OWING TO ANY
EMPLOYEE OF BORROWER.
(D)
BORROWER HAS NEVER BEEN A MEMBER OF AN AFFILIATED GROUP WITHIN THE
MEANING OF SECTION 1504 OF THE CODE, OR FILED OR BEEN INCLUDED IN A COMBINED,
CONSOLIDATED OR UNITARY RETURN OTHER THAN AN AFFILIATED GROUP (AND RELATED
RETURN) IN WHICH BORROWER IS THE COMMON PARENT.
(E)
BORROWER IS NOT LIABLE FOR TAXES OF ANY OTHER PERSON (OTHER THAN
ITS SUBSIDIARIES), AND BORROWER IS NOT UNDER ANY CONTRACTUAL OBLIGATION TO
INDEMNIFY ANY PERSON WITH RESPECT TO TAXES, NOR A PARTY TO ANY TAX SHARING
AGREEMENT OR OTHER AGREEMENT PROVIDING FOR PAYMENTS BY BORROWER WITH RESPECT TO
TAXES.
(F)
BORROWER IS NOT A PARTY TO ANY JOINT VENTURE, PARTNERSHIP OR
OTHER ARRANGEMENT OR CONTRACT THAT COULD BE TREATED AS A PARTNERSHIP FOR FEDERAL
INCOME TAX PURPOSES.
4.17.
BOOKS AND RECORDS.
THE BOOKS AND RECORDS OF BORROWER, INCLUDING WITH
RESPECT TO OPERATIONS, EMPLOYEES AND PROPERTIES, HAVE BEEN MAINTAINED IN THE
USUAL, REGULAR AND ORDINARY MANNER, ALL ENTRIES WITH RESPECT THERETO HAVE BEEN
ACCURATELY MADE, AND ALL TRANSACTIONS HAVE BEEN ACCURATELY ACCOUNTED FOR, EXCEPT
AS COULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, BE REASONABLY LIKELY TO HAVE A
MATERIAL ADVERSE EFFECT.
4.18.
OFFERING VALID.
ASSUMING THE ACCURACY OF THE REPRESENTATIONS OF LENDER
IN SECTION 9 HEREOF, THE OFFER, SALE AND ISSUANCE OF THE NOTE AND THE NEW
WARRANTS WILL BE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND ANY SIMILAR LAW, RULE OR REGULATION OF ANY OTHER JURISDICTION AND WILL HAVE
BEEN REGISTERED OR QUALIFIED (OR ARE EXEMPT FROM REGISTRATION AND QUALIFICATION)
UNDER THE
16
REGISTRATION, PERMIT OR QUALIFICATION REQUIREMENTS OF ALL APPLICABLE STATE
SECURITIES LAWS.
NEITHER BORROWER NOR ANY AGENT ON BORROWER'S BEHALF, HAS
SOLICITED OR WILL SOLICIT ANY OFFERS TO SELL OR HAS OFFERED TO SELL OR WILL
OFFER TO SELL ALL OR ANY PART OF THE NOTE OR THE NEW WARRANTS SO AS TO BRING THE
SALE OF SUCH NOTE OR NEW WARRANTS WITHIN THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT.
5.
COVENANTS.
5.1.
NEGATIVE COVENANTS.
BORROWER COVENANTS TO LENDER THAT AT ANY TIME AS
THERE SHALL BE ANY OUTSTANDING AMOUNT OR THE COMMITMENT HAS NOT BEEN IRREVOCABLY
TERMINATED, UNLESS LENDER HAS FIRST CONSENTED THERETO IN WRITING, BORROWER WILL
NOT:
(A)
INCUR OR GUARANTEE ANY INDEBTEDNESS OTHER THAN (WITHOUT
DUPLICATION):
(I) AMOUNTS OUTSTANDING FROM TIME TO TIME UNDER (X) THE COMERICA
AGREEMENT AND REFINANCINGS THEREOF BY COMERICA (WHICH REFINANCINGS SHALL BE
SUBJECT TO THE PRIOR WRITTEN CONSENT OF LENDER, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD, CONDITIONED OR DELAYED), OR (Y) THE GEMINO CAPITAL
FACILITY AND REFINANCINGS THEREOF BY GEMINO (WHICH REFINANCINGS SHALL BE SUBJECT
TO THE PRIOR WRITTEN CONSENT OF LENDER, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED); (II) INDEBTEDNESS OUTSTANDING ON THE DATE
HEREOF AND IDENTIFIED ON SCHEDULE 5.1(A) (AND REFINANCINGS THEREOF);
(III) INDEBTEDNESS INCURRED, AND INDEBTEDNESS UNDER CONTRACTS OR CAPITALIZED
LEASE OBLIGATIONS, IN EACH CASE, ENTERED INTO IN THE ORDINARY COURSE OF
BUSINESS; (IV) INDEBTEDNESS OWED TO ANY SUBSIDIARY OF BORROWER; AND
(V) INDEBTEDNESS