provided that, if the Leverage Ratio as of the last day of the immediately
preceding four fiscal quarters was less than 5.0:1, such amount may be increased
by an amount equal to the sum of (x) $5,000,000 and (y) an amount equal to 100%
of the Applicable Amount that is Not Otherwise Applied or (ii) the refinancing
thereof with the Net Cash Proceeds of any Permitted Subordinated Indebtedness or
Eligible Equity Proceeds that are Not Otherwise Applied and (b) the conversion
of any Permitted Subordinated Indebtedness to Equity Interests (other than
Disqualified Equity Interests).
SECTION 7.15. Designated Senior Debt. Designate any Indebtedness (other than
under this Agreement and the other Loan Documents) of the Borrowers or the
Restricted Subsidiaries as "Designated Senior Indebtedness" or "Senior Secured
Financing" (or any comparable term) under, and as defined in, any Junior
Financing Documentation.
ARTICLE 8
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. Events of Default. Any of the following shall constitute an Event
of Default:
(A)
NON-PAYMENT. ANY BORROWER OR ANY OTHER LOAN PARTY FAILS TO PAY (I)
WHEN DUE (WHETHER BY SCHEDULED MATURITY, REQUIRED PREPAYMENT, ACCELERATION,
DEMAND, OR OTHERWISE), ANY AMOUNT OF PRINCIPAL OF ANY LOAN OR ANY L/C BORROWING,
OR (II) WITHIN FIVE (5) BUSINESS DAYS AFTER THE SAME BECOMES DUE, ANY INTEREST
OR ANY FEE PAYABLE PURSUANT TO SECTION 2.09 OR ANY OTHER AMOUNT PAYABLE
HEREUNDER OR WITH RESPECT TO ANY OTHER LOAN DOCUMENT; OR
(B)
SPECIFIC COVENANTS. ANY LOAN PARTY FAILS TO PERFORM OR OBSERVE ANY
TERM, COVENANT OR AGREEMENT CONTAINED IN (I) ANY OF SECTION 6.03(A), SECTION
6.05(A) (SOLELY WITH RESPECT TO THE BORROWERS) OR SECTION 6.11 OR ARTICLE 7
(PROVIDED THAT ANY EVENT OF DEFAULT UNDER SECTION 7.11 IS SUBJECT TO CURE AS
CONTEMPLATED BY THE LAST PROVISO SET FORTH IN THE DEFINITION OF "CONSOLIDATED
EBITDA"), (II) ANY OF SECTION 6.01(E), SECTION 6.03(C) AND SECTION 6.07 AND SUCH
FAILURE CONTINUES FOR TEN (10) DAYS (PROVIDED THAT WITH RESPECT TO SECTION 6.07,
IF SUCH LOAN PARTY IS MAKING GOOD FAITH EFFORTS TO CURE SUCH FAILURE, SUCH CURE
PERIOD SHALL BE THIRTY (30) DAYS), OR (III) ANY OF SECTION 6.10 AND SECTION 5 OF
THE SECURITY AGREEMENT AND SUCH FAILURE CONTINUES FOR FIVE (5) BUSINESS DAYS; OR
(C)
OTHER DEFAULTS. ANY LOAN PARTY FAILS TO PERFORM OR OBSERVE ANY
OTHER COVENANT OR AGREEMENT (NOT SPECIFIED IN SECTION 8.01(A) OR (B) ABOVE)
CONTAINED IN ANY LOAN DOCUMENT ON ITS PART TO BE PERFORMED OR OBSERVED AND SUCH
FAILURE CONTINUES FOR THIRTY (30) DAYS AFTER KNOWLEDGE OF A RESPONSIBLE OFFICER
OR NOTICE THEREOF BY THE ADMINISTRATIVE AGENT TO THE BORROWERS; OR
(D)
REPRESENTATIONS AND WARRANTIES. ANY REPRESENTATION, WARRANTY,
CERTIFICATION OR STATEMENT OF FACT MADE OR DEEMED MADE BY OR ON BEHALF OF ANY
BORROWER OR ANY OTHER LOAN PARTY HEREIN, IN ANY OTHER LOAN DOCUMENT, OR IN ANY
DOCUMENT REQUIRED TO BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH SHALL BE
INCORRECT OR MISLEADING IN ANY MATERIAL RESPECT WHEN MADE OR, AS PROVIDED IN
SECTION 4.02, DEEMED MADE; OR
(E)
CROSS-DEFAULT.