THE OPTION TO REQUEST LIBOR RATE LOANS
OR SWINGLINE LOANS.
THE BORROWERS SHALL PAY TO THE ADMINISTRATIVE AGENT, FOR
THE ACCOUNT OF THE LENDERS, INTEREST AT THE DEFAULT RATE ON ANY PRINCIPAL OF ANY
LOAN AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) ON ANY OTHER AMOUNT
PAYABLE BY THE BORROWERS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WHICH
IS NOT PAID IN FULL WHEN DUE (WHETHER AT STATED MATURITY, BY ACCELERATION OR
OTHERWISE), FOR THE PERIOD FROM AND INCLUDING THE DUE DATE THEREOF TO BUT
EXCLUDING THE DATE THE SAME IS PAID IN FULL.
INTEREST SHALL CONTINUE TO ACCRUE
ON THE OBLIGATIONS AFTER THE FILING BY OR AGAINST ANY BORROWER OF ANY PETITION
SEEKING ANY RELIEF IN BANKRUPTCY OR UNDER ANY ACT OR LAW PERTAINING TO
INSOLVENCY OR DEBTOR RELIEF, WHETHER STATE, FEDERAL OR FOREIGN.
(D)
INTEREST PAYMENT AND COMPUTATION.
INTEREST
ON EACH CD RATE LOAN AND EACH SWINGLINE LOAN SHALL BE DUE AND PAYABLE IN ARREARS
ON THE LAST BUSINESS DAY OF EACH CALENDAR QUARTER COMMENCING MARCH 31, 2009; AND
INTEREST ON EACH LIBOR RATE LOAN SHALL BE DUE AND PAYABLE ON THE LAST DAY OF
EACH INTEREST PERIOD APPLICABLE THERETO, AND IF SUCH INTEREST PERIOD EXTENDS
OVER THREE (3) MONTHS, AT THE END OF EACH THREE (3) MONTH INTERVAL DURING SUCH
INTEREST PERIOD.
ALL INTEREST RATES, FEES AND COMMISSIONS PROVIDED HEREUNDER
SHALL BE COMPUTED ON THE BASIS OF A 360-DAY YEAR AND ASSESSED FOR THE ACTUAL
NUMBER OF DAYS ELAPSED.
(E)
MAXIMUM RATE.
IN NO CONTINGENCY OR EVENT
WHATSOEVER SHALL THE AGGREGATE OF ALL AMOUNTS DEEMED INTEREST UNDER THIS
AGREEMENT CHARGED OR COLLECTED PURSUANT TO THE TERMS OF THIS AGREEMENT EXCEED
THE HIGHEST RATE PERMISSIBLE UNDER ANY APPLICABLE LAW WHICH A COURT OF COMPETENT
JURISDICTION SHALL, IN A FINAL DETERMINATION, DEEM APPLICABLE HERETO.
IN THE
EVENT THAT SUCH A COURT DETERMINES THAT THE LENDERS HAVE CHARGED OR RECEIVED
INTEREST HEREUNDER IN EXCESS OF THE HIGHEST APPLICABLE RATE, THE RATE IN EFFECT
HEREUNDER SHALL AUTOMATICALLY BE REDUCED TO THE MAXIMUM RATE PERMITTED BY
APPLICABLE LAW AND THE LENDERS SHALL AT THE ADMINISTRATIVE AGENT'S OPTION
(I) PROMPTLY REFUND TO THE BORROWERS ANY INTEREST RECEIVED BY THE LENDERS IN
EXCESS OF THE MAXIMUM LAWFUL RATE OR (II) APPLY SUCH EXCESS TO THE PRINCIPAL
BALANCE OF THE OBLIGATIONS ON A PRO RATA BASIS.
IT IS THE INTENT HEREOF THAT
THE BORROWERS NOT PAY OR CONTRACT TO PAY, AND THAT NEITHER THE ADMINISTRATIVE
AGENT NOR ANY LENDER RECEIVE OR CONTRACT TO RECEIVE, DIRECTLY OR INDIRECTLY IN
ANY MANNER WHATSOEVER, INTEREST IN EXCESS OF THAT WHICH MAY BE PAID BY THE
BORROWERS UNDER APPLICABLE LAW.
SECTION 4.2
NOTICE AND MANNER OF CONVERSION OR
CONTINUATION OF LOANS.
PROVIDED THAT NO DEFAULT OR EVENT OF DEFAULT HAS
OCCURRED AND IS THEN CONTINUING, THE BORROWERS SHALL HAVE
26
THE OPTION TO (A) CONVERT AT ANY TIME FOLLOWING THE THIRD BUSINESS DAY AFTER THE
CLOSING DATE ALL OR ANY PORTION OF ANY OUTSTANDING CD RATE LOANS (OTHER THAN
SWINGLINE LOANS) IN A PRINCIPAL AMOUNT