DEFAULT" HAS THE MEANING GIVEN IN SECTION 5 HEREOF.
(C)
"FINANCIAL STATEMENTS" SHALL MEAN, WITH RESPECT TO ANY ACCOUNTING
PERIOD FOR THE COMPANY, STATEMENTS OF OPERATIONS, RETAINED EARNINGS AND CASH
FLOW OF THE COMPANY FOR SUCH PERIOD, AND BALANCE SHEETS OF THE COMPANY AS OF THE
END OF SUCH PERIOD, SETTING FORTH IN EACH CASE IN COMPARATIVE FORM FIGURES FOR
THE CORRESPONDING PERIOD IN THE PRECEDING FISCAL YEAR IF SUCH PERIOD IS LESS
THAN A FULL FISCAL YEAR OR, IF SUCH PERIOD IS A FULL FISCAL YEAR, CORRESPONDING
FIGURES FROM THE PRECEDING FISCAL YEAR, ALL IN ACCORDANCE WITH THE BOOKS AND
RECORDS OF THE COMPANY, WHICH HAVE BEEN MAINTAINED IN ACCORDANCE WITH GOOD
BUSINESS PRACTICES. UNLESS OTHERWISE INDICATED, EACH REFERENCE TO FINANCIAL
STATEMENTS OF THE COMPANY SHALL BE DEEMED TO REFER TO FINANCIAL STATEMENTS
PREPARED ON A CONSOLIDATED BASIS.
(D)
"INDEBTEDNESS" SHALL MEAN INDEBTEDNESS OWED TO BANKS, COMMERCIAL
FINANCE INVESTORS, INSURANCE COMPANIES, LEASING OR EQUIPMENT FINANCING
INSTITUTIONS OR OTHER LENDING INSTITUTIONS REGULARLY ENGAGED IN THE BUSINESS OF
LENDING MONEY (EXCLUDING VENTURE CAPITAL, INVESTMENT BANKING OR SIMILAR
INSTITUTIONS WHICH SOMETIMES ENGAGE IN LENDING ACTIVITIES BUT WHICH ARE
PRIMARILY ENGAGED IN INVESTMENTS IN EQUITY SECURITIES), WHICH IS FOR MONEY
BORROWED OR THE DEFERRED PURCHASE PRICE OR LEASING OF EQUIPMENT, WHETHER OR NOT
SECURED.
(E)
"INVESTOR" SHALL MEAN THE PERSON SPECIFIED IN THE INTRODUCTORY
PARAGRAPH OF THIS NOTE WHO SHALL AT THE TIME BE THE REGISTERED INVESTOR OF THIS
NOTE.
(F)
"LIEN" SHALL MEAN, WITH RESPECT TO ANY PROPERTY, ANY SECURITY
INTEREST, MORTGAGE, PLEDGE, LIEN, CLAIM, CHARGE OR OTHER ENCUMBRANCE IN, OF, OR
ON SUCH PROPERTY OR THE INCOME THEREFROM, INCLUDING, WITHOUT LIMITATION, THE
INTEREST OF A VENDOR OR LESSOR UNDER A CONDITIONAL SALE AGREEMENT, CAPITAL LEASE
OR OTHER TITLE RETENTION AGREEMENT, OR ANY AGREEMENT TO PROVIDE ANY OF THE
FOREGOING, AND THE FILING OF ANY FINANCING STATEMENT OR SIMILAR INSTRUMENT UNDER
THE UNIFORM COMMERCIAL CODE OR COMPARABLE LAW OF ANY JURISDICTION.
(G)
"MATERIAL ADVERSE EFFECT" SHALL MEAN A MATERIAL ADVERSE EFFECT ON
(I) THE BUSINESS, PROSPECTS, ASSETS, OPERATIONS OR FINANCIAL CONDITION OF
COMPANY; (II) THE ABILITY OF COMPANY TO PAY OR PERFORM THE OBLIGATIONS IN
ACCORDANCE WITH THE TERMS OF THIS NOTE AND THE OTHER FINANCING
2
DOCUMENTS; OR (III) THE RIGHTS AND REMEDIES OF INVESTOR UNDER THIS NOTE AND THE
OTHER FINANCING DOCUMENTS.
(H)
"MATURITY DATE" SHALL MEAN MARCH 16, 2007.
(I)
"NOTE PURCHASE AGREEMENT" HAS THE MEANING GIVEN IN THE
INTRODUCTORY PARAGRAPH HEREOF.
(J)
"OBLIGATIONS" SHALL MEAN ALL LOANS, ADVANCES, DEBTS, LIABILITIES
AND OBLIGATIONS, HOWSOEVER ARISING, OWED BY COMPANY TO INVESTOR OF EVERY KIND
AND DESCRIPTION (WHETHER OR NOT EVIDENCED BY ANY NOTE OR INSTRUMENT AND WHETHER
OR NOT FOR THE PAYMENT OF MONEY), NOW EXISTING OR HEREAFTER ARISING UNDER OR
PURSUANT TO THE TERMS OF THIS NOTE AND THE OTHER FINANCING DOCUMENTS (AS
IDENTIFIED IN THE NOTE PURCHASE AGREEMENT), INCLUDING, ALL INTEREST, FEES,
CHARGES, EXPENSES, ATTORNEYS' FEES AND COSTS AND ACCOUNTANTS' FEES AND COSTS
CHARGEABLE TO AND PAYABLE BY COMPANY HEREUNDER AND THEREUNDER, IN EACH CASE,
WHETHER DIRECT