NOT BY
THIS AGREEMENT WAIVING, AND HAS NO INTENTION OF WAIVING, ANY EVENTS OF DEFAULT
WHICH MAY BE CONTINUING ON THE DATE HEREOF OR ANY EVENTS OF DEFAULT WHICH MAY
OCCUR AFTER THE DATE HEREOF (WHETHER THE SAME OR SIMILAR TO THE EXISTING
DEFAULTS OR OTHERWISE), AND NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER HAS
AGREED TO FORBEAR WITH RESPECT TO ANY OF ITS RIGHTS OR REMEDIES CONCERNING ANY
OTHER EVENTS OF DEFAULT (OTHER THAN, DURING THE FORBEARANCE PERIOD, THE EXISTING
DEFAULTS TO THE EXTENT EXPRESSLY SET FORTH HEREIN), OCCURRING AT ANY TIME.
(B)
SUBJECT TO SECTION 2.2 ABOVE (SOLELY WITH RESPECT TO THE EXISTING
DEFAULTS), ADMINISTRATIVE AGENT AND EACH LENDER RESERVE THE RIGHT, IN THEIR
DISCRETION, TO EXERCISE ANY OR ALL OF THEIR RIGHTS AND REMEDIES UNDER THE CREDIT
AGREEMENT AND THE OTHER FINANCING DOCUMENTS AS A RESULT OF ANY OTHER EVENTS OF
DEFAULT OCCURRING AT ANY TIME.
NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER HAS
WAIVED ANY OF SUCH RIGHTS OR REMEDIES, AND NOTHING IN THIS AGREEMENT, AND NO
DELAY ON ITS PART IN EXERCISING ANY SUCH RIGHTS OR REMEDIES, SHOULD BE CONSTRUED
AS A WAIVER OF ANY SUCH RIGHTS OR REMEDIES.
2.4.
ADDITIONAL EVENTS OF DEFAULT.
THIS AGREEMENT SHALL BE DEEMED TO
BE A FINANCING DOCUMENT.
THE PARTIES HERETO ACKNOWLEDGE, CONFIRM AND AGREE THAT
ANY REPRESENTATION BY ANY BORROWER BEING INCORRECT IN ANY RESPECT (OR ANY
MATERIAL RESPECT IF SUCH REPRESENTATION IS NOT ALREADY QUALIFIED AS TO
MATERIALITY), OR ANY FAILURE OF ANY BORROWER TO COMPLY WITH THE COVENANTS,
CONDITIONS AND AGREEMENTS CONTAINED IN THIS AGREEMENT, ANY OTHER FINANCING
DOCUMENT OR IN ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT AT ANY TIME EXECUTED
AND/OR DELIVERED BY BORROWERS WITH, TO OR IN FAVOR OF ADMINISTRATIVE AGENT OR
ANY LENDER SHALL CONSTITUTE AN IMMEDIATE EVENT OF DEFAULT UNDER THIS AGREEMENT,
THE CREDIT AGREEMENT AND THE OTHER FINANCING DOCUMENTS.
IN THE EVENT ANY PERSON
(INCLUDING WITHOUT LIMITATION ANY HOLDER OF SUBORDINATED DEBT), OTHER THAN
ADMINISTRATIVE AGENT OR ANY LENDER, SHALL AT ANY TIME EXERCISE FOR ANY REASON
(INCLUDING, WITHOUT LIMITATION, BY REASON OF ANY EXISTING DEFAULT OR ANY OTHER
PRESENT OR FUTURE EVENT OF DEFAULT, OR OTHERWISE) ANY OF ITS RIGHTS OR REMEDIES
AGAINST ANY BORROWER OR ANY OBLIGOR PROVIDING CREDIT SUPPORT FOR ANY BORROWER'S
OBLIGATIONS TO SUCH OTHER PERSON, OR AGAINST ANY BORROWER'S OR ANY SUCH
OBLIGOR'S PROPERTIES OR ASSETS, SUCH EVENT SHALL CONSTITUTE AN IMMEDIATE EVENT
OF DEFAULT HEREUNDER AND AN IMMEDIATE EVENT OF DEFAULT UNDER THE CREDIT
AGREEMENT.
2.5.
MINIMUM EXCESS AVAILABILITY.
BORROWERS, ADMINISTRATIVE AGENT AND
LENDERS AGREE THAT UNTIL SUCH TIME, IF ANY, THAT THE EXISTING DEFAULTS HAVE BEEN
WAIVED PURSUANT
3
TO THE TERMS OF THE CREDIT AGREEMENT:
(I) AT NO TIME MAY THE AMOUNT (SUCH
AMOUNT, THE "EXCESS AVAILABILITY AMOUNT") EQUAL TO THE REVOLVING LOAN LIMIT
MINUS THE REVOLVING LOAN OUTSTANDINGS BE LESS THAN $2,000,000; AND (II) NONE OF
ADMINISTRATIVE AGENT, ANY LENDER NOR ANY OTHER PERSON SHALL BE OBLIGATED TO MAKE
LOANS OR EXTEND ANY OTHER FINANCIAL ACCOMMODATIONS TO ANY BORROWER IF AFTER
GIVING EFFECT