TO BE
UNREASONABLY WITHHELD OR DELAYED) AND FURNISHED TO THE OTHER PARTIES HERETO.
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(D)
NOTWITHSTANDING THE FOREGOING, NO INCREMENTAL FACILITY AGREEMENT SHALL
BECOME EFFECTIVE UNDER THIS SECTION 2.22 UNLESS (I) ON THE DATE OF SUCH
EFFECTIVENESS AND AFTER GIVING EFFECT TO THE MAKING OF ANY OTHER TERM LOANS
CONTEMPLATED THEREBY OR THE FULL UTILIZATION OF THE INCREMENTAL REVOLVING
COMMITMENTS CONTEMPLATED THEREBY, THE CONSOLIDATED SENIOR SECURED LEVERAGE RATIO
WOULD BE LESS THAN 3.00 TO 1.00, (II) ON THE DATE OF SUCH EFFECTIVENESS, THE
CONDITIONS SET FORTH IN PARAGRAPHS (B) AND (C) OF SECTION 4.03 SHALL BE
SATISFIED AND (III) THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED LEGAL OPINIONS,
BOARD RESOLUTIONS AND OTHER CLOSING CERTIFICATES AND DOCUMENTATION AS IT SHALL
REASONABLY REQUEST RELATING TO SUCH INCREMENTAL FACILITY, CONSISTENT WITH THOSE
DELIVERED ON THE FUNDING DATE PURSUANT TO SECTION 4.02.
THE ADMINISTRATIVE
AGENT SHALL PROMPTLY NOTIFY EACH LENDER AS TO THE EFFECTIVENESS OF EACH
INCREMENTAL FACILITY AGREEMENT.
SECTION 2.23. LOAN REPURCHASES.
(A)
SUBJECT TO THE TERMS AND CONDITIONS SET
FORTH OR REFERRED TO BELOW, THE BORROWER MAY FROM TIME TO TIME, AT ITS
DISCRETION, CONDUCT MODIFIED DUTCH AUCTIONS IN ORDER TO PURCHASE TERM LOANS OR
OTHER TERM LOANS OF ONE OR MORE CLASSES (AS DETERMINED BY THE BORROWER) (EACH, A
"PURCHASE OFFER"), EACH SUCH PURCHASE OFFER TO BE MANAGED EXCLUSIVELY BY
JPMORGAN SECURITIES INC. OR ANOTHER INVESTMENT BANK OF RECOGNIZED STANDING
SELECTED BY THE BORROWER FOLLOWING CONSULTATION WITH THE ADMINISTRATIVE AGENT
(IN SUCH CAPACITY, THE "AUCTION MANAGER"), SO LONG AS THE FOLLOWING CONDITIONS
ARE SATISFIED:
(I) EACH PURCHASE OFFER SHALL BE CONDUCTED IN ACCORDANCE WITH THE PROCEDURES,
TERMS AND CONDITIONS SET FORTH IN THIS SECTION 2.23 AND THE AUCTION PROCEDURES;
(II) NO DEFAULT OR EVENT OF DEFAULT SHALL HAVE OCCURRED AND BE CONTINUING ON THE
DATE OF THE DELIVERY OF EACH AUCTION NOTICE AND AT THE TIME OF PURCHASE OF ANY
TERM LOANS OR OTHER TERM LOANS IN CONNECTION WITH ANY PURCHASE OFFER;
(III) THE MAXIMUM PRINCIPAL AMOUNT (CALCULATED ON THE FACE AMOUNT THEREOF) OF
EACH AND ALL CLASSES OF TERM LOANS OR OTHER TERM LOANS THAT THE BORROWER OFFERS
TO PURCHASE IN ANY SUCH PURCHASE OFFER SHALL BE NO LESS THAN $15,000,000 (UNLESS
ANOTHER AMOUNT IS AGREED TO BY THE ADMINISTRATIVE AGENT) (ACROSS ALL SUCH
CLASSES);
(IV) AFTER GIVING EFFECT TO ANY PURCHASE OF TERM LOANS OR OTHER TERM LOANS OF
THE APPLICABLE CLASS OR CLASSES PURSUANT TO THIS SECTION 2.23, THE SUM OF
(X) THE AMOUNT OF AVAILABILITY UNDER THE REVOLVING FACILITY AND (Y) THE
AGGREGATE AMOUNT OF ALL UNRESTRICTED CASH AND UNRESTRICTED PERMITTED INVESTMENTS
OF THE BORROWER AND ITS SUBSIDIARIES SHALL NOT BE LESS THAN $350,000,000;
(V) THE AGGREGATE PRINCIPAL AMOUNT (CALCULATED ON THE FACE AMOUNT THEREOF) OF
ALL TERM LOANS OR OTHER TERM LOANS OF THE APPLICABLE CLASS OR CLASSES SO
PURCHASED BY THE BORROWER SHALL AUTOMATICALLY BE CANCELLED AND RETIRED BY THE
BORROWER ON THE SETTLEMENT DATE OF THE RELEVANT PURCHASE (AND MAY NOT BE
RESOLD);
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(VI) PRIOR TO COMMENCING ANY PURCHASE OFFER, THE BORROWER