Common use of Indebtedness and Other Contracts Clause in Contracts

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, the Company (a) does not have any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries, (ai) does not have has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness (as defined below)of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is not in violation of any term of of, or in default under 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 (dv) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “finance leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations obligations, currently due and payable, with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital finance lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3.13 attached hereto, neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section 3.13), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. (i) Except as disclosed in the SEC DocumentsSchedule 3(s)(i), neither the Company (a) does not have nor any of its Subsidiaries has any outstanding Indebtedness (as defined below), (bii) except as disclosed in Schedule 3(s)(ii), neither the Company nor any of its Subsidiaries is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) neither the Company nor any of its Subsidiaries is not 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 (div) neither the Company nor any of its Subsidiaries is not 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(s)(i) 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 (iA) all indebtedness for borrowed moneymoney in excess of $50,000, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, “capital leases” in accordance with GAAP (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, tax, right of first refusal, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, the The Company (ai) does not have any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) “capital leases” in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.of

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) "capital leases" in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documentson Schedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. A list of all of the Company’s accrued liabilities as of the date of this Agreement is set forth on Schedule 3(r). For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, encumbrance, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any Governmental Entity or other self-regulatory organization or body, any other entity and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in Section 3(m) of the SEC DocumentsDisclosure Schedule, the Company (ai) does not have any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, ; and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, "capital leases" in accordance with United States GAAP (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof, including in China.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 3.14, neither the Company nor any of its Subsidiaries (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3.13 attached hereto, neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section 3.13), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 3.14, neither the Company nor any of its Subsidiaries (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. Except for Indebtedness not exceeding $3,000,000 owing from time-to-time to Laurus under that certain Convertible Note, dated March 21, 2003, no outstanding Indebtedness is secured. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documentson Schedule 3(s), the Company (a) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not 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 had, or is reasonably expected to have have, a Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance Encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization organization, any other entity and a government any Governmental Entity or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, "capital leases" in accordance with United States generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” "CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” "PERSON" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. For purposes The Company has furnished to the Buyers true, correct and complete copies of this Agreement: (x) ”all indentures, agreements, notes, leases, mortgages, deeds or other instruments to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or affected that is material to the Company or any Subsidiary. “Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP), other than (i) trade payables entered into in the ordinary course of business), (iiiii) trade payables entered into in the ordinary course of business and trade payables relating to or arising from services provided by the Company’s counsel, (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) all obligations evidenced by notes, bonds, debentures or similar instruments, or guarantees thereof, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”provided, however, that, for the avoidance of doubt, any deferred compensation in respect of any of the Company’s officers, directors, employees, agents or consultants shall not be deemed to constitute Indebtedness. “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”. “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization organization, any other entity and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed set forth in the SEC Documents, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(q) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, “capital leases” in accordance with GAAP (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Public Disclosure Documents, neither the Company (a) does not have nor any outstanding Indebtedness (as defined below)of its Subsidiaries, (bi) has any material outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be disclosed in the Public Disclosure Documents which are not so disclosed in the Public Disclosure 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 could not have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except Neither the Company nor any of its Subsidiaries (i) except as disclosed set forth in the SEC Documents, the Company (a) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to in violation of any contract, agreement or instrument, the violation of which, or default under, by any other party instrument that would reasonably be expected to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than including, without limitation, “capital leases” in accordance with generally accepted accounting principles and trade payables entered into in the ordinary course of businesspayables), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.charge,

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSCHEDULE 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default under(or an event which with notice or lapse of time or both would become a default) under which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. SCHEDULE 3(s) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” "CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” "PERSON" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the Parent’s SEC Documentsfilings, neither Parent, the Company nor any of their respective Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, which has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, other entity or organization and or a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) provides a description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) "capital leases" in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments and except as it relates to NRG, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not in violation of any term of or in default under any contract, agreement agreement, instrument or instrument relating to any Indebtedness, except where such violations and defaults would not result, either individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtednessinstrument, the performance of which, in the judgment judgement of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.or

