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Exhibit 10.16
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[JPMORGAN LOGO]
$15,000,000
364 DAY REVOLVING CREDIT AGREEMENT
dated as of November 10, 2003
between
NAVIGATION TECHNOLOGIES NORTH AMERICA, LLC
and
JPMORGAN CHASE BANK
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined
Terms........................................................
1
SECTION 1.02. Terms
Generally......................................................
8
SECTION 1.03. Accounting
Terms; GAAP...............................................
8
ARTICLE II
THE CREDITS
SECTION 2.01.
Commitment...........................................................
8
SECTION 2.02.
Loans................................................................
9
SECTION 2.03. Requests
for Loans...................................................
9
SECTION 2.04. Funding of
Loans.....................................................
9
SECTION 2.05. Interest
Elections...................................................
9
SECTION 2.06.
Termination and Reduction of
Commitment.............................. 10
SECTION 2.07. Repayment
of Loans; Evidence of Debt.................................
10
SECTION 2.08. Prepayment
of Loans..................................................
11
SECTION 2.09.
Fees.................................................................
11
SECTION 2.10.
Interest.............................................................
11
SECTION 2.11. Alternate
Rate of Interest...........................................
12
SECTION 2.12. Increased
Costs......................................................
12
SECTION 2.13. Break
Funding Payments...............................................
13
SECTION 2.14.
Taxes................................................................
13
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01.
Organization;
Powers.................................................
14
SECTION 3.02.
Authorization;
Enforceability........................................ 14
SECTION 3.03.
Governmental Approvals; No
Conflicts................................. 14
SECTION 3.04. Financial
Condition; No Material Adverse Change......................
14
SECTION 3.05.
Properties...........................................................
14
SECTION 3.06. Litigation
and Environmental Matters.................................
15
SECTION 3.07. Compliance
with Laws and Agreements..................................
15
SECTION 3.08. Investment
and Holding Company Status................................
15
SECTION 3.09.
Taxes................................................................
15
SECTION 3.10.
ERISA................................................................
15
SECTION 3.11.
Disclosure...........................................................
15
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ARTICLE IV
CONDITIONS
SECTION 4.01. Effective
Date.......................................................
16
SECTION 4.02. Each
Credit Event....................................................
16
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial
Statements and Other Information...........................
17
SECTION 5.02. Notices of
Material Events...........................................
18
SECTION 5.03. Existence;
Conduct of Business.......................................
18
SECTION 5.04
Payment of
Obligations...............................................
18
SECTION 5.05.
Maintenance of Properties;
Insurance................................. 18
SECTION 5.06. Books and
Records; Inspection Rights.................................
18
SECTION 5.07. Compliance
with Laws.................................................
18
SECTION 5.08. Use of
Proceeds and Letters of Credit................................
19
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01.
Indebtedness.........................................................
19
SECTION 6.02.
Liens................................................................
20
SECTION 6.03.
Fundamental
Changes..................................................
20
SECTION 6.04.
Investments, Loans, Advances, Guarantees and
Acquisitions............ 20
SECTION 6.05. Hedging
Agreements...................................................
21
SECTION 6.06. Restricted
Payments..................................................
21
SECTION 6.07.
Transactions with
Affiliates......................................... 21
SECTION 6.08.
Restrictive
Agreements...............................................
21
ARTICLE VII
EVENTS OF
DEFAULT....................................................
22
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01.
Notices...............................................................
23
SECTION 8.02. Waivers;
Amendments...................................................
24
SECTION 8.03. Expenses;
Indemnity; Damage Waiver....................................
24
SECTION 8.04. Successors
and Assigns................................................
25
SECTION 8.05.
Survival..............................................................
25
SECTION 8.06.
Counterparts; Integration;
Effectiveness............................. 26
SECTION 8.07.
Severability..........................................................
26
SECTION 8.08. Right of
Setoff.......................................................
26
SECTION 8.09. Governing
Law; Jurisdiction; Consent to Service of Process............
26
SECTION 8.10. WAIVER OF
JURY TRIAL..................................................
27
SECTION 8.11.
Headings..............................................................
27
SECTION 8.12.
Confidentiality.......................................................
27
SECTION 8.13. Interest
Rate Limitation..............................................
27
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SCHEDULES:
Schedule 3.01 -- Subsidiaries
Schedule 3.06 -- Disclosed Matters
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Investments
Schedule 6.05 -- Hedging Agreements
Schedule 6.06 -- Restricted Payments
Schedule 6.07 -- Transactions with Affiliates
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Opinion of Borrower's
Counsel
Exhibit A-1 -- Form of Opinion of
Guarantor's Counsel
Exhibit B -- Notice of Borrowing
Request
Exhibit C -- Authorization Letter
Exhibit D -- Certificate of Chief Financial
Officer
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CREDIT AGREEMENT dated as of November 10, 2003 between
Navigation
Technologies North America, LLC and
JPMorgan Chase Bank.
The
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the
following
terms have the meanings specified
below:
"ABR", when used in reference to any Loan, refers to whether such
Loan is
bearing interest at a rate determined by
reference to the Alternate Base Rate.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Loan for
any
Interest Period, an interest rate per annum
(rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO
Rate for such Interest Period
multiplied by (b) the Statutory Reserve
Rate.
