ASSESSMENTS AND OTHER GOVERNMENTAL CHARGES IMPOSED UPON IT
AND ITS REAL PROPERTIES, SALES AND ACTIVITIES, OR ANY PART THEREOF, OR UPON THE
INCOME OR PROFITS THEREFROM; PROVIDED THAT ANY SUCH TAX, ASSESSMENT, OR CHARGE
NEED NOT BE PAID IF THE VALIDITY OR AMOUNT THEREOF SHALL CURRENTLY BE CONTESTED
IN GOOD FAITH BY APPROPRIATE PROCEEDINGS AND IF SUCH, BORROWER SHALL HAVE SET
ASIDE ON ITS BOOKS ADEQUATE RESERVES WITH RESPECT THERETO.
(G)
CLAIMS; LITIGATION.
BORROWER WILL INFORM LENDER, PROMPTLY AFTER
RECEIPT BY BORROWER OF NOTICE OF ANY MATERIAL THREATENED OR POTENTIAL ADVERSE
CLAIM, DISPUTE, LITIGATION AND GOVERNMENTAL INVESTIGATION OR CITATION AGAINST
BORROWER THAT, IF ADVERSELY DETERMINED, IS REASONABLY LIKELY TO RESULT IN A
MATERIAL ADVERSE EFFECT.
(H)
NOTICE OF FAILURE TO COMPLY WITH COVENANTS.
BORROWER SHALL
PROMPTLY GIVE PROMPT NOTICE TO LENDER OF ANY DEFAULT OR EVENT OF DEFAULT.
(I)
EXPENSES.
SUBJECT TO THE TERMS AND CONDITIONS OF THE
SUBORDINATION AGREEMENTS, BORROWER SHALL PAY OR REIMBURSE LENDER FOR ALL
REASONABLE OUT-OF-POCKET COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO
REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS) LENDER MAY PAY OR INCUR IN
CONNECTION WITH (I) THE TRANSACTIONS CONTEMPLATED HEREBY AND (II) THE COLLECTION
OR ENFORCEMENT OF THIS AGREEMENT, THE NOTE AND THE WARRANTS, AND ALL AMENDMENTS
IN CONNECTION THEREWITH AND IN ALL OTHER DOCUMENTATION RELATED THERETO MADE AT
BORROWER'S REQUEST, AND ANY AND ALL WAIVERS AND CONSENTS, INCLUDING WITHOUT
LIMITATION ANY FEES AND DISBURSEMENTS INCURRED IN DEFENSE OF OR TO RETAIN
AMOUNTS OF PRINCIPAL, INTEREST OR FEES PAID, AND ANY CLAIMS, DAMAGES, INTEREST
(INCLUDING POST-PETITION INTEREST), JUDGMENTS, COSTS, OR EXPENSES AWARDED IN
RESPECT THEREOF.
ALL OBLIGATIONS PROVIDED FOR IN THIS SECTION 5.2(I) SHALL
SURVIVE ANY TERMINATION OF THIS AGREEMENT AND THE REPAYMENT OF THE LOAN.
5.3.
RIGHT OF FIRST OFFER AND REFUSAL.
SO LONG AS THE COMMITMENT HAS NOT BEEN
TERMINATED, BORROWER SHALL NOTIFY LENDER IN WRITING NOT LESS THAN 30 DAYS PRIOR
TO ITS SEEKING ANY CREDIT ARRANGEMENT INTENDED TO BE SUBORDINATE TO THE GEMINO
CAPITAL FACILITY OR THE COMERICA AGREEMENT AND SHALL ACCORD LENDER THE RIGHT OF
FIRST OFFER WITH RESPECT TO SUCH ARRANGEMENTS.
IN THE EVENT BORROWER DOES NOT
REACH AGREEMENT WITH LENDER ON THE TERMS OF ANY SUCH CREDIT FACILITY REQUIRED BY
BORROWER AND BORROWER SEEKS THIRD PARTY FINANCING, BORROWER SHALL NOTIFY LENDER
IN WRITING, NOT LESS THAN FIVE BUSINESS DAYS PRIOR TO ITS ACCEPTANCE OF ANY SUCH
ALTERNATE FINANCING OF THE TERMS OF SUCH FINANCING, AND LENDER SHALL HAVE THE
RIGHT TO MATCH SUCH TERMS AND PROVIDE SUCH FINANCING TO BORROWER.
5.4.
NO THIRD-PARTY RIGHTS.
NOTHING EXPRESSED OR REFERRED TO IN THIS AGREEMENT
WILL BE CONSTRUED TO GIVE ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT
ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM UNDER OR WITH RESPECT TO THIS
AGREEMENT OR ANY PROVISION OF THIS AGREEMENT.
5.5.
SECURITY INTERESTS.
AT THE REQUEST OF LENDER (BUT SUBJECT TO THE
SUBORDINATION AGREEMENTS) BORROWER SHALL PROMPTLY AND DILIGENTLY TAKE ALL
REASONABLY NECESSARY ACTIONS TO EXECUTE AND DELIVER ALL INSTRUMENTS, FINANCING
STATEMENT TERMINATIONS, CERTIFICATES, AGREEMENTS OR OTHER DOCUMENTS TO TRANSFER