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) “capital leases” in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(o), the Company (ai) does not have any has no outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(p) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including (without limitation) "Capital Leases" in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(o), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(o) provides a detailed description of the material terms of any such outstanding Indebtedness. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(n) hereof), neither the Company nor PubCo shall have any outstanding Indebtedness, other than the Senior Secured Convertible Notes to be issued pursuant to the terms of the Notes Securities Purchase Agreement in the form attached hereto as Exhibit D (the “Notes”) (which Notes shall be in the form attached hereto as Exhibit E), the Senior Indebtedness (as such term is defined in the Notes) and the Permitted Indebtedness (as such term is defined in the Notes) set forth on Schedule 3(o)(i). For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including, without limitation, “capital leases” in accordance with U.S. GAAP (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesU.S. GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and or a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(o), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(o) provides a detailed description of the material terms of any such outstanding Indebtedness. Immediately after giving effect to the Merger and the Share Exchange (as such terms are defined in Section 7(p) hereof), neither the Company nor PubCo shall have any outstanding Indebtedness, other than the Notes, the Senior Indebtedness (as defined in the Notes) and the Permitted Indebtedness (as defined in the Notes) set forth on Schedule 3(o)(i). For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including, without limitation, “capital leases” in accordance with U.S. GAAP (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.any

Indebtedness and Other Contracts. Except Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC DocumentsSchedule 3(r)(i), the Company (a) does not have has any outstanding Indebtedness (as defined below), (bii) except as disclosed in Schedule 3(r)(ii), is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) except as disclosed in Schedule 3(r)(iii), is not in violation of any term of of, or in default under 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 (div) except as disclosed in Schedule 3(r)(iv), is not 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 such outstanding Indebtedness. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “finance leases” in accordance with GAAP, consistently applied during the periods involved) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital finance lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, finance lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule __, the Company Seller (ai) does not have any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s Seller's officers, has or is expected to have a Material Adverse Effect. Schedule __) 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 (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability companySeller, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(ee), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(ee) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.clauses

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsReports, neither the Company nor any of its subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “finance leases” in accordance with GAAP applied on a consistent basis during the periods involved) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently GAAP applied for on a consistent basis during the periods covered thereby, involved is classified as a capital finance lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, finance lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), ) involving payment obligations of the Company in excess of $1,000,000 (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 2.13, neither the Company nor any of its Subsidiaries (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, the Company neither any Borrower nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section 3.13), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s Borrowers’ officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed noted in the SEC DocumentsCompany’s public filings on Forms 8k, 10q or 10k, neither the Company nor any of its Subsidiaries, (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization organization, any other entity and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 did not and would not result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. A detailed description of the material terms of any such outstanding Indebtedness has been Previously Disclosed. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) "capital leases" in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) all obligations evidenced by notes, bonds, debentures or similar instrumentsinstruments or upon which interest payments are customarily made, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (vE) 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), (viF) 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, (viiG) all general unsecured claims, including, without limitation, trade accounts payable and accrued expenses, (H) all obligations and liabilities, calculated on a basis satisfactory to the Buyer and in accordance with acceptable practice, of such Person under Hedge Agreements, (I) all monetary obligations under any receivables factoring, receivables sales or similar transactions and all monetary obligations under any synthetic lease, tax ownership/operating lease, off balance sheet financing or similar financing, (J) all indebtedness referred to in clauses (iA) through (viI) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiK) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiI) above; (yx) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; (y) "Hedging Agreement" means any interest rate, foreign currency, commodity or equity swap, collar, cap, floor or forward rate agreement, or other agreement or arrangement designed to protect against fluctuations in interest rates or currency, commodity or equity values (including, without limitation, any option with respect to any of the foregoing and any combination of the foregoing agreements or arrangements), and any confirmation executed in connection with any such agreement or arrangement; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, the Company (a) does not have any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documentsset forth on Schedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness in excess of $200,000 (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, other than contracts, agreements or instruments entered into in the ordinary course of business which to the Company’s knowledge, neither it nor any other party thereto is in default or other violation of, (ciii) is not 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 reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 3.14, neither the Company nor its Subsidiary (a) does not have has any outstanding Indebtedness (as defined below), (ba) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (cb) is not 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 (dc) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.or

Indebtedness and Other Contracts. Except as disclosed in set forth on the SEC Documents, Reports neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtednessinstrument, except where such violations and defaults would could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtednessinstrument, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. The Company has filed all material contracts required to be filed in accordance with Item 601 of Regulation S-B as exhibits. For purposes of this Agreement: (xy) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed moneymoney (including, without limitation, additional borrowings under the Company's existing credit facilities), (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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 propertyproperty or asset), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance (each, a "Lien") upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (yz) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof;.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, "capital leases" in accordance with GAAP (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently applied for the periods covered thereby, GAAP is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, deed of trust, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance of any nature whatsoever in or upon or in any property or assets (including accounts and contract rights) with respect to any asset or property owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3.13 attached hereto, neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section 3.13), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor its Subsidiary (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(z), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(z) 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 (iA) all indebtedness for borrowed moneymoney in excess of $1,000,000, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services in excess of $1,000,000 (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instrumentsinstruments in excess of $1,000,000, (ivD) 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, (vE) all indebtedness in excess of $1,000,000 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), (viF) all monetary obligations in excess of $1,000,000 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in excess of $1,000,000 in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Commission Documents, neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including (without limitation) “Capital Leases” in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 2(p), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any material 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, Indebtedness or (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, “capital leases” in accordance with United States generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.assets

