Common use of Events Not Constituting Default Clause in Contracts

Events Not Constituting Default. Notwithstanding the provisions of Sections 7.01 and 7.04, (a) any breach of any representation and warranty made hereunder or under or in connection with any Loan Document, (b) any falsity of any certificate or information required to be delivered under any Loan Document or (c) any breach under Section 7.04 of this Agreement or any other Loan Document that, in the case of each of clauses (a) through (c) above, arises, directly or indirectly, out of the restatement of the consolidated financial statements of the Borrower and its Subsidiaries heretofore delivered or of the Borrower and its Subsidiaries required to be delivered to the Lenders under this Agreement (such financial statements so restated, the “Restated Financial Statements”) as a result of the historical valuation, accounting and/or processes, in each case for fiscal periods ended prior to the Amendment Effective Date, related to the investment portfolio of the Borrower and its Subsidiaries shall in no event constitute a Default or Unmatured Default under this Agreement; provided, however, that (i) the Borrower furnishes to the Lenders the Restated Financial Statements promptly after the public filing thereof (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the Borrower) and (ii) in the event of a breach described in clause (c) of this Section 7.13 consisting of any failure to deliver financial statements required by Section 6.01(a) or (b) to be delivered for periods ending after the earliest period for which financial statements are being restated (the “Subsequent Financial Statements”), (A) the Borrower furnishes to the Lenders the Subsequent Financial Statements as to which such a breach exists not later than the earlier of (x) the public filing of the corresponding financial statements of the Borrower and (y) the date that is 45 days, in the case of any delivery of financial statements for the first three fiscal quarters of any fiscal year, or 60 days, in the case of financial statements for any fiscal year, after the public filing of any Restated Financial Statements (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the Borrower), (B) during such period for which the Subsequent Financial Statements or related audit report, if applicable, required by Section 6.01(a) or (b) were not available (which period shall in no event extend beyond the dates set forth in clause (i) above), the Borrower furnishes to the Lenders, in lieu thereof, internal unaudited annual financial statements and internal unaudited quarterly financial statements within the time periods set forth in Section 6.01(a) or (b) respectively which are prepared on a consistent basis as internal unaudited financial statements prepared by the Borrower and its Subsidiaries which shall be certified by a Financial Officer as (subject to the effect of adjustments for any pending restatement, normal year-end adjustments and the absence of footnotes) fairly presenting, in all material respects, the consolidated financial condition and operations at such date and the consolidated results of operations for the period then ended, in each case of the Borrower and its Subsidiaries (it being understood that neither (x) the fact that such certification is subject to such adjustments for any pending restatement nor (y) any failure, as a result of such adjustments for any pending restatement, of such internal unaudited financial statements to fairly present, in all material respects, such consolidated financial condition and operations and consolidated results of operations shall constitute a Default or Unmatured Default under this Agreement or any other Loan Document), and (C) within one year of the date an audit report would be due under Section 6.01(a) with respect to Subsequent Financial Statements for any fiscal year, the Borrower delivers to the Lenders an audit report as required by Section 6.01(a) with respect to the applicable Subsequent Financial Statements (which audit report may include a qualification relating to any pending restatement described above and which qualified report shall not constitute a Default or Unmatured Default under this Agreement or any other Loan Document).

