INTERIM
FINANCING ORDER; OR (II) THE OCCURRENCE OF A "NEW DEFAULT" (AS DEFINED BELOW);
OR (III) AT SUCH TIME AS BORROWER, ANNEX HOLDINGS I L.P. ("ANNEX" OR
"SUBORDINATED LENDER"), WELLS FARGO BANK, NATIONAL ASSOCIATION ACTING THROUGH
ITS OPERATING DIVISION, WELLS FARGO BUSINESS CREDIT ("WFBC"), GB RETAIL FUNDING,
LLC ("GB"), ANY SUCCESSOR OF BORROWER, ANNEX, WFBC OR GB, OR ANY OWNER OR
SHAREHOLDER OF BORROWER, OR ANY AFFILIATE OF ANY OF THEM, COMMENCES ANY LEGAL
ACTION, SUIT, OR PROCEEDING AGAINST LENDER OR CONTESTING OR CHALLENGING THE
VALIDITY OR ENFORCEABILITY OF THIS AMENDMENT, THE LOAN AGREEMENT, OR ANY OF THE
OTHER LOAN DOCUMENTS OR THE OBLIGATIONS OR THE VALIDITY,
2
PERFECTION, OR PRIORITY OF ANY LIEN GRANTED TO LENDER.
FOR PURPOSES OF THIS
AMENDMENT, THE TERM "NEW DEFAULT" SHALL MEAN ANY FAILURE OF BORROWER IN THE
PERFORMANCE OF ANY OF THE TERMS OR CONDITIONS OF, OR ANY BREACH OF ANY
REPRESENTATION OR WARRANTY UNDER, OR ANY OTHER DEFAULT OR EVENT OF DEFAULT UNDER
THIS AMENDMENT, THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS, ANY FINANCING
ORDER OR ANY OTHER AGREEMENTS, INSTRUMENTS, DOCUMENTS OR SIDE LETTERS ENTERED
INTO IN CONNECTION HEREWITH OR THEREWITH, EXCEPT THAT NO SPECIFIED EVENT OF
DEFAULT SHALL BE DEEMED A "NEW DEFAULT" HEREUNDER.
UPON A TERMINATION EVENT,
THE LENDER'S AGREEMENT HEREUNDER TO MAKE LOANS, ADVANCES OR OTHER FINANCIAL
ACCOMMODATIONS TO BORROWER AND TO FORBEAR FROM EXERCISING ITS RIGHTS OR REMEDIES
UNDER THE LOAN DOCUMENTS SHALL TERMINATE, AND THE LENDER MAY AT ANY TIME
THEREAFTER TERMINATE THE LOAN AGREEMENT, THE OTHER LOAN DOCUMENTS AND/OR PROCEED
TO EXERCISE ANY AND ALL OF ITS RIGHTS AND REMEDIES, INCLUDING WITHOUT
LIMITATION, ITS RIGHTS AND REMEDIES IN CONNECTION WITH THE SPECIFIED EVENTS OF
DEFAULT AND ANY OTHER DEFAULTS AND/OR EVENTS OF DEFAULT UNDER THE INTERIM
FINANCING ORDER, ANY OTHER FINANCING ORDER AND LOAN DOCUMENTS, ALL OF WHICH ARE
HEREBY RESERVED.
SECTION 3.
AMENDMENTS.
(A)
AMENDMENTS TO LOAN AGREEMENT.
THE LOAN AGREEMENT SHALL BE AND
HEREBY IS AMENDED AS FOLLOWS:
(I)
SECTION 2.1(A) (THE REVOLVING FACILITY) OF THE LOAN AGREEMENT
SHALL BE AND HEREBY IS AMENDED AND RESTATED IN THE ENTIRETY AS FOLLOWS:
"(a)
Subject to the provisions of this Agreement, each Lender agrees to
make available its Pro Rata Share of Advances to Borrower under the Revolving
Facility from time to time during the Revolving Facility Term; provided, that
(i) the Pro Rata Share of the Advances of any Lender shall not at any time
exceed its separate Commitment, and (ii) the aggregate amount of all Advances at
any time outstanding under the Revolving Facility shall not exceed the lesser of
(A) the Facility Cap and (B) (1) the value, in Dollars, of (i) eighty-five
percent (85%) of the Borrowing Base for Eligible Receivables, and (ii) sixty
percent (60%) of the Borrowing Base for Eligible Inventory Costs, minus, (a) the
Ratification And Amendment Agreement Reserve and (b) if applicable, additional
amounts reserved pursuant to this Agreement plus (2) the Ninth Amendment
Amortizing Advance Amount (such amount calculated pursuant to
subsection (B) being referred to