Conditions Precedent to the Initial Credit Extension. The obligation of Lender to make the Initial Credit Extension hereunder is subject to the fulfillment, to the satisfaction of Lender (the making of such Initial Credit Extension by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent: (a) Borrower shall have provided Lender with not less than forty-five (45) Business Days’ prior written notice of the Borrower’s intention to request the Initial Credit Extension; (b) Lender shall have received a Filing Authorization Letter, duly executed by Borrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements; (c) Lender shall have received each of the following documents (or, in the sole discretion of Lender, ratifications of such documents delivered in connection with the Existing Loan Agreement), in form and substance satisfactory to Lender, duly executed, and each such document shall be in full force and effect: (i) this Agreement, together with all schedules hereto, (ii) the Cash Management Agreements, (iii) the Control Agreements, (iv) the Intellectual Property Security Agreement, (v) the Disbursement Letter, (vi) the Fee Letter, (vii) the Officers’ Certificate, (viii) the Securities Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank (or equivalent, in the case of any non-U.S. Subsidiary whose Stock is pledged); and (ix) the Overstock Real Estate Joinder Documents, (x) all Loan Documents not expressly referenced in (i) through (ix) above; (d) Lender shall have received a certificate from the Secretary of Borrower (i) attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party, (ii) authorizing specific officers of Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower; (e) Lender shall have received copies of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Borrower; (f) Lender shall have received a certificate of status with respect to Borrower, dated within 10 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction; (g) Lender shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions; (h) Lender shall have received a current certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender; (i) Lender shall have received a ratification of the Intercreditor Agreement with ▇▇▇▇▇ Fargo Bank, National Association; (j) Lender shall have received Collateral Access Agreements (or, in the sole discretion of Lender, ratifications of such Collateral Access Agreements delivered in connection with the Existing Loan Agreement) covering all locations required by Lender where any Inventory of Borrower is located including, but not limited to, with respect to the following locations: (i) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇), (▇▇) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (iii) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (v) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and (vi) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇; (k) Lender shall have received an opinion of Borrower’s counsel in form and substance satisfactory to Lender; (l) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest; (m) Borrower shall have the Required Availability after giving effect to the Initial Credit Extension hereunder and the payment of all fees, costs and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents; (n) Lender shall have completed its business, legal, and collateral due diligence, including, but not limited to (i) a collateral audit and review of Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s representations and warranties to Lender, the results of which shall be satisfactory to Lender, (ii) an inspection of each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Lender and (iii) a legal review of all fulfillment partner contracts or similar agreements and other contracts material to Borrower’s operation, the results of which shall be satisfactory to Lender (all such due diligence to be current as of the Closing Date); (o) Lender shall have received Borrower’s projections of liquidity for the 12 month period immediately following the Closing Date, which projections are satisfactory to Lender in its sole discretion; (p) Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion; (q) Lender shall have received a current appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender; (r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender; (s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements; (t) Lender shall have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender; (u) Borrower shall have paid (i) all Lender Expenses incurred in connection with the transactions evidenced by this Agreement and (ii) all fees then due under the Fee Letter; (v) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; and (w) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Lender. It is expressly acknowledged and agreed by Borrower that Borrower has not, as of the date of this Agreement, requested the Initial Credit Extension hereunder.
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Conditions Precedent to the Initial Credit Extension. The Bank’s obligation of Lender to make the Initial initial Credit Extension hereunder is subject to the fulfillment, to the satisfaction of Lender (the making of such Initial Credit Extension by Lender being conclusively deemed to be its satisfaction or waiver of the following), of each of the following conditions precedent:
(a) Borrower shall have provided Lender with not less than forty-five (45) Business Days’ prior written notice of the Borrower’s intention to request the Initial Credit Extension;
(b) Lender Bank shall have received a Filing Authorization Letterall financing statements required by Bank, duly executed authorized for filing by Borrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender Bank shall have received searches reflecting the filing of all such financing statements;
(cb) Lender Bank shall have received each of the following documents (or, in the sole discretion of Lender, ratifications of such documents delivered in connection with the Existing Loan Agreement)documents, in form and substance satisfactory to LenderBank, duly executed, and each such document shall be in full force and effect:
(i) this Agreement, together with all schedules hereto,the Control Agreement relating to the SVB Accounts (other than deposit accounts maintained at Bank).