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsCompany's Quarterly Report on Form 10-Q for the period ended May 31, 2006, or Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect, except as otherwise disclosed in Schedule 3(s). Schedule 3(s) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.respect

Indebtedness and Other Contracts. All outstanding indebtedness (including but not limited to indebtedness convertible into equity) of the Company is set forth on SCHEDULE 3(MM). Except as disclosed in the SEC DocumentsSCHEDULE 3(MM), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(MM) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness“INDEBTEDNESS” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including (without limitation) “Capital Leases” in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.“CONTINGENT

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any such Person, even though the such Person which that owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, the Company (a) does not have any outstanding Indebtedness (as defined belowReports or Schedule 3(r), NeuBase (bi) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, or (cii) is not in violation of any term of of, or in default under 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 (d) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP, consistently applied during the periods involved) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, capital lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. No outstanding Indebtedness is secured. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. No outstanding Indebtedness is secured. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables and broadcast rights payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.the

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSCHEDULE 3(S), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default under(or an event which with notice or lapse of time or both would become a default) under which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. SCHEDULE 3(S) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.or

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsFilings, as of the date hereof, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), or (bii) is not a party in violation of or default under any Material Agreement, and to the Company’s knowledge, no counterparty to any contract, agreement or instrument, the Material Agreement is in violation of which, or default under, by under any other party Material Agreement (as defined below) where such violation or default would reasonably be expected to such contract, agreement or instrument would result in a Material Adverse Effect, . All contracts and agreements required to be filed as exhibits to the Company’s periodic reports filed as material agreements (c“Material Agreements”) is with the U.S. Securities and Exchange Commission (the “SEC”) have been so filed. The Company has not engaged in violation the past three (3) months in any discussion with any representative of any term Person regarding (i) a sale or exclusive license of all 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment substantially all of the Company’s officersassets or any material asset, has or is expected to have a Material Adverse Effect(ii) any merger, consolidation or other business combination transaction of the Company with or into another Person. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection accordance with generally accepted accounting principles, consistently applied for the periods covered therebyGAAP (as defined below), is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any such Person, even though the such Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations (as defined below) in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereofthereof or other entity of whatever nature.

Indebtedness and Other Contracts. Except as disclosed set forth in the Company’s SEC Documents, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, or (ciii) is not in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtednessinstrument, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (d) is not a party to . The material terms of any contract, agreement or instrument relating to any Indebtedness, the performance of which, such outstanding Indebtedness are described in the judgment of the Company’s officers, has or is expected to have a Material Adverse EffectSEC Documents. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) “capital leases” in accordance with GAAP (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) all indebtedness Indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as a financing, in either case case, with respect to any property or assets acquired with the proceeds of such indebtedness 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness Indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtednessIndebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness Indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. No outstanding Indebtedness is secured. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables and broadcast rights payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”"Person” " means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance (each, a "LIEN") upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” "CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” "PERSON" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(n), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(n) 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 (iA) all indebtedness for borrowed money, (ii) 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), (iiiB) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivC) 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, (vD) 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), (vi) 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, (viiE) all indebtedness referred to in clauses (iA) through (viD) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiF) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiE) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the financial statements filed in the SEC DocumentsDocuments or as otherwise expressly permitted hereunder, the Company neither MSMI nor Guarantor (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the CompanyMSMI’s officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.. 7 3.15 Financial Information; SEC Documents. Since December 31, 2005, MSMI has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act. As of their respective dates, the SEC Documents filed since December 31, 2005 complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Documents, and none of such SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted 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. As of their respective dates, the financial statements of MSMI and the Guarantor included in such SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of MSMI and Guarantor as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other information provided by or on behalf of MSMI or the Guarantor to the Fund that is not included in the SEC Documents filed since December 31, 2005 contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstance under which they are or were made, not misleading. 3.16

