U.S. DOLLAR DEPOSITS ARE BEING OFFERED WILL NOT
ADEQUATELY AND FAIRLY REFLECT THE COST TO A MAJORITY IN INTEREST OF LENDERS
UNDER THE RELEVANT CREDIT FACILITY OF MAKING OR MAINTAINING THEIR EURODOLLAR
LOANS DURING SUCH INTEREST PERIOD, OR THAT REASONABLE MEANS DO NOT EXIST FOR
ASCERTAINING THE ADJUSTED LIBO RATE, THE ADMINISTRATIVE AGENT SHALL, AS SOON AS
PRACTICABLE THEREAFTER, GIVE WRITTEN OR FAX NOTICE OF SUCH DETERMINATION TO THE
BORROWER AND THE LENDERS.
IN THE EVENT OF ANY SUCH DETERMINATION, ANY REQUEST
BY THE BORROWER FOR SUCH A EURODOLLAR BORROWING PURSUANT TO SECTION 2.03 OR 2.10
SHALL, UNTIL THE ADMINISTRATIVE AGENT SHALL HAVE ADVISED THE BORROWER AND THE
LENDERS THAT THE CIRCUMSTANCES GIVING RISE TO SUCH NOTICE NO LONGER EXIST, BE
DEEMED TO BE A REQUEST FOR AN ABR BORROWING.
EACH DETERMINATION BY THE
ADMINISTRATIVE AGENT HEREUNDER SHALL BE CONCLUSIVE ABSENT MANIFEST ERROR.
SECTION 2.09. TERMINATION AND REDUCTION OF COMMITMENTS.
(A)
THE TERM LOAN
COMMITMENTS SHALL TERMINATE AT 5:00 P.M., NEW YORK CITY TIME, ON THE DATE THAT
IS FIVE MONTHS AFTER THE CLOSING DATE IF THE FUNDING DATE SHALL NOT HAVE
OCCURRED ON
43
OR PRIOR TO SUCH DATE BUT IN ANY EVENT NO LATER THAN 5:00 P.M., NEW YORK CITY
TIME, ON JULY 16, 2010.
(B)
UPON AT LEAST ONE BUSINESS DAYS' PRIOR IRREVOCABLE WRITTEN OR FAX NOTICE TO
THE ADMINISTRATIVE AGENT, THE BORROWER MAY AT ANY TIME PRIOR TO THE FUNDING DATE
IN WHOLE PERMANENTLY TERMINATE, OR FROM TIME TO TIME IN PART PERMANENTLY REDUCE,
THE TERM LOAN COMMITMENTS; PROVIDED, HOWEVER, THAT EACH PARTIAL REDUCTION OF
SUCH TERM LOAN COMMITMENTS SHALL BE IN AN INTEGRAL MULTIPLE OF $5,000,000 AND IN
A MINIMUM PRINCIPAL AMOUNT OF $5,000,000.
(C)
IF, PRIOR TO THE FUNDING DATE, THE BORROWER ISSUES PERMITTED UNSECURED
NOTES (INCLUDING FOR PROCEEDS THAT ARE DEPOSITED INTO AN ESCROW ACCOUNT PENDING
THE FUNDING DATE), THEN THE TERM LOAN COMMITMENTS SHALL AUTOMATICALLY BE REDUCED
AT THE TIME OF ANY SUCH ISSUANCE, ON A PRO RATA BASIS, BY AN AMOUNT EQUAL TO THE
NET CASH PROCEEDS OF ANY SUCH ISSUANCE.
(D)
THE BORROWER SHALL PAY TO THE ADMINISTRATIVE AGENT FOR THE ACCOUNT OF THE
LENDERS, ON THE DATE OF EACH TERMINATION OR REDUCTION OF TERM LOAN COMMITMENTS,
THE FEE ON THE AMOUNT OF THE TERM LOAN COMMITMENTS SO TERMINATED OR REDUCED
REQUIRED TO BE PAID PURSUANT TO SECTION 2.05(A)(I).
(E)
NOTHING IN THIS SECTION 2.09 SHALL PREJUDICE ANY RIGHTS THAT THE BORROWER
MAY HAVE AGAINST ANY LENDER THAT FAILS TO LEND AS REQUIRED HEREUNDER PRIOR TO
THE DATE OF TERMINATION OF ANY TERM LOAN COMMITMENT.
SECTION 2.10. CONVERSION AND CONTINUATION OF BORROWINGS.
THE BORROWER SHALL
HAVE THE RIGHT AT ANY TIME UPON PRIOR IRREVOCABLE NOTICE SUBSTANTIALLY IN THE
FORM OF EXHIBIT I TO THE ADMINISTRATIVE AGENT (A) NOT LATER THAN 11:00 A.M., NEW
YORK CITY TIME, ON THE DAY OF THE PROPOSED CONVERSION, TO CONVERT ANY EURODOLLAR
BORROWING INTO AN ABR BORROWING, (B) NOT LATER THAN 11:00 A.M., NEW YORK CITY
TIME, THREE BUSINESS DAYS PRIOR TO CONVERSION OR