(B)
ALL PRESENT AND FUTURE INDEBTEDNESS AND OBLIGATIONS, OF ANY NATURE
WHATSOEVER, DIRECT OR INDIRECT, ABSOLUTE OR CONTINGENT, MATURED OR NOT, AT ANY
TIME OWING OR TO BECOME OWING BY BORROWER TO LENDER ARISING FROM ANY CONTRACT,
AGREEMENT, DEALINGS, OCCURRENCE, NON-OCCURRENCE, EVENT AND/OR OPERATION OF LAW
WHEREBY BORROWER BECOMES INDEBTED AND/OR OBLIGATED TO LENDER.
(C)
ALL AND FUTURE INDEBTEDNESS, OBLIGATIONS AND LIABILITIES OF
BORROWER TO LENDER OR TO LENDER'S AFFILIATES IN RESPECT OF ANY BANK PRODUCT
OBLIGATIONS.
"Overadvance" has the meaning set forth in Section 2.5.
"Participant" has the meaning set forth in Section 14.1(c).
"Perfection Certificate" means the certification of officers forms submitted by
Lender to Borrower, together with Borrower's completed responses to the
inquiries set forth therein, the form and substance of such responses to be
satisfactory to Lender.
"Permitted Discretion" means a determination made in good faith and in the
exercise of reasonable (from the perspective of a an asset-based lender)
business judgment, including without limitation, any such factors as Lender,
taking into account information of which Lender then has knowledge, reasonably
believes:
(I)
WILL OR REASONABLY COULD BE EXPECTED TO MATERIALLY AND ADVERSELY
AFFECT THE VALUE OF THE COLLATERAL, THE PRIORITY OR ENFORCEABILITY OF THE
LENDER'S SECURITY AND COLLATERAL INTERESTS THEREIN, OR THE AMOUNT WHICH THE
LENDER WOULD LIKELY REALIZE
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THEREFROM (TAKING INTO ACCOUNT DELAYS WHICH MAY REASONABLY BE ENCOUNTERED IN
LENDER REALIZING UPON THE COLLATERAL AND LIKELY LENDER EXPENSES).
(II)
INDICATES THAT ANY REPORT OR FINANCIAL INFORMATION DELIVERED TO
LENDER BY OR ON BEHALF OF BORROWER IS INCOMPLETE, INACCURATE, OR MISLEADING IN
ANY MATERIAL MANNER OR WAS NOT PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF
THIS AGREEMENT IN ANY MATERIAL RESPECT.
(III)
SUGGESTS THE LIKELIHOOD THAT BORROWER WILL BECOME THE SUBJECT OF
AN INSOLVENCY PROCEEDING.
(IV)
CONSTITUTES A SUSPENSION EVENT.
(D)
IN THE EXERCISE OF SUCH JUDGMENT, THE LENDER ALSO MAY TAKE INTO
ACCOUNT ANY OF THE FOLLOWING FACTORS:
(I)
THOSE INCLUDED IN, OR TESTED BY, THE DEFINITIONS OF "ELIGIBLE
INVENTORY", "RETAIL", AND "COST".
(II)
THE CURRENT FINANCIAL AND BUSINESS CLIMATE OF THE INDUSTRY IN
WHICH BORROWER COMPETES (HAVING REGARD FOR THE BORROWER'S POSITION IN THAT
INDUSTRY).
(III)
GENERAL ECONOMIC CONDITIONS WHICH HAVE A MATERIAL EFFECT ON
BORROWER'S COST STRUCTURE.
(IV)
MATERIAL CHANGES IN OR TO THE MIX OF THE BORROWER'S INVENTORY.
(V)
SEASONALITY WITH RESPECT TO THE BORROWER'S INVENTORY AND PATTERN
OF THE BORROWER'S RETAIL SALES VERSUS THAT WHICH WAS PROJECTED.
(VI)
MATERIAL CHANGES IN BORROWER'S AVAILABILITY VERSUS THAT WHICH WAS
PROJECTED.
(VII)
SUCH OTHER FACTORS AS THE LENDER DETERMINES AS HAVING A MATERIAL
BEARING ON CREDIT RISKS ASSOCIATED WITH THE PROVIDING OF LOANS AND FINANCIAL
ACCOMMODATIONS TO BORROWER.
The burden of establishing the failure of the Lender to have acted within such
Permitted Discretion shall be the Borrower's.
"Permitted Dispositions" means (a) sales or other dispositions by Borrower or
its Subsidiaries of Equipment that is substantially worn, damaged, or obsolete
in the ordinary course of business, (b) sales by Borrower or its Subsidiaries of
Inventory to buyers in the ordinary course