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3.1(i), the Company (ai) does not have any has no outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 and (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3.1(i) 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 (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.repossession

Indebtedness and Other Contracts. Except as disclosed in Schedule 4.21, none of the SEC Documents, the Company Issuers (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 4.21 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 and other than trade payables entered into in the ordinary course of business consistent with past practice (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, “capital leases” in accordance with United States generally accepted accounting principles (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with United States generally accepted accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 3.14, neither the Company nor its Subsidiary (a) does not have has any outstanding Indebtedness (as defined below), (ba) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (cb) is not 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 (dc) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.that

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. No outstanding Indebtedness is secured. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables and broadcast rights payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), or (bii) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (d. Schedule 3(r) is not provides a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment detailed description of the Company’s officers, has or is expected to have a Material Adverse Effectmaterial terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.in

Indebtedness and Other Contracts. Except for the Permitted Senior Indebtedness or as disclosed in the SEC Documentsset forth on Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not is, after giving effect to the amendments to the Permitted Senior Indebtedness as of the Closing, 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, Indebtedness or (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) lists all such outstanding Indebtedness. For purposes of this Agreement: (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.,

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined belowin this Section 3(s)), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, "capital leases" in accordance with United States generally accepted accounting principles (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with United States generally accepted accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as described in Schedule 3(r), neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documents, the Company (a) does not have has any outstanding Indebtedness (as defined below), (bii) except as disclosed in the SEC Documents, is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) except as disclosed in the SEC Documents, is not in violation of any term of of, or in default under 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, (iv) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries or (dv) except as disclosed in the SEC Documents, is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “finance leases” in accordance with GAAP, consistently applied during the periods involved) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital finance lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, finance lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except for the Permitted Senior Indebtedness or as disclosed in the SEC Documentsset forth on Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not is, after giving effect to the amendments to the Permitted Senior Indebtedness as of the Closing, 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, Indebtedness or (div) is not 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(s) lists all such outstanding Indebtedness. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.,

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(r), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(p), none of the Company or any Subsidiary (ai) does not have has any outstanding Indebtedness (as defined below)) except for Permitted Indebtedness and such Indebtedness which will be paid or satisfied in full substantially concurrently with Closing with the proceeds of the purchase of securities hereunder, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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 would be reasonably expected to have a Material Adverse Effect. After giving effect to the issuance of the Notes and Warrants as contemplated by the this Agreement, none of the Company or any Subsidiary will have any outstanding Indebtedness, except for Permitted Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including (without limitation) “capital leases” in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with in respect to of letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with in respect to of 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with in respect to of any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with in respect theretothereof; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and or a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsClosing 8-K, the Company (ai) does not have any has no outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 and (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. The Closing 8-K 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 (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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(s) 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.A)

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. The disclosure letter will provide 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 (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)) other than (A) as disclosed in the SEC Documents or (B) aggregate Indebtedness of less than $100,000 to any individual creditor, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (diii) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication duplication, and not including trade payables entered into in the ordinary course of business (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance (each, a “Lien”) upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except Neither Ocuphire nor any of the Ocuphire Subsidiaries, (i) except as disclosed in the SEC DocumentsSchedule 3(q)(i), the Company (a) does not have has any outstanding Indebtedness Indebtedness, (ii) except as defined belowdisclosed in Schedule 3(q)(ii), (b) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Ocuphire Material Adverse Effect, (ciii) except as disclosed in Schedule 3(q)(iii), is not in violation of any term of of, or in default under 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 Ocuphire Material Adverse Effect, or (div) except as disclosed in Schedule 3(q)(iv), is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the CompanyOcuphire’s officers, has or is expected to have a Ocuphire Material Adverse Effect. Schedule 3(q) provides a detailed description of the material terms of such outstanding Indebtedness. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently applied for the periods covered thereby, GAAP is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations (as defined below) in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, capital lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsCompany's Quarterly Report on Form 10-Q for the period ended February 28, 2006, or Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect, except as otherwise disclosed in Schedule 3(s). Schedule 3(s) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.capital

Indebtedness and Other Contracts. Except as disclosed in the SEC Documentsset forth on Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined belowother than Permitted Senior Indebtedness, the Coty Note and the Company’s Contingent Obligation to pay the Coty Earn Out Payment in accordance with the Coty Purchase Agreement), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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, Indebtedness or (div) is not 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(s) lists all such outstanding Indebtedness. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and organization, any other entity, and/or a government or any department or agency thereof.

