LESS THAN THE BASE RATE OPTION PROVIDED UNDER THE SENIOR INDEBTEDNESS
AGREEMENT SHALL NOT BE RESTRICTED BY THIS CLAUSE (III)), OR (IV) AMEND THE
BORROWING BASE (OR ANY COMPONENT THEREOF) TO PROVIDE THE BORROWERS THEREUNDER
WITH MORE CREDIT AVAILABILITY; PROVIDED, HOWEVER, THE SENIOR INDEBTEDNESS
AGREEMENT MAY BE AMENDED, WITHOUT LIMITATION: (A) TO PROVIDE A SEASONAL
AMENDMENT, CONSISTENT WITH PAST PRACTICES AND SUBSTANTIALLY IN THE FORM OF THE
THIRD AMENDMENT OR THE FOURTH AMENDMENT (EXCLUDING THE WAIVER OF DEFAULT
CONTAINED THEREIN), (B) TO INCREASE THE MAXIMUM AMOUNT OF CREDIT AVAILABLE UNDER
THE SENIOR INDEBTEDNESS AGREEMENT, PROVIDED THE SUM OF SUCH CREDIT AVAILABLE
UNDER THE SENIOR INDEBTEDNESS AGREEMENT AND ANY OUTSTANDING SENIOR INDEBTEDNESS,
IN THE AGGREGATE, AT ANY ONE TIME DOES NOT EXCEED $15 MILLION, AND (C) TO
REFLECT AN ASSIGNMENT OF SUCH SENIOR INDEBTEDNESS, PROVIDED, THAT SUCH ASSIGNED
SENIOR INDEBTEDNESS SHALL NOT BE HELD BY ANY ENTITY OTHER THAN AN ELIGIBLE
INSTITUTIONAL LENDER."
(DD)
"SENIOR LENDER" SHALL MEAN WELLS FARGO RETAIL FINANCE II, LLC OR SUCH
SUCCESSOR LENDER PURSUANT TO ANY OUTSTANDING SENIOR INDEBTEDNESS.
(EE)
"SUBORDINATION AGREEMENT" SHALL MEAN THAT CERTAIN SUBORDINATION
AGREEMENT WITH RESPECT TO THE SENIOR INDEBTEDNESS, BY AND AMONG WELLS FARGO
RETAIL FINANCE II, LLC AND THE HOLDER, DATED ON EVEN DATE HEREWITH, AS SUCH MAY
BE AMENDED FROM TIME TO TIME.
(FF)
"SUBSCRIPTION DATE" MEANS SEPTEMBER 15, 2006.
(GG)
"SUCCESSOR ENTITY" MEANS THE PERSON, WHICH MAY BE THE COMPANY, FORMED
BY, RESULTING FROM OR SURVIVING ANY FUNDAMENTAL TRANSACTION OR THE PERSON WITH
WHICH SUCH FUNDAMENTAL TRANSACTION SHALL HAVE BEEN MADE, PROVIDED THAT IF SUCH
PERSON IS NOT A PUBLICLY TRADED ENTITY WHOSE COMMON STOCK OR EQUIVALENT EQUITY
SECURITY IS QUOTED OR LISTED FOR TRADING ON AN ELIGIBLE MARKET, SUCCESSOR ENTITY
SHALL MEAN SUCH PERSON'S PARENT ENTITY.
(HH)
"TRADING DAY" MEANS ANY DAY ON WHICH THE COMMON STOCK ARE TRADED ON THE
PRINCIPAL MARKET, OR, IF THE PRINCIPAL MARKET IS NOT THE PRINCIPAL TRADING
MARKET FOR THE COMMON STOCK, THEN ON THE PRINCIPAL SECURITIES EXCHANGE OR
SECURITIES MARKET ON WHICH THE COMMON STOCK ARE THEN TRADED.
16
(II)
"VOTING STOCK" OF A PERSON MEANS CAPITAL STOCK OF SUCH PERSON OF THE
CLASS OR CLASSES PURSUANT TO WHICH THE HOLDERS THEREOF HAVE THE GENERAL VOTING
POWER TO ELECT, OR THE GENERAL POWER TO APPOINT, AT LEAST A MAJORITY OF THE
BOARD OF DIRECTORS, MANAGERS OR TRUSTEES OF SUCH PERSON (IRRESPECTIVE OF WHETHER
OR NOT AT THE TIME CAPITAL STOCK OF ANY OTHER CLASS OR CLASSES SHALL HAVE OR
MIGHT HAVE VOTING POWER BY REASON OF THE HAPPENING OF ANY CONTINGENCY).
(26)
DISCLOSURE. UPON RECEIPT OR DELIVERY BY THE COMPANY OF ANY NOTICE
IN ACCORDANCE WITH THE TERMS OF THIS NOTE, UNLESS THE COMPANY HAS IN GOOD FAITH
DETERMINED THAT THE MATTERS RELATING TO SUCH NOTICE DO NOT CONSTITUTE MATERIAL,
NONPUBLIC INFORMATION RELATING TO THE COMPANY OR ITS SUBSIDIARIES, THE COMPANY
SHALL WITHIN ONE (1) BUSINESS DAY AFTER ANY SUCH RECEIPT OR DELIVERY PUBLICLY
DISCLOSE SUCH MATERIAL, NONPUBLIC INFORMATION ON A CURRENT REPORT ON FORM 8-K OR
OTHERWISE. IN