TO ANY PERSON SHALL BE CONSTRUED TO INCLUDE SUCH PERSON'S SUCCESSORS AND
ASSIGNS. ANY REQUIREMENT OF A WRITING CONTAINED HEREIN OR IN THE OTHER LOAN
DOCUMENTS SHALL BE SATISFIED BY THE TRANSMISSION OF A RECORD AND ANY RECORD
TRANSMITTED SHALL CONSTITUTE A REPRESENTATION AND WARRANTY AS TO THE ACCURACY
AND COMPLETENESS OF THE INFORMATION CONTAINED THEREIN.
1.5
SCHEDULES AND EXHIBITS. ALL OF THE SCHEDULES AND EXHIBITS ATTACHED
TO THIS AGREEMENT SHALL BE DEEMED INCORPORATED HEREIN BY REFERENCE.
1.6
CURRENCY CONVERSION. ALL REFERENCES TO MONETARY AMOUNTS HEREIN
SHALL BE TO U.S. DOLLARS. WITH RESPECT TO ANY AMOUNTS NOT DENOMINATED IN U.S.
DOLLARS AND REQUIRED FOR OR RELATED TO ANY TERM OR DEFINITION HEREUNDER,
BORROWER SHALL CONVERT SUCH NON-U.S. DOLLAR DENOMINATED AMOUNTS TO THE AMOUNT OF
U.S. DOLLARS THAT WOULD BE REQUIRED TO PURCHASE SUCH NON-U.S. DOLLAR DENOMINATED
AMOUNTS ON THE APPLICABLE DATE OF DETERMINATION BASED ON THE RATE AT WHICH ANY
APPLICABLE CURRENCY MAY BE EXCHANGED INTO DOLLARS, AS SET FORTH ON SUCH DATE ON
THE RELEVANT BLOOMBERG KEY CROSS CURRENCY RATES SCREEN AT OR ABOUT 11:00 A.M.,
LONDON TIME, ON SUCH DATE.
2.
LOAN AND TERMS OF PAYMENT.
2.1
MAKING OF LOANS.
(A)
MAKING OF ADVANCES. SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, ON AND AFTER THE CLOSING DATE AND PRIOR TO THE REVOLVER MATURITY
DATE, EACH LENDER AGREES TO MAKE SUCH PORTION OF THE ADVANCES TO BORROWERS IN AN
AMOUNT EQUAL TO SUCH LENDER'S PRO RATA SHARE OF THE THEN EXTANT REVOLVER
COMMITMENT; PROVIDED THAT ADVANCES SHALL BE MADE IN AN AGGREGATE AMOUNT NOT TO
EXCEED THE LESSER OF: (Y) THE MAXIMUM REVOLVER AMOUNT; AND (Z) THE BORROWING
BASE.
(B)
NOTHING TO THE CONTRARY IN THIS SECTION 2.1 NOTWITHSTANDING, AGENT
SHALL HAVE THE RIGHT TO ESTABLISH RESERVES IN SUCH AMOUNTS AS AGENT IN ITS
PERMITTED DISCRETION SHALL
2
DEEM NECESSARY OR APPROPRIATE, AGAINST THE BORROWING BASE, INCLUDING RESERVES
WITH RESPECT TO (I) SUMS THAT BORROWERS ARE REQUIRED TO PAY BY ANY SECTION OF
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (SUCH AS TAXES, ASSESSMENTS, INSURANCE
PREMIUMS, ENVIRONMENTAL LIABILITIES, OR, IN THE CASE OF LEASED ASSETS, RENTS OR
OTHER AMOUNTS PAYABLE UNDER SUCH LEASES) AND HAVE FAILED TO PAY, AND (II)
AMOUNTS OWING BY BORROWERS TO ANY PERSON TO THE EXTENT SECURED BY A LIEN ON, OR
TRUST OVER, ANY OF THE COLLATERAL (OTHER THAN A PERMITTED LIEN), WHICH LIEN OR
TRUST, IN THE PERMITTED DISCRETION OF AGENT, LIKELY WOULD HAVE A PRIORITY
SUPERIOR TO THE AGENT'S LIENS (SUCH AS LIENS OR TRUSTS IN FAVOR OF LANDLORDS,
WAREHOUSEMEN, CARRIERS, MECHANICS, MATERIALMEN, LABORERS, OR SUPPLIERS, OR LIENS
OR TRUSTS FOR AD VALOREM, EXCISE, SALES, OR OTHER TAXES WHERE GIVEN PRIORITY
UNDER APPLICABLE LAW) IN AND TO SUCH ITEM OF THE COLLATERAL, TO THE EXTENT THAT
THE SUMS AND AMOUNTS DESCRIBED IN CLAUSES (I) AND (II) ABOVE EXCEED $250,000 IN
THE AGGREGATE.
(C)
THE OUTSTANDING UNPAID PRINCIPAL AMOUNT OF ADVANCES AND ALL
ACCRUED AND UNPAID INTEREST ON ADVANCES SHALL BE DUE AND PAYABLE ON THE EARLIER
OF:
(I) THE