(iic) the Cash Management Agreements,
(iii) the Control Agreements,
(iv) the Intellectual Property Security Agreement,
(v) the Disbursement Letter,
(vi) the Fee Letter,
(vii) the Officers’ Certificate,
(viii) the Securities Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank (or equivalent, in the case of any non-U.S. Subsidiary whose Stock is pledged); and
(ix) the Overstock Real Estate Joinder Documents,
(x) all Loan Documents not expressly referenced in (i) through (ix) above;
(d) Lender shall have received a certificate from the Secretary of Borrower (i) attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party, (ii) authorizing specific officers of Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower;
(e) Lender Bank shall have received copies of Borrower’s Governing Documentsgoverning documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of Borrower;
(fd) Lender Bank shall have received a certificate of status with respect to Borrower, dated within 10 15 days of the Closing Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of Borrower, which certificate shall indicate that Borrower is in good standing in such jurisdiction;
(ge) Lender Bank shall have received certificates of status with respect to Borrower, each dated within 30 days of the Closing Date, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in which its failure to be duly qualified or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictions;
(hf) Lender shall have received a current certificate of insurance, together with the endorsements thereto, as are required by Section 6.8, the form and substance of which shall be satisfactory to Lender;
(i) Lender shall have received a ratification of the Intercreditor Agreement with ▇▇▇▇▇ Fargo Bank, National Association;
(j) Lender shall have received Collateral Access Agreements (or, in the sole discretion of Lender, ratifications of such Collateral Access Agreements delivered in connection with the Existing Loan Agreement) covering all locations required by Lender where any Inventory of Borrower is located including, but not limited to, with respect to the following locations: (i) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇), (▇▇) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (iii) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (v) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and (vi) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇;
(k) Lender Bank shall have received an opinion of Borrower’s counsel in form and substance reasonably satisfactory to LenderBank;
(lg) Lender shall have received satisfactory evidence (including a certificate of the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted Protest;
(m) Borrower shall have the Required Availability after giving effect to the Initial Credit Extension hereunder and the payment of all fees, costs and expenses required to be paid by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(n) Lender Bank shall have completed its business, legal, and collateral due diligence;
(h) the representations and warranties in Section 5 must be materially true in all material respects on the date of the funding of the Term Loan (except that representations and warranties in Section 5 made as of a specified earlier date shall be true in all material respects as of such specified earlier date) and no Event of Default may have occurred and be continuing, including, but not limited to or result from the funding of the Term Loan.
(i) a collateral audit and review of Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s representations and warranties to Lender, the results of which shall be satisfactory to Lender, (ii) an inspection of each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Lender and (iii) a legal review of all fulfillment partner contracts or similar agreements and other contracts material to Borrower’s operation, the results of which shall be satisfactory to Lender (all such due diligence to be current as of the Closing Date);
(o) Lender Bank shall have received Borrower’s projections evidence that the SVB Accounts has been opened with a balance of liquidity for the 12 month period immediately following the Closing Dateno less than $43,750,000, which projections are satisfactory to Lender in its sole discretion;balance may be derived from the anticipated funding of the Term Loan.
(p) Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion;
(q) Lender shall have received a current appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender;
(r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender;
(s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements;
(t) Lender shall have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender;
(uj) Borrower shall have paid (i) pay all Lender Bank Expenses incurred in connection with the transactions evidenced by this Agreement and (ii) all fees then due under the Fee Letter;
(v) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated therebyAgreement; and
(wk) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Lender. It is expressly acknowledged and agreed by Borrower that Borrower has not, as of the date of this Agreement, requested the Initial Credit Extension hereunderBank.
