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
Page
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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
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
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
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
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:
ABR SPREAD EURODOLLAR SPREAD FACILITY FEE RATE
------------------------- -------------------------- -----------------------
0 100 37.5
------------------------- -------------------------- -----------------------
"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
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).
"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
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
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 Xxxxx 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.
"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 Xxxxx'x 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
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.
"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
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.
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
$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
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
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).
(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, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions (a)
do not require any
consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or
the charter, by-laws or other organizational documents of the Guarantor, the
Borrower or any of their Subsidiaries, or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Guarantor, the Borrower or any of
their Subsidiaries or their assets, or give rise to a right thereunder to
require any payment to be made by the Guarantor, the Borrower or any of their
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Guarantor, the Borrower or any of their Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE EFFECT. (a) The
Guarantor has heretofore furnished to the Bank its consolidated balance sheet
and statement of income, stockholders equity and cash flows as of and for the
fiscal year ended December 31, 2002, reported on by KPMG, LLP, independent
public accountants. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Guarantor and its consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP.
(b) As of the Effective Date and as of the date of any Loan hereunder:
since the date of the most recent financial statements delivered to the Bank
pursuant to Section 3.04(a) or Section 5.01(a) or (b), as applicable, there has
been no Material Adverse Effect.
SECTION 3.05. PROPERTIES. (a) Each of the Guarantor, the Borrower and
their Subsidiaries has good title to, or valid leasehold interests in, all its
real and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Guarantor, the Borrower and their Subsidiaries owns,
or is licensed to use, all trademarks, trade names, copyrights, patents and
other intellectual property material to its business, and the use thereof by the
Guarantor, the Borrower and their Subsidiaries does not infringe upon the rights
of any other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) Except for the
Disclosed Matters, there are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Guarantor, the Borrower or any of
their Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Guarantor, the
Borrower nor any of their Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability, or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Except for the
Disclosed Matters, each of the Guarantor, the Borrower and their Subsidiaries is
in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. INVESTMENT AND HOLDING COMPANY STATUS. Neither the
Guarantor, the Borrower nor any of their Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. TAXES. Each of the Guarantor, the Borrower and their
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. DISCLOSURE. Taking into account any matters disclosed in
the Borrower's and Guarantor's public filings with the Securities and Exchange
Commission, the Guarantor and the Borrower have disclosed to the Bank all
agreements, instruments and corporate or other restrictions to which either of
them or any of their Subsidiaries are subject, and all other matters known to
it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Guarantor or
the Borrower to the Bank in connection with the negotiation of this Agreement,
the Guarantor's Guarantee or delivered hereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
PROVIDED that, with respect to projected financial information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligation of the Bank to make Loans
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 8.02):
(a) The Bank (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Bank (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.
(b) The Bank shall have received a favorable written opinions
(addressed to the Bank and dated the Effective Date) of Xxxxx Xxxxxxx LLP,
counsel for the Borrower and the Guarantor, substantially in the form of Exhibit
A and Exhibit A-1, respectively, and covering such other matters relating to the
Borrower and the Guarantor, this Agreement, the Guarantor's Guarantee or the
Transactions as the Bank shall reasonably request. The Borrower hereby requests
such counsel to deliver such opinion.
(c) The Bank shall have received such documents and certificates as
the Bank or its counsel
may reasonably request relating to the organization, existence and good standing
of the Borrower and the Guarantor, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement or the
Transactions, all in form and substance satisfactory to the Bank and its
counsel.
(d) The Bank shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in paragraphs (a)
and (b) of Section 4.02.
(e) The Bank (or its counsel) shall have received from the Guarantor a
duly executed Guarantee, in form and substance satisfactory to the Bank and its
counsel.
(f) The Bank shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder.
(g) The Bank shall have received an Authorization Letter from the
Borrower.
The Bank shall notify the Borrower of the Effective Date, and such notice shall
be conclusive and binding. Notwithstanding the foregoing, the obligation of the
Bank to make Loans hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 8.02) at or
prior to 3:00 p.m.,
New York City time, on November 21, 2003 (and, in the event
such conditions are not so satisfied or waived, the Commitment shall terminate
at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of the Bank to make any
Loan (including the initial Loan) is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct in all material respects on and as of
the date of such Loan.
