convenience of reference only and shall
not affect the interpretation of this Agreement.
This Agreement and other Loan
Documents may use several different limitations, tests or measurements to
regulate the same or similar matters.
All such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their
terms.
This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Administrative
Agent, the Company and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Lenders or the
Administrative Agent merely because of the Administrative Agent's or Lenders'
involvement in their preparation.
The terms "Lender" and "Administrative Agent"
include their respective successors.
1.3
Accounting Principles.
(A)
UNLESS THE CONTEXT OTHERWISE CLEARLY REQUIRES, ALL ACCOUNTING
TERMS NOT EXPRESSLY DEFINED HEREIN SHALL BE CONSTRUED, AND ALL FINANCIAL
COMPUTATIONS REQUIRED UNDER THIS AGREEMENT SHALL BE MADE, IN ACCORDANCE WITH
GAAP, CONSISTENTLY APPLIED.
REFERENCES TO "CONSOLIDATED", WHEN IT PRECEDES ANY
ACCOUNTING TERM, MEANS SUCH TERM AS IT WOULD APPLY TO THE COMPANY AND ITS
SUBSIDIARIES ON A CONSOLIDATED BASIS, DETERMINED IN ACCORDANCE WITH GAAP.
27
(B)
REFERENCES HEREIN TO "FISCAL YEAR" AND "FISCAL QUARTER" REFER TO
SUCH FISCAL PERIODS OF THE COMPANY.
ARTICLE II
THE CREDIT
2.1
Amounts and Terms of the Commitments.
(A)
EACH LENDER SEVERALLY AGREES, ON THE TERMS AND CONDITIONS SET
FORTH HEREIN, TO MAKE REVOLVING CREDIT LOANS TO THE COMPANY FROM TIME TO TIME ON
ANY BUSINESS DAY DURING THE PERIOD FROM THE EFFECTIVE TIME TO THE TERMINATION
DATE (TOGETHER WITH ANY CONVERSIONS OR CONTINUATIONS THEREOF, "LOANS"), SO LONG
AS, AS OF THE TIME AT WHICH THE REQUESTED LOAN IS TO BE MADE AND AFTER GIVING
EFFECT TO SUCH BORROWING, (I) THE AGGREGATE AMOUNT OF ALL LOANS BY SUCH LENDER
AT SUCH TIME DOES NOT EXCEED SUCH LENDER'S PRO RATA SHARE OF THE AGGREGATE
AMOUNT OF LOANS OF ALL LENDERS AT SUCH TIME, AND (II) THE AGGREGATE AMOUNT OF
SUCH LENDER'S LOANS AND SUCH LENDER'S PRO RATA SHARE OF THE LC OBLIGATION
OUTSTANDING AT SUCH TIME DOES NOT EXCEED SUCH LENDER'S COMMITMENT.
SUBJECT TO
THE TERMS AND CONDITIONS HEREOF, UNTIL THE TERMINATION DATE, THE COMPANY MAY
BORROW, REPAY, AND REBORROW LOANS HEREUNDER.
(B)
IF REQUESTED BY ANY LENDER, THE OBLIGATION OF THE COMPANY TO REPAY
TO SUCH LENDER THE AGGREGATE AMOUNT OF ALL LOANS MADE BY SUCH LENDER, TOGETHER
WITH INTEREST ACCRUING IN CONNECTION THEREWITH, SHALL BE EVIDENCED BY A SINGLE
NOTE MADE BY THE COMPANY PAYABLE TO THE ORDER OF SUCH LENDER.
THE AMOUNT OF
PRINCIPAL OWING ON ANY LENDER'S NOTE AT ANY GIVEN TIME SHALL BE THE AGGREGATE
AMOUNT OF ALL LOANS THERETOFORE MADE BY SUCH LENDER MINUS ALL PAYMENTS OF
PRINCIPAL THERETOFORE RECEIVED BY SUCH LENDER ON SUCH NOTE.
INTEREST ON EACH
NOTE SHALL ACCRUE AND BE DUE AND PAYABLE AS PROVIDED HEREIN AND THEREIN.
(C)
SUBJECT TO THE TERMS AND CONDITIONS OF SECTION 2.13 BELOW AND
RELYING UPON THE REPRESENTATIONS AND WARRANTIES HEREIN SET