A MATERIAL ADVERSE CHANGE IN THE
CORPORATE STRUCTURE WITH RESPECT TO SELLER (INCLUDING, WITHOUT LIMITATION, ANY
BREACH OF THE PROVISIONS OF SECTION 12 HEREOF) OR FINANCIAL CONDITION OR
CREDITWORTHINESS, TAKEN AS A WHOLE, OF A SELLER; (B) THAT A SELLER WILL NOT MEET
OR HAS BREACHED ANY OF ITS OBLIGATIONS UNDER ANY TRANSACTION PURSUANT TO ANY OF
THE TRANSACTION DOCUMENTS; OR (C) THAT A MATERIAL ADVERSE CHANGE IN THE
FINANCIAL CONDITION OF A SELLER MAY OCCUR DUE TO THE PENDENCY OF A MATERIAL
LEGAL ACTION AGAINST A SELLER;
(VIII)
AN ACT OF INSOLVENCY SHALL HAVE OCCURRED WITH RESPECT TO A SELLER;
(IX)
ANY (A) REPRESENTATION OR WARRANTY MADE BY A SELLER SHALL HAVE
BEEN INCORRECT OR UNTRUE IN ANY MATERIAL RESPECT WHEN MADE OR REPEATED OR DEEMED
TO HAVE BEEN MADE OR REPEATED; PROVIDED, HOWEVER THAT BUYER'S REMEDY FOR A
BREACH OF A REPRESENTATION AND WARRANTY WITH RESPECT TO ANY PURCHASED LOAN SHALL
BE TO MARK SUCH PURCHASED LOAN TO MARKET; OR (B) COVENANT MADE BY A SELLER SHALL
HAVE BEEN BREACHED IN A MATERIAL RESPECT;
(X)
A FINAL JUDGMENT BY ANY COMPETENT COURT IN THE UNITED STATES OF
AMERICA FOR THE PAYMENT OF MONEY IN AN AMOUNT GREATER THAN $10,000,000 SHALL
39
HAVE BEEN RENDERED AGAINST A SELLER, AND REMAINED UNDISCHARGED OR UNPAID FOR A
PERIOD NINETY (90) DAYS, DURING WHICH PERIOD EXECUTION OF SUCH JUDGMENT IS NOT
EFFECTIVELY STAYED;
(XI)
A SELLER OR BUYER SHALL BREACH OR FAIL TO PERFORM ANY OF THE
TERMS, COVENANTS, OBLIGATIONS OR CONDITIONS OF THIS AGREEMENT, AND SUCH BREACH
OR FAILURE TO PERFORM IS NOT REMEDIED WITHIN TWENTY (20) DAYS, PROVIDED THAT ANY
FAILURE TO COMPLY WITH SECTION 11(J) MUST BE CURED WITHIN 5 DAYS (UNLESS
OTHERWISE SPECIFICALLY REFERRED TO IN THIS DEFINITION OF "EVENT OF DEFAULT");
(XII)
A SELLER SHALL HAVE DEFAULTED, SUCH DEFAULT HAVING NOT PREVIOUSLY
OCCURRED, (BEYOND APPLICABLE NOTICE AND CURE PERIOD) OR FAILED TO PERFORM UNDER
ANY OTHER NOTE, INDENTURE, LOAN AGREEMENT, GUARANTY, SWAP AGREEMENT OR ANY OTHER
CONTRACT, AGREEMENT OR TRANSACTION TO WHICH IT IS A PARTY, WHICH DEFAULT
(A) INVOLVES THE FAILURE TO PAY AN OBLIGATION IN EXCESS OF $5,000,000, OR
(B) PERMITS THE ACCELERATION OF THE MATURITY OF OBLIGATIONS IN EXCESS OF
$5,000,000 BY ANY OTHER PARTY TO OR BENEFICIARY OF SUCH NOTE, INDENTURE, LOAN
AGREEMENT, GUARANTY, SWAP AGREEMENT OR OTHER CONTRACT AGREEMENT OR TRANSACTION,
OR SELLER SHALL BREACH ANY COVENANT OR CONDITION, SHALL FAIL TO PERFORM, ADMITS
ITS INABILITY TO PERFORM OR STATE ITS INTENTION NOT TO PERFORM ITS OBLIGATIONS
UNDER ANY TRANSACTION OR IN RESPECT OF ANY REPURCHASE AGREEMENT, REVERSE
REPURCHASE AGREEMENT, SECURITIES CONTRACT OR DERIVATIVE TRANSACTION WITH ANY
PARTY;
(XIII)
SELLER AT ANY TIME FAILS TO MAINTAIN A RATIO OF SELLER'S EBITDA TO
ITS INTEREST EXPENSE COVERAGE OF MORE THAN 1.2X;
(XIV)
THE DEBT TO NET WORTH RATIO OF SELLER AT ANY TIME EXCEEDS 30:1;
(XV)
THE RATIO OF MODIFIED DEBT TO NET WORTH EXCEEDS 10:1; OR
(XVI)
THE RATIO OF MODIFIED RECOURSE DEBT TO NET WORTH EXCEEDS 5:1.
All of the