Events Not Constituting Default. Notwithstanding the provisions of Sections 7.01 and 7.04, (a) any breach of any representation and warranty made hereunder or under or in connection with any Loan Document, (b) any falsity of any certificate or information required to be delivered under any Loan Document or (c) any breach under Section 7.04 of this Agreement or any other Loan Document that, in the case of each of clauses (a) through (c) above, arises, directly or indirectly, out of the restatement of the consolidated financial statements of the Borrower Holdco and its Subsidiaries heretofore delivered or of the Borrower Holdco and its Subsidiaries required to be delivered to the Lenders under this Agreement (such financial statements so restated, the “Restated Financial Statements”) as a result of the historical valuation, accounting and/or processes, in each case for fiscal periods ended prior to the Amendment Effective Date, related to the investment portfolio of the Borrower Holdco and its Subsidiaries shall in no event constitute a Default or Unmatured Default under this Agreement; provided, however, that (i) the Borrower furnishes to the Lenders the Restated Financial Statements promptly after the public filing thereof (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the BorrowerHoldco) and (ii) in the event of a breach described in clause (c) of this Section 7.13 consisting of any failure to deliver financial statements required by Section 6.01(a) or (b) to be delivered for periods ending after the earliest period for which financial statements are being restated (the “Subsequent Financial Statements”), (A) the Borrower furnishes to the Lenders the Subsequent Financial Statements as to which such a breach exists not later than the earlier of (x) the public filing of the corresponding financial statements of the Borrower Holdco and (y) the date that is 45 days, in the case of any delivery of financial statements for the first three fiscal quarters of any fiscal year, or 60 days, in the case of financial statements for any fiscal year, after the public filing of any Restated Financial Statements (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the BorrowerHoldco), (B) during such period for which the Subsequent Financial Statements or related audit report, if applicable, required by Section 6.01(a) or (b) were not available (which period shall in no event extend beyond the dates set forth in clause (i) above), the Borrower furnishes to the Lenders, in lieu thereof, internal unaudited annual financial statements and internal unaudited quarterly financial statements within the time periods set forth in Section 6.01(a) or (b) respectively which are prepared on a consistent basis as internal unaudited financial statements prepared by the Borrower Holdco and its Subsidiaries which shall be certified by a Financial Officer as (subject to the effect of adjustments for any pending restatement, normal year-end adjustments and the absence of footnotes) fairly presenting, in all material respects, the consolidated financial condition and operations at such date and the consolidated results of operations for the period then ended, in each case of the Borrower Holdco and its Subsidiaries (it being understood that neither (x) the fact that such certification is subject to such adjustments for any pending restatement nor (y) any failure, as a result of such adjustments for any pending restatement, of such internal unaudited financial statements to fairly present, in all material respects, such consolidated financial condition and operations and consolidated results of operations shall constitute a Default or Unmatured Default under this Agreement or any other Loan Document), and (C) within one year of the date an audit report would be due under Section 6.01(a) with respect to Subsequent Financial Statements for any fiscal year, the Borrower delivers to the Lenders an audit report as required by Section 6.01(a) with respect to the applicable Subsequent Financial Statements (which audit report may include a qualification relating to any pending restatement described above and which qualified report shall not constitute a Default or Unmatured Default under this Agreement or any other Loan Document). Notwithstanding any of the foregoing, in no event will any Subsequent Financial Statements be delivered to the Lenders hereunder later than corresponding financial statements are delivered to the noteholders under the Note Purchase Agreement.

Events Not Constituting Default. Notwithstanding the provisions of Sections 7.01 7.1 and 7.047.4, (ai) any breach of any representation and warranty made hereunder or under or in connection with any Loan Document, (bii) any falsity of any certificate or information required to be delivered under any Loan Document or (ciii) any breach under Section 7.04 7.4 (other than such a breach arising out of a breach of Section 6.20 after the Effective Date) of this Agreement or any other Loan Document that, in the case of each of clauses (ai) through (ciii) above, arises, directly or indirectly, out of the restatement of the consolidated financial statements of the Borrower Holdco and its Subsidiaries heretofore delivered or of Holdco and its Subsidiaries or the Borrower and its Subsidiaries required to be delivered to the Lenders under this Agreement (such financial statements so restated, the “Restated Financial Statements”) as a result of (x) the historical valuation, accounting and/or processes, in each case for fiscal periods ended prior to the Amendment Effective Date, related to the investment portfolio of the Borrower Holdco and its Subsidiaries or (y) the February 11, 2008 SEC non-public inquiry to Holdco shall in no event constitute a Default or Unmatured Default under this Agreement; provided, however, that (iA) the Borrower furnishes to the Lenders the Restated Financial Statements promptly after the public filing thereof (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the BorrowerHoldco) and (iiB) in the event of a breach described in clause (ciii) of this Section 7.13 7.14 consisting of any failure to deliver financial statements required by Section 6.01(a6.1(i) or (bii) to be delivered for periods ending after the earliest period for which financial statements are being restated (the “Subsequent Financial Statements”), (A1) the Borrower furnishes to the Lenders the Subsequent Financial Statements as to which such a breach exists not later than the earlier of (x) the public filing of the corresponding financial statements of the Borrower Holdco and (y) the date that is 45 days, in the case of any delivery of financial statements for the first three fiscal quarters of any fiscal year, or 60 days, in the case of financial statements for any fiscal year, after the public filing of any Restated Financial Statements (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the BorrowerHoldco), (B2) during such period for which the Subsequent Financial Statements or related audit report, if applicable, required by Section 