INTEREST IN THE CREDIT EXTENSIONS (PROVIDED, HOWEVER, BANK
SHALL USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN SUCH PROSPECTIVE
TRANSFEREE'S OR PURCHASER'S AGREEMENT TO THE TERMS OF THIS PROVISION); (C) AS
REQUIRED BY LAW, REGULATION, SUBPOENA, OR OTHER ORDER; (D) TO BANK'S REGULATORS
OR AS OTHERWISE REQUIRED IN CONNECTION WITH BANK'S EXAMINATION OR AUDIT; AND
(E) AS BANK CONSIDERS APPROPRIATE IN EXERCISING REMEDIES UNDER THIS AGREEMENT.
CONFIDENTIAL INFORMATION DOES NOT INCLUDE INFORMATION THAT EITHER: (I) IS IN THE
PUBLIC DOMAIN OR IN BANK'S POSSESSION WHEN DISCLOSED TO BANK, OR BECOMES PART OF
THE PUBLIC DOMAIN AFTER DISCLOSURE TO BANK; OR (II) IS DISCLOSED TO BANK BY A
THIRD PARTY, IF BANK DOES NOT KNOW THAT THE THIRD PARTY IS PROHIBITED FROM
DISCLOSING THE INFORMATION. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, THE TERM "CONFIDENTIAL INFORMATION" SHALL NOT INCLUDE, AND BANK
MAY DISCLOSE WITHOUT LIMITATION OF ANY KIND, ANY INFORMATION WITH RESPECT TO THE
"TAX TREATMENT" AND "TAX STRUCTURE" (IN EACH CASE WITHIN THE MEANING OF TREASURY
REGULATION SECTION 1.6011-4) OF THE TRANSACTIONS CONTEMPLATED HEREBY AND ALL
MATERIALS OF ANY KIND (INCLUDING OPINIONS OR OTHER TAX ANALYSIS) THAT ARE
PROVIDED TO BANK RELATING TO SUCH TAX TREATMENT OR TAX STRUCTURE.
15
12.10.
ATTORNEYS' FEES, COSTS AND EXPENSES. IN ANY ACTION OR
PROCEEDING BETWEEN BORROWER AND BANK ARISING OUT OF OR RELATING TO THE LOAN
DOCUMENTS, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ITS REASONABLE
ATTORNEYS' FEES AND OTHER REASONABLE COSTS AND EXPENSES INCURRED, IN ADDITION TO
ANY OTHER RELIEF TO WHICH IT MAY BE ENTITLED, WHETHER OR NOT A LAWSUIT IS FILED.
12.11.
QUALIFIED COMMERCIAL LOAN CERTIFICATION. BORROWER HEREBY
CERTIFIES TO BANK THAT:
(A)
BORROWER HAS BEEN ADVISED BY BANK TO SEEK
THE ADVICE OF AN ATTORNEY AND ACCOUNTANT IN CONNECTION WITH THE LOANS EVIDENCED
BY THIS AGREEMENT;
(B)
BORROWER HAS HAD THE OPPORTUNITY TO SEEK THE
ADVICE OF AN ATTORNEY AND ACCOUNTANT OF BORROWER'S CHOICE IN CONNECTION WITH THE
LOANS EVIDENCED BY THIS AGREEMENT.
13.
DEFINITIONS
13.1.
DEFINITIONS. AS USED IN THIS AGREEMENT, THE FOLLOWING
TERMS HAVE THE FOLLOWING MEANINGS:
"Account" is any "account" as defined in the Code with such additions to such
term as may hereafter be made, and includes, without limitation, all accounts
receivable and other sums owing to Borrower.
"Account Debtor" is any "account debtor" as defined in the Code with such
additions to such term as may hereafter be made.
"Advance" or "Advances" means an advance (or advances) under the Revolving Line.
"Affiliate" of any Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"Agreement" is defined in the preamble hereof.
"Availability Amount" is the lesser of (a) the Revolving Line or (b) the
Borrowing Base.
"Bank" is defined in the preamble hereof.
"Bank Expenses" are all audit fees and