VALID AND ENFORCEABLE FIRST PRIORITY LIEN ON THE
RESPECTIVE PROPERTY, FREE AND CLEAR OF ALL DEFECTS, ENCUMBRANCES AND LIENS OTHER
THAN PERMITTED LIENS, (Y) WITH RESPECT TO REAL PROPERTY OWNED IN FEE ONLY, THEN
CURRENT A.L.T.A. SURVEYS, CERTIFIED TO THE AGENT AND THE LENDERS BY A LICENSED
SURVEYOR SUFFICIENT TO ALLOW THE ISSUER OF THE LENDER'S TITLE INSURANCE POLICY
TO ISSUE SUCH POLICY WITHOUT A SURVEY EXCEPTION AND (Z) AN ENVIRONMENTAL SITE
ASSESSMENT PREPARED BY A QUALIFIED FIRM REASONABLY ACCEPTABLE TO THE AGENT, IN
FORM AND SUBSTANCE SATISFACTORY TO THE AGENT.
(C)
THE BORROWER SHALL, AND SHALL CAUSE EACH OF
ITS SUBSIDIARIES TO, IN ACCORDANCE WITH THE TERMS OF THE APPLICABLE COLLATERAL
DOCUMENTS, CAUSE EACH FINANCIAL INSTITUTION (OTHER THAN U.S. BANK IN RESPECT OF
THE RESTRICTED ACCOUNTS) AT WHICH THE BORROWER OR ANY SUCH SUBSIDIARY MAINTAINS
ANY LOCKBOX, DEPOSIT ACCOUNT, SECURITIES ACCOUNT OR OTHER SIMILAR ACCOUNT TO
DELIVER TO THE AGENT A CONTROL AGREEMENT, IN FORM AND SUBSTANCE SATISFACTORY TO
THE AGENT.
THE FOREGOING AND ANYTHING CONTAINED IN ANY COLLATERAL DOCUMENT TO
THE CONTRARY NOTWITHSTANDING, THE BORROWER SHALL NOT BE REQUIRED TO DELIVER ANY
SUCH CONTROL AGREEMENT IN RESPECT OF ANY RESTRICTED ACCOUNT (TO THE EXTENT THE
BORROWER OTHERWISE IS IN COMPLIANCE WITH THE OTHER TERMS OF THIS PARAGRAPH);
PROVIDED, THAT, THE BORROWER SHALL NOT, AND SHALL NOT CAUSE OR PERMIT ANY OF ITS
SUBSIDIARIES TO, DEPOSIT OR MAINTAIN FUNDS IN EXCESS OF (I) $70,000 IN THE
RESTRICTED CREDIT CARD ACCOUNT AT ANY TIME OR (II) $150,000 IN THE AGGREGATE IN
ALL RESTRICTED ACCOUNTS (OTHER THAN THE RESTRICTED CREDIT CARD ACCOUNT AND THE
RESTRICTED PAYROLL ACCOUNT) AT ANY TIME; PROVIDED, FURTHER, THAT, THE BORROWER
SHALL NOT, AND SHALL NOT CAUSE OR PERMIT ANY OF ITS SUBSIDIARIES TO, DEPOSIT OR
MAINTAIN FUNDS IN THE RESTRICTED PAYROLL ACCOUNT OTHER THAN FUNDS DEPOSITED
THEREIN IN THE ORDINARY COURSE OF BUSINESS FOR PURPOSES OF FUNDING CURRENT
PAYROLL LIABILITIES.
4.13
APPRAISALS.
IN ADDITION TO ANY APPRAISALS
UNDERTAKEN BY OR AT THE REQUEST OF AGENT PURSUANT TO SECTION 4.2(K) OR
SECTION 5.2, FOR PURPOSES OF CALCULATING THE "BORROWING BASE"
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PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF THE BORROWING BASE CERTIFICATE,
AND FOR BORROWER AND ITS SUBSIDIARIES TO BE PERMITTED TO INCLUDE MACHINERY,
EQUIPMENT AND OWNED REAL PROPERTY IN THE BORROWING BASE CERTIFICATE AT ANY TIME
AFTER THE RESTATEMENT EFFECTIVE DATE, IF REQUESTED BY THE AGENT AT ANY TIME
WITHIN THIRTY (30) DAYS AFTER THE RESTATEMENT EFFECTIVE DATE, THE AGENT SHALL BE
ENTITLED TO RECEIVE, AT THE BORROWER'S EXPENSE, APPRAISALS IN FORM AND SUBSTANCE
AND FROM APPRAISERS REASONABLY SATISFACTORY TO THE AGENT SETTING FORTH THE
ORDERLY LIQUIDATION VALUE OF THE MACHINERY AND EQUIPMENT OF BORROWER OR ANY OF
ITS SUBSIDIARIES AND THE FAIR MARKET VALUE OF ALL OR ANY PORTION OF SUCH REAL
PROPERTY OF BORROWER OR ANY OF ITS SUBSIDIARIES, IN EACH CASE APPRAISED AT THE
TIME OF SUCH APPRAISALS.
AFTER RECEIPT OF SUCH APPRAISALS, APPRAISALS IN
RESPECT OF SUCH PROPERTY MAY BE UNDERTAKEN OR REQUIRED BY AGENT PURSUANT TO
SECTION 4.2(K)