LOAN AND SECURITY AGREEMENT

Exhibit 10.3         

EXECUTION VERSION

 

LOAN AND SECURITY AGREEMENT

 

BY AND AMONG

ISRAEL DISCOUNT BANK OF NEW YORK, as Agent,

THE LENDERS PARTY HERETO FROM TIME TO TIME

-AND-

COUNSEL RB CAPITAL LLC, as Borrower

 

June 2, 2009

 

TABLE OF CONTENTS

LOAN AND SECURITY AGREEMENT

THIS LOAN AND SECURITY AGREEMENT dated as of June 2, 2009, is by and among ISRAEL DISCOUNT BANK OF NEW YORK, a New York banking corporation as agent (in such capacity, “ Agent ”) for itself and the other lenders signatory hereto from time to time (collectively referred to herein as “ Lenders ”) and COUNSEL RB CAPITAL LLC, a Delaware limited liability company (“ Borrower ”).

SECTION 1

DEFINITIONS

1.1           The following terms as used in this Loan and Security Agreement shall have the meanings hereinafter provided:

(1)           in fiduciary or agency capacity without sole discretionary power to vote such securities; or

(2)           solely to secure a debt, if such Person has not in fact exercised such power to vote;

“Agreement”:  The contents hereof together with the contents of any and all schedules and exhibits annexed hereto and all of which are made a part hereof and all other writings and any amendments, modifications, extensions, renewals and/or supplements thereto submitted by Borrower to Agent pursuant hereto, all of which are incorporated herein by reference as though fully set forth herein at length.

“Bankruptcy Code”:  Title 11 of the United States Code, 11 U.S.C. §§101 et seq ., as amended from time to time.

“Base Rate”:  For any day, a floating rate equal to the rate established from time to time by Israel Discount Bank of New York as its “ prime rate ”, which is a reference rate and does not necessarily represent the lowest or best rate being charged to any customer.  Each change in any interest rate provided for in the Agreement based upon the Base Rate shall take effect at the time of such change in the Base Rate.

“Blocked Account”:  The blocked loan security account maintained by Borrower with Agent over which Agent alone shall have the power of withdrawal.

“Board”:  The Board of Governors of the Federal Reserve System of the United States of America.

“Borrowing Availability”: As of any date of determination the lesser of (a) the Maximum Loan Amount and (b) the Borrowing Base, in each case, less the sum of the aggregate amount of the Revolving Loan then outstanding.

“Borrowing Base”: The difference between:

(a)           the lesser of (i) two times Capital Funds and (ii) the lesser of (1) up to seventy-five percent (75%) (or such lesser rate as Lender in its sole discretion may deem appropriate from time to time) of Borrower’s cost for Eligible Assets or (2) up to eighty-five percent (85%) (or such lesser rate as Agent in its sole discretion may deem appropriate from time to time) of the Net Orderly Liquidation Value of Eligible Assets; less

“Borrowing Base Certificate”:  The borrowing base certificate in the form of Exhibit A annexed hereto and made a part hereof.

“Business Day”:  Any day, other than a Saturday, Sunday or legal holiday in the State of New York on which banks are open for substantially all their banking business in New York.

“Capital Expenditures”:  For any period, with respect to any Person, the aggregate of all expenditures (by the expenditure of cash or the incurrence of Indebtedness) by such Person for the acquisition or leasing (pursuant to a capital lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that should be capitalized under GAAP on the balance sheet of such Person.

“Capital Funds”: The sum of Borrower's Tangible Net Worth plus Subordinated Indebtedness.

“Capital Guideline”:  Any law, rule, regulation, policy, guideline or directive (whether or not having the force of law and whether or not the failure to comply therewith would be unlawful, and including, without limitation, any law, rule, regulation, policy, guideline or directive contemplated by the report dated June, 2004 entitled “International Convergence of Capital Measurement and Capital Standards, a Revised Framework” issued by the Basle Committee on Banking Regulations and Supervisory Practices): (a) regarding capital adequacy, capital ratios, capital requirements, the calculation of a bank’s capital or similar matters, or (b) affecting the amount of capital required to be obtained or maintained by a Lender or the manner in which a Lender allocates capital to any of its contingent liabilities, advances, commitments, assets or liabilities.

“Capitalized Lease Obligation”:  An obligation to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real and/or personal property which obligation is required to be classified and accounted for as a capital lease on a balance sheet prepared in accordance with GAAP, and for purposes hereof the amount of such obligation shall be the capitalized amount thereof determined in accordance with GAAP.

“Change of Control”:  Any event, transaction or occurrence as a result of which (a) the current Stockholders cease to own and control all of the economic and voting rights associated with all of the outstanding capital Stock of Borrower, (b) during any period of twelve consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of Borrower (together with any new directors whose election was approved by the board of directors of Borrower or the Stockholders of Borrower) cease for any reason to constitute a majority of the directors then in office, or (c) any one or more of Adam Reich and Jonathan Reich shall no longer be a member of Borrower’s senior management having substantially the same duties and responsibilities as on the Closing Date.

“Closing Date”:  The date of this Agreement.

“Collateral”:  All of the following assets property, interests and/or rights of Borrower on or in which a Lien is granted to Agent, for the benefit of itself and the Lenders, whether now owned or existing or hereafter created, acquired or arising and wheresoever located:

“Controlled Group”:  As such term is defined in the Internal Revenue Code of 1986, as amended.

“Counsel Corporation Letter Agreement”:  The letter agreement dated on or about the Closing date by Counsel Corporation in favor of Agent, for the benefit of itself and the Lenders, as the same may be modified, amended, supplemented or restated from time to time.

“Default”:  Any condition or the occurrence of any event which after the giving of notice or lapse of time or both would constitute an Event of Default.

