CALENDAR DAY OF EACH MONTH. PAYMENTS OF PRINCIPAL AND/OR
INTEREST RECEIVED AFTER 12:00 NOON EASTERN TIME ARE CONSIDERED RECEIVED AT THE
OPENING OF BUSINESS ON THE NEXT BUSINESS DAY. WHEN A PAYMENT IS DUE ON A DAY
THAT IS NOT A BUSINESS DAY, THE PAYMENT IS DUE THE NEXT BUSINESS DAY AND
ADDITIONAL FEES OR INTEREST, AS APPLICABLE, SHALL CONTINUE TO ACCRUE.
2.4
FEES. BORROWER SHALL PAY TO BANK:
(A)
COMMITMENT FEE. A NON-REFUNDABLE COMMITMENT FEE OF
$100,000.00 FULLY EARNED AS OF THE EFFECTIVE DATE AND DUE AND PAYABLE UPON THE
EARLIEST TO OCCUR OF: (I) JULY 1, 2008, (II) THE TERMINATION OF THIS AGREEMENT,
OR (III) THE OCCURRENCE OF AN EVENT OF DEFAULT; AND
(B)
LETTER OF CREDIT FEE. BANK'S CUSTOMARY FEES AND EXPENSES FOR
THE ISSUANCE OR RENEWAL OF LETTERS OF CREDIT, UPON THE ISSUANCE, EACH
ANNIVERSARY OF THE ISSUANCE, AND THE RENEWAL OF SUCH LETTER OF CREDIT; AND
(C)
BANK EXPENSES. ALL BANK EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND EXPENSES FOR DOCUMENTATION AND NEGOTIATION OF THIS
AGREEMENT) INCURRED THROUGH AND AFTER THE EFFECTIVE DATE, WHEN DUE.
3
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 BANK SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE
SATISFACTORY TO BANK, SUCH DOCUMENTS, AND COMPLETION OF THE FOLLOWING MATTERS:
(A)
DULY EXECUTED ORIGINAL SIGNATURES TO THE LOAN DOCUMENTS TO
WHICH IT IS A PARTY;
(B)
DULY EXECUTED ORIGINAL SIGNATURES TO THE CONTROL AGREEMENTS;
(C)
EACH BORROWER SHALL HAVE DELIVERED ITS OPERATING DOCUMENTS
AND A GOOD STANDING CERTIFICATE CERTIFIED BY THE SECRETARY OF STATE OF THE STATE
IN WHICH SUCH BORROWER IS INCORPORATED AS OF A DATE NO EARLIER THAN THIRTY (30)
DAYS PRIOR TO THE EFFECTIVE DATE;
(D)
DULY EXECUTED ORIGINAL SIGNATURES TO THE COMPLETED BORROWING
RESOLUTIONS FOR EACH BORROWER;
(E)
BANK SHALL HAVE RECEIVED CERTIFIED COPIES, DATED AS OF A
RECENT DATE, OF FINANCING STATEMENT SEARCHES, AS BANK SHALL REQUEST, ACCOMPANIED
BY WRITTEN EVIDENCE (INCLUDING ANY UCC TERMINATION STATEMENTS) THAT THE LIENS
INDICATED IN ANY SUCH FINANCING STATEMENTS EITHER CONSTITUTE PERMITTED LIENS OR
HAVE BEEN OR, IN CONNECTION WITH THE INITIAL CREDIT EXTENSION, WILL BE
TERMINATED OR RELEASED; AND
(F)
BORROWER SHALL HAVE PAID THE FEES AND BANK EXPENSES THEN
DUE AS SPECIFIED IN SECTION 2.4 HEREOF.
3.2
CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
BANK'S OBLIGATIONS TO MAKE EACH CREDIT EXTENSION, INCLUDING THE INITIAL CREDIT
EXTENSION, IS SUBJECT TO THE FOLLOWING:
(A)
EXCEPT AS OTHERWISE PROVIDED IN SECTION 3.4, TIMELY RECEIPT
OF AN EXECUTED PAYMENT/ADVANCE FORM;
AND
(B)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 5 SHALL BE
TRUE IN ALL MATERIAL RESPECTS ON THE DATE OF THE PAYMENT/ADVANCE FORM AND ON THE
FUNDING DATE OF EACH CREDIT EXTENSION; PROVIDED, HOWEVER, THAT
4
SUCH MATERIALITY QUALIFIER SHALL NOT BE APPLICABLE TO ANY REPRESENTATIONS AND
WARRANTIES THAT ALREADY ARE QUALIFIED OR MODIFIED BY MATERIALITY IN THE TEXT
THEREOF; AND PROVIDED, FURTHER THAT THOSE REPRESENTATIONS AND WARRANTIES
EXPRESSLY REFERRING TO A SPECIFIC DATE SHALL BE TRUE,