TESS » Topics » SECTION 2.2 Borrowing Procedure .

This excerpt taken from the TESS 8-K filed Jun 6, 2007.

SECTION 2.2         Borrowing Procedure.

(a)           Except as hereinafter provided, all requests by the Borrowers for Loans shall be made by notice in writing (a “Notice of Borrowing”) in the form attached hereto as Exhibit B, accompanied by such information and documents concerning, as applicable, the amount of the Loan and the applicable Borrowing Date, the Borrowers’ financial condition, and/or other matters as the Lenders may from time to time require.  The Borrowers agree that they shall not request (a) any Loan that would cause the outstanding principal balance of the Loans to exceed the lesser of the Aggregate Commitment or the Borrowing Base, less the amount of any outstanding L/C Obligations. If for any reason the sum of the outstanding Loans shall nevertheless exceed the lesser of the Aggregate Commitment or the Borrowing Base less the outstanding L/C Obligations, the Borrowers shall remain liable for the entire amount outstanding, with interest, fees, and charges thereon as provided herein, and the Borrowers shall immediately upon demand pay to the Agent for the benefit of the Lenders the amount of such excess, with interest thereon as provided herein.

(b)           (i)  In order to accommodate the Borrowers’ desire to manage their cash by initiating borrowings and payments under SunTrust Bank’s cash management program, borrowings and payments of Loans may be requested and made as described in this Section 2.2(b). SunTrust Bank will monitor the Management Account on each Business Day to determine the amount of Excess Funds, if any, in the Management Account, and the Borrowers authorize SunTrust Bank to transfer Excess Funds from the Management Account and apply the same (or a portion thereof, as applicable) in payment of Loans then outstanding and interest thereon.

(ii)  If SunTrust Bank determines on any Business Day that the amount of Available Funds is, or would upon presentment of instruments and obligations then currently held by SunTrust Bank pending presentment be, less than the Target Balance, the Borrowers authorize SunTrust Bank to make a Cash Management Loan in the amount necessary to cause the Available Funds to equal at least the Target Balance, without the necessity of any formal request therefor to be made by the Borrowers, and the proceeds of such Cash Management Loan will be simultaneously deposited by SunTrust Bank in the Management Account and simultaneously applied insofar as necessary to satisfy instruments presented against the Borrowers’ account for payment (including, without limitation, authorized electronic funds transfers), and to satisfy due and unpaid Obligations of the Borrowers hereunder relating to the payment of interest (without the necessity for the Borrowers to provide direction to SunTrust Bank to make payment of such interest, which direction shall be presumed unless and until the Lenders may be notified to the contrary at any time by the Borrowers, and which payments shall, assuming sufficient Available Funds following application of the above procedures, be automatic), such that the balance in the Management Account will not actually go below the Target Balance.

(iii) The Borrowers shall pay to SunTrust Bank a periodic service charge for the services to be performed by SunTrust Bank under the Cash Management Agreements, which


charge shall be determined from time to time according to the schedule of such charges which may be established from time to time by SunTrust Bank pursuant to the Cash Management Agreements.  The Borrowers acknowledge that the services to be performed by SunTrust Bank under the Cash Management Agreements are provided as a service accommodation to the Borrowers and do not, and shall not, constitute conditions to or considerations for the Obligations, and, therefore, none of the Agent, SunTrust Bank, or any other Lender shall be liable to the Borrowers and the Borrowers shall not be entitled to any reduction in interest charged to the Borrowers on the Loans on account of any failure of SunTrust Bank to cause any reduction to be made in the principal amount of Loans outstanding; provided, however, that SunTrust Bank shall be responsible to the Borrowers for any loss or liability that the Borrowers sustain as a result of the gross negligence or willful misconduct of SunTrust Bank in the operation of the program.  Nothing herein contained shall be construed to limit, diminish, or in any way impair any security interest, lien, or right of setoff of the Agent for the benefit of the Lenders, or any Lender.  The Lenders acknowledge and agree that the periodic service charge paid by the Borrowers to SunTrust Bank under this Section 2.2 shall be for the account of SunTrust Bank only and shall not be shared by the Lenders in accordance with their Commitment Percentages or otherwise.

(iv)          At any time SunTrust Bank may terminate the operation of the cash management program without prior notice to the Borrowers; provided, however, that SunTrust Bank shall endeavor to give prior notice to the Borrowers of any proposed termination. After termination of such program, the Borrowers may request Loans only in accordance with the provisions of Section 2.2(a).

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