OR MATERIAL OBLIGATION OF SUCH OBLIGOR; AND
(III)
WILL NOT RESULT IN THE CREATION OR IMPOSITION OF, OR THE
OBLIGATION TO CREATE OR IMPOSE, ANY ENCUMBRANCE UPON ANY ASSETS OF SUCH OBLIGOR
PURSUANT TO ANY REQUIREMENT OF LAW OR OBLIGATION OF SUCH OBLIGOR, EXCEPT
PURSUANT TO THE LOAN DOCUMENTS.
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(F)
THE LOAN DOCUMENTS HAVE BEEN DULY EXECUTED AND DELIVERED BY THE LEAD AND
THE OTHER BORROWERS OR BY THE LEAD BORROWER ON BEHALF OF ITSELF AND THE OTHER
BORROWERS AND BY THE GUARANTOR, AS THE CASE MAY BE AND ARE THE LEGAL, VALID AND
BINDING OBLIGATIONS OF THE OBLIGORS, ENFORCEABLE AGAINST THE OBLIGORS IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT TO THE EXTENT ENFORCEABILITY MAY
BE LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, MORATORIUM, OR OTHER SIMILAR
LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL
PRINCIPLES OF EQUITY.
4.3
TRADE NAMES.
(A)
EXHIBIT 4.3 IS A LISTING OF:
(I)
ALL NAMES UNDER WHICH EACH OBLIGOR HAS CONDUCTED ITS BUSINESS
WITHIN THE PAST FIVE (5) YEARS, AND
(II)
ALL ENTITIES AND/OR PERSONS WITH WHOM EACH OBLIGOR EVER
CONSOLIDATED OR MERGED WITHIN THE PAST FIVE (5) YEARS, OR FROM WHOM EACH OBLIGOR
EVER ACQUIRED IN A SINGLE TRANSACTION OR IN A SERIES OF RELATED TRANSACTIONS
SUBSTANTIALLY ALL OF SUCH ENTITY'S OR PERSON'S ASSETS WITHIN THE PAST FIVE (5)
YEARS.
(B)
THE LEAD BORROWER WILL PROVIDE THE ADMINISTRATIVE AGENT WITH NOT LESS THAN
TWENTY-ONE (21) DAYS PRIOR WRITTEN NOTICE (WITH REASONABLE PARTICULARITY) OF ANY
CHANGE TO ANY
OBLIGOR'S NAME FROM THAT UNDER WHICH SUCH OBLIGOR IS CONDUCTING
ITS BUSINESS AT THE EXECUTION OF THIS AGREEMENT AND SUCH OBLIGOR WILL NOT EFFECT
SUCH CHANGE UNLESS NO SUSPENSION EVENT HAS OCCURRED THAT IS CONTINUING.
4.4
INFRASTRUCTURE.
(A)
THE OBLIGOR HAVE AND WILL MAINTAIN A SUFFICIENT INFRASTRUCTURE TO CONDUCT
THEIR BUSINESS AS PRESENTLY CONDUCTED AND AS CONTEMPLATED TO BE CONDUCTED AS
DESCRIBED IN THE BUSINESS PLAN.
(B)
EACH OBLIGOR OWNS AND POSSESSES, OR HAS THE RIGHT TO USE (AND WILL
HEREAFTER OWN, POSSESS, OR HAVE SUCH RIGHT TO USE) ALL PATENTS, INDUSTRIAL
DESIGNS, TRADEMARKS, TRADE NAMES, TRADE STYLES, BRAND NAMES, SERVICE MARKS,
LOGOS, COPYRIGHTS, TRADE SECRETS, KNOW-HOW, CONFIDENTIAL INFORMATION, AND OTHER
INTELLECTUAL OR PROPRIETARY PROPERTY OF ANY THIRD PERSON NECESSARY FOR THE
OBLIGORS' CONDUCT OF THE
OBLIGOR' BUSINESS.
(C)
THE CONDUCT BY THE OBLIGORS OF THE
OBLIGORS' BUSINESS DOES NOT PRESENTLY
INFRINGE (NOR WILL THE OBLIGORS CONDUCT THEIR BUSINESS IN THE FUTURE SO AS TO
INFRINGE) THE PATENTS, INDUSTRIAL DESIGNS, TRADEMARKS, TRADE NAMES, TRADE
STYLES, BRAND NAMES, SERVICE MARKS, LOGOS, COPYRIGHTS, TRADE SECRETS, KNOW-HOW,
CONFIDENTIAL INFORMATION, OR OTHER INTELLECTUAL OR PROPRIETARY PROPERTY OF ANY
THIRD PERSON.
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4.5
GUARANTOR.
The Guarantor will not conduct any business in the United States or hold any
assets in the United States, other than (i) holding the leases for certain
stores in Canada that sell the Borrowers' inventory; and (ii) holding assets in
the corporate headquarters portion of the Headquarters Facility.
4.6
LOCATIONS.
(A)
THE COLLATERAL, AND THE BOOKS, RECORDS, AND PAPERS OF THE OBLIGORS
PERTAINING