“Default Rate”:  An annual rate of interest equal to five (5%) percent greater than the Interest Rate.

“Document List”:  The document list in the form of Exhibit B attached hereto and made a part hereof.

“Eligible Assets”:  Borrower’s interest in used manufacturing or industrial equipment, industrial inventory and scrap and salvage materials (including without limitation, machine tools and processing equipment), alone or in partnership, for resale in bulk, through liquidations, private sale (also known as private treaty) or in auctions to be conducted by liquidators acceptable to Agent.  Eligible Assets must be saleable by Borrower within the applicable Holding Period and must otherwise be acceptable to Agent in its discretion.  Eligible Assets shall exclude assets having any of the following characteristics:

“ERISA”:  The Employee Retirement Income Security Act of 1974.

“Event of Default”:  Any one or more of the occurrences described in Section 8.

“Fair Labor Standards Act”:  The Fair Labor Standards Act, 29 U.S.C. §201 et seq.

“Final Maturity Date”: June 2, 2010.

“GAAP”:  Generally accepted accounting principles in effect from time to time in the United States of America or Canada, as applicable, applied on a consistent basis.  In the event that any “Accounting Change” (as defined below) shall occur and such change results in a change in the method of calculation of financial covenants, standards or terms in this Agreement, then Borrower and Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating Borrower’s financial condition shall be the same after such Accounting Changes as if such Accounting Changes had not been made.  Until such time as such an amendment shall have been executed and delivered by Borrower and Agent, all financial covenants, standards and terms in this Agreement shall continue to be calculated or construed as if such Accounting Changes had not occurred.  “ Accounting Changes ” refers to changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion by the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or, if applicable, the Securities and Exchange Commission.  Unless otherwise indicated, “GAAP” shall mean generally accepted accounting principles in effect from time to time in the United States of America.

“Governmental Authority”:  Any nation or government, any federal, state, city, town, municipality, county, local or other political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency or other Person exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Guaranteed Indebtedness”:  As to any Person, any obligation of such Person guaranteeing, providing comfort or otherwise supporting any Indebtedness, lease, dividend, or other obligation (“ primary obligation ”) of any other Person (the “ primary obligor ”) in any manner, including any obligation or arrangement of such Person to (a) purchase or repurchase any such primary obligation, (b) advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor, (c) purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) protect the beneficiary of such arrangement from loss (other than product warranties given in the ordinary course of business) or (e) indemnify the owner of such primary obligation against loss in respect thereof.  The amount of any Guaranteed Indebtedness at any time shall be deemed to be an amount equal to the lesser at such time of (x) the stated or determinable amount (as calculated in accordance with GAAP) of the primary obligation in respect of which such Guaranteed Indebtedness is incurred and (y) the maximum stated or determinable amount (as calculated in accordance with GAAP) for which such Person may be liable pursuant to the terms of the instrument embodying such Guaranteed Indebtedness, or, if not stated or determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof.

“Guarantors”:  Collectively and individually, (a) Counsel Corporation, an Ontario corporation, (b) Kind Chin Associates LLC, a California limited liability company, (c) C2 Global Technologies Inc., a Florida corporation, (d) Forsons Equity, LLC, a New York limited liability company, (e) Adam Reich, (f) Jonathan Reich, and (g) any other Person guaranteeing the Obligations of Borrower to Lender from time to time.

“Guaranty Agreements”:  Collectively and individually, each guaranty agreement executed by a Guarantor in favor of Agent, for the benefit of itself and the Lenders, as the same may be modified, amended, supplemented or restated from time to time.

“Holding Period”:  150 days for Eligible Assets not purchased for sale or other disposition by Borrower through an orderly liquidation, provided, that Agent may, in its sole discretion, extend this time period for an additional 30 days, upon Borrower’s written request and agreement to pay the extension fee described in Section 2.4(d); and 180 days for Eligible Assets to be sold or disposed of by Borrower through an orderly liquidation.

“IDB”: Israel Discount Bank of New York, a New York banking corporation.

“Indebtedness”:  With respect to any Person at any date, without duplication (a) all indebtedness of such Person for borrowed money (including, as to Borrower, the Obligations), (b) all obligations of such Person for the deferred purchase price of property or services (other than current trade payables incurred in the ordinary course of such Person’s business that are unsecured and are not overdue by more than six months unless contested in good faith), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property), (e) all Capitalized Lease Obligations of such Person, (f) all obligations of such Person, contingent or otherwise, as an account party under acceptances, letters of credit or similar facilities, (g) all Guaranteed Indebtedness of such Person in respect of obligations of the kind referred to in clauses (a) through (f) above, (h) all obligations of the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, (i) all obligations of such Person under commodity purchase or option agreements or other commodity price hedging arrangements, in each case whether contingent or matured, and (j) all obligations of such Person, contingent or otherwise, with respect to performance bonds, appeal bonds and surety bonds.

“Intangible Assets”:  The amount of all assets of Borrower required to be classified as intangible assets in accordance with GAAP, including, without limitation, goodwill, patents, copyrights, trademarks, trademark rights, tradenames, licenses, deferred financing fees, and research and development costs.

“Interest Payment Date”:  The first Business Day of each calendar month while such Loan is outstanding and the Termination Date.

“Interest Rate”:  The greater of (a) the Base Rate plus one and one half percent (1.5%) per annum and (b) five percent (5.00%) per annum.

“Lenders’ Rights and Remedies”:  All of the rights and remedies of Agent and the Lenders described in Section 9.

“Liens”:  All mortgages, liens, judicial liens, encumbrances, security interests, charges, pledges, hypothecations, assignments, conditional sale or other title retention agreements, and the like, relating to any real or personal property interest of Borrower whether legal or equitable.

