EXHIBIT 10.2
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SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT ▇▇▇▇▇ FARGO RETAIL FINANCE, LLC
733344.5
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October 21, 2002
THIS SECOND AMENDMENT is made in consideration of the mutual covenants
contained herein and benefits to be derived herefrom to the September 24, 2001
Loan and Security Agreement ( the "LOAN AGREEMENT"), as amended by a certain
First Amendment dated October 29, 2001, between
▇▇▇▇▇ Fargo Retail Finance LLC (referred to therein as the
"LENDER"), a Delaware limited liability company with offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and
▇▇▇▇▇*s Corp. (referred to therein in such capacity, as the
" LEAD BORROWER"), a Delaware corporation with its principal executive
offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as agent for
the following (referred to therein individually, as a "BORROWER" and
collectively, the "BORROWERS"):
▇▇▇▇▇*s Corp.,
▇▇▇▇▇*s Operating Company,
▇▇▇▇▇*s Distribution Company,
▇▇▇▇▇*s Retail Company,
each a Delaware corporation with its principal executive offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
in consideration of the mutual covenants contained herein and benefits to be
derived herefrom.
PART 1. AMENDMENT OF LOAN AGREEMENT:
The Loan Agreement is amended as follows:
INVENTORIES, APPRAISALS, AND AUDITS
I.. The following definition is inserted in Article 1 in its
appropriate alphabetical order:
"FIRST APPRAISAL": IS DEFINED IN SECTION 5:5-8."
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II.. The definition of NRLV PERCENTAGE is hereby deleted in its
entirety and the following is inserted in its place:
"NRLV PERCENTAGE": THE PERCENTAGE OF THE COST VALUE OF THE BORROWERS'
ELIGIBLE INVENTORY THAT IS ESTIMATED TO BE RECOVERABLE IN AN ORDERLY
LIQUIDATION OF SUCH ELIGIBLE INVENTORY, NET OF LIQUIDATION EXPENSES, AS
DETERMINED FROM TIME TO TIME BY THE LENDER IN ITS REASONABLE DISCRETION
BASED UPON THE MOST RECENT APPRAISAL OBTAINED BY THE LENDER.
III.. The definition of REAPPRAISAL EVENT is hereby deleted in its
entirety.
IV.. The following definition is inserted in Article 1 in its
appropriate alphabetical order:
"CYCLE COUNT DEFICIENCY": IS DEFINED IN SECTION 5:5-8.
V.. Section 5-8 is hereby deleted in its entirety and the
following is inserted in its place:
INVENTORIES, APPRAISALS, AND AUDITS.
(a) THE LENDER, AT THE EXPENSE OF THE BORROWERS, MAY
PARTICIPATE IN AND/OR OBSERVE EACH PHYSICAL COUNT AND/OR INVENTORY OF
SO MUCH OF THE COLLATERAL AS CONSISTS OF INVENTORY WHICH IS UNDERTAKEN
ON BEHALF OF ANY BORROWER.
(b) THE BORROWERS SHALL OBTAIN (AT THE BORROWER'S EXPENSE
IN ALL INSTANCES) FINANCIAL OR SKU BASED PHYSICAL COUNTS AND/OR
INVENTORIES CONDUCTED BY SUCH INVENTORY TAKERS AS ARE SATISFACTORY TO
THE LENDER AND FOLLOWING SUCH METHODOLOGY AS IS CONSISTENT WITH THE
BORROWERS' PRACTICES IN EFFECT AT THE EXECUTION OF THIS AGREEMENT AND
AS PROVIDED IN THIS SECTION 5:5-8(b).
(i) UNLESS (X) AN EVENT OF DEFAULT HAS OCCURRED,
OR (Y) THE LENDER DETERMINES, IN THE LENDER'S REASONABLE
BUSINESS JUDGMENT, THAT THE BORROWER'S SO-CALLED "CYCLE
COUNTS" OF THE BORROWER'S INVENTORY PRODUCE INFORMATION OR
RESULTS WHICH THE LENDER DEEMS INACCURATE OR OTHERWISE
DEFICIENT (A "CYCLE COUNT DEFICIENCY"), THE BORROWERS SHALL
CAUSE THE FOLLOWING NUMBER OF SUCH COUNTS / INVENTORIES TO BE
UNDERTAKEN IN EACH TWELVE (12) MONTH PERIOD DURING WHICH THIS
AGREEMENT IS IN EFFECT:
(a) RETAIL OPERATIONS : ONE (1).