"AFFILIATE" means, with respect to a specified Person, another
Person
that directly, or indirectly through one or
more intermediaries, Controls or is
Controlled by or is under common Control
with the Person specified.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the
greater of (a) the Prime Rate in effect on
such day, and (b) the Federal Funds
Effective Rate in effect on such day plus
1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime
Rate, or the Federal Funds Effective Rate
shall be effective from and including the
effective date of such change in the
Prime Rate, or the Federal Funds Effective
Rate, respectively.
"APPLICABLE RATE" means, for any day, with respect to any ABR
Loan,
Eurodollar Revolving Loan, or with respect
to the facility fees payable
hereunder, as the case may be, the
applicable rate per annum (expressed in basis
points) set forth below under the caption
"ABR Spread", "Eurodollar Spread" or
"Facility Fee Rate", as the case may
be:
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ABR SPREAD
EURODOLLAR SPREAD
FACILITY FEE RATE
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0
100
37.5
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"AUTHORIZATION LETTER" means the letter agreement executed by
the
Borrower in the form of Exhibit C.
"AVAILABILITY PERIOD" means the period from and including the
Effective
Date to but excluding the earlier of the
Maturity Date and the date of
termination of the Commitment.
"BANK" means JPMorgan Chase Bank.
"BOARD" means the Board of Governors of the Federal Reserve System
of the
United States of America.
"BORROWER" means Navigation Technologies North America, LLC.
"BORROWING REQUEST" means a request by the Borrower for a Loan
in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day
on which commercial
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banks in New York City are authorized or
required by law to remain closed;
PROVIDED that, when used in connection with
a Eurodollar Loan, the term
"BUSINESS DAY" shall also exclude any day
on which banks are not open for
dealings in dollar deposits in the London
interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such
Person to pay rent or other amounts under
any lease of (or other arrangement
conveying the right to use) real or
personal property, or a combination thereof,
which obligations are required to be
classified and accounted for as capital
leases on a balance sheet of such Person
under GAAP, and the amount of such
obligations shall be the capitalized amount
thereof determined in accordance
with GAAP.
"CHANGE IN CONTROL OF THE BORROWER" means (a) the acquisition
of
ownership, directly or indirectly,
beneficially or of record, by any Person or
group (within the meaning of the Securities
Exchange Act of 1934 and the rules
of the Securities and Exchange Commission
thereunder as in effect on the date
hereof) of shares representing more than
50% of the aggregate ordinary voting
power represented by the issued and
outstanding capital stock of the Borrower;
(b) occupation of a majority of the seats
(other than vacant seats) on the board
of directors of the Borrower by Persons who
were neither (i) nominated by the
board of directors of the Borrower nor (ii)
appointed by directors so nominated;
or (c) the acquisition of direct or
indirect Control of the Borrower by any
Person or group.
"CHANGE IN CONTROL OF THE GUARANTOR" means (a) the acquisition
of
ownership, directly or indirectly,
beneficially or of record, by any Person or
group (within the meaning of the Securities
Exchange Act of 1934 and the rules
of the Securities and Exchange Commission
thereunder as in effect on the date
hereof) of shares representing more than
50% of the aggregate ordinary voting
power represented by the issued and
outstanding capital stock of the Guarantor;
(b) occupation of a majority of the seats
(other than vacant seats) on the board
of directors of the Guarantor by Persons
who were neither (i) nominated by the
board of directors of the Guarantor nor
(ii) appointed by directors so
nominated; or (c) the acquisition of direct
or indirect Control of the Guarantor
by any Person or group.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation
after the date of this Agreement, (b) any
change in any law, rule or regulation
or in the interpretation or application
thereof by any Governmental Authority
after the date of this Agreement or (c)
compliance by the Bank with any request,
guideline or directive (whether or not
having the force of law) of any
Governmental Authority made or issued after
the date of this Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to
time.
"COMMITMENT" means, the commitment of the Bank to make Loans, as
such
commitment may be reduced from time to time
pursuant to Section 2.06. The
initial amount of the Bank's Commitment is
$15,000,000.
"CONTROL" means the possession, directly or indirectly, of the
power to
direct or cause the direction of the
management or policies of a Person, whether
through the ability to exercise voting
power, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have
meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event
of
Default or which upon notice, lapse of time
or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and
the
environmental matters disclosed in Schedule
3.06.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which the conditions specified
in
Section 4.01 are satisfied (or waived in
accordance with Section 8.02).
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"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments or
injunctions issued, promulgated or
entered into by any Governmental Authority,
relating in any way to the
environment, preservation or reclamation of
natural resources, the management,
release or threatened release of any
Hazardous Material or to health and safety
matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise
(including any liability for damages, costs
of environmental remediation, fines,
penalties or indemnities), of the Borrower
or any Subsidiary directly or
indirectly resulting from or based upon (a)
violation of any Environmental Law,
(b) the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials,
(d) the release or threatened release of
any Hazardous Materials into the
environment, or (e) any contract, agreement
or other consensual arrangement
pursuant to which liability is assumed or
imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the
Guarantor and/or the Borrower, is treated
as a single employer under Section 414(b)
or (c) of the Code or, solely for
purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a
single employer under Section 414 of the
Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section
4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other
than an event for which the 30-day notice
period is waived); (b) the existence
with respect to any Plan of an "accumulated
funding deficiency" (as defined in
Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an
application for a waiver of the minimum
funding standard with respect to any
Plan; (d) the incurrence by the Guarantor,
the Borrower or any of its ERISA
Affiliates of any liability under Title IV
of ERISA with respect to the
termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of
any notice relating to an intention to
terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f)
the incurrence by the Borrower or any of
its ERISA Affiliates of any liability
with respect to the withdrawal or partial
withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of
any notice, or the receipt by any
Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning
the imposition of Withdrawal Liability
or a determination that a Multiemployer
Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of
Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan, refers to whether
such
Loan is bearing interest at a rate
determined by reference to the Adjusted LIBO
Rate.
