Common use of Mandatory Closing Date Clause in Contracts

Mandatory Closing Date. The obligation of Buyer hereunder to purchase the Mandatory Preferred Shares from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for Buyer's sole benefit and may be waived by Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the Company shall have complied with and satisfied all of the requirements of Section 1(c). (iii) the Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date shall have been delivered to Buyer. (iv) the Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and all of the shares of Common Stock that may be issuable as Conversion Shares or Warrant Shares shall be listed upon the Principal Market. (v) the representations and warranties of the Company shall be true and correct as of the date when made and as of the Mandatory Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date and except as such representations and warranties may no longer be true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained herein) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing Date. Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Buyer including, but not limited to, an update as of the Mandatory Closing Date regarding the representation contained in Section 3(c) above. (vi) Buyer shall have received the opinion of Xxxxx and Xxxxxxx L.L.P. dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to Buyer and in substantially the form of EXHIBIT D attached hereto. (vii) the Company shall have executed and delivered to Buyer the Preferred Stock Certificates (in such denominations as Buyer shall request) for the Mandatory Preferred Shares being purchased by Buyer at the Mandatory Closing. (viii) the Transaction Resolutions and the Ownership Limit Resolutions shall be in full force and effect and shall not have been amended as of the Mandatory Closing Date. (ix) as of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares. (x) the Company shall have delivered to Buyer a good standing certificate for the Company as certified by the Secretary of State of the State of Delaware dated no more than three (3) days before the Mandatory Closing Date. (xi) the Company shall have delivered to Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments thereto, each as in effect at the Mandatory Closing. (xii) the Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiii) the Company shall have delivered to Buyer such other documents relating to the transactions contemplated by this Agreement as Buyer or its counsel may reasonably request.

Mandatory Closing Date. The obligation of each Buyer hereunder to purchase the Mandatory Preferred Shares from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c). (iiiii) the The Certificate of Designations Determination, shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date California shall have been delivered to such Buyer. (iviii) the The Common Stock (x) shall be designated authorized for quotation on the Nasdaq National Market or listed on the Principal Market AMEX or NYSE, and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market such exchanges nor shall delisting or suspension by such Principal Market exchanges have been threatened (except as set forth in the letter to the Company dated February 8, 1999 from the Nasdaq Stock Market, Inc., provided that the Company has satisfied the requirements set forth in such letter) either (A) in writing by the SEC or the Principal Market such exchanges or (B) by falling below the minimum listing maintenance requirements of the Principal Market; such exchanges and all of the shares of Common Stock that may be issuable as Conversion Shares or and the Warrant Shares issuable upon conversion or exercise of the Mandatory Preferred Shares and the related Warrants, as the case may be, to be sold at the Mandatory Closing shall be listed upon the Principal Nasdaq National Market, AMEX or NYSE. (viv) the The representations and warranties of the Company shall be true and correct as of the date when made and as of the Mandatory Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date and except as such representations and warranties may no longer be true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained herein) and the Company shall have performed, satisfied and complied with the covenants, agreements and 27 conditions required by the Transaction Documents or the Certificate of Designations Determination to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing DateDates. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, but not limited towithout limitation, an update as of the Mandatory Closing Date regarding the representation contained in Section 3(c) above. (viv) Such Buyer shall have received the opinion of Xxxxx and Xxxxxxx L.L.P. dated Bakex & McKexxxx xxxed as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT D Exhibit C attached hereto. (viivi) the The Company shall have executed and delivered to such Buyer the Preferred Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Mandatory Preferred Shares being purchased by such Buyer at the Mandatory Closing. (viiivii) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions Company shall be in full force and effect have adopted, and shall not have been amended as of amended, the Mandatory Closing DateResolutions. (ixviii) as As of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred SharesShares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, including for such purposes the Mandatory Preferred Shares and the related Warrants to be issued at such Mandatory Closing. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent and shall be in effect as of the Mandatory Closing Date. (x) the The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing certificate for of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten (10) days of the Mandatory Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three (3) California within ten days before of the Mandatory Closing Date. (xi) the Company shall have delivered to Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments thereto, each as in effect at the Mandatory Closing. (xii) the Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiii) the Company shall have delivered to Buyer such other documents relating to the transactions contemplated by this Agreement as Buyer or its counsel may reasonably request.

