw, Esq. or Switzerland counsel for Ciba and xxx Xxxxxxx; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers Majority Lenders (as defined in the Credit Agreement) shall have received executed an opinionagreement, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect Purchasers, consenting to completion the transactions contemplated hereby and (ii) the agreements, each dated as of corporate action the date hereof, from the Company's employees set forth on Exhibit F hereto shall be in full force and enforceabilityeffect as of the Closing; (i) Mr. John J. Lee's employment agreement attached hereto as Exhibit X xxx xxx xxxxx agreements contemplated thereby shall be in full force and effect as of the Closing; (j) The Consent and Termination Agreement in the form attached as Exhibit H (the "Consent and Termination Agreement") shall have been executed and delivered by Ciba and the Company and the Indenture shall have been amended in the manner set forth in Section 3.02 of the Consent and Termination Agreement; and (k) Neither the Company nor any of its subsidiaries shall have suffered any change, event, or development or series of changes, events or developments which individually or in the aggregate has had or would reasonably be expected to have a Material Adverse Effect.

Conditions to Obligations of the Purchasers. The respective obligations of each Purchaser hereunder in connection with the Purchasers to consummate the Purchase shall be Closing are subject to the fulfillment on or prior to the Closing of each of the following conditionsconditions being met: (ai) No statute, rule or regulation or order of any court or administrative agency shall be the accuracy in effect which prohibits all respects on the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each Closing Date of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing herein (except to the extent such representations and or warranties are made as of a particular date, in which case such representations by their terms qualified by materiality or Material Adverse Effect) and warranties shall have been true and correct in all material respects as of such datethose representations and warranties not so qualified; (ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed or waived; (iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement; (iv) the Company shall have delivered to The Bank of New York, as Collateral Agent under the Purchasers Security Agreement, appropriate financing statements on Form UCC-1 in form for filing under the Uniform Commercial Code or other applicable local law of each jurisdiction in which the filing of a certificatefinancing statement or giving of notice may be required, dated the Closing Date and signed or reasonably requested by the Company Collateral Agent, to perfect the effect set forth in this Section 5.1(c)security interests intended to be created by the Security Agreement; (dv) The holders of Common Stock of Xxxxxx & Xxxxxxx, LLC shall have surrendered to the Company present in person or by proxy at a duly called meeting of for cancellation the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meetingOutstanding Xxxxxx Warrants, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially issued to Xxxxxx & Xxxxxxx LLC or its assignee new warrants to purchase 71,429 shares of Common Stock at an exercise price of $7.00 per share; and (vi) the issuance of the Letter of Credit (subject to escrow arrangements to be released by the L/C Bank upon confirmation of receipt by the L/C Bank of the funds referred to in paragraph 6 of the form Escrow Account (vii) Disbursement Instructions attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”K); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.

Conditions to Obligations of the Purchasers. (a) The obligations obligation ------------------------------------------- of the Purchasers to consummate the Purchase transactions contemplated hereunder shall be subject to the fulfillment on satisfaction or waiver by the Purchasers at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (ci) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct (disregarding for this purpose all references in such representations and warranties to any materiality and Material Adverse Effect qualifications) as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c);Material Adverse Effect, (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eii) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (fiii) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (i) and (ii) of this Section 5.2; (iv) The Designated Shareholders and the Company shall have executed a registration rights agreement substantially entered into Management Stockholders Agreements in the form attached hereto as of Exhibit A5.2(iv) (the "Shareholders Agreements"), with each of Xxxx X. Xxxxxx, ----------------------- Xxxxxx X. Xxxxxxx, Xxxxx Xxxx, Xxxxxx X. Xxxxxxxx, Xxxx X. Xxx and Xxxxxx X. Xxxxxxx and the Shareholders Agreements shall be in full force and effect; (gv) The Purchasers, the PCP Entities and Penske Company shall have executed and delivered a stockholders agreement substantially Registration Rights Agreement in the form agreed prior of Exhibit 5.2(v) (the "Registration Rights Agreement"), and the Registration Rights Agreement ----------------------------- shall be in full force and effect; (vi) The Certificate of Designation shall have been duly filed with the Secretary of State of the State of Delaware and shall be in full force and effect; (vii) The Shares initially issuable upon conversion or exercise, as the case may be, of the Preferred Stock and Warrants shall have been duly authorized and reserved for issuance and such Shares shall have been listed on the NASDAQ, subject to official notice of issuance; (viii) The Purchaser shall have received at the Closing an opinion of the E*Law Group, outside counsel to the date hereof (Company, in the “Stockholders Agreement”form of Exhibit 5.2(viii); (hix) The PurchasersThere shall not have occurred since September 30, the Company and the other parties thereto shall have executed 1999 any change or development or series of changes or developments (including without limitation as a termination result of the Second Amended and Restated Stockholders Agreement substantially any change in the form agreed prior Law) which has resulted in or could reasonably be expected to result individually or in the date hereofaggregate in a Material Adverse Effect; and (x) The Board of Directors shall have amended the by-laws of the Company to provide that (i) The Purchasers the Board of Directors consists of eight directors, one of whom shall have received an opinionbe the Preferred Designee and (ii) the provisions of the Certificate of Designation, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to extent inconsistent with the Purchasers with respect to completion of corporate action and enforceabilityby-laws, shall be expressly controlling.