faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected or forecasted results.
6
AFFIRMATIVE COVENANTS
Borrower shall do all of the following for so long as any Lender has an
obligation to make any Credit Extension, or there are outstanding Obligations:
6.1
GOVERNMENT COMPLIANCE.
Borrower shall maintain its and all Subsidiaries' legal existence and good
standing as a Registered Organization and maintain qualification in each
jurisdiction in which the failure to so qualify would reasonably be expected to
have a material adverse effect on Borrower's business or operations. Borrower
shall comply, and have each Subsidiary comply, with all laws, ordinances and
regulations to which it is subject, noncompliance with which could have a
material adverse effect on Borrower's business or operations.
6.2
FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(A)
BORROWER SHALL DELIVER TO LENDERS:
(I) AS
SOON AS AVAILABLE, BUT NO LATER THAN THIRTY (30) DAYS AFTER THE LAST DAY OF EACH
MONTH, A COMPANY PREPARED CONSOLIDATED BALANCE SHEET AND INCOME STATEMENT
COVERING BORROWER'S CONSOLIDATED OPERATIONS DURING THE PERIOD CERTIFIED BY A
RESPONSIBLE OFFICER AND IN A FORM REASONABLY ACCEPTABLE TO LENDERS; (II) AS SOON
AS AVAILABLE, BUT NO LATER THAN ONE HUNDRED EIGHTY (180) DAYS AFTER THE LAST DAY
OF BORROWER'S FISCAL YEAR, AUDITED CONSOLIDATED FINANCIAL STATEMENTS PREPARED
UNDER GAAP, CONSISTENTLY APPLIED, TOGETHER WITH AN UNQUALIFIED OPINION ON THE
FINANCIAL STATEMENTS FROM AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM
REASONABLY ACCEPTABLE TO LENDERS; (III) ANNUAL FINANCIAL PROJECTIONS APPROVED BY
BORROWER'S BOARD OF DIRECTORS CONSISTENT IN FORM AND DETAIL WITH THOSE PROVIDED
TO BORROWER'S VENTURE CAPITAL INVESTORS AS SOON AS AVAILABLE, BUT NO LATER THAN
SIXTY (60) DAYS AFTER BOARD APPROVAL;
(IV) IN THE EVENT THAT THE BORROWER'S
STOCK BECOMES PUBLICLY HELD, WITHIN FIVE (5) DAYS OF FILING, COPIES OF OR
ELECTRONIC LINKS TO (IN THE CASE OF ELECTRONIC LINKS BEING PROVIDED TO LENDERS,
BORROWER SHALL STILL BE REQUIRED TO SUBMIT TO LENDERS THE APPLICABLE COMPLIANCE
CERTIFICATE IN THE FORM OF EXHIBIT C) OF ALL STATEMENTS, REPORTS AND NOTICES
MADE AVAILABLE TO BORROWER'S SECURITY HOLDERS OR TO ANY HOLDERS OF SUBORDINATED
DEBT AND ALL REPORTS ON FORM 10-K, 10-Q AND 8-K FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION; (V) A PROMPT REPORT OF ANY LEGAL ACTIONS PENDING OR
THREATENED AGAINST BORROWER OR ANY SUBSIDIARY THAT COULD RESULT IN DAMAGES OR
COSTS TO BORROWER OR ANY SUBSIDIARY OF ONE HUNDRED THOUSAND DOLLARS
($100,000.00) OR MORE; AND (VI) BUDGETS, SALES PROJECTIONS, OPERATING PLANS OR
OTHER FINANCIAL INFORMATION REASONABLY REQUESTED BY LENDERS.
(B)
WITHIN THIRTY (30) DAYS AFTER THE LAST DAY
OF EACH MONTH, BORROWER SHALL DELIVER TO LENDERS WITH THE MONTHLY FINANCIAL
STATEMENTS A COMPLIANCE CERTIFICATE SIGNED BY A RESPONSIBLE OFFICER IN THE
FORM OF EXHIBIT C.
(C)
BORROWER SHALL DELIVER TO LENDERS ANY
REDEMPTION REQUESTS (AS DEFINED IN BORROWER'S FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION, AS IT MAY BE AMENDED FROM TIME TO TIME) AS SOON AS
AVAILABLE, BUT NO LATER