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 IS FINANCED
BY SUCH INDEBTEDNESS; AND
(VIII)
UP TO $2,500,000 OF ADDITIONAL INDEBTEDNESS IN THE AGGREGATE
OUTSTANDING AT ANY TIME.
(B)
CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY MORTGAGE, PLEDGE,
SECURITY INTEREST, ASSIGNMENT, LIEN (STATUTORY OR OTHER), CLAIM, ENCUMBRANCE,
LICENSE OR SUBLICENSE OR SECURITY INTEREST (COLLECTIVELY,