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Certificates of Designation shall be in full force and effect; (f) The Purchasers and Shares issuable upon conversion of the Company Preferred Shares shall have executed a registration rights agreement substantially in been duly authorized and reserved for issuance and such Shares shall have been approved for listing on the form attached hereto as Exhibit ANMS, subject to official notice of issuance; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinionopinion reasonably acceptable to the Purchasers from (i) the General Counsel of the Company, addressed with respect to themgood standing, non-contravention and dated the Closing Datecapitalization of the Company and (ii) Hogan & Hartson L.L.P., from outside counsel to the Company, with xxxxxct xx xxx due incorporation, due authorization, validity of the Preferred Shares, securities act exemption and the valid and binding nature of this Agreement and the Registration Rights Agreement; and (h) There shall not have occurred any event, circumstances, condition, fact, effect, or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company in form and substance reasonably satisfactory its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform any material obligation under this Agreement or to consummate the Purchasers with respect to completion of corporate action and enforceabilitytransactions contemplated hereby.

Conditions to Obligations of the Purchasers. The obligations obligation of each Purchaser to purchase the Purchasers Series C Shares and the Warrants to consummate be purchased by such Purchaser at the Purchase Closing in accordance with Section 3.2 shall be subject to the fulfillment satisfaction or waiver by such Purchaser of the following conditions precedent on or prior to the Closing of each of the following conditionsDate: (a) No statute, rule or regulation or order the Series C Preferred Stock Certificate of any court or administrative agency Designation shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect which prohibits the consummation of the transactions to be consummated at Closingand shall not have been modified in any manner; (b) The waiting period required as of the Closing Date there shall be an absence of (i) any general suspension of trading in, or limitation on prices for securities on any national securities or bulletin board exchange or over-the-counter market, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks or any material limitation (whether or not mandatory) on the extension of credit by lending institutions in the United States, or (iii) the commencement or escalation of a war or material armed hostilities or other international or national calamity involving the United States and having an adverse effect on the functioning of the financial markets in the United States; (c) the representations and warranties made by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Company in Article IV hereof shall be true and correct in all respects to the extent they are qualified by materiality or Material Adverse Effect, and to the extent not so qualified shall be true and correct in all material respects; (d) the Company shall have paid the Closing Fee and the Purchaser Expenses to such Purchaser, in each case as contemplated under Section 10.5 of 1976this Agreement; (e) the authorization and issuance of the Series C Shares, the Warrants, the Conversion Shares and the Warrant Shares will not prevent the Company from listing the Common Stock on AMEX; (f) the Company shall have received all consents and approvals, including Board of Director, stockholder, Governmental Agency and third party consents or approvals, that are required to be obtained in connection with the transactions contemplated under this Agreement and the Related Documents, including the issuance of the Securities in accordance with the terms of this Agreement and the Related Documents; (g) one individual designated by the Purchasers holding a majority of the number of shares of Underlying Common Stock (the “Requisite Purchasers”) as amendedcontemplated by Section 8.6 (the “Series C Director”) shall have been duly nominated and elected to serve as a member of the Board of Directors, applicable effective as of the Closing Date; (h) since March 31, 2005, no Material Adverse Effect shall have occurred; (i) such Purchaser shall have received evidence satisfactory to such Purchaser that the Company has satisfied in full all of its obligations under the Subordinated Notes and the Subordinated Notes shall no longer be issued or outstanding; (j) the Company shall have satisfied the listing requirements of Sections 101(c), 102, 121, 123, 130, 802, 803, 804 and 807 of the AMEX Company Guide; (k) no stop order or suspension of trading shall have been imposed by the SEC or any other governmental regulatory body with respect to public trading in the Common Stock on the pink sheets; (l) the following documents and items shall have been delivered to such Purchaser at or prior to the Closing: (i) fully executed and delivered Warrants providing for the purchase upon exercise thereof of the Warrant Shares satisfactory in form and substance to such Purchaser, which Warrants shall be in full force and effect on the Closing Date without further amendment or modification thereto; (ii) the written opinion of Dxxxxx & Whitney LLP, counsel to the Company, dated as of the Closing Date and satisfactory in form and substance to the Purchasers; (iii) a counterpart of the Amended and Restated Investor Rights Agreement duly executed and delivered by the Company and each Person required to amend and restate the Amended and Restated Investor Rights Agreement, and the Amended and Restate Investor Rights Agreement shall be in full force and effect; (iv) certificates evidencing ownership of the Series C Shares, duly executed and delivered by the Company; (v) a certificate of a duly authorized officer of the Company dated as of the Closing Date certifying that (A) the closing conditions described in Sections 