Permitted Discretion.
(C)
"LOAN DOCUMENTS" SHALL MEAN, COLLECTIVELY AND EACH INDIVIDUALLY,
THE AGREEMENT, THE NOTES, THE SECURITY DOCUMENTS, THE UNIFORM COMMERCIAL CODE
FINANCING STATEMENTS, THE LANDLORD WAIVER AND CONSENTS, THE BORROWING
CERTIFICATES, ALL PRE-PETITION FINANCING AGREEMENTS, ALL POST-PETITION FINANCING
AGREEMENTS AND ALL OTHER AGREEMENTS, DOCUMENTS, INSTRUMENTS AND CERTIFICATES
HERETOFORE OR HEREAFTER EXECUTED OR DELIVERED TO LENDER IN CONNECTION WITH ANY
OF THE FOREGOING OR THE LOANS, AS THE SAME MAY BE AMENDED, MODIFIED OR
SUPPLEMENTED FROM TIME TO TIME.
(D)
"OBLIGATIONS" SHALL MEAN ALL SHALL MEAN ALL PRESENT AND FUTURE
OBLIGATIONS, INDEBTEDNESS AND LIABILITIES OF BORROWER TO LENDER AT ANY TIME AND
FROM TIME TO TIME OF EVERY KIND, NATURE AND DESCRIPTION, DIRECT OR INDIRECT,
SECURED OR UNSECURED, JOINT AND SEVERAL, ABSOLUTE OR CONTINGENT, DUE OR TO
BECOME DUE, MATURED OR UNMATURED, NOW EXISTING OR HEREAFTER ARISING, CONTRACTUAL
OR TORTIOUS, LIQUIDATED OR UNLIQUIDATED, UNDER ANY OF THE LOAN DOCUMENTS OR
OTHERWISE RELATING TO NOTES AND/OR LOANS, INCLUDING, WITHOUT
9
LIMITATION, ALL PRE-PETITION OBLIGATIONS, ALL POST-PETITION OBLIGATIONS AND ALL
APPLICABLE FEES, CHARGES AND EXPENSES AND/OR ALL AMOUNTS PAID OR ADVANCED BY
LENDER ON BEHALF OF OR FOR THE BENEFIT OF BORROWER AND/OR GUARANTOR FOR ANY
REASON AT ANY TIME, INCLUDING IN EACH CASE OBLIGATIONS OF PERFORMANCE AS WELL AS
OBLIGATIONS OF PAYMENT AND INTEREST THAT ACCRUE AFTER THE COMMENCEMENT OF ANY
PROCEEDING UNDER ANY DEBTOR RELIEF LAW BY OR AGAINST ANY SUCH PERSON.
(VI)
THE FINANCIAL COVENANTS SET FORTH IN ANNEX I OF THE LOAN AGREEMENT
(LEVERAGE RATIO, MINIMUM EBITDA, FIXED CHARGE COVERAGE RATIO AND CAPITAL
EXPENDITURES) SHALL NOT BE TESTED AT ANY TIME PRIOR TO THE OCCURRENCE OF A
TERMINATION EVENT UNDER THIS AMENDMENT, EXCEPT THAT THE BORROWER'S TOTAL DEBT
RATIO SHALL BE CALCULATED FOR PURPOSES OF DETERMINING ANY APPLICABLE TOTAL DEBT
RATIO FEE UNDER SECTION 3.7 OF THE LOAN AGREEMENT.
IN ADDITION, BORROWER SHALL
COMPLY WITH THE FOLLOWING FINANCIAL COVENANTS AT ALL TIMES PRIOR TO THE
INDEFEASIBLE PAYMENT IN FULL IN CASH OF THE OBLIGATIONS:
(A)
MINIMUM AVAILABILITY COVENANT.
BORROWER SHALL MAINTAIN
AVAILABILITY OF NOT LESS THAN $1.00 OR SUCH LOWER AMOUNT AGREED TO BY LENDER IN
ITS SOLE DISCRETION (AS EVIDENCED BY LENDER'S WRITTEN CONSENT) AT ALL TIMES; AND
(B)
MINIMUM ROLLING EIGHT WEEK SALES COVENANT.
AS TESTED ON EACH OF
THE FOLLOWING TEST DATES FOR THE TRAILING EIGHT (8) WEEK PERIOD ENDED AS OF THE
PRIOR FRIDAY TAKEN AS ONE ACCOUNTING PERIOD (EACH A "MEASUREMENT PERIOD"),
BORROWER'S WEEKLY GROSS SALES SHALL NOT BE LESS THAN THE CORRESPONDING "MINIMUM
WEEKLY GROSS SALES" AMOUNT SET FORTH IN THE RIGHT HAND COLUMN BELOW:
Test Date
Measurement Period (in each
case, the trailing eight (8) week
period ended as of the date set
forth below)
Minimum Weekly Gross Sales
October 19, 2005
October 14, 2005
$
7,833,756
October 26, 2005
October 21, 2005
$
7,779,540
November 2, 2005
October 28, 2005
$
7,626,439
November 9, 2005
November 4, 2005
$
7,119,947
November 16, 2005
November 11, 2005
$
6,930,115
November 23, 2005
November 18, 2005
$
6,501,852
November 30, 2005