NOTE IN THE AMOUNT OF SUCH LENDER'S GROWTH CAPITAL
ADVANCE.
(C)
THE REPRESENTATIONS AND WARRANTIES IN
SECTION 5 SHALL BE MATERIALLY TRUE ON THE DATE OF THE PAYMENT/ADVANCE FORM 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 IS BORROWER'S REPRESENTATION AND WARRANTY ON THAT DATE THAT THE
REPRESENTATIONS AND WARRANTIES IN SECTION 5 REMAIN MATERIALLY TRUE.
4
CREATION OF SECURITY INTEREST
4.1
GRANT OF SECURITY INTEREST. BORROWER HEREBY
GRANTS TO EACH LENDER, TO SECURE THE PAYMENT AND PERFORMANCE IN FULL OF ALL OF
THE OBLIGATIONS AND THE PERFORMANCE OF EACH OF BORROWER'S DUTIES UNDER THE LOAN
DOCUMENTS, A CONTINUING SECURITY INTEREST IN, AND PLEDGES AND ASSIGNS TO EACH
LENDER THE COLLATERAL, WHEREVER LOCATED, WHETHER NOW OWNED OR HEREAFTER ACQUIRED
OR ARISING, AND ALL PROCEEDS AND PRODUCTS THEREOF. BORROWER WARRANTS AND
REPRESENTS THAT THE SECURITY INTEREST GRANTED HEREIN SHALL BE A FIRST PRIORITY
SECURITY INTEREST IN THE COLLATERAL. SVB MAY PLACE A "HOLD" ON ANY CERTIFICATES
OF DEPOSIT OR DEPOSIT OR INVESTMENT ACCOUNTS PLEDGED AS COLLATERAL TO SECURE
CASH MANAGEMENT SERVICES, CORPORATE BUSINESS CREDIT CARDS OR LETTERS OF CREDIT
SEPARATELY ISSUED OR SUPPLIED BY SVB UNDER SEPARATE AGREEMENTS BETWEEN SVB AND
BORROWER.
BORROWER AGREES THAT ANY DISPOSITION OF THE COLLATERAL IN VIOLATION OF THIS
AGREEMENT, BY EITHER THE BORROWER OR ANY OTHER PERSON, SHALL BE DEEMED TO
VIOLATE THE RIGHTS OF THE LENDERS UNDER THE CODE. IF THE AGREEMENT IS
TERMINATED, LENDERS' LIEN AND SECURITY INTEREST IN THE COLLATERAL SHALL CONTINUE
UNTIL BORROWER FULLY SATISFIES ITS OBLIGATIONS. IF BORROWER SHALL AT ANY TIME,
ACQUIRE A COMMERCIAL TORT CLAIM, BORROWER SHALL PROMPTLY NOTIFY LENDERS IN A
WRITING SIGNED BY BORROWER OF THE BRIEF DETAILS THEREOF AND GRANT TO LENDERS IN
SUCH WRITING A SECURITY INTEREST THEREIN AND IN THE PROCEEDS THEREOF, ALL UPON
THE TERMS OF THIS AGREEMENT, WITH SUCH WRITING TO BE IN FORM AND SUBSTANCE
SATISFACTORY TO LENDERS.
Upon the indefeasible payment in full in cash of all Obligations under this
Agreement and the termination of any obligation of any Lender to make Credit
Extensions hereunder, Lenders shall execute and deliver to Borrower, at
Borrower's sole cost and expense, all documents and instruments as shall be
reasonably necessary to evidence termination of the security interest in the
Collateral created hereunder, including a UCC-3 Termination Statement.
4.2
AUTHORIZATION TO FILE FINANCING STATEMENTS.
Borrower hereby authorizes Lenders to file financing statements, without notice
to Borrower, with all appropriate jurisdictions, in order to perfect or protect
Lenders' interest or rights hereunder.
5
5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to each Lender as follows:
5.1
DUE ORGANIZATION AND AUTHORIZATION.
Borrower and each Subsidiary is duly existing and in good standing in its state
of formation and qualified and licensed to do business in, and in good standing
in, any state in which the conduct of its business or its ownership of property
requires that it be qualified, except where the