(b) At the time of and immediately after giving effect to such Loan no
Default shall have occurred and be continuing.
The borrowing of each Loan shall be deemed to constitute a representation and
warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section, except for any representation or
warranty which expressly relates to a prior date.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitment has expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full, the Borrower covenants and agrees with the Bank that:
SECTION 5.01. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Borrower
will furnish to the Bank, at its
New York office identified in Section 8.01(b),
the financial statements and other information set forth in this Section. The
Borrower's obligation to furnish the financial statements under clauses (a) and
(b) shall be deemed fulfilled by written notice to the Bank of the statement's
availability on-line at xxx.XXX.Xxx/Xxxxx/XxxxxxXxxxx and the Bank's successful
access of the statements in that manner within the proscribed time period.
(a) within 90 days after the end of each fiscal year of the Guarantor,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all
reported on by KPMG, LLP or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of the
Guarantor and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Guarantor, its consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the
fiscal year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of the Financial
Officers of each entity as presenting fairly in all material respects the
financial condition and results of operations of the Guarantor and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower or
Guarantor, as applicable, in the form of Exhibit D (i) certifying as to whether
a Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto, and
(ii) stating whether any change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 3.04, and, if any such change has occurred, specifying the effect of
such change on the financial statements accompanying such certificate;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary or the Guarantor with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Guarantor to its shareholders generally, as the case may be;
and
(e) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Bank may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Bank prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower, the Guarantor or any Affiliate thereof that, could reasonably be
expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower, the Guarantor and their Subsidiaries in an aggregate
amount exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and will
cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business;
PROVIDED that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Bank, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS. The proceeds of the Loans will be used
only for working capital purposes and mergers and acquisitions permitted
hereunder. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations G, U and X.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitment has expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full, the
Borrower covenants and agrees with the Bank that:
SECTION 6.01. INDEBTEDNESS. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof; PROVIDED that (i) such Indebtedness is incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness permitted by
this clause (e) shall not exceed $5,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after the
date hereof; PROVIDED that (i) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (ii) the aggregate principal amount
of Indebtedness permitted by this clause (f) shall not exceed $2,000,000 at any
time outstanding;
(g) Indebtedness of the Borrower or any Subsidiary as an account party
in respect of trade letters of credit;
(h) Other unsecured Indebtedness in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding; and
(i) In addition to other Indebtedness permitted under the terms of
this Section 6.01, Indebtedness incurred with mergers and acquisitions permitted
hereunder, up to a maximum aggregate amount outstanding at any time of
$20,000,000.
SECTION 6.02. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02; PROVIDED
that (i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary; PROVIDED that (i) such Lien
is not created in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary , as the case may be, (ii) such Lien shall not
apply to any other property or assets of the Borrower or any Subsidiary and
(iii) such Lien shall secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be [and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof]; and
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any
Subsidiary; PROVIDED that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (iv) such security
interests shall not apply to any other property or assets of the Borrower or any
Subsidiary.
SECTION 6.03. FUNDAMENTAL CHANGES. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or sell,
transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of its assets, or all or substantially
all of the stock of any of its Subsidiaries (in each case, whether now owned or
hereafter acquired), or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary may merge into any Subsidiary in a transaction in which the surviving
entity is a Subsidiary, (iii) any Subsidiary may sell, transfer, lease or
otherwise dispose of its assets to the Borrower or to another Subsidiary, (iv)
any Subsidiary may liquidate or dissolve if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Bank, and (v) Borrower may
consummate mergers and acquisitions as permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date of execution of
this Agreement and businesses related, similar or incidental thereto.
SECTION 6.04. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS.
The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any capital stock, evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries;
(c) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
(e) mergers with other Persons or acquisitions of the capital stock or
assets of any Person, provided that such merger or acquisition does not result
in a Change of Control.
SECTION 6.05. HEDGING AGREEMENTS. Except as set forth in Schedule 6.05,
the Borrower will not, and will not permit any of its Subsidiaries to, enter
into any Hedging Agreement, other than Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which the Borrower or
any Subsidiary is exposed in the conduct of its business or the management of
its liabilities.
