THIS AGREEMENT, (C) DEFAULT BY THE BORROWER IN
MAKING ANY PREPAYMENT AFTER THE BORROWER HAS GIVEN A NOTICE THEREOF IN
ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT OR (D) THE MAKING BY THE
BORROWER OF A PREPAYMENT OR CONVERSION OF LIBOR LOANS ON A DAY WHICH IS NOT THE
LAST DAY OF AN INTEREST PERIOD WITH RESPECT THERETO (INCLUDING ANY PREPAYMENT
REQUIRED AS A RESULT OF ACCELERATION OF THE LOANS UNDER ARTICLE 7).
A LENDER'S
CERTIFICATE AS TO SUCH LIABILITY, LOSS OR EXPENSE SHALL BE DEEMED CONCLUSIVE,
ABSENT MANIFEST ERROR.
THIS COVENANT SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT, THE EXPIRATION OF THE LETTERS OF CREDIT AND THE PAYMENT OF THE NOTES
AND ALL OTHER AMOUNTS PAYABLE HEREUNDER.
2.16
MITIGATION OF COSTS.
IF ANY LENDER, BY CHANGING ITS APPLICABLE
LENDING OFFICE OR TAKING ANY OTHER REASONABLE ACTION, SO LONG AS MAKING SUCH
CHANGE OR TAKING SUCH OTHER ACTION IS NOT DISADVANTAGEOUS TO IT IN ANY
FINANCIAL, REGULATORY OR OTHER RESPECT, CAN MITIGATE ANY ADVERSE EFFECT ON THE
BORROWER UNDER SECTION 2.12, 2.13 OR 2.14, SUCH LENDER SHALL TAKE SUCH ACTION.
2.17
UNUSED COMMITMENT FEES.
THE BORROWER AGREES TO PAY TO THE AGENT,
FOR THE ACCOUNT OF THE REVOLVING LOAN LENDERS, AN UNUSED COMMITMENT FEE TO BE
SHARED PRO RATA AMONG THE REVOLVING LOAN LENDERS FOR THE PERIOD FROM AND
INCLUDING THE CLOSING DATE TO BUT EXCLUDING THE REVOLVING LOAN COMMITMENT
EXPIRATION DATE, BASED ON THE AGGREGATE AMOUNT, FOR EACH DAY DURING SUCH PERIOD,
OF THE AVAILABLE REVOLVING LOAN COMMITMENTS, AND COMPUTED AT A RATE EQUAL TO
0.25% PER ANNUM.
SUCH UNUSED COMMITMENT FEES SHALL BE PAYABLE IN INSTALLMENTS
QUARTERLY IN ARREARS ON THE LAST BUSINESS DAY OF EACH MARCH, JUNE, SEPTEMBER AND
DECEMBER AND ON THE REVOLVING LOAN COMMITMENT EXPIRATION DATE.
SECTION 3.
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make the Loans and
participate in the Letters of Credit, and to induce the Agent to issue the
Letters of Credit, the Borrower hereby represents and warrants to the Agent and
each Lender that:
3.1
FINANCIAL CONDITION.
THE (I) AUDITED CONSOLIDATED FINANCIAL
STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES, AUDITED BY THE ACCOUNTANTS FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2005 AND (II) UNAUDITED CONSOLIDATED
FINANCIAL STATEMENTS OF THE BORROWER AND ITS SUBSIDIARIES FOR THE FISCAL QUARTER
ENDED SEPTEMBER 30, 2006, COPIES OF WHICH HAVE HERETOFORE BEEN FURNISHED TO THE
AGENT, PRESENT, TO THE BEST KNOWLEDGE OF THE BORROWER, FAIRLY IN ALL MATERIAL
RESPECTS THE FINANCIAL CONDITION OF THE BORROWER AND ITS SUBSIDIARIES.
THE
FOREGOING FINANCIAL STATEMENTS (THE "FINANCIAL STATEMENTS"), INCLUDING THE
RELATED SCHEDULES AND NOTES THERETO, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP
APPLIED CONSISTENTLY THROUGHOUT THE PERIODS INVOLVED.
NEITHER THE BORROWER NOR
ANY SUBSIDIARY HAS, AS OF SUCH DATE, ANY GUARANTEE OBLIGATION, CONTINGENT
LIABILITY OR LIABILITY FOR TAXES, OR ANY LONG-TERM LEASE OR UNUSUAL FORWARD OR
LONG-TERM
33
COMMITMENT, INCLUDING, WITHOUT LIMITATION, ANY INTEREST RATE OR FOREIGN CURRENCY
SWAP OR EXCHANGE TRANSACTION, IN AN AGGREGATE AMOUNT FOR ALL SUCH OBLIGATIONS,