Exhibit 99.4
MEDIABAY, INC.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
October 3, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ Corporation
c/o The ▇▇▇▇▇▇▇ Company, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: LOAN AGREEMENT
Gentlemen:
Reference is made to the Amended and Restated Credit Agreement dated as of
April 30, 2001, by and among MediaBay, Inc. (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
and Audio Book Club, Inc., as borrowers, and the banks, financial institutions
and other institutions named therein, as amended to date (the "Credit
Agreement"), the obligations of the Company under which are scheduled to mature
on January 15, 2003. The lenders under the Credit Agreement (the "Lenders") have
agreed to amend the Credit Agreement substantially in the form of Exhibit A
annexed hereto (the "Amended Credit Agreement"), and as a condition to entering
into the Amended Credit Agreement, the Lenders require that the Company obtain
at least $1,500,000 of additional financing and that Huntingdon extend the
maturity dates of the Existing Notes (defined below).
This letter agreement (the "Agreement") confirms our agreement and
understanding with respect to the following matters:
1. Initial Financing.
(a) As consideration for Huntingdon Corporation ("Huntingdon") advancing
to the Company an aggregate of $1,000,000 through the date hereof (collectively,
the "Initial Financing") for working capital purposes, on the date hereof, the
Company shall deliver to Huntingdon a $1,000,000 principal amount convertible
senior promissory note secured by all of the assets (other than cash, accounts
receivable and inventory) of the Company and containing such other terms as set
forth in Exhibit B annexed hereto (the "Initial Financing Note").
(b) As further consideration for the Initial Financing, on the date
hereof, the Company shall issue to Huntingdon warrants to purchase up to 250,000
shares of common stock, no par value, of the Company (the "Common Stock") at an
initial exercise price of $2.00 per share pursuant to a warrant agreement (the
"Warrant Agreement") in the form of Exhibit C annexed hereto (the "Initial
Financing Warrants").
2. Second Financing.
(a) Huntingdon shall loan to the Company $150,000 (the "Second
Financing"), payable to the Company by wire transfer of immediately available
funds on or before October 10, 2002 (the "Second Financing Date").
(b) As consideration for the Second Financing, on the Second Financing
Date, the Company shall execute and deliver to Huntingdon a convertible senior
promissory note in the principal amount of $150,000, secured by all of the
assets of the Company (other than cash, accounts receivable and inventory) of
the Company and containing such other terms as set forth in Exhibit D annexed
hereto (the "Second Financing Note"). The Second Financing Note shall be
convertible into shares of Common Stock at an initial conversion rate equal to
(i) $2.00 or (ii) the closing sale price of the Common Stock on the Second
Financing Date, whichever is lower.
(c) As additional consideration for the Second Financing, on the Second
Financing Date, the Company shall issue to Huntingdon warrants to purchase up to
a number of shares of Common Stock equal to 50% of a fraction, the numerator of
which is $150,000 and the denominator of which is the initial conversion rate of
the Second Financing Note, at an initial exercise price per share equal to the
initial conversion rate of the Second Financing Note (the "Second Financing
Warrants") pursuant to the Warrant Agreement.
3. Third Financing.
(a) Huntingdon shall loan to the Company $350,000 (the "Third Financing"),
payable to the Company by wire transfer of immediately available funds on or
before November 15, 2002 (the "Third Financing Date").
(b) As consideration for the Third Financing, on the Third Financing Date,
the Company shall execute and deliver to Huntingdon a convertible senior
promissory note in the principal amount of $350,000 secured by all of the assets
of the Company (other than cash, accounts receivable and inventory) of the
Company and containing such other terms as set forth in Exhibit D annexed hereto
(the "Third Financing Note"). The Third Financing Note shall be convertible into
shares of Common Stock at an initial conversion rate equal to (i) $2.00 or (ii)
the closing sale price of the Common Stock on the Third Financing Date,
whichever is lower.