7.1(a), (b), (c), (e), (f), (g), (h), (j) and (k) have been satisfied and (B) the resolutions of the Board of Directors attached thereto (which resolutions shall have, among other things, (x) authorized all of the transactions contemplated by this Agreement and the Related Documents, approved the Related Documents (including the filing of the Series C Preferred Stock Certificate of Designation and the issuance of the Securities) and (y) duly nominated and elected the Series C Director to the Board of Directors effective as of the Closing Date; (vi) fully executed consent of the holders of the Series B Shares to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division Related Documents and the waiver of any pre-emptive or anti-dilution rights such Persons may have in respect of the United States Department of Justice.transactions contemplated by this Agreement and the Related Documents; (cvii) Each of a fully executed amendment to the representations Rights Plan satisfactory in form and warranties of the Company contained in this Agreement substance to such Purchaser, which amendment shall be true in full force and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the Company shall have delivered to the Purchasers a certificate, dated effect on the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)without further amendment or modification thereto; (dviii) The holders of Common Stock fully executed copies of the Company present Lock-Up Agreements required by Section 8.8 and such Lock-Up Agreements shall be in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized full force and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (e) The Company in all material respects shall have performed, satisfied and complied with each of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closing; (f) The Purchasers and the Company shall have executed a registration rights agreement substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereofeffect; and (iix) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel such other documents relating to the Company in form and substance reasonably satisfactory to transactions contemplated hereby as the Purchasers with respect to completion of corporate action and enforceabilitymay reasonably request.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase transactions contemplated hereby shall be subject to the fulfillment on satisfaction or waiver at or prior to the Closing of each of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency shall be in effect which prohibits the consummation of the transactions to be consummated at Closing; (b) The waiting period required by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by this Agreement shall have expired or been terminated by the Federal Trade Commission and the Antitrust Division of the United States Department of Justice. (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct when made and as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) ), except for failures to be true and correct which individually or in the Company shall aggregate would not reasonably be expected to have delivered to the Purchasers a certificate, dated the Closing Date and signed by the Company to the effect set forth in this Section 5.1(c)Material Adverse Effect; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized and approved the issuance and sale of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon (the “Company Stockholder Approval”). (eb) The Company in all material respects shall have performed, satisfied and complied in all material respects with each all of its covenants and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at the Closing; (c) The Company shall have delivered to the Purchasers an officer's certificate certifying as to the Company's compliance with the conditions set forth in clauses (a) and (b) of this Section 5.2; (d) The Company shall have executed and delivered a Registration Rights Agreement in the form of Exhibit 5.2(d) hereto (the "Registration Rights Agreement"), and the Registration Rights Agreement shall be in full force and effect; (e) The Company shall have executed and delivered a Termination Agreement in the form of Exhibit 5.2(e) hereto (the "Termination Agreement"), and the Termination Agreement shall be in full force and effect; (f) The Purchasers Certificates of Designation shall have been duly filed with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and the Company Certificates of Designation shall have executed a registration rights agreement substantially be in the form attached hereto as Exhibit Afull force and effect; (g) The Purchasers, the PCP Entities and Penske Conversion Shares shall have executed a stockholders agreement substantially in been duly authorized and reserved for issuance and such Conversion Shares shall have been approved for listing on the form agreed prior NMS, subject to the date hereof (the “Stockholders Agreement”)official notice of issuance; (h) The PurchasersPurchasers shall have received an opinion from (i) the General Counsel of the Company, with respect to good standing, non-contravention and the capitalization of the Company and (ii) Hogan & Hartson L.L.P., outside counsel to the other parties thereto shall have executed a termination Company, xxxx resxxxx xx the due incorporation, due authorization, validity of the Second Amended New Preferred Shares, Securities Act of 1933 exemption and Restated Stockholders the valid and binding nature of this Agreement, the Termination Agreement substantially and the Registration Rights Agreement, in the form agreed prior to the date hereof; andof Exhibit 5.2(h)(i) and Exhibit 5.2(h)(ii), respectively; (i) The Purchasers shall have received an opinionopinion from Willkie Farr & Gallagher, addressed to them, and dated the Closing Date, from outside counsel to the Company, xx xxx xxxm ox Xxxxxxx 5.2(i) hereto; (j) There shall not have occurred any event, circumstances, condition, fact, effect or other matter which has had or would reasonably be expected to have a material adverse effect (x) on the business, assets, financial condition, prospects, or results of operations of the Company in form and substance reasonably satisfactory its Subsidiaries taken as a whole or (y) on the ability of the Company and such Subsidiaries to perform any material obligation under this Agreement or to consummate the Purchasers with respect to completion of corporate action and enforceabilitytransactions contemplated hereby.

