ENTER INTO ANY AGREEMENT, ARRANGEMENT OR TRANSACTION WITH ANY
OFFICER OR KEY EMPLOYEE OF BORROWER, OR ANY AFFILIATE (OTHER THAN LENDER AND ITS
AFFILIATES), RELATIVE, BENEFICIARY OR EMPLOYEE OF THE FOREGOING, ON TERMS TAKEN
AS A WHOLE ARE LESS FAVORABLE TO BORROWER, AS THE CASE MAY BE, THAN WOULD BE
AVAILABLE IN AN ARM'S-LENGTH TRANSACTION BETWEEN WILLING PARTIES (OTHER THAN
EMPLOYMENT TRANSACTIONS IN THE ORDINARY COURSE OF BUSINESS);
16
(F)
UNDERTAKE OR AGREE TO UNDERTAKE ANY MERGER OR CONSOLIDATION,
WHETHER OR NOT BORROWER OR A SUBSIDIARY IS THE SURVIVING CORPORATION (OTHER THAN
MERGERS AND CONSOLIDATIONS WITH ANY SUBSIDIARY IN WHICH BORROWER IS THE
SURVIVING ENTITY);
(G)
(I) CHANGE THE ORGANIC FORM OF BORROWER FROM THAT OF A CORPORATION
FORMED UNDER DELAWARE LAW, OR (II) ISSUE ADDITIONAL SHARES OF BORROWER STOCK,
OTHER THAN AS THOSE SHARES DESCRIBED AND PERMITTED TO BE ISSUED TO LENDER UNDER
THIS AGREEMENT AND OPTION AND WARRANT SHARES ISSUED AS A RESULT OF THE EXERCISE,
IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, OF ANY OPTIONS OR WARRANTS CURRENTLY
OUTSTANDING OR PERMITTED UNDER THIS AGREEMENT; OR
(H)
CHANGE BORROWER'S OR ANY SUBSIDIARY'S GENERAL LINE OF BUSINESS.
5.2.
Affirmative Covenants.
Borrower covenants to Lender that at any time as
there shall be any Outstanding Amount and the Commitment has not been
irrevocably terminated:
(A)
FINANCIAL STATEMENTS.
BORROWER SHALL DELIVER OR CAUSE TO BE
DELIVERED TO LENDER:
(I)
AS SOON AS PRACTICABLE (BUT IN ANY EVENT NOT LATER THAN
SEVENTY-FIVE (75) DAYS AFTER THE END OF EACH APPLICABLE FISCAL YEAR OF BORROWER
INCLUDING AND AFTER 2008), THE CONSOLIDATED BALANCE SHEET OF BORROWER, AS AT THE
END OF SUCH YEAR, AND THE RELATED CONSOLIDATED AND CONSOLIDATING STATEMENT OF
INCOME AND STATEMENT OF CASH FLOW, SETTING FORTH IN COMPARATIVE FORM THE FIGURES
FOR THE PREVIOUS FISCAL YEAR (IF APPLICABLE) AND ALL SUCH CONSOLIDATED AND
CONSOLIDATING STATEMENTS TO BE IN REASONABLE DETAIL, PREPARED IN ACCORDANCE WITH
GAAP, TOGETHER WITH THE REPORT OF BORROWER'S INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANT REASONABLY ACCEPTABLE TO LENDER;
(II)
AS SOON AS PRACTICABLE AND TO THE EXTENT POSSIBLE WITHIN THIRTY
(30) DAYS AFTER THE END OF EACH MONTH, COPIES OF BORROWER'S INTERNALLY PREPARED
CONSOLIDATED BALANCE SHEET, EACH AS AT THE END OF SUCH MONTH, AND THE RELATED
CONSOLIDATED STATEMENT OF INCOME AND STATEMENT OF CASH FLOW FOR SUCH MONTH, ALL
IN REASONABLE DETAIL AND PREPARED IN ACCORDANCE WITH GAAP WITH THE EXCEPTION OF
NOTES TO THE FINANCIAL STATEMENTS, TOGETHER WITH A CERTIFICATION BY THE CHIEF
FINANCIAL OFFICER OF BORROWER (IN HIS OF HER CAPACITY AS AN OFFICER OF BORROWER
AND WITHOUT PERSONAL LIABILITY) THAT THE INFORMATION CONTAINED IN SUCH FINANCIAL
STATEMENTS FAIRLY PRESENTS IN ALL MATERIAL RESPECTS BORROWER'S FINANCIAL
POSITION ON THE DATE THEREOF (SUBJECT TO YEAR END ADJUSTMENTS); AND
(III)
AS SOON AS AVAILABLE, BUT IN ANY EVENT NOT LATER THAN SIXTY (60)
DAYS AFTER THE DATE HEREOF, OF A BUSINESS PLAN FOR SUCH FUTURE PERIODS, AND
INCLUDING SUCH ITEMS, AS IS REQUESTED BY LENDER, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO LENDER;
(IV)
AS SOON AS AVAILABLE (AND