Collateral of Borrowers; and
WHEREAS, Lender is willing to make the Credit Facility available to Borrowers
pursuant to the terms and provisions hereinafter set forth; and
WHEREAS, the parties desire to set forth the terms and conditions of their
relationship to writing.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE 1
DEFINITIONS, ACCOUNTING TERMS AND
PRINCIPLES OF CONSTRUCTION
1.01
TERMS DEFINED.
AS USED IN THIS AGREEMENT, THOSE TERMS SET FORTH IN
ANNEX I SHALL HAVE THE RESPECTIVE MEANINGS SET FORTH THEREIN.
1.02
MATTERS OF CONSTRUCTION.
THE TERMS "HEREIN," "HEREOF" AND
"HEREUNDER" AND OTHER WORDS OF SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE
AND NOT TO ANY PARTICULAR SECTION, PARAGRAPH OR SUBDIVISION.
THE WORDS
"INCLUDE", "INCLUDES" AND "INCLUDING" WHEN USED IN ANY LOAN DOCUMENT, SHALL BE
DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION". ANY PRONOUN USED SHALL
BE DEEMED TO COVER ALL GENDERS.
WHEREVER APPROPRIATE IN THE CONTEXT, TERMS USED
HEREIN IN THE SINGULAR ALSO INCLUDE THE PLURAL AND VICE VERSA.
ALL REFERENCES
TO STATUTES AND RELATED REGULATIONS SHALL INCLUDE ANY AMENDMENTS OF SAME AND ANY
SUCCESSOR STATUTES AND REGULATIONS.
UNLESS OTHERWISE PROVIDED, ALL REFERENCES
TO ANY INSTRUMENTS OR AGREEMENTS TO WHICH LENDER AND/OR, WHERE APPLICABLE, A
BORROWER, IS A PARTY, INCLUDING, WITHOUT LIMITATION, REFERENCES TO ANY OF THE
LOAN DOCUMENTS, SHALL INCLUDE ANY AND ALL MODIFICATIONS OR AMENDMENTS THERETO
AND ANY AND ALL EXTENSIONS OR RENEWALS THEREOF.
1.03
ACCOUNTING PRINCIPLES.
WHERE THE CHARACTER OR AMOUNT OF ANY ASSET
OR LIABILITY OR ITEM OF INCOME OR EXPENSE IS REQUIRED TO BE DETERMINED OR ANY
CONSOLIDATION OR OTHER ACCOUNTING COMPUTATION IS REQUIRED TO BE MADE FOR THE
PURPOSES OF THIS AGREEMENT, THIS SHALL BE DONE IN ACCORDANCE WITH GAAP, TO THE
EXTENT APPLICABLE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.
1.04
FISCAL QUARTERS.
FOR THE PURPOSES HEREOF, "FISCAL QUARTER" SHALL
MEAN EACH QUARTERLY ACCOUNTING PERIOD DURING ANY FISCAL YEAR; PROVIDED, THAT,
ALL REFERENCES TO THE FISCAL QUARTER ENDING MARCH 31, JUNE 30, SEPTEMBER 30 OR
DECEMBER 31 SHALL MEAN THE FIRST, SECOND, THIRD OR FOURTH FISCAL QUARTER OF THE
APPLICABLE FISCAL YEAR, RESPECTIVELY, IRRESPECTIVE OF THE ACTUAL DATE ON WHICH
SUCH FISCAL QUARTER MAY END.
ARTICLE 2
THE LOANS
2.01
CREDIT FACILITY - DESCRIPTION
(A)
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LENDER
HEREBY ESTABLISHES FOR THE JOINT AND SEVERAL BENEFIT OF BORROWERS, A CREDIT
FACILITY ("CREDIT FACILITY") WHICH SHALL INCLUDE ADVANCES WHICH MAY BE EXTENDED
BY LENDER TO OR FOR THE BENEFIT OF BORROWERS FROM TIME TO TIME HEREUNDER IN THE
FORM OF REVOLVING LOANS ("REVOLVING LOANS").
THE AGGREGATE OUTSTANDING AMOUNT
OF ALL ADVANCES SHALL NOT AT ANY TIME EXCEED THE BORROWING BASE.
IN NO EVENT
SHALL THE INITIAL PRINCIPAL AMOUNT OF ANY REVOLVING LOAN BE LESS THAN
$25,000.00.
SUBJECT TO SUCH LIMITATION, THE OUTSTANDING BALANCE OF ALL
REVOLVING LOANS MAY FLUCTUATE FROM TIME TO