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCLUDED TAXES" means, with respect to the Bank, (a) income or
franchise
taxes imposed on (or measured by) its net
income by the United States of
America, or by the jurisdiction under the
laws of which such recipient is
organized or in which its principal office
is located or, in the case of any
Lender, in which its applicable lending
office is located, (b) any branch
profits taxes imposed by the United States
of America or any similar tax imposed
by any other jurisdiction in which the
Borrower is located.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average
(rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published on the next succeeding Business
Day by the Federal Reserve Bank of New
York, or, if such rate is not so
published for any day that is a Business
Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the
quotations for such day for such
transactions received by the Bank from
three Federal funds brokers of
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recognized standing selected by it.
"FINANCIAL OFFICER" means the chief financial officer,
principal
accounting officer, treasurer or controller
of the Borrower.
"GAAP" means generally accepted accounting principles in the
United
States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of
America, any other nation or any political
subdivision thereof, whether state or
local, and any agency, authority,
instrumentality, regulatory body, court,
central bank or other entity exercising
executive, legislative, judicial,
taxing, regulatory or administrative powers
or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation,
contingent or otherwise, of the guarantor
guaranteeing or having the economic
effect of guaranteeing any Indebtedness or
other obligation of any other Person
(the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, and
including any obligation of the guarantor,
direct or indirect, (a) to purchase
or pay (or advance or supply funds for the
purchase or payment of) such
Indebtedness or other obligation or to
purchase (or to advance or supply funds
for the purchase of) any security for the
payment thereof, (b) to purchase or
lease property, securities or services for
the purpose of assuring the owner of
such Indebtedness or other obligation of
the payment thereof, (c) to maintain
working capital, equity capital or any
other financial statement condition or
liquidity of the primary obligor so as to
enable the primary obligor to pay such
Indebtedness or other obligation or (d) as
an account party in respect of any
letter of credit or letter of guaranty
issued to support such Indebtedness or
obligation; PROVIDED, that the term
Guarantee shall not include endorsements for
collection or deposit in the ordinary
course of business.
"GUARANTOR" means Navigation Technologies Corporation.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances
or
wastes and all hazardous or toxic
substances, wastes or other pollutants,
including petroleum or petroleum
distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon
gas, infectious or medical wastes
and all other substances or wastes of any
nature regulated pursuant to any
Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign
currency exchange agreement, commodity
price protection agreement or other
interest or currency exchange rate or
commodity price hedging arrangement.
"Increased Cost" means:
(a)
an
additional or increased cost;
(b)
a
reduction in the rate of return under this Agreement or on the
Bank's (or its Affiliate's) overall capital; or
(c)
a
reduction of an amount due and payable under this Agreement,
which is incurred or suffered by the Bank or any of its
Affiliates
but only to the extent attributable to the Bank having entered
into this Agreement or funding or performing its obligations
under
this Agreement.
"INDEBTEDNESS" of any Person means, without duplication, (a)
all
obligations of such Person for borrowed
money or with respect to deposits or
advances of any kind, (b) all obligations
of such Person evidenced by bonds,
debentures, notes or similar instruments,
(c) all obligations of such Person
upon which interest charges are customarily
paid, (d) all obligations of such
Person under conditional sale or other
title retention agreements relating to
property acquired by such Person, (e) all
obligations of such Person in respect
of the deferred purchase price of property
or services (excluding current
accounts payable incurred in the ordinary
course of business), (f) all
Indebtedness of others secured by (or for
which the holder of such Indebtedness
has an existing right, contingent or
otherwise, to be secured by) any Lien on
property owned or acquired by such Person,
whether or not the Indebtedness
secured thereby
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has been assumed, (g) all Guarantees by
such Person of Indebtedness of others,
(h) all Capital Lease Obligations of such
Person, (i) all obligations,
contingent or otherwise, of such Person as
an account party in respect of
letters of credit and letters of guaranty
and (j) all obligations, contingent or
otherwise, of such Person in respect of
bankers' acceptances. The Indebtedness
of any Person shall include the
Indebtedness of any other entity (including any
partnership in which such Person is a
general partner) to the extent such Person
is liable therefor as a result of such
Person's ownership interest in or other
relationship with such entity, except to
the extent the terms of such
Indebtedness provide that such Person is
not liable therefor.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or
continue a Loan in accordance with Section
2.08.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan, the
first
Business Day of each month, on the date any
ABR Loan is paid or converted to a
Eurodollar Loan, and on the Maturity Date,
and (b) with respect to any
Eurodollar Loan, the last day of the
Interest Period therefor.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, the
period
commencing on the date of such Loan and
ending on the numerically corresponding
day in the calendar month that is one, two
or three months thereafter, as the
Borrower may elect; PROVIDED, that (i) if
any Interest Period would end on a day
other than a Business Day, such Interest
Period shall be extended to the next
succeeding Business Day unless, in the case
of a Eurodollar Loan only, such next
succeeding Business Day would fall in the
next calendar month, in which case
such Interest Period shall end on the next
preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar
Loan that commences on the last
Business Day of a calendar month (or on a
day for which there is no numerically
corresponding day in the last calendar
month of such Interest Period) shall end
on the last Business Day of the last
calendar month of such Interest Period. For
purposes hereof, the date of a Loan
initially shall be the date on which such
Loan is made and, thereafter shall be the
effective date of the most recent
conversion or continuation of such
Loan.