(b) DIRECT OPERATIONS (CATALOGUE AND
WEB): ONE (1).
(ii) NOTWITHSTANDING THE FOREGOING, THERE SHALL
BE DEEMED NO CYCLE COUNT DEFICIENCY PRIOR TO THE FIRST
PHYSICAL INVENTORY TAKEN SUBSEQUENT TO THE DATE HEREOF.
(iii) IF AN EVENT OF DEFAULT OCCURS, THE LIMIT ON
THE NUMBER OF SUCH COUNTS AND/OR INVENTORIES SET FORTH IN
SECTION 5:5-8(B)(I) SHALL TERMINATE AND THE LENDER MAY REQUIRE
NOT LESS THAN TWO (2) SUCH COUNTS AND/OR INVENTORIES (AT THE
EXPENSE OF THE BORROWERS IN EACH INSTANCE) AT SUCH INTERVALS
AS THE LENDER, IN ITS DISCRETION, MAY DETERMINE AS BEING
APPROPRIATE.
(iv) UPON THE DECLARATION BY THE LENDER OF A
CYCLE COUNT DEFICIENCY, ACCOMPANIED BY
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A WRITTEN NOTICE FROM THE LENDER TO THE BORROWERS SETTING
FORTH IN REASONABLE DETAIL THE BASIS FOR SUCH DECLARATION, THE
LIMIT ON THE NUMBER OF SUCH COUNTS AND/OR INVENTORIES SET
FORTH IN SECTION 5:5-8(B)(I) SHALL BE MODIFIED AS FOLLOWS:
(a) RETAIL OPERATIONS : TWO (2).
(b) DIRECT OPERATIONS (CATALOGUE AND
WEB): ONE (1).
(v) THE BORROWERS SHALL CAUSE THEIR ACCOUNTANTS
TO OBSERVE THE BORROWERS' YEAR END RETAIL OPERATIONS AND
DIRECT OPERATIONS COUNTS / INVENTORIES (AND SUCH OTHER COUNTS
/ INVENTORIES AS THE ACCOUNTANTS MAY REQUIRE SO AS TO PERMIT
THOSE ACCOUNTANTS TO EXPRESS ITS OPINION ON THE BORROWERS'
ANNUAL CONSOLIDATED FINANCIAL STATEMENT TO THE STANDARD SET
OUT IN SECTION 5:5-6(B)(I)).
(vi) THE LEAD BORROWER SHALL PROVIDE THE LENDER
WITH A COPY OF THE PRELIMINARY RESULTS OF EACH SUCH COUNT
AND/OR INVENTORY (AS WELL AS OF ANY OTHER PHYSICAL INVENTORY
UNDERTAKEN BY ANY BORROWER) WITHIN TEN (10) BUSINESS DAYS
FOLLOWING THE COMPLETION OF SUCH INVENTORY.
(vii) THE LEAD BORROWER, WITHIN THIRTY (30) DAYS
FOLLOWING THE COMPLETION OF SUCH COUNT AND/OR INVENTORY, SHALL
PROVIDE THE LENDER WITH A RECONCILIATION OF THE RESULTS OF
EACH SUCH COUNT AND/OR INVENTORY (AS WELL AS OF ANY OTHER
PHYSICAL INVENTORY UNDERTAKEN BY ANY BORROWER) AND SHALL, IN
THE CASE OF A YEAR-END INVENTORY, POST SUCH RESULTS TO THE
BORROWERS' STOCK LEDGER AND, AS APPLICABLE TO THE BORROWERS'
OTHER FINANCIAL BOOKS AND RECORDS . THE LENDER MAY USE THE
RECONCILIATION AND RESULTS OF EACH SUCH COUNT AND/OR INVENTORY
AND IMPLEMENT THEM IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
(c) THE LENDER SHALL, AT THE LENDER'S EXPENSE, CONDUCT AN
APPRAISAL OF THAT PORTION OF THE COLLATERAL CONSISTING OF INVENTORY AS
OF SEPTEMBER 30, 2002 (THE "FIRST APPRAISAL"). IN CONNECTION WITH THE
FIRST APPRAISAL, INVENTORY DEEMED BY THE BORROWERS TO BE STAGED FOR
LIQUIDATION SHALL BE, TO THE EXTENT FEASIBLE, AS DETERMINED BY THE
APPRAISER, EXCLUDED FROM "INVENTORY" FOR PURPOSES OF DETERMINING THE
NRLV PERCENTAGE(1). THE BORROWERS SHALL PROMPTLY PROVIDE TO THE LENDER
A COPY OF THE COMPREHENSIVE REPORT OF ALL SUCH INVENTORY STAGED FOR
LIQUIDATION.