Indebtedness and Other Contracts. (i) Except as disclosed in the SEC DocumentsSchedule 3(s)(i), neither the Company (a) does not have nor any of its Subsidiaries has any outstanding Indebtedness (as defined below), (bii) except as disclosed in Schedule 3(s)(ii), neither the Company nor any of its Subsidiaries is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) neither the Company nor any of its Subsidiaries is not 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 (div) neither the Company nor any of its Subsidiaries is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s)(i) 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 (iA) all indebtedness for borrowed moneymoney in excess of $50,000, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services services, including, without limitation, "capital leases" in accordance with GAAP (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, tax, right of first refusal, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSCHEDULE 3(Q), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not in violation of any term of or in default under any contract, agreement agreement, instrument or instrument relating to any Indebtedness, except where such violations and defaults would not result, either individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtednessinstrument, the performance of which, in the judgment judgement of the Company’s 's officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: , (x) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.all

Indebtedness and Other Contracts. Except as disclosed in the Financial Statements, or in the SEC Documents, Documents and except for the guarantee by the Company of the Subsidiaries bank credit, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. The Company’s SEC Documents provide a detailed description of the material terms of any such outstanding Indebtedness . For purposes of this Agreement: (xa) ”“Indebtedness” of any Person the Company or a Subsidiary means, without duplication duplication, any of the following that individually exceeds $200,000: (i1) all indebtedness for borrowed money, (ii2) 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), (iii3) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv4) 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, (v5) 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), (vi6) 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, (vii7) all indebtedness referred to in clauses (i1) through (vi6) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, right to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets Company or property has not assumed or become liable for the payment of such indebtednessa Subsidiary, and (viii) 8) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i1) through (vii7) above; (yb) ”“Contingent Obligation” means, as to any Personthe Company or a Subsidiary, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (zc) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments or otherwise set forth on Schedule 2.13, neither the Company nor any of its Subsidiaries (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 3(s) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services including (without limitation) "Capital Leases" in accordance with generally accepted accounting principles (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” "CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.or

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 5.1(q), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. Schedule 5.1(q) 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 (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.to

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, Neither the Company nor any of its Subsidiaries (ai) does not have any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed moneymoney (other than trade accounts payable incurred in the ordinary course of business), (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, each of the Company and its subsidiaries (ai) does not have any material outstanding Indebtedness (as defined below)or other material debt obligations, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under 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 and (div) is not 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. For purposes The Company has no current intention or expectation to file for reorganization or liquidation under the bankruptcy or reorganization laws of this Agreement: (x) ”any jurisdiction. “Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) all obligations evidenced by notes, bonds, debentures or similar instrumentsassets, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (v) 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), other than trade payables entered into in the ordinary course of business, (viC) 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, (E) 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, (viiF) all indebtedness referred to in clauses (iA) through (viE) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any material property or assets (including accounts and contract rights) owned by any such Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiG) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiF) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.. “

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsCompany's Annual Report on Form 10-KSB for the year ended August 31, 2005, or Schedule 3(s), neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect, except as otherwise disclosed in Schedule 3(s). Schedule 3(s) provides a detailed description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”Indebtedness” "INDEBTEDNESS" of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, "capital leases" in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”Contingent Obligation” "CONTINGENT OBLIGATION" means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” "PERSON" means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsSchedule 3(s), the Company (ai) does not have any has no outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 and (div) is not 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(s) 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 (iA) all indebtedness for borrowed money, (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except Neither Zash, ZVV, the Zash Subsidiaries or the ZVV Subsidiaries, (i) except as disclosed in the SEC Documentson Schedule 4(m), has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of Zash, ZVV, the Company Zash Subsidiaries or the ZVV Subsidiaries or by which Zash, ZVV, the Zash Subsidiaries or the ZVV Subsidiaries is or may become bound, (aii) does not have any outstanding Indebtedness (as defined belowother than with respect to the indebtedness disclosed on Schedule 4(m), (b) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Zash Material Adverse Effect or ZVV Material Adverse Effect, (ciii) other than with respect to the indebtedness disclosed on Schedule 4(m), has any financing statements securing obligations in any amounts filed in connection with Zash, ZVV, the Zash Subsidiaries or the ZVV Subsidiaries; (iv) is not in violation of any term of of, or in default under 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 Zash Material Adverse Effect or ZVV Material Adverse Effect, or (dv) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the CompanyZash’s officers or ZVV’s officers, has or is expected to have a Zash Material Adverse Effect or ZVV Material Adverse Effect. Neither Zash, ZVV, the Zash Subsidiaries or the ZVV Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of Zash, ZVV, the Zash Subsidiaries or the ZVV Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Zash Material Adverse Effect or ZVV Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed expressly set forth in the SEC DocumentsPlan of Reorganization and/or the disclosure statement relating thereto, neither Parent nor the Company (ai) does not have has any outstanding Indebtedness (as defined below)Indebtedness, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would result in a Material Adverse Effect, (ciii) is not 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 (div) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the CompanyParent’s officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.as

