FUNDED FACILITY FACING AGENT WILL
BE ISSUING, AMENDING, RENEWING AND EXTENDING DEPOSIT FUNDED LETTERS OF CREDIT IN
RELIANCE ON THE AVAILABILITY OF SUCH LENDER'S DEPOSIT TO DISCHARGE SUCH LENDER'S
OBLIGATIONS IN CONNECTION WITH ANY LC DISBURSEMENT IN RESPECT THEREOF IN
ACCORDANCE WITH SECTION 3.05(C).
THE FUNDING OF THE DEPOSITS AND THE AGREEMENTS
WITH RESPECT THERETO SET FORTH IN THIS AGREEMENT CONSTITUTE ARRANGEMENTS AMONG
THE ADMINISTRATIVE AGENT, THE DEPOSIT ACCOUNT AGENT, THE DEPOSIT FUNDED FACILITY
FACING AGENT AND THE DEPOSIT FUNDED LENDERS WITH RESPECT TO THE FUNDING
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obligations of such Lenders under this Agreement, and the Deposits do not
constitute loans or extensions of credit to any Loan Party.
Without limiting
the generality of the foregoing, each party hereto acknowledges and agrees that
the Deposits are and at all times will continue to be property of the Deposit
Funded Lenders, and that no amount on deposit at any time in the Deposit Account
shall be the property of any Loan Party, constitute "Collateral" under the Loan
Documents or otherwise be available in any manner to satisfy any Obligations of
any Loan Party under the Loan Documents.
SECTION 2.02.
LOANS.
(A)
EACH LOAN (OTHER THAN A SWINGLINE LOAN) SHALL BE
MADE AS PART OF A BORROWING CONSISTING OF LOANS MADE BY THE LENDERS RATABLY IN
ACCORDANCE WITH THEIR RESPECTIVE APPLICABLE COMMITMENTS; PROVIDED, HOWEVER, THAT
THE FAILURE OF ANY LENDER TO MAKE ANY 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 3.05 AND SUBJECT TO SECTION 2.22(E) IN THE CASE OF B/A
LOANS, LOANS COMPRISING ANY BORROWING SHALL BE (I) IN AN AGGREGATE PRINCIPAL
AMOUNT THAT IS NOT LESS THAN U.S.$1,000,000 (OR THE CANADIAN DOLLAR EQUIVALENT
THEREOF) AND AN INTEGRAL MULTIPLE OF U.S.$1,000,000, IN THE CASE OF A EURODOLLAR
BORROWING, OR U.S.$500,000 (OR THE CANADIAN DOLLAR EQUIVALENT THEREOF) IN THE
CASE OF ANY OTHER TYPE OF BORROWING OR (II) IN THE CASE OF AN ABR BORROWING, IN
AN AGGREGATE PRINCIPAL AMOUNT EQUAL TO THE REMAINING AVAILABLE BALANCE OF THE
APPLICABLE COMMITMENTS.
(B)
SUBJECT TO SECTION 2.08, (I) EACH BORROWING DENOMINATED IN U.S. DOLLARS
SHALL BE COMPRISED ENTIRELY OF ABR LOANS OR EURODOLLAR LOANS AND (II) EACH
REVOLVING (CANADIAN) CREDIT BORROWING DENOMINATED IN CANADIAN DOLLARS SHALL BE
COMPRISED ENTIRELY OF B/A LOANS OR CANADIAN PRIME RATE LOANS, IN EACH CASE AS
THE APPLICABLE BORROWER MAY REQUEST PURSUANT TO SECTION 2.03 OR AS OTHERWISE MAY
BE PROVIDED IN THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LOANS TO BE MADE ON
THE CLOSING DATE SHALL BE MADE AS ABR LOANS OR CANADIAN PRIME RATE LOANS.
EACH
LENDER (OTHER THAN ANY DEPOSIT FUNDED LENDER) MAY AT ITS OPTION FULFILL ITS
COMMITMENT WITH RESPECT TO ANY EURODOLLAR LOAN OR ANY LOAN DENOMINATED IN
CANADIAN DOLLARS BY CAUSING ANY DOMESTIC OR FOREIGN BRANCH OR