SECTION 6.06. RESTRICTED PAYMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment,
except (a) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock, (b)
Subsidiaries may declare and pay dividends ratably with respect to their capital
stock, (c) the Borrower may make Restricted Payments pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of the Borrower and its Subsidiaries, (d) issuance of new shares of
capital stock in connection with mergers and acquisitions permitted hereunder,
and (e) as set forth in Schedule 6.06.
SECTION 6.07. TRANSACTIONS WITH AFFILIATES. Except as set forth in
Schedule 6.07, the Borrower will not, and will not permit any of its
Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise
engage in any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary than could be obtained on an arm's
length basis from unrelated third parties, (b) transactions between or among the
Borrower and its Subsidiaries not involving any other Affiliate, and (c) any
Restricted Payment permitted by Section 6.06.
SECTION 6.08. RESTRICTIVE AGREEMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; PROVIDED that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases [and other contracts] restricting the
assignment thereof.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when and
as the same shall become due and payable, whether at the due date thereof or at
a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five
Business Days after notification by Bank;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary or the Guarantor in or in connection with this
Agreement or any amendment or modification hereof or waiver hereunder, or in any
report, certificate, financial statement or other document furnished pursuant to
or in connection with this Agreement or any amendment or modification hereof or
waiver
hereunder, shall prove to have been incorrect in any material respect when made
or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Sections 5.02 or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Bank to the
Borrower;
(f) the Borrower or any Subsidiary or the Guarantor shall fail to make
any payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or the Guarantor or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary or the Guarantor shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any Subsidiary
or the Guarantor or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors or (vi)
take any action for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary or the Guarantor shall become
unable, admit in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower, the
Guarantor, any Subsidiary, or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Bank, when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding (i) $5,000,000 in any year or (ii)
$5,000,000 for all periods; or
(m) a Change in Control of the Borrower shall occur;
(n) a Change in Control of the Guarantor shall occur; or
(o) the Guarantee of the Borrower's obligations executed and delivered
to the Bank by the Guarantor shall at any time or for any reason cease to be in
full force and effect or shall be declared null and void, or the validity or
enforceability thereof shall be contested by the Guarantor or the Guarantor
shall deny it has any further liability or obligations thereunder;
then, and in every such event (other than an event with respect to the Borrower
or Guarantor described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Bank may, by notice to the
Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitment, and thereupon the Commitment shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower or the Guarantor described in clause (h) or (i) of this Article, the
Commitment shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.
ARTICLE VIII
Miscellaneous
SECTION 8.01. NOTICES. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxxxxxxxx Xxxx - Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, ATTN: Chief Financial Officer and General Counsel
(Telecopy No.: (000) 000-0000);
(b) with a copy to: Xxxxx Xxxxxxx LLP, 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, ATTN: Xxx Xxxxx (Telecopy No. (000) 000-0000);
(c) if to Bank, to it at 000 Xxxx Xxxxxx, Xxx Xxxx 00000, Attention of
Asian/European Client Group (Telecopy No. 646 534-3922).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 8.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the Bank in
exercising any right or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Bank hereunder are cumulative and
are not exclusive of any rights or remedies that they
would otherwise have. No waiver of any provision of this Agreement or consent to
any departure by the Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Bank may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Bank.
SECTION 8.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Bank and its
Affiliates, including the reasonable fees, charges and disbursements of counsel
for the Bank and costs allocated by its internal legal department, in connection
with the preparation, administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable out-of-pocket expenses incurred by the Bank, including the fees,
charges and disbursements of any counsel for the Bank, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Bank, and each Related Party of
the Bank (each such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of its Subsidiaries, or any Environmental Liability related in any way to
the Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; PROVIDED that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
negligence or misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(d) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 8.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Bank (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Bank) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) The Bank may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); PROVIDED that, except in
the case of an assignment to an Affiliate of the Bank, the Borrower must give
its prior written consent to such assignment (which consent shall not be
unreasonably withheld); and PROVIDED FURTHER that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is continuing.
Subject to notification of an assignment, the assignee shall be a party hereto
and, to the extent of the interest assigned, have the rights and obligations of
the Bank under this Agreement, and the Bank shall, to the extent of the interest
assigned, be released from its obligations under this Agreement (and, in the
case of an assignment covering all of the Bank's rights and obligations under
this Agreement, the Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 8.03). Any
assignment or transfer by the Bank of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by the Bank of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(c) The Bank may, without the consent of the Borrower, sell
participations to one or more banks or other entities (a "PARTICIPANT") in all
or a portion of the Bank's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED that (i) the Bank's obligations under this Agreement shall remain
unchanged, (ii) the Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower shall
continue to deal solely and directly with the Bank in connection with the Bank's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which the Bank sells such a participation shall provide that the
Bank shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; PROVIDED
that such agreement or instrument may provide that the Bank will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 8.02(b) that affects such Participant.
