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This excerpt taken from the AYR 8-K filed May 5, 2008. Affected
Loans”), such Lender’s Affected Loans shall be automatically converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a conversion required by Section 4.3
hereof, on such earlier date as such Lender may specify to the Borrowers with a
copy to the Facility Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 4.3 hereof that
gave rise to such conversion no longer exist:
(a) to
the extent that such Lender’s Affected Loans have been so converted to Base Rate
Loans, all payments and prepayments of principal that would otherwise be applied
to such Lender’s Affected Loans shall be applied instead to its Base Rate Loans;
and
(b) all
Loans that would otherwise be continued by such Lender shall be continued
instead as Base Rate Loans.
If
such Lender gives notice to the Borrowers (with a copy to the Facility Agent)
that the circumstances specified in Section 4.3
hereof that gave rise to the conversion of such Lender’s Affected Loans pursuant
to this Section 4.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances,
ceasing to exist) at a time when Loans made by other Lenders are outstanding,
such Lender’s Base Rate Loans shall be automatically converted into Eurodollar
Rate Loans, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Loans and by such Lender are held
pro rata (as to principal amounts and Interest Periods) in accordance with their
respective Commitments.
4.5. Compensation. Upon the
request of any Lender, the Borrowers shall pay to such Lender such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost, or expense incurred by it as a result
of:
(a) any
payment, prepayment, or conversion to Base Rate Loan of a Eurodollar Rate Loan
for any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 4.02 of
any Intercreditor Agreement) on a date other than the last day of the Interest
Period for such Loan; or
(b) any
failure by any Borrower for any reason (including, without limitation, the
failure of any condition precedent specified in Article V to be
satisfied) to borrow, continue, or prepay a Eurodollar Rate Loan on the date for
such borrowing, conversion or prepayment specified in the relevant notice of
borrowing, prepayment or continuation under this Agreement.
4.6. Taxes.
(a) Any
and all payments by any Borrower to or for the account of any Lender or the
Facility Agent hereunder or under any other Related Document shall be made free
and clear of and without deduction or withholding for any and all Taxes, and all
liabilities with respect thereto, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the
case of each Lender and the Facility Agent, Taxes imposed on its net income or
receipts, capital, net worth or items of tax preference and
franchise,
15
doing
business and similar Taxes (imposed on it in lieu of net income taxes), imposed
on such Lender or Facility Agent that would not have been imposed but for a
present or former connection between the Facility Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising from the Facility Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Related Document). If any such
non-excluded Taxes (“ This excerpt taken from the AYR 8-K filed May 5, 2008. Affected
Loans”), such Lender’s Affected Loans shall be automatically converted
into Base Rate Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a conversion required by Section 4.3
hereof, on such earlier date as such Lender may specify to the Borrowers with a
copy to the Facility Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 4.3 hereof that
gave rise to such conversion no longer exist:
(a) to
the extent that such Lender’s Affected Loans have been so converted to Base Rate
Loans, all payments and prepayments of principal that would otherwise be applied
to such Lender’s Affected Loans shall be applied instead to its Base Rate Loans;
and
(b) all
Loans that would otherwise be continued by such Lender shall be continued
instead as Base Rate Loans.
If
such Lender gives notice to the Borrowers (with a copy to the Facility Agent)
that the circumstances specified in Section 4.3
hereof that gave rise to the conversion of such Lender’s Affected Loans pursuant
to this Section 4.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances,
ceasing to exist) at a time when Loans made by other Lenders are outstanding,
such Lender’s Base Rate Loans shall be automatically converted into Eurodollar
Rate Loans, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans, to the extent necessary so that, after giving effect
thereto, all Loans held by the Lenders holding Loans and by such Lender are held
pro rata (as to principal amounts and Interest Periods) in accordance with their
respective Commitments.
4.5. Compensation. Upon the
request of any Lender, the Borrowers shall pay to such Lender such amount or
amounts as shall be sufficient (in the reasonable opinion of such Lender) to
compensate it for any loss, cost, or expense incurred by it as a result
of:
(a) any
payment, prepayment, or conversion to Base Rate Loan of a Eurodollar Rate Loan
for any reason (including, without limitation, the acceleration of the Loans
pursuant to Section 4.02 of
any Intercreditor Agreement) on a date other than the last day of the Interest
Period for such Loan; or
(b) any
failure by any Borrower for any reason (including, without limitation, the
failure of any condition precedent specified in Article V to be
satisfied) to borrow, continue, or prepay a Eurodollar Rate Loan on the date for
such borrowing, conversion or prepayment specified in the relevant notice of
borrowing, prepayment or continuation under this Agreement.
4.6. Taxes.
(a) Any
and all payments by any Borrower to or for the account of any Lender or the
Facility Agent hereunder or under any other Related Document shall be made free
and clear of and without deduction or withholding for any and all Taxes, and all
liabilities with respect thereto, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding, in the
case of each Lender and the Facility Agent, Taxes imposed on its net income or
receipts, capital, net worth or items of tax preference and
franchise,
15
doing
business and similar Taxes (imposed on it in lieu of net income taxes), imposed
on such Lender or Facility Agent that would not have been imposed but for a
present or former connection between the Facility Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising from the Facility Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Related Document). If any such
non-excluded Taxes (“ | EXCERPTS ON THIS PAGE:
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