(c) Events of Default, etc. - upon becoming aware of the occurrence of any Event of
Default or the existence of any condition or any event which, but for the giving of notice or lapse of time, or both, would constitute an Event of Default, to (i) immediately notify the Lender thereof and shall promptly do everything reasonably
possible to cause such Event of Default or condition or event to be eliminated as quickly as possible and (ii) keep the Lender advised on a weekly (or, if requested by the Lender, more frequent) basis of the steps being taken to correct the
situation, provided, however, that the provisions of this Subsection 4.1(c) shall not affect or impair the Lenders rights pursuant to Part 7;
(d) Inspection - upon the request of the Lender, to permit the Lender, for the purposes of this Agreement or any other agreement or
document herein provided for, by its agents, employees and representatives, to examine during normal business hours and without unreasonable disruptions, all relevant books of account, records, reports and other papers of the Borrower, and to make
copies thereof and to take extracts therefrom, provided that all such information shall be held confidential by the Lender unless reasonably required by the Lender in the exercise of its rights under this Agreement;
(e) To pay taxes - to pay or cause to be paid all taxes, rates, government fees and dues levied, assessed or imposed upon it and upon
its assets or any part thereof, as and when the same become due and payable;
(f) Compliance with Applicable Laws - at all times to
comply in all material respects with all applicable laws, rules, governmental restrictions, regulations, guidelines or directives, including all codes of conduct;
(g) Use of Loan Proceeds - to use the proceeds of the Loan only for the purposes set forth in Section 2.1 hereof;
(h) Compliance with Merger Agreement - to perform, in all material respects, all obligations required to be performed by Borrower under
the Merger Agreement;
(i) Bankruptcy Petition - In the event that Borrower files a petition under the United States Bankruptcy Code
(Title 11 of the United States Code) or under any other similar federal or state law, Borrower unconditionally and irrevocably agrees that Lender shall be entitled, and Borrower hereby unconditionally and irrevocably consents, to relief from the
automatic stay (Section 362(a) of the United States Bankruptcy Code) so as to allow Lender to exercise its rights and remedies under the Existing Secured Debt and the Loan with respect to any collateral, property or assets of the Borrower, including
conducting a foreclosure sale of such collateral, property or assets. In such event, Borrower hereby unconditionally and irrevocably agrees that it shall not, in any manner, oppose or otherwise delay any motion filed by Lender for relief from the
automatic stay with respect to the collateral, property or assets.
Negative Covenants
4.2 So long as any portion of the Borrowers Obligations shall remain outstanding or the Lender shall have any commitment to extend credit to the
Borrower, the Borrower covenants and agrees that, without the prior written consent of the Lender:
(a) Organizational Documents -
there shall be no change to the organizational documents of the Borrower, nor shall it change its current jurisdiction of incorporation;
(b) Lending and Guarantees - the Borrower shall not lend money to or invest money in any Person, whether by loan, acquisition of Equity
Interests, acquisition of debt obligations or in any other manner whatsoever or guarantee, endorse or otherwise become surety for or upon the obligations of any other Person except by endorsement of negotiable instruments for deposit or collection
in the ordinary course of its business;
(c) Acquisitions - the Borrower shall not acquire or invest in any securities issued by any
Person or participate in any partnership or joint venture or the acquisition of any business assets or unincorporated business operations;
(d) Contract Material Changes - the Borrower shall not enter into any material transaction or transactions out of the ordinary course of
business or enter into any material changes to the terms or provisions of any agreement which is material, unless otherwise agreed to in writing by the Lender;
(e) Dispositions - the Borrower will not convey, sell, lease, transfer or otherwise dispose of any of its assets unless otherwise agreed
to in writing by the Lender, except for dispositions made in the ordinary course of business;
(f) Indebtedness - the Borrower shall
not incur or otherwise become liable for any indebtedness (other than indebtedness to the Lender, the Existing Secured Debt and debt excepted from the negative covenants with respect to debt set forth in the Existing Secured Debt), unless otherwise
agreed to in writing by the Lender;
(g) Liens - the Borrower shall not create, assume or permit to exist any Lien upon any of its
assets other than Permitted Liens as well as the Liens in respect of the Existing Secured Debt;
(h) Restricted Payments - the
Borrower shall not declare or pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any of its Equity Interests now or hereafter outstanding, return any capital to its stockholders, partners or members (or the
equivalent Persons thereof) as such, make any distribution of assets, Equity Interests, obligations or securities to its stockholders, partners or members (or the equivalent Persons thereof); and
(i) Non Arms Length Transactions - the Borrower shall not enter into any contract, agreement or transaction whatsoever, including
for the sale, purchase, lease or other dealing in any property or the provision of any services (other than office and administration services provided in the ordinary course of business), with any non-arms length party except upon fair and
reasonable terms, which terms are not less favorable to the Borrower than it would obtain in an arms length transaction and, if applicable, for consideration which equals the fair market value of such property or the fair market rental as
regards to leased property.
(j) Consent. - Borrower shall not file a petition under any chapter of the United States bankruptcy
code or under the laws of any other jurisdiction naming the Borrower as debtor or institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, debt arrangement, dissolution, liquidation or similar
proceeding under the laws of any jurisdiction.
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