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Conditions Precedent to the Initial Credit Extension. The obligation of Lender the Lenders to make the Initial effect any Credit Extension hereunder is subject to the fulfillmentcondition precedent that, to on or before the satisfaction of Lender (the making of such Initial Credit Extension by Lender being conclusively deemed to be its satisfaction or waiver day of the following), of each of the following conditions precedent:
(a) Borrower shall have provided Lender with not less than forty-five (45) Business Days’ prior written notice of the Borrower’s intention to request the Initial first Credit Extension;
(b) Lender , and in any event on or before the Closing Date, the Administrative Agent shall have received a Filing Authorization Letterthe following, duly executed by Borrower, together with appropriate financing statements duly filed in such office or offices as may be necessary or, in the opinion of Lender, desirable to perfect the Lender’s Liens in and to the Collateral, and Lender shall have received searches reflecting the filing of all such financing statements;
(c) Lender shall have received each of the following documents (or, in the sole discretion of Lender, ratifications of such documents delivered in connection with the Existing Loan Agreement), in form and substance satisfactory to Lender, duly executed, and each such document shall be in full force and effectthe Administrative Agent:
(ia) this such Notes as shall be requested by any Lenders, each properly executed on behalf of the Borrower;
(b) the Guaranty, properly executed on behalf of the Guarantor;
(c) the Intercreditor Agreement, together with all schedules hereto,
(ii) duly executed by the Cash Management Agreements,
(iii) the Control Agreements,
(iv) the Intellectual Property Security Agreement,
(v) the Disbursement Letter,
(vi) the Fee Letter,
(vii) the Officers’ Certificate,
(viii) the Securities Pledge Agreement, together with all certificates representing the shares of Stock pledged thereunder, as well as Stock powers with respect thereto endorsed in blank (or equivalent, in the case of any non-U.S. Subsidiary whose Stock is pledged); and
(ix) the Overstock Real Estate Joinder Documents,
(x) all Loan Documents not expressly referenced in (i) through (ix) aboveparties thereto;
(d) Lender shall have received a certificate from Third Modification Agreement to Restated Mortgage and Security Agreement Mortgage Short-Term Redemption, properly executed on behalf of the Secretary of Borrower (i) attesting to the resolutions of Borrower’s Board of Directors authorizing its execution, delivery, and performance of this Agreement and the other Loan Documents to which Borrower is a party, (ii) authorizing specific officers of Borrower to execute the same, and (iii) attesting to the incumbency and signatures of such specific officers of Borrower;
(e) Lender shall have received copies a First Amendment to Mortgage and Security Agreement, properly executed on behalf of Borrower’s Governing Documents, as amended, modified, or supplemented to the Closing Date, certified by the Secretary of BorrowerGuarantor;
(f) Lender shall have received a certificate evidence of status with respect to Borrower, dated within 10 days all insurance required by the terms of the Closing DateSecurity Documents, such certificate including but not limited to be issued by flood insurance if the appropriate officer real estate described in any Mortgage is located within the 100-year flood plain, together with certificates and loss payable endorsements showing the Administrative Agent, for the benefit of the jurisdiction of organization of BorrowerLender Parties, which certificate shall indicate that Borrower is in good standing in such jurisdictionas mortgagee, additional insured and lender loss payee thereunder;
(g) Lender shall current searches of appropriate filing offices in each jurisdiction in which each Obligor is organized, has an office or otherwise conducts business (including but not limited to patent and trademark offices, secretaries of state and county recorders) showing that no state or federal tax liens have received certificates of status with respect to Borrowerbeen filed and remain in effect against any Obligor, each dated within 30 days of the Closing Dateand that no financing statements or other notifications or filings have been filed and remain in effect against any Obligor, such certificates to be issued by the appropriate officer of the jurisdictions (other than the jurisdiction of organization of Borrower) in Permitted Liens or those for which its failure to be duly qualified the Administrative Agent has received an appropriate release, termination or licensed would constitute a Material Adverse Change, which certificates shall indicate that Borrower is in good standing in such jurisdictionssatisfaction;
(h) Lender shall have received a current certificate financing statements with respect to each Obligor to be filed in each jurisdiction that, in the opinion of insurancethe Administrative Agent, together with is reasonably necessary to maintain the endorsements theretoLiens created by the Security Documents, as are required to the extent such Liens can be perfected by Section 6.8, the form and substance of which shall be satisfactory to Lenderfiling;
(i) Lender shall have received a ratification certificates of the Intercreditor Agreement secretary or other appropriate officer of each Obligor (i) certifying that the execution, delivery and performance of the Loan Documents and other documents contemplated hereunder to which such Obligor is a party have been duly approved by all necessary action of the Governing Board of the Obligor, and attaching true and correct copies of the applicable resolutions granting such approval; (ii) certifying that attached to such certificates are true and correct copies of the Organizational Documents of such Obligor, together with ▇▇▇▇▇ Fargo Banksuch copies; and (iii) certifying the names of the officers of such Obligor that are authorized to sign the Loan Documents and other documents contemplated hereunder, National Associationtogether with the true signatures of such officers; the Lender Parties may conclusively rely on such certificates until the Administrative Agent receives a further certificate of the Secretary or Assistant Secretary of such Obligor canceling or amending the prior certificate and submitting the signatures of the officers named in such further certificate;
