BUSINESS DAY AND ADDITIONAL FEES OR
INTEREST, AS APPLICABLE, SHALL CONTINUE TO ACCRUE.
2.4
FEES.
BORROWER SHALL PAY TO BANK:
(A)
COMMITMENT FEE.
A FULLY EARNED, NON-REFUNDABLE COMMITMENT FEE OF TWO
HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($265,000.00) IS EARNED AS OF THE DATE
HEREOF AND SHALL BE PAYABLE AS FOLLOWS: (I) ONE HUNDRED SIXTY-FIVE THOUSAND
DOLLARS ($165,000.00) IS PAYABLE ON THE DATE HEREOF, AND (II) ONE HUNDRED
THOUSAND DOLLARS ($100,000.00) IS PAYABLE UPON THE EARLIER TO OCCUR: (Y) THE
FIRST ANNIVERSARY OF THE EFFECTIVE DATE, AND (Z) THE EARLY TERMINATION OF THE
LOAN AGREEMENT.
IN THE EVENT THAT THE AGREEMENT AND PLAN OF MERGER DATED AS OF
FEBRUARY 10, 2006 AMONG BORROWER, CALIPER HOLDINGS INC., AND XENOGEN CORPORATION
("XENOGEN") (THE "CALIPER/XENOGEN MERGER AGREEMENT") IS TERMINATED FOR ANY
REASON PRIOR THE CLOSING OF THE MERGER THEREUNDER, SIXTY FIVE THOUSAND DOLLARS
($65,000.00) OF THE COMMITMENT FEE SHALL BE REFUNDED TO THE BORROWER; AND
(B)
MINIMUM USAGE FEE.
UPON THE OCCURRENCE OF THE ACQUISITION EVENT AND
FOR A PERIOD OF EIGHTEEN (18) CONSECUTIVE MONTHS THEREAFTER, FOR ANY MONTH IN
WHICH THE AVERAGE OUTSTANDING PRINCIPAL AMOUNT UNDER THE REVOLVING LINE IS LESS
THAN EIGHT MILLION DOLLARS ($8,000,000.00), A FEE (THE "MINIMUM USAGE FEE"),
PAYABLE MONTHLY, IN ARREARS, IN AN AMOUNT EQUAL TO THE EFFECTIVE RATE OF
INTEREST SET FORTH IN SECTION 2.3(A) MULTIPLIED BY THE DIFFERENCE BETWEEN (X)
EIGHT MILLION DOLLARS ($8,000,000.00), AND (Y) THE AVERAGE OUTSTANDING PRINCIPAL
AMOUNT OF THE REVOLVING LINE DURING SUCH MONTH.
BORROWER SHALL NOT BE ENTITLED
TO ANY CREDIT, REBATE OR REPAYMENT OF ANY MINIMUM USAGE FEE PREVIOUSLY EARNED BY
BANK PURSUANT TO THIS SECTION NOTWITHSTANDING ANY TERMINATION OF THE AGREEMENT
OR THE SUSPENSION OR TERMINATION OF BANK'S OBLIGATION TO MAKE LOANS AND ADVANCES
HEREUNDER; AND
(C)
LETTER OF CREDIT FEE.
BANK'S CUSTOMARY FEES AND EXPENSES FOR THE
ISSUANCE OR RENEWAL OF LETTERS OF CREDIT, UPON THE ISSUANCE, EACH ANNIVERSARY OF
THE ISSUANCE, AND THE RENEWAL OF SUCH LETTER OF CREDIT; AND
(D)
BANK EXPENSES.
ALL BANK EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES
AND EXPENSES FOR DOCUMENTATION AND NEGOTIATION OF THIS AGREEMENT) INCURRED
THROUGH AND AFTER THE EFFECTIVE DATE, WHEN DUE.
2.5
XENOGEN CREDIT FACILITIES.
UPON THE OCCURRENCE OF THE ACQUISITION
EVENT BUT NO EARLIER THAN AUGUST 14, 2006, THAT CERTAIN AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT DATED JULY __, 2005 BY AND AMONG BANK, XENOGEN, AND
XENOGEN BIOSCIENCES CORPORATION ("XBC") (THE "XENOGEN/SVB CREDIT AGREEMENT"),
AND THAT CERTAIN LOAN AND SECURITY AGREEMENT DATED AUGUST 2, 2005 BY AND AMONG
PARTNERS FOR GROWTH, XENOGEN, AND XBC (THE "XENOGEN/PFG CREDIT AGREEMENT") SHALL
EACH BE TERMINATED AND ALL AMOUNTS OWED TO BANK AND PARTNERS FOR GROWTH
THEREUNDER SHALL BECOME IMMEDIATELY DUE AND PAYABLE, PROVIDED THAT BANK AGREES
THAT (X) THERE SHALL NOT BE ANY PREPAYMENT FEES OR CHARGES OR ANY "MINIMUM
INTEREST" PAYABLE BY EITHER XENOGEN OR XBC UNDER THE XENOGEN/SVB CREDIT
AGREEMENT AS A RESULT OF ANY SUCH TERMINATION OF THE XENOGEN/SVB CREDIT
AGREEMENT DUE TO THE OCCURRENCE OF THE ACQUISITION EVENT, AND (Y) SUBJECT TO
SATISFACTION OF ALL APPLICABLE TERMS AND