EXCEED THE
AGGREGATE AMOUNT OF SEVENTY-FIVE (75%) PERCENT OF THE HARD COSTS OF ALL ELIGIBLE
NEW EQUIPMENT PURCHASED BY BORROWERS PURSUANT HERETO.
IF AT ANY TIME THE
OUTSTANDING AGGREGATE PRINCIPAL AMOUNT OF ALL EQUIPMENT PURCHASE LOANS EXCEEDS
EIGHTY (80%) PERCENT OF THE NET ORDERLY LIQUIDATION VALUE OF ALL OF THE ELIGIBLE
NEW EQUIPMENT (NET OF LIQUIDATION EXPENSES) AS SET FORTH IN THE MOST RECENT
ACCEPTABLE APPRAISAL WITH RESPECT THERETO RECEIVED BY AGENT, AGENT MAY, AT ITS
OPTION, OR SHALL UPON THE REQUEST OF THE REQUIRED LENDERS, ESTABLISH A RESERVE
IN THE AMOUNT EQUAL TO THE ENTIRE AMOUNT OF SUCH EXCESS OR AGENT MAY INSTEAD, AT
ITS OPTION, DEMAND AND SUCH BORROWER SHALL, UPON DEMAND BY AGENT, WHICH MAY BE
MADE AT ANY TIME AND FROM TIME TO TIME, REPAY TO AGENT THE ENTIRE AMOUNT OF SUCH
EXCESS.
(C)
EACH EQUIPMENT PURCHASE LOAN TO SUCH BORROWER SHALL BE (I) EVIDENCED
BY AN EQUIPMENT PURCHASE NOTE EXECUTED AND DELIVERED BY THE APPLICABLE BORROWER
TO AGENT CONCURRENTLY WITH EACH EQUIPMENT PURCHASE LOAN, (II) REPAID, TOGETHER
WITH INTEREST AND OTHER AMOUNTS PAYABLE THEREUNDER, IN ACCORDANCE WITH THE
PROVISIONS OF THE APPLICABLE EQUIPMENT PURCHASE NOTE, THIS AGREEMENT AND THE
OTHER FINANCING AGREEMENTS, AND (III) SECURED BY ALL OF THE COLLATERAL.
(D)
IN ADDITION TO THE OTHER CONDITIONS PRECEDENT TO ANY LOAN OR LETTER
OF CREDIT ACCOMMODATION SET FORTH IN THIS AGREEMENT, THE MAKING OF EACH
EQUIPMENT PURCHASE LOAN SHALL BE SUBJECT TO THE SATISFACTION OF EACH OF THE
FOLLOWING ADDITIONAL CONDITIONS PRECEDENT, AS DETERMINED BY AGENT:
39
(I)
AGENT SHALL HAVE RECEIVED FROM SUCH BORROWER NOT LESS THAN FIVE
(5) BUSINESS DAYS AND NOT MORE THAN TEN (10) BUSINESS DAYS PRIOR WRITTEN NOTICE
OF THE PROPOSED EQUIPMENT PURCHASE LOAN (EACH SUCH NOTICE BEING AN "EQUIPMENT
PURCHASE LOAN REQUEST"), WHICH NOTICE SHALL SPECIFY THE FOLLOWING: (A) THE
PROPOSED DATE AND AMOUNT OF THE EQUIPMENT PURCHASE LOAN, (B) A LIST AND
DESCRIPTION OF THE ELIGIBLE NEW EQUIPMENT (BY MODEL, MAKE, MANUFACTURER, SERIAL
NUMBER AND/OR SUCH OTHER IDENTIFYING INFORMATION AS MAY BE REQUESTED BY AGENT),
(C) WHETHER ANY OF SUCH ELIGIBLE NEW EQUIPMENT HAS BEEN PURCHASED PRIOR TO THE
DATE OF THE PROPOSED EQUIPMENT PURCHASE LOAN AND IF SO, THE DATE OF SUCH
PURCHASE AND IDENTIFYING THE SPECIFIC ELIGIBLE NEW EQUIPMENT THAT HAS BEEN SO
PURCHASED, (D) THE HARD COSTS AND TOTAL PURCHASE PRICE FOR THE ELIGIBLE NEW
EQUIPMENT TO BE PURCHASED WITH THE PROCEEDS OF SUCH EQUIPMENT PURCHASE LOAN (AND
THE TERMS OF PAYMENT OF SUCH PURCHASE PRICE), OR FOR WHICH SUCH BORROWER IS
BEING REIMBURSED, AS THE CASE MAY BE AND (E) SUCH OTHER INFORMATION AND
DOCUMENTS AS AGENT MAY FROM TIME TO TIME REASONABLY REQUEST WITH RESPECT
THERETO;
(II)
AGENT SHALL HAVE A VALID AND PERFECTED FIRST PRIORITY SECURITY
INTEREST IN AND LIEN UPON THE ELIGIBLE NEW EQUIPMENT TO BE PURCHASED WITH THE
PROCEEDS OF THE EQUIPMENT PURCHASE LOAN AND THE ELIGIBLE NEW EQUIPMENT SHALL BE
FREE AND CLEAR OF ALL OTHER LIENS, SECURITY INTERESTS, CLAIMS OR OTHER
ENCUMBRANCES (EXCEPT FOR THOSE PERMITTED IN