“Loan Documents”:  Collectively and individually, this Agreement, the Notes, the Guaranty Agreements, the Subordination Agreements, the Counsel Corporation Letter Agreement and all other documents, instruments, writings and agreements related thereto.

“Material Adverse Effect”:  A material adverse effect on (a) the business, assets, operations, prospects or financial or other condition of Borrower, (b) Borrower’s ability to pay any of the Obligations in accordance with the terms of this Agreement, (c) the Collateral, or the Lien of Agent, for the benefit of itself and the Lenders, on the Collateral or the priority of such Lien, or (d) Agents and Lenders’ rights and remedies under this Agreement and the other Loan Documents.

“Maximum Loan Amount”: Seven Million Five Hundred Thousand Dollars ($7,500,000).

“Net Cash Proceeds”:  In connection with any asset sale, the cash proceeds (including any cash payments received by way of deferred payment whether pursuant to a note, installment receivable or otherwise, but only as and when actually received) from such asset sale, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, brokerage commissions and amounts required to be applied to the repayment of any portion of the Indebtedness secured by a Lien not prohibited hereunder on the asset which is the subject of such sale, (ii) taxes paid or reasonably estimated to be payable as a result of such asset sale, and (iii) any and all other customary closing costs.

“Net Orderly Liquidation Value”:   A professional opinion of the estimated most probable Net Cash Proceeds which could typically be realized at a properly advertised and professionally managed liquidation sale, conducted under orderly sale conditions for an extended period of time (usually six to nine months), under the economic trends existing at the time of the appraisal.

“Obligations”:  All loans, advances, indebtedness, notes, liabilities, overdrafts, and other amounts, liquidated or unliquidated, each of every kind, nature and description, arising under the Loan Documents, including, without limitation, principal and interest, and whether secured or unsecured, direct or indirect, absolute or contingent, due or to become due, now existing, presently intended or contemplated, or hereafter contracted, including, without limitation the repayment of any amounts that Lenders may advance or spend for the maintenance or preservation of the collateral and any other expenditures Lenders may make under the provisions of the Loan Documents or for the benefit of Borrower, and any of the foregoing that arises after the filing of a petition by or against Borrower under the Bankruptcy Code, even if the obligations do not occur because of the automatic stay under § 362 of the Bankruptcy Code or otherwise.

“OFAC”:  As defined in Section 6.3(b).

“PBGC”:  The Pension Benefit Guaranty Corporation.

“Permitted Liens”:  The Liens described in Section 7.1.

“Person”:  An individual, corporation, company, partnership, association, joint-stock company, trust, unincorporated organization, joint venture, Governmental Authority, limited liability company, limited liability partnership or other entity.

“Plan”:  Any plan subject to the minimum funding requirements of Section 412 of the Internal Revenue Code of 1986, as amended.

“Reportable Event”:  As such term is defined in 29 U.S.C.A. §1343.

“Revolving Loan”:  The loan described in Section 2.1(a).

“Solvent”:  With respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person’s property would constitute an unreasonably small capital.  The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that can be reasonably be expected to become an actual or matured liability.

“Stock”: All shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).

“Stockholder”: With respect to any Person, each holder of Stock of such Person.

“Subordinated Indebtedness”:  Any Indebtedness of Borrower that is expressly subordinated to the Obligations of Borrower to Agent and the Lenders, on terms and conditions acceptable to Agent in its discretion.

“Subordination Agreements”:  Any subordination agreement in favor of Agent, for the benefit of itself and the Lenders, relating to Subordinated Indebtedness, which is acceptable to Agent in form and substance, as the same may be modified or amended from the time to time, the terms of such agreements are incorporated herein by reference as though fully set forth herein at length.

“Subsidiary”:  Any corporation more than a majority (by number of votes) of the common stock of which is at the time owned or controlled by Borrower or a Subsidiary of Borrower.

“Tangible Net Worth”:  As to any Person, the sum of (a) members’ or owners’ equity determined in accordance with GAAP, plus (b) Subordinated Indebtedness, minus (c) Intangible Assets, minus (d) prepaid assets, minus (e) all loans or advances to Affiliates of such Person and/or related parties, minus (f) at Lender’s discretion, assets of Subsidiaries or Affiliates of such Person or the investment of such Person in any Subsidiaries or Affiliates to the extent reflected on the financial statements of such Person, if such Subsidiary or Affiliate is the subject of any bankruptcy, dissolution or insolvency proceeding, or a trustee, receiver or custodian of all or any part of the properties or assets of such Subsidiary or Affiliate has been appointed.

“Termination Date”:  The earlier of (a) the Final Maturity Date or (b) the date on which Lenders’ agreement to make Advances under the Revolving Loan shall have terminated.

“Uniform Commercial Code”: The Uniform Commercial Code as the same may, from time to time, be enacted and in effect in the State of New York; provided, that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection or priority of, or remedies with respect to, Lender’s Lien on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.

1.2           Any accounting terms used in this Agreement which are not specifically defined shall have the meanings customarily given thereto in accordance with GAAP.

1.3           Terms such as “account debtors”, “accounts”, “accounts receivable”, “advises”, “chattel paper”, “contract rights”, “commercial tort claims”, “confirmations”, “control”, “deposit accounts”, “documents”, “equipment”, “farm products”, “fixtures”, “general intangibles”, “goods”, “instruments”, “inventory”, “investment property”, “letters of credit”, “letter of credit rights”, “payment intangibles”, “proceeds”, “products”, “supporting obligations” and the like, shall, unless otherwise specifically defined herein, have the meanings applicable to them for the purposes of Article 9 (Secured Transactions) of the Uniform Commercial Code.  All other terms defined in the Uniform Commercial Code and used herein shall have the same definitions herein as specified therein.  However, if a term is defined in Article 9 of the Uniform Commercial Code differently than in another Article of the Uniform Commercial Code, the term has the meaning specified in Article 9.

