Common use of Additional Affirmative Covenants Clause in Contracts

Additional Affirmative Covenants. The Company shall, or shall cause each of its subsidiaries, if any and as applicable, to: (a) promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company or any subsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; (b) use commercially reasonable efforts to keep its properties and those of its subsidiaries, if any, in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with GAAP applied on a consistent basis; (d) duly observe and comply with the organizational documents of the Company; (e) pay compensation to directors and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors to use the Company’s logos and trademarks in their marketing materials in their ordinary course of business; and (g) provide to the Board, promptly, and in no event more than fifteen (15) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with each interim or special audit of the Company or any of its subsidiaries made by such accountants.

Additional Affirmative Covenants. The In addition, the Company shall, or shall cause each of its subsidiaries, if any and as applicable, to: (a) promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company or any subsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; and provided, further, that the Company shall pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor; (b) use commercially reasonable efforts promptly pay, or cause to be paid, when due, in conformance with customary trade terms, all other indebtedness incident to the operations of the Company and its subsidiaries, if any; (c) keep its properties and those of its subsidiaries, if any, subsidiaries in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary needful and proper repairs, renewals, replacements, additions and improvements thereto; (cd) comply, and cause its subsidiaries, if any, to comply, in all material respects, at all times with the provisions of all leases to which any of the Company and its subsidiaries is a party or under which any of them occupies real property; (e) keep its assets and those of its subsidiaries that are of an insurable character insured by reputable insurers against loss or damage by fire and explosion in amounts customary for companies in similar businesses similarly situated; and maintain, with financially sound and reputable insurers, insurance against other hazards and risks and liability to persons and property to the extent and in the manner customary for companies in similar businesses similarly situated; (f) keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with GAAP generally accepted accounting principles applied on a consistent basis; (dg) duly observe and comply with conform to, and cause its subsidiaries, if any, to so observe and conform to, in all material respects, all valid requirements of governmental authorities relating to the organizational documents conduct of the Company; (e) pay compensation their businesses or to directors and executive officers of the Company only as approved by the Board their property or compensation committee thereof; (f) permit the Investors to use the Company’s logos and trademarks in their marketing materials in their ordinary course of businessassets; and (gh) provide maintain in full force and effect its corporate existence, rights and franchises and use its commercially reasonable efforts to maintain in full force and effect all licenses and other rights to use patents, processes, licenses, trademarks, service marks, trade names or copyrights owned or possessed by it or any subsidiary and necessary to the Board, promptly, and in no event more than fifteen (15) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with each interim or special audit of the Company or any conduct of its subsidiaries made by such accountantsbusiness.

Additional Affirmative Covenants. The In addition, for so long as any -------------------------------- Purchased Shares remain outstanding, and until the occurrence of an "Initial Public Offering" (as defined herein), the Company shall, or shall cause each of its subsidiariesany Subsidiary, if any and as applicable, to: (a) 7.4.1 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company or any subsidiarySubsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; and provided, further, that the Company shall pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor; (b) use commercially reasonable efforts 7.4.2 promptly pay, or cause to be paid, when due, in conformance with customary trade terms, all other material indebtedness incident to the operations of the Company and its subsidiaries, if any, which is not subject to a good faith dispute; 7.4.3 keep its properties and those of its subsidiaries, if any, used in or valuable to the Company's and its subsidiaries' business operations in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) 7.4.4 comply, and cause its subsidiaries, if any, to comply, in all material respects, at all times with the provisions of all material leases to which any of the Company and its subsidiaries is a party or under which any of them occupies real property; 7.4.5 keep its material assets and those of its subsidiaries that are of an insurable character insured by reputable insurers against loss or damage by fire and explosion in amounts customary for companies in similar businesses similarly situated; and maintain, with financially sound and reputable insurers, insurance against other hazards and risks and liability to persons and property to the extent and in the manner customary for companies in similar businesses similarly situated; 7.4.6 keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its and its subsidiaries' business and affairs in accordance with GAAP applied on a consistent basis; (d) 7.4.7 duly observe and comply with conform to, and cause its subsidiaries, if any, to so observe and conform to, in all material respects, all valid requirements of governmental authorities relating to the organizational documents conduct of the Companytheir businesses or to their property or assets; (e) pay compensation 7.4.8 maintain in full force and effect its corporate existence, rights and franchises and use its commercially reasonable efforts to directors maintain in full force and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors effect all licenses and other rights to use patents, processes, licenses, trademarks, service marks, trade names or copyrights owned or possessed by it or any subsidiary and necessary to the Company’s logos and trademarks in their marketing materials in their ordinary course conduct of its business; and (g) provide to the Board, promptly, 7.4.9 obtain a confidentiality and non-disclosure agreement as described in no event more than fifteen (15) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with Section 7.6 from each interim or special audit new employee of the Company or any of its subsidiaries made by such accountantsa subsidiary.