(d) UNLESS AN EVENT OF DEFAULT HAS OCCURRED, AFTER THE
FIRST APPRAISAL, THE LENDER MAY OBTAIN NOT MORE THAN THREE (3)
APPRAISALS OF COLLATERAL CONSISTING OF INVENTORY, FROM TIME TO TIME IN
ANY TWELVE (12) MONTH PERIOD DURING WHICH THIS AGREEMENT IS IN EFFECT,
CONDUCTED BY SUCH APPRAISERS AS ARE SATISFACTORY TO THE LENDER (THE
FIRST TWO (2) OF WHICH IN ANY TWELVE (12) MONTH PERIOD, EXCEPT FOR THE
FIRST APPRAISAL, SHALL BE OBTAINED AT THE BORROWERS' EXPENSE). IF THE
LENDER OBTAINS A THIRD APPRAISAL AND EITHER (X) FOR EVERY CALENDAR
MONTH OTHER THAN OCTOBER, THE BORROWERS' THEN EXISTING CASH AND CASH
EQUIVALENTS AGGREGATE GREATER THAN $7,500,000.00(2), OR (Y) FOR THE
CALENDAR MONTH OF OCTOBER, NO CASH CONCENTRATION TRIGGER EVENT HAS
OCCURRED OR OCCURS, THEN THE THIRD APPRAISAL SHALL BE OBTAINED AT THE
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(1) IN ORDER TO BE SUCCESSFULLY EXCLUDED, THE INVENTORY STAGED FOR
LIQUIDATION MUST HAVE BEEN REMOVED FROM THE BORROWERS' STOCK LEDGER OR OTHERWISE
BE EXPLICITLY IDENTIFIABLE AND "SEGREGATED" FROM OTHER INVENTORY.
(2) THE LEVEL OF THE BORROWER'S CASH AND CASH EQUIVALENTS SHALL BE
MEASURED WEEKLY, AS OF THE CLOSE OF BUSINESS ON FRIDAY OF EACH WEEK. THE
BORROWER SHALL REPORT ITS THEN EXISTING CASH AND CASH EQUIVALENTS TO THE LENDER
NO LATER THAN 10:00 A.M. ON EACH TUESDAY, VIA TELECOPIER, FOR THE PERIOD ENDING
AS OF THE CLOSE OF BUSINESS FOR THE PRIOR FRIDAY. IN THE EVENT THAT THE BORROWER
FAILS TO TIMELY DELIVER THE REQUIRED REPORT, THE BORROWER'S CASH AND CASH
EQUIVALENTS SHALL BE DEEMED TO BE LESS THAN $7,500,000.00.
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LENDER'S EXPENSE AND THE RESULTS OF THE THIRD APPRAISAL SHALL BE IMPLEMENTED
OVER TIME WITH:
(1) 25% OF THE MODIFICATION TO BE
IMPLEMENTED THIRTY (30) DAYS AFTER THE EFFECTIVE
DATEOF THE APPRAISAL;
(2) 50% OF THE MODIFICATION TO BE
IMPLEMENTED SIXTY (60) DAYS AFTER THE EFFECTIVE DATE
OF THE APPRAISAL;
(3) 75% OF THE MODIFICATION TO BE
IMPLEMENTED NINETY (90) DAYS AFTER THE EFFECTIVE DATE
OF THE APPRAISAL; AND
(4) 100% OF THE MODIFICATION TO BE
IMPLEMENTED ONE-HUNDRED TWENTY (120) DAYS AFTER THE
EFFECTIVE DATE OF THE APPRAISAL.
(AS AN EXAMPLE, IF THE EFFECTIVE DATE OF THE APPRAISAL IS SEPTEMBER 30, SUCH
THAT THE ENSUING LIQUIDATION ANALYSIS COMMENCES AS OF OCTOBER 1, THEN
IMPLEMENTATION WOULD BEGIN AS OF OCTOBER 31, AND ON EACH SUCCEEDING MONTH END
THEREAFTER).
