"EBITDA" AS SET FORTH IN FOOTNOTE (3) TO THE "SUMMARY HISTORICAL AND PRO
FORMA FINANCIAL DATA" UNDER "OFFERING CIRCULAR SUMMARY" IN THE OFFERING CIRCULAR
FOR THE NEW SENIOR NOTES TO THE EXTENT SUCH ADJUSTMENTS, WITHOUT DUPLICATION,
CONTINUE TO BE APPLICABLE TO SUCH FOUR-QUARTER PERIOD; PROVIDED THAT SUCH
OPERATING EXPENSE REDUCTIONS AND OTHER OPERATING IMPROVEMENTS OR SYNERGIES ARE
REASONABLY IDENTIFIABLE AND FACTUALLY SUPPORTABLE AND OTHERWISE COMPLY WITH THE
LIMITATIONS SET FORTH IN THE DEFINITION OF "EBITDA".
Section 1.10.
Accounting Terms.
(a)
Generally.
All accounting terms not
specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the audited financial statements described in Section 3.05, except as otherwise
specifically prescribed herein.
All amounts used for purposes of financial
calculations required to be made shall be without duplication.
(B)
ISSUES RELATED TO GAAP.
IF AT ANY TIME ANY CHANGE IN GAAP WOULD
AFFECT THE COMPUTATION OF ANY FINANCIAL RATIO OR REQUIREMENT SET FORTH IN ANY
LOAN DOCUMENT, AND EITHER THE BORROWER OR THE REQUIRED LENDERS SHALL SO REQUEST,
THE ADMINISTRATIVE AGENT, THE LENDERS AND THE BORROWER SHALL NEGOTIATE IN GOOD
FAITH TO AMEND SUCH RATIO OR REQUIREMENT TO PRESERVE THE ORIGINAL INTENT THEREOF
IN LIGHT OF SUCH CHANGE IN GAAP (SUBJECT TO THE APPROVAL OF THE REQUIRED
LENDERS); PROVIDED THAT, UNTIL SO AMENDED, (I) SUCH RATIO OR REQUIREMENT SHALL
CONTINUE TO BE COMPUTED IN ACCORDANCE WITH GAAP PRIOR TO SUCH CHANGE THEREIN AND
(II) THE BORROWER SHALL PROVIDE TO THE ADMINISTRATIVE AGENT AND THE LENDERS AS
REASONABLY REQUESTED HEREUNDER A RECONCILIATION BETWEEN CALCULATIONS OF SUCH
RATIO OR REQUIREMENT MADE BEFORE AND AFTER GIVING EFFECT TO SUCH CHANGE IN GAAP.
Section 1.11.
Certifications.
All certifications to be made hereunder by an
officer or representative of a Loan Party shall be made by such person in his or
her capacity solely as an officer or a representative of such Loan Party, on
such Loan Party's behalf and not in such Person's individual capacity.
60
ARTICLE II
THE CREDITS
Section 2.01.
Commitments.
Subject to the terms and conditions herein set
forth, each Lender agrees, severally and not jointly, (a) to make a Term Loan to
the Borrower on the Closing Date in a principal amount not to exceed its Term
Loan Commitment and (b) to make Revolving Loans to the Borrower, at any time and
from time to time on and after the Closing Date, and until the earlier of the
Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount at any time outstanding that will not result in such Lender's
Revolving Credit Exposure exceeding such Lender's Revolving Credit Commitment.
Within the limits set forth in clause (b) of