6.01(a6.1(i) or (bii) were not available (which period shall in no event extend beyond the dates set forth in clause (i1) above), the Borrower furnishes to the Lenders, in lieu thereof, internal unaudited annual financial statements and internal unaudited quarterly financial statements within the time periods set forth in Section 6.01(a6.1(i) or and (bii) respectively which are prepared on a consistent basis as internal unaudited financial statements prepared by Holdco and its Subsidiaries or the Borrower and its Subsidiaries Subsidiaries, as the case may be, which shall be certified by a Financial Officer as (subject to the effect of adjustments for any pending restatement, normal year-end adjustments and the absence of footnotes) fairly presenting, in all material respects, the consolidated financial condition and operations at such date and the consolidated results of operations for the period then ended, in each case of Holdco and its Subsidiaries or the Borrower and its Subsidiaries Subsidiaries, as applicable (it being understood that neither (x) the fact that such certification is subject to such adjustments for any pending restatement nor (y) any failure, as a result of such adjustments for any pending restatement, of such internal unaudited financial statements to fairly present, in all material respects, such consolidated financial condition and operations and consolidated results of operations shall constitute a Default or Unmatured Default under this Agreement or any other Loan Document), and (C3) within one year of the date an audit report would be due under Section 6.01(a6.1(i) with respect to Subsequent Financial Statements for any fiscal year, the Borrower delivers to the Lenders an audit report as required by Section 6.01(a6.1(i) with respect to the applicable Subsequent Financial Statements (which audit report may include a qualification relating to any pending restatement described above and which qualified report shall not constitute a Default or Unmatured Default under this Agreement or any other Loan Document). Notwithstanding any of the foregoing, in no event will any Subsequent Financial Statements be delivered to the Lenders hereunder later than corresponding financial statements are delivered to the noteholders under the Note Purchase Agreement.

Events Not Constituting Default. Notwithstanding the provisions of Sections 7.01 7.1 and 7.047.4, (ai) any breach of any representation and warranty made hereunder or under or in connection with any Loan Document, (bii) any falsity of any certificate or information required to be delivered under any Loan Document or (ciii) any breach under Section 7.04 7.4 (other than such a breach arising out of a breach of Section 6.20 after the Effective Date) of this Agreement or any other Loan Document that, in the case of each of clauses (ai) through (ciii) above, arises, directly or indirectly, out of the restatement of the consolidated financial statements of the Borrower Holdco and its Subsidiaries heretofore delivered or of the Borrower Holdco and its Subsidiaries required to be delivered to the Lenders under this Agreement Subsidiaries (such financial statements so restated, the “Restated Financial Statements”) as a result of the historical valuation, accounting and/or processes, in each case for fiscal periods ended prior to the Amendment Effective Date, related to the investment portfolio of the Borrower and its Subsidiaries shall in no event constitute a Default or Unmatured Default under this Agreement; provided, however, that (i) the Borrower furnishes to the Lenders the Restated Financial Statements promptly after the public filing thereof (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the Borrower) and (ii) in the event of a breach described in clause (c) of this Section 7.13 consisting of any failure to deliver financial statements required by Section 6.01(a) or (b) to be delivered for periods ending after the earliest period for which financial statements are being restated (the “Subsequent Financial Statements”), (A1) the Borrower furnishes to the Lenders the Subsequent Financial Statements as to which such a breach exists not later than the earlier of (x) the public filing of the corresponding financial statements of the Borrower Holdco and (y) the date that is 45 days, in the case of any delivery of financial statements for the first three fiscal quarters of any fiscal year, or 60 days, in the case of financial statements for any fiscal year, after the public filing of any Restated Financial Statements (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the BorrowerHoldco), (B2) during such period for which the Subsequent Financial Statements or related audit report, if applicable, required by Section 6.01(a6.1(i) or (bii) were not available (which period shall in no event extend beyond the dates set forth in clause (i1) above), the Borrower furnishes to the Lenders, in lieu thereof, internal unaudited annual financial statements and internal unaudited quarterly financial statements within the time periods set forth in Section 6.01(a6. l(i) or and (bii) respectively which are prepared on a consistent basis as internal unaudited financial statements prepared by Holdco and its Subsidiaries or the Borrower and its Subsidiaries Subsidiaries, as the case may be, which shall be certified by a Financial Officer as (subject to the effect of adjustments for any pending restatement, normal year-end adjustments and the absence of footnotes) fairly presenting, in all material respects, the consolidated financial condition and operations at such date and the consolidated results of operations for the period then ended, in each case of Holdco and its Subsidiaries or the Borrower and its Subsidiaries Subsidiaries, as applicable (it being understood that neither (x) the fact that such certification is subject to such adjustments for any pending restatement nor (y) any failure, as a result of such adjustments for any pending restatement, of such internal unaudited financial statements to fairly present, in all material respects, such consolidated financial condition and operations and consolidated results of operations shall constitute a Default or Unmatured Default under this Agreement or any other Loan Document), and (C3) within one year of the date an audit report would be due under Section 6.01(a6.1(i) with respect to Subsequent Financial Statements for any fiscal year, the Borrower delivers to the Lenders an audit report as required by Section 6.01(a6.1(i) with respect to the applicable Subsequent Financial Statements (which audit report may include a qualification relating to any pending restatement described above and which qualified report shall not constitute a Default or Unmatured Default under this Agreement or any other Loan Document). Notwithstanding any of the foregoing, in no event will any Subsequent Financial Statements be delivered to the Lenders hereunder later than corresponding financial statements are delivered to the noteholders under the Note Purchase Agreement.