Mandatory Closing Date. The obligation of each Buyer hereunder to ---------------------- purchase the Mandatory Preferred Shares from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c). (iiiii) the The Certificate of Designations Designations, shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date shall have been delivered to such Buyer. (iviii) the The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and all of the shares of Common Stock that may be issuable as Conversion Shares or Warrant issuable upon conversion of the Mandatory Preferred Shares shall be listed upon the Principal Market. (viv) the The representations and warranties of the Company shall be true and correct as of the date when made and as of the Mandatory Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date and except as such representations and warranties may no longer be true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained herein) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, but not limited towithout limitation, an update as of the Mandatory Closing Date regarding the representation contained in Section 3(c) above. (viv) Such Buyer shall have received the opinion of Xxxxx Xxxx and Xxxxxxx L.L.P. Xxxx, LLP dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to Buyer and in substantially the form of EXHIBIT Exhibit D attached --------- hereto, with such changes as are reasonably acceptable to such Buyer. (viivi) the The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates (in such denominations as such Buyer shall request) for the Mandatory Preferred Shares being purchased by such Buyer at the Mandatory Closing. (viiivii) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions Company shall be in full force and effect have adopted, and shall not have been amended as of amended, the Mandatory Closing DateResolutions. (ixviii) as As of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon at least 125% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred SharesShares and the Mandatory Preferred Shares (without regard to any limitations on conversions). (ix) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Mandatory Closing Date and the Company shall cause its Transfer Agent to deliver a letter to the Buyers to that effect. (x) the The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing certificate for of the Company and each Subsidiary in the state of such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Mandatory Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three (3) within ten days before of the Mandatory Closing Date. (xixii) the The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, Certificate of Incorporation and (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments theretoBylaws, each as in effect at the Mandatory Closing. (xiixiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Mandatory Closing Date. (xiv) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiiixv) The Conversion Price on the date immediately following the last date of the Pricing Period was greater than $125. (xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Mandatory Closing Date. The obligation of each Mandatory Buyer hereunder to purchase the Mandatory Preferred Shares and the Warrants from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Mandatory Buyer's sole benefit and may be waived by such Mandatory Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c). (iiiii) the Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date shall have been delivered to Buyer. (iv) the Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and all of the shares of Common Stock that may be issuable as Conversion Shares or Warrant Shares shall be listed upon the Principal Market. (v) the The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Mandatory Closing Date as though made at that time (except for the representation related to capitalization set forth in Section 3(c) which shall be true as of the date of this Agreement and except to the extent that any of such representations and warranties that speak is already qualified as of a specific dateto materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) (provided that any material adverse development, change or amendment after the date hereof in any matter set forth on the Disclosure Letter or set forth in the 2002 Filings will not qualify as or otherwise constitute an exception for purposes of such date and except as such determining whether any representations and warranties may no longer be of the Company are true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained hereinMandatory Closing Date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing Date. Such Mandatory Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect Date and as to such other matters as may be reasonably requested by Buyer including, but not limited to, including an update as of the Mandatory Closing Date regarding of the representation contained in Section 3(c) above. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that neither the consummation nor the failure to consummate the transactions contemplated by either the Viant Merger Agreement or the Delano Merger Agreement shall be deemed to be (i) a material adverse change pursuant to Section 3(g) or (ii) a breach of any of the representations and warranties made by the Company pursuant to Section 3 of this Agreement. (viiii) Such Mandatory Buyer shall have received the opinion of Xxxxxx Xxxxxx Xxxxx and Xxxxxxx L.L.P. Xxxxxxxx dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to such Mandatory Buyer and in substantially the form of EXHIBIT D attached hereto. (viiiv) the The Company shall have executed and delivered to such Mandatory Buyer the Preferred Stock Certificates and the Warrants (in such denominations as such Mandatory Buyer shall request) for the Mandatory Preferred Shares and the Warrants being purchased by such Mandatory Buyer at the Mandatory Closing. (viiiv) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions Company shall be in full force and effect have adopted, and shall not have been amended amended, the Resolutions. (vi) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Mandatory Closing Date and the Company shall cause its Transfer Agent to deliver a letter to the Mandatory Buyers to that effect. (vii) The Company shall have delivered to such Mandatory Buyer a certificate evidencing the incorporation and good standing of the Company in Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) days of the Mandatory Closing Date. (ixviii) as of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares. (x) the The Company shall have delivered to such Mandatory Buyer a good standing certificate for the Company certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three within ten (310) days before of the Mandatory Closing Date. (xiix) the The Company shall have delivered to such Mandatory Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certificate certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, Certificate of Incorporation and (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments theretoBylaws, each as in effect at the Mandatory Closing. (x) The Company shall have delivered to such Mandatory Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Mandatory Closing Date. (xi) The waiting period(s) (and any extension thereof) under the HSR Act, if applicable, shall have expired or been terminated without any condition attached to such expiration or termination. (xii) At Oak's election, an additional Oak nominee (or two Oak nominees if Oak did not elect a nominee at the Initial Closing or thereafter) shall have been appointed to serve on the Company's Board of Directors effective as of the Mandatory Closing Date, and such nominee(s) and the Company shall have made all filings under all applicable federal and state securities laws necessary entered into an indemnification agreement in form acceptable to consummate the issuance Oak, effective as of the Securities pursuant to this Agreement in compliance with such lawsMandatory Closing Date. (xiii) the The Company shall not have delivered to Buyer such other documents relating to materially breached the transactions contemplated by this Agreement as Buyer Transaction Documents or its counsel may reasonably requestthe Certificate of Designations. (xiv) No Triggering Event shall have occurred.

