SUBSIDIARIES (THE "ADDITIONAL FINANCING PARTIES"), SUBJECT TO
THE FOLLOWING TERMS AND CONDITIONS.
FROM AND AFTER THE DATE HEREOF, PRIOR TO
THE INCURRENCE OF ANY ADDITIONAL INDEBTEDNESS AND/OR THE SALE OR ISSUANCE OF ANY
EQUITY INTERESTS OF THE ADDITIONAL FINANCING PARTIES (AN "ADDITIONAL
FINANCING"), COMPANY AGENT SHALL NOTIFY LAURUS OF SUCH ADDITIONAL FINANCING.
IN
CONNECTION THEREWITH, COMPANY AGENT SHALL SUBMIT A FULLY EXECUTED TERM SHEET (A
"PROPOSED TERM SHEET") TO LAURUS SETTING FORTH THE TERMS, CONDITIONS AND PRICING
OF ANY SUCH ADDITIONAL FINANCING (SUCH FINANCING TO BE NEGOTIATED ON "ARM'S
LENGTH" TERMS AND THE TERMS THEREOF TO BE NEGOTIATED IN GOOD FAITH) PROPOSED TO
BE ENTERED INTO BY THE ADDITIONAL FINANCING PARTIES.
LAURUS SHALL HAVE THE
RIGHT, BUT NOT THE OBLIGATION, TO DELIVER TO COMPANY AGENT ITS OWN PROPOSED TERM
SHEET (THE "LAURUS TERM SHEET") SETTING FORTH THE TERMS AND CONDITIONS UPON
WHICH LAURUS WOULD BE WILLING TO PROVIDE SUCH ADDITIONAL FINANCING TO THE
ADDITIONAL FINANCING PARTIES.
THE LAURUS TERM SHEET SHALL CONTAIN TERMS NO LESS
FAVORABLE TO THE ADDITIONAL FINANCING PARTIES THAN THOSE OUTLINED IN PROPOSED
TERM SHEET.
LAURUS SHALL DELIVER TO COMPANY AGENT THE LAURUS TERM SHEET WITHIN
TEN BUSINESS DAYS OF RECEIPT OF EACH SUCH PROPOSED TERM SHEET.
IF THE
PROVISIONS OF THE LAURUS TERM SHEET ARE AT LEAST AS FAVORABLE TO THE ADDITIONAL
FINANCING PARTIES AS THE PROVISIONS OF THE PROPOSED TERM SHEET, THE ADDITIONAL
FINANCING PARTIES SHALL ENTER INTO AND CONSUMMATE THE ADDITIONAL FINANCING
TRANSACTION OUTLINED IN THE LAURUS TERM SHEET.
(II)
IT SHALL NOT, AND SHALL NOT PERMIT ITS SUBSIDIARIES TO, AGREE,
DIRECTLY OR INDIRECTLY, TO ANY RESTRICTION WITH ANY PERSON WHICH LIMITS THE
ABILITY OF LAURUS TO CONSUMMATE AN ADDITIONAL FINANCING WITH IT OR ANY OF ITS
SUBSIDIARIES.
14.
FURTHER ASSURANCES.
AT ANY TIME AND FROM TIME TO TIME, UPON THE
WRITTEN REQUEST OF LAURUS AND AT THE SOLE EXPENSE OF COMPANIES, EACH COMPANY
SHALL PROMPTLY AND DULY EXECUTE AND DELIVER ANY AND ALL SUCH FURTHER INSTRUMENTS
AND DOCUMENTS AND TAKE SUCH FURTHER ACTION AS LAURUS MAY REQUEST (A) TO OBTAIN
THE FULL BENEFITS OF THIS AGREEMENT AND THE ANCILLARY AGREEMENTS, (B) TO
PROTECT, PRESERVE AND MAINTAIN LAURUS' RIGHTS IN THE COLLATERAL AND UNDER THIS
AGREEMENT OR ANY ANCILLARY AGREEMENT, AND/OR (C) TO ENABLE LAURUS TO EXERCISE
ALL OR ANY OF THE RIGHTS AND POWERS HEREIN GRANTED OR ANY ANCILLARY AGREEMENT.
15.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF LAURUS.
LAURUS
HEREBY REPRESENTS, WARRANTS AND COVENANTS TO EACH COMPANY AS FOLLOWS:
(a)
Requisite Power and Authority.
Laurus has all necessary power and
authority under all applicable provisions of law to execute and deliver this
Agreement and the Ancillary Agreements and to carry out their provisions.
All
corporate action on Laurus' part required for the lawful execution and delivery
of this Agreement and the Ancillary Agreements have been or will be effectively
taken prior to the Closing Date.
Upon their execution and delivery, this
Agreement and the Ancillary Agreements shall be valid and binding obligations of
28
LAURUS, ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, EXCEPT (A)