PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), dated as of May 23, 1997, by and
between SC Fundamental Value Fund, L.P. ("Fund I"), SC Fundamental Value BVI,
Ltd. ("Fund II" and with Fund I, the "Funds") and Xxxxx X. Xxxxxx (each a
"Seller" and collectively, the "Sellers") and the entities identified on
Schedule 1 (each a "Buyer" and collectively, the "Buyers" and together with
Sellers, the "Parties"). All capitalized terms used herein without definition
shall have the respective meanings provided such terms in the Indenture (as
defined below).
RECITALS:
A. The Funds are party to, among other agreements, (i) that certain Note
Purchase Agreement, dated January 23, 1996, pursuant to which Inamed Corporation
("Inamed") issued $35,000,000 11% Secured Convertible Notes (each a "Note" and
collectively, the "Notes") due March 31, 1999 (the "Note Purchase Agreement");
and (ii) that certain letter agreement, dated as of February 27, 1997, with
Inamed, pursuant to which Inamed agreed to a restructuring of its indebtedness
held by the Funds on the terms and conditions set forth therein (the "Letter
Agreement").
B. In connection with the issuance of the Notes, Inamed and Santa Xxxxxxx
Bank & Trust entered into a certain Indenture, dated as of January 2, 1996, the
terms of which, among other things, govern the Notes (the "Indenture" and
together with the Note Purchase Agreement and the Letter Agreement, the
"Transaction Documents").
C. Xxxxx X. Xxxxxx ("Xxxxxx") purchased $40,000 in aggregate principal
amount of a Note from Fund I (the "Xxxxxx Note"), and currently is the Holder of
the Xxxxxx Note.
D. Fund I is currently the Holder of a Note in the principal amount of
$5,856,000 (the "Fund I Note").
E. Fund II is currently the Holder of a Note in the principal amount of
$2,604,000 (the "Fund II Note" and together with the Xxxxxx Note and the Fund I
Note, the "Seller Notes").
X. Xxxxxxx wish to sell, assign and transfer, and Buyers wish to purchase,
the Assigned Interest (as defined below).
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NYFS08...:\68\74168\0012\91\AGR5287N.370
AGREEMENT
NOW, THEREFORE, In consideration of the mutual agreements contained
herein, the Parties hereby agree as follows:
1. Assignment. Upon the terms and subject to the conditions set forth
herein, Sellers hereby sell, assign and transfer to Buyers, in the proportions
set forth next to each Buyer's name in Schedule 1, the Seller Notes and all of
Sellers' right, title, interest, claims and future causes of action, if any, in
and to, or arising under or in connection with, (a) the Transaction Documents;
(b) all collateral and security of any kind that secures the payment of the
Seller Notes, including, without limitation, (i) all security interests or other
Liens that secure payments of the Seller Notes, together with all financing
statements signed by Inamed securing payments of the Seller Notes, and (ii) all
guarantees, indemnities, insurance policies or other agreements or arrangements
supporting or securing payment of the Seller Notes; and (c) the proceeds of any
of the foregoing, including, but not limited to, all accrued but unpaid interest
on the Seller Notes (collectively, the "Assigned Interest").
2. Assumption. Upon the terms and subject to the conditions set forth
herein, Buyers, in the proportions set forth next to each Buyer's name in
Schedule 1, hereby irrevocably purchase, assume and take from Sellers all of
Sellers' obligations under the Transaction Documents, but only to the extent
that such obligations arise and accrue or are attributable to the period from
and after the Closing Date (the "Assumed Obligations"); provided, however, that
notwithstanding any other term of this Agreement, such obligations shall not
include (and Buyers are not assuming or responsible or liable for) any
obligations or liabilities resulting from a breach by the Funds of a
representation, warranty, covenant or agreement under the Note Purchase
Agreement or this Agreement or from Sellers' gross negligence, bad faith or
willful misconduct (the "Excluded Obligations").
3. Payments. In consideration for the transfer of the Assigned Interest
and the execution and delivery of the duly endorsed Seller Notes as described in
Section 4, Buyers delivered to Sellers the Purchase Price set forth on Schedule
A hereto in immediately available funds and as allocated as set forth therein.
