TERM LOAN LENDERS PURSUANT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, (II) THE MAKING OF ANY REQUEST, DEMAND,
AUTHORIZATION, DIRECTION, NOTICE, CONSENT OR WAIVER PURSUANT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, (III) THE CALCULATION OF FINANCIAL COVENANTS,
(IV) THE DETERMINATION OF REQUIRED LENDERS, OR (V) FOR ANY SIMILAR OR RELATED
PURPOSE, PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(C)
THE PARTIES HERETO HEREBY AGREE THAT ANY AUCTION AND CANCELLATION
OF LOANS WILL NOT CONSTITUTE A VOLUNTARY PREPAYMENT MADE BY THE BORROWER FOR ANY
PURPOSE UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND SHALL NOT BE
SUBJECT TO SECTIONS 5.4, 5.5, 5.11 OR 12.7.
5.19.
Auction Procedures.
(a)
In connection with an
Auction, the Borrower will provide notification to the Administrative Agent (for
distribution to the Tranche B Term Loan Lenders) of the Auction (an "Auction
Notice"), which shall be substantially in the form of Exhibit L.
Each Auction
Notice shall contain (i) the total cash value of the bid, in a minimum amount of
$5,000,000 with minimum increments of $1,000,000 (the "Auction Amount"), and
(ii) the discount to par, which shall be a range (the "Discount Range") of
percentages of the par principal amount of the Tranche B Term Loans that
represents the range of purchase prices that could be paid in the Auction.
(B)
IN CONNECTION WITH ANY AUCTION, EACH TRANCHE B TERM LOAN LENDER MAY,
IN ITS SOLE DISCRETION, PARTICIPATE IN SUCH AUCTION AND MAY PROVIDE THE
ADMINISTRATIVE AGENT WITH A NOTICE OF PARTICIPATION (THE "RETURN BID"),
SUBSTANTIALLY IN THE FORM OF EXHIBIT M, WHICH SHALL SPECIFY (I) A DISCOUNT TO
PAR THAT MUST BE EXPRESSED AS A PRICE (THE "REPLY DISCOUNT"), WHICH MUST BE
WITHIN THE DISCOUNT RANGE, AND (II) A PRINCIPAL AMOUNT OF TRANCHE B TERM LOANS
THAT SUCH LENDER IS WILLING TO OFFER FOR SALE AT ITS REPLY DISCOUNT WHICH MUST
BE IN INCREMENTS OF $500,000 (THE "REPLY AMOUNT").
A TRANCHE B TERM LOAN
LENDER MAY AVOID THE MINIMUM INCREMENT AMOUNT CONDITION SOLELY WHEN SUBMITTING A
REPLY AMOUNT EQUAL TO THE TRANCHE B TERM LOAN
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LENDER'S ENTIRE REMAINING AMOUNT OF SUCH TRANCHE B TERM LOANS.
TRANCHE B TERM
LOAN LENDERS MAY ONLY SUBMIT ONE RETURN BID PER AUCTION BUT EACH RETURN BID MAY
CONTAIN UP TO THREE COMPONENT BIDS ONLY ONE OF WHICH CAN RESULT IN A QUALIFYING
BID (AS DEFINED BELOW).
IN ADDITION TO THE RETURN BID, THE PARTICIPATING LENDER
MUST EXECUTE AND DELIVER, TO BE HELD IN ESCROW BY THE ADMINISTRATIVE AGENT, AN
ASSIGNMENT AND ACCEPTANCE. THE BORROWER WILL NOT HAVE ANY OBLIGATION TO PURCHASE
ANY TRANCHE B TERM LOANS AT A PRICE THAT IS OUTSIDE THE APPLICABLE DISCOUNT
RANGE. THE PROCESSING AND RECORDATION FEES AS SET FORTH IN SECTION 12.6 HEREOF
SHALL NOT BE APPLICABLE TO ANY AUCTIONS (IT BEING UNDERSTOOD AND AGREED THAT
OTHER FEES MAY BE APPLICABLE IN CONNECTION WITH ANY AUCTION).
(C)
BASED ON THE REPLY DISCOUNTS AND REPLY AMOUNTS RECEIVED BY THE
ADMINISTRATIVE AGENT, THE ADMINISTRATIVE AGENT, IN CONSULTATION WITH