Mandatory Closing Date. The obligation of each Buyer hereunder to purchase the Mandatory Preferred Shares from and the Company Mandatory Warrants at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c). (iiiii) the The Certificate of Designations Amendment, shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date New York shall have been delivered to such Buyer. (iviii) the The Common Stock (x) shall be designated for quotation on the Nasdaq National Market or The Nasdaq SmallCap Market or listed on AMEX or NYSE or reported on the Principal Market OTCBB, and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market such exchanges or quotation or reporting systems nor shall delisting or suspension by such Principal Market exchanges or quotation or reporting systems have been threatened either (A) in writing by the SEC such exchanges or the Principal Market quotation or reporting systems or (B) by falling below the minimum listing maintenance requirements of the Principal Market; such exchanges or quotation or reporting systems and all of the shares of Common Stock that may be issuable as Conversion Shares or and the Warrant Shares issuable upon conversion or exercise of the Mandatory Preferred Shares and the related Warrants, as the case may be, to be sold at the Mandatory Closing shall be listed upon or available for quotation or reported on the Principal OTCBB, The Nasdaq SmallCap Market, the Nasdaq National Market, AMEX or NYSE. (viv) the The representations and warranties of the Company shall be true and correct as of the date when made and as of the Mandatory Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date and except as such representations and warranties may no longer be true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained herein) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations Amendment to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing DateDates. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, but not limited towithout limitation, an update as of the Mandatory Closing Date regarding the representation contained in Section 3(c) above. (viv) Such Buyer shall have received the opinion of Xxxxxx Xxxxx and Xxxxxxxx & Xxxxxxx L.L.P. LLP dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT Exhibit D attached hereto. (viivi) the The Company shall have executed and delivered to such Buyer the Preferred Mandatory Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Mandatory Preferred Shares being purchased by such Buyer at the Mandatory Closing. (viiivii) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions shall be in full force and effect and Company shall not have been amended as of the Mandatory Closing DateResolutions. (ixviii) as As of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred SharesShares (without regard to any limitations on conversions and as if the Mandatory Preferred Shares were issued and outstanding) and 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants (without regard to any limitations on exercises and as if the Mandatory Warrants were issued and outstanding). (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent and shall be in effect as of the Mandatory Closing Date. (x) the The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing certificate for of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Mandatory Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three (3) New York within ten days before of the Mandatory Closing Date. (xixii) the The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certificate certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, Certificate of Incorporation and (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments theretolaws, each as in effect at the Mandatory Closing. (xii) the Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such lawsClosing Date. (xiii) the The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Mandatory Closing Date. (xiv) During the period beginning on the Mandatory Share Notice Date and ending on and including the Mandatory Closing Date, the Registration Statement covering the resale of the Conversion Shares and the Warrant Shares has been declared effective by the SEC and at all times has been effective and available for the sale of no less than 200% of the Conversion Shares issuable upon conversion of the Initial Preferred Shares and the Mandatory Preferred Shares (as if the Mandatory Preferred Shares were issued and outstanding and without regard to any limitations on conversions) and 100% of the Warrant Shares issuable upon exercise of the Initial warrants and the Mandatory Warrants (as if the Mandatory Warrants were issued and outstanding and without regard to any limitations on Exercises) (xv) The Initial Registration Statement has been declared effective by the SEC in accordance with the terms of the Registration Rights Agreement on or before the date which is 90 days after the Initial Closing Date. (xvi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably requestrequest upon reasonable advance notice.

