OF ITS SUBSIDIARIES UNDER ANY LEASING
OR SIMILAR ARRANGEMENT WHICH, IN ACCORDANCE WITH GAAP, WOULD BE CLASSIFIED AS
CAPITALIZED LEASES, AND, FOR PURPOSES OF THIS AGREEMENT AND EACH OTHER
TRANSACTION DOCUMENT, THE AMOUNT OF SUCH OBLIGATIONS SHALL BE THE CAPITALIZED
AMOUNT THEREOF, DETERMINED IN ACCORDANCE WITH GAAP AND THE AMOUNT OF SUCH
OBLIGATIONS OUTSTANDING AT ANY ONE TIME SHALL NOT TO EXCEED $1,500,000 IN THE
AGGREGATE.
(E)
"CHANGE OF CONTROL" MEANS ANY FUNDAMENTAL TRANSACTION OTHER THAN (I)
ANY REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION OF THE COMMON STOCK IN
WHICH HOLDERS OF THE COMPANY'S VOTING POWER IMMEDIATELY PRIOR TO SUCH
REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION CONTINUE AFTER SUCH
REORGANIZATION, RECAPITALIZATION OR RECLASSIFICATION TO HOLD PUBLICLY TRADED
SECURITIES AND, DIRECTLY OR INDIRECTLY, THE VOTING POWER OF THE SURVIVING ENTITY
OR ENTITIES NECESSARY TO ELECT A MAJORITY OF THE MEMBERS OF THE BOARD OF
DIRECTORS (OR THEIR EQUIVALENT IF OTHER THAN A CORPORATION) OF SUCH ENTITY OR
ENTITIES, OR (II) PURSUANT TO A MIGRATORY MERGER EFFECTED SOLELY FOR THE PURPOSE
OF CHANGING THE JURISDICTION OF INCORPORATION OF THE COMPANY.
11
(F)
"COMMON STOCK" MEANS THE COMMON STOCK, PAR VALUE $.001 PER SHARE, OF
THE COMPANY.
(G)
"CONTINGENT OBLIGATION" MEANS, AS TO ANY PERSON, ANY DIRECT OR
INDIRECT LIABILITY, CONTINGENT OR OTHERWISE, OF THAT PERSON WITH RESPECT TO ANY
INDEBTEDNESS, LEASE, DIVIDEND OR OTHER OBLIGATION OF ANOTHER PERSON IF THE
PRIMARY PURPOSE OR INTENT OF THE PERSON INCURRING SUCH LIABILITY, OR THE PRIMARY
EFFECT THEREOF, IS TO PROVIDE ASSURANCE TO THE OBLIGEE OF SUCH LIABILITY THAT
SUCH LIABILITY WILL BE PAID OR DISCHARGED, OR THAT ANY AGREEMENTS RELATING
THERETO WILL BE COMPLIED WITH, OR THAT THE HOLDERS OF SUCH LIABILITY WILL BE
PROTECTED (IN WHOLE OR IN PART) AGAINST LOSS WITH RESPECT THERETO.
(H)
"ELIGIBLE INSTITUTIONAL LENDER" MEANS (I) WITH RESPECT TO ANY TRANSFER
BY WELLS FARGO RETAIL FINANCE II, LLC OR ANY OF ITS AFFILIATES (A "WELLS FARGO
ENTITY") DURING THE CONTINUANCE OF AN EVENT OF DEFAULT (AS DEFINED IN THE SENIOR
INDEBTEDNESS AGREEMENT), ANY PERSON AND (II) OTHERWISE, (A) ANY WELLS FARGO
ENTITY, (B) A COMMERCIAL BANK HAVING TOTAL ASSETS IN EXCESS OF $5,000,000,000 OR
ANY AFFILIATE OR SUBSIDIARY THEREOF, SO LONG AS SUCH AFFILIATE OR SUBSIDIARY IS
(I) NOT AN INVESTMENT FUND, MANAGED ACCOUNT OR OTHER SIMILAR INVESTMENT VEHICLE
OR AN INVESTMENT ADVISER (AS DEFINED IN THE INVESTMENT ADVISERS ACT OF 1940, AS
AMENDED) TO ANY SUCH INVESTMENT FUND, MANAGED ACCOUNT OR OTHER SIMILAR
INVESTMENT VEHICLE OR AN ENTITY DIRECTLY OR INDIRECTLY ESTABLISHED BY OR ON
BEHALF OF ANY OF THE FOREGOING, (II) REGULARLY ENGAGED IN THE BUSINESS OF
LENDING TO COMPANIES IN THE RETAIL INDUSTRY, AND (III) REGULARLY ENGAGED IN THE
BUSINESS OF PROVIDING ASSET BASED LOANS, (C) A SAVINGS AND LOAN ASSOCIATION OR
SAVINGS BANK ORGANIZED UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF
HAVING A NET WORTH, DETERMINED IN ACCORDANCE WITH GAAP, IN EXCESS OF
$250,000,000, (D) GMAC, GE CAPITAL, FLEET CAPITAL, GORDON BROTHERS, CIT GROUP,
OR BROOKSIDE CAPITAL, OR (E) ANY OTHER ENTITY ACCEPTABLE TO