DEFAULT OR THE EXPIRATION OF THE TERM,
BORROWERS WILL CAUSE CASH TO BE DEPOSITED AND MAINTAINED IN AN ACCOUNT WITH
AGENT, AS CASH COLLATERAL, IN AN AMOUNT EQUAL TO ONE HUNDRED AND FIVE PERCENT
(105%) OF THE MAXIMUM UNDRAWN AMOUNT OF ALL OUTSTANDING LETTERS OF CREDIT, AND
EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES AGENT, IN ITS DISCRETION, ON SUCH
BORROWER'S BEHALF AND IN SUCH BORROWER'S NAME, TO OPEN SUCH AN ACCOUNT AND TO
MAKE AND MAINTAIN DEPOSITS THEREIN, OR IN AN ACCOUNT OPENED BY SUCH BORROWER, IN
THE AMOUNTS REQUIRED TO BE MADE BY SUCH BORROWER, OUT OF THE PROCEEDS OF
RECEIVABLES OR OTHER COLLATERAL OR OUT OF ANY OTHER FUNDS OF SUCH BORROWER
COMING INTO ANY LENDER'S POSSESSION AT ANY TIME.
AGENT WILL INVEST SUCH CASH
COLLATERAL (LESS APPLICABLE RESERVES) IN SUCH SHORT-TERM MONEY-MARKET ITEMS AS
TO WHICH AGENT AND SUCH BORROWER MUTUALLY AGREE AND THE NET RETURN ON SUCH
INVESTMENTS SHALL BE CREDITED TO SUCH ACCOUNT AND CONSTITUTE ADDITIONAL CASH
COLLATERAL.
NO BORROWER MAY WITHDRAW AMOUNTS CREDITED TO ANY SUCH ACCOUNT
EXCEPT UPON THE OCCURRENCE OF ALL OF THE FOLLOWING: (X) PAYMENT AND PERFORMANCE
IN FULL OF ALL OBLIGATIONS; (Y) EXPIRATION OF ALL LETTERS OF CREDIT; AND
(Z) TERMINATION OF THIS AGREEMENT.
3.3.
CLOSING FEE AND FACILITY FEE.
(A)
UPON THE EXECUTION OF THIS AGREEMENT,
BORROWERS SHALL PAY TO AGENT FOR THE RATABLE BENEFIT OF LENDERS A CLOSING FEE OF
THREE HUNDRED THOUSAND DOLLARS ($300,000) LESS THAT PORTION OF THE COMMITMENT
FEE OF THREE HUNDRED THOUSAND DOLLARS $300,000 HERETOFORE PAID BY BORROWERS TO
AGENT REMAINING AFTER APPLICATION OF SUCH FEES TO OUT OF POCKET COSTS AND
EXPENSES.
(B)
IF, FOR ANY MONTH DURING THE TERM, THE
AVERAGE DAILY UNPAID BALANCE OF THE REVOLVING ADVANCES, PLUS THE MAXIMUM UNDRAWN
AMOUNT OF ALL OUTSTANDING LETTERS OF CREDIT FOR EACH DAY OF SUCH MONTH DOES NOT
EQUAL THE MAXIMUM REVOLVING ADVANCE AMOUNT, THEN BORROWERS SHALL PAY TO AGENT
FOR THE RATABLE BENEFIT OF LENDERS A FEE AT A RATE EQUAL TO ONE PERCENT (1.00%)
PER ANNUM ON THE AMOUNT BY WHICH THE MAXIMUM REVOLVING ADVANCE AMOUNT EXCEEDS
SUCH AVERAGE DAILY UNPAID BALANCE.
SUCH FEE SHALL BE PAYABLE TO AGENT IN
ARREARS ON THE FIRST DAY OF EACH MONTH WITH RESPECT TO THE PREVIOUS MONTH.
42
3.4.
COLLATERAL EVALUATION FEE AND COLLATERAL MONITORING FEE.
(A)
BORROWERS SHALL PAY AGENT A COLLATERAL MONITORING FEE EQUAL TO TWO
THOUSAND FIVE HUNDRED DOLLARS ($2,500) PER MONTH COMMENCING ON THE FIRST DAY OF
THE MONTH FOLLOWING THE CLOSING DATE AND ON THE FIRST DAY OF EACH MONTH
THEREAFTER DURING THE TERM.
THE COLLATERAL MONITORING FEE SHALL BE DEEMED
EARNED IN FULL ON THE DATE WHEN SAME IS DUE AND PAYABLE HEREUNDER AND SHALL NOT
BE SUBJECT TO REBATE OR PRORATION UPON TERMINATION OF THIS AGREEMENT FOR ANY
REASON.
(B)
BORROWERS SHALL PAY TO AGENT ON THE FIRST DAY OF EACH MONTH
FOLLOWING ANY MONTH IN WHICH AGENT PERFORMS ANY COLLATERAL EVALUATION - NAMELY
ANY FIELD EXAMINATION, COLLATERAL ANALYSIS OR OTHER BUSINESS ANALYSIS, THE NEED
FOR WHICH