(j) Lender shall have received Collateral Access Agreements a certificate of good standing for each Obligor from the Secretary of State (or, in or the sole discretion appropriate official) of Lender, ratifications the state of formation of such Collateral Access Agreements delivered in connection with the Existing Loan Agreement) covering all locations required by Lender where any Inventory of Borrower is located includingObligor, but dated not limited to, with respect more than 30 days prior to the Closing Date;
(k) a Borrowing Base Certificate as of a date not more than 30 days prior to the Closing Date;
(l) the following locationsfinancial information of the Borrower and the Consolidated Group: (i) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇consolidated and consolidating financial statements for the Fiscal Years ending August 31, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇2006 through August 31, ▇▇ ▇▇▇▇▇ (▇▇▇▇▇ ▇▇▇2008, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇), (▇▇) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, audited by ▇▇▇▇ ▇▇▇▇▇▇ LLP, and interim financial statements for the most recent period completed, including balance sheets, income statements and cash flow statements prepared in conformity with GAAP; (ii) a 1-year (commencing September 1, 2009) business plan and pro-forma financial projections; and (iii) ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, (iv) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, (v) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and (vi) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇;
(k) Lender shall have received an opinion of Borrower’s counsel in form and substance satisfactory to Lender;
(l) Lender shall have received satisfactory evidence (including a certificate of such other financial information as the chief financial officer of Borrower) that all tax returns required to be filed by Borrower and its Subsidiaries have been timely filed and all taxes upon Borrower and its Subsidiaries or their properties, assets, income, and franchises (including Real Property taxes, sales taxes, and payroll taxes) have been paid prior to delinquency, except such taxes that are the subject of a Permitted ProtestAdministrative Agent may reasonably request;
(m) Borrower shall have the Required Availability after giving effect a signed copy of an opinion of counsel for each Obligor addressed to the Initial Credit Extension hereunder and Administrative Agent, on behalf of the payment of all feesLenders, costs and expenses required with respect to be paid the matters contemplated by Borrower on the Closing Date under this Agreement or the other Loan Documents;
(n) Lender shall have completed its businessthe absence of any Material Adverse Effect, legalfinancial or otherwise, and collateral due diligenceaffecting the Borrower or the Consolidated Group since August 31, including, but not limited to (i) a collateral audit and review of Borrower’s and its Subsidiaries’ books and records and verification of Borrower’s representations and warranties to Lender, the results of which shall be satisfactory to Lender, (ii) an inspection of each of the locations where Borrower’s and its Subsidiaries’ Inventory is located, the results of which shall be satisfactory to Lender and (iii) a legal review of all fulfillment partner contracts or similar agreements and other contracts material to Borrower’s operation, the results of which shall be satisfactory to Lender (all such due diligence to be current as of the Closing Date);2008; and
(o) Lender shall have received Borrower’s projections payment of liquidity for the 12 month period immediately following the Closing Date, which projections are satisfactory to Lender in its sole discretion;
(p) Lender shall have received completed reference checks with respect to Borrower’s senior management, the results of which are satisfactory to Lender in its sole discretion;
(q) Lender shall have received a current appraisal of the Net Liquidation Value applicable to Borrower’s and its Subsidiaries’ Inventory, the results of which shall be satisfactory to Lender;
(r) Lender shall have received Uniform Commercial Code, tax lien, and litigation searches, the results of which shall be satisfactory to Lender;
(s) Lender shall have reviewed and shall be satisfied with all material agreements and customer contracts of Borrower, including fulfillment partner agreements;
(t) Lender shall have received Borrower’s Closing Date Business Plan, the results of which shall be satisfactory to Lender;
(u) Borrower shall have paid (i) all Lender Expenses incurred in connection with the transactions evidenced by this Agreement and (ii) all fees and expenses then due under the Fee Letter;
(vand payable pursuant to Sections 2.14 and 9.6(a) Borrower and each of its Subsidiaries shall have received all licenses, approvals or evidence of other actions required by any Governmental Authority in connection with the execution and delivery by Borrower or its Subsidiaries of the Loan Documents or with the consummation of the transactions contemplated thereby; and
(w) all other documents and legal matters in connection with the transactions contemplated by this Agreement shall have been delivered, executed, or recorded and shall be in form and substance satisfactory to Lender. It is expressly acknowledged and agreed by Borrower that Borrower has not, as of the date of this Agreement, requested the Initial Credit Extension hereunderhereof.
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