Subject to paragraph (d) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to
the same extent as if it were the Bank and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(d) A Participant shall not be entitled to receive any greater payment
under Section 2.12 or 2.14 than the Bank would have been entitled to receive
with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower's prior written
consent.
(e) The Bank may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
the Bank, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; PROVIDED that no such pledge or assignment of a security
interest shall release the Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for the Bank as a party hereto.
SECTION 8.05. SURVIVAL. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the Bank and shall survive the execution
and delivery of this Agreement and the making of any Loans, regardless of any
investigation made by the Bank or on its behalf and notwithstanding that the
Bank may have had notice or knowledge of any Default or incorrect representation
or warranty at the time any credit is extended hereunder, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding
and unpaid and so long as the Commitment has not expired or terminated. The
provisions of Sections 2.12, 2.13, 2.14 and 8.03 and Article VII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitment or the termination of
this Agreement or any provision hereof.
SECTION 8.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Bank constitute
the entire contract among the parties relating to the subject matter hereof and
supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the Bank
and when the Bank shall have received counterparts hereof which, when taken
together, bear the signature of the Borrower, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 8.08. RIGHT OF SETOFF. If an Event of Default shall have occurred
and be continuing, the Bank and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by the Bank and such Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by the Bank, irrespective of whether or not
the Bank shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of the Bank under this Section are in
addition to other rights and remedies (including other rights of setoff) which
the Bank may have.
SECTION 8.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of
New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Bank may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.01. Nothing in this
Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 8.12. CONFIDENTIALITY. The Bank agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Bank on a
nonconfidential basis from a source other than the Borrower. For the purposes of
this Section, "INFORMATION" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Bank on a nonconfidential basis prior to disclosure by the
Borrower; PROVIDED that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 8.13. INTEREST RATE LIMITATION. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "CHARGES"), shall exceed the
maximum lawful rate (the "MAXIMUM RATE") which may be contracted for, charged,
taken, received or reserved by the Bank in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NAVIGATION TECHNOLOGIES NORTH AMERICA, LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Executive Vice President and Chief Financial Officer
----------------------------------------------------
JPMORGAN CHASE BANK
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
--------------
Title: Vice President
--------------
EXHIBIT A
OPINION OF COUNSEL FOR THE BORROWER
[Effective Date]
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
[I/We] have acted as counsel for Navigation Technologies North America,
LLC, a Delaware corporation (the "Borrower"), in connection with the Credit
Agreement dated as of November ___, 2003 (the "Credit Agreement"), between the
Borrower and JPMorgan Chase Bank. Terms defined in the Credit Agreement are used
herein with the same meanings.
[I, or individuals under my direction,/We] have examined originals or
copies, certified or otherwise identified to [my/our] satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as
[I/we] have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, [I am/we are] of the opinion that:
1. The Borrower (a) is a limited liability company duly organized,
validly existing and in good standing under the laws of Delaware, (b) has all
requisite power and authority to carry on its business as now conducted and (c)
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.
2. The Transactions are within the Borrower's organizational powers
and have been duly authorized by all necessary organizational and, if required,
organizational action. The Credit 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, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Borrower or
any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
4. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to [my/our] knowledge,
threatened against or affecting the Borrower or any of its Subsidiaries (a) as
to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than the Disclosed Matters)
or (b) that involve the Credit Agreement or the
Transactions.
5. Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
[I am a member/we are members] of the bar of the State of New York and
the foregoing opinion is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware, the Limited Liability Company
Law of the State of Delaware and the Federal laws of the United States of
America. This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other Person (other than your successors and assigns as
Lenders and Persons that acquire participations in your Loans) without our prior
written consent.