Additional Affirmative Covenants. The Company shall, or shall cause each Until all indebtedness of its subsidiaries, if any Borrower to Bank has been paid in full and as applicable, toall Liabilities have been satisfied: (a) promptly pay and discharge, 7.1 Borrower shall submit or cause to be paid submitted to Bank such financial and dischargedother information which Bank shall request regarding Borrower, when due Related Borrower, the Collateral and payableany endorser, all lawful taxes, assessments and governmental charges guarantor or levies imposed upon the income, profits, property or business surety of any of the Company or any subsidiary; providedLiabilities when and as requested by Bank, howeverincluding without limitation: (i) Related Borrower's 10-Q reports together with Related Borrower's internally prepared quarterly financial statements within forty-five (45) days after the close of each quarter in each fiscal year including a balance sheet as of the close of such period, that any an income statement, and a reconciliation of surplus for such taxperiod, assessment, charge or levy need not be paid if the validity thereof shall currently be contested prepared and analyzed in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under accordance with generally accepted accounting principles and attested to by an authorized officer of Related Borrower; (ii) Related Borrower's 10-K reports and audited fiscal year-end financial statements, within ninety (90) days after the close of each fiscal year, including a balance sheet as of the close of such period, an income statement, and a reconciliation of stockholders' equity certified by an independent certified public accountant acceptable to Bank and analyzed in accordance with respect thereto;generally accepted accounting principles; (iii) Related Borrower's 8-K reports and all other documents filed by or on behalf of Related Borrower with the Securities and Exchange Commission (the "SEC") within thirty (30) days, following the filing thereof with the SEC; and (iv) together with each delivery of the financial statements and the 8-K reports required by (ii) or (iii) above, the certificate of Borrower stating that no event has occurred which constitutes an event of default or would constitute an event of default but for the requirement that notice be given, or time elapse or both, under any loans, notes, debentures, bonds, leases, or other obligations of Borrower then outstanding, including, but not limited to, the Term Loan (such certificate shall publish the accounting calculations used to determine compliance or noncompliance with Related Borrower's financial obligations, including those noted in this Agreement), or, if any such event of default or defaults exists, specifying the nature thereof. 7.2 Borrower shall (i) maintain insurance (written by insurance companies acceptable to Bank) in form, amount and substance acceptable to Bank; (ii) furnish to Bank, upon request, a statement of the insurance coverage; and (iii) cause Bank to be named as (a) an additional insured on all Borrower's liability insurance policies; and (b) use commercially reasonable efforts a payee as to keep its properties all insurance covering Collateral hereunder, pursuant to a New York (long form) standard mortgagee endorsement. All insurance policies shall provide for a minimum of ten (10) days' written cancellation notice to Bank and, at Bank's request, all policies shall be delivered to and those held by Bank. In the event of its subsidiariesdefault hereunder, if anyBank is hereby made attorney-in-fact for Borrower to obtain, adjust, and settle, in good repairits sole discretion, working order such insurance and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) keep true records and books of account in which full, true and correct entries will be made of all dealings endorse any drafts or transactions in relation to its business and affairs in accordance with GAAP applied on a consistent basis; (d) duly observe and comply with the organizational documents of the Company; (e) pay compensation to directors and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors to use the Company’s logos and trademarks in their marketing materials in their ordinary course of business; and (g) provide to the Board, promptly, and in no event more than fifteen (15) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants checks issued in connection with each interim or special audit such insurance. In the event of failure to provide and maintain insurance required by this Agreement, Bank may, at its option, provide such insurance and charge the Company or any of its subsidiaries made by such accountantscosts and expenses incurred to Borrower's Loan Account.