Mandatory Closing Date. The obligation of each Mandatory Buyer hereunder to purchase the Mandatory Preferred Shares from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Mandatory Buyer's sole benefit and may be waived by such Mandatory Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c2(b). (iiiii) the Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date shall have been delivered to Buyer. (iv) the Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and all of the shares of Common Stock that may be issuable as Conversion Shares or Warrant Shares shall be listed upon the Principal Market. (v) the The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Mandatory Closing Date as though made at that time (except for the representations and warranties made by the Company herein that speak as of a specific datedate and except to the extent that any of such representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct without further qualification) (provided that any material adverse development, change or amendment after the date of this Agreement in any matter set forth on the Schedules to this Agreement or set forth in the 2002 Filings will not qualify as or otherwise constitute an exception for purposes of such date and except as such determining whether any representations and warranties may no longer be of the Company are true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained hereinMandatory Closing Date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing Date. Such Mandatory Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect Date and as to such other matters as may be reasonably requested by Buyer including, but not limited to, including an update as of the Mandatory Closing Date regarding of the representation contained in Section 3(c4(c) above. Notwithstanding anything in this Agreement to the contrary, the parties hereto hereby agree that neither the consummation nor the failure to consummate the transactions contemplated by either the Viant Merger Agreement or the Delano Merger Agreement shall be deemed to be (A) a material adverse change pursuant to Section 4(g) or (B) a breach of any of the representations and warranties made by the Company pursuant to Section 4 of this Agreement. (viiii) Such Mandatory Buyer shall have received the opinion of Xxxxxx Xxxxxx Xxxxx and Xxxxxxx L.L.P. Xxxxxxxx dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to Buyer Oak and in substantially the form of EXHIBIT D C attached hereto. (viiiv) the The Company shall have executed and delivered to such Mandatory Buyer the Mandatory Preferred Stock Certificates (in such denominations as such Mandatory Buyer shall request) for the Mandatory Preferred Shares being purchased by such Mandatory Buyer at the Mandatory Closing. (viiiv) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions Company shall be in full force and effect have adopted, and shall not have been amended amended, the Resolutions. (vi) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Mandatory Closing Date and the Company shall cause its Transfer Agent to deliver a letter to the Mandatory Buyers to that effect. (vii) The Company shall have delivered to such Mandatory Buyer a certificate evidencing the incorporation and good standing of the Company in Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) days of the Mandatory Closing Date. (ixviii) as of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares. (x) the The Company shall have delivered to such Mandatory Buyer a good standing certificate for the Company certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three within ten (310) days before of the Mandatory Closing Date. (xiix) the The Company shall have delivered to such Mandatory Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certificate certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, Certificate of Incorporation and (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments theretoBylaws, each as in effect at the Mandatory Closing. (xiix) The Company shall have delivered to such Mandatory Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the Mandatory Closing Date. (xi) At Oak's election, one (1) additional Oak nominee (or two Oak nominees if Oak did not elect a nominee at the Initial Closing or thereafter) shall have been appointed to serve on the Company's Board of Directors effective as of the Mandatory Closing Date, and such nominee(s) and the Company shall have made all filings under all applicable federal and state securities laws necessary entered into an indemnification agreement in form acceptable to consummate the issuance Oak, effective as of the Securities pursuant to this Agreement in compliance with such lawsMandatory Closing Date. (xii) The Company shall not have materially breached the Transaction Documents or the Certificate of Designations. (xiii) the No Triggering Event shall have occurred. (xiv) The Company shall have delivered to Buyer the Mandatory Buyers a certificate signed by the Company's Chief Executive Officer or Chief Financial Officer confirming that, (v) for purposes of the definition of Initial Conversion Price in the Certificate of Designations, the Mandatory Closing has occurred, (w) the Oak nominees appointed to serve on the Board of Directors pursuant to Section 7(d) of the Certificate of Designations, if any, have been added as an insured party under the Company's Director and Officers Insurance Policy; provided that Oak has elected to appoint such other documents relating Oak nominees and has given the Company notice of such election at least two (2) Business Days prior to the transactions contemplated Mandatory Closing Date, (x) Oak IX Affiliates Fund A, Limited Partnership, Oak IX Affiliates Fund, Limited Partnership, Oak Investment Partners IX, Limited Partnership, Oak X Affiliates Fund, Limited Partnership, Oak Investment Partners X, Limited Partnership (and any Affiliate of the foregoing that purchases Preferred Shares at the Mandatory Closing) have been added as an insured party under the Company's Directors and Officers Insurance Policy, to the extent permitted by such policy; provided that the foregoing shall only be added to the Company's Directors and Officers Insurance Policy if Oak and its Affiliates will hold more than 50% of the voting power of the Common Stock (including the right of the holders of the Preferred Shares to vote with the Common Stock on an as converted basis) immediately following the Mandatory Closing, (y) in determining that the Stockholder Approval was obtained, it was not necessary for the Company to include in the calculation any of the votes cast on Old Proxy Cards, and (z) a quorum of the Company's stockholders was present (in person or by proxy) at the reconvened stockholder meeting at which the Stockholder Approval was obtained (for such purposes, not including any stockholders present at the adjourned stockholder meeting but not present (in person or by proxy) at the reconvened stockholder meeting). For purposes of this Agreement as Buyer Agreement, "Old Proxy Cards" means the proxy cards submitted to the Company's stockholders on or its counsel may reasonably requestaround June 17, 2002 related to the Stockholder Approval under the Original Purchase Agreement.

