shall mean the transactions provided for in and contemplated by
this Agreement and the other Loan Documents.
"UCC" shall mean the Uniform Commercial Code (or any successor statute), as in
effect from time to time, of the State of New York or of any other state the
laws of which are required as a result thereof to be applied in connection with
the issue of perfection or the effect of perfection of security interests;
provided, that to the extent that the UCC is used to define any term herein or
in any other Loan Documents and such term is defined differently in different
Articles of the UCC, the definition of such term contained in Article 9 shall
govern.
"Validity Agreement" shall mean a Validity Agreement executed and delivered by a
Validity Certifier, in form and substance satisfactory to Lender.
"Validity Certifier" shall mean each of the Chief Executive Officer, the
President, and the Treasurer of Borrower.
"Wells Fargo" shall mean Wells Fargo Bank, National Association, a national
banking association.
1.2
ACCOUNTING PRINCIPLES.
WHERE THE CHARACTER OR AMOUNT OF ANY ASSET
OR LIABILITY OR ITEM OF INCOME OR EXPENSE IS REQUIRED TO BE DETERMINED OR OTHER
ACCOUNTING COMPUTATION IS
17
REQUIRED TO BE MADE FOR THE PURPOSES OF THIS AGREEMENT, THIS SHALL BE DONE IN
ACCORDANCE WITH GAAP, EXCEPT WHERE SUCH PRINCIPLES ARE INCONSISTENT WITH THE
SPECIFIC REQUIREMENTS OF THIS AGREEMENT (SUCH AS WITH RESPECT TO THE CALCULATION
OF EBITDA FOR PURPOSES OF DETERMINING THE INTEREST COVERAGE RATIO).
1.3
UCC TERMS.
ANY TERMS USED IN THIS AGREEMENT THAT ARE DEFINED IN
THE UCC SHALL BE CONSTRUED AND DEFINED AS SET FORTH IN THE UCC UNLESS OTHERWISE
DEFINED HEREIN.
ALL UCC DEFINITIONS REFERENCED IN SECTION 1.1 OR THIS SECTION
1.3 ARE INCORPORATED HEREIN BY REFERENCE.
1.4
CERTAIN MATTERS OF CONSTRUCTION.
THE TERMS "HEREIN", "HEREOF" AND
"HEREUNDER" AND OTHER WORDS OF SIMILAR IMPORT SHALL REFER TO THIS AGREEMENT AS A
WHOLE AND NOT TO ANY PARTICULAR SECTION, PARAGRAPH OR SUBDIVISION.
ANY
REFERENCE TO A "SECTION", "EXHIBIT", "ARTICLE" OR "SCHEDULE" SHALL REFER TO THE
RELEVANT SECTION OR ARTICLE OF OR EXHIBIT OR SCHEDULE TO THIS AGREEMENT, UNLESS
SPECIFICALLY INDICATED TO THE CONTRARY.
ANY PRONOUN USED SHALL BE DEEMED TO
COVER ALL GENDERS.
THE TERM "INCLUDING" SHALL NOT BE LIMITING OR EXCLUSIVE,
UNLESS SPECIFICALLY INDICATED TO THE CONTRARY.
ALL REFERENCES TO STATUTES AND
RELATED REGULATIONS SHALL INCLUDE ANY AMENDMENTS OF SAME AND ANY SUCCESSOR
STATUTES AND REGULATIONS.
2.
AMOUNT AND TERMS OF LOAN
2.1
THE LOANS AND COMMITMENTS.
(A)
GENERAL.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN AND
RELYING ON THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT,
LENDER HEREBY AGREES THAT IT WILL MAKE AVAILABLE TO BORROWER, FROM TIME TO TIME
PRIOR TO THE TERMINATION DATE AND SO LONG AS NO DEFAULT OR EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING, ADVANCES PURSUANT TO SECTION 2.2 (COLLECTIVELY, THE
"REVOLVING LOANS"), AND BORROWER MAY MAKE BORROWINGS, PAYMENTS, AND REBORROWINGS
IN RESPECT THEREOF.
IF LENDER MAKES ADVANCES TO BORROWER FROM SUCH LINE OF