"LIBO RATE" means, with respect to any Eurodollar Loan for any
Interest
Period, the rate appearing on Page 3750 of
the Dow Jones Market Service (or on
any successor or substitute page of such
Service, or any successor to or
substitute for such Service, providing rate
quotations comparable to those
currently provided on such page of such
Service, as determined by the Bank from
time to time for purposes of providing
quotations of interest rates applicable
to dollar deposits in the London interbank
market) at approximately 11:00 a.m.,
London time, two Business Days prior to the
commencement of such Interest
Period, as the rate for dollar deposits
with a maturity comparable to such
Interest Period. In the event that such
rate is not available at such time for
any reason, then the "LIBO RATE" with
respect to such Eurodollar Loan for such
Interest Period shall be the rate (rounded
upwards, if necessary, to the next
1/16 of 1%) at which dollar deposits of
$5,000,000 and for a maturity comparable
to such Interest Period are offered by the
principal London office of the
Administrative Agent in immediately
available funds in the London interbank
market at approximately 11:00 a.m., London
time, two Business Days prior to the
commencement of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust,
lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or
of such asset, (b) the interest of a vendor
or a lessor under any conditional
sale agreement, capital lease or title
retention agreement (or any financing
lease having substantially the same
economic effect as any of the foregoing)
relating to such asset and (c) in the case
of securities, any purchase option,
call or similar right of a third party with
respect to such securities.
"LOANS" means the loans made by the Bank to the Borrower pursuant
to this
Agreement.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the
assets, operations, or financial condition
of the Borrower, the Guarantor and
the Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform
any of its obligations under this Agreement
or the ability of the Guarantor to
perform any of its obligations under the
Guarantee of the Borrower's
obligations, or (c) the rights of or
benefits available to the Bank under this
Agreement or the Guarantor's Guarantee.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans),
or
obligations in respect of one or more
Hedging Agreements, of (i) any one or more
of the Borrower and its Subsidiaries, in an
aggregate principal amount exceeding
$5,000,000, or (ii) of the Guarantor, in an
aggregate principal amount exceeding
$5,000,000. For purposes of determining
Material Indebtedness, the "principal
amount" of the obligations of the
Guarantor, the Borrower or any Subsidiary in
respect of any Hedging Agreement at any
time shall be the maximum aggregate
amount (giving effect to any netting
agreements) that the Guarantor, the
Borrower or such Subsidiary would be
required to pay if such Hedging Agreement
were terminated at such time.
"MATURITY DATE" means November 8, 2004.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section
4001(a)(3) of ERISA.
"OTHER TAXES" means any and all present or future stamp or
documentary
taxes or any other excise or property
taxes, charges or similar levies arising
from any payment made hereunder or from the
execution, delivery or enforcement
of, or otherwise with respect to, this
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and
defined in ERISA and any successor entity
performing similar functions.
"PERMITTED ENCUMBRANCES" means:
(a)
Liens
imposed by law for taxes that are not yet due or are being
contested in compliance with Section
5.04;
(b)
carriers',
warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law,
arising in the ordinary course of business
and securing obligations that are not
overdue by more than 30 days or are being
contested in compliance with Section
5.04;
(c)
pledges
and deposits made in the ordinary course of business in
compliance with workers' compensation,
unemployment insurance and other social
security laws or regulations;
(d)
deposits
to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and
appeal bonds, performance bonds and
other obligations of a like nature, in each
case in the ordinary course of
business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by
law or arising in the ordinary course
of business that do not secure any monetary
obligations and do not materially
detract from the value of the affected
property or interfere with the ordinary
conduct of business of the Borrower or any
Subsidiary.
PROVIDED that the term "Permitted
Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a)
direct
obligations of, or obligations the principal of and
interest on which are
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unconditionally guaranteed by, the United
States of America (or by any agency
thereof to the extent such obligations are
backed by the full faith and credit
of the United States of America), in each
case maturing within one year from the
date of acquisition thereof;
(b)
investments in commercial paper (excluding commercial paper
issued
by the Borrower or any of the Borrower's
Affiliates) maturing within 270 days
from the date of acquisition thereof and
having, at such date of acquisition,
the highest credit rating obtainable from
S&P or from Moody's;
(c)
investments in certificates of deposit, banker's acceptances
and
time deposits maturing within 180 days from
the date of acquisition thereof
issued or guaranteed by or placed with, and
money market deposit accounts issued
or offered by, any domestic office of any
commercial bank organized under the
laws of the United States of America or any
State thereof which has a combined
capital and surplus and undivided profits
of not less than $500,000,000;
(d)
fully
collateralized repurchase agreements with a term of not more
than 30 days for securities described in
clause (a) above and entered into with
a financial institution satisfying the
criteria described in clause (c) above;
and
(e)
the
financial arrangements listed on Schedule 6.04 hereto and any
extensions and renewals thereof.
"PERSON" means any natural person, corporation, limited
liability
company, trust, joint venture, association,
company, partnership, Governmental
Authority or other entity.
"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA,
and in respect of which the Guarantor,
the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would
under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section
3(5) of ERISA.