(c) As additional consideration for the Third Financing, on the Third
Financing Date, the Company shall issue to Huntingdon warrants to purchase up to
a number of shares of Common Stock equal to 50% of a fraction, the numerator of
which is $350,000 and the denominator of which is the initial conversion rate of
the Third Financing Note at an initial exercise price per share equal to the
initial conversion rate of the Third Financing Note (the "Third Financing
Warrants") pursuant to the Warrant Agreement.
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4. Supplemental Financings.
(a) Huntington may loan to the Company up to an additional $1,500,000
(each such loan, a "Supplemental Financing") at any time, from time to time,
upon the mutual agreement of Huntingdon and the Company.
(b) In the event Huntingdon loans all or a portion of the Supplemental
Financing to the Company in accordance with Section 4(a) above, the Company
shall (i) deliver to Huntingdon a convertible senior subordinated unsecured
promissory note in the principal amount of the Supplemental Financing made on
such date, containing such other terms as set forth in Exhibit E annexed hereto
(the "Supplemental Financing Note") and (ii) issue to Huntingdon warrants to
purchase a number of shares of Common Stock equal to 50% of a fraction, the
numerator of which is the principal amount of such Supplemental Financing Note
and the denominator of which is the initial conversion rate of the Supplemental
Financing Note, at an exercise price per share equal to the initial conversion
rate of the Supplemental Financing Note (the "Supplemental Amount Warrants")
pursuant to the Warrant Agreement. The Supplemental Financing Note shall be
convertible into shares of Common Stock at an initial conversion rate equal to,
(i) (x) in the case of a Supplemental Financing made on or before December 24,
2002, $2.00 or (y) the closing sale price of the Common Stock on the date of
such Supplemental Financing, whichever is lower or (ii) in the case of a
Supplemental Financing made after December 24, 2002 the closing sale price of
the Common Stock or the date of such Supplemental Financing.
5. Other Financing Documents.
(a) In connection with the Financings (defined below), each of the Company
and Huntingdon shall enter into an amendment to the Security Agreement dated as
of April 30, 2001 by and among the Company, the subsidiaries of the Company set
forth on Schedule 2 annexed thereto and Huntingdon, in the form of Exhibit F
annexed hereto (the "Security Agreement Amendment").
(b) In connection with each of the Financings except for the Supplemental
Financing, each of the Company, Huntingdon and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ shall enter into
an amendment to the Intercreditor Agreement dated as of April 30, 2001, by and
among the Company, Huntingdon and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the form of Exibit G annexed
hereto (the "Intercreditor Agreement Amendment").
(c) In connection with the Financings, each of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. and
Audio Book Club, Inc. shall enter into an amendment to the Guaranty dated as of
April 30, 2001 made in favor of Huntingdon in the form of Exhibit H annexed
thereto.
6. Registration Rights Agreement.
The Registration Rights Agreement dated as of April 30, 2001 (the
"Registration Rights Agreement") by and among the Company, Huntingdon, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ shall be amended and restated in the form attached
hereto as Exhibit I, pursuant to which, among other things, the Company shall
grant to Huntingdon certain registration rights with respect to the shares of
Common Stock issuable upon (i) conversion of the Financing Notes (defined below)
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and (ii) exercise of the Financing Warrants (defined below), upon the terms and
conditions set forth therein.
7. Additional Definitions.
(a) The term "Financing Notes" means the Initial Financing Note, the
Second Financing Note, the Third Financing Note and the Supplemental Financing
Notes, if any.
(b) The term "Financing Warrants" means the Initial Financing Warrants,
the Second Financing Warrants, the Third Financing Warrants and the Supplemental
Financing Warrants, if any.
(c) The term "Financings" means the Initial Financing, the Second
Financing, the Third Financing and the Supplemental Financings, if any.
(d) The term "$2,500,000 Note" means the $2,500,000 principal amount
convertible senior promissory note issued to Huntingdon on May 14, 2001, as
amended.
