AUCTION ON A PRO FORMA BASIS
AND (II) LIQUIDITY SHALL BE NO LESS THAN (X) $75,000,000, IF THE AUCTION IS
SCHEDULED DURING THE MONTHS OF MARCH, APRIL AND MAY OF ANY GIVEN YEAR,
(Y) $250,000,000, IF THE AUCTION IS SCHEDULED DURING THE MONTHS OF AUGUST,
SEPTEMBER, OCTOBER AND NOVEMBER OF ANY GIVEN YEAR, AND (Z) $150,000,000, IF THE
AUCTION IS SCHEDULED DURING ANY OTHER MONTH OF ANY GIVEN YEAR, EACH ON A PRO
FORMA BASIS IMMEDIATELY AFTER GIVING EFFECT TO SUCH AUCTION (ASSUMING MAXIMUM
PARTICIPATION THEREIN).
(B)
CONCURRENTLY WITH THE EFFECTIVENESS OF ANY ASSIGNMENT AND ACCEPTANCE
PURSUANT TO WHICH THE BORROWER BECOMES A LENDER HEREUNDER, ANY LOANS HELD BY THE
BORROWER SHALL BE AUTOMATICALLY CANCELLED (AND MAY NOT BE RESOLD BY THE
BORROWER) AND NO INTEREST SHALL ACCRUE ON SUCH LOANS AFTER SUCH DATE.
UPON THE
AUTOMATIC CANCELLATION OF ANY LOANS HELD BY THE
45
BORROWER, THE BORROWER SHALL NO LONGER BE A LENDER HEREUNDER AND SUCH LOANS
SHALL BE NO LONGER OUTSTANDING FOR ALL PURPOSES OF THIS AGREEMENT AND ALL OTHER
LOAN DOCUMENTS, INCLUDING, BUT NOT LIMITED TO (I) THE MAKING OF, OR THE
APPLICATION OF, ANY PAYMENTS TO THE 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 3.3, 3.4, 3.10 OR 10.7.
3.18.
Auction Procedures.
(a) In connection with an Auction, the
Borrower will provide notification to the Administrative Agent (for distribution
to the 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 Loans that represents the range of purchase prices that
could be paid in the Auction.
(B)
IN CONNECTION WITH ANY AUCTION, EACH 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 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 LENDER MAY AVOID