OTHER TRIGGERING EVENT (AS DEFINED IN SECTION 5(C)) OR AN EVENT OF
DEFAULT (AS DEFINED IN SECTION 13(A)); (V) DURING THE PERIOD BEGINNING ON THE
ISSUANCE DATE AND ENDING ON AND INCLUDING THE FORCED CONVERSION DATE, THE
COMPANY SHALL HAVE DELIVERED SHARES UPON CONVERSION OF THE NOTES AND UPON
EXERCISE OF THE WARRANTS ON A TIMELY BASIS AS SET FORTH IN SECTION 4(C)(II) OF
THE NOTES AND SECTION 3(A) OF THE WARRANTS; (VI) ON EACH DAY DURING THE PERIOD
BEGINNING NINETY (90) DAYS PRIOR TO THE FORCED CONVERSION NOTICE DATE AND ENDING
ON AND INCLUDING THE APPLICABLE FORCED CONVERSION DATE, THE COMPANY AND ITS
SUBSIDIARIES OTHERWISE SHALL HAVE BEEN IN MATERIAL COMPLIANCE WITH IN ALL
RESPECTS AND SHALL NOT HAVE MATERIALLY BREACHED OR BEEN IN BREACH OF ANY
PROVISION OR COVENANT OF THE NOTES OR ANY OTHER TRANSACTION DOCUMENTS; AND
(VII) THE COMPANY SHALL HAVE OBTAINED ALL REQUISITE APPROVALS (IF ANY) OF ITS
STOCKHOLDERS FOR THE ISSUANCE OF THE SHARES TO THE HOLDERS OF THE NOTES AND THE
WARRANTS.
"GAAP" MEANS UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
"GOVERNMENTAL AUTHORITY" MEANS THE GOVERNMENT OF ANY NATION, STATE OR OTHER
POLITICAL SUBDIVISION THEREOF, ANY ENTITY EXERCISING EXECUTIVE, LEGISLATIVE,
JUDICIAL, REGULATORY OR ADMINISTRATIVE FUNCTIONS OF OR PERTAINING TO GOVERNMENT,
AND ANY CORPORATION OR OTHER ENTITY OWNED OR CONTROLLED, THROUGH STOCK OR
CAPITAL OWNERSHIP OR OTHERWISE, BY ANY OF THE FOREGOING.
6
"GUARANTEE AND COLLATERAL AGREEMENT" MEANS THAT CERTAIN GUARANTEE AND COLLATERAL
AGREEMENT AMONG THE COMPANY, CERTAIN OF ITS SUBSIDIARIES (THE "GUARANTORS") AND
THE COLLATERAL AGENT (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT) PURSUANT
TO WHICH (I) THE COMPANY AND THE GUARANTORS HAVE GRANTED THE HOLDERS OF THE
NOTES A FIRST PRIORITY SECURITY INTEREST, SUBJECT TO PERMITTED LIENS, IN THE
COLLATERAL DESCRIBED THEREIN AND (II) THE GUARANTORS HAVE GUARANTEED FOR THE
BENEFIT OF THE HOLDERS OF THE NOTES, THE OBLIGATIONS OF THE COMPANY UNDER THIS
NOTE AND THE OTHER TRANSACTION DOCUMENTS AS THE SAME MAY BE AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME.
"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 UNSECURED ACCOUNT
TRADE PAYABLES THAT ARE (I) ENTERED INTO OR INCURRED IN THE ORDINARY COURSE OF
THE COMPANY'S AND ITS SUBSIDIARIES' BUSINESS, (II) ON TERMS THAT REQUIRE FULL
PAYMENT WITHIN NINETY (90) DAYS, (III) NOT UNPAID IN EXCESS OF FIFTEEN (15) DAYS
BEYOND INVOICE DUE DATE OR ARE BEING CONTESTED IN GOOD FAITH AND AS TO WHICH
SUCH RESERVE AS IS REQUIRED BY GAAP HAS BEEN MADE AND (IV) NOT EXCEEDING AT ANY
ONE TIME AN AGGREGATE AMONG THE COMPANY AND ITS SUBSIDIARIES OF $500,000),
(C) ALL REIMBURSEMENT OR PAYMENT OBLIGATIONS WITH RESPECT TO LETTERS OF CREDIT,
BANKER'S ACCEPTANCES, SURETY BONDS AND OTHER SIMILAR INSTRUMENTS, (D) ALL
OBLIGATIONS EVIDENCED BY NOTES, BONDS, DEBENTURES, REDEEMABLE CAPITAL STOCK OR
SIMILAR INSTRUMENTS, INCLUDING OBLIGATIONS SO EVIDENCED INCURRED IN CONNECTION
WITH THE ACQUISITION OF PROPERTY, ASSETS OR BUSINESSES, (E) ALL INDEBTEDNESS