DOCUMENT TO ANY ARTICLE, SECTION,
APPENDIX, SCHEDULE OR EXHIBIT MEANS SUCH ARTICLE OR SECTION THEREOF OR APPENDIX,
SCHEDULE OR EXHIBIT THERETO;
(VII)
"HEREUNDER," "HEREOF," "HERETO" AND WORDS OF SIMILAR IMPORT SHALL
BE DEEMED REFERENCES TO A TRANSACTION DOCUMENT AS A WHOLE AND NOT TO ANY
PARTICULAR ARTICLE, SECTION OR OTHER PROVISION HEREOF;
(VIII)
"INCLUDING" (AND WITH CORRELATIVE MEANING "INCLUDE") MEANS
INCLUDING WITHOUT LIMITING THE GENERALITY OF ANY DESCRIPTION PRECEDING SUCH
TERM;
(IX)
"OR" IS NOT EXCLUSIVE; AND
(X)
RELATIVE TO THE DETERMINATION OF ANY PERIOD OF TIME, "FROM" MEANS
"FROM AND INCLUDING" AND "TO" MEANS "TO BUT EXCLUDING."
(B)
ACCOUNTING TERMS.
IN EACH TRANSACTION DOCUMENT, UNLESS EXPRESSLY
OTHERWISE PROVIDED, ACCOUNTING TERMS SHALL BE CONSTRUED AND INTERPRETED, AND
ACCOUNTING DETERMINATIONS AND COMPUTATIONS SHALL BE MADE, IN ACCORDANCE WITH
GAAP.
(C)
CONFLICT IN TRANSACTION DOCUMENTS.
IF THERE IS ANY CONFLICT
BETWEEN ANY TRANSACTION DOCUMENTS, SUCH TRANSACTION DOCUMENT SHALL BE
INTERPRETED AND CONSTRUED, IF POSSIBLE, SO AS TO AVOID OR MINIMIZE SUCH CONFLICT
BUT, TO THE EXTENT (AND ONLY TO THE EXTENT) OF SUCH CONFLICT, THIS AGREEMENT
SHALL PREVAIL AND CONTROL.
(D)
LEGAL REPRESENTATION OF THE PARTIES.
THE TRANSACTION DOCUMENTS
WERE NEGOTIATED BY THE PARTIES WITH THE BENEFIT OF LEGAL REPRESENTATION AND ANY
RULE OF CONSTRUCTION OR INTERPRETATION OTHERWISE REQUIRING THE TRANSACTION
DOCUMENT TO BE CONSTRUED OR INTERPRETED AGAINST ANY PARTY SHALL NOT APPLY TO ANY
CONSTRUCTION OR INTERPRETATION HEREOF OR THEREOF.
26
(E)
DEFINED TERMS.
UNLESS A CLEAR CONTRARY INTENTION APPEARS, TERMS
DEFINED HEREIN HAVE THE RESPECTIVE INDICATED MEANINGS WHEN USED IN EACH
TRANSACTION DOCUMENT.
ARTICLE II
PURCHASES AND SETTLEMENT
SECTION 2.1.
ASSIGNMENT AND CONVEYANCE.
CUSTOMER HEREBY SELLS,
ASSIGNS, TRANSFERS AND CONVEYS TO BUYER, AS OF THE CLOSING DATE, AND BUYER
HEREBY PURCHASES AND ACCEPTS, AS OF THE CLOSING DATE, ASSIGNMENT AND TRANSFER
FROM CUSTOMER OF, WITH RECOURSE, ALL OF CUSTOMER'S RIGHT, TITLE AND INTEREST OF
EVERY NATURE IN AND TO THE WAREHOUSE ASSETS, WHETHER NOW OR HEREAFTER EXISTING
OR IN WHICH CUSTOMER NOW HAS OR HEREAFTER ACQUIRES AN INTEREST.
SECTION 2.2.
FACILITY AND INCREMENTAL INVESTMENTS.
(A)
UPON THE TERMS AND SUBJECT TO THE CONDITIONS AND IN RELIANCE UPON
THE REPRESENTATIONS AND WARRANTIES OF CUSTOMER HEREIN AND IN THE TRANSACTION
DOCUMENTS SET FORTH, CUSTOMER MAY, AT ITS OPTION, AFTER THE CLOSING DATE,
REQUEST BUYER MAKE, FROM TIME TO TIME, AND BUYER MAY MAKE, FROM TIME TO TIME,
ADDITIONAL INVESTMENTS OF PRINCIPAL; PROVIDED, HOWEVER, THAT, AT NO TIME SHALL
ANY INVESTMENT BE MADE AT ANY TIME THAT THE AGGREGATE PRINCIPAL OUTSTANDING
EXCEEDS THE LESSER OF (I) FACILITY LIMIT OR (II) THE WAREHOUSE ASSET LIMIT
AMOUNT.
(B)
NO INVESTMENT OF PRINCIPAL SHALL BE MADE ON OR AFTER THE
TERMINATION DATE.
IN ADDITION, NO INVESTMENT OF PRINCIPAL SHALL BE MADE IF
AFTER GIVING EFFECT TO SUCH INVESTMENT OF PRINCIPAL, THE AGGREGATE PRINCIPAL
OUTSTANDING WOULD EXCEED THE LESSER OF (I) THE FACILITY LIMIT OR (II) THE
WAREHOUSE ASSET LIMIT AMOUNT.
NO RECEIVABLE SHALL BE ORIGINATED, AND NO
INVESTMENT OF PRINCIPAL WITH RESPECT THERETO SHALL BE MADE AFTER THE DATE THAT
BOTH VERNON SCHWARTZ AND DAVID