TO
PURCHASER ARISING UNDER OR IN CONNECTION WITH THE LEASES EXECUTED IN CONNECTION
WITH THE PERRIS SALE/LEASEBACK.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
THE BORROWERS AGREE AND ACKNOWLEDGE THAT THE LETTERS OF CREDIT SHALL BE SUBJECT
IN ALL RESPECTS TO ALL OF THE TERMS AND CONDITIONS OF THE CREDIT AGREEMENT
APPLICABLE TO LETTERS OF CREDIT, INCLUDING, WITHOUT LIMITATION, SECTION 3.10.4
OF THE CREDIT AGREEMENT.
3.
CASH COLLATERAL.
IN ORDER TO INDUCE THE AGENT AND THE LENDERS TO
CONSENT TO THE PERRIS SALE/LEASEBACK, AND AS A CONDITION PRECEDENT TO THE
EFFECTIVENESS OF SUCH CONSENT, THE BORROWERS HAVE AGREED TO DEPOSIT $7,500,000
IN IMMEDIATELY AVAILABLE FUNDS WITH THE AGENT (SUCH FUNDS, TOGETHER WITH ALL
OTHER ASSETS AND PROPERTY AT ANY TIME DEPOSITED IN OR CREDITED TO THE SECURITIES
ACCOUNT (AS DEFINED BELOW), AND ALL PROCEEDS OF SUCH FUNDS AND OTHER ASSETS AND
PROPERTY (INCLUDING, WITHOUT LIMITATION, ALL DIVIDENDS OR OTHER INCOME RESULTING
FROM THE AGENT'S INVESTMENT THEREOF), COLLECTIVELY, THE "CASH COLLATERAL"),
WHICH CASH COLLATERAL SHALL BE HELD BY THE AGENT, FOR ITSELF AND THE LENDERS, IN
A SECURITIES ACCOUNT (THE "SECURITIES ACCOUNT") MAINTAINED BY THE AGENT WITH
WELLS FARGO INSTITUTIONAL SECURITIES, LLC ("WFI") AS SECURITY FOR THE BORROWERS'
PAYMENT AND PERFORMANCE OF THE OBLIGATIONS.
THE CASH COLLATERAL SHALL BE FUNDED
BY APPLICATION OF A PORTION OF THE RELEASE AMOUNT PURSUANT TO SECTION 2 HEREOF.
NEITHER BORROWER SHALL HAVE THE RIGHT TO RECEIVE OR WITHDRAW ANY CASH COLLATERAL
UNTIL THE OBLIGATIONS ARE REPAID IN FULL IN CASH AND THE CREDIT AGREEMENT HAS
TERMINATED.
EACH BORROWER HEREBY CONFIRMS THE AGENT'S CONTINUING SECURITY
INTEREST IN THE CASH COLLATERAL AND, FOR THE ELIMINATION OF DOUBT, HEREBY GRANTS
THE AGENT, FOR ITSELF AND THE LENDERS, A SECURITY INTEREST IN ALL OF SUCH
BORROWER'S RESPECTIVE RIGHT, TITLE AND INTEREST IN
2
AND TO THE CASH COLLATERAL AS SECURITY FOR THE OBLIGATIONS.
THE BORROWERS
ACKNOWLEDGE AND AGREE THAT, WHILE A DEFAULT OR EVENT OF DEFAULT EXISTS, THE
AGENT MAY FROM TIME TO TIME LIQUIDATE OR OTHERWISE DISPOSE OF THE CASH
COLLATERAL AND APPLY ALL OR ANY PORTION OF THE CASH COLLATERAL TO THE
OBLIGATIONS WITHOUT PRIOR NOTICE TO EITHER BORROWER; PROVIDED, HOWEVER,
FOLLOWING EACH APPLICATION OF ALL OR ANY PORTION OF THE CASH COLLATERAL TO THE
OBLIGATIONS, THE AGENT AGREES TO GIVE THE BORROWERS PROMPT NOTICE THEREOF (BUT
NEITHER THE AGENT NOR ANY LENDER SHALL BE LIABLE TO EITHER BORROWER FOR ANY
DELAY OR FAILURE IN PROVIDING ANY SUCH NOTICE).
THE BORROWERS HEREBY EXPRESSLY
AUTHORIZE THE AGENT TO INVEST AND REINVEST THE CASH COLLATERAL IN THE WELLS
FARGO ADVANTAGE PRIME INVESTMENT MONEY MARKET FUNDS (TICKET SYMBOL: PIIXX).
NONE OF THE AGENT, ANY LENDER OR WFI SHALL BE RESPONSIBLE OR LIABLE TO THE
BORROWERS IN ANY RESPECT FOR THE SELECTION, QUALITY OR MATURITY OF SUCH
INVESTMENTS, FOR THE TIMELY INVESTMENT OR REINVESTMENT OF THE CASH COLLATERAL,
OR FOR ANY LOSSES INCURRED WITH RESPECT THERETO.
4.
INCREASE IN LETTER OF CREDIT SUB-FACILITY AMOUNT.
THE LETTER OF
CREDIT SUB-FACILITY LIMIT SHALL BE INCREASED FROM THREE MILLION DOLLARS
($3,000,000) TO SIX MILLION