Very truly yours,
2
EXHIBIT A-1
OPINION OF COUNSEL FOR THE GUARANTOR
[Effective Date]
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
[I/We] have acted as counsel for Navigation Technologies Corporation, a
Delaware corporation (the "Guarantor"), in connection with the Guaranty executed
and delivered by the Guarantor to JPMorgan Chase Bank (the "Guaranty") of the
obligations of Navigation Technologies North America, LLC (the "Borrower") in
connection with the Credit Agreement dated as of November ___, 2003 (the "Credit
Agreement"), between the Borrower and JPMorgan Chase Bank. Terms defined in the
Credit Agreement are used herein with the same meanings.
[I, or individuals under my direction,/We] have examined originals or
copies, certified or otherwise identified to [my/our] satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as
[I/we] have deemed necessary or advisable for purposes of this opinion.
Upon the basis of the foregoing, [I am/we are] of the opinion that:
1. The Guarantor (a) is a corporation duly organized, validly
existing and in good standing under the laws of Delaware, (b) has all requisite
power and authority to carry on its business as now conducted and (c) 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.
2. The Transactions are within the Guarantor's corporate powers and
have been duly authorized by all necessary corporate and, if required,
stockholder action. The Guaranty has been duly executed and delivered by the
Guarantor and constitutes a legal, valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Guarantor or any of its Subsidiaries or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Guarantor or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Guarantor or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Guarantor or any of its Subsidiaries.
4. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to [my/our] knowledge,
threatened against or affecting the Guarantor or any of its Subsidiaries (a) as
to which there is a reasonable possibility of an adverse determination and that,
if
adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than the Disclosed Matters)
or (b) that involve the Guaranty or the Transactions.
5. Neither the Guarantor nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
[I am a member/we are members] of the bar of the State of New York and
the foregoing opinion is limited to the laws of the State of New York, the
General Corporation Law of the State of Delaware and the Federal laws of the
United States of America. This opinion is rendered solely to you in connection
with the above matter. This opinion may not be relied upon by you for any other
purpose or relied upon by any other Person (other than your successors and
assigns as Lenders and Persons that acquire participations in your Loans)
without our prior written consent.
Very truly yours,
2
EXHIBIT B
NOTICE OF BORROWING REQUEST
To: JPMorgan Chase Bank
___________________________
New York, New York ________
Attention:_________________
Fax No. (___) _____________
RE: Credit Agreement dated as of November 10, 2003, by and between Navigation
Technologies North America, LLC and JPMorgan Chase Bank (the "Credit
Agreement")
Notice of Borrowing Request
Dear Sir or Madam:
Reference is made to the Credit Agreement for a complete statement of
its terms and conditions. Any capitalized term used and not otherwise defined
herein shall have the meaning ascribed to it in the Credit Agreement. The
Borrower hereby requests a Loan pursuant to Section 2.03 of the Credit
Agreement. [This notice confirms the telephonic loan request made [date and
time] by [representative of Borrower] to [representative of Bank].
(i) Amount of the requested Loan: $______________________
(ii) the date of such Loan, which shall be a Business Day:__________________
(iii) Type of Loan (ABR Loan or a Eurodollar Loan):_________________
(iv) in the case of a Eurodollar Loan, the initial Interest
Period:___________
(v) Account Loan is to be wire transferred to:
Bank Name: LaSalle Bank, NA
Address: 000 X. XxXxxxx Xx., Xxxxxxx, XX, 00000
Account Name: Navtech Main Depository Account
ABA Number:000-000-000
Account #:5800265570
Swift code: XXXXXX00
If you have any questions, please direct them to the attention of the
undersigned.
Very truly yours,
Navigation Technologies North America, LLC
By:
---------------------------------------
Name:
------------------------------------
Its:
--------------------------------------
2
EXHIBIT C
FORM OF AUTHORIZATION LETTER
----------------
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Credit Agreement dated as of November 10, 2003 (the "Agreement")
among Navigation Technologies North America, LLC (the "Borrower")
and JPMorgan Chase Bank (the "Bank")
Ladies and Gentlemen:
In connection with the captioned Credit Agreement, we hereby designate
any one of the following persons to give to you instructions, including notices
required pursuant to the Agreement, orally or by telephone or teleprocess:
NAME (TYPEWRITTEN)
Instructions may be honored on the oral, telephonic or teleprocess
instructions of anyone purporting to be any one of the above designated persons
even if the instructions are for the benefit of the person delivering them. We
will furnish you with confirmation of each such instruction either by telex
(whether tested or untested) or in writing signed by any person designated above
(including any telecopy which appears to bear the signature of any person
designated above) on the same day that the instruction is provided to you but
your responsibility with respect to any instruction shall not be affected by
your failure to receive such confirmation or by its contents.
