IN THE
SEC DOCUMENTS (AS DEFINED HEREIN) BUT NOT SO DISCLOSED IN THE SEC DOCUMENTS,
OTHER THAN THOSE INCURRED IN THE ORDINARY COURSE OF THE COMPANY'S OR ITS
SUBSIDIARIES' RESPECTIVE BUSINESSES AND WHICH, INDIVIDUALLY OR IN THE AGGREGATE,
DO NOT OR WOULD NOT HAVE A MATERIAL ADVERSE EFFECT.
THE COMPANY HAS FURNISHED
TO THE BUYER, TO THE EXTENT NOT AVAILABLE ON THE EDGAR SYSTEM IN THE SEC
DOCUMENTS FILED AT LEAST 10 DAYS PRIOR TO THE DATE HEREOF, TRUE, CORRECT AND
COMPLETE COPIES OF THE COMPANY'S CERTIFICATE OF INCORPORATION, AS AMENDED AND AS
IN EFFECT ON THE DATE HEREOF (THE "CERTIFICATE OF INCORPORATION"), AND THE
COMPANY'S 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, COMPANY COMMON STOCK AND THE MATERIAL RIGHTS OF THE HOLDERS THEREOF IN
RESPECT THERETO.
(R)
INDEBTEDNESS AND OTHER CONTRACTS.
EXCEPT
AS DISCLOSED IN SCHEDULE 3(R) AND OTHER THAN THE FEBRUARY NOTES, 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 WOULD RESULT IN A MATERIAL ADVERSE EFFECT,
(III) IS IN VIOLATION OF ANY TERM OF OR IN DEFAULT UNDER ANY CONTRACT, AGREEMENT
OR INSTRUMENT RELATING TO ANY INDEBTEDNESS, EXCEPT WHERE SUCH VIOLATIONS AND
DEFAULTS WOULD NOT RESULT, INDIVIDUALLY OR IN THE AGGREGATE, IN A MATERIAL
ADVERSE EFFECT, OR (IV) IS A PARTY TO ANY CONTRACT, AGREEMENT OR INSTRUMENT
RELATING TO ANY INDEBTEDNESS, THE PERFORMANCE OF WHICH, IN THE JUDGMENT OF THE
COMPANY'S OFFICERS, HAS OR IS EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
SCHEDULE 3(R) PROVIDES A DETAILED DESCRIPTION OF THE MATERIAL TERMS OF ANY SUCH
OUTSTANDING INDEBTEDNESS.
FOR PURPOSES OF THIS AGREEMENT:
(X) "INDEBTEDNESS"
OF ANY PERSON MEANS, WITHOUT DUPLICATION (A) ALL INDEBTEDNESS FOR BORROWED
MONEY, (B) ALL OBLIGATIONS ISSUED, UNDERTAKEN OR ASSUMED AS THE DEFERRED
PURCHASE PRICE OF PROPERTY OR SERVICES (OTHER THAN TRADE PAYABLES ENTERED INTO
IN THE ORDINARY COURSE OF BUSINESS), (C) ALL REIMBURSEMENT OR PAYMENT
OBLIGATIONS WITH RESPECT TO LETTERS OF CREDIT, SURETY BONDS AND OTHER SIMILAR
INSTRUMENTS, (D) ALL OBLIGATIONS EVIDENCED BY NOTES, BONDS, DEBENTURES OR
SIMILAR INSTRUMENTS, INCLUDING OBLIGATIONS SO EVIDENCED INCURRED IN CONNECTION
WITH THE ACQUISITION OF PROPERTY, ASSETS OR BUSINESSES, (E) ALL INDEBTEDNESS
CREATED OR ARISING UNDER ANY CONDITIONAL SALE OR OTHER TITLE RETENTION
AGREEMENT, OR INCURRED AS FINANCING, IN EITHER CASE WITH RESPECT TO ANY PROPERTY
OR ASSETS ACQUIRED WITH THE PROCEEDS OF SUCH INDEBTEDNESS (EVEN THOUGH THE
RIGHTS AND REMEDIES OF THE SELLER OR BANK UNDER SUCH AGREEMENT IN THE EVENT OF
DEFAULT ARE LIMITED TO REPOSSESSION OR SALE OF SUCH PROPERTY), (F) ALL MONETARY
OBLIGATIONS UNDER ANY LEASING OR SIMILAR ARRANGEMENT WHICH, IN CONNECTION WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, CONSISTENTLY APPLIED FOR THE PERIODS
COVERED THEREBY, IS CLASSIFIED AS A CAPITAL LEASE, (G) ALL INDEBTEDNESS REFERRED
TO IN CLAUSES (A) THROUGH