CASUALTY, FIDELITY,
BUSINESS INTERRUPTION AND OTHER RISKS INSURED AGAINST BY EXTENDED COVERAGE, AS
IS CUSTOMARY WITH COMPANIES IN THE SAME OR SIMILAR BUSINESSES OPERATING IN THE
SAME OR SIMILAR LOCATIONS; AND
(D)
(I) KEEP PROPER BOOKS OF RECORD AND ACCOUNT
IN WHICH FULL, TRUE AND CORRECT ENTRIES ARE MADE OF ALL DEALINGS AND
TRANSACTIONS IN RELATION TO ITS BUSINESS AND ACTIVITIES, (II) PERMIT ANY
REPRESENTATIVES DESIGNATED BY THE INVESTOR, UPON REASONABLE PRIOR WRITTEN
NOTICE, TO VISIT AND INSPECT ITS PROPERTIES, TO EXAMINE AND MAKE EXTRACTS FROM
ITS BOOKS AND RECORDS, AND TO DISCUSS ITS AFFAIRS, FINANCES AND CONDITION WITH
ITS OFFICERS AND INDEPENDENT ACCOUNTANTS, ALL AT SUCH REASONABLE TIMES AND AS
OFTEN AS REASONABLY REQUESTED, AND (III) PROVIDE TO THE INVESTOR THE SAME
INFORMATION RIGHTS AS IT PROVIDES TO ITS STOCKHOLDERS.
Section 6.
Negative Covenants.
Until all principal and interest and any other amounts due and payable under
this Note have been paid in full in cash, the Company shall not, and shall not
permit any Subsidiary to:
(A)
CREATE, INCUR, ASSUME OR PERMIT TO EXIST
ANY INDEBTEDNESS OR GUARANTEE, DIRECTLY OR INDIRECTLY, EXCEPT:
(I)
INDEBTEDNESS WITH RESPECT TO EQUIPMENT
LEASES OR TRADE ACCOUNTS OF THE COMPANY OR ANY SUBSIDIARY ARISING IN THE
ORDINARY COURSE OF BUSINESS;
(II)
INDEBTEDNESS INCURRED IN THE ORDINARY
COURSE ARISING OUT OF ANY LEASE AGREEMENT FOR THE PREMISES OF THE COMPANY OR ANY
SIGNIFICANT SUBSIDIARY;
5
(III)
INDEBTEDNESS INCURRED IN THE ORDINARY COURSE
OF THE COMPANY OR ANY SIGNIFICANT SUBSIDIARY FOR EMPLOYEE-RELATED OBLIGATIONS OR
COMMITMENTS, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS FOR THE PAYMENT OF
SALARIES, ACCRUED VACATION DAYS, SEVERANCE, PRIOR NOTICE PERIODS, MANAGERS'
INSURANCE, PENSION FUNDS AND OTHER APPROVED EMPLOYEE BENEFITS;
(IV)
INDEBTEDNESS FOR TAXES (INCLUDING MUNICIPALITY
RATES), ASSESSMENTS, LEVIES TO STATUTORY BODIES AND GOVERNMENT AGENCIES, OR
SIMILAR CHARGES, IN ALL CASES PROVIDED THAT SUCH OBLIGATIONS WERE INCURRED IN
THE ORDINARY COURSE OF BUSINESS THAT ARE NOT YET DUE AND PAYABLE;
(V)
INDEBTEDNESS UNDER THE NOTES AND THE
CONVERTIBLE NOTES;
(VI)
INDEBTEDNESS, NOT GREATER THAN $6,500,000 IN
THE AGGREGATE UNDER (A) THAT CERTAIN PROMISSORY NOTE MADE BY THE COMPANY AND
PAYABLE TO SYNTEK CAPITAL AG DATED DECEMBER 16, 2005 AS AMENDED AS OF THE DATE
HEREOF (THE "SYNTEK NOTE") AND (B) THAT CERTAIN LETTER OF CREDIT MADE BY THE
COMPANY IN FAVOR OF SYNTEK CAPITAL AG IN CONNECTION WITH THE SYNTEK NOTE (THE
"SYNTEK LETTER OF CREDIT");
(VII)
UP TO $15,000,000 OF INDEBTEDNESS ASSUMED BY THE
COMPANY IN THE ACQUISITION OF ALL OR SUBSTANTIALLY ALL OF THE ASSETS OR CAPITAL
STOCK OF ANOTHER PERSON; PROVIDED THAT, (A) SUCH INDEBTEDNESS EXISTED AT THE
TIME OF SUCH ACQUISITION AND WAS NOT CREATED IN ANTICIPATION THEREOF, (B) THE
AGGREGATE AMOUNT OF SUCH INDEBTEDNESS ASSUMED IN CONNECTION WITH SUCH
ACQUISITION SHALL NOT EXCEED 25% OF THE AGGREGATE AMOUNT OF CONSIDERATION PAID
BY THE COMPANY FOR SUCH ACQUISITION AND (C) ANY LIENS SECURING SUCH INDEBTEDNESS
DO NOT AT ANY TIME COVER OR ENCUMBER ANY ASSETS OR PROPERTY OTHER THAN THE
ASSETS OR PROPERTY OF THE PERSON ACQUIRED WHICH