"PRIME RATE" means the rate of interest per annum publicly
announced from
time to time by the Bank as its prime rate
in effect at its principal office in
New York City; each change in the Prime
Rate shall be effective from and
including the date such change is publicly
announced as being effective.
"RELATED PARTIES" means, with respect to any specified Person,
such
Person's Affiliates and the respective
directors, officers, employees, agents
and advisors of such Person and such
Person's Affiliates.
"RESTRICTED PAYMENT" means any dividend or other distribution
(whether in
cash, securities or other property) with
respect to any shares of any class of
capital stock of the Borrower or any
Subsidiary, or any payment (whether in
cash, securities or other property),
including any sinking fund or similar
deposit, on account of the purchase,
redemption, retirement, acquisition,
cancellation or termination of any such
shares of capital stock of the Borrower
or any option, warrant or other right to
acquire any such shares of capital
stock of the Borrower.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal),
the
numerator of which is the number one and
the denominator of which is the number
one minus the aggregate of the maximum
reserve percentages (including any
marginal, special, emergency or
supplemental reserves) expressed as a decimal
established by the Board to which the Bank
is subject with respect to the
Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D
of the Board). Such reserve
percentages shall include those imposed
pursuant to such Regulation D.
Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be
subject to such reserve requirements
without benefit of or credit for proration,
exemptions or offsets that may be available
from time to time to any Lender
under such Regulation D or any comparable
regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as
of the effective date of any change in
any reserve percentage.
<Page>
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at
any
date, any corporation, limited liability
company, partnership, association or
other entity the accounts of which would be
consolidated with those of the
parent in the parent's consolidated
financial statements if such financial
statements were prepared in accordance with
GAAP as of such date, as well as any
other corporation, limited liability
company, partnership, association or other
entity (a) of which securities or other
ownership interests representing more
than 50% of the equity or more than 50% of
the ordinary voting power or, in the
case of a partnership, more than 50% of the
general partnership interests are,
as of such date, owned, controlled or held,
or (b) that is, as of such date,
otherwise Controlled, by the parent or one
or more subsidiaries of the parent or
by the parent and one or more subsidiaries
of the parent.
"SUBSIDIARY" means any subsidiary of the Guarantor or Borrower,
as
applicable.
"TAXES" means any and all present or future taxes, levies,
imposts,
duties, deductions, charges or withholdings
imposed by any Governmental
Authority.
"TRANSACTIONS" means the execution, delivery and performance by
the
Borrower of this Agreement, the execution,
delivery and performance by the
Guarantor of the Guarantee, the borrowing
of Loans and the use of the proceeds
thereof.
"TYPE", when used in reference to any Loan, refers to whether the
rate of
interest on such Loan is determined by
reference to the Adjusted LIBO Rate, the
Money Market Rate, or the Alternate Base
Rate.
"UNUSED COMMITMENT" means the daily average of the sum of (i)
the
Commitment, minus (ii) the principal amount
of Loans outstanding.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as
a
result of a complete or partial withdrawal
from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E
of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions of terms herein
shall
apply equally to the singular and plural
forms of the terms defined. Whenever
the context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include", "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation". The word "will"
shall be construed to have the same meaning
and effect as the word "shall".
Unless the context requires otherwise (a)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring
to such agreement, instrument or other
document as from time to time amended,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (b) any reference
herein to any Person shall be construed to
include such Person's successors and
assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar
import, shall be construed to refer to this
Agreement in its entirety and not to
any particular provision hereof, (d) all
references herein to Articles,
Sections, Exhibits and Schedules shall be
construed to refer to Articles and
Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words
"asset" and "property" shall be construed
to have the same meaning and effect
and to refer to any and all tangible and
intangible assets and properties,
including cash, securities, accounts and
contract rights.
SECTION 1.03. ACCOUNTING TERMS; GAAP. Except as otherwise
expressly
provided herein, all terms of an accounting
or financial nature shall be
construed in accordance with GAAP, as in
effect from time to time; PROVIDED
that, if the Borrower notifies the Bank
that the Borrower requests an amendment
to any provision hereof to eliminate the
effect of any change occurring after
the date hereof in GAAP or in the
application thereof on the operation of such
provision (or if the Bank notifies the
Borrower that the Bank request an
amendment to any provision hereof for such
purpose), regardless of whether any
such notice is given before or after such
change in GAAP or in the application
thereof, then such provision shall be
<Page>
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.
ARTICLE II
THE CREDIT
SECTION 2.01. COMMITMENT.
(a)
REVOLVING
CREDIT LOANS. Subject to the terms and conditions set
forth herein, the Bank agrees to make Loans
to the Borrower from time to time
during the Availability Period in an
aggregate principal amount that will not
result in outstanding Loans exceeding the
Commitment. Within the foregoing
limits and subject to the terms and
conditions set forth herein, the Borrower
may borrow, prepay and reborrow Loans.
SECTION 2.02. LOANS. (a) At the commencement of each Interest
Period for
any Eurodollar Loan, such Loan shall be in
an amount that is an integral
multiple of $100,000 and not less than
$1,000,000. At the time that each ABR
Loan is made, such Loan shall be in an
aggregate amount that is an integral
multiple of $50,000; PROVIDED that an ABR
Loan may be in an aggregate amount
that is equal to the entire unused balance
of the total Commitment. Loans of
more than one Type and Class may be
outstanding at the same time; PROVIDED that
there shall not at any time be more than a
total of ten (10) Eurodollar Loans
outstanding.
