EVENT, THE LENDER MAY, UPON SUCH
NOTICE OR DEMAND AS IS SPECIFIED BY THE LOAN AGREEMENT, ANY OTHER LOAN
DOCUMENTS, THE INTERCREDITOR AGREEMENT OR APPLICABLE LAW, (I) COLLECT AND/OR
COMMENCE ANY LEGAL OR OTHER ACTION TO COLLECT ANY OR ALL OF THE OBLIGATIONS FROM
THE COMPANY AND THE SUBSIDIARIES, (II) FORECLOSE OR OTHERWISE REALIZE ON ANY OR
ALL OF THE COLLATERAL, AND/OR APPROPRIATE, SETOFF OR APPLY TO THE PAYMENT OF ANY
OR ALL OF THE OBLIGATIONS, ANY OR ALL OF THE COLLATERAL OR PROCEEDS THEREOF, AND
(III) TAKE ANY OTHER ENFORCEMENT ACTION OR OTHERWISE EXERCISE ANY OR ALL RIGHTS
AND REMEDIES PROVIDED FOR BY UNDER
3
THE LOAN AGREEMENT, ANY OTHER 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 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