(e) IF THE LENDER OBTAINS A THIRD APPRAISAL AND EITHER
(X) FOR EVERY CALENDAR MONTH OTHER THAN OCTOBER, THE BORROWERS' THEN
EXISTING CASH AND CASH EQUIVALENTS AGGREGATE LESS THAN $7,500,000.00,
OR (Y) FOR THE CALENDAR MONTH OF OCTOBER, A CASH CONCENTRATION TRIGGER
EVENT HAS OCCURRED OR OCCURS, THEN THE THIRD APPRAISAL SHALL BE
OBTAINED AT THE BORROWER'S EXPENSE AND THE RESULTS OF THE APPRAISAL
SHALL BE IMPLEMENTED IMMEDIATELY.
(f) SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND THE
BORROWER IS NOT INDEFAULT, THE LENDER SHALL PROVIDE THE BORROWERS NOT
LESS THAN THIRTY (30) DAYS ADVANCE NOTICE OF THE PROJECTED DATES ON
WHICH THE APPRAISALS SHALL BE PERFORMED.
(g) THE LENDER MAY, IN THE LENDER'S DISCRETION, RESET THE
STANDARD INVENTORY ADVANCE RATE AND THE SPECIAL INVENTORY ADVANCE RATE
FOLLOWING THE RECEIPT OF ANY APPRAISAL, AS FOLLOWS:
(i) FOR ANY APPRAISAL OBTAINED FROM AND AFTER
THE EXECUTION OF THIS AGREEMENT THROUGH APRIL, 2003, THE
STANDARD INVENTORY ADVANCE RATE AND THE SPECIAL INVENTORY
ADVANCE RATE, AS APPLICABLE, SHALL BE ADJUSTED IN AN AMOUNT
EQUAL TO NINETY-FIVE PERCENT (95%) OF THE ROLLING THREE (3)
MONTH AVERAGE OF THE NRLV PERCENTAGE. IF THAT ADJUSTMENT WOULD
RESULT IN A STANDARD INVENTORY ADVANCE RATE AND SPECIAL
INVENTORY ADVANCE RATE OF LESS THAN SEVENTY-SEVEN PERCENT
(77%), THEN THE ADJUSTMENT SHALL BE MODIFIED BY IMPLEMENTING
ONLY THE FOLLOWING DESIGNATED PERCENTAGE OF THE CHANGE FOR THE
SPECIFIED PERIOD, BASED UPON AN AVAILABLE CASH TEST, AS SET
FORTH IN THE FOLLOWING TABLE:
PERCENT OF IMPLEMENTATION
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CASH BALANCE (AS NOV. DEC. JAN. FEB. MAR. APRIL
OF PRIOR MONTH 2002 2002 2003 2003 2003 2003
END)
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Greater than or equal to $15,000,000 0% 0% 0% 0% 0% 0%
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Greater than or equal to $10,000,000 0% 20% 40% 60% 80% 100%
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Less than or equal to $9,999,999 0% 25% 50% 75% 100% 100%
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(ii) SO LONG AS THERE HAS OCCURRED NO EVENT OF
DEFAULT, FOR ANY APPRAISALS OBTAINED AFTER APRIL, 2003, THE
STANDARD INVENTORY ADVANCE RATE AND THE SPECIAL INVENTORY
ADVANCE RATE, AS APPLICABLE, SHALL BE ADJUSTED IN AN AMOUNT
EQUAL TO NINETY-FIVE PERCENT (95%) OF THE ROLLING THREE (3)
MONTH AVERAGE OF THE NRLV.
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(iii) IF AN EVENT OF DEFAULT OCCURS, THE FOREGOING
LIMIT ON THE NUMBER OF SUCH APPRAISALS SHALL TERMINATE AND THE
LENDER MAY REQUIRE SUCH APPRAISALS (AT THE EXPENSE OF THE
BORROWERS IN EACH INSTANCE) WITH SUCH FREQUENCY AS THE LENDER,
IN ITS DISCRETION MAY DETERMINE AS BEING APPROPRIATE.