SECTION 2

AMOUNTS AND TERMS OF LOAN

2.1            Terms of Revolving Loan .  Subject to the terms and conditions of this Agreement, and to Borrower’s observance and performance of, and compliance with, all terms, conditions, warranties, representations and covenants of this Agreement, and the timely payment of the Obligations of Borrower to Agent and the Lenders:

(a)            Revolving Loan .  Lenders may in their discretion lend and re-lend to Borrower amounts which shall not exceed Borrowing Availability.  Until the Termination Date, Borrower may borrow, repay and re-borrow under this Section 2.1(a).  If the aggregate amount of the Revolving Loan at any time shall exceed Borrowing Availability at such time, Borrower shall immediately repay the Revolving Loan to the extent required to eliminate such excess.  The Pro Rata Share of any Lender shall not at any time exceed the lesser of (i) its Pro Rata Share of the Borrowing Availability and (ii) that portion of the Maximum Loan Amount which such Lender has agreed to fund as set forth on Schedule 1.1.1.  The obligations of each Lender hereunder shall be several and not joint.

(b)            Procedure for Advances .  Amounts loaned or re-loaned to Borrower pursuant to the Revolving Loan shall be delivered to Borrower by credit to any general deposit account maintained by Borrower with Agent or such other method as Required Lenders and Borrower shall agree upon.  All requests for Advances under the Revolving Loan made by Borrower must include all required information needed by Agent to evaluate the assets being purchased by Borrower in connection with the Advance request.  Agent shall make such Advance, upon Agent’s satisfaction that it has all necessary information to perform the evaluation and Agent determines in its discretion that it will provide an Advance for such assets.  Such notice of borrowing shall be in the form of Schedule 2.1(b), shall be irrevocable and shall specify the principal amount of the proposed borrowing and the proposed borrowing date, which must be a Business Day, and Borrower shall be bound to make a borrowing in accordance therewith.  Agent may act without liability upon the basis of written or telephonic notice believed by Agent in good faith to be from Borrower (or from any officer or employee thereof authorized to make such a request as designated by Borrower in writing delivered to Agent) and Borrower hereby waives the right to dispute Agent’s record of the terms of any such notice of borrowing.

(c)            Method of Payment .  The outstanding principal amount of the Revolving Loan and all interest and fees thereon shall be payable by Borrower to Agent, for the benefit of the Lenders, on or before the Termination Date, in immediately available funds. Until such time as all Obligations of Borrower to Agent and the Lenders are fully paid and satisfied and Lenders shall have no further obligation to make further Advances under the Revolving Loan pursuant to this Agreement, payment of principal shall occur in accordance with the provisions of Section 2.1(d).

(d)            Blocked Account .  So long as any principal of or interest on the Revolving Loan (whether or not due) shall remain unpaid or Lenders shall have any commitment or agreement to lend hereunder, Borrower shall continue to maintain the Blocked Account with Agent.  Borrower hereby grants to Agent, for the benefit of itself and the Lenders, a continuing security interest in (i) the Blocked Account and all funds held in such account, (ii) all certificates and instruments, if any, from time to time evidencing such account, (iii) all notes, checks and other instruments from time to time deposited in such account, (iv) all interest, if any, from time to time received in respect of such account and (v) all other property of Borrower from time to time in possession under the control of or in transit to Agent or any Lender.  Borrower also hereby transfers to Agent, for the benefit of itself and the Lenders, the exclusive dominion and control of the Blocked Account and Borrower shall have no right of withdrawal from such account.  Except as otherwise expressly provided to the contrary in this Agreement and any other Loan Documents, Borrower shall take all such actions as Agent in good faith deems necessary or appropriate to ensure that at all times on and after the Closing Date all proceeds of all Collateral against which Lenders shall have made Advances under this Agreement are deposited in the Blocked Account.  Upon receipt by Borrower, or any financial institution for the account of Borrower, any proceeds from the sale of any Collateral against which Lenders shall have made Advances hereunder, Borrower shall, or shall cause such financial institution to, transmit in the form received, before the close of business on the next succeeding Business Day, all such proceeds (properly endorsed, where required, so that all items delivered shall be collected by Agent) to Agent for credit to the Blocked Account.  Borrower shall not, and shall cause any such financial institution not to, commingle any such proceeds so received with Borrower’s other property, and shall hold separate and apart from all other property, all such proceeds in an express trust for the benefit of Agent and the Lenders until delivery thereof is made to Agent.  Credit for proceeds deposited in the Blocked Account shall be given on a daily Business Day basis upon deposit (credit for proceeds deposited in immediately available funds shall be given on the Business Day deposited) and shall be conditional upon final payment of the deposited item.  For purposes of calculating interest only, credit for proceeds shall be given 2 Business Days after final payment of the deposited item (credit for proceeds deposited in immediately available funds shall be given on the Business Day deposited).  Borrower hereby agrees not to deposit any monies into the Blocked Account, or otherwise permit any moneys to be deposited into such account or commingled with other funds in such account, except proceeds of the Collateral.  Payments received after 2:00 p.m. New York time on any Business Day other than the last Business Day of a calendar month, payments received after 1:00 p.m. New York time on the last Business Day of a calendar month, and payments received on a day that is not a Business Day shall be deemed to have been received on the following Business Day.  In the event net proceeds from the sale of Eligible Assets received by Agent shall exceed the principal balance of Advances made by Lenders against such Eligible Assets, plus accrued and unpaid interest relating thereto, Borrower may request in the Notice of Borrowing such excess proceeds to be delivered to Borrower in the manner described in Section 2.1(b).  So long as no Event of Default has occurred and is continuing, Agent agrees (and Lenders authorize Agent) to deliver such excess proceeds to Borrower.