Additional Affirmative Covenants. The Company Issuers shall, or and shall cause each of its subsidiariestheir Subsidiaries, if any and as applicable, to: (a) 7.4.1 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company Issuers or any subsidiarySubsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company Issuers shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; and provided, further, that the Issuers shall pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor; (b) use commercially reasonable efforts 7.4.2 promptly pay, or cause to be paid, when due, in conformance with customary trade terms, all other indebtedness incident to the operations of the Issuers and their Subsidiaries, if any, except for such amounts which have been contested in good faith by the Issuers or their Subsidiaries, as applicable; 7.4.3 keep its properties and those of its subsidiariesthe Subsidiaries, if any, in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) 7.4.4 comply, and cause the Subsidiaries, if any, to comply, in all material respects, at all times with the provisions of all leases to which any of the Issuers and their Subsidiaries is a party or under which any of them occupies real property; 7.4.5 keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with GAAP applied on a consistent basis; (d) 7.4.6 duly observe and conform to, and cause their Subsidiaries, if any, to so observe and conform to, in all material respects, all valid requirements of governmental authorities relating to the conduct of their businesses or to their property or assets; 7.4.7 duly observe and comply with the organizational documents their Certificate of the CompanyIncorporation, Bylaws and Material Contracts; (e) pay compensation to directors 7.4.8 maintain in full force and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors to use the Company’s logos effect its corporate existence, rights and trademarks in their marketing materials in their ordinary course of businessfranchises; and 7.4.9 within sixty (g) provide to the Board, promptly, and in no event more than fifteen (1560) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with each interim or special audit of the Company date hereof, cause each officer and key employee of the Issuers or any of its subsidiaries made by such accountantstheir Subsidiaries to enter into an Employee Agreement Regarding Confidentiality, Inventions and Noncompetition with the Issuer.

Additional Affirmative Covenants. The Company Sellers shall, or shall cause each of its subsidiaries, if any and as applicable, to: (ai) promptly pay and dischargeoperate the Network in compliance with the performance levels set forth on Schedule 3.29(b). (ii) continue to maintain, or cause to be paid and dischargedin all material respects, when due and payabletheir properties in accordance with present practices in a condition, all lawful taxestaken as a whole, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company or any subsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under generally accepted accounting principles with respect theretoreasonably suitable for their current use; (biii) make any and all filings required under applicable Legal Requirements and file all applications required for the renewal of the Permits held by Sellers and necessary for the conduct of the North American Business or the ownership or use of the Purchased Assets in connection therewith, as currently conducted, owned and used by Sellers in a timely fashion; (iv) use commercially reasonable efforts in the Ordinary Course of Business to (x) keep available generally the services of the present officers and key Business Employees, and (y) except as permitted by 5.1(b)(ii), preserve generally the present relationships with customers and significant vendors having material business dealings with the Business; (v) perform in all material respects their obligations under: A. all Contracts and Leases with Major Customers and Major Suppliers, except for defaults in the payment of amounts due that would be cured by the payment of a Cure Amount; and B. each other Contracts and Leases except for defaults either (x) in the payment of amounts due that would be cured by the payment of a Cure Amount, or (y) that would not prevent the assumption by Sellers of the Contract or Lease and the assignment of such Contract or Lease to Purchaser pursuant to the Sale Order. (vi) use commercially reasonable efforts to keep its properties in full force and those effect insurance comparable in amount and scope to coverage maintained by it (or on behalf of its subsidiaries, if any, in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements theretoit) on the date hereof; (cvii) renew and keep true records in full force and books effect all Intellectual Property and Software necessary for the operation of account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with GAAP applied on a consistent basisthe Network; (dviii) duly observe on or before the later of five (5) Business Days after the date hereof and comply with December 6, 2002, deliver to Purchaser a supplement to Schedule 3.14(a) as if the organizational documents dollar figure set forth in Schedule 3.14(a) were $25,000 instead of the Company; (e) pay compensation $100,000, such supplement shall be deemed to directors and executive officers be a Schedule Update for purposes of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors to use the Company’s logos and trademarks in their marketing materials in their ordinary course of businessthis Agreement; and (gix) provide on or before the later of five (5) Business Days after the date hereof and December 6, 2002, deliver to Purchaser a schedule identifying (A) all of Sellers' outstanding purchase orders with vendors as of the Boarddate of this Agreement with a gross value in excess of $100,000, promptly(B) the amount of the uninvoiced balance with respect to each such purchase order; (C) which of such purchase orders have remaining commitments in excess of $50,000, and (D) which of such purchase orders are "blanket" purchase orders with remaining amounts in no event more than fifteen (15) days after receipt thereof, copies excess of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with each interim or special audit of the Company or any of its subsidiaries made by such accountants$50,000.