(b)
Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request,
or to elect to convert or continue,
any Loan if the Interest Period requested
with respect thereto would end after
the Maturity Date.
SECTION 2.03. REQUESTS
FOR LOANS. To request a Loan, the Borrower shall
notify the Bank of such request by
telephone (a) in the case of a Eurodollar
Loan, not later than 4 p.m., New York City
time, three Business Days before the
date of the proposed Loan, or (b) in the
case of a ABR Loan, not later than 3
p.m., New York City time, on the date of
the proposed Loan. Each such telephonic
Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand
delivery or telecopy to the Bank of a
written Borrowing Request in the form
attached hereto as Exhibit B, and signed by
the Borrower. Each such telephonic
and written Borrowing Request shall specify
the following information in
compliance with Section 2.02:
(i) the
amount of the requested Loan;
(ii) the date of
such Loan, which shall be a Business Day;
(iii) whether such
Loan is to be an ABR Loan or a Eurodollar
Loan;
(iv)
in the case of a
Eurodollar Loan, the initial Interest Period to
be applicable thereto, which shall be a
period contemplated by the definition of
the term "Interest Period"; and
(v) the
location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Loan is
specified, then the requested Loan
shall be an ABR Loan. If no Interest Period
is specified with respect to any
requested Eurodollar Loan, then the
Borrower shall be deemed to have selected an
Interest Period as offered by the Bank,
which shall not exceed one month's
duration, in the case of a Eurodollar
Loan.
<Page>
SECTION 2.04. FUNDING OF LOANS. The Bank shall make each Loan
available
to the Borrower by wire transfer to an
account of the Borrower designated by the
Borrower in the applicable Borrowing
Request.
SECTION 2.05. INTEREST ELECTIONS. (a) Each Loan initially shall be
of the
Type specified in the applicable Borrowing
Request and, in the case of a
Eurodollar Loan, shall have an initial
Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower
may elect to convert such Loan to a
different Type or to continue such Loan
and, in the case of a Eurodollar Loan,
may elect Interest Periods therefor, all as
provided in this Section. The
Borrower may elect different options with
respect to different portions of the
affected Loan and each such portion shall
be considered a separate Loan.
(b)
To make an
election pursuant to this Section, the Borrower shall
notify the Bank of such election by
telephone by the time that a Borrowing
Request would be required under Section
2.03 if the Borrower were requesting a
Loan of the Type resulting from such
election to be made on the effective date
of such election. Each such telephonic
Interest Election Request shall be
irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the
Bank of a written Interest Election Request
in a form approved by the Bank and
signed by the Borrower.
(c)
Each
telephonic and written Interest Election Request shall
specify the following information in
compliance with Section 2.02:
(i) the
Loan to which such Interest Election Request applies
and, if different options are being elected with respect to
different portions thereof, the portions thereof to be
allocated to each resulting Loan (in which case the
information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Loan);
(ii)
the effective
date of the election made pursuant to such Interest
Election Request, which shall be a Business
Day;
(iii) whether the
resulting Loan is to be an ABR Loan or a
Eurodollar Loan; and
(iv) if the
resulting Loan is a Eurodollar Loan, the Interest
Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request
requests a Eurodollar Loan but does not
specify an Interest Period, then the
Borrower shall be deemed to have selected
an Interest Period of one month's duration
for a Eurodollar Loan.
(d)
If the
Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Loan
prior to the end of the Interest
Period applicable thereto, then, unless
such Loan is repaid as provided herein,
at the end of such Interest Period such
Loan shall be converted to an ABR Loan.
Notwithstanding any contrary provision
hereof, if an Event of Default has
occurred and is continuing and the Bank so
notifies the Borrower, then, so long
as an Event of Default is continuing (i) no
outstanding Loan may be converted to
or continued as a Eurodollar Loan and (ii)
unless repaid, each Eurodollar Loan
shall be converted to an ABR Loan at the
end of the Interest Period applicable
thereto.
SECTION 2.06. TERMINATION AND REDUCTION OF COMMITMENT. (a)
Unless
previously terminated, the Commitment shall
terminate on the Maturity Date.
(b)
The
Borrower may at any time terminate, or from time to time
reduce, the Commitment; PROVIDED that (i)
each reduction of the Commitment shall
be in an amount that is an integral
multiple of
<Page>
$500,000 and not less than $1,000,000, and
(ii) the Borrower shall not terminate
or reduce the Commitment if, after giving
effect to any concurrent prepayment of
the Loans in accordance with Section 2.08,
the aggregate amount of Loans
outstanding exceeds the Commitment.
(c)
The
Borrower shall notify the Bank of any election to terminate or
reduce the Commitment under paragraph (b)
of this Section at least three
Business Days prior to the effective date
of such termination or reduction,
specifying such election and the effective
date thereof. Each notice delivered
by the Borrower pursuant to this Section
shall be irrevocable; PROVIDED that a
notice of termination of the Commitment
delivered by the Borrower may state that
such notice is conditioned upon the
effectiveness of other credit facilities, in
which case such notice may be revoked by
the Borrower (by notice to the Bank on
or prior to the specified effective date)
if such condition is not satisfied.
Any termination or reduction of the
Commitment shall be permanent.
SECTION 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) The
Borrower
hereby unconditionally promises to pay to
the Bank the then unpaid principal
amount of each Loan on the Maturity
Date.