(e)            Statement of Account .  At least once each month Agent shall render and send to Borrower a statement of account showing amounts loaned, all other charges, expenses and items chargeable to Borrower pursuant to this Agreement, payments made by Borrower against the Obligations arising pursuant to the Revolving Loan, proceeds collected and applied to said Obligations, other appropriate debits and credits and the total of the Obligations of Borrower to Agent and the Lenders as of the date of the statement for the Revolving Loan, and the statement of account shall be conclusively presumed to be correct in all respects, except for specific objections which Borrower makes in writing within thirty (30) days from the date upon which the statement of account is sent.

(f)            Notes .  The maximum amount of the Revolving Loan shall be evidenced by the Note, and the balance due from time to time on the Note shall be conclusively evidenced by Agent’s records of disbursements and repayments, subject to Section 2.1(e).  Borrower shall execute and deliver to each Lender a note to evidence the Pro Rata Share of the Maximum Loan Amount of that Lender.  Each note shall be in the principal amount of the Pro Rata Share of the Maximum Loan Amount of the applicable Lender, dated the Closing Date and substantially in the form of Exhibit C (the foregoing, and any promissory notes in renewal thereof or substitution or replacement therefor, each a “Note” and, collectively, the “Notes”).  Each Note shall represent the obligation of the Borrower to pay the amount of the applicable Lender’s Pro Rata Share of the Maximum Loan Amount or, if less, such Lender’s Pro Rata Share of the aggregate unpaid principal amount of all Advances to Borrower together with interest thereon.  The entire unpaid balance of the aggregate Revolving Loan and all other non-contingent Obligations shall be immediately due and payable in full in immediately available funds on the Termination Date

2.2            Interest .

(a)           Borrower shall pay interest to Agent, for the benefit of the Lenders, in arrears on each applicable Interest Payment Date, at the Interest Rate, subject to Section 2.2(d).

(b)           If any payment on any Revolving Loan becomes due and payable on a day other than a Business Day, the maturity thereof will be extended to the next succeeding Business Day (except as set forth in the definition of Interest Period) and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension.

(c)           All computations of interest and fees shall be calculated on a per annum basis on the basis of a 360-day year, in each case for the actual number of days occurring in the period for which such interest and fees are payable.  The Base Rate is a floating rate determined for each day.  Each determination by Agent of an interest rate and fees hereunder shall be final, binding and conclusive on Borrower, absent manifest error.

(d)           So long as an Event of Default has occurred and is continuing, at the election of Agent confirmed by written notice from Agent to Borrower, the interest rates applicable to the Revolving Loan shall be increased to the Default Rate, and all outstanding Obligations shall bear interest at the Default Rate.  Interest at the Default Rate shall accrue from the initial date of such Event of Default until that Event of Default is cured or waived and shall be payable upon demand.

(e)           Notwithstanding anything to the contrary set forth in this Section 2.2, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “ Maximum Lawful Rate ”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided , however, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by Lenders is equal to the total interest that would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest  hereunder shall be paid at the rate(s) of interest and in the manner provided in Sections 2.2(a) through (d), unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply.  In no event shall the total interest received by Lenders pursuant to the terms hereof exceed the amount that Lenders could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate.  If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.  If, notwithstanding the provisions of this Section 2.2(e), a court of competent jurisdiction shall finally determine that Lenders have received interest hereunder in excess of the Maximum Lawful Rate, Lenders shall, to the extent permitted by applicable law, promptly apply such excess in the order and manner as Lenders shall determine in their discretion, or as a court of competent jurisdiction may otherwise order.

2.3            Indemnity .  Borrower shall indemnify and hold harmless Agent, the Lenders and their respective Affiliates, and each such Person’s respective officers, directors, employees, attorneys, agents and representatives (each, an “ Indemnified Person ”), from and against any and all suits, actions, proceedings, claims, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and disbursements and other costs of investigation or defense, including those incurred upon any appeal) that may be instituted or asserted against or incurred by any such Indemnified Person as the result of credit having been extended, suspended or terminated under this Agreement and the other Loan Documents and the administration of such credit, and in connection with or arising out of the transactions contemplated hereunder and thereunder and any actions or failures to act in connection therewith, and any and all reasonable legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (collectively, “ Indemnified Liabilities ”); provided , that Borrower shall not be liable for any indemnification to an Indemnified Person to the extent that any such suit, action, proceeding, claim, damage, loss, liability or expense results from that Indemnified Person’s gross negligence or willful misconduct (as finally determined by a court of competent jurisdiction).  NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR THEREUNDER, EXCEPT TO THE EXTENT OF SUCH INDEMNIFIED PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

2.4            Fees .

(a)            Closing Fee .  In further consideration of the agreements contained herein, Borrower shall pay to Lender a closing fee in an amount equal to Thirty-Seven Thousand Five Hundred Dollars ($37,500), which fee shall be non-refundable and fully earned as of the Closing Date.  This closing fee shall be payable as follows: Twenty Thousand Dollars ($20,000) on the Closing Date and the balance of Seventeen Thousand Five Hundred Dollars ($17,500) upon the earlier of (i) the date the outstanding principal balance of the Revolving Loan exceeds Four Million Dollars ($4,000,000), (ii) the occurrence of an Event of Default and (iii) June 2, 2010.