Additional Affirmative Covenants. The In addition, for so long as any -------------------------------- Purchased Shares remain outstanding, and until the occurrence of an "Initial Public Offering" (as such term is defined in the Company's Articles of Incorporation), the Company shall, or shall cause each of its subsidiariesany Subsidiary, if any and as applicable, to: (a) 7.4.1 promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company or any subsidiarySubsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; and provided, further, that the Company shall pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor; (b) use commercially reasonable efforts 7.4.2 promptly pay, or cause to be paid, when due, in conformance with customary trade terms, all other material indebtedness incident to the operations of the Company and its subsidiaries, if any, which is not subject to a good faith dispute; 7.4.3 keep its properties and those of its subsidiaries, if any, used in or valuable to the Company's and its subsidiaries' business operations in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) 7.4.4 comply, and cause its subsidiaries, if any, to comply, in all material respects, at all times with the provisions of all leases to which any of the Company and its subsidiaries is a party or under which any of them occupies real property; 7.4.5 keep its material assets and those of its subsidiaries that are of an insurable character insured by reputable insurers against loss or damage by fire and explosion in amounts customary for companies in similar businesses similarly situated; and maintain, with financially sound and reputable insurers, insurance against other hazards and risks and liability to persons and property to the extent and in the manner customary for companies in similar businesses similarly situated; 7.4.6 keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its and its subsidiaries' business and affairs in accordance with GAAP applied on a consistent basis; (d) 7.4.7 duly observe and comply with conform to, and cause its subsidiaries, if any, to so observe and conform to, in all material respects, all valid requirements of governmental authorities relating to the organizational documents conduct of the Companytheir businesses or to their property or assets; (e) pay compensation 7.4.8 maintain in full force and effect its corporate existence, rights and franchises and use its commercially reasonable efforts to directors maintain in full force and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors effect all licenses and other rights to use patents, processes, licenses, trademarks, service marks, trade names or copyrights owned or possessed by it or any subsidiary and necessary to the Company’s logos and trademarks in their marketing materials in their ordinary course conduct of its business; and (g) provide to the Board, promptly, 7.4.9 obtain a confidentiality and non-disclosure agreement as described in no event more than fifteen (15) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with Section 7.7 from each interim or special audit new employee of the Company or any of its subsidiaries made by such accountantsa subsidiary.

Additional Affirmative Covenants. The Company Issuers shall, or and shall cause each of its subsidiariestheir Subsidiaries, if any and as applicable, to: (a) 7.4.1. promptly pay and discharge, or cause to be paid and discharged, when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business of the Company Issuers or any subsidiarySubsidiary; provided, however, that any such tax, assessment, charge or levy need not be paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Company Issuers shall have set aside on its books adequate reserves under generally accepted accounting principles with respect thereto; and provided, further, that the Issuers shall pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien that may have attached as security therefor; (b) use commercially reasonable efforts 7.4.2. promptly pay, or cause to be paid, when due, in conformance with customary trade terms, all other indebtedness incident to the operations of the Issuers and their Subsidiaries, if any, except for such amounts which have been contested in good faith by the Issuers or their Subsidiaries, as applicable; 7.4.3. keep its properties and those of its subsidiariesthe Subsidiaries, if any, in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make all necessary and proper repairs, renewals, replacements, additions and improvements thereto; (c) 7.4.4. comply, and cause the Subsidiaries, if any, to comply, in all material respects, at all times with the provisions of all leases to which any of the Issuers and their Subsidiaries is a party or under which any of them occupies real property; 7.4.5. keep true records and books of account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and affairs in accordance with GAAP applied on a consistent basis; (d) 7.4.6. duly observe and conform to, and cause their Subsidiaries, if any, to so observe and conform to, in all material respects, all valid requirements of governmental authorities relating to the conduct of their businesses or to their property or assets; 7.4.7. duly observe and comply with the organizational documents their Certificate of the CompanyIncorporation, Bylaws and Material Contracts; (e) pay compensation to directors 7.4.8. maintain in full force and executive officers of the Company only as approved by the Board or compensation committee thereof; (f) permit the Investors to use the Company’s logos effect its corporate existence, rights and trademarks in their marketing materials in their ordinary course of businessfranchises; and 7.4.9. within sixty (g) provide to the Board, promptly, and in no event more than fifteen (1560) days after receipt thereof, copies of all audit reports, so-called “management letters” and other written reports submitted to the Company by independent certified public accountants in connection with each interim or special audit of the Company date hereof, cause each officer and key employee of the Issuers or any of its subsidiaries made by such accountantstheir Subsidiaries to enter into an Employee Agreement Regarding Confidentiality, Inventions and Noncompetition with the Issuer.