ARTICLE III OR ANY OTHER MATTERS WHICH ARE TO BE DETERMINED HEREUNDER BY A
LENDER PARTY (SUCH AS ANY EURODOLLAR RATE, ADJUSTED EURODOLLAR RATE, BUSINESS
DAY, INTEREST PERIOD, OR RESERVE REQUIREMENT) SHALL, IN THE ABSENCE OF MANIFEST
ERROR, BE CONCLUSIVE AND BINDING.
UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN OR
UNLESS REQUIRED LENDERS OTHERWISE CONSENT ALL FINANCIAL STATEMENTS AND REPORTS
FURNISHED TO ANY LENDER PARTY HEREUNDER SHALL BE PREPARED AND ALL FINANCIAL
COMPUTATIONS AND DETERMINATIONS PURSUANT HERETO SHALL BE MADE IN ACCORDANCE WITH
GAAP.
SECTION 1.6.
JOINT PREPARATION; CONSTRUCTION
OF INDEMNITIES AND RELEASES.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS HAVE
BEEN REVIEWED AND NEGOTIATED BY SOPHISTICATED PARTIES WITH ACCESS TO LEGAL
COUNSEL AND NO RULE OF CONSTRUCTION SHALL APPLY HERETO OR THERETO WHICH WOULD
REQUIRE OR ALLOW ANY LOAN DOCUMENT TO BE CONSTRUED AGAINST ANY PARTY BECAUSE OF
ITS ROLE IN DRAFTING SUCH LOAN DOCUMENT.
ALL INDEMNIFICATION AND RELEASE
PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED BROADLY (AND NOT NARROWLY) IN
FAVOR OF THE PERSONS RECEIVING INDEMNIFICATION OR BEING RELEASED.
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20
ARTICLE II
THE LOANS AND LETTERS OF CREDIT
SECTION 2.1.
COMMITMENTS TO LEND; NOTES.
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, EACH REVOLVING LENDER AGREES,
SEVERALLY AND NOT JOINTLY, TO MAKE REVOLVING LOANS TO BORROWER UPON THE REQUEST
OF BORROWER FROM TIME TO TIME DURING THE COMMITMENT PERIOD, PROVIDED THAT (A)
SUBJECT TO SECTIONS 3.3, 3.4 AND 3.6, REVOLVING LOANS OF THE SAME TYPE MADE ON
THE SAME DAY SHALL BE MADE BY REVOLVING LENDERS IN ACCORDANCE WITH THEIR
RESPECTIVE PERCENTAGE SHARES AND AS PART OF THE SAME BORROWING; (B) AFTER GIVING
EFFECT TO SUCH REVOLVING LOANS, THE REVOLVING FACILITY USAGE DOES NOT EXCEED THE
AGGREGATE COMMITMENT THEN IN EFFECT; AND (C) AFTER GIVING EFFECT TO SUCH
REVOLVING LOANS, THE AGGREGATE AMOUNT OF ALL OUTSTANDING REVOLVING LOANS AND
OUTSTANDING MATURED LC OBLIGATIONS SHALL NOT EXCEED THE BORROWING BASE.
THE
AMOUNT OF ALL REVOLVING LOANS IN ANY BORROWING MUST BE GREATER THAN OR EQUAL TO
$100,000 OR MUST EQUAL THE REMAINING AVAILABILITY UNDER THE BORROWING BASE.
THE
OBLIGATION OF BORROWER TO REPAY TO EACH REVOLVING LENDER THE AGGREGATE AMOUNT OF
ALL REVOLVING LOANS MADE BY SUCH REVOLVING LENDER, TOGETHER WITH INTEREST
ACCRUING IN CONNECTION THEREWITH, SHALL BE EVIDENCED BY ONE OR MORE PROMISSORY
NOTES MADE BY BORROWER PAYABLE TO THE ORDER OF SUCH REVOLVING LENDER IN THE
PRINCIPAL AMOUNT OF THE REVOLVING LOAN COMMITMENT OF THE APPLICABLE REVOLVING
LENDER, SUBSTANTIALLY IN THE FORM OF EXHIBIT 2.1(B) (EACH A "REVOLVING NOTE"
AND, COLLECTIVELY, THE "REVOLVING NOTES").
THE AMOUNT OF PRINCIPAL OWING ON ANY
REVOLVING NOTE AT ANY GIVEN TIME SHALL BE THE AGGREGATE AMOUNT OF ALL REVOLVING
LOANS THERETOFORE MADE BY SUCH REVOLVING LENDER MINUS ALL PAYMENTS OF PRINCIPAL
THERETOFORE RECEIVED BY SUCH REVOLVING LENDER ON SUCH REVOLVING NOTE.
INTEREST
ON EACH REVOLVING NOTE SHALL ACCRUE AND BE DUE AND PAYABLE AS PROVIDED HEREIN.
EACH REVOLVING NOTE SHALL BE DUE AND PAYABLE AS PROVIDED HEREIN, AND SHALL BE
DUE AND PAYABLE