(e) The term "$800,000 Note" means the $800,000 principal amount
convertible senior subordinated promissory note issued to Huntingdon on May 14,
2001, as amended.
(f) The term "$500,000 Note" means the $500,000 principal amount
convertible senior promissory note issued to Huntingdon on February 22, 2002.
(g) The term "Existing Notes" means the $2,500,000 Note, the $800,000 Note
and the $500,000 Note.
8. Representations and Warranties.
(a) Huntingdon hereby represents, warrants and acknowledges to the Company
that:
(i) Huntingdon is a corporation duly organized under the laws of the
State of Florida and has full power and authority to execute and deliver this
Agreement, Warrant Agreement, the Security Agreement Amendment, the
Intercreditor Agreement Amendment and the Registration Rights Agreement. This
Agreement, together with the Warrant Agreement, the Security Agreement
Amendment, the Intercreditor Agreement Amendment and the Registration Rights
Agreement are hereinafter collectively referred to as the "Huntingdon
Agreements") and to perform its obligations thereunder. The execution and
delivery of the Huntingdon Agreements by Huntingdon and the performance by
Huntingdon of its obligations thereunder have been duly authorized by all
necessary corporate action on the part of Huntingdon. Each of the Huntingdon
Agreements has been duly executed and delivered by Huntingdon and constitutes
the legal, valid and binding obligation of Huntingdon, enforceable against
Huntingdon in accordance with its terms.
(ii) Huntingdon is a sophisticated purchaser and has received and
reviewed copies of the Company's most recent annual report, proxy statement and
other recent filings by the Company with the Securities and Exchange Commission
under the Securities Exchange Act of 1934, as amended, and such other
information concerning the Company and its business, financial condition and
results of operations as to be able to make an informed analysis and
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decision regarding the purchase of the Financing Notes and Financing Warrants
and the shares of the Company's common stock issuable upon conversion and/or
exercise thereof, as the case may be (collectively, the "Securities").
Huntingdon has had a reasonable opportunity to ask questions of and receive
answers from the Company, and all such questions, if any, have been answered to
Huntingdon's full satisfaction. Huntingdon has such knowledge and expertise in
financial and business matters that Huntingdon is capable of evaluating the
merits and risks involved in the purchase of the Securities. Huntingdon is
acquiring and will acquire, as applicable, the Securities solely for its own
account, for investment purposes only, and not with a view towards their resale
or distribution other than in accordance with an effective registration
statement under the Securities Act of 1933, as amended (the "Act") or an
applicable exemption therefrom. Huntingdon is an "accredited investor," as such
term is defined in Regulation D of the Rules and Regulations promulgated under
the Act.
(iii) Huntingdon understands that (a) the sale of the Securities to
Huntingdon has not been registered under the Act or the securities laws of any
state, based upon an exemption from such registration requirements for
non-public offerings pursuant to the Act and regulations thereunder; (b) the
Securities are and will be "restricted securities", as said term is defined in
Rule 144 of the Rules and Regulations promulgated under the Act; (c) the
Securities may not be sold or otherwise transferred unless they have been first
registered under the Act and all applicable state securities laws, or unless
exemptions from such registration provisions are available with respect to said
resale or transfer; (d) except as provided in the Registration Rights Agreement,
the Company is under no obligation to register the Securities under the Act or
any state securities laws, or to take any action to make any exemption from any
such registration provisions available; (e) the certificates for the Securities
will bear a legend to the effect that the transfer of any of the securities
represented thereby is subject to the provisions hereof; and (f) stop transfer
instructions will be placed in the Company's records with respect to the
Securities.
(b) The Company hereby represents, warrants and acknowledges to Huntingdon
that:
(i) The Company is a corporation duly organized under the laws of
the State of Florida and has full power and authority to execute and deliver the
Financing Notes, the Financing Warrants and the Huntingdon Agreements (the
Huntingdon Agreements, together with the Notes and Warrants, are hereinafter
collectively referred to as the "Company Agreements"), and to perform its
obligations thereunder. The execution and delivery of the Company Agreements by
the Company and the performance by the Company of its obligations thereunder
have been duly authorized by all necessary corporate action on the part of the
Company. Each of the Company Agreements has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms.
