RELY ON THE FOREGOING REPRESENTATIONS IN EFFECTING TRANSACTIONS IN
SECURITIES OF THE COMPANY.
ALL DISCLOSURE PROVIDED TO THE BUYERS REGARDING THE
COMPANY, ITS BUSINESS AND THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE
SCHEDULES TO THIS AGREEMENT, FURNISHED BY OR ON BEHALF OF THE COMPANY IS TRUE
AND CORRECT AND DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT
TO STATE ANY MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS MADE
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING.
EACH PRESS RELEASE ISSUED BY THE COMPANY DURING THE TWELVE (12)
MONTHS PRECEDING THE DATE OF THIS AGREEMENT DID NOT AT THE TIME OF RELEASE
CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO STATE A MATERIAL FACT
REQUIRED TO BE STATED THEREIN OR NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING.
NO EVENT OR CIRCUMSTANCE HAS OCCURRED OR INFORMATION EXISTS WITH
RESPECT TO THE COMPANY OR ANY OF ITS SUBSIDIARIES OR ITS OR THEIR BUSINESS,
PROPERTIES, OPERATIONS OR FINANCIAL CONDITIONS, WHICH, UNDER APPLICABLE LAW,
RULE OR REGULATION, REQUIRES PUBLIC DISCLOSURE OR ANNOUNCEMENT BY THE COMPANY
BUT WHICH HAS NOT BEEN SO PUBLICLY ANNOUNCED OR DISCLOSED.
(FF)
SCHEDULE 3(FF) SETS FORTH THE CASH BALANCES
OF THE COMPANY AS OF SEPTEMBER 30, 2004 AND THE PRO FORMA CASH BALANCES AFTER
TAKING INTO ACCOUNT THE CLOSING AND THE PAYMENTS REQUIRED IN CONNECTION WITH THE
RESTRUCTURING OF CERTAIN OF THE COMPANY'S LEASES LISTED ON SCHEDULE 3(FF) IN THE
RESPECTIVE AMOUNTS SHOWN THEREIN.
FOR PURPOSES OF THIS SECTION, "CASH BALANCES"
SHALL MEAN, AT ANY DATE, THE DIFFERENCE BETWEEN (A) AGGREGATE AMOUNT OF ALL CASH
AND CASH EQUIVALENTS (NOT INCLUDING RESTRICTED CASH) AND SHORT TERM INVESTMENTS
SHOWN OR REFLECTED ON THE COMPANY'S BALANCE SHEET AS AT SUCH DATE MINUS (B) THE
UNPAID PRINCIPAL BALANCE OF THE PERMITTED INDEBTEDNESS (AS DEFINED IN THE NOTES)
ON SUCH DATE.
4.
COVENANTS.
(A)
BEST EFFORTS.
EACH PARTY SHALL USE ITS
BEST EFFORTS TIMELY TO SATISFY EACH OF THE CONDITIONS TO BE SATISFIED BY IT AS
PROVIDED IN SECTIONS 6 AND 7 OF THIS AGREEMENT.
(B)
FORM D AND BLUE SKY.
THE COMPANY AGREES TO
FILE A FORM D WITH RESPECT TO THE SECURITIES AS REQUIRED UNDER REGULATION D AND
TO PROVIDE A COPY THEREOF TO EACH BUYER PROMPTLY AFTER SUCH FILING.
THE COMPANY
SHALL, ON OR BEFORE THE CLOSING DATE, TAKE SUCH ACTION AS THE COMPANY SHALL
REASONABLY DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR TO
QUALIFY THE SECURITIES FOR SALE TO THE BUYERS AT THE CLOSING PURSUANT TO THIS
AGREEMENT UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATES OF THE
UNITED STATES (OR TO OBTAIN AN EXEMPTION FROM SUCH QUALIFICATION), AND SHALL
PROVIDE EVIDENCE OF ANY SUCH ACTION SO TAKEN TO THE BUYERS ON OR PRIOR TO THE
CLOSING DATE.
THE COMPANY SHALL MAKE ALL FILINGS AND REPORTS RELATING TO THE
OFFER AND SALE OF THE SECURITIES REQUIRED UNDER APPLICABLE