AND LETTER OF CREDIT.
IN ADDITION
TO THE CONDITIONS PRECEDENT STATED ELSEWHERE HEREIN, THE LENDER SHALL NOT BE
OBLIGATED TO MAKE ANY LOAN OR ISSUE ANY LETTER OF CREDIT UNLESS:
(A)
CYMRI SHALL HAVE DELIVERED TO THE LENDER A
BORROWING REQUEST AT LEAST ONE BUSINESS DAY PRIOR TO THE REQUESTED DATE FOR THE
RELEVANT LOAN, OR A LETTER OF CREDIT APPLICATION AT LEAST TWO BUSINESS DAYS
PRIOR TO THE REQUESTED ISSUANCE DATE FOR THE RELEVANT LETTER OF CREDIT AND EACH
STATEMENT OR CERTIFICATION MADE IN SUCH BORROWING REQUEST OR LETTER OF CREDIT
APPLICATION, AS THE CASE MAY BE, SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS ON THE REQUESTED DATE FOR SUCH LOAN OR THE ISSUANCE OF SUCH LETTER OF
CREDIT;
(B)
NO EVENT OF DEFAULT OR DEFAULT SHALL EXIST
OR WILL OCCUR AS A RESULT OF THE MAKING OF THE REQUESTED LOAN OR THE ISSUANCE OF
THE REQUESTED LETTER OF CREDIT;
23
(C)
IF REQUESTED BY THE LENDER, THE BORROWERS
SHALL HAVE DELIVERED EVIDENCE SATISFACTORY TO THE LENDER SUBSTANTIATING ANY OF
THE MATTERS CONTAINED IN THIS AGREEMENT WHICH ARE NECESSARY TO ENABLE THE
BORROWER TO QUALIFY FOR SUCH LOAN OR THE ISSUANCE OF SUCH LETTER OF CREDIT;
(D)
THE LENDER SHALL HAVE RECEIVED, REVIEWED,
AND APPROVED SUCH ADDITIONAL DOCUMENTS AND ITEMS AS DESCRIBED IN SECTION 3.1 AS
MAY BE REQUESTED BY THE LENDER WITH RESPECT TO SUCH LOAN OR LETTER OF CREDIT;
(E)
NO MATERIAL ADVERSE EFFECT SHALL HAVE
OCCURRED;
(F)
EACH OF THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT SHALL BE TRUE AND CORRECT (UNLESS THEY
SPEAK TO A SPECIFIC DATE OR ARE BASED ON FACTS WHICH HAVE CHANGED BY
TRANSACTIONS CONTEMPLATED OR EXPRESSLY PERMITTED BY THIS AGREEMENT) AND SHALL BE
DEEMED TO BE REPEATED BY THE BORROWERS AS IF MADE ON THE REQUESTED DATE FOR SUCH
LOAN OR THE ISSUANCE OF SUCH LETTER OF CREDIT;
(G)
ALL OF THE SECURITY INSTRUMENTS SHALL BE IN
FULL FORCE AND EFFECT AND PROVIDE TO THE LENDER THE SECURITY INTENDED THEREBY;
(H)
NEITHER THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY NOR THE MAKING OF SUCH LOAN NOR THE ISSUANCE OF SUCH LETTER
OF CREDIT SHALL CONTRAVENE, VIOLATE, OR CONFLICT WITH ANY REQUIREMENT OF LAW;
(I)
THE LOAN PARTIES SHALL HOLD DEFENSIBLE
TITLE TO THE COLLATERAL AND BE THE SOLE BENEFICIAL OWNER THEREOF;
(J)
THE LENDER SHALL HAVE RECEIVED THE
REIMBURSEMENT OF ALL ENGINEERING EXPENSES, AND OTHER FEES PAYABLE TO THE LENDER
HEREUNDER AND REIMBURSEMENT FROM THE BORROWERS, OR SPECIAL LEGAL COUNSEL FOR THE
LENDER SHALL HAVE RECEIVED PAYMENT FROM THE BORROWERS, FOR (I) ALL REASONABLE
FEES AND EXPENSES OF COUNSEL TO THE LENDER FOR WHICH THE BORROWERS ARE
RESPONSIBLE PURSUANT TO APPLICABLE PROVISIONS OF THIS AGREEMENT AND FOR WHICH
INVOICES HAVE BEEN PRESENTED AS OF OR PRIOR TO THE DATE OF THE RELEVANT LOAN OR
LETTER OF CREDIT APPLICATION, AND (II) ESTIMATED FEES CHARGED BY FILING OFFICERS
AND OTHER PUBLIC OFFICIALS INCURRED OR TO BE INCURRED IN CONNECTION WITH THE
FILING AND RECORDATION OF ANY SECURITY INSTRUMENTS, FOR