Common use of BORROWER'S ADDITIONAL COVENANTS Clause in Contracts

BORROWER'S ADDITIONAL COVENANTS. In addition to any and all covenants and agreements of Borrowers contained herein, in the Original Credit Agreement and in the Loan Documents, each Borrower unconditionally agrees as follows: 6.1. Upon execution of this Agreement, Borrowers shall pay to Administrative Agent, for the pro rata account of each Lender, a forbearance fee of $225,000 in consideration of Administrative Agent’s and the Lenders’ agreement to forbear as set forth herein, and Borrowers acknowledge and agree that the foregoing forbearance fee paid to Administrative Agent for the pro rata benefit of each Lender will be earned by Administrative Agent and the Lenders upon execution of this Agreement and will not be refundable to Borrowers for any reason or under any circumstance, and shall not be applied to any of the Loan Obligations (including principal and interest). Borrowers shall promptly pay to Administrative Agent an amount equal to all fees, costs and expenses incurred by the Administrative Agent (including all attorneys fees and expenses) in connection with the preparation, negotiation, execution and delivery of this Agreement, the earlier proposed Eighth Amendment to Credit Facilities Agreement which was not executed, and any further documentation which may be required in connection herewith or therewith. 6.2. Administrative Agent shall retain the Collateral to secure repayment of the Loan Obligations until such time as the Loan Obligations are paid in full in cash. 6.3. Until the Loan Obligations are repaid in full in cash, each Borrower shall allow Administrative Agent and its attorneys, the Advisor, accountants, agents, consultants and representatives or other Persons authorized by and acting on behalf of Administrative Agent to perform, and Borrowers shall fully cooperate with Administrative Agent in connection therewith, inventory reviews, appraisals, inspections, and examinations of Borrowers and the Collateral as often as Administrative Agent determines in its sole and absolute discretion. All inventory reviews, appraisals, inspections, and examinations shall be at Borrowers’ sole cost and expense, including but not limited to a fee of $525 per auditor per day plus travel expenses, and Borrowers shall reimburse Administrative Agent, on demand, for all of its fees, costs and expenses (including, without limitation, allocated internal charges and overheads and travel expenses) incurred by Administrative Agent or its attorneys, accountants, agents, consultants and representatives or other Persons authorized by and acting on behalf of Administrative Agent in connection with all inventory reviews, appraisals, inspections and examinations. Notwithstanding the foregoing, and effective only after the date of this Agreement, Borrower shall be responsible for costs and expenses related to not more than four (4) separate examination engagements per calendar year. Administrative Agent, and its attorneys, accountants, agents, consultants and representatives or other Persons authorized by and acting on behalf of Administrative Agent may make copies or abstracts of any books and records of any Borrower or its auditors, and discuss the affairs, finances, Collateral, and books and records of any Borrower with its auditors, officers, directors, consultants and employees. Borrowers will deliver to Administrative Agent any instrument necessary for Administrative Agent to obtain records from any service bureau maintaining records for Borrowers. 6.4. Until the Loan Obligations are repaid in full in cash, each Borrower shall allow Administrative Agent, its attorneys, and any of their representatives, consultants, and agents to have their employees and representatives at Borrower’s corporate headquarters location and any of Borrower’s other locations (owned or leased) at all times, with full access to all Collateral, facilities, books and records (including, without limitation, books and records relating to financial statements and accounting matters, disbursements, collections and deposits), and all of Borrower’s employees, officers and directors as well as Borrower’s independent outside auditing firm. 6.5. On or before March 13, 2006, Borrowers shall have engaged a nationally recognized restructuring advisor to, among other things, evaluate Borrowers’ financial restructuring plan and alternatives (“Advisor”). The identity of the Advisor and the scope of the engagement of the Advisor, must be satisfactory to Administrative Agent in its reasonable discretion. Advisor will commence its on-site work with the Borrowers as soon as possible after Advisor has been retained, but not later than March 15, 2006. Borrowers shall provide to Administrative Agent and Lenders copies of all reports prepared by Advisor pursuant to the engagement. Advisor shall, on or about April 14, 2006, make a presentation to Administrative Agent and Lenders which details Advisor’s progress to date, its interim findings, its recommendations to Borrowers, and the schedule of work yet to be completed. The presentation by Advisor shall take place at mutually convenient time and location. Borrowers shall be responsible for and pay all costs, expenses and fees of such Advisor. Borrowers shall at all times provide Advisor with reasonable access to Borrowers’ personnel and financial restructuring plans and projections and all financial books and records of Borrowers. Advisor shall be included in the list of those Persons with whom Administrative Agent shall have access to and may discuss the business, operations, revenues, financial condition, or business prospects of Borrowers, all as set forth in Section 13.27 of the Original Credit Agreement. Borrowers failure to timely hire the Advisor, pay the costs, fees and expenses of the Advisor or to otherwise comply with the terms of this Agreement shall be deemed an Event of Default under the Loan Documents. 6.6. Each Borrower shall provide to Administrative Agent promptly upon Administrative Agent’s request such other financial and operation information relating to such Borrower and its operations as Administrative Agent may request from time to time. Furthermore, each Borrower shall, at Borrower’s sole cost and expense, promptly retain such consultants as Administrative Agent or the Required Lenders require.