may from time to time be amended, restated, modified or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement or any such Appendices.
Whenever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
feminine and neuter genders.
The words "including", "includes" and "include"
shall be deemed to be followed by the words "without limitation"; references to
Persons include their respective successors and assigns (to the extent and only
to the extent permitted by the Loan Documents) or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such Persons; and all
references to statutes and related regulations shall include any amendments of
the same and any successor statutes and regulations.
The term "or" has, except
where otherwise indicated, the inclusive meaning represented by the phrase
"and/or".
Whenever any provision in any Loan Document refers to the knowledge
(or an analogous phrase) of any Borrower, such words are intended to signify
that such Borrower has actual knowledge or awareness of a particular fact or
circumstance or that such Borrower, if it had exercised reasonable diligence,
would have known or been aware of such fact or circumstance.
ARTICLE II
AMOUNT AND TERMS OF LOAN
SECTION 2.1
LOAN.
(A)
SUBJECT TO THE TERMS AND CONDITIONS HEREOF, EACH LENDER AGREES TO
MAKE A TERM LOAN TO BORROWERS, ON THE CLOSING DATE, IN THE AGGREGATE PRINCIPAL
AMOUNT OF SIX MILLION
16
ONE HUNDRED TWENTY-TWO THOUSAND FOUR HUNDRED FORTY-NINE UNITED STATES DOLLARS
(U.S.$6,122,449), WHICH AGGREGATE PRINCIPAL AMOUNT SHALL INCLUDE ITS PRO RATA
SHARE OF OID AMOUNT (THE "LOAN"), IN THE AMOUNT SET FORTH FOR EACH SUCH LENDER
ON SCHEDULE 1.
THE OBLIGATIONS OF EACH LENDER HEREUNDER SHALL BE SEPARATE AND
NOT JOINT AND SEVERAL.
THE LOAN SHALL BE EVIDENCED BY A PROMISSORY NOTE
SUBSTANTIALLY IN THE FORM OF EXHIBIT 2.1(A) (THE "NOTE") AND BORROWERS SHALL
EXECUTE AND DELIVER THE NOTE TO AGENT, FOR THE BENEFIT OF THE LENDER GROUP.
THE
NOTE SHALL REPRESENT THE OBLIGATION OF BORROWERS TO PAY TO AGENT, FOR THE
BENEFIT OF THE LENDER GROUP, THE FULL PRINCIPAL AMOUNT OF THE LOAN (INCLUDING
THE OID AMOUNT), TOGETHER WITH INTEREST THEREON AS PRESCRIBED IN SECTION 2.4.
THE AMOUNT OF THE LOAN FUNDED BY EACH LENDER TO BORROWERS ON THE CLOSING DATE
SHALL BE REDUCED BY SUCH LENDER'S PRO RATA SHARE OF THE OID AMOUNT.
(B)
THE LOAN PROCEEDS REPRESENTING THE SENIOR SUBORDINATED NOTE PAYOFF
AMOUNT AND THE ITEMS DESCRIBED IN CLAUSES (B) AND (C) OF THE DEFINITION OF "NET
LOAN PROCEEDS" SHALL BE DEPOSITED BY LENDERS AS DIRECTED BY BORROWERS AND THE
NET LOAN PROCEEDS SHALL BE DEPOSITED BY LENDERS AS DESCRIBED IN SECTION 8.1
HEREOF.
THE LOAN PROCEEDS SHALL BE USED ONLY AS PERMITTED UNDER SECTION 2.3
HERETO.
(C)
THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN SHALL BE
DUE AND PAYABLE IN FULL, TOGETHER WITH INTEREST