(iv) IF AS A RESULT OF THE LENDER'S OBTAINING A
NEW APPRAISAL THERE IS TO BE AN ADJUSTMENT TO THE STANDARD
INVENTORY ADVANCE RATE AND THE SPECIAL INVENTORY ADVANCE RATE,
THEN, IN EACH SUCH INSTANCE, THE ADJUSTMENT SHALL BE
IMPLEMENTED FIRST, WITH RESPECT TO THE SPECIAL INVENTORY
ADVANCE RATE, AND THEN WITH RESPECT TO THE STANDARD INVENTORY
ADVANCE RATE, SO THAT IN THE EVENT THE ADJUSTED STANDARD
INVENTORY ADVANCE RATE AND SPECIAL INVENTORY ADVANCE RATE IS
73% OR LESS, THERE SHALL BE NO SPECIAL INVENTORY ADVANCE RATE.
IF THE STANDARD INVENTORY ADVANCE RATE AND THE SPECIAL
INVENTORY ADVANCE RATE IS GREATER THAN 73%, ANY PORTION ABOVE
73% SHALL BE DEEMED THE SPECIAL INVENTORY ADVANCE RATE.
(v) IN THE EVENT THAT AN APPRAISAL RESULTS IN
THE RESETTING OF THE STANDARD INVENTORY ADVANCE RATE TO LESS
THAN 70%, THE LEAD BORROWER, ON WRITTEN NOTICE GIVEN THE
LENDER WITHIN FIFTEEN (15) DAYS OF SUCH RESETTING, MAY OBTAIN
AN APPRAISAL UNDERTAKEN BY ANOTHER APPRAISER WHICH IS
REASONABLY SATISFACTORY TO THE LENDER, THE RESULTS OF WHICH
APPRAISAL (THE "SECOND APPRAISAL") SHALL BE DELIVERED TO THE
LENDER WITHIN FIFTEEN (15) DAYS OF THE ENGAGEMENT OF THE
APPRAISER TO UNDERTAKE THE SECOND APPRAISAL.
(vi) IN THE EVENT THAT THE SECOND APPRAISAL
SUPPORTS A STANDARD INVENTORY ADVANCE RATE WHICH IS IN EXCESS
OF 70%, THEN THE LENDER, WITHIN FIFTEEN (15) DAYS FOLLOWING
THE SUCH DELIVERY OF THE SECOND APPRAISAL TO IT, MAY EITHER:
(1) RESET THE STANDARD INVENTORY
ADVANCE RATE TO A PERCENTAGE SUPPORTED BY THE SECOND
APPRAISAL; OR
(2) GIVE WRITTEN NOTICE (THE "RESET
REJECTION") OF THE LENDER'S DECLINING TO SO RESET THE
STANDARD INVENTORY ADVANCE RATE.
(vii) IN THE EVENT THAT THE LENDER ISSUES A RESET
REJECTION, THEN THE LEAD BORROWER, BY IRREVOCABLE WRITTEN
NOTICE TO THE LENDER GIVEN NO LATER THAN SEVENTY-FIVE (75)
DAYS AFTER RECEIPT OF THE RESET REJECTION, MAY SET THE
TERMINATION DATE AS A DATE WHICH IS NO MORE THAN NINETY (90)
DAYS AFTER (AND COUNTING) THE DATE OF THE GIVING OF SUCH RESET
REJECTION.
(h) THE LENDER MAY OBTAIN COMMERCIAL FINANCE FIELD
EXAMINATIONS (IN EACH EVENT, AT THE BORROWERS' EXPENSE) OF THE
BORROWERS' BOOKS AND RECORDS AS FOLLOWS:
(i) UNLESS AN EVENT OF DEFAULT HAS OCCURRED, THE
LENDER MAY NOT OBTAIN MORE THAN THREE SUCH AUDITS DURING ANY
TWELVE (12) MONTH PERIOD DURING WHICH THIS AGREEMENT IS IN
EFFECT.
(ii) IF AN EVENT OF DEFAULT OCCURS, THE LIMIT ON
FIELD AUDITS SET FORTH IN SECTION 5:5-8(d)(i) SHALL TERMINATE
AND THE LENDER MAY OBTAIN SUCH FIELD AUDITS, WITH SUCH
FREQUENCY, AS THE LENDER, IN ITS DISCRETION, MAY DETERMINE AS
BEING APPROPRIATE.
