REVIEWED AND PARTICIPATED IN THE
PREPARATION AND NEGOTIATION HEREOF AND THEREOF AND THAT ANY RULE OF CONSTRUCTION
TO THE EFFECT THAT AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY
SHALL NOT BE EMPLOYED IN THE INTERPRETATION HEREOF OR THEREOF.
ARTICLE II
THE CREDITS
SECTION 2.01
COMMITMENTS. SUBJECT TO THE TERMS AND CONDITIONS AND
RELYING UPON THE REPRESENTATIONS AND WARRANTIES HEREIN SET FORTH, EACH LENDER
AGREES, SEVERALLY AND NOT JOINTLY:
(a)
(i) to make a Tranche B Loan to Borrower on the Closing Date in
the principal amount not to exceed its Initial Tranche B Commitment and (ii) to
make a Delayed Draw Tranche B Loan to Borrower at any time or from time to time
after the Closing Date and prior to December 31, 2006, in an amount equal to the
portion of such Lender's Delayed Draw Tranche B Commitment as requested by
Borrower to be made on such day (subject to a maximum of two drawings total) in
the aggregate principal amount not to exceed such Lender's Delayed Draw Tranche
B Commitment at any time outstanding; and
(b)
to make Revolving Loans to Borrower, at any time and from time to
time on or after the Closing Date until the earlier of the Revolving Maturity
Date and the termination of the Revolving 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 Exposure exceeding
such Lender's Revolving Commitment.
Amounts paid or prepaid in respect of Tranche B Loans may not be reborrowed.
Within the limits set forth in clause (b) above and subject to the terms,
conditions and limitations set forth herein, Borrower may borrow, pay or prepay
and reborrow Revolving Loans.
SECTION 2.02
LOANS.
(A)
EACH LOAN (OTHER THAN SWINGLINE LOANS) SHALL BE MADE AS PART OF A
BORROWING CONSISTING OF LOANS MADE BY THE LENDERS RATABLY IN ACCORDANCE WITH
THEIR APPLICABLE COMMITMENTS; PROVIDED THAT THE FAILURE OF ANY LENDER TO MAKE
ITS LOAN SHALL NOT IN ITSELF RELIEVE ANY OTHER LENDER OF ITS OBLIGATION TO LEND
HEREUNDER (IT BEING UNDERSTOOD, HOWEVER, THAT NO LENDER SHALL BE RESPONSIBLE FOR
THE FAILURE OF ANY OTHER LENDER TO MAKE ANY LOAN REQUIRED TO BE MADE BY SUCH
OTHER LENDER). EXCEPT FOR LOANS DEEMED MADE PURSUANT TO SECTION 2.18(E)(II),
(X) ABR LOANS (OTHER THAN SWINGLINE LOANS) COMPRISING ANY BORROWING SHALL BE IN
AN AGGREGATE PRINCIPAL AMOUNT THAT IS (I) AN INTEGRAL MULTIPLE OF $250,000 AND
NOT LESS THAN $500,000 OR (II) EQUAL TO THE REMAINING AVAILABLE BALANCE OF THE
APPLICABLE COMMITMENTS AND (Y) THE LIBOR LOANS COMPRISING ANY BORROWING SHALL BE
IN AN AGGREGATE PRINCIPAL AMOUNT THAT IS (I) AN INTEGRAL
50
multiple of $250,000 and not less than $500,000 or (ii) equal to the remaining
available balance of the applicable Commitments; provided that any Delayed Draw
Tranche B Loan shall be in an aggregate principal amount that is not less than
$5.0 million.
(B)
SUBJECT TO SECTIONS 2.11 AND 2.12, EACH