(ii) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued common stock, the
full number of shares of Common Stock issuable upon conversion and/or exercise
of the Financing Notes and Financing Warrants, as the case may be, and upon due
conversion and/or exercise thereof, as the case may be, pursuant to their
respective terms (including the payment of the exercise price thereof with
respect to the exercise of the Financing Warrants), the shares of the Common
Stock issuable upon such conversion and/or exercise, as the case may be, will be
duly authorized, validly issued, fully paid and non-assessable.
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(iii) The execution, delivery and performance by the Company of the
Company Agreements and the consummation by the Company of the transactions
contemplated thereby do not (A) violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award or (B) conflict with or
result in the breach of, or constitute a default under, any material contract,
loan agreement, indenture, mortgage, deed of trust, lease or other material
instrument or agreement binding on or affecting the Company.
9. Existing Notes
(a) The Company and Huntingdon agree that the maturity date of the
$2,500,000 Note shall be extended to September 30, 2007.
(b) The Company and Huntingdon agree that the maturity date of the
$800,000 Note shall be extended to September 30, 2007.
(c) The Company and Huntingdon agree that the maturity date of the
$500,000 Note shall be extended to September 30, 2007.
(d) The Company and Huntingdon agree that the $2,500,000 Note and the
$500,000 Note shall be amended adding a new Section 1.9 to each such note after
the end of Section 1.8 of each such note which reads as follows:
1.9 The Holder shall have the right, at any time on or after the
date on which the Company has repaid all of its obligations
under the Senior Credit Agreement to make a demand for payment
of the unpaid principal balance of, and interest on, this Note
and, on such date, the outstanding principal balance of, and
interest on, this Note shall become due and payable.
(e) The Company and Huntingdon agree that the $800,000 Note shall be
amended by adding a new Section 1.9 after the end of Section 1.8 of such note
which reads as follows:
1.9 The Holder shall have the right, at any time on or after the
ninetieth (90th) date after the date on which the Company has
repaid all of its obligations under the Senior Credit
Agreement, to make a demand for payment of the unpaid
principal balance of, and interest on, this Note and on such
date, the outstanding principal balance of, and interest on,
this Note shall become due and payable.
(f) Huntingdon and the Company acknowledge, however, that ING (U.S.)
Capital Corporation and the other lender parties to the Amended Credit Agreement
(the "Lender Parties") are relying on the extensions of the maturity dates of
the Existing Notes as third-party beneficiaries of Sections 9(a) through (f)
and, therefore, agree not to change the maturity date of any Existing Note or
the date on which Huntingdon may demand repayment of any Existing Note to a date
prior to the date on which the Company repays all of its obligations under the
Amended Credit Agreement (or 90 days after such date in the case of the $800,000
Note).
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(g) Huntingdon waves any rights it may have under the Existing Notes which
relates to or arise out of this Agreement including, without limitation, the
covenants and conditions set forth in Sections 6.2, 6.3 and 6.4 of each of the
Existing Notes.
(h) As consideration for extending the maturity dates of the Existing
Notes and the consent and waiver set forth in Section 9(e), notwithstanding
Section 1.6 of each Existing Note, the Company agrees, for so long as any
Existing Note is held by Huntingdon, not to prepay any Existing Note (in whole
or in part) unless the Company provides 90 business days prior written notice to
Huntingdon of such prepayment.
(i) Section 1.1 of each Existing Note shall be amended by adding the
following sentence after the last sentence of Section 1.1:
Any interest on this Note which is not paid on the date such
interest payment is due shall accrue interest from and after the
date such interest payment was due (including due to the fact that
it was accrued in accordance with this Section 1.1) at the same rate
of interest as payable on the unpaid principal balance of this Note,
and shall be paid on the same date on which any interest accrued on
the unpaid principal balance of this Note is paid.