Mandatory Closing Date. The obligation of each Buyer hereunder to purchase the Mandatory Preferred Shares and the Mandatory Warrants from the Company at the Mandatory Closing is subject to the satisfaction, at or before the Mandatory Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: (i) all dividends accumulated and accrued but unpaid on the Initial Preferred Shares through the close of business on the day preceding the Mandatory Closing Date shall be paid in full in cash on the Mandatory Closing Date prior to the issuance of the Mandatory Preferred Shares. (ii) the The Company shall have complied with and satisfied all of the requirements of Section 1(c). (iiiii) the The Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of the State of Delaware as of a date within fifteen (15) days of the Mandatory Closing Date shall have been delivered to such Buyer. (iviii) the The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have been suspended by the SEC or the Principal Market from trading on or delisted from the Principal Market nor shall delisting or suspension by such Principal Market have been threatened either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market; and all of the shares of Common Stock that may be issuable as Conversion Shares or and the Warrant Shares issuable upon conversion or exercise of the Mandatory Preferred Shares and the Mandatory Warrants, as the case may be, shall be listed upon the Principal Market. (viv) the The representations and warranties of the Company shall be true and correct as of the date when made and as of the Mandatory Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date and except as such representations and warranties may no longer be true and correct as the result of events that do not constitute a Material Adverse Effect, individually or in the aggregate, and that do not breach any of the covenants of the Company contained herein) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Designations to be performed, satisfied or complied with by the Company at or prior to the Mandatory Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Mandatory Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, but not limited towithout limitation, an update as of the applicable Mandatory Closing Date regarding the representation contained in Section 3(c) above. (viv) Such Buyer shall have received the opinion of Xxxxx and Xxxxxxxxx, Xxxxxxx L.L.P. & Xxxxxxx, P.C. dated as of the Mandatory Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT Exhibit D attached hereto. (viivi) the The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates and the Warrants (in such denominations as such Buyer shall request) for the Mandatory Preferred Shares and the Mandatory Warrants being purchased by such Buyer at the Mandatory Closing. (viiivii) The Board of Directors of the Transaction Resolutions and the Ownership Limit Resolutions Company shall be in full force and effect have adopted, and shall not have been amended as of amended, the Mandatory Closing DateResolutions. (ixviii) as As of the Mandatory Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares or the issuance of the Warrant Shares, a number of shares of Common Stock equal to an agreed upon at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred SharesShares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants (without regard to any limitations on exercises), including for such purposes the Mandatory Preferred Shares and the Mandatory Warrants to be issued at the Mandatory Closing. (ix) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Mandatory Closing Date and the Company shall cause its Transfer Agent to deliver a letter to the Buyers to that effect. (x) the The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing certificate for of the Company and each Subsidiary in the state of such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Mandatory Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of Delaware dated no more than three (3) within ten days before of the Mandatory Closing Date. (xixii) the The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Mandatory Closing Date, certificate certifying as to (A) the Transaction Resolutions, (B) the Ownership Limit Resolutions, Certificate of Incorporation and (C) the Certificate of Incorporation, (C) the By-Laws, and (D) the Limited Partnership Agreement of the Operating Partnership and all amendments theretoBylaws, each as in effect at the Mandatory Closing. (xii) the Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiii) the The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Mandatory Closing Date. (xiv) The Initial Registration Statement covering the resale of all the Registrable Securities related to the Initial Preferred Share and the Initial Warrants, in accordance with the Registration Rights Agreement, shall have been filed on or before April 25, 2000. (xv) Each Buyer shall have delivered the Purchase Price for the Mandatory Preferred Shares and the Mandatory Warrants to be purchased by such Buyer at the Mandatory Closing pursuant to this Agreement. (xvi) The Company shall have received the Stockholder Approval on or prior to the Stockholder Meeting Deadline. (xvii) An Event of Default (as defined in the Credit Agreement) shall not have occurred on or prior to the Mandatory Closing Date, no event that with the passage of time and without being cured would constitute an Event of Default shall have occurred and be continuing on the Mandatory Closing Date and the Company shall otherwise be in compliance in all material respects with all of its obligations and covenants under the Credit Agreement as of the Mandatory Closing Date. (xviii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.