ANY NOTICE, REPORT OR DEMAND SENT OR RECEIVED IN RESPECT OF A GUARANTEED
PENSION PLAN UNDER §§302, 4041, 4042, 4043, 4063, 4065, 4066 AND 4068 OF ERISA,
OR IN RESPECT OF A MULTIEMPLOYER PLAN, UNDER §§4041A, 4202, 4219, 4242, OR 4245
OF ERISA WHICH INVOLVES A LIABILITY WHICH IS REASONABLY LIKELY TO RESULT IN A
MATERIAL ADVERSE EFFECT.
(E)
INSURANCE.
BORROWER SHALL MAINTAIN IN FULL
FORCE AND EFFECT FIRE AND CASUALTY INSURANCE POLICIES, AND INSURANCE AGAINST
OTHER HAZARDS, RISKS AND LIABILITIES TO PERSONS AND PROPERTY TO THE EXTENT AND
IN THE MANNER CUSTOMARY FOR COMPANIES IN SIMILAR BUSINESSES SIMILARLY SITUATED.
(F)
TAXES.
BORROWER WILL DULY PAY AND
DISCHARGE, OR CAUSE TO BE PAID AND DISCHARGED, BEFORE THE SAME SHALL BECOME
OVERDUE OR SUBJECT TO PENALTY OR INTEREST, ALL TAXES, 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.
17
(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) SUCH LENDER MAY PAY OR
INCUR IN CONNECTION WITH 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.
Borrower shall notify Lender in writing
not less than thirty (30) days prior to its seeking any credit arrangement
intended to be subordinate to the GE Capital Facility and 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 (5)
Business Days