APPROPRIATE, INCLUDING, WITHOUT LIMITATION:
(A)
THE LOAN DOCUMENTS;
(B)
OPERATING DOCUMENTS OF BORROWER
(C)
THE SVB CONTROL AGREEMENT AND ANY OTHER CONTROL AGREEMENT(S)
REQUIRED BY BANK;
(D)
A LONG FORM 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;
(E)
COMPLETED AND EXECUTED BORROWING RESOLUTIONS FOR BORROWER;
(F)
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 CREDIT EXTENSION, WILL BE TERMINATED OR RELEASED;
(G)
THE PERFECTION CERTIFICATE OF BORROWER, TOGETHER WITH THE DULY
EXECUTED ORIGINAL SIGNATURE THERETO;
(H)
A LEGAL OPINION FROM COUNSEL TO BORROWER
(AUTHORITY/ENFORCEABILITY), IN FORM AND SUBSTANCE ACCEPTABLE TO BANK;
(I)
EVIDENCE SATISFACTORY TO BANK THAT THE INSURANCE POLICIES
REQUIRED BY SECTION 6.4 OF THIS AGREEMENT ARE IN FULL FORCE AND EFFECT, TOGETHER
WITH APPROPRIATE EVIDENCE SHOWING LENDER LOSS PAYABLE AND/OR ADDITIONAL INSURED
CLAUSES AND CANCELLATION NOTICE TO BANK (INCLUDING CERTIFICATES ON ACORD 25 AND
ACORD 28 FORMS AND ENDORSEMENTS TO THE POLICIES REFLECTING THE SAME);
6
(J)
PAYMENT OF THE FEES AND BANK EXPENSES THEN DUE AS SPECIFIED IN
SECTION 2.9 OF THIS AGREEMENT; AND
(K)
CERTIFICATES OF GOOD STANDING/FOREIGN QUALIFICATION (NEW YORK, AND
OTHERS, AS APPLICABLE) FOR BORROWER.
3.2
CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
BANK'S AGREEMENT TO
MAKE EACH CREDIT EXTENSION, INCLUDING THE INITIAL CREDIT EXTENSION, IS SUBJECT
TO THE FOLLOWING:
(A)
RECEIPT OF THE INVOICE TRANSMITTAL AND THE DOCUMENTS REQUIRED BY
SECTION 2.1.1(C) OF THIS AGREEMENT AND, WITH RESPECT TO ADVANCES BASED UPON
INVENTORY PLACEHOLDER INVOICES, THE INVENTORY REPORT AS REQUIRED BY SECTION
6.2(F);
(B)
BANK SHALL HAVE (AT ITS OPTION) CONDUCTED THE CONFIRMATIONS AND
VERIFICATIONS AS DESCRIBED IN SECTION 2.1.1(D) OF THIS AGREEMENT;
(C)
EACH OF THE REPRESENTATIONS AND WARRANTIES IN SECTIONS 5.3 AND 5.4
OF THIS AGREEMENT SHALL BE TRUE, ACCURATE, AND CORRECT ON THE DATE OF THE
INVOICE TRANSMITTAL 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 SECTIONS 5.3
AND 5.4 OF THIS AGREEMENT REMAIN TRUE, ACCURATE, AND CORRECT; AND
(d)
each of the representations and warranties in this
Agreement (other than those in Sections 5.3 and 5.4) shall be true, accurate,
and correct in all material respects on the date of the Invoice Transmittal 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 this Agreement (other than those in Sections
5.3 and 5.4) are true, accurate, and correct