VIII OF THE LOAN AGREEMENT AND THIS AGREEMENT, AND (III)
AGREE THAT THE TERMS AND CONDITIONS OF THE LOAN AGREEMENT SHALL CONTINUE IN FULL
FORCE AND EFFECT AS SUPPLEMENTED BY THIS AGREEMENT.
THE AGENTS AND LENDERS
HEREBY CONSENT TO THE FORMATION OF GOOD BUYS AND THE JOINDER OF GOOD BUYS AS A
BORROWER AND AGREE THAT THE BORROWERS SHALL NOT BE DEEMED TO BE IN VIOLATION OF
ANY COVENANT UNDER THE LOAN AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE
RESTRICTIONS ON INVESTMENTS IN SECTION 4.20 THEREOF OR AFFILIATE TRANSACTIONS IN
SECTION 4.24 THEREOF) BY VIRTUE OF HAVING FORMED GOOD BUYS.
SECTION 4.
AVERAGE AVAILABILITY.
FOR PURPOSES OF DETERMINING THE
APPROPRIATE INDEX MARGIN AND BASE MARGIN TO BE USED FOR EACH FISCAL QUARTER
UNDER THE MARGIN PRICING GRID SET FORTH IN SECTION 2.11(F) OF THE LOAN
AGREEMENT, AVERAGE AVAILABILITY SHOULD BE DETERMINED AS FOLLOWS.
"AVERAGE
AVAILABILITY" FOR EACH IMMEDIATELY PRECEDING FISCAL QUARTER SHALL BE EQUAL TO
THE BORROWERS' AGGREGATE DAILY AVAILABILITY FOR SUCH FISCAL QUARTER DIVIDED BY
THE TOTAL NUMBER OF DAYS IN SUCH IMMEDIATELY PRECEDING FISCAL QUARTER.
THIS
CALCULATION SHALL BE MADE ON OR BEFORE THE FIRST BUSINESS DAY OF EACH OF
BORROWERS' FISCAL QUARTERS COMMENCING WITH THE FISCAL QUARTER STARTING ON AUGUST
5, 2002.
SECTION 5.
MISCELLANEOUS.
(A)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON
GOOD BUYS AND THE OTHER BORROWERS AND EACH OF GOOD BUYS AND THE OTHER BORROWER'S
REPRESENTATIVES, SUCCESSORS, AND ASSIGNES AND SHALL ENURE TO THE BENEFIT OF THE
AGENTS AND LENDERS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
(B)
SEVERABILITY.
ANY DETERMINATION THAT ANY PROVISION OF THIS
AGREEMENT OR ANY APPLICATION THEREOF IS INVALID, ILLEGAL, OR UNENFORCEABLE IN
ANY RESPECT IN ANY INSTANCE SHALL NOT AFFECT THE VALIDITY, LEGALITY, OR
ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER INSTANCE, OR THE VALIDITY,
LEGALITY, OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT.
(C)
AMENDMENTS; COURSE OF DEALING.
THIS AGREEMENT, THE LOAN
AGREEMENT AND THE OTHER LOAN DOCUMENTS INCORPORATE ALL DISCUSSIONS AND
NEGOTIATIONS BETWEEN GOOD BUYS, THE BORROWER, THE AGENTS AND THE LENDERS, EITHER
EXPRESS OR IMPLIED, CONCERNING THE MATTERS INCLUDED HEREIN AND IN SUCH OTHER
INSTRUMENTS, ANY CUSTOM, USAGE, OR COURSE OF DEALINGS TO THE CONTRARY
NOTWITHSTANDING.
NO SUCH DISCUSSIONS, NEGOTIATIONS, CUSTOM, USAGE, OR COURSE OF
DEALINGS SHALL LIMIT, MODIFY, OR OTHERWISE AFFECT THE PROVISIONS THEREOF.
NO
FAILURE BY THE AGENTS OR LENDERS TO GIVE NOTICE TO THE BORROWERS' HAVING FAILED
TO OBSERVE AND COMPLY WITH ANY WARRANTY OR COVENANT INCLUDED IN THE LOAN
AGREEMENT OR ANY LOAN DOCUMENT SHALL CONSTITUTE A WAIVER OF SUCH WARRANTY OR
COVENANT OR THE AMENDMENT OF THE LOAN AGREEMENT OR SUBJECT LOAN DOCUMENT.
NO FURTHER CONSENT, MODIFICATION, AMENDMENT, OR WAIVER OF ANY PROVISION OF THE
LOAN AGREEMENT OR OTHER LOAN DOCUMENT SHALL BE EFFECTIVE UNLESS EXECUTED IN
WRITING BY OR ON BEHALF OF THE PARTY TO BE CHARGED WITH SUCH MODIFICATION,
AMENDMENT, OR WAIVER (AND IF SUCH PARTY IS AN AGENT OR LENDER, THEN BY A DULY
AUTHORIZED OFFICER THEREOF).
ANY MODIFICATION, AMENDMENT, OR WAIVER PROVIDED BY
THE AGENTS