The date hereof is hereinafter referred to as the "Closing Date."
4. Delivery of Notes. Sellers hereby deliver to Buyers, in form
satisfactory to Buyers, the Seller Notes duly endorsed to Buyers with signatures
guaranteed and as otherwise required by the Note Purchase Agreement and the
Indenture. Buyers shall
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pay any transfer or other similar fees assessed in connection with the sale of
the Seller Notes.
5. Representations.
(a) Each Seller represents and warrants to Buyers at the Closing
Date as follows (except that the representation in clause (xii) below is only
made by the Funds):
(i) such Seller has full power and authority, and has
taken all action necessary to execute and deliver this Agreement and to
fulfill the obligations hereunder, and to consummate the transactions
contemplated hereby;
(ii) the making and performance by such Seller of this
Agreement does not and will not violate any law or regulation of the
jurisdiction under which such Seller exists or resides, as the case may
be, any other law or regulation applicable to such Seller or any other
agreement to which such Seller is a party or by which such Seller is
bound;
(iii) this Agreement has been duly executed and delivered by
such Seller and constitutes such Seller's legal, valid and binding
obligation, enforceable against such Seller in accordance with the
respective terms hereof;
(iv) no approvals, authorizations or other actions by, or
filings with, any governmental authority is necessary for the validity or
enforceability of such Seller's obligations under this Agreement;
(v) such Seller is a sophisticated seller with respect to
the Assigned Interest and has relied on such Seller's own independent
investigation and not on any information or representations furnished by
Buyers (except as expressly set forth herein) in determining to enter into
this Agreement;
(vi) no broker, finder or other person or entity acting
pursuant to the authority of such Seller is entitled to any broker's fee
or other commission in connection with the transactions contemplated
hereby;
(vii) the outstanding principal amount of such Seller's Note
is as follows (as the case may be):
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Fund I Note --- $5,856,000
Fund II Note --- $2,604,000
Xxxxxx Note --- $ 40,000
(viii) such Seller acknowledges and understands that Buyers
may possess material information with respect to Inamed and its affiliates
not known to such Seller and agrees to waive any claim against Buyers
deriving from or relating to any assertion that such Seller did not have
access to the same confidential information, provided that such
information does not render untrue or inaccurate any representations or
warranties by Buyers.
(ix) such Seller has not, in whole or in part, pledged,
encumbered, assigned, transferred, conveyed, disposed of, terminated or
granted any security interest in any of such Seller's right, title and
interest in and to the Assigned Interest; and such Seller is the sole
legal owner and holder of the Assigned Interest, has undivided good title
to the Assigned Interest, and is transferring sole legal and beneficial
ownership in and to the Assigned Interest to Buyers free and clear of any
liens, claims, charges, encumbrances or any other security interests;
(x) no litigation or adversarial proceeding is pending
against such Seller or, to such Seller's knowledge, threatened against
such Seller, which would affect in any material way the Assigned Interest;
(xi) such Seller has not received any notice, claim or
demand from or on behalf of Inamed or any of such Seller's affiliates or
any other person that the Assigned Interest or any portion thereof is void
or voidable or subject to any defense, right of set-off or recoupment,
counterclaim or impairment of any kind (including, but not limited to,
disallowance, expungement, reduction, subordination or otherwise).
(xii) each of the representations, warranties and
acknowledgments made by the Funds in the Note Purchase Agreement was true
and correct as of the date of the Note Purchase Agreement;
(xiii) except as disclosed in the Report on Schedule 13D, as
amended from time to time, filed by the Funds with the Securities and
Exchange Commission regarding its investment in Inamed and as set forth on
the Ballot attached hereto as Exhibit A, such Seller has not received any
written notice that
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any of the representations, warranties and acknowledgments made by Inamed
in the Note Purchase Agreement or the Indenture was not true and correct
when made;
(xiv) except as disclosed in the Report on Schedule 13D, as
amended from time to time, filed by the Funds with the Securities and
Exchange Commission regarding its investment in Inamed and as set forth on
the Ballot attached hereto as Exhibit A, such Seller has received no
written notice that Inamed has materially breached any of the respective
representations, warranties, covenants or agreements under the Note
Purchase Agreement;
(xv) the Notes are secured by a valid, perfected and
enforceable security interest in Inamed's assets as described in the Note
Purchase Agreement; and
(xvi) other than (i) the First Supplement to the Indenture,
dated as of June 20, 1996, and (ii) the Second Supplement to the
Indenture, as contemplated by the Letter Agreement, such Seller has not
authorized, nor to such Seller's knowledge have there been, any
alterations or modifications to the Notes or the Indenture since the
execution of the Note Purchase Agreement.
