Exim Eligible Foreign Inventory. Is Borrower's Inventory which is acceptable to Bank and which is deemed to be Eligible Inventory, but in no event shall EX-IM Eligible Foreign Inventory include any Inventory: (a) that is not located in the United States unless expressly permitted by Bank, on terms acceptable to Bank and pre-approved by EX-IM Bank in writing; (b) that is not subject to a valid, perfected first priority Lien in favor of Bank; (c) that is located at an address that has not been disclosed to
... Bank in writing; (d) that is placed by Borrower on consignment or held by Borrower on consignment from another Person; (e) that is in the possession of a processor or bailee, or located on premises leased or subleased to Borrower, or on premises subject to a mortgage in favor of a Person other than Bank, unless such processor or bailee or mortgagee or the lessor or sublessor of such premises, as the case may be, has executed and delivered all documentation which Bank shall require to evidence the subordination or other limitation or extinguishment of such Person's rights with respect to such Inventory and Bank's right to gain access thereto; (f) that is produced in violation of the Fair Labor Standards Act or subject to the "hot goods" provisions contained in 29 US.C.ยง215 or any successor statute or section; (g) as to which any covenant, representation or warranty with respect to such Inventory contained in the Loan Documents has been breached; (h) that is an Item or is to be incorporated into Items that do not meet U.S. Content requirements in accordance with Section 2.01(b)(ii) of the EX-IM Borrower Agreement; (i) that is demonstration Inventory; (j) that consists of proprietary software (i.e. software designed solely for Borrower's internal use and not intended for resale); (k) that is damaged, obsolete, returned, defective, recalled or unfit for further processing; (l) that has been previously exported from the United States; (m) that constitutes, or will be incorporated into Items that constitute, defense articles or defense services; 13 (n) that is an Item or will be incorporated into Items that will be used in the construction, alteration, operation or maintenance of nuclear power, enrichment, reprocessing, research or heavy water production facilities unless with EX-IM Bank's prior written consent; (o) that is an Item or is to be incorporated into Items destined for shipment to a country in which EX-IM Bank is legally prohibited from doing business as designated in the current Country Limitation Schedule, or that Borrower has knowledge will be re-exported by a foreign buyer to a country in which EX-IM Bank is legally prohibited from doing business; (p) that is an Item or is to be incorporated into Items destined for shipment to a buyer located in a country in which EX-IM Bank coverage is not available for commercial reasons as designated in the Country Limitation Schedule, unless and only to the extent that such Inventory is sold to the foreign buyer on terms of an irrevocable letter of credit confirmed by a bank acceptable to EX-IM Bank; (q) that constitutes, or is to be incorporated into Items whose sale would result in an Account which would not be an EX-IM Eligible Foreign Account; (r) that is to be included as eligible inventory under any other credit facility to which Borrower is a party; or (s) that is to be incorporated into Items that is a Capital Good, unless the transaction is in accordance with Section 2.14 of the EX-IM Borrower Agreement.
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