INTEREST PERIOD WITH
RESPECT TO A PROPOSED LIBOR RATE LOAN OR THAT THE LIBOR APPLICABLE PURSUANT TO
SUBSECTION 1.3(A) FOR ANY REQUESTED INTEREST PERIOD WITH RESPECT TO A PROPOSED
LIBOR RATE LOAN DOES NOT ADEQUATELY AND FAIRLY REFLECT THE COST TO THE LENDERS
OF FUNDING SUCH LOAN, THE AGENT WILL FORTHWITH GIVE NOTICE OF SUCH DETERMINATION
TO THE BORROWER AND EACH LENDER.
THEREAFTER, THE OBLIGATION OF THE LENDERS TO
MAKE OR MAINTAIN LIBOR RATE LOANS HEREUNDER SHALL BE SUSPENDED UNTIL THE AGENT
REVOKES SUCH NOTICE IN WRITING.
UPON RECEIPT OF SUCH NOTICE, THE BORROWER MAY
REVOKE ANY NOTICE OF BORROWING OR NOTICE OF CONTINUATION/ CONVERSION THEN
SUBMITTED BY THE BORROWER.
IF THE BORROWER DOES NOT REVOKE SUCH NOTICE, THE
LENDERS SHALL MAKE, CONVERT OR CONTINUE THE LOANS, AS PROPOSED BY THE BORROWER,
IN THE AMOUNT SPECIFIED IN THE APPLICABLE NOTICE SUBMITTED BY THE BORROWER, BUT
SUCH LOANS SHALL BE MADE, CONVERTED OR CONTINUED AS BASE RATE LOANS.
10.6
RESERVES ON LIBOR RATE LOANS.
THE BORROWER SHALL
PAY TO EACH LENDER, AS LONG AS SUCH LENDER SHALL BE REQUIRED UNDER REGULATIONS
OF THE FEDERAL RESERVE BOARD TO MAINTAIN RESERVES WITH RESPECT TO LIABILITIES OR
ASSETS CONSISTING OF OR INCLUDING EUROCURRENCY FUNDS OR DEPOSITS (CURRENTLY
KNOWN AS "EUROCURRENCY LIABILITIES"), ADDITIONAL COSTS ON THE UNPAID PRINCIPAL
AMOUNT OF EACH LIBOR RATE LOAN EQUAL TO ACTUAL COSTS OF SUCH RESERVES ALLOCATED
TO SUCH LOAN BY SUCH LENDER (AS DETERMINED BY SUCH LENDER IN GOOD FAITH, WHICH
DETERMINATION SHALL BE CONCLUSIVE ABSENT DEMONSTRABLE ERROR), PAYABLE ON EACH
DATE ON WHICH INTEREST IS PAYABLE ON SUCH LOAN; PROVIDED THE BORROWER SHALL HAVE
RECEIVED AT LEAST FIFTEEN (15) DAYS' PRIOR WRITTEN NOTICE (WITH A COPY TO THE
AGENT) OF SUCH ADDITIONAL INTEREST FROM THE LENDER.
IF A LENDER FAILS TO GIVE
NOTICE FIFTEEN (15) DAYS PRIOR TO THE RELEVANT INTEREST PAYMENT DATE, SUCH
ADDITIONAL INTEREST SHALL BE PAYABLE FIFTEEN (15) DAYS FROM RECEIPT OF SUCH
NOTICE.
10.7
CERTIFICATES OF LENDERS.
ANY LENDER CLAIMING
REIMBURSEMENT OR COMPENSATION PURSUANT TO THIS ARTICLE X SHALL DELIVER TO THE
BORROWER (WITH A COPY TO THE AGENT) A CERTIFICATE SETTING FORTH IN REASONABLE
DETAIL THE AMOUNT PAYABLE TO SUCH LENDER HEREUNDER AND SUCH CERTIFICATE SHALL BE
CONCLUSIVE AND BINDING ON THE BORROWER IN THE ABSENCE OF MANIFEST ERROR.
10.8
SURVIVAL.
THE AGREEMENTS AND OBLIGATIONS OF THE
BORROWER IN THIS ARTICLE X SHALL SURVIVE THE PAYMENT OF ALL OTHER OBLIGATIONS.
75
ARTICLE XI - RESERVED
ARTICLE XII - DEFINITIONS
12.1
DEFINED TERMS.
THE FOLLOWING TERMS ARE DEFINED
IN THE SECTIONS OR SUBSECTIONS REFERENCED OPPOSITE SUCH TERMS:
"Accrual Period"
1.3(b)
"Affected Lender"
9.22
"Assignee"
9.8(a)
"Assignment and Acceptance"
9.8(a)(ii)
"Borrower"
Preamble
"Borrowing Base"
1.1(b)
"CapEx Commitment Fee"
1.9(d)
"CapEx Loan"
1.1(a)
"CapEx Loan Commitment"
1.1(a)
"Cash Contribution"
6.6(b)
"Commitment Fee"
1.9(b)
"Confidential Information"
9.9
"EBITDA"
Exhibit 4.2(b)
"Event of Default"
7.1
"Existing Lender"
1.3(a)
"Fee Letter"
1.9(a)
"Fixed Charge Coverage Ratio"
Exhibit 4.2(b)
"First Amendment"
Recitals
"Indemnified Person"
9.5
"Indemnified Liabilities"
9.5
"Lender"
Preamble
"Lender Letter of Credit"
1.1(c)
"Letter of Credit Participation