10. As long as any Financing Note is held by Huntingdon, without the prior
written consent of Huntingdon, the Company will not, and will not permit any
subsidiary to, directly or indirectly, create, incur, assume, guarantee, or
otherwise become directly or indirectly liable with respect to, any Debt
(defined in the Financing Notes), other than:
(a) this Note and any guaranties thereof;
(b) Debt owing by the Company to any wholly-owned subsidiary of the
Company and Debt of a subsidiary of the Company owing to the Company or a
wholly-owned subsidiary of the Company;
(c) Debt existing or issued on the Issue Date and listed on Schedule 10
(including Debt under the Amended Credit Agreement);
(d) Debt incurred under the Senior Credit Facility (defined in the
Financing Notes) from time to time following the Issue Date;
(e) Debt incurred or created to refinance any of the Debt permitted by
clauses (C) and (D) of this Section 10, provided that in the case of Debt listed
on Schedule 10 (other than Debt under the Senior Credit Facility and refinancing
thereof), the principal amount does not exceed the principal amount of Debt
being refinanced;
(f) Debt (other than the Financing Notes) owing by the Company or a
subsidiary thereof to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (together, the "Herricks") and/or any of their respective
affiliates;
(g) Debt incurred by the Company or a subsidiary thereof to finance the
payment of the Change in Control Purchase Price (defined in the Financing Notes)
of the Financing Notes;
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(h) The Financing Notes;
(i) Debt, in addition to the Debt permitted to be incurred by the clauses
(A) through (H) of this Section 10, in the principal amount at any time
outstanding not to exceed $1,000,000;
(j) Any Guaranties made or issued by the Company of Debt permitted to be
incurred by any of its subsidiaries pursuant to clauses (E), (F), (G), (H) and
(I) above and clause (K) below and Guaranties (defined in the Financing Notes)
made or issued by subsidiaries of the Company of Debt permitted to be incurred
by the Company pursuant to clauses (C), (D), (E), (F), (G), (H) and (I) above
and clause (K) below; and
(k) Any other Debt permitted to be incurred by the Company or any of its
subsidiaries consistent with the terms of the Amended Credit Agreement as in
effect on the Date of this Agreement.
11. As long as any Financing Note is held by Huntingdon, without the prior
written consent of Huntingdon, the Company will not, and will not permit any
subsidiary thereof to, incur, assume or Guaranty any Debt which is subordinated
in right of payment to any other Debt of the Company or any subsidiary thereof,
unless such Debt is also subordinated in right of payment to the obligations of
the Company in respect of this Note on terms reasonably acceptable to the
Holder.
12. Preferred Stock Exchange.
In the event that the Company and Huntingdon mutually agree to exchange
the debt represented by one or more of the Existing Note and/or the Financing
Notes for equity securities of the Company, in lieu of Huntingdon converting the
Note, all or a portion of the Existing Notes and/or Financing Notes may be
exchanged for shares of one or more newly created series of preferred stock,
which series shall rank pari passu in all respects with the Series A Convertible
Preferred Stock of the Company, and otherwise have substantially similar rights,
preferences and privileges as, the Series A Convertible Preferred Stock of the
Company, except that the conversion rate of any newly created of preferred stock
shall be the same as the conversion rate of the Existing Note or Financing Note
it is issued in exchange for and any preferred stock issued upon exchange of a
Financing Note will have the same anti-dilution provisions as such Financing
Note.
13. Further Assurances.
Huntingdon and the Company shall, from time to time and at any time
following the delivery of this Agreement, at the request of the other party to
this Agreement, execute and deliver to the requesting party all such further
instruments and take all such further action as may be reasonably necessary or
appropriate in order to accomplish the intents and purposes of this Agreement
and to carry out its provisions.