You shall be fully protected in, and shall incur no liability to us
for, acting upon any instructions which you in good faith believe to have been
given by any person designated above, and in no event shall you be liable for
special, consequential or punitive damages. In addition, we agree to hold you
and your agents harmless from any and all liability, loss and expense arising
directly or indirectly out of instructions that we provide to you in connection
with the Credit Agreement except for liability, loss or expense occasioned by
the gross negligence or willful misconduct of you or your agents.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
EXHIBIT D
Certificate of a Financial Officer
CERTIFICATE OF COMPLIANCE
Pursuant to
Credit Agreement
Dated as of November 10, 2003
I, the undersigned, ___________, a Financial Officer of Navigation
Technologies North America, LLC (the "Borrower"), do certify to the JPMorgan
Chase Bank (the "Bank") as required under Section 5.01(c) of the Credit
Agreement (the "Agreement"), dated November 10, 2003 between the Bank and the
Borrower, as follows:
1. [No Default has occurred under the Agreement, and no condition,
event or act which, with the giving of notice or the passage of
time or both, would constitute an Event of Default under the
Agreement, has occurred and is continuing or exists as of the date
hereof.] or
1. [A Default has occurred under the Agreement, and the details
thereof and any action taken or proposed to be taken with respect
thereto are as follows:]
2. [No change in GAAP or in the application thereof has occurred
since the date of the audited financial statements referred to in
Section 3.04] or
2. [A change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in
Section 3.04, and the effect of such change on the financial
statements accompanying this certificate is set forth as follows]:
All terms used herein and not defined herein shall have the meanings
given to them in the Agreement.
The Bank may rely on this Certificate in its evaluation of the
Financial Statements which it accompanies.
IN WITNESS WHEREOF, I have executed this Certificate this _______ day of
_______________.
--------------------------------
[Name and Title]
SCHEDULE 3.01
SUBSIDIARIES
Subsidiaries of Navigation Technologies Corporation, a Delaware corporation (the
"Company")
1. Navigation Technologies North America, LLC (a Delaware limited liability
company)
2. Navigation Technologies International, LLC (a Delaware limited liability
company)
3. Navigation Technologies Kabushiki Kaisha (a Japan corporation)
4. Navigation Technologies Canada, Inc. (an Ontario corporation)
5. Navigation Technologies B.V. (a Netherlands corporation)
6. Navigation Technologies GmbH (an Austria corporation)
7. NV Navigation Technologies SA (a Belgium corporation)
8. Navigation Technologies S.A.S. (a France corporation)
9. Navigation Technologies NavTech GmbH (a Germany corporation)
10. Navigation Technologies S.r.l. (an Italy corporation)
11. Navigation Technologies--Technologias de Navegacao, Unipessoal, Ltd (a
Portugal corporation)
12. Navigation Technologies S.L. (a Spain corporation)
13. Navigation Technologies Sweden AB (a Sweden corporation)
14. Navigation Technologies (NavTech) GmbH (a Switzerland corporation)
15. Navigation Technologies Ltd. (a United Kingdom corporation)
16. Navigation Technologies SRO (a Czech Republic corporation)
SCHEDULE 3.06
DISCLOSED MATTERS
1. On August 5, 2003, Navigation Technologies Corporation (the "Company")
received a subpoena from the U.S. Department of Commerce requiring that the
Company produce certain documents in connection with one of the Company's
customers. The Company has engaged outside counsel to assist the Company in
responding to such subpoena, and has produced various documents to the U.S.
Department of Commerce in response thereto.
2. On September 20, 2002, Philips Consumer Electronics B.V. ("Philips B.V.")
filed a complaint (the "Initial Complaint") against the Company in the Court of
Chancery of the State of Delaware (the "Litigation"). The Initial Complaint
alleged that the Company did not intend to comply with its obligations under the
Certificates of Designation for the Company's Series A and Series B cumulative
convertible preferred stock ("Certificates of Designation") to convert such
preferred stock into the Company's common stock pursuant to the terms of such
Certificates of Designation. The Initial Complaint sought declaratory relief,
injunctive relief and specific performance to require the Company to determine
the applicable conversion price in accordance with the terms of the respective
Certificates of Designation. On September 27, 2002, a Special Committee of the
Board of Directors was formed to manage the Company's defense to the Litigation.
