less than 0.75 to 1.0,
but greater than 0.5 to 1.0
1.00
%
3.25
%
Level 6
Equal to or less than 0.5 to 1.0
1.50
%
3.75
%
ALL ADJUSTMENTS IN THE APPLICABLE MARGINS SHALL BE IMPLEMENTED QUARTERLY ON A
PROSPECTIVE BASIS, COMMENCING WITH THE FIRST DAY OF THE FIRST CALENDAR MONTH
THAT OCCURS MORE THAN 5 DAYS AFTER THE RECEIPT BY THE LENDER OF THE QUARTERLY
UNAUDITED OR ANNUAL DRAFT AUDITED (AS APPLICABLE) FINANCIAL STATEMENTS
EVIDENCING THE NEED FOR AN ADJUSTMENT.
CONCURRENTLY WITH THE DELIVERY OF ALL
QUARTERLY FINANCIAL STATEMENTS, MEADE SHALL DELIVER TO THE LENDER A CERTIFICATE,
SIGNED BY ITS CHIEF FINANCIAL OFFICER, SETTING FORTH IN REASONABLE DETAIL THE
BASIS FOR THE CONTINUANCE OF, OR ANY CHANGE IN, THE APPLICABLE MARGINS.
FAILURE
TO TIMELY DELIVER SUCH FINANCIAL STATEMENTS SHALL, IN ADDITION TO ANY OTHER
REMEDY PROVIDED FOR IN THIS AGREEMENT, RESULT IN AN INCREASE IN THE APPLICABLE
MARGINS TO THE HIGHEST LEVEL SET FORTH IN THE FOREGOING GRID, UNTIL THE FIRST
DAY OF THE FIRST CALENDAR MONTH FOLLOWING THE DELIVERY OF THOSE FINANCIAL
STATEMENTS DEMONSTRATING THAT SUCH AN INCREASE IS NOT REQUIRED.
IF A DEFAULT OR
EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING AT THE TIME ANY REDUCTION IN THE
APPLICABLE MARGINS IS TO BE IMPLEMENTED, NO REDUCTION MAY OCCUR UNTIL THE FIRST
DAY OF THE FIRST CALENDAR MONTH FOLLOWING THE DATE ON WHICH SUCH DEFAULT OR
EVENT OF DEFAULT IS WAIVED IN WRITING BY THE LENDER OR CURED (TO THE EXTENT
EXPRESSLY PERMITTED HEREUNDER TO BE CURED AND WITHIN THE TIME FRAME SO PROVIDED
FOR SUCH CURE).
IN THE EVENT THAT ANY AUDITED FINANCIAL STATEMENTS FILED WITH THE SEC VARY FROM
THE DRAFT OR INTERNALLY PREPARED FINANCIAL STATEMENTS USED TO CALCULATE THE
APPLICABLE MARGIN FOR ANY PERIOD, THEN ANY RESULTING CHANGE IN THE APPLICABLE
MARGIN EVIDENCED BY THE AUDITED FINANCIAL STATEMENTS FOR SUCH PERIOD SHALL BE
MADE RETROACTIVELY TO THE DATE WHEN THE INCORRECT APPLICABLE MARGIN WAS
IMPLEMENTED.
IF, AS A RESULT OF ANY RESTATEMENT OF OR OTHER ADJUSTMENT TO ANY
FINANCIAL STATEMENTS OR FOR ANY OTHER REASON, THE LENDER
2
DETERMINES IN ITS JUDGMENT, REASONABLY EXERCISED, THAT (A) THE FIXED CHARGE
COVERAGE RATIO AS CALCULATED BY MEADE AS OF ANY APPLICABLE DATE WAS INACCURATE
AND (B) A PROPER CALCULATION OF THE FIXED CHARGE COVERAGE RATIO WOULD HAVE
RESULTED IN DIFFERENT PRICING FOR ANY PERIOD, THEN (I) IF THE PROPER CALCULATION
OF THE FIXED CHARGE COVERAGE RATIO WOULD HAVE RESULTED IN HIGHER PRICING FOR
SUCH PERIOD, THE BORROWERS SHALL AUTOMATICALLY AND RETROACTIVELY BE OBLIGATED TO
PAY TO THE LENDER, PROMPTLY ON DEMAND BY THE LENDER, AN AMOUNT EQUAL TO THE
EXCESS OF THE AMOUNT OF INTEREST AND FEES THAT SHOULD HAVE BEEN PAID FOR SUCH
PERIOD OVER THE AMOUNT OF INTEREST AND FEES ACTUALLY PAID FOR SUCH PERIOD; AND
(II) IF THE PROPER CALCULATION OF THE FIXED CHARGE COVERAGE RATIO WOULD HAVE
RESULTED IN LOWER PRICING FOR SUCH PERIOD, THE LENDER SHALL HAVE NO OBLIGATION
TO REPAY ANY INTEREST OR FEES TO THE BORROWERS