(b)
The Bank
shall maintain in accordance with its usual practice an
account or accounts evidencing (i) the
indebtedness of the Borrower to the Bank
resulting from each Loan made by the Bank,
including the amounts of principal
and interest payable and paid to the Bank
from time to time hereunder, (ii) the
amount of each Loan made hereunder, the
Type thereof and the Interest Period
applicable thereto, and (iii) the amount of
any principal or interest due and
payable or to become due and payable from
the Borrower to the Bank hereunder.
(c)
The
entries made in the accounts maintained pursuant to paragraph
(b) of this Section shall be PRIMA FACIE
evidence of the existence and amounts
of the obligations recorded therein;
PROVIDED that the failure of the Bank to
maintain such accounts or any error therein
shall not in any manner affect the
obligation of the Borrower to repay the
Loans in accordance with the terms of
this Agreement.
(d)
The Bank
may request that Loans be evidenced by a promissory note.
In such event, the Borrower shall prepare,
execute and deliver to the Bank a
promissory note payable to the order of the
Bank (or, if requested by the Bank,
to the Bank and its registered assigns).
Thereafter, the Loans evidenced by such
promissory note and interest thereon shall
at all times (including after
assignment pursuant to Section 8.04) be
represented by one or more promissory
notes in such form payable to the order of
the payee named therein (or, if such
promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.08. PREPAYMENT OF LOANS. (a) The Borrower shall have the
right
at any time and from time to time to prepay
any Loan in whole or in part,
subject to prior notice in accordance with
paragraph (b) of this Section.
(b)
The
Borrower shall notify the Bank by telephone (confirmed by
telecopy) of any prepayment hereunder (i)
in the case of prepayment of a
Eurodollar Loan, not later than 11:00 a.m.,
New York City time, three Business
Days before the date of prepayment, (ii) in
the case of prepayment of an ABR
Loan, not later than 11:00 a.m., New York
City time, one Business Day before the
date of prepayment. Each such notice shall
be irrevocable and shall specify the
prepayment date and the principal amount of
each Loan or portion thereof to be
prepaid; PROVIDED that, if a notice of
prepayment is given in connection with a
conditional notice of termination of the
Commitment as contemplated by Section
2.06, then such notice of prepayment may be
revoked if such notice of
termination is revoked in accordance with
Section 2.06. Each partial prepayment
of any Loan shall be in an amount that
would be permitted in the case of an
advance of a Loan of the same Type as
provided in Section 2.02. Prepayments
shall be accompanied by accrued interest to
the extent required by Section 2.10.
SECTION
2.09. FEES. (a) The Borrower agrees to pay to the Bank a
facility
fee, which shall
<Page>
accrue at the Facility Fee Applicable Rate
on the daily amount of the Unused
Commitment during the period from and
including the Effective Date to but
excluding the date on which the Commitment
terminates. Accrued facility fees
shall be payable in arrears upon not less
than ten (10) days prior written
notice on the last day of March, June,
September and December of each year and
on the date on which the Commitment
terminates, commencing on the first such
date to occur after the date hereof. All
facility fees shall be computed on the
basis of a year of 360 days and shall be
payable for the actual number of days
elapsed (including the first day but
excluding the last day).
(b)
All fees
payable hereunder shall be paid on the dates due, in
immediately available funds. Fees paid
shall not be refundable under any
circumstances.
SECTION 2.10. INTEREST. (a) The ABR Loans shall bear interest at
the
Alternate Base Rate plus the Applicable
Rate.
(b)
The
Eurodollar Loans shall bear interest at the Adjusted LIBO Rate
for the Interest Period in effect for such
Loan plus the Applicable Rate.
(c)
Notwithstanding the foregoing, if any principal of or interest
on
any Loan or any fee or other amount payable
by the Borrower hereunder is not
paid within five (5) days of the date when
due, whether at stated maturity, upon
acceleration or otherwise, such overdue
amount shall bear interest, after as
well as before judgment, at a rate per
annum equal to (i) in the case of overdue
principal of any Loan, 1% plus the rate
otherwise applicable to such Loan as
provided in the preceding paragraphs of
this Section or (ii) in the case of any
other amount, 1% plus the rate applicable
to ABR Loans as provided in paragraph
(a) of this Section.
(d)
Accrued
interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and
upon termination of the Commitment;
PROVIDED that (i) interest accrued pursuant
to paragraph (c) of this Section
shall be payable on demand, (ii) in the
event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR
Loan prior to the end of the
Availability Period), accrued interest on
the principal amount repaid or prepaid
shall be payable on the date of such
repayment or prepayment and (iii) in the
event of any conversion of a Eurodollar
Loan prior to the end of the current
Interest Period therefor, accrued interest
on such Loan shall be payable on the
effective date of such conversion.
(e)
All
interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by
reference to the Alternate Base Rate
at times when the Alternate Base Rate is
based on the Prime Rate shall be
computed on the basis of a year of 365 days
(or 366 days in a leap year), and in
each case shall be payable for the actual
number of days elapsed (including the
first day but excluding the last day). The
applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be
determined by the Bank, and such
determination shall be conclusive absent
manifest error.
