LOAN DOCUMENTS, THE INTERCREDITOR
AGREEMENT AND/OR APPLICABLE LAW, ALL OF WHICH RIGHTS AND REMEDIES ARE FULLY
RESERVED BY THE LENDER.
(D)
ANY AGREEMENT BY THE LENDER TO EXTEND THE
FORBEARANCE PERIOD OR ENTER INTO ANY OTHER FORBEARANCE OR SIMILAR ARRANGEMENT
MUST BE SET FORTH IN WRITING AND SIGNED BY A DULY AUTHORIZED SIGNATORY OF THE
LENDER. THE COMPANY AND EACH OF THE SUBSIDIARIES ACKNOWLEDGES THAT THE LENDER
HAS MADE NO ASSURANCES WHATSOEVER CONCERNING ANY POSSIBILITY OF ANY EXTENSION OF
THE FORBEARANCE PERIOD, ANY OTHER FORBEARANCE OR SIMILAR ARRANGEMENT OR ANY
OTHER LIMITATIONS ON THE EXERCISE OF ITS RIGHTS, REMEDIES AND PRIVILEGES UNDER
OR OTHERWISE IN CONNECTION WITH THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS,
THE INTERCREDITOR AGREEMENT AND/OR APPLICABLE LAW.
(E)
THE COMPANY AND EACH OF THE SUBSIDIARIES
ACKNOWLEDGES AND AGREES THAT ANY FORBEARANCE, WAIVER, CONSENT OR OTHER FINANCIAL
ACCOMMODATION (INCLUDING THE
4
FUNDING OF ANY BORROWING REQUEST UNDER THE REVOLVING LOAN) WHICH THE LENDER
MAY MAKE ON OR AFTER THE DATE HEREOF HAS BEEN MADE BY THE LENDER IN RELIANCE
UPON, AND IS CONSIDERATION FOR, AMONG OTHER THINGS, THE GENERAL RELEASES AND
REAFFIRMATION OF INDEMNITIES CONTAINED IN ARTICLE 4 HEREOF AND THE OTHER
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND EACH OF
THE SUBSIDIARIES HEREUNDER.
2.2
AMENDMENT TO SECTION 8.02. SECTION 8.02 OF THE
LOAN AGREEMENT IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY TO READ AS
FOLLOWS:
"BORROWER WILL NOT PERMIT THE AGGREGATE RENTALS PAYABLE UNDER ALL NON-CANCELABLE
OPERATING LEASES ENTERED INTO AFTER CLOSING TO WHICH BORROWER OR SUBSIDIARY IS A
PARTY TO EXCEED (A) $500,000 DURING ANY FISCAL YEAR ENDING WITH FISCAL YEAR
2006, (B) $1,250,000 DURING THE FISCAL YEAR 2007, AND (C) $1,500,000 THEREAFTER.
WITHOUT THE PRIOR WRITTEN CONSENT OF THE LENDER IN ITS SOLE DISCRETION, NO SUCH
OPERATING LEASE ENTERED INTO AFTER MAY 1, 2007 AND HAVING A TERM GREATER THAN
ONE YEAR SHALL CONTAIN ANY RESTRICTION ON THE BORROWER'S OR APPLICABLE
SUBSIDIARY'S RIGHT TO GRANT A LIEN TO THE LENDER ON SUCH PERSON'S LEASEHOLD
INTEREST IN THE SUBJECT PROPERTY, AND THE LESSOR IN RESPECT OF EACH SUCH LEASE
SHALL HAVE AGREED TO PROVIDE UPON REQUEST A COLLATERAL ACCESS AGREEMENT
SUBSTANTIALLY IN THE FORM PROVIDED BY THE LENDER WITH SUCH MODIFICATIONS THEREIN
AS SHALL BE REASONABLY ACCEPTABLE TO THE LENDER. LENDER ACKNOWLEDGES AND
CONSENTS TO THE LEASES PLEDGED TO LENDER BY LEASEHOLD DEED OF TRUST TO SECURE
THE OBLIGATIONS AND THE OTHER EXISTING LEASES ON OTHER REAL PROPERTY DISCLOSED
TO LENDER. BORROWER AGREES NOT TO AMEND THE LEASES IN ANY MATERIAL RESPECT
WITHOUT THE PRIOR WRITTEN CONSENT OF THE LENDER. AT LENDER'S REQUEST, BORROWER
AND ITS SUBSIDIARIES WILL GRANT LENDER FIRST LIENS ON THE LEASEHOLD INTEREST IN
ALL REAL PROPERTY LEASES TO THE EXTENT BORROWER AND ITS SUBSIDIARIES ARE
PERMITTED TO GRANT LIENS ON THEIR LEASEHOLD INTEREST UNDER SUCH LEASES."
2.3
MODIFICATION OF CERTAIN REPORTING
REQUIREMENTS. THE LENDER MAY IN ITS SOLE DISCRETION FROM TIME TO TIME INSTRUCT
THE COMPANY NOT TO DELIVER TO THE LENDER THE CASH BUDGETS CONTEMPLATED IN
SECTION