continuing, Borrower Representative
(such approval of Borrower Representative not to be unreasonably withheld or
delayed, and shall be deemed provided unless expressly withheld by Borrower
Representative within ten (10) Business Days of request therefor); provided that
notwithstanding the foregoing, (x) "Eligible Assignee" shall not include any
Borrower or any of a Borrower's Affiliates or Subsidiaries and (y) no proposed
assignee intending to assume all or any portion of the Revolving Loan Commitment
shall be an Eligible Assignee unless such proposed assignee either already holds
a portion of the Revolving Loan Commitment, or has been approved as an Eligible
Assignee by Administrative Agent and Swingline Lender.
"Eligible Inventory" means all Inventory of each Borrower, except for any
Inventory:
(A)
THAT CONSISTS OF WORK-IN-PROCESS;
(B)
THAT IN ADMINISTRATIVE AGENT'S REASONABLE DETERMINATION OR IN THE
DETERMINATION OF THE APPLICABLE BORROWER'S MANAGEMENT IS EXCESS, OBSOLETE,
UNSALEABLE, SHOPWORN, SECONDS, DAMAGED OR UNFIT FOR SALE;
(C)
THAT IS NOT OF A TYPE HELD FOR SALE BY THE APPLICABLE BORROWER IN
THE ORDINARY COURSE OF BUSINESS;
(D)
AS TO WHICH ADMINISTRATIVE AGENT'S SECURITY INTEREST THEREIN, ON
BEHALF OF ITSELF AND LENDERS, IS NOT A FIRST PRIORITY PERFECTED SECURITY
INTEREST;
10
(E)
THAT IS NOT OWNED BY THE APPLICABLE BORROWER FREE AND CLEAR OF ALL
LIENS AND RIGHTS OF ANY OTHER PERSON (INCLUDING THE RIGHTS OF A PURCHASER THAT
HAS MADE PROGRESS PAYMENTS AND THE RIGHTS OF A SURETY THAT HAS ISSUED A BOND TO
ASSURE PERFORMANCE WITH RESPECT TO THAT INVENTORY), EXCEPT THE LIENS IN FAVOR OF
ADMINISTRATIVE AGENT, ON BEHALF OF ITSELF AND LENDERS;
(F)
THAT IS LOCATED ON PREMISES LEASED BY THE APPLICABLE BORROWER OR
STORED WITH A BAILEE, WAREHOUSEMAN, PROCESSOR OR SIMILAR PERSON, UNLESS
(I) ADMINISTRATIVE AGENT HAS GIVEN ITS CONSENT THERETO, (II) A LIEN WAIVER AND
COLLATERAL ACCESS AGREEMENT, IN FORM AND SUBSTANCE SATISFACTORY TO
ADMINISTRATIVE AGENT HAS BEEN DELIVERED TO ADMINISTRATIVE AGENT, TOGETHER, IN
THE CASE OF A PROCESSOR, WITH ANY AND ALL DULY AUTHORIZED UCC FINANCING
STATEMENTS REQUIRED BY ADMINISTRATIVE AGENT NAMING SUCH PERSON AS DEBTOR, THE
APPLICABLE BORROWER AS SECURED CREDITOR AND ADMINISTRATIVE AGENT AS ASSIGNEE OR
(III) RESERVES (THREE MONTHS RENT) AGAINST BORROWING AVAILABILITY HEREUNDER
REASONABLY SATISFACTORY TO ADMINISTRATIVE AGENT HAVE BEEN ESTABLISHED WITH
RESPECT THERETO;
(G)
THAT IS PLACED ON CONSIGNMENT, IS IN TRANSIT (EXCEPT FOR UP TO AN
AGGREGATE AMOUNT OF INVENTORY IN TRANSIT OF $2,500,000), IS OUTSIDE THE
POSSESSION OR CONTROL OF THE APPLICABLE BORROWER (OTHER THAN AS DESCRIBED IN THE
PRECEDING CLAUSE (F) AND IT BEING UNDERSTOOD THAT, FOR PURPOSES OF THIS CLAUSE
(G), INVENTORY AT ANY LOCATION LEASED BY A CREDIT PARTY SHALL BE DEEMED TO BE IN
THE POSSESSION AND CONTROL OF SUCH CREDIT PARTY)) OR IS IN POSSESSION OF THE
APPLICABLE BORROWER ON A SALE-ON-APPROVAL OR SALE-ON-RETURN BASIS OR SUBJECT TO
ANY OTHER REPURCHASE AGREEMENT;
(H)
THAT IS MANUFACTURED, ASSEMBLED OR OTHERWISE PRODUCED IN VIOLATION
OF THE FAIR LABOR STANDARDS ACT AND SUBJECT TO THE "HOT GOODS" PROVISIONS
CONTAINED IN TITLE 25 U.S.C. 215(A)(I);
(I)
THAT IS LOCATED OUTSIDE THE UNITED