BONDED, DISCHARGED OR STAYED PENDING APPEAL, OR ARE NOT
DISCHARGED WITHIN SIXTY (60) DAYS AFTER THE EXPIRATION OF SUCH STAY; PROVIDED,
HOWEVER, THAT ANY JUDGMENT WHICH IS COVERED BY INSURANCE OR AN INDEMNITY FROM A
CREDIT WORTHY PARTY SHALL NOT BE INCLUDED IN
9
CALCULATING THE $250,000 AMOUNT SET FORTH ABOVE SO LONG AS THE COMPANY PROVIDES
THE HOLDER A WRITTEN STATEMENT FROM SUCH INSURER OR INDEMNITY PROVIDER (WHICH
WRITTEN STATEMENT SHALL BE REASONABLY SATISFACTORY TO THE HOLDER) TO THE EFFECT
THAT SUCH JUDGMENT IS COVERED BY INSURANCE OR AN INDEMNITY AND THE COMPANY WILL
RECEIVE THE PROCEEDS OF SUCH INSURANCE OR INDEMNITY WITHIN THIRTY (30) DAYS OF
THE ISSUANCE OF SUCH JUDGMENT;
(VII)
OTHER THAN AS SPECIFICALLY SET FORTH IN ANOTHER
CLAUSE OF THIS SECTION 4(A), THE COMPANY BREACHES ANY REPRESENTATION, WARRANTY,
COVENANT OR OTHER TERM OR CONDITION OF ANY TRANSACTION DOCUMENT, EXCEPT, IN THE
CASE OF A BREACH OF A COVENANT OR OTHER TERM OR CONDITION OF ANY TRANSACTION
DOCUMENT WHICH IS CURABLE, ONLY IF SUCH BREACH CONTINUES FOR A PERIOD OF AT
LEAST TEN (10) CONSECUTIVE BUSINESS DAYS;
(VIII)
ANY BREACH OR FAILURE IN ANY RESPECT TO COMPLY
WITH EITHER OF SECTIONS 8 OR 14 OF THIS NOTE;
(IX)
THE COMPANY OR ANY SUBSIDIARY SHALL FAIL TO
PERFORM OR COMPLY WITH ANY COVENANT OR AGREEMENT CONTAINED IN ANY SECURITY
AGREEMENT TO WHICH IT IS A PARTY OR ANY PLEDGE AGREEMENT TO WHICH IT IS A PARTY;
(X)
ANY MATERIAL PROVISION OF ANY SECURITY
DOCUMENT (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT, AS DETERMINED BY THE
COLLATERAL AGENT, SHALL AT ANY TIME FOR ANY REASON (OTHER THAN PURSUANT TO THE
EXPRESS TERMS THEREOF) CEASE TO BE VALID AND BINDING ON OR ENFORCEABLE AGAINST
THE COMPANY OR ANY SUBSIDIARY INTENDED TO BE A PARTY THERETO, OR THE VALIDITY OR
ENFORCEABILITY THEREOF SHALL BE CONTESTED BY ANY PARTY THERETO, OR A PROCEEDING
SHALL BE COMMENCED BY THE COMPANY OR ANY SUBSIDIARY OR ANY GOVERNMENTAL
AUTHORITY HAVING JURISDICTION OVER ANY OF THEM, SEEKING TO ESTABLISH THE
INVALIDITY OR UNENFORCEABILITY THEREOF, OR THE COMPANY OR ANY SUBSIDIARY SHALL
DENY IN WRITING THAT IT HAS ANY LIABILITY OR OBLIGATION PURPORTED TO BE CREATED
UNDER ANY SECURITY DOCUMENT;
(XI)
ANY SECURITY DOCUMENT, AFTER DELIVERY
THEREOF PURSUANT HERETO, SHALL FOR ANY REASON FAIL OR CEASE TO CREATE A VALID
AND PERFECTED AND, EXCEPT TO THE EXTENT PERMITTED BY THE TERMS HEREOF OR
THEREOF, FIRST PRIORITY LIEN IN FAVOR OF THE COLLATERAL AGENT FOR THE BENEFIT OF
THE HOLDERS OF THE NOTES ON ANY COLLATERAL (AS DEFINED IN THE SECURITY
DOCUMENTS) PURPORTED TO BE COVERED THEREBY;
(XII)
ANY MATERIAL DAMAGE TO, OR LOSS, THEFT OR
DESTRUCTION OF, ANY COLLATERAL, WHETHER OR NOT INSURED, OR ANY STRIKE, LOCKOUT,
LABOR DISPUTE, EMBARGO, CONDEMNATION, ACT OF GOD OR PUBLIC ENEMY, OR OTHER
CASUALTY WHICH CAUSES, FOR MORE THAN FIFTEEN (15) CONSECUTIVE DAYS, THE
CESSATION OR SUBSTANTIAL CURTAILMENT OF REVENUE PRODUCING ACTIVITIES AT ANY
FACILITY OF THE COMPANY OR ANY SUBSIDIARY, IF ANY SUCH EVENT OR CIRCUMSTANCE
COULD REASONABLY