SECTION 2.11. ALTERNATE RATE OF INTEREST. If prior to the
commencement of
any Interest Period for a Eurodollar
Loan:
(a)
the Bank
determines (which determination shall be conclusive
absent manifest error) that adequate and
reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or the
LIBO Rate, as applicable, for such
Interest Period; or
(b)
the Bank
determines (which determination shall be conclusive
absent manifest error) that the Adjusted
LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will
not adequately and fairly reflect the
cost to the Bank of making or maintaining
the Loan for such Interest Period;
then the Bank shall give notice thereof to
the Borrower by telephone or telecopy
as promptly as practicable thereafter and,
until the Bank notifies the Borrower
that the circumstances giving rise to such
notice no
<Page>
longer exist, (i) any Interest Election
Request that requests the conversion of
any Loan to, or continuation of any Loan
as, a Eurodollar Loan shall be
ineffective and (ii) if any Borrowing
Request requests a Eurodollar Loan, such
Loan shall be made as an ABR Loan; PROVIDED
that if the circumstances giving
rise to such notice affect only one Type of
Loan, then the other Type of Loans
shall be permitted.
SECTION 2.12. INCREASED COSTS.
A.
Except as provided below in this clause, the Borrower must,
within
three Business Days of demand by the Bank,
pay to the Bank the amount of any
Increased Cost incurred by the Bank or any
of its Affiliates as a result of:
(a) the
introduction of, or any change in, or any change in the
interpretation or application of, any law
or regulation; or
(b)
compliance with any law or regulation made after the date
of this Agreement.
B.
EXCEPTIONS. The Borrower need not make any payment for an
Increased Cost to the extent that the
Increased Cost is:
(a)
compensated for under another clause or would have been but
for an exception to that clause;
(b) a tax
on the overall net income of the Bank or any of its
Affiliates; or
(c)
attributable to the Bank or its Affiliate willfully failing
to comply with any law or regulation.
C.
CLAIMS. If the Bank intends to make a claim for an Increased
Cost
must notify the Borrower promptly of the
circumstances giving rise to, and the
amount of, the claim and, where
practicable, the Bank shall provide the Borrower
with reasonable details of the calculation
of the amount of the claim.
SECTION 2.13. BREAK FUNDING PAYMENTS.
(a)
The
Borrower must pay to the Bank its Break Costs.
(b)
Break
Costs are the amount (if any) determined by the Bank by
which:
(i) the
interest which the Bank would have received for the
period from the date of receipt of any part of its share in
a Loan or an overdue amount to the last day of the
applicable Interest Period for that Loan or overdue amount
if the principal or overdue amount received had been paid
on the last day of that Interest Period, exceeds
(ii) the amount
which the Bank would be able to obtain by
placing an amount equal to the amount received by it on
deposit with a leading bank in the appropriate interbank
market for a period starting on the Business Day following
receipt and ending on the last day of the applicable
Interest Period discounted at a rate equal to the sum of
the Applicable Rate and the Adjusted LIBOR Rate for the
relevant period in respect of that Loan or overdue amount
(as the case may be) to reflect that such amount is due on
a date (that is, the date which is five Business Days after
the date on which such amount is demanded by the Bank under
paragraph (a) above) which is earlier than the last day of
the current Interest Period of that Loan or overdue amount
(as the case may be).
<Page>
(c)
A
certificate of the Bank setting forth any amount or amounts
that
the Bank is entitled to receive pursuant to
this section shall be delivered to
the Borrower and shall be conclusive absent
manifest error. The Borrower shall
pay the Bank the amount shown as due on any
such certificate within ten days
after receipt thereof.
SECTION 2.14. TAXES. (a) Any and all payments by or on account of
any
obligation of the Borrower hereunder shall
be made free and clear of and without
deduction for any Indemnified Taxes or
Other Taxes; PROVIDED that if the
Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable
shall be increased as necessary so that
after making all required deductions
(including deductions applicable to
additional sums payable under this Section)
the receives an amount equal to the
sum it would have received had no such
deductions been made, (ii) the Borrower
shall make such deductions and (iii) the
Borrower shall pay the full amount
deducted to the relevant Governmental
Authority in accordance with applicable
law.
(b)
In
addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in
accordance with applicable law.
(c)
The
Borrower shall indemnify the Bank within 10 days after written
demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes
paid by the Bank on or with respect to any
payment by or on account of any
obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to
amounts payable under this Section)
and any penalties, interest and reasonable
expenses arising therefrom or with
respect thereto, whether or not such
Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by
the relevant Governmental Authority.
A certificate as to the amount of such
payment or liability delivered to the
Borrower by the Bank on its own behalf or
on behalf of the Bank shall be
conclusive absent manifest error.
(d)
As soon as
practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a
Governmental Authority, the Borrower shall
deliver to the Bank the original or a
certified copy of a receipt issued by such
Governmental Authority evidencing such
payment, a copy of the return reporting
such payment or other evidence of such
payment reasonably satisfactory to the
Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The
Borrower represents and warrants to the Bank that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Guarantor, the
Borrower
and their Subsidiaries is duly organized,
validly existing and in good standing
under the laws of the jurisdiction of its
organization, has all requisite power
and authority to carry on its business as
now conducted and, except where the
failure to do so, individually or in the
aggregate, could not reasonably be
expected to result in a Material Adverse
Effect, is qualified to do business in,
and is in good standing in, every
jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are
within
the Borrower's and the Guarantor's, as
applicable, organizational powers and
have been duly authorized by all necessary
organizational and, if required,
stockholder or member, as applicable,
action. This Agreement has been duly
executed and delivered by the Borrower and
constitutes a legal, valid and
binding obligation of the Borrower,
enforceable in accordance with its terms,
subject to applicable bankruptcy,
