TAKE PRECEDENCE OVER ALL OTHER AGREEMENTS
BETWEEN BORROWER AND BANK SO THAT UNDER NO CIRCUMSTANCES SHALL THE TOTAL
INTEREST CONTRACTED FOR, CHARGED OR RECEIVED BY BANK EXCEED THE MAXIMUM LAWFUL
AMOUNT.
2.4.
FEES. BORROWER SHALL PAY TO BANK:
(A)
A FULLY EARNED, NON-REFUNDABLE COMMITMENT
FEE OF $5,000.00 IS DUE ON THE EFFECTIVE DATE, AND PAYABLE AS FOLLOWS:
(I) $2,500 SHALL BE PAID ON THE EFFECTIVE DATE, AND (II) $2,500 SHALL BE PAID ON
THE DATE THE REVOLVING LINE INCREASES TO $2,000,000; AND
(B)
BANK EXPENSES. ALL BANK EXPENSES INCURRED
THROUGH AND AFTER THE EFFECTIVE DATE, WHEN DUE.
3.
CONDITIONS OF LOANS
3.1.
CONDITIONS PRECEDENT TO INITIAL ADVANCE. BANK'S
OBLIGATION TO MAKE THE INITIAL ADVANCE IS SUBJECT TO THE CONDITION PRECEDENT
THAT BANK SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO BANK, SUCH
DOCUMENTS, AND COMPLETION OF SUCH OTHER MATTERS, AS BANK MAY REASONABLY DEEM
NECESSARY OR APPROPRIATE, INCLUDING, WITHOUT LIMITATION:
2
(A)
BORROWER SHALL HAVE DELIVERED DULY EXECUTED
ORIGINAL SIGNATURES TO THE LOAN DOCUMENTS TO WHICH IT IS A PARTY;
(B)
BORROWER SHALL HAVE DELIVERED DULY EXECUTED
ORIGINAL SIGNATURES TO THE CONTROL AGREEMENTS;
(C)
BORROWER SHALL HAVE DELIVERED ITS OPERATING
DOCUMENTS AND A GOOD STANDING CERTIFICATE OF BORROWER CERTIFIED BY THE SECRETARY
OF STATE OF THE STATE OF DELAWARE AS OF A DATE NO EARLIER THAN THIRTY (30) DAYS
PRIOR TO THE EFFECTIVE DATE;
(D)
BORROWER SHALL HAVE DELIVERED DULY EXECUTED
ORIGINAL SIGNATURES TO THE COMPLETED BORROWING RESOLUTIONS FOR BORROWER;
(E)
BANK SHALL HAVE RECEIVED CERTIFIED COPIES,
DATED AS OF A RECENT DATE, OF FINANCING STATEMENT SEARCHES, AS BANK SHALL
REQUEST, ACCOMPANIED BY WRITTEN EVIDENCE (INCLUDING ANY UCC TERMINATION
STATEMENTS) THAT THE LIENS INDICATED IN ANY SUCH FINANCING STATEMENTS EITHER
CONSTITUTE PERMITTED LIENS OR HAVE BEEN OR, IN CONNECTION WITH THE INITIAL
ADVANCE, WILL BE TERMINATED OR RELEASED;
(F)
BORROWER SHALL HAVE DELIVERED THE
PERFECTION CERTIFICATE(S) EXECUTED BY BORROWER;
(G)
BORROWER SHALL HAVE DELIVERED A LANDLORD'S
CONSENT EXECUTED BY BORROWER'S LANDLORD IN FAVOR OF BANK;
(H)
BORROWER SHALL HAVE DELIVERED THE INSURANCE
POLICIES AND/OR ENDORSEMENTS REQUIRED PURSUANT TO SECTION 6.5 HEREOF;
(I)
BORROWER SHALL HAVE PAID THE FEES AND
BANK EXPENSES THEN DUE AS SPECIFIED IN SECTION 2.4 HEREOF; AND
(J)
BANK SHALL HAVE RECEIVED AND APPROVED AN
AUDIT OF BORROWER'S COLLATERAL.
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 FOLLOWING:
(A)
EXCEPT AS OTHERWISE PROVIDED IN
SECTION 3.4(A), TIMELY RECEIPT OF AN EXECUTED PAYMENT/ADVANCE FORM;
(B)
THE REPRESENTATIONS AND WARRANTIES IN
SECTION 5 SHALL BE TRUE IN ALL MATERIAL RESPECTS ON THE DATE OF THE
PAYMENT/ADVANCE FORM AND ON THE FUNDING DATE OF EACH CREDIT EXTENSION; PROVIDED,
HOWEVER, THAT SUCH MATERIALITY QUALIFIER SHALL NOT BE APPLICABLE TO ANY
REPRESENTATIONS AND WARRANTIES THAT ALREADY ARE QUALIFIED OR MODIFIED BY
MATERIALITY IN THE TEXT THEREOF; AND PROVIDED, FURTHER THAT THOSE
REPRESENTATIONS AND WARRANTIES EXPRESSLY REFERRING TO A SPECIFIC DATE SHALL BE
TRUE, ACCURATE AND COMPLETE IN ALL MATERIAL RESPECTS AS OF SUCH DATE, AND