On December 30, 2002, the Special Committee issued a report to the Board of
Directors reporting, among other things, that Messrs. van Ommeren and Xxxxxxx,
as directors of the Company and as members of the Special Committee, had
determined that Messrs. van Ommeren and Xxxxxxx are the disinterested members of
the Board of Directors for purposes of determining the conversion price (i.e.,
the Current Market Price of the Company's common stock, as defined in the
respective Certificates of Designation) for the Series A and Series B cumulative
convertible preferred stock pursuant to the respective Certificates of
Designation. Messrs. van Ommeren and Xxxxxxx then determined that the Current
Market Price of the Company's common stock as of October 1, 2002 was $0.86 per
share. This determination was made by Messrs. van Ommeren and Xxxxxxx and does
not reflect the views of the full Board of Directors of the Current Market
Price.
All of the Series A and Series B cumulative convertible preferred stock
automatically converted pursuant to their terms as of October 1, 2002 into
776,675,105.686 shares of common stock based on the determination by Messrs.
Xxxxxxx and van Ommeren that the Current Market Price of the Company's common
stock was $0.86 per share as of such date. Upon conversion, the aggregate
liquidation preferences of Series A and Series B cumulative convertible
preferred stock were $58,242,000 (including $18,182,000 of dividends in arrears)
and $609,699,000 (including $183,699,000 of dividends in arrears).
On August 1, 2003, Philips B.V. filed a First Amended and Supplemental Complaint
(the "Amended Complaint") in the Litigation against the Company and additionally
named Messrs. Xxxxxxx and van Ommeren as defendants. The Amended Complaint
alleges breach of contract and breach of covenant of good faith and fair dealing
against the Company and breach of fiduciary duty against Messrs. Xxxxxxx and van
Ommeren. More specifically, the Amended Complaint states that the Company
breached its obligations under the Certificates of Designation to make a good
faith determination of the Current Market Price of the Company's common stock as
of October 1, 2002, including by failing to (1) properly determine the
composition of the disinterested directors for purposes of determining the
Current Market Price of the Company's common stock as of October 1, 2002, (2)
base the determination of Current Market Price upon a timely valuation, and (3)
base the determination on a valuation performed by an internationally recognized
investment bank. The Amended Complaint further states that (i) the Company
breached an implied covenant of good faith and fair dealing under the
Certificates of Designation (ii) the Company breached its obligations under its
March 29, 2001 Stock Purchase Agreement with Philips B.V. by failing to ensure
that its certification of incorporation permits issuance of a sufficient number
of shares of common stock to satisfy the number of shares to which Philips B.V.
is entitled upon the conversion of the Series A
and Series B shares, and (iii) Messrs. Xxxxxxx and van Ommeren willfully
breached their fiduciary duties to Philips B.V. The Amended Complaint seeks an
order appointing an independent appraiser to determine the Current Market Price
as of October 1, 2002, specific performance to require the Company to convert
the Series A and Series B shares on the terms set forth in the Certificates of
Designation, a declaration that Messrs Xxxxxxx and van Ommeren breached their
fiduciary duties to Philips B.V., injunctive relief to prevent the defendants
from continuing to interfere with Philips B.V.'s rights under the Certificates
of Designation, and unspecified monetary and exemplary damages and costs of
suit.
In connection with the Litigation, the Company entered into a Status Quo
Stipulation and Proposed Order restricting the Company from certain actions
without the approval of Philips.
3. In August 2002, the Company received a letter from a law firm
representing a stockholder of the Company and purporting to represent other
stockholders threatening litigation based on breach of fiduciary duty, corporate
mismanagement, minority shareholder oppression, the violation of securities laws
and otherwise unlawful and improper actions in connection with (i) the
participation in the stock option exchange offer by the Company's Chief
Executive Officer and (ii) the conversion of the Company's Series A and Series B
preferred stock.
