THE ATTACHED
ACKNOWLEDGMENT, DULY AUTHORIZED, EXECUTED AND DELIVERED BY GUARANTORS;
17.2 AGENT SHALL HAVE RECEIVED AN ORIGINAL OF THE FOURTH AMENDMENT FEE LETTER,
DULY AUTHORIZED, EXECUTED AND DELIVERED BY BORROWERS,
17.3 THE REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN AND IN THE LOAN
AGREEMENT (AS AMENDED HEREBY) THAT ARE QUALIFIED AS TO MATERIALITY OR MATERIAL
ADVERSE EFFECT SHALL BE TRUE AND CORRECT AND THE REPRESENTATIONS AND WARRANTIES
THAT ARE NOT SO QUALIFIED SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS, IN
EACH CASE WITH THE SAME EFFECT AS THOUGH SUCH REPRESENTATIONS AND WARRANTIES HAD
BEEN MADE ON AND AS OF THE DATE HEREOF AND AFTER GIVING EFFECT THERETO, EXCEPT
TO THE EXTENT THAT ANY SUCH REPRESENTATIONS OR WARRANTIES EXPRESSLY RELATE
SOLELY TO AN EARLIER DATE
14
(IN WHICH CASE SUCH REPRESENTATIONS OR WARRANTIES SHALL HAVE BEEN TRUE AND
CORRECT ON AND AS OF SUCH EARLIER DATE);
17.4 AGENT SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE SATISFACTORY TO AGENT, ALL
CONSENTS, WAIVERS, ACKNOWLEDGMENTS AND OTHER AGREEMENTS FROM FOURTH PERSONS
WHICH AGENT MAY DEEM NECESSARY OR DESIRABLE IN ORDER TO EFFECTUATE THE
PROVISIONS OR PURPOSES OF THIS AMENDMENT; AND
17.5 AS OF THE DATE OF THIS AMENDMENT, NO DEFAULT OR EVENT OF DEFAULT SHALL
EXIST OR SHALL HAVE OCCURRED AND BE CONTINUING.
18.
ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS. EACH BORROWER,
JOINTLY AND SEVERALLY, REPRESENTS, WARRANTS AND COVENANTS WITH AND TO AGENT AND
LENDERS AS FOLLOWS, WHICH REPRESENTATIONS, WARRANTIES AND COVENANTS ARE
CONTINUING AND SHALL SURVIVE THE EXECUTION AND DELIVERY HEREOF, AND THE TRUTH
AND ACCURACY OF, OR COMPLIANCE WITH EACH, TOGETHER WITH THE REPRESENTATIONS,
WARRANTIES AND COVENANTS IN THE OTHER FINANCING AGREEMENTS, BEING A CONTINUING
CONDITION OF THE MAKING OF LOANS BY LENDERS TO BORROWERS:
18.1 PREPAYMENT OF EXISTING TERM LOAN. ON THE FOURTH AMENDMENT EFFECTIVE DATE,
ALL OF THE CONDITIONS SET FORTH IN SECTION 2.3(D) OF THE LOAN AGREEMENT (AS IN
EFFECT IMMEDIATELY PRIOR TO THE AMENDMENT OF SUCH SECTION AS PROVIDED FOR HEREIN
AND THE FOURTH AMENDMENT EFFECTIVE DATE) HAVE BEEN SATISFIED.
18.2 DELIVERY OF TRADENAME APPRAISAL. WITHIN NINETY (90) DAYS OF THE DATE
HEREOF, BORROWERS SHALL DELIVER OR CAUSE TO BE DELIVERED TO AGENT A WRITTEN
CURRENT APPRAISAL OF THE "NEW YORK & COMPANY" TRADENAME VALUED UNDER THE RELIEF
FROM ROYALTY METHOD, WHICH APPRAISAL SHALL BE IN FORM AND SCOPE REASONABLY
ACCEPTABLE TO AGENT AND PREPARED BY VALUATION RESEARCH, INC. OR SUCH OTHER
APPRAISER ACCEPTABLE TO AGENT, ADDRESSED TO AGENT AND LENDERS AND UPON WHICH
AGENT AND LENDERS ARE EXPRESSLY PERMITTED TO RELY.
18.3 AUTHORITY. EACH BORROWER HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO
EXECUTE AND DELIVER THIS AMENDMENT, AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND
UNDER THE FINANCING AGREEMENTS (AS AMENDED OR MODIFIED HEREBY) TO WHICH IT IS A
PARTY, AND THE EXECUTION, DELIVERY AND PERFORMANCE BY EACH BORROWER OF THIS
AMENDMENT HAVE BEEN DULY APPROVED BY ALL NECESSARY CORPORATE ACTION AND NO OTHER
CORPORATE PROCEEDINGS ARE NECESSARY TO CONSUMMATE SUCH TRANSACTIONS.
18.4 ENFORCEABILITY. THIS AMENDMENT HAS BEEN DULY EXECUTED AND DELIVERED BY EACH
BORROWER AND