Events Not Constituting Default. Notwithstanding the provisions of Sections 7.01 and 7.04, (ay) any breach of any representation and warranty made hereunder or under or in connection with any Loan Document, (bz) any falsity of any certificate or information required to be delivered under any Loan Document or (caa) any breach under Section 7.04 of this Agreement or any other Loan Document that, in the case of each of clauses (a) through (c) above, arises, directly or indirectly, out of the restatement of the consolidated financial statements of the Borrower and its Subsidiaries heretofore delivered or of the Borrower and its Subsidiaries required to be delivered to the Lenders under this Agreement (such financial statements so restated, the “Restated Financial Statements”) as a result of the historical valuation, accounting and/or processes, in each case for fiscal periods ended prior to the Amendment Effective Date, related to the investment portfolio of the Borrower and its Subsidiaries shall in no event constitute a Default or Unmatured Default under this Agreement; provided, however, that (i) the Borrower furnishes to the Lenders the Restated Financial Statements promptly after the public filing thereof (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the Borrower) and (ii) in the event of a breach described in clause (c) of this Section 7.13 consisting of any failure to deliver financial statements required by Section 6.01(a) or (b) to be delivered for periods ending after the earliest period for which financial statements are being restated (the “Subsequent Financial Statements”), (A) the Borrower furnishes to the Lenders the Subsequent Financial Statements as to which such a breach exists not later than the earlier of (x) the public filing of the corresponding financial statements of the Borrower and (y) the date that is 45 days, in the case of any delivery of financial statements for the first three fiscal quarters of any fiscal year, or 60 days, in the case of financial statements for any fiscal year, after the public filing of any Restated Financial Statements (and in the case of Restated Financial Statements of the Borrower, promptly after public filing of the corresponding restated financial statements of the Borrower), (B) during such period for which the Subsequent Financial Statements or related audit report, if applicable, required by Section 6.01(a) or (b) were not available (which period shall in no event extend beyond the dates set forth in clause (i) above), the Borrower furnishes to the Lenders, in lieu thereof, internal unaudited annual financial statements and internal unaudited quarterly financial statements within the time periods set forth in Section 6.01(a) or (b) respectively which are prepared on a consistent basis as internal unaudited financial statements prepared by the Borrower and its Subsidiaries which shall be certified by a Financial Officer as (subject to the effect of adjustments for any pending restatement, normal year-end adjustments and the absence of footnotes) fairly presenting, in all material respects, the consolidated financial condition and operations at such date and the consolidated results of operations for the period then ended, in each case of the Borrower and its Subsidiaries (it being understood that neither (x) the fact that such certification is subject to such adjustments for any pending restatement nor (y) any failure, as a result of such adjustments for any pending restatement, of such internal unaudited financial statements to fairly present, in all material respects, such consolidated financial condition and operations and consolidated results of operations shall shall constitute a Default or Unmatured Default under this Agreement or any other Loan Document), and (C) within one year of the date an audit report would be due under Section 6.01(a) with respect to Subsequent Financial Statements for any fiscal year, the Borrower delivers to the Lenders an audit report as required by Section 6.01(a) with respect to the applicable Subsequent Financial Statements (which audit report may include a qualification relating to any pending restatement described above and which qualified report shall not constitute a Default or Unmatured Default under this Agreement or any other Loan Document).