(b) Each Buyer represents and warrants to Sellers at the Closing
Date that:
(i) such Buyer has full power and authority, and has taken
all action necessary to execute and deliver this Agreement and to fulfill
the obligations hereunder, and to consummate the transactions contemplated
hereby;
(ii) the making and performance by such Buyer of this
Agreement does not and will not violate any law or regulation of the
jurisdiction under which such Buyer exists, any other law or regulation
applicable to such Buyer or any other agreement to which such Buyer is a
party or by which such Buyer is bound;
(iii) this Agreement has been duly executed and delivered by
such Buyer and constitutes such Buyer's legal, valid and binding
obligation, enforceable against such Buyer in accordance with the
respective terms hereof;
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(iv) no approvals, authorizations or other actions by, or
filings with, any governmental authority is necessary for the validity or
enforceability of such Buyer's obligations under this Agreement;
(v) such Buyer is a sophisticated purchaser with respect
to the Assigned Interest and has relied on such Buyer's own independent
investigation and not on any information or representations furnished by
Seller (except as expressly set forth herein) in determining to enter into
this Agreement;
(vi) such Buyer is an "accredited investor" within the
meaning of Section 2(15) of the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
(vii) other than with respect to Xxxxxxx Sachs & Company,
whose commission shall be paid by Buyers, no broker, finder or other
person or entity acting pursuant to the authority of such Buyer is
entitled to any broker's fee or other commission in connection with the
transactions contemplated hereby; and
(viii) such Buyer acknowledges and understands that Sellers
may possess material information with respect to Inamed and its affiliates
not known to such Buyer and agrees to waive any claim against Sellers
deriving from or relating to any assertion that Buyer did not have access
to the same confidential information, provided that such information dos
not render untrue or inaccurate any representations or warranties by
Sellers.
(ix) Sellers have not given any investment, legal or other
advice or rendered any opinion as to whether the purchase of the Assigned
Interest is prudent, and such Buyer is not relying on any representation
or warranty by Sellers except as expressly set forth in this Agreement;
(x) such Buyer has received, reviewed and relied upon
adequate information concerning the legal, business and financial
condition of Inamed to make an informed decision regarding the purchase of
the Assigned Interest and assumption of the Assumed Obligations;
(xi) such Buyer has fully considered for purposes of its
investment represented by the Assigned Interest, the risks of such
investment and acknowledges that the purchase of the Assigned Interest
involves a high
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degree of risk of loss by it of its investment therein and can afford to
bear the economic risk of holding the Seller Notes for an indefinite
period of time or losing its investment therein; and
(xii) such Buyer is acquiring the Assigned Interest for
investment for its own account and not with a view to, or for resale in
connection with, any distribution or public offering of all or any part
thereof or of any interest therein or in a manner that would violate
applicable securities laws; provided, however, that this Section is
without prejudice to Buyers' rights to effect such resale in accordance
with all applicable laws.