14. Amendment.
This Agreement may only be amended by a written instrument executed by
Huntingdon and the Company; provided, however, that Section 5(b) hereof may only
be amended by a written instrument executed by Huntingdon, the Company and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and the last
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sentence of Section 9(f) may only be amended by a written instrument entered by
Huntingdon, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Lender Parties.
15. Entire Agreement.
This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings of the parties, oral and written, with respect to the subject
matter hereof.
16. Breach; Waiver of Breach.
The failure of any party hereto to insist upon strict performance of any
of the covenants and agreements contained in this Agreement or to exercise any
option or right conferred in this Agreement in any one or more instances shall
not be construed to be a waiver or relinquishment of any such option or right or
of any other covenants or agreements, and the same shall be and remain in full
force and effect.
17. Notices.
All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed duly made when received if (i) delivered by
hand, (ii) sent by overnight courier, (iii) mailed by registered or certified
mail, postage prepaid, return receipt requested, or (iv) sent by confirmed
facsimile, as follows:
(a) If to Huntingdon, to:
c/o The ▇▇▇▇▇▇▇ Company, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(b) If to the Company, to:
MediaBay, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
18. Governing Law.
(a) This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to any choice
of law rules which would require the application of the law of any other
jurisdiction.
(b) Huntingdon and the Company agree that any suit, action or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby or any action or proceeding to execute or otherwise enforce any judgment
with respect to any breach of this Agreement may be brought in any federal
district court located in New York County, New York, or any New York State court
located in New York County, New York, as the moving party may in his or its sole
discretion elect, and by the execution and delivery of this Agreement,
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▇▇▇▇▇▇▇▇▇▇ and the Company irrevocably and unconditionally submit to the
non-exclusive in personam jurisdiction of each such court, and Huntingdon and
the Company irrevocably waive and agree not to assert in any proceeding before
any tribunal, by way of motion, as a defense or otherwise, any claim that he or
it is not subject to the in personam jurisdiction of any such court. In
addition, Huntingdon and the Company irrevocably waive, to the fullest extent
permitted by law, any objection that he or it may now or hereafter have to the
laying of venue in any suit, action or proceeding arising out of or relating to
this Agreement or transaction contemplated hereby brought in any such court, and
hereby irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
19. Headings. The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect the meaning
or interpretation of any of the terms or provisions of this Agreement.
20. Severability.
Any provision of this Agreement which is held by a court of competent
jurisdiction to be prohibited or unenforceable in any jurisdiction(s) shall be,
as to such jurisdiction(s), ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction.
21. Counterparts; Facsimile Signatures.
This Agreement may be executed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. Facsimile signatures shall be
effective and binding as original signatures.
Please execute this agreement where indicated and return it to the
undersigned whereupon it shall become a binding agreement among us.
Sincerely,
MEDIABAY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Executive Vice President
& Chief Financial Officer
Agreed to and Accepted by:
HUNTINGDON CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
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Schedule 10
1. Debt incurred under the $1,984,250 principal amount of Convertible Senior
Subordinated Promissory Note issued to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on May 14, 2001, as
amended.
2. Debt incurred under the $500,000 principal amount of Convertible Senior
Subordinated Promissory Note issued to ▇▇▇▇ ▇▇▇▇▇▇▇ on January 18, 2002,
as amended.
3. Debt incurred under the $3,200,000 principal amount of Convertible Senior
Subordinated Promissory Notes due December 31, 2004 issued to ABC
Investment, L.L.C.
4. Debt incurred under the $2,500,000 principal amount of Convertible Senior
Promissory Note issued to Huntingdon Corporation on May 14, 2001, as
amended.
5. Debt incurred under the $500,000 principal amount of Convertible Senior
Promissory Note issued to Huntingdon Corporation on February 22, 2002, as
amended.
6. Debt incurred under the $800,000 Convertible Senior Subordinated
Promissory Note issued to Huntingdon Corporation on May 14, 2001, as
amended.