a Notice of Business Activities Report or similar report in order for such
Borrower to seek judicial enforcement in such State of payment of such Account,
unless such Borrower has qualified to do business in such state or has filed a
Notice of Business Activities Report or equivalent report for the then current
year or such failure to file and inability to seek judicial enforcement is
capable of being remedied without any material delay or material cost; and
(p)
such Accounts do not constitute amounts which have been invoiced
by such Borrower but with respect to which goods so invoiced have not been
delivered to the account debtor.
The criteria for Eligible Damaged Goods Vendors Receivables set forth above may
only be changed and any new criteria for Eligible Damaged Goods Vendors
Receivables may only be established by Agent in good faith based on either:
(i)
an event, condition or other circumstance arising after the date hereof, or (ii)
an event, condition or other circumstance existing on the date hereof to the
extent Agent has no written notice thereof from Borrowers prior to the date
hereof,
14
in either case under clause (i) or (ii) which adversely affects or could
reasonably be expected to adversely affect the Accounts in the good faith
determination of Agent. Any Accounts which are not Eligible Damaged Goods
Vendors Receivables shall nevertheless be part of the Collateral.
1.53
"Eligible Inventory" shall mean Eligible Landed Inventory, Eligible
In-Transit Inventory and Eligible In-Transit LC Inventory.
1.54
"Eligible In-Transit Inventory" shall mean Domestic In-Transit
Inventory and Foreign In-Transit Inventory owned by a Borrower that otherwise
satisfies the criteria for Eligible Landed Inventory; provided, that:
(A)
AS TO ANY SUCH DOMESTIC IN-TRANSIT INVENTORY OR FOREIGN IN-TRANSIT
INVENTORY:
(I)
TITLE TO SUCH INVENTORY HAS PASSED TO SUCH BORROWER;
(II)
SUCH INVENTORY IS NOT THEN SUBJECT TO A LETTER OF CREDIT
ACCOMMODATION;
(III)
SUCH INVENTORY IS INSURED AGAINST TYPES OF LOSS, DAMAGE, HAZARDS,
AND RISKS, AND IN AMOUNTS, SATISFACTORY TO AGENT IN ITS DISCRETION AND AGENT
SHALL HAVE RECEIVED A COPY OF THE CERTIFICATE OF EVIDENCE OF PROPERTY INSURANCE
IN THE CASE OF DOMESTIC IN-TRANSIT INVENTORY AND THE CERTIFICATE OF EVIDENCE OF
MARINE CARGO INSURANCE IN THE CASE OF FOREIGN IN-TRANSIT INVENTORY, IN EACH
CASE, IN WHICH AGENT HAS BEEN NAMED AS AN ADDITIONAL INSURED AND LENDER'S LOSS
PAYEE IN A MANNER ACCEPTABLE TO AGENT;
(IV)
THE APPLICABLE BORROWER HAS PROVIDED A CERTIFICATE TO AGENT THAT
CERTIFIES THAT, TO THE BEST KNOWLEDGE OF SUCH BORROWER, SUCH INVENTORY MEETS ALL
OF SUCH BORROWER'S REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN CONCERNING
ELIGIBLE INVENTORY, THAT IT KNOWS OF NO REASON WHY SUCH INVENTORY WOULD NOT BE
ACCEPTED BY SUCH BORROWER WHEN IT ARRIVES AND THAT THE SHIPMENT AS EVIDENCED BY
THE DOCUMENTS CONFORMS TO THE RELATED ORDER DOCUMENTS; AND
(V)
AGENT HAS A FIRST PRIORITY PERFECTED SECURITY INTEREST IN AND LIEN
UPON SUCH INVENTORY AND ALL DOCUMENTS OF TITLE WITH RESPECT THERETO;
(B)
IN ADDITION TO AND NOT IN LIMITATION OF THE CRITERIA SET