(c)            Late Charges .  Should any payment required under this Agreement not be paid when due, it is recognized by Borrower that Lender will incur extra expenses for the handling of delinquent payments, the exact amount for such extra expenses being impracticable or extremely difficult to ascertain, but that a charge of five percent (5%) of such payment would be a fair approximation of the expense incurred by Lender.  Therefore, Borrower shall, in such event, without further notice and without prejudice to any other rights which Lender may have pursuant to this Agreement or any other Loan Document, pay to Lender to cover such expenses incurred in handling such delinquent payment a “late charge” of five percent (5%) of such delinquent payment.

(d)            Extension Fee .  In the event the Required Lenders agree to grant an extension of the Holding Period for any Eligible Assets from 150 days to 180 days, Borrower shall pay to Agent, for the benefit of the Lenders, an extension fee of one half of one percent (0.50%) of the then outstanding principal balance of the Advance relating to the Eligible Assets subject to such extension.

(a)           All payments shall be applied ratably to the portion thereof held by each Lender as determined by its Pro Rata Share.  Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of Borrower, and Borrower hereby irrevocably agrees that Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of Borrower as Agent may deem advisable.  In the absence of a specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: (1) to fees and Agent’s expenses reimbursable hereunder; (2) to interest on the Revolving Loan, ratably in proportion to the interest accrued as to each Revolving Loan; (3) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 12.16; and (4) to principal payments on the Revolving Loan.

(b)           Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of Borrower and cause to be paid all fees, expenses, charges, costs (including insurance premiums in accordance with Section 6.6) and interest, owing by Borrower under this Agreement or any of the other Loan Documents if and to the extent Borrower fails to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the aggregate balance of the Revolving Loan to exceed the Borrowing Base after giving effect to such charges.  At Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loan hereunder.

SECTION 3

SECURITY INTEREST AND FINANCING STATEMENT

3.1           In consideration of Lenders granting to Borrower the Revolving Loan in accordance with the terms and conditions of this Agreement, Borrower, to secure payment and performance of all of the Obligations of Borrower to Agent and the Lenders, hereby grants to Agent, for the benefit of itself and the Lenders, a security interest in the Collateral, which security interest shall remain in full force and effect until all of the Obligations of Borrower to Agent and the Lenders are fully paid and satisfied and Lenders’ agreement to grant Advances under the Revolving Loan hereunder shall have terminated.

3.2           Borrower hereby irrevocably authorizes Agent at any time and from time to time to file in any jurisdiction any initial financing statements and amendments thereto that (a) indicate the Collateral (i) as all assets of Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Uniform Commercial Code in such jurisdiction, or (ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other information required by part 5 of Article 9 of the Uniform Commercial Code for the sufficiency or filing office acceptance of any financing statement or amendment, including (i) whether Borrower is an organization, the type of organization and any organization identification number issued to Borrower, and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates.  Borrower agrees to furnish any such information to Agent promptly upon request.  Borrower also ratifies its authorization for Agent to have filed in any jurisdiction any like initial financing statements or amendments thereto if filed prior to the date hereof.

3.3           Borrower covenants and agrees with Agent and the Lenders that:

SECTION 4

CONDITIONS PRECEDENT

4.1            Conditions Precedent to the Initial Advances .  Lenders’ agreement to lend or re-lend amounts to Borrower pursuant to the Revolving Loan is conditioned upon prior or simultaneous delivery by Borrower to Agent, and Agent’s satisfactory review, of the Loan Documents properly executed, and the other information, all as set forth on the Document List.

4.2            Conditions Precedent to the All Advances .  The obligation or agreement of Lenders to make each extension of credit requested by Borrower under this Agreement shall be subject to the fulfillment, to Agent’s satisfaction, of all of the following conditions:

(a)           The representations and warranties contained in this Agreement and in each of the other Loan Documents, shall be true on and as of the date of the signing of this Agreement and, except for representations and warranties that refer to a specific date, on the date of each extension of credit with the same effect as though such representations and warranties had been made on and as of each such date, and, on each such date, no Default or Event of Default shall have occurred and be continuing to exist;

(b)           No event or circumstance having a Material Adverse Effect has occurred and is continuing since May 21, 2009 as determined by Agent in its sole discretion;

(c)           No Default or Event of Default shall have occurred or would result after giving effect to the requested Revolving Loan;

(d)           After giving effect to the requested Advances, the outstanding principal amount of the aggregate Revolving Loan would not exceed Borrowing Availability; and

(e)           If requested by Lender in the event the requested Advance exceeds $500,000, receipt by Agent of an appraisal of the Eligible Assets, to determine the Net Orderly Liquidation Value of such Eligible Assets, conducted by an appraiser acceptable to the Required Lenders in their sole discretion and at Borrower’s cost and expense.  In the event Lenders have agreed to make any Advances against real estate, Lenders may also require environmental reports, conducted by an environmental consultant acceptable to Agent in its sole discretion and at Borrower’s cost and expense.  Borrower agrees not to intentionally propose, modify or structure (or permit to be structured) any Advances, whether as a single Advance or a series of Advances for the purchase of Eligible Assets that could reasonably be deemed to be part of the same transaction, for the purpose of evading the requirements of this Section 4.2(e) .

The request and acceptance by Borrower of the proceeds of the Revolving Loan shall be deemed to constitute, as of the date thereof, (1) a representation and warranty by Borrower that the conditions in this Section 4 have been satisfied and (2) a reaffirmation by Borrower of the granting and continuance of Agent’s Liens pursuant to the Loan Documents.

SECTION 5

REPRESENTATIONS AND WARRANTIES

5.1            Formation, Qualification and Good Standing .  Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of its state of organization as set forth on Schedule 5.1 and is duly qualified and in good standing under the laws of each other jurisdiction in which such qualification is required.  Borrower’s exact legal name is that indicated on the signature page hereof, and Borrower’s organizational identification number and Federal employer identification number are set forth on Schedule 5.1.

