change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
SECTION 1.03.
Effectuation of Transfers.
Each of the representations and
warranties of Holdings and the Borrowers contained in this Agreement (and all
corresponding definitions) are made after giving effect to the Transactions,
unless the context otherwise requires.
SECTION 1.04.
EXCHANGE RATES; CURRENCY EQUIVALENTS.
(A)
THE ADMINISTRATIVE
AGENT SHALL DETERMINE THE SPOT RATE AS OF EACH REVALUATION DATE TO BE USED FOR
CALCULATING DOLLAR EQUIVALENT AMOUNTS OF ALTERNATE CURRENCY LETTERS OF CREDIT.
SUCH SPOT RATE SHALL BECOME EFFECTIVE AS OF SUCH REVALUATION DATE AND SHALL BE
THE SPOT RATE EMPLOYED IN CONVERTING ANY AMOUNTS BETWEEN THE DOLLARS AND EACH
ALTERNATE CURRENCY UNTIL THE NEXT REVALUATION DATE TO OCCUR.
EXCEPT FOR
PURPOSES OF FINANCIAL STATEMENTS DELIVERED BY LOAN PARTIES HEREUNDER OR
CALCULATING FINANCIAL COVENANTS HEREUNDER OR EXCEPT AS OTHERWISE PROVIDED
HEREIN, THE APPLICABLE AMOUNT OF ANY CURRENCY (OTHER THAN DOLLARS) FOR PURPOSES
OF THE LOAN DOCUMENTS SHALL BE SUCH DOLLAR EQUIVALENT AMOUNT AS SO DETERMINED BY
THE ADMINISTRATIVE AGENT.
NO DEFAULT OR EVENT OF DEFAULT SHALL ARISE AS A
RESULT OF ANY LIMITATION OR THRESHOLD SET FORTH IN DOLLARS IN ARTICLE VI OR
PARAGRAPH (F) OR (J) OF SECTION 7.01 BEING EXCEEDED SOLELY AS A RESULT OF
CHANGES IN CURRENCY EXCHANGE RATES FROM THOSE RATES APPLICABLE ON THE FIRST DAY
OF THE FISCAL QUARTER IN WHICH SUCH DETERMINATION OCCURS OR IN RESPECT OF WHICH
SUCH DETERMINATION IS BEING MADE.
(B)
WHEREVER IN THIS AGREEMENT IN CONNECTION WITH AN ALTERNATE
CURRENCY LETTER OF CREDIT, AN AMOUNT, SUCH AS A REQUIRED MINIMUM OR MULTIPLE
AMOUNT, IS EXPRESSED IN DOLLARS, SUCH AMOUNT SHALL BE THE DOLLAR EQUIVALENT OF
SUCH DOLLAR AMOUNT (ROUNDED TO THE NEAREST UNIT OF SUCH ALTERNATE CURRENCY, WITH
0.5 OF A UNIT BEING ROUNDED UPWARD), AS DETERMINED BY THE ADMINISTRATIVE AGENT.
51
ARTICLE II
The Credits
SECTION 2.01.
Commitments.
Subject to the terms and conditions set forth
herein:
(A)
EACH LENDER AGREES TO MAKE TERM B LOANS TO THE BORROWERS ON THE
CLOSING DATE IN A PRINCIPAL AMOUNT NOT TO EXCEED ITS TERM B LOAN COMMITMENT;
(B)
EACH LENDER AGREES TO MAKE REVOLVING FACILITY LOANS TO THE
BORROWERS FROM TIME TO TIME DURING THE AVAILABILITY PERIOD IN AN AGGREGATE
PRINCIPAL AMOUNT THAT WILL NOT RESULT IN (I) SUCH LENDER'S REVOLVING FACILITY
CREDIT EXPOSURE EXCEEDING SUCH LENDER'S REVOLVING FACILITY COMMITMENT OR
(II) THE REVOLVING FACILITY CREDIT EXPOSURE EXCEEDING THE TOTAL REVOLVING
FACILITY COMMITMENTS; PROVIDED, THAT THE AGGREGATE PRINCIPAL AMOUNT OF REVOLVING
FACILITY LOANS MADE ON THE CLOSING DATE SHALL
NOT EXCEED $35.0 MILLION, PLUS
ANY AMOUNT NECESSARY TO FUND ANY WORKING CAPITAL ADJUSTMENT PURSUANT TO THE
MERGER AGREEMENT.
WITHIN THE FOREGOING LIMITS AND SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH HEREIN, THE BORROWERS MAY BORROW, PREPAY AND REBORROW
REVOLVING FACILITY LOANS; AND
(C)
EACH LENDER