FEES.
BORROWER SHALL PAY TO BANK:
(A)
COMMITMENT FEE.
A FULLY EARNED, NON
REFUNDABLE COMMITMENT FEE OF $500,000.00 (RECEIPT OF WHICH BANK HEREBY
ACKNOWLEDGES); AND
(B)
LETTER OF CREDIT FEES.
BANK'S CUSTOMARY
FEES AND EXPENSES FOR THE ISSUANCE, MODIFICATION OR RENEWAL OF LETTERS OF
CREDIT, INCLUDING, WITHOUT LIMITATION, ITS CUSTOMARY FEES UPON THE ISSUANCE,
EACH ANNIVERSARY OF THE ISSUANCE, MODIFICATION AND THE RENEWAL OF SUCH LETTER OF
CREDIT BY BANK; AND
(C)
TERMINATION FEE.
IN ACCORDANCE WITH THE
TERMS OF SECTION 12.1, A TERMINATION FEE; AND
(D)
UNUSED REVOLVING LINE FACILITY FEE.
A FEE
(THE "UNUSED REVOLVING LINE FACILITY FEE"), PAYABLE MONTHLY, IN ARREARS, ON A
CALENDAR YEAR BASIS, IN AN AMOUNT PER ANNUM EQUAL TO THE UNUSED LINE FEE
PERCENTAGE OF THE AVERAGE UNUSED PORTION OF THE TOTAL COMMITMENT, AS REASONABLY
DETERMINED BY BANK.
THE UNUSED PORTION OF THE TOTAL COMMITMENT, FOR THE
PURPOSES OF THIS CALCULATION, SHALL INCLUDE AMOUNTS RESERVED UNDER THE CASH
MANAGEMENT
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Services Sublimit for products provided and under the Foreign Exchange Sublimit
for FX Forward Contracts. Borrower shall not be entitled to any credit, rebate
or repayment of any Unused Revolving Line Facility Fee previously earned by Bank
pursuant to this Section notwithstanding any termination of the Agreement, or
suspension or termination of Bank's obligation to make loans and advances
hereunder; and
(E)
BANK EXPENSES.
ALL BANK EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, PLUS EXPENSES, FOR
DOCUMENTATION AND NEGOTIATION OF THIS AGREEMENT) INCURRED THROUGH AND AFTER THE
EFFECTIVE DATE, WHEN DUE.
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CONDITIONS OF LOANS
3.1
CONDITIONS PRECEDENT TO INITIAL CREDIT
EXTENSION.
BANK'S OBLIGATION TO MAKE THE INITIAL CREDIT EXTENSION IS SUBJECT TO
THE CONDITION PRECEDENT THAT BORROWER SHALL CONSENT TO OR HAVE DELIVERED, IN
FORM AND SUBSTANCE SATISFACTORY TO BANK, SUCH DOCUMENTS, AND COMPLETION OF SUCH
OTHER MATTERS, AS BANK MAY REASONABLY DEEM NECESSARY OR APPROPRIATE, INCLUDING,
WITHOUT LIMITATION:
(A)
DULY EXECUTED ORIGINAL SIGNATURES TO THE
LOAN DOCUMENTS TO WHICH IT IS A PARTY;
(B)
ITS OPERATING DOCUMENTS AND A GOOD STANDING
CERTIFICATE OF BORROWER CERTIFIED BY THE SECRETARY OF STATE OF THE STATE OF
DELAWARE AS OF A DATE NO EARLIER THAN THIRTY (30) DAYS PRIOR TO THE EFFECTIVE
DATE;
(C)
COMPLETED BORROWING RESOLUTIONS FOR
BORROWER;
(D)
EITHER (I) AN ACKNOWLEDGEMENT/RATIFICATION
DULY EXECUTED BY THE TRUSTEE UNDER THE INDENTURE IN FAVOR OF BANK CONFIRMING
THAT THE OBLIGATIONS CONSTITUTE "DESIGNATED SENIOR INDEBTEDNESS" AS DEFINED IN
THE INDENTURE OR (II) EVIDENCE THAT BORROWER'S INDEBTEDNESS UNDER THE
CONVERTIBLE SENIOR SUBORDINATED NOTES HAS BEEN OR, UPON THE APPLICATION OF THE
PROCEEDS OF THE INITIAL CREDIT EXTENSION TO BE MADE HEREUNDER WILL BE, SATISFIED
IN FULL AND THAT THE INDENTURE HAS BEEN TERMINATED; PROVIDED THAT, IN ORDER TO
SATISFY THIS SUBSECTION 3.1(D) BY COMPLIANCE WITH CLAUSE (II) HEREOF THEN, AFTER
GIVING EFFECT TO SUCH INITIAL CREDIT EXTENSION (X) NO DEFAULT OR EVENT OF
DEFAULT SHALL THEN EXIST AND (Y) BORROWER SHALL HAVE PROVIDED EVIDENCE
SATISFACTORY TO BANK THAT IT SHALL REMAIN IN PRO FORMA COMPLIANCE WITH THE
FINANCIAL COVENANTS SET FORTH IN SECTION 6.9 AT