Common use of Initial Credit Clause in Contracts

Initial Credit. The obligation of Lender to extend any credit under this Agreement, including the making of the initial Revolving Loan Advance and any future Loans, is subject to the fulfillment to Lender's satisfaction of all of the following conditions: (a) All legal matters incidental to the extension of credit by Lender shall satisfactory to counsel of Lender. (b) Lender shall have received, in form and substance satisfactory to Lender, each of the following, duly executed: (i) This Agreement; (ii) The Trademark Agreement; (iii) Borrower's borrowing resolutions, together with a secretary's certificate; (iv) UCC-1 Financing Statement(s); (v) An opinion of Borrower's counsel; (vi) Each Deposit Account Control Agreement for Borrower; (vii) The Lockbox Agreement with each of (i) SouthTrust and (ii) Regions Bank; (viii) A Processor Agreement with Stueben Foods; (ix) Each other Security Document; (x) A Landlord Waiver and Consent from each of Borrower's landlords; (xi) All releases, terminations, agreements and other documents as Lender may request to effect and evidence termination of the existing financing arrangements of Borrower and the interests of any other lender or lenders pursuant to any such financing arrangements in any assets and properties of Borrower; (xii) A Borrowing Base Certificate dated as of the Agreement Date; (xiii) The payoff letter from each existing lender to be paid from the initial Loan; (xiv) A current list of Interested Parties; and (xv) Such other documents as Lender may require under this Agreement. (c) Lender shall have received evidence of insurance and loss payee endorsements and/or certificates of insurance naming Lender as loss payee, as required under this Agreement, in form and substance satisfactory to Lender, at Borrower's cost and expense; (d) Lender shall have completed a field review of the records and other information with respect to the Collateral as Lender may require, the results of which (including evidence of segregation and identification of Collateral) shall be satisfactory to Lender in its discretion; (e) Lender shall have received and reviewed UCC search results for all jurisdictions in which assets of Borrower are located in the United States, in form and substance satisfactory to Lender; (f) Lender shall have received evidence, in form and substance satisfactory to Lender, that Lender has a valid perfected first security interest in all of the Collateral except as otherwise permitted under this Agreement; (g) The excess Availability under the Credit Facility, as of the Closing Date, shall not be less than (i) $750,000.00 after the payment of all fees and expenses to be paid by Borrower at Closing Date under this Agreement or the Escrow Agreement and the application of the proceeds of the initial Loans funded under this Agreement, plus (ii) a Payable Reserve; (h) Lender shall have completed its business, legal and collateral due diligence, including a collateral audit and review of Borrower's books and records, contracts with Account Debtors conducted by Lender and verification of Borrower's representations and warranties to the Lender, the results of which shall be satisfactory to Lender; (i) Lender shall have completed background checks with respect to certain principal owners and managers of Borrower, the results of which shall be satisfactory to Lender in its sole discretion; (j) Lender shall be satisfied in its sole discretion that there are no offset arrangements between the Borrower and Account Debtors, including any related buy-back agreements; (k) No Default or Event of Default shall have occurred and be continuing; (l) All representations and warranties of Borrower set forth in this Agreement shall be true and correct in all material respects;

Initial Credit. The obligation of each Lender to extend any credit under this Agreement, including the making of the initial Revolving Loan Advance and any future Loans, Agreement is subject to the fulfillment to LenderAgent's satisfaction in its Permitted Discretion on or before November 30, 2008 of all of the following conditions: (a) All legal matters incidental to the extension of credit by Lender shall satisfactory to counsel of Lender. (b) Lender Agent shall have received, in form and substance satisfactory to Lenderthe Lender Group in their Permitted Discretion, each of the following, duly executed: (i) This this Agreement; (ii) The Trademark Agreementthe Revolving Notes, if any; (iii) Borrower's borrowing resolutions, certified organizational documents and good standing certificates in Borrower's jurisdictions of organization and each other jurisdiction where Borrower is qualified to do business, together with a secretary's certificate; (iv) UCC-1 Financing Statement(s)a Notice of Borrowing dated the Agreement Date; (v) An UCC-1 financing statements; (vi) each Guaranty; (vii) an opinion of Borrower's counsel; (viviii) Each Deposit Account Control Agreement for Borrower; (vii) The Lockbox Agreement Agreements with each of (i) SouthTrust and (ii) Regions Bank; (viii) A Processor Agreement with Stueben Foodssuch banks as Agent may request; (ix) Each other Security Document; (x) A Landlord Waiver a waiver and Consent consent from each of Borrower's landlords; (xix) All all releases, terminations, agreements and other documents as Lender Agent may request to effect and evidence termination of the existing financing arrangements of Borrower and the interests of any other lender or lenders pursuant to any such financing arrangements in any assets and properties of Borrower; (xi) each Pledge Agreement, together with membership interest powers for all certificated membership interests, if any; (xii) A a Borrowing Base Certificate dated as of the Agreement Date; (xiii) The payoff letter from each existing lender to be paid from the initial Loan;a copy of Borrower's Credit Guidelines; and (xiv) A current list of Interested Parties; and (xv) Such such other documents as Lender Agent may require under this Agreement. (b) [Reserved] (c) Lender shall have received evidence of insurance and loss payee endorsements and/or certificates of insurance naming Lender as loss payee, as required under this Agreement, in form and substance satisfactory to Lender, at Borrower's cost and expense; (d) Lender Agent shall have completed a field review of the records and other information with respect to the Collateral as Lender Lenders may require, the results of which (including evidence of segregation and identification of Collateral) shall be satisfactory to Lender Agent in its discretion;. (ed) Lender Agent shall have received and reviewed UCC and Lien search results for all jurisdictions in which assets of Borrower are located in the United States, in form and substance satisfactory to Lender;Agent. (fe) Lender Agent shall have received evidence, in form and substance satisfactory to LenderAgent, that Agent, on behalf of the Lender Group, has a valid perfected first security interest in all of the Collateral except as otherwise permitted under this Agreement;. (f) Agent shall have received all original notes, if any, executed by a Seller in connection with a Factoring Agreement and photocopies of all other Factoring Documentation. (g) The excess Availability under the Credit Facility, as of the Closing Date, shall not be less than (i) $750,000.00 after the payment of all fees and expenses to be paid by Borrower at Closing Date under this Agreement or the Escrow Agreement and the application of the proceeds of the initial Loans funded under this Agreement, plus (ii) a Payable Reserve; (h) Lender Agent shall have completed its business, legal and collateral due diligence, including a collateral audit and review of Borrower's books and records, contracts Factoring Agreements with Account Debtors Sellers conducted by Lender Agent and verification of Borrower's representations and warranties to the LenderLenders, the results of which shall be satisfactory to Lender;Agent. (h) Agent shall have received evidence satisfactory to it that as of the Closing Date, after giving effect to the Borrowings hereunder on the Closing Date and the payment of all fees and expenses to be paid by Borrower at closing under this Agreement, Availability shall not be less than $1,000,000. (i) Lender shall have completed background checks with respect to certain principal owners and managers of Borrower, the results of which shall be satisfactory to Lender in its sole discretion; (j) Lender shall be satisfied in its sole discretion that there are no offset arrangements between the Borrower and Account Debtors, including any related buy-back agreements; (k) No Default or Event of Default shall have occurred and be continuing; . (lj) All representations and warranties of Borrower set forth in this Agreement shall be true and correct in all material respects;. (k) The parties thereto shall have completed or delivered, as applicable, all items on the checklist of closing items in connection with this Agreement, each to the satisfaction of Agent in its discretion and Agent shall have received such other documents as Agent or its counsel may have reasonably requested.