SINGLY
OR IN THE AGGREGATE, FILED IN CONNECTION WITH THE COMPANY OR ANY SUBSIDIARY; (V)
THERE ARE NO AGREEMENTS OR ARRANGEMENTS UNDER WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS OBLIGATED TO REGISTER THE SALE OF ANY OF THEIR SECURITIES UNDER
THE 1933 ACT (EXCEPT THE REGISTRATION RIGHTS AGREEMENT); (VI) THERE ARE NO
OUTSTANDING SECURITIES OR INSTRUMENTS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES
WHICH CONTAIN ANY REDEMPTION OR SIMILAR PROVISIONS, AND THERE ARE NO CONTRACTS,
COMMITMENTS, UNDERSTANDINGS OR ARRANGEMENTS BY WHICH THE COMPANY OR ANY OF ITS
SUBSIDIARIES IS OR MAY BECOME BOUND TO REDEEM A SECURITY OF THE COMPANY OR ANY
OF ITS SUBSIDIARIES; (VII) THERE ARE NO SECURITIES OR INSTRUMENTS CONTAINING
ANTI-DILUTION, PREEMPTIVE OR SIMILAR PROVISIONS THAT WILL BE TRIGGERED BY THE
ISSUANCE OF THE SECURITIES OR OTHERWISE; (VIII) THE COMPANY DOES NOT HAVE ANY
STOCK APPRECIATION RIGHTS OR "PHANTOM STOCK" PLANS OR AGREEMENTS OR ANY SIMILAR
PLAN OR AGREEMENT; AND (IX) THE COMPANY AND ITS SUBSIDIARIES HAVE NO LIABILITIES
OR OBLIGATIONS REQUIRED TO BE DISCLOSED IN THE SEC DOCUMENTS (AS DEFINED HEREIN)
BUT NOT SO DISCLOSED IN THE SEC DOCUMENTS.
THE COMPANY HAS FURNISHED TO THE
BUYER TRUE, CORRECT AND COMPLETE COPIES OF THE COMPANY'S AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION, AS AMENDED AND AS IN EFFECT ON THE DATE HEREOF
(TOGETHER WITH ANY CERTIFICATE OF DESIGNATIONS OF ANY OUTSTANDING SERIES OF
PREFERRED STOCK OF THE COMPANY, THE "CERTIFICATE OF INCORPORATION"), AND THE
COMPANY'S AMENDED AND RESTATED BYLAWS, AS AMENDED AND AS IN EFFECT ON THE DATE
HEREOF (THE "BYLAWS"), AND THE TERMS OF ALL SECURITIES CONVERTIBLE INTO, OR
EXERCISABLE OR EXCHANGEABLE FOR, COMMON STOCK AND THE MATERIAL RIGHTS OF THE
HOLDERS THEREOF IN RESPECT THERETO.
11
(R)
INDEBTEDNESS AND OTHER CONTRACTS.
EXCEPT AS SET FORTH ON
SCHEDULE 3(R), NEITHER THE COMPANY NOR ANY OF ITS SUBSIDIARIES (I) HAS ANY
OUTSTANDING INDEBTEDNESS (AS DEFINED BELOW), (II) IS A PARTY TO ANY CONTRACT,
AGREEMENT OR INSTRUMENT, THE VIOLATION OF WHICH, OR DEFAULT UNDER WHICH, BY THE
OTHER PARTY(IES) TO SUCH CONTRACT, AGREEMENT OR INSTRUMENT COULD REASONABLY BE
EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, (III) IS IN VIOLATION OF ANY
TERM OF OR IN DEFAULT UNDER ANY CONTRACT, AGREEMENT OR INSTRUMENT, EXCEPT WHERE
SUCH VIOLATIONS AND DEFAULTS COULD NOT REASONABLY BE EXPECTED TO RESULT,
INDIVIDUALLY OR IN THE AGGREGATE, IN A MATERIAL ADVERSE EFFECT, OR (IV) IS A
PARTY TO ANY CONTRACT, AGREEMENT OR INSTRUMENT, THE PERFORMANCE OF WHICH, IN THE
JUDGMENT OF THE COMPANY'S OFFICERS, HAS OR IS EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT.
THE COMPANY HAS FILED ALL MATERIAL CONTRACTS IN ACCORDANCE WITH
ITEM 601 OF REGULATION S-K AS EXHIBITS TO ALL REPORTS REQUIRED TO BE FILED BY
THE COMPANY UNDER THE 1934 ACT.
FOR PURPOSES OF THIS AGREEMENT:
(X)
"INDEBTEDNESS" OF ANY PERSON MEANS, WITHOUT DUPLICATION (A) ALL INDEBTEDNESS FOR
BORROWED MONEY (INCLUDING, WITHOUT LIMITATION, ADDITIONAL BORROWINGS UNDER THE
COMPANY'S EXISTING CREDIT FACILITIES), (B) ALL OBLIGATIONS ISSUED, UNDERTAKEN OR
ASSUMED AS THE DEFERRED PURCHASE PRICE OF PROPERTY OR SERVICES