6. Distributions. Should any Seller receive any payment of cash or cash
equivalents, or distributions of securities or other property with respect to or
an account of the Assigned Interest ("Distributions") at any time after the
Closing Date, it will hold the same for the sole benefit of Buyers and pay the
same over to Appaloosa Investment Limited Partnership I ("Appaloosa") within
three (3) business days of receipt by such Seller in the currency received by it
or, in the case of securities (to the extent permissible by law and relevant
documentation), endorse (without recourse or warranty, express or implied) or
deliver transfer powers duly endorsed in blank in Appaloosa's name or such name
as Appaloosa may direct (at Appaloosa's sole expense) in writing and deliver to
Appaloosa or such person as Appaloosa may direct such securities within ten (10)
business days after receipt of any such Distribution. If any cash Distribution
is not paid to Appaloosa within such time period, such Seller shall pay interest
on such Distribution for the period from the day on which such Distribution was
actually received by such Seller to (but excluding) the day such Distribution is
actually paid to Appaloosa, at a rate per annum equal to the overnight Federal
Funds Rate as most recently published in the Wall Street Journal (Eastern
Edition), plus two percent (2%). Until payment is made pursuant to this Section
6, such Seller shall hold the same as agent for Appaloosa's account.
7. Indemnification.
(a) By Seller. Each Seller agrees to severally, and not jointly,
indemnify, defend and hold each of Buyers and their respective officers,
directors, employees, agents, partners and controlling persons (collectively,
the "Buyer Indemnitees") harmless from and against any and all expenses, losses,
claims, damages and liabilities which are incurred by or threatened against the
Buyer Indemnitees, or any of them, including, without limitation, reasonable
attorneys' fees and expenses, caused by, or in any way resulting from or
relating to: (i) such Seller's breach of any
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of the representations, warranties, covenants or agreements of such Seller set
forth in this Agreement; or (ii) the Excluded Obligations.
(b) By Buyer. Each Buyer agrees to severally, and not jointly,
indemnify, defend and hold each of Sellers and their respective officers,
directors, employees, agents, partners and controlling persons (collectively,
the "Seller Indemnitees") harmless from and against any and all expenses,
losses, claims, damages and liabilities which are incurred by or threatened
against the Seller Indemnitees, or any of them, including, without limitation,
reasonable attorneys' fees and expenses, caused by, or in any way resulting from
or relating to (i) Buyer's breach of any of the representations, warranties,
covenants or agreements of Buyer set forth in this Agreement; or (ii) the
Assumed Obligations.
8. Miscellaneous.
(a) Binding Agreement; Survival. This Agreement, including, without
limitation, the representations, warranties, agreements, covenants and
indemnities contained herein, shall be binding upon, enforceable by, and inure
to the benefit of each of the Parties and their respective successors and
assigns. The representations, warranties, covenants, agreements and indemnities
contained herein shall survive the execution, delivery and performance of this
Agreement for the period of eighteen months after the date hereof.
(b) Amendments; Entire Agreement. Any amendments to, or waivers of,
this Agreement shall be in writing only and signed by each of the Parties. This
Agreement and that certain Trade Confirmation revised May 13, 1997 among the
Parties constitute the entire agreement of the Parties with respect to the
subject matter hereof. To the extent there are any inconsistencies between this
Agreement and such Trade Confirmation, the terms of this Agreement shall
control.
(c) Costs and Expenses. Buyers agree to bear, and promptly pay to
the Funds, the legal costs and expenses of Sellers incurred in connection with
the preparation, execution and completion of this Agreement and of related
documentation up to a maximum aggregate amount of $3,500. Except for such legal
costs and expenses, each Party agrees to bear its own legal and other costs and
expenses in connection with the preparation, execution and completion of this
Agreement and of related documentation.
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(d) JURISDICTION. EACH PARTY HEREBY IRREVOCABLY CONSENTS TO THE
PERSONAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED
STATES OF AMERICA SITTING IN THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION TO
ENFORCE, INTERPRET OR CONSTRUE ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER
AGREEMENT OR DOCUMENT DELIVERED IN CONNECTION WITH THIS AGREEMENT. EACH PARTY
FURTHER IRREVOCABLY AGREES THAT ANY ACTION TO ENFORCE, INTERPRET OR CONSTRUE ANY
PROVISION OF THIS AGREEMENT WILL BE BROUGHT ONLY IN EITHER OF THOSE COURTS AND
NOT IN ANY OTHER COURT.
(E) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, AND THE
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE DETERMINED, IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISIONS
THEREOF. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN CONNECTION WITH
ANY ACTION, PROCEEDING OR COUNTERCLAIM INSTITUTED WITH RESPECT TO THIS
AGREEMENT.