SCHEDULE 6.01
EXISTING INDEBTEDNESS
On November 29, 2000, Navigation Technologies Corporation (the
"Company")obtained an irrevocable standby letter of credit with LaSalle Bank
N.A. in conjunction with one of the Company's facility leases. The original face
amount of $2.0 million declines annually over the next seven years until
November 30, 2007, which is the end of the facility lease. Philips issued an
unconditional and irrevocable guarantee to LaSalle Bank N.A. as the primary
obligor in accordance with the Company's obligations regarding this facility
lease. The Company issued a counter guarantee in which it agreed to pay a fee of
1.5% per annum of the original $2.0 million face value amount of the standby
letter of credit as reduced from time to time in accordance with its terms. As
of December 31, 2002 the Company owed $30,000 in connection with such counter
guarantee.
SCHEDULE 6.02
EXISTING LIENS
None.
SCHEDULE 6.04
INVESTMENTS
1. Navigation Technologies Corporation (the "Company") entered into a
deposit agreement dated as of May 21, 2002 with Koninklijke Philips Electronics
N.V. ("Philips N.V."), which was subsequently assigned to the Borrower. The
deposits with Philips N.V. bear interest at a rate of United States ("U.S.")
LIBOR minus1/4%.
2. Navigation Technologies B.V. entered into a deposit agreement dated as of
September 26, 2003, with Philips N.V. The deposits with Philips N.V. bear
interest at a rate of U.S. LIBOR minus1/4% for a U.S. Dollar deposit and
EURIBOR/EONIA minus1/4% for Euro deposits.
SCHEDULE 6.05
HEDGING AGREEMENTS
1. On April 22, 2003, Navigation Technologies Corporation (the
"Company")entered into a U.S. dollar/euro currency swap agreement (the "Swap")
with Philips N.V. (the parent company of the Company's majority stockholder) to
minimize the exchange rate exposure between the U.S. dollar and the euro on the
expected repayment of an intercompany obligation. The intercompany balance is
payable by one of the Company's European subsidiaries to the Company and one of
its U.S. subsidiaries, and is due in U.S. dollars. Through December 31, 2002,
this intercompany balance was considered permanent in nature as repayment was
not expected to occur in the foreseeable future. However, primarily as a result
of improved operating performance in the Company's European business, cash flows
are anticipated to be sufficient to support repayment over the next several
years. Accordingly, effective January 1, 2003, the loan is no longer designated
as permanent in nature.
Under the terms of the Swap, the Company's European subsidiary will make
payments to Philips N.V. in euros in exchange for the U.S. dollar equivalent at
a fixed exchange rate of $1.0947 U.S. dollar/euro. The U.S. dollar proceeds
obtained under the Swap will be utilized to make payments of principal on the
intercompany loan. The outstanding principal balance under the intercompany loan
was $187.1 million at April 22, 2003. The Swap has a maturity date of December
22, 2006 and provides for settlement on a monthly basis in proportion to the
repayment of the intercompany obligation. As of September 28, 2003, the
outstanding intercompany obligation (net of payments) is $163.4 million.
The intercompany loan bears interest at one-month U.S. LIBOR. The Swap also
provides that the European subsidiary of the Company will pay interest due in
euros on a monthly basis to Philips N.V. in exchange for U.S. dollars at the
one-month U.S. dollar LIBOR rate.
The Swap does not qualify for hedge accounting and therefore changes in the fair
value of the Swap are recognized in current period earnings. A gain on the fair
value of the Swap of $0.6 million was recorded for the quarter ended September
28, 2003 and a foreign currency transaction gain of $0.2 million was recognized
as a result of the remeasurement of the outstanding intercompany obligation
during the quarter ended September 28, 2003. A loss on the fair value of the
Swap of $7.6 million was recorded for the nine months ended September 28, 2003.
This loss was offset by a foreign currency transaction gain of $8.4 million
recognized as a result of the remeasurement of the outstanding intercompany
obligation at September 28, 2003. A foreign currency transaction loss of $0.8
million was recognized in earnings during the nine months ended September 28,
2003 resulting from foreign currency exchange differences arising on the
repayments of the intercompany obligation subsequent to entering into the Swap.
SCHEDULE 6.06
RESTRICTED PAYMENTS
None.
[JPMORGAN LOGO]
SCHEDULE 6.07
TRANSACTIONS WITH AFFILIATES
1. Navigation Technologies Corporation (the "Company") entered into a
deposit agreement dated as of May 21, 2