quarterly basis, determine and report to Lender on the [amount][measure]
of impaired Gateway Performing Loans and, if such [amount][measure] is greater
than such discount, then Borrower will maintain on its books, at all times
thereafter, an additional loan loss reserve equal to the amount of such excess
as from time to time determined.
4.
CONDITIONS PRECEDENT.
NOTWITHSTANDING ANY OTHER PROVISION OF
THIS SECOND AMENDMENT, THIS SECOND AMENDMENT SHALL BE OF NO FORCE OR EFFECT, AND
LENDER SHALL NOT HAVE ANY OBLIGATIONS HEREUNDER, UNTIL THE FOLLOWING CONDITIONS
HAVE BEEN SATISFIED:
4.1
SECOND AMENDMENT AND OTHER DOCUMENTS IN CONNECTION THEREWITH.
LENDER SHALL HAVE RECEIVED THE FOLLOWING, EACH IN FORM AND SUBSTANCE
SATISFACTORY TO LENDER:
A.
THIS SECOND AMENDMENT, DULY EXECUTED BY BORROWER AND LENDER; AND
B.
WRITTEN CONSENT BY SBA TO THIS SECOND AMENDMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
4.2
NO DEFAULT OR EVENT OF DEFAULT.
NO DEFAULT OR EVENT OF DEFAULT
SHALL HAVE OCCURRED AND BE CONTINUING, EXCEPT FOR THE APPLICABLE DEFAULTS.
5.
REPRESENTATIONS AND WARRANTIES RE LOAN AGREEMENT.
BORROWER
HEREBY REPRESENTS AND WARRANTS THAT THE REPRESENTATIONS AND WARRANTIES CONTAINED
IN THE LOAN AGREEMENT WERE TRUE AND CORRECT IN ALL MATERIAL RESPECTS WHEN MADE
AND, EXCEPT TO THE EXTENT THAT (A) A PARTICULAR REPRESENTATION OR WARRANTY BY
ITS TERMS EXPRESSLY APPLIES ONLY TO AN EARLIER DATE, OR (B) BORROWER HAS
PREVIOUSLY ADVISED LENDER IN WRITING AS CONTEMPLATED UNDER THE LOAN AGREEMENT,
ARE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE HEREOF.
BORROWER
HEREBY FURTHER REPRESENTS AND WARRANTS THAT NO EVENT HAS OCCURRED AND IS
CONTINUING, OR WOULD RESULT FROM THE TRANSACTIONS CONTEMPLATED UNDER THIS SECOND
AMENDMENT, THAT CONSTITUTES OR WOULD CONSTITUTE A DEFAULT OR AN EVENT OF
DEFAULT, EXCEPT FOR THE APPLICABLE DEFAULTS.
4
6.
MISCELLANEOUS.
6.1
HEADINGS.
THE VARIOUS HEADINGS OF THIS SECOND AMENDMENT ARE
INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT AFFECT THE MEANING OR
INTERPRETATION OF THIS SECOND AMENDMENT OR ANY PROVISIONS HEREOF.
6.2
COUNTERPARTS.
THIS SECOND AMENDMENT MAY BE EXECUTED BY THE
PARTIES HERETO IN SEVERAL COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TOGETHER SHALL BE DEEMED TO BE ONE AND THE SAME
INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE TO THIS
SECOND AMENDMENT BY FACSIMILE TRANSMISSION SHALL BE EFFECTIVE AS DELIVERY OF A
MANUALLY EXECUTED COUNTERPART THEREOF.
6.3
INTERPRETATION.
NO PROVISION OF THIS SECOND AMENDMENT SHALL BE
CONSTRUED AGAINST OR INTERPRETED TO THE DISADVANTAGE OF ANY PARTY HERETO BY ANY
COURT OR OTHER GOVERNMENTAL OR JUDICIAL AUTHORITY BY REASON OF SUCH PARTY'S
HAVING OR BEING DEEMED TO HAVE STRUCTURED, DRAFTED OR DICTATED SUCH PROVISION.
6.4
COMPLETE AGREEMENT.
THIS SECOND AMENDMENT CONSTITUTES THE
COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF, AND SUPERSEDES ANY PRIOR WRITTEN OR ORAL AGREEMENTS, WRITINGS,
COMMUNICATIONS OR UNDERSTANDINGS OF THE PARTIES WITH RESPECT THERETO.
6.5
GOVERNING LAW.
THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO