being understood that the amount of any such contributions shall be added to
EBITDA (or, in respect of the Fixed Charge Coverage ratio under Section 6.3,
Cash Flow) solely for the applicable test period and date of measurement and
shall not be included or considered (or credited) in the calculation of EBITDA
(or Cash Flow, as applicable) for any subsequent test period or date of
measurement.
The Borrower agrees and acknowledges that an Event of Default
shall occur immediately and automatically upon the failure of Sponsor or the
Borrower to timely comply with any of the foregoing.
50
ARTICLE VII - EVENTS OF DEFAULT
7.1
EVENT OF DEFAULT.
ANY OF THE FOLLOWING
SHALL CONSTITUTE AN "EVENT OF DEFAULT":
(A)
NON-PAYMENT.
THE BORROWER FAILS TO PAY
(I) WHEN AND AS REQUIRED TO BE PAID HEREIN, ANY AMOUNT OF PRINCIPAL OF OR
INTEREST ON ANY LOAN, INCLUDING AFTER MATURITY OF THE LOANS, WHETHER BY
ACCELERATION OR OTHERWISE, OR (II) WITHIN TEN (10) DAYS AFTER THE SAME SHALL
BECOME DUE, ANY FEE OR ANY OTHER AMOUNT PAYABLE HEREUNDER OR PURSUANT TO ANY
OTHER LOAN DOCUMENT; OR
(B)
REPRESENTATION OR WARRANTY.
ANY
REPRESENTATION, WARRANTY OR CERTIFICATION BY OR ON BEHALF OF THE BORROWER OR ANY
OF ITS SUBSIDIARIES MADE OR DEEMED MADE HEREIN, IN ANY OTHER LOAN DOCUMENT, OR
WHICH IS CONTAINED IN ANY CERTIFICATE, DOCUMENT OR FINANCIAL OR OTHER STATEMENT
BY THE BORROWER, ANY OF ITS SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE RESPONSIBLE
OFFICERS, FURNISHED AT ANY TIME UNDER THIS AGREEMENT, OR IN OR UNDER ANY OTHER
LOAN DOCUMENT, SHALL PROVE TO HAVE BEEN INCORRECT IN ANY MATERIAL RESPECT ON OR
AS OF THE DATE MADE OR DEEMED MADE; OR
(C)
SPECIFIC DEFAULTS.
THE BORROWER FAILS TO
PERFORM OR OBSERVE ANY TERM, COVENANT OR AGREEMENT CONTAINED IN ANY OF SECTIONS
4.1, 4.2(B), 4.2(D), 4.4 (OTHER THAN 4.4(C)), 4.6, 4.9, 4.13 OR ARTICLE V OR,
SUBJECT TO SECTION 6.6, ARTICLE VI HEREOF; OR
(D)
OTHER DEFAULTS.
THE BORROWER OR ANY OF ITS
SUBSIDIARIES FAILS TO PERFORM OR OBSERVE ANY OTHER TERM, COVENANT OR AGREEMENT
CONTAINED IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, AND SUCH DEFAULT SHALL
CONTINUE UNREMEDIED FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EARLIER TO OCCUR
OF (I) THE DATE UPON WHICH A RESPONSIBLE OFFICER BECOMES AWARE OF SUCH DEFAULT
AND (II) THE DATE UPON WHICH WRITTEN NOTICE THEREOF IS GIVEN TO THE BORROWER BY
THE AGENT OR REQUIRED LENDERS; OR
(E)
CROSS-DEFAULT.
(I) THE BORROWER OR ANY OF
ITS SUBSIDIARIES (A) FAILS TO MAKE ANY PAYMENT IN RESPECT OF ANY INDEBTEDNESS
(OTHER THAN THE OBLIGATIONS) OR CONTINGENT OBLIGATION HAVING AN AGGREGATE
PRINCIPAL AMOUNT (INCLUDING UNDRAWN COMMITTED OR AVAILABLE AMOUNTS AND INCLUDING
AMOUNTS OWING TO ALL CREDITORS UNDER ANY COMBINED OR SYNDICATED CREDIT
ARRANGEMENT) OF MORE THAN $1,000,000 WHEN DUE (WHETHER BY SCHEDULED MATURITY,
REQUIRED PREPAYMENT, ACCELERATION, DEMAND, OR OTHERWISE) AND SUCH FAILURE
CONTINUES AFTER THE APPLICABLE GRACE OR NOTICE PERIOD, IF ANY, SPECIFIED IN THE
DOCUMENT RELATING THERETO ON THE DATE OF SUCH FAILURE; OR (B) FAILS