2.3.2
LOAN FEE.
Borrower will pay Bank the Loan Fee on or before the Effective
Date.
3.
CONDITIONS OF LOANS.
3.1
CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.
Bank's obligation to make the first Credit Extension is, in
addition to the other applicable conditions precedent set forth in this Section
3, subject to the satisfaction of the following conditions precedent:
(I)
BANK SHALL HAVE RECEIVED THE AGREEMENTS, DOCUMENTS AND FEES THAT IT
REQUIRES;
3
(II)
BANK SHALL HAVE RECEIVED FROM BORROWER EVIDENCE SATISFACTORY TO BANK
SHOWING BANK AS LOSS PAYEE ON ALL OF BORROWER'S INSURANCE POLICIES PURSUANT TO
SECTION 6.5 HEREOF;
(III)
BORROWER SHALL HAVE GRANTED TO BANK A WARRANT TO PURCHASE THAT NUMBER OF
SHARES OF BORROWER'S PREFERRED STOCK AT AN EXERCISE PRICE PER SHARE AS MORE
FULLY SET FORTH IN THE WARRANT; AND
(IV)
BORROWER SHALL HAVE OPENED INVESTMENT AND DEPOSITORY ACCOUNTS WITH BANK OR
AN AFFILIATE OF BANK SUCH THAT BORROWER IS IN COMPLIANCE WITH SECTION 6.6
HEREOF.
3.2
CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
Bank's obligations to make each Credit Extension, including the
initial Credit Extension, is subject to the satisfaction of the following
conditions precedent:
(I)
BANK SHALL HAVE TIMELY RECEIVED ANY LOAN PAYMENT/ADVANCE REQUEST FORM;
(II)
BANK SHALL HAVE TIMELY RECEIVED ANY LOAN SUPPLEMENT; AND
(III)
THE REPRESENTATIONS AND WARRANTIES IN SECTION 5 SHALL BE TRUE IN ALL
MATERIAL RESPECTS ON THE DATE OF THE LOAN PAYMENT/ADVANCE REQUEST FORM AND THE
LOAN SUPPLEMENT, AND ON THE EFFECTIVE DATE OF EACH CREDIT EXTENSION, AND NO
EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING, OR RESULT FROM THE
CREDIT EXTENSION. EACH CREDIT EXTENSION CONSTITUTES BORROWER'S REPRESENTATION
AND WARRANTY ON THAT DATE THAT THE REPRESENTATIONS AND WARRANTIES OF SECTION 5
REMAIN TRUE IN ALL MATERIAL RESPECTS; PROVIDED, HOWEVER, THAT AS TO EACH CREDIT
EXTENSION AFTER THE EFFECTIVE DATE ANY REPRESENTATION AND WARRANTY EXPRESSLY
REFERRING TO A SPECIFIC DATE SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS
AS OF SUCH SPECIFIED DATE ONLY.
4.
GRANT OF SECURITY INTEREST.
Borrower grants Bank a continuing security interest in all
presently existing and later acquired Collateral to secure all Obligations and
the performance of each of Borrower's duties under the Loan Documents.
Except
for Permitted Liens, any security interest will be a first priority security
interest in the Collateral.
Upon the occurrence of an Event of Default, Bank
may place a "hold" on any deposit account pledged as Collateral. Bank may also
deliver a notice of exclusive control, entitlement order or other instructions
pursuant to a control agreement, but only after an Event of Default has occurred
and is continuing.
If this Agreement is terminated, Bank's lien and security
interest in the Collateral will continue until Borrower fully satisfies its
Obligations.
5.
REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants as follows:
5.1
DUE ORGANIZATION AND AUTHORIZATION.
(A)
BORROWER AND EACH SUBSIDIARY IS DULY EXISTING AND IN GOOD STANDING
IN ITS JURISDICTION OF FORMATION AND IS QUALIFIED AND LICENSED TO DO BUSINESS
IN, AND IN GOOD STANDING IN, EACH JURISDICTION