5.2            Power and Authority .  Borrower has the power to execute, deliver, and perform this Agreement and the other Loan Documents, to borrow hereunder and to grant the Liens hereunder and under the other Loan Documents, and has taken all necessary action to authorize (a) the borrowing hereunder on the terms and conditions of this Agreement, (b) the granting of the Liens hereunder and under the other Loan Documents and (c) the execution, delivery and performance of this Agreement and the other Loan Documents.

5.3            Operation of Business .  Borrower possesses, in full force and effect, all franchises, patents, licenses, trademarks, trademark rights, trade names, trade name rights, trade secrets, fictitious name authorizations or certificates and copyrights to conduct its business as now conducted, without, to the best of Borrower’s knowledge, any conflict with the franchises, patents, licenses, trademarks, trademark rights, trade names, trade name rights, trade secrets, fictitious name authorizations or certificates and copyrights of others.  All such franchises, patents, licenses, trademarks, trademark rights, trade names, trade name rights, trade secrets, fictitious name authorizations or certificates and copyrights, together with the applicable application and registration number of each, is set forth on Schedule 5.3.

5.4            Ventures and Subsidiaries; Outstanding Stock and Indebtedness .

5.5            Nature of Business .  Borrower is primarily engaged in the business described on Schedule 5.5 and business relating directly thereto.

5.6            Financial Condition; Solvency .

 (a)           Borrower has provided to Agent a pro forma opening balance sheet, prepared in accordance with GAAP, which accurately reflects in all material respects Borrower’s pro forma financial condition as of May 1, 2009 after giving effect to Borrower’s acquisition of Greystone Private Equity LLC, the funding of the initial Revolving Loan, the equity contributions to be made to Borrower substantially contemporaneously therewith and the other transactions occurring on the Closing Date, as if they had occurred on May 1, 2009.

 (b)           Both before and after giving effect to (1) the Advances to be made or incurred on the Closing Date or such other date as Advances requested hereunder are made or incurred, (2) the disbursement of the proceeds of such Advances pursuant to the instructions of Borrower and (3) the payment and accrual of all transaction costs in connection with the foregoing, the Borrower is and will be Solvent.

5.7            Taxes .

(a)           All tax returns, reports and statements, including information returns, required by any Governmental Authority to be filed by Borrower have been filed with the appropriate Governmental Authority, all such tax returns, reports and statements are true, correct and complete in all material respects, and all taxes, assessments and other charges due with such tax returns, reports and statements have been paid prior to the date on which any fine, penalty, interest or late charge may be added thereto for nonpayment thereof (or any such fine, penalty, interest or late charge has been paid).  There are no Liens for taxes, assessments or other charges (other than for such amounts not yet due and payable) upon any assets of Borrower.  No adjustment relating to such tax returns, reports or statements has been proposed formally (whether verbally or in writing) or informally (in writing) by any Governmental Authority and, to the knowledge of Borrower, no basis exists for any such adjustment.   Proper and accurate amounts have been withheld by Borrower from its employees, independent contractors, creditors, members, partners and other third parties for all periods in compliance in all material respects with all applicable federal, state, local and foreign laws and such withholdings have been timely paid to the respective Governmental Authorities.

(b)           Schedule 5.7 sets forth as of the Closing Date those taxable years for which any tax returns, reports or statements of Borrower are currently being audited by the IRS or any other applicable Governmental Authority, and any assessments or to the knowledge of Borrower, any threatened assessments in connection with such audit, or otherwise currently outstanding.  Except as described in Schedule 5.7, Borrower has not executed or filed with the IRS or any other Governmental Authority any agreement or other document extending, or having the effect of extending, the period for assessment or collection of any taxes, assessments or other charges.

(c)           Neither Borrower nor its predecessors, if any, are liable to any Governmental Authority for any taxes, assessments or charges: (i) under any agreement (including any tax sharing agreements) or (ii) to Borrower’s knowledge, as a transferee.  As of the Closing Date, Borrower has not agreed or been requested to make any adjustment under IRC Section 481(a), by reason of a change in accounting method or otherwise, which would have a Material Adverse Effect

5.8            Litigation .  Except as set forth on Schedule 5.8, there are no outstanding judgments, actions, proceedings, claims or investigations pending or threatened before any court or Governmental Authority which, if adversely determined, may have a Material Adverse Effect.

5.9            Ownership and Liens .  Borrower has rights in or the power to transfer the Collateral and it has good and marketable title to all of its properties and assets, including, without limitation, the Collateral.  The Lien granted in Section 3.1 constitutes a valid Lien in the Collateral, subject to no Liens except for Permitted Liens.

5.10            Insurance .  Schedule 5.10 lists all insurance policies of any nature maintained, as of the Closing Date, for current occurrences by Borrower, as well as a summary of the terms of each such policy.

5.11            Approvals .  No consent or approval of any Person, landlord, or mortgagee, no waiver of any Lien or right of distraint or other similar right, and no consent, license, approval, or authorization of or registration, qualification, designation, declaration or filing (except any recordations required in connection with the perfection of the security interest granted in Section 3.1) with any Governmental Authority on the part of Borrower is required in connection with the execution, delivery, and performance of this Agreement or the consummation of any other transactions contemplated hereby.

5.12            Other Agreements and Restrictions .  There is no term of any contract, bond, note, indenture, or other agreement or of any charter or other corporate restriction or of any judgment, decree, order, statute, rule or regulation which materially and adversely limits the business, operations, or affairs, as presently conducted, of Borrower or its assets, and Borrower is not now in violation of any such term; and the execution, delivery and performance of, and compliance with, the Loan Documents will not (with or without the giving of notice of lapse of time, or both) result in any violations of, or be in conflict with, or constitute a default under, any such term, or result in the creation of any Liens upon any of the assets of Borrower, except for the Liens created pursuant to this Agreement.  The operations of Borrower complies with all laws, statutes, rules, regulations, ordinances, and the like, applicable to it.

