without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived by the
Borrowers, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
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SECTION 7.02 EXCLUSION OF IMMATERIAL SUBSIDIARIES
.
Solely for the purposes of determining whether an Event of Default has
occurred under clause (h), (i) or (l) of Section 7.01, any reference in any such
clause to any Subsidiary shall be deemed not to include any Immaterial
Subsidiary affected by any event or circumstance referred to in any such clause.
SECTION 7.03 HOLDINGS' RIGHT TO CURE
.
(a)
Notwithstanding anything to the contrary contained in Section 7.01, in
the event that the Borrowers fail to comply with the requirements of the ABL
Fixed Charge Coverage Ratio set forth in Section 6.11 hereof, until the
expiration of the 10th day subsequent to the date that the certificate
calculating such ABL Fixed Charge Coverage Ratio is required to be delivered
pursuant to Section 5.04(c), Holdings shall have the right to issue Permitted
Cure Securities for cash or otherwise receive cash contributions to the capital
of Holdings, and, in each case, to contribute any such cash to the capital of
the Company (collectively, the "Cure Right"), and upon the receipt by the
Company of such cash (the "Cure Amount") pursuant to the exercise by Holdings of
such Cure Right, such ABL Fixed Charge Coverage Ratio shall be recalculated
giving effect to the following pro forma adjustment:
(I)
EBITDA SHALL BE INCREASED WITH RESPECT TO SUCH APPLICABLE QUARTER
AND ANY FOUR-QUARTER PERIOD THAT CONTAINS SUCH QUARTER, SOLELY FOR THE PURPOSE
OF MEASURING THE ABL FIXED CHARGE COVERAGE RATIO AND NOT FOR ANY OTHER PURPOSE
UNDER THIS AGREEMENT, BY AN AMOUNT EQUAL TO THE CURE AMOUNT; AND
(II)
IF, AFTER GIVING EFFECT TO THE FOREGOING PRO FORMA ADJUSTMENT, THE
BORROWERS SHALL THEN BE IN COMPLIANCE WITH THE REQUIREMENTS OF THE ABL FIXED
CHARGE COVERAGE RATIO SET FORTH IN SECTION 6.11 HEREOF, THE BORROWERS SHALL BE
DEEMED TO HAVE SATISFIED THE REQUIREMENTS OF SUCH SECTION 6.11 AS OF THE
RELEVANT DATE OF DETERMINATION WITH THE SAME EFFECT AS THOUGH THERE HAD BEEN NO
FAILURE TO COMPLY THEREWITH AT SUCH DATE, AND THE APPLICABLE BREACH OR DEFAULT
OF SUCH SECTION 6.11 THAT HAD OCCURRED SHALL BE DEEMED CURED FOR THIS PURPOSES
OF THE AGREEMENT.
(B)
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, (I) IN
EACH FOUR‐FISCAL‐QUARTER PERIOD THERE SHALL BE AT LEAST ONE FISCAL QUARTER IN
WHICH THE CURE RIGHT IS NOT EXERCISED, (II) IN EACH EIGHT‐FISCAL‐QUARTER PERIOD,
THERE SHALL BE A PERIOD OF AT LEAST FOUR CONSECUTIVE FISCAL QUARTERS DURING
WHICH THE CURE RIGHT IS NOT EXERCISED, AND (III) FOR PURPOSES OF THIS
SECTION 7.03, THE CURE AMOUNT SHALL BE NO GREATER THAN THE AMOUNT REQUIRED FOR
PURPOSES OF COMPLYING WITH SECTION 6.11.
ARTICLE VIII
THE AGENTS
SECTION 8.01 APPOINTMENT
.
(A)
EACH LENDER (IN ITS CAPACITIES AS A LENDER AND THE SWINGLINE LENDER (IF
APPLICABLE) AND ON BEHALF OF ITSELF AND