(i) IN ADDITION TO THOSE APPRAISALS AND FIELD
EXAMINATIONS WHICH THE LENDER MAY OBTAIN OR CAUSE TO BE UNDERTAKEN AT
THE BORROWERS' EXPENSE, AS PROVIDED IN SECTIONS 5:5-8(c) AND 5:5-8(d),
THE LENDER MAY OBTAIN OR CAUSE SUCH ADDITIONAL APPRAISALS AND FIELD
AUDITS TO BE UNDERTAKEN AT ITS EXPENSE WITH SUCH FREQUENCY AS THE
LENDER MAY DETERMINE.
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(j) THE LENDER FROM TIME TO TIME (IN ALL EVENTS, AT THE
BORROWERS' EXPENSE) MAY UNDERTAKE "MYSTERY SHOPPING" (SO-CALLED) VISITS
TO ALL OR ANY OF THE BORROWERS' BUSINESS PREMISES.
BORROWING BASE
VII.. The definition of Backstop L/C Collateral is hereby deleted in
its entirety and the following is inserted in its place:
"BACKSTOP L/C COLLATERAL": ON ANY DAY, ONE HUNDRED PERCENT
(100%) OF THE FAIR MARKET VALUE, AS DETERMINED BY THE LENDER
IN ITS SOLE AND EXCLUSIVE DISCRETION, OF THE THEN CONTENTS OF
ACCOUNT NO. H42-▇▇▇▇▇▇▇ MAINTAINED BY ITURF FINANCE COMPANY
WITH ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., A SECURITY INTEREST IN WHICH
HAS BEEN GRANTED TO THE LENDER, AND WHICH IS "BLOCKED" FROM
UNILATERAL WITHDRAWAL BY ITURF FINANCE COMPANY.
PART 2. RATIFICATION OF LOAN DOCUMENTS. NO CLAIMS AGAINST THE
LENDER:
(a) Except as provided herein, all terms and conditions
of the Loan Agreement and of the other Loan Documents remain in full
force and effect. Each Borrower and each Guarantor hereby ratifies,
confirms, and re-affirms all terms and provisions of the Loan
Documents.
(b) There is no basis nor set of facts on which any
amount (or any portion thereof) owed by any Borrower or Guarantor under
any Loan Document could be reduced, offset, waived, or forgiven, by
rescission or otherwise; nor is there any claim, counterclaim, off set,
or defense (or other right, remedy, or basis having a similar effect)
available to any Borrower or Guarantor with regard thereto; nor is
there any basis on which the terms and conditions of any of the
Liabilities could be claimed to be other than as stated on the written
instruments which evidence such Liabilities. To the extent that any
Borrower or Guarantor has (or ever had) any such claims against the
Lender, that Borrower or that Guarantor hereby affirmatively WAIVES and
RELEASES the same.
PART 3. MISCELLANEOUS:
(a) Terms used in this Second Amendment which are defined
in the Loan Agreement are used as so defined.
(b) This Second Amendment may be executed in several
counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which
together shall constitute one instrument.
(c) This Second Amendment expresses the entire
understanding of the parties with respect to the transactions
contemplated hereby. No prior negotiations or discussions shall limit,
modify, or otherwise affect the provisions hereof.
(d) Any determination that any provision of this Second
Amendment or any application hereof is invalid, illegal, or
unenforceable in any respect and in any
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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 provisions of this Second Amendment.
(e) The Borrowers shall pay on demand all reasonable
costs and expenses of the Agents, including, without limitation,
reasonable attorneys' fees in connection with the preparation,
negotiation, execution, and delivery of this Second Amendment, up to a
maximum amount of $10,000.00.
Except as expressly provided herein, all terms and conditions of the
Loan Agreement, as previously amended to date, shall remain in full force and
effect.
▇▇▇▇▇*S CORP.
(" LEAD BORROWER")
By_________________________________
Print Name:________________________________
Title:________________________________
▇▇▇▇▇*S CORP.
▇▇▇▇▇*S OPERATING COMPANY
▇▇▇▇▇*S DISTRIBUTION COMPANY
▇▇▇▇▇*S RETAIL COMPANY
"BORROWERS":
By_________________________________
Print Name:________________________________
Title:________________________________
▇▇▇▇▇ FARGO RETAIL FINANCE LLC
("LENDER")
By_________________________________
Print Name:________________________________
Title:________________________________
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