Indebtedness and Other Contracts. Except Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documentsdocuments, has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company (a) does not have or any outstanding Indebtedness (as defined below)of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of of, or in default under under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse EffectEffect (other than the Existing Note, any other senior convertible note of the same series, and the Securities Exchange Agreement), or (div) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtednessIndebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the financial statements filed in the SEC DocumentsDocuments or as otherwise expressly permitted hereunder, the Company neither MSMI nor Guarantor (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the CompanyMSMI’s officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except for Permitted Liens, as disclosed in the SEC DocumentsReports or on Schedule 3(v)(ii) hereto, neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not 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 (div) is not 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. The Financial Statements provide a description of the material terms of any such outstanding Indebtedness. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, deed of trust, lien, pledge, changecharge, security interest interest, easement, covenant, right of way, restriction, equity or other encumbrance of any nature whatsoever in or upon or in any property or assets (including accounts and contract rights) with respect to any asset (a “Lien”) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC DocumentsSchedule 3(q), the Company (a) does not have has any outstanding Indebtedness (as defined below), (bii) except as disclosed in the SEC Documents and in Schedule 3(q), is not a party to any contract, material definitive agreement or instrument, (as defined in Item 1.01(b) of the violation of whichCurrent Report on Form 8-K), or default under(iii) neither the Company nor any Subsidiary, by nor any other party to such contract, a material definitive agreement or instrument would result (as defined in a Material Adverse Effect, (cItem 1.01(b) of the Current Report on Form 8-K) is not in material violation of any term of of, or in default under under, such material definitive agreement, including any contract, material definitive 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 (d) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (iA) all indebtedness for borrowed money, (iiB) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including “capital leases” in accordance with GAAP, consistently applied during the periods involved) (other than trade payables entered into in the ordinary course of businessbusiness consistent with past practice), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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), (viF) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principlesGAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, changecharge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, capital lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC Documentson Schedule 2.15 attached hereto, neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined belowbelow in this Section 2.15), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”“Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in set forth on the SEC Documents, Reports neither the Company nor any of its Subsidiaries (ai) does not have has any outstanding Indebtedness (as defined below), (bii) is not a party to any contract, agreement or instrument, the violation of which, or default underunder which, by any the other party party(ies) to such contract, agreement or instrument would could reasonably be expected to result in a Material Adverse Effect, (ciii) is not in violation of any term of or in default under any contract, agreement or instrument relating to any Indebtednessinstrument, except where such violations and defaults would could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect, or (div) is not a party to any contract, agreement or instrument relating to any Indebtednessinstrument, the performance of which, in the judgment of the Company’s 's officers, has or is expected to have a Material Adverse Effect. The Company has filed all material contracts required to be filed in accordance with Item 601 of Regulation S-B as exhibits. For purposes of this Agreement: (xy) ”"Indebtedness” " of any Person means, without duplication (iA) all indebtedness for borrowed moneymoney (including, without limitation, additional borrowings under the Company's existing credit facilities), (iiB) 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), (iiiC) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (ivD) 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, (vE) 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 propertyproperty or asset), (viF) 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, (viiG) all indebtedness referred to in clauses (iA) through (viF) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, changecharge, security interest or other encumbrance (each, a "Lien") upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viiiH) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (iA) through (viiG) above; and (yz) ”"Contingent Obligation” " means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.

Indebtedness and Other Contracts. Except as disclosed in the SEC DocumentsDocuments (as hereinafter defined), neither the Company nor any Subsidiary (a) does not have has any outstanding Indebtedness (as defined below), (b) is not a party to any contract, agreement or instrument, the violation of which, or default under, by any other party to such contract, agreement or instrument would result in a Material Adverse Effect, (c) is not 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 (d) is not 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. For purposes of this Agreement: (x) ”Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) 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), (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) 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, (v) 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), (vi) 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, (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lienLien, pledge, change, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; (y) ”Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; and (z) ”Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.