(f) Further Assurances. From and after the date hereof, each Party
covenants and agrees to execute and deliver all such agreements, instruments and
documents and to take all such further actions as the other Party may reasonably
deem necessary from time to time (at the requesting Party's expense) to carry
out the intent and purposes of this Agreement and to consummate the transactions
contemplated hereby and to fully effect the transfer of the Assigned Interest to
Buyer including, without limitation, the execution and delivery of any opinions
of Sellers' counsel required pursuant to the Indenture (the costs of which,
subject to Section 8(c) of this Agreement, shall be borne by Buyers).
(g) Counterpart Execution; Telecopies. This Agreement may be
executed in any number of counterparts, each of which, when so executed and
delivered, shall be an original, but all of which together shall constitute one
agreement binding all of the Parties hereto. Transmission by telecopier of an
executed counterpart of this Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart, provided that the Party so delivering
such counterpart shall, promptly after such delivery, deliver the original of
such Counterpart of this Agreement to the other Party hereto.
(h) Waivers; Remedies. No failure on the part of either Party to
exercise, and no delay in exercising, any right hereunder or under any related
document shall operate as a waiver thereof by such Party, nor shall any single
or partial exercise of any right hereunder or under any other related document
preclude any other or further exercise thereof of the exercise of any other
right.
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(i) Voting and Instructions. From and after the Closing Date, Buyers
shall have sole authority to exercise all voting and other rights and remedies
in respect of the Assigned Interest. If for any reason Seller is entitled to
exercise any such voting or other rights and remedies in respect of the Assigned
Interest (including, without limitation, the right to vote) thereafter, Seller
shall, except as prohibited under any applicable law or contract, use reasonable
efforts to exercise such rights in accordance with the written instructions of
Buyers.
(j) Notices. All demands, notices, requests, consents, directions
and communications hereunder shall be in writing and shall be delivered at the
addresses and facsimile numbers set forth on the signature pages hereof and, if
sent by facsimile, a hard copy shall be delivered within one day to such
address.
(k) No Recourse Against Partners; Several Liability. Notwithstanding
anything contained in this Agreement to the contrary, the Parties agree that (i)
no general or limited partner of any Party shall be personally liable for any
obligation or liability of such Party under this Agreement; and (ii) all
obligations and liabilities of each Party under this Agreement are enforceable
solely against such Party and the assets of such Party and not against any
assets of any general or limited partner of such Party.
(l) Subrogation. To the extent Buyers are entitled to any remedy
under this Agreement against Sellers, then Sellers shall, subject to Buyers
having actually received a payment or remedy, be subrogated to Buyers' rights
against Inamed or any of its affiliates, representatives or agents with respect
thereto.
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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement
as of the date first above written.
SC FUNDAMENTAL VALUE FUND, L.P. APPALOOSA INVESTMENT LIMITED
PARTNERSHIP I
By: SC Fundamental, Inc., By: Appaloosa Management, L.P.
as general partner as general partner
By: Appaloosa Partners, Inc.
as general partner
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- -------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Treasurer Title: Vice President
SC FUNDAMENTAL VALUE BVI, LTD. PALOMINO FUND LTD.
By: SC BVI Partners, By: Appaloosa Management, L.P.
as investment advisor as general partner
By: SC Fundamental BVI, Inc., By: Appaloosa Partners, Inc.
as managing partner as general partner
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- -------------------------------
Name: Xxxx X. Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Treasurer Title: Vice President
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XXXX, L.P.
By: Appaloosa Management, L.P.
as general partner
By: Appaloosa Partners, Inc.
as general partner
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- ------------------------------
XXXXX XXXXXX Name: Xxxxx X. Xxxxx
Title: Vice President
Address for Notice: Address for Notice:
------------------ ------------------
SC Fundamental Value Fund, L.P. Appaloosa Management, L.P.
