this Agreement or Lender for the
benefit of the other Borrower or Term Borrowers, and the outstanding Loans
thereunder and hereunder reclassified or re-categorized in connection therewith
and herewith to evidence or effectuate any such reallocation and adjustment,
without constituting a novation, for any purpose, including, without limitation,
for purposes of accurately reflecting each Borrower's or Term Borrower's
relative contribution to, or allocable amount or share of, Evolving System's
Consolidated EBITDA, earnings, revenue, assets and/or liabilities.
For
clarification purposes, any such reallocation and adjustment shall require the
written consent of the Borrower, each Term Borrower, Agent, each Lender and Term
Lender and shall not, in any event, result in (a) a reduction of the aggregate
Commitments contained herein and in the Term Loan Agreement or (b) any breach of
Sections 151 to 158 of the Act.
8
2.11
MARKET DISRUPTION
(A)
IF A MARKET DISRUPTION EVENT OCCURS IN RELATION TO A LOAN, THEN
THE RATE OF INTEREST ON EACH LENDER'S SHARE OF THAT LOAN SHALL BE THE RATE PER
ANNUM WHICH IS THE SUM OF:
(I)
THE APPLICABLE MARGIN;
(II)
THE GREATER OF (A) RATE NOTIFIED TO THE AGENT BY THAT LENDER AS
SOON AS PRACTICABLE AND IN ANY EVENT BEFORE INTEREST IS DUE TO BE PAID IN
RESPECT OF THAT LOAN, TO BE THAT WHICH EXPRESSES AS A PERCENTAGE RATE PER ANNUM
THE COST TO THAT LENDER OF FUNDING ITS PARTICIPATION IN THAT LOAN FROM WHATEVER
SOURCE IT MAY REASONABLY SELECT OR (B) 3.75%; AND
(III)
ANY EUROCURRENCY RESERVE REQUIREMENT OF THE LENDERS IF
APPLICABLE.
(B)
IN THIS AGREEMENT "MARKET DISRUPTION EVENT" MEANS:
(I)
AT OR ABOUT NOON ON THE BORROWING DATE THE SCREEN RATE IS NOT
AVAILABLE TO DETERMINE THE LIBOR RATE; OR
(II)
BEFORE CLOSE OF BUSINESS IN LONDON ON THE BORROWING DATE, THE
AGENT RECEIVES NOTIFICATIONS FROM A LENDER OR LENDERS (WHOSE PARTICIPATIONS IN A
LOAN EXCEED 25 PER CENT OF THAT LOAN) THAT THE COST TO IT OF OBTAINING MATCHING
DEPOSITS IN THE RELEVANT INTERBANK MARKET WOULD BE IN EXCESS OF LIBOR.
(C)
ALTERNATIVE BASIS OF INTEREST OR FUNDING
(I)
IF A MARKET DISRUPTION EVENT OCCURS AND THE AGENT OR THE BORROWER
SO REQUIRES, THE AGENT AND THE BORROWER SHALL ENTER INTO NEGOTIATIONS (FOR A
PERIOD OF NOT MORE THAN 30 DAYS) WITH A VIEW TO AGREEING A SUBSTITUTE BASIS FOR
DETERMINING THE RATE OF INTEREST.
(II)
ANY ALTERNATIVE BASIS AGREED PURSUANT TO CLAUSE 2.11(C) SHALL,
WITH THE PRIOR CONSENT OF ALL THE LENDERS AND THE BORROWER, BE BINDING ON ALL
PARTIES.
2.12
INCREASED COSTS
(A)
(I)
SUBJECT TO CLAUSE 2.11(C) AND 2.12(D) THE BORROWER SHALL, WITHIN
THREE BUSINESS DAYS OF A DEMAND BY THE AGENT, PAY FOR THE ACCOUNT OF A LENDER
THE AMOUNT OF ANY INCREASED COSTS INCURRED BY THAT LENDER AS A RESULT OF (I) THE
INTRODUCTION OF OR ANY CHANGE IN (OR IN THE INTERPRETATION, ADMINISTRATION OR
APPLICATION OF) ANY LAW OR REGULATION OR (II) COMPLIANCE WITH ANY LAW OR
REGULATION MADE AFTER THE DATE OF THIS AGREEMENT.
(II)
IN