Conditions to Obligations of the Purchasers. The obligations of the Purchasers to consummate the Purchase shall be transactions contemplated by this Agreement are subject to the fulfillment on or prior to waiver, at or before the Closing of each Date, of the following conditions: (a) No statute, rule or regulation or order of any court or administrative agency The representations and warranties made by the Company in this Agreement shall be in effect which prohibits the consummation true on and as of the transactions to be consummated at ClosingClosing Date as if made on and as of the Closing Date; (b) The waiting period required Company shall have performed all agreements to be performed by the Hxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, applicable to the consummation of the transactions contemplated by it under this Agreement shall have expired on or been terminated by before the Federal Trade Commission and the Antitrust Division of the United States Department of Justice.Closing Date; (c) Each of the representations and warranties of the Company contained in this Agreement shall be true and correct as of the Closing (except to the extent such representations and warranties are made as of a particular date, in which case such representations and warranties shall have been true and correct in all material respects as of such date) and the The Company shall have delivered to the Purchasers a an officer's certificate, dated the Closing Date and signed by the Company Date, certifying to the effect satisfaction of the conditions set forth in clauses (a) and (b) of this Section 5.1(c)4.1; (d) The holders of Common Stock of the Company present in person or by proxy at a duly called meeting of the Company’s stockholders shall have authorized executed and approved delivered a Registration Rights Agreement in the issuance and sale form of the Securities to the Purchasers by the affirmative vote of a majority of the votes cast at such meeting, provided that the total votes cast on the proposal represent at least 50% of the Common Stock entitled to vote thereon Exhibit 4.1(d) hereto (the “Company Stockholder Approval”"REGISTRATION RIGHTS AGREEMENT")., and the Registration Rights Agreement shall be in full force and effect; (e) The Company in all material respects shall have performed, satisfied shall have been duly filed a Certificate of Designation in the form of Exhibit 4.1(e) (the "CERTIFICATE OF DESIGNATION") with the Secretary of State of the State of Delaware in accordance with the laws of the State of Delaware and complied with each the Certificate of its covenants Designation shall be in full force and agreements set forth in this Agreement to be performed, satisfied and complied with prior to or at Closingeffect; (f) The Shares shall have been duly authorized and reserved for issuance; (g) The Purchasers shall have received an opinion of Xxxxxxx Xxxx & Xxxxxxxxx LLP, outside counsel to the Company, with respect to the due incorporation, due authorization, validity of the Convertible Preferred Stock, securities act exemption and the Company shall have executed a registration rights agreement valid and binding nature of this Agreement, the Registration Rights Agreement and the Certificate of Designation substantially in the form attached hereto as Exhibit A; (g) The Purchasers, the PCP Entities and Penske shall have executed a stockholders agreement substantially in the form agreed prior to the date hereof (the “Stockholders Agreement”4.1(g); (h) The Purchasers, the Company and the other parties thereto shall have executed a termination of the Second Amended and Restated Stockholders Agreement substantially in the form agreed prior to the date hereof; and (i) The Purchasers shall have received an opinion, addressed to them, and dated the Closing Date, from counsel to the Company in form and substance reasonably satisfactory to the Purchasers with respect to completion of corporate action and enforceability.