OF THE
CERTIFICATE OF INCORPORATION, BY-LAWS, CERTIFICATE OF FORMATION, OPERATING
AGREEMENT OR OTHER ORGANIZATIONAL DOCUMENTATION OF SUCH BORROWER OR GUARANTOR,
(X)
SUCH PURCHASE OR INVESTMENT SHALL BE IN A BONA
FIDE
ARMS' LENGTH
TRANSACTION WITH A PERSON THAT IS NOT AN AFFILIATE OF ANY BORROWER OR GUARANTOR,
(XI)
NO BORROWER OR GUARANTOR SHALL BECOME OBLIGATED WITH RESPECT TO ANY
INDEBTEDNESS, NOR ANY OF ITS PROPERTY BECOME SUBJECT TO ANY SECURITY INTEREST OR
LIEN, PURSUANT TO SUCH ACQUISITION OR INVESTMENT UNLESS SUCH BORROWER OR
GUARANTOR COULD INCUR SUCH INDEBTEDNESS OR CREATE SUCH SECURITY INTEREST OR LIEN
HEREUNDER OR UNDER THE OTHER FINANCING AGREEMENTS,
(XII)
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, IN FORM AND SUBSTANCE
SATISFACTORY TO ADMINISTRATIVE AGENT, (A) EVIDENCE THAT ADMINISTRATIVE AGENT HAS
VALID AND PERFECTED SECURITY INTERESTS IN AND LIENS UPON ALL PURCHASED ASSETS TO
THE EXTENT SUCH ASSETS CONSTITUTE COLLATERAL HEREUNDER, (B) UCC FINANCING
STATEMENTS (OR OTHER SIMILAR REGISTRATIONS REQUIRED IN ANY FOREIGN
JURISDICTION), (C) ALL COLLATERAL ACCESS AGREEMENTS AND OTHER CONSENTS, WAIVERS,
ACKNOWLEDGMENTS AND OTHER AGREEMENTS FROM THIRD PERSONS WHICH ADMINISTRATIVE
AGENT MAY REASONABLY DEEM NECESSARY OR DESIRABLE IN ORDER TO PERMIT, PROTECT AND
PERFECT ITS SECURITY INTERESTS IN AND LIENS UPON THE ASSETS PURCHASED, (D) THE
AGREEMENT OF THE SELLER CONSENTING TO THE COLLATERAL ASSIGNMENT BY THE BORROWER
OR GUARANTOR PURCHASING SUCH ASSETS OF ALL RIGHTS AND REMEDIES AND CLAIMS FOR
DAMAGES OF SUCH BORROWER OR GUARANTOR RELATING TO THE COLLATERAL UNDER THE
AGREEMENTS, DOCUMENTS AND INSTRUMENTS RELATING TO SUCH ACQUISITION AND (E) SUCH
OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS AS ADMINISTRATIVE AGENT MAY REQUEST
IN CONNECTION THEREWITH,
151
(XIII)
IN NO EVENT SHALL ANY ACCOUNTS, INVENTORY, MILITARY RECEIVABLES,
EQUIPMENT, REAL PROPERTY, ROLLING STOCK OR PRESCRIPTION FILES SO ACQUIRED BY ANY
BORROWER PURSUANT TO SUCH ACQUISITION BE DEEMED ELIGIBLE ACCOUNTS, ELIGIBLE
INVENTORY, ELIGIBLE MILITARY RECEIVABLES, ELIGIBLE EQUIPMENT, ELIGIBLE REAL
PROPERTY, ELIGIBLE ROLLING STOCK OR ELIGIBLE PRESCRIPTION FILES, RESPECTIVELY,
UNLESS AND UNTIL ADMINISTRATIVE AGENT SHALL HAVE CONDUCTED A FIELD EXAMINATION
WITH RESPECT THERETO (AND AT ADMINISTRATIVE AGENT'S OPTION, AT BORROWERS'
EXPENSE, OBTAINED AN APPRAISAL OF SUCH INVENTORY, EQUIPMENT, REAL PROPERTY,
ROLLING STOCK OR PRESCRIPTION FILES BY AN APPRAISER REASONABLY ACCEPTABLE TO
ADMINISTRATIVE AGENT AND IN FORM, SCOPE AND METHODOLOGY REASONABLY ACCEPTABLE TO
ADMINISTRATIVE AGENT AND ADDRESSED TO ADMINISTRATIVE AGENT AND UPON WHICH
ADMINISTRATIVE AGENT IS EXPRESSLY PERMITTED TO RELY, WHICH APPRAISAL SHALL BE IN
ADDITION TO ANY APPRAISALS WHICH ADMINISTRATIVE AGENT MAY OBTAIN PURSUANT TO ITS
RIGHTS UNDER SECTIONS 7.3, 7.4, 7.5 OR 7.6 HEREOF) (PROVIDED, THAT,
NOTWITHSTANDING THE FOREGOING, NO FIELD EXAMINATION OR APPRAISAL SHALL BE
REQUIRED WITH RESPECT TO SUCH ACQUIRED INVENTORY OF THE SAME OR SIMILAR TYPE AS
OWNED BY BORROWERS PRIOR TO SUCH ACQUISITION SO LONG AS THE INVENTORY THAT IS
NOT SUBJECT TO A FIELD EXAMINATION AND APPRAISAL AT ANY TIME DOES NOT EXCEED THE
VALUE OF $10,000,000 IN THE AGGREGATE) AND THEN ONLY TO THE EXTENT THE CRITERIA
FOR ELIGIBLE ACCOUNTS, ELIGIBLE INVENTORY, ELIGIBLE EQUIPMENT, ELIGIBLE REAL
PROPERTY OR ELIGIBLE PRESCRIPTION FILES SET FORTH HEREIN ARE SATISFIED WITH
RESPECT THERETO IN ACCORDANCE