ALL, BUT NOT LESS
THAN ALL, OF THE GROWTH CAPITAL ADVANCES ADVANCED BY LENDERS UNDER THIS
AGREEMENT, IF LENDERS DO NOT GIVE THE CONSENT DESCRIBED IN SECTION 7.2 OR
SECTION 7.3 WITHOUT PAYING THE PREPAYMENT FEE, PROVIDED BORROWER (I) PROVIDES
WRITTEN NOTICE TO LENDERS OF ITS ELECTION TO SO PREPAY, AND (II) PAYS, ON THE
DATE OF SUCH PREPAYMENT (A) ALL OUTSTANDING PRINCIPAL PLUS ACCRUED INTEREST,
PLUS (B) ALL OTHER SUMS, IF ANY, THAT SHALL HAVE BECOME DUE AND PAYABLE
HEREUNDER, INCLUDING INTEREST AT THE DEFAULT RATE WITH RESPECT TO ANY PAST DUE
AMOUNTS.
(E)
ACH PAYMENTS. BORROWER SHALL SEPARATELY SET
UP AN ACH PAYMENT STRUCTURE IN FAVOR OF OXFORD AND SVB, SATISFACTORY TO OXFORD
AND SVB.
2.4
FEES.
Borrower will pay to Lenders:
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(A)
LOAN FEE. A FULLY EARNED, NON-REFUNDABLE
LOAN FEE OF $20,000 ("LOAN FEE") (TO BE SHARED BETWEEN SVB AND THE OXFORD
PURSUANT TO THEIR RESPECTIVE GROWTH CAPITAL COMMITMENT PERCENTAGES) HAS BEEN
PAID TO LENDERS.
(B)
LENDERS EXPENSES. ALL LENDERS EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND REASONABLE EXPENSES FOR DOCUMENTATION
AND NEGOTIATION OF THIS AGREEMENT NOT EXCEEDING $10,000 INCURRED THROUGH THE
EFFECTIVE DATE), WHEN DUE.
(C)
PREPAYMENT FEE. THE PREPAYMENT FEE, AS
DEFINED HEREIN, IF AND WHEN APPLICABLE.
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CONDITIONS OF LOANS
3.1
CONDITIONS PRECEDENT TO INITIAL CREDIT
EXTENSION.
The Lenders' agreement to make the initial Credit Extension is subject to the
condition precedent that Lenders shall have received, in form and substance
satisfactory to Lenders, such documents and completion of such other matters, as
Lenders may reasonably deem necessary or appropriate, including, without
limitation, the following:
(A)
THIS AGREEMENT;
(B)
A CERTIFICATE OF THE SECRETARY OF BORROWER
WITH RESPECT TO ARTICLES, BY-LAWS, INCUMBENCY AND RESOLUTIONS AUTHORIZING THE
EXECUTION AND DELIVERY OF THIS AGREEMENT;
(C)
PERFECTION CERTIFICATE BY BORROWER;
(D)
BORROWER SHALL HAVE DELIVERED A PAYOFF
LETTER FROM COMERICA BANK IN SUBSTANCE SATISFACTORY TO LENDERS IN THE FORM OF
EXHIBIT E;
(E)
BORROWER SHALL HAVE DELIVERED A PAYOFF
LETTER FROM GE CAPITAL IN SUBSTANCE SATISFACTORY TO LENDERS IN THE FORM OF
EXHIBIT E DULY EXECUTED AND DELIVERED BY BORROWER;
(F)
A WARRANT TO PURCHASE STOCK IN FAVOR OF
SVB IN SUBSTANCE SATISFACTORY TO SVB IN THE FORM OF EXHIBIT F AND A WARRANT TO
PURCHASE STOCK IN FAVOR OF OXFORD IN SUBSTANCE SATISFACTORY TO OXFORD IN THE
FORM OF EXHIBIT G DULY EXECUTED AND DELIVERED BY BORROWER;
(G)
FINANCING STATEMENT (FORM UCC-1);
(H)
ACCOUNT CONTROL AGREEMENT (COMERICA BANK);
(I)
INSURANCE CERTIFICATE;
(J)
PAYMENT OF THE FEES AND LENDERS EXPENSES
THEN DUE SPECIFIED IN SECTION 2.4 HEREOF;
(K)
CERTIFICATE OF FOREIGN QUALIFICATION (IF
APPLICABLE);
(L)
CERTIFICATE OF GOOD STANDING/LEGAL
EXISTENCE; AND
(M)
SUCH OTHER DOCUMENTS, AND COMPLETION OF SUCH
OTHER MATTERS, AS LENDERS MAY REASONABLY DEEM NECESSARY OR APPROPRIATE.
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3.2
CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
The obligations of Lenders to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(A)
TIMELY RECEIPT OF ANY PAYMENT/ADVANCE FORM.
(B)
BORROWER SHALL HAVE DULY EXECUTED AND
DELIVERED TO EACH LENDER A