5.13            Name Change, Mergers .  Except as set forth on Schedule 5.13, within the last six (6) years, Borrower has not (a) changed its name, (b) been the surviving corporation of a merger or consolidation, or (c) acquired all or substantially all of the assets of any Person.

5.14            Executive Office, Location of Collateral and Books and Records .  As of the Closing Date, (a) the current location of Borrower’s chief executive office is set forth on Schedule 5.14, (b) the warehouses and premises at which any of the Collateral is located, other than locations where Collateral is expected to be located for less than 180 days, are set forth on Schedule 5.14 or in the report provided to Agent and the Lenders pursuant to Section 6.10(a)(i), and (c) none of such locations has changed within the 12 months preceding the Closing Date or, in the case of locations described on reports provided to Agent and the Lenders pursuant to Section 6.10(a)(i), since the date of such report.  All of the records of Borrower relating to the Collateral, and the other books, records, journals, orders, receipts, and correspondence are located at Borrower’s principal place of business set forth on Schedule 5.14, except as to the corporate minute book and related records which are or may be maintained at the offices of counsel to Borrower.

5.15            Labor Matters .  As of the Closing Date (a) no strikes or other material labor disputes against Borrower are pending or, to Borrower’s knowledge, threatened, (b) hours worked by and payment made to employees of Borrower comply in all material respects with the Fair Labor Standards Act and each other federal, state, local or foreign law applicable to such matters, (c) all payments due from Borrower for employee health and welfare insurance have been paid or accrued as a liability on the books of Borrower, (d) except as set forth in Schedule 5.15, Borrower is not a party to or bound by any collective bargaining agreement, management agreement, consulting agreement, employment agreement, bonus, restricted stock, stock option, or stock appreciation plan or agreement or any similar plan, agreement or arrangement (and true and complete copies of any agreements described on Schedule 5.15, if any, have been delivered to Agent and the Lenders), (e) there is no organizing activity involving Borrower pending or, to Borrower’s knowledge, threatened by any labor union or group of employees, (f) there are no representation proceedings pending or, to Borrower’s knowledge, threatened with the National Labor Relations Board, and no labor organization or group of employees of Borrower has made a pending demand for recognition, and (g) except as set forth in Schedule 5.15, there are no material complaints or charges against Borrower pending or, to the knowledge of Borrower, threatened to be filed with any Governmental Authority or arbitrator based on, arising out of, in connection with, or otherwise relating to the employment or termination of employment by Borrower of any individual.

5.16            Reportable Events .  No Reportable Event has occurred with respect to any Plan maintained for employees of: (a) Borrower; (b) any Subsidiary of Borrower; or (c) any member of a Controlled Group of which Borrower is a part.

5.17            Compliance With Laws .  Borrower is in compliance with any and all federal laws and regulations applicable to it including, without limitation, those established by the Bureau of Alcohol, Tobacco and Fire Arms, ERISA, the Environmental Protection Agency, and the Federal Occupational Safety and Health Agency.

5.18            Government Regulation .  Borrower is not an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940.  Borrower is not subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, or any other federal or state statute that restricts or limits its ability to incur Indebtedness or to perform its obligations hereunder. The making of the Revolving Loan by Lenders to Borrower, the application of the proceeds thereof and repayment thereof and the consummation of the transactions contemplated by this Agreement will not violate any provision of any such statute or any rule, regulation or order issued by the Securities and Exchange Commission.

5.19            Margin Regulations .  Borrower is not engaged, nor will it engage, principally or as one of its important activities, in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” as such terms are defined in Regulation U of the Federal Reserve Board as now and from time to time hereafter in effect (such securities being referred to herein as “ Margin Stock ”).  Borrower does not own any Margin Stock, and none of the proceeds of the Advances or other extensions of credit under this Agreement will be used, directly or indirectly, for the purpose of purchasing or carrying any Margin Stock, for the purpose of reducing or retiring any Indebtedness that was originally incurred to purchase or carry any Margin Stock or for any other purpose that might cause any of the Advances or other extensions of credit under this Agreement to be considered a “purpose credit” within the meaning of Regulations T, U or X of the Federal Reserve Board.  Borrower will not take or permit to be taken any action that might cause any Loan Document to violate any regulation of the Federal Reserve Board.

5.20            Full Disclosure .  The representations and warranties of Borrower set forth in this Agreement are true and correct in all respects.

5.21            No Event of Default .  Borrower has reviewed this Agreement and represents that no Default or Event of Default exists and Borrower is not in default under any other Loan Documents to which it is a party.

5.22            Enforceability of Agreement .  This Agreement has been duly executed and delivered and constitutes the valid and legally binding obligation of Borrower, enforceable in accordance with its terms, subject to applicable Federal and state bankruptcy and insolvency laws affecting generally the rights of creditors or other similar laws affecting the rights and remedies of creditors generally and general principles of equity.

SECTION 6

AFFIRMATIVE COVENANTS

6.1            Maintain Existence .  Borrower shall preserve and keep in full force and effect its existence and all franchises, rights, and privileges necessary for the proper conduct of its business, including, without limitation, all necessary franchises, patents, licenses, trademarks, trademark rights, trade name rights, trade secrets, fictitious name authorizations, or certificates and copyrights without any conflict with such franchises, patents, licenses, trademarks, trademark rights, trade name rights, trade secrets, fictitious name authorizations or certificates and copyrights of others.

6.2            Delivery of Organizational Documents .  Borrower shall promptly deliver to Agent and the Lenders copies of any amendments or modifications to its articles of organization, and operating agreement, cer