AT SUCH TIME OF COMMENCEMENT THE BORROWER REASONABLY BELIEVES THAT ALL
REQUIRED CONDITIONS SET FORTH ABOVE WHICH ARE REQUIRED TO BE SATISFIED AT THE
TIME OF THE PURCHASE OF TERM LOANS PURSUANT TO SUCH AUCTION SHALL BE SATISFIED,
THEN THE BORROWER SHALL HAVE NO LIABILITY TO ANY LENDER FOR ANY TERMINATION OF
THE RESPECTIVE AUCTION AS A RESULT OF ITS FAILURE TO
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SATISFY ONE OR MORE OF THE CONDITIONS SET FORTH ABOVE WHICH ARE REQUIRED TO BE
MET AT THE TIME WHICH OTHERWISE WOULD HAVE BEEN THE TIME OF PURCHASE OF TERM
LOANS PURSUANT TO THE RESPECTIVE AUCTION, AND ANY SUCH FAILURE SHALL NOT RESULT
IN ANY DEFAULT OR EVENT OF DEFAULT HEREUNDER.
WITH RESPECT TO ALL PURCHASES OF
TERM LOANS MADE BY THE BORROWER PURSUANT TO THIS SECTION 2.14, (X) THE BORROWER
SHALL PAY ON THE SETTLEMENT DATE OF EACH SUCH PURCHASE ALL ACCRUED AND UNPAID
INTEREST (EXCEPT TO THE EXTENT OTHERWISE SET FORTH IN THE RELEVANT OFFERING
DOCUMENTS), IF ANY, ON THE PURCHASED TERM LOANS UP TO THE SETTLEMENT DATE OF
SUCH PURCHASE AND (Y) SUCH PURCHASES (AND THE PAYMENTS MADE BY THE BORROWER AND
THE CANCELLATION OF THE PURCHASED TERM LOANS, IN EACH CASE IN CONNECTION
THEREWITH) SHALL NOT CONSTITUTE VOLUNTARY OR MANDATORY PAYMENTS OR PREPAYMENTS
FOR PURPOSES OF SECTIONS 5.01, 5.02 OR 14.06.
(C)
THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY CONSENT TO THE
AUCTIONS AND THE OTHER TRANSACTIONS CONTEMPLATED BY THIS SECTION 2.14 (PROVIDED
THAT NO LENDER SHALL HAVE AN OBLIGATION TO PARTICIPATE IN ANY SUCH AUCTIONS) AND
HEREBY WAIVE THE REQUIREMENTS OF ANY PROVISION OF THIS AGREEMENT (INCLUDING,
WITHOUT LIMITATION, SECTIONS 5.01, 5.02 AND 14.06 (IT BEING UNDERSTOOD AND
ACKNOWLEDGED THAT PURCHASES OF THE TERM LOANS BY THE BORROWER CONTEMPLATED BY
THIS SECTION 2.14 SHALL NOT CONSTITUTE INVESTMENTS BY THE BORROWER)) OR ANY
OTHER CREDIT DOCUMENT THAT MAY OTHERWISE PROHIBIT ANY AUCTION OR ANY OTHER
TRANSACTION CONTEMPLATED BY THIS SECTION 2.14.
THE AUCTION MANAGER ACTING IN
ITS CAPACITY AS SUCH HEREUNDER SHALL BE ENTITLED TO THE BENEFITS OF THE
PROVISIONS OF SECTION 13 AND SECTION 14.01 MUTATIS MUTANDIS AS IF EACH REFERENCE
THEREIN TO THE "ADMINISTRATIVE AGENT" WERE A REFERENCE TO THE AUCTION MANAGER,
AND THE ADMINISTRATIVE AGENT SHALL COOPERATE WITH THE AUCTION MANAGER AS
REASONABLY REQUESTED BY THE AUCTION MANAGER IN ORDER TO ENABLE IT TO PERFORM ITS
RESPONSIBILITIES AND DUTIES IN CONNECTION WITH EACH AUCTION.
2.15.
Open Market Purchases.
(a) Notwithstanding anything to the
contrary contained in this Credit Agreement or any other Credit Document, the
Borrower may, at any time and from time to time after the latest to occur of the
Merger Closing Date, the B-1 Conversion Date and the Syndication Date (for this
purpose, determined without regard to clause (y) thereof), make open market
purchases of Term Loans (each, an "Open Market Purchase"), so long as the
following conditions are satisfied:
(I)
NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE
CONTINUING ON THE DATE OF SUCH OPEN MARKET PURCHASE;
(II)
AFTER GIVING EFFECT TO