SC Fundamental Value BVI, Ltd. 00 Xxxx X. Xxxxxxx Xxxxxxx
Xxxxx Xxxxxx Xxxxx Xxxxx, Xxx Xxxxxx 00000
000 Xxxxx Xxxxxx, 00xx Xxxxx Attention: Xxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Telephone No.: (000) 000-0000
Attention: Xxxxx Xxxxxx Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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Payment Instructions: Payment Instructions:
--------------------- ---------------------
Chase Manhattan Bank Appaloosa Investment Limited Partnership I
ABA #000-000-000 ABA No.: 000-000-000
Acct. #000-0-000000 FAO: Xxxxxxx, Xxxxx & Co.
F/A/O M.L.P.F.& S. Inc. Account No.: 000-0-000000
SC Fundamental Value Fund, L.P. FFC: Appaloosa Investment Limited Partnership
Acct. #329-33366 A/C No.: 000-00000-0
Chase Manhattan Bank Palomino Fund Ltd.
ABA #000-000-000 ABA No.: 000-000-000
Acct. #000-0-000000 FAO: Xxxxxxx, Xxxxx & Co.
F/A/O M.L.P.F.& S. Inc. Account No.: 000-0-000000
SC Fundamental Value BVI, Ltd. FFC: Palomino Fund Ltd.
Acct. #329-33368 A/C No.: 000-00000-0
Chase Manhattan Bank Xxxx, L.P.
ABA #000-000-000 ABA No.: 000-000-000
F/A/O Xxxxx X. Xxxxxx FAO: Xxxxxxx, Xxxxx & Co.
Acct. #036-000-121-665 Account No.: 000-0-000000
FFC: Xxxx, L.P.
A/C No.: 000-00000-0
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SCHEDULE 1
Appaloosa Investment Limited Partnership I $4,159,900
Palomino Fund Ltd. $3,384,770
Xxxx, L.P. $ 955,400
----------
$8,500,000
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SCHEDULE A
PURCHASE PRICE
--------------
Outstanding Principal Amount of Seller Notes $8,500,000
Accrued and Unpaid Interest $ 137,653
----------
Purchase Rate 100%
Purchase Price $8,637,653
----------
Amount received by the Funds $8,597,005
Amount received by Xxxxx Xxxxxx $ 40,648
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EXHIBIT A
Ballot
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EXHIBIT A
BALLOT FOR ISSUANCE OF WARRANTS TO FUND
LITIGATION SETTLEMENT
Fax: (000) 000-0000
INAMED Corporation
Attn: Xxxxxx X. XxXxxx
Chief Executive Officer and Chairman
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Dear Xx. XxXxxx:
The undersigned hereby acknowledges and accepts the terms of the Second
Supplemental Indenture to the Indenture (the "Indenture") dated January 2, 1996
governing INAMED Corporation's 11% Secured Convertible Notes due 1999 (the
"Notes"), dated April 15, 1997 (the "Supplement") and the terms of the Warrant
Agreement dated April 15, 1997. Provided that (i) the Company has paid all
taxes, assessments, governmental charges and other claims relating to all
periods ended on or before December 31, 1996 (as provided in Section 8.6 of the
Indenture) and (ii) the Company has not made any material misstatement of fact
or misrepresentation in any certificate submitted to the Holders (as defined in
the Indenture) (as the date such certificate was issued), the undersigned hereby
waives compliance with any Default or Event of Default under Section 8.6 of the
Indenture for the quarter ended March 31, 1997, acknowledges that the Company is
not in Default under such provision for the periods ended on or before December
31, 1996, and authorizes and instructs Santa Xxxxxxx Bank & Trust as Trustee
under the Indenture to execute and deliver the Supplement. For the avoidance of
doubt, [except for the waiver of the Company's breach of Section 2.18 of the
Note Purchase Agreement (as defined in the Indenture) provided in the letter
agreements dated February 27, 1997], the above waiver is not, and shall not be
deemed to constitute, a waiver of (i) any material misstatement of fact of
misrepresentation in any certificate submitted to the Holders (as defined in the
Indenture) or otherwise prior to the date hereof or (ii) the Company's
noncompliance with Section 8.6 of the Indenture at any time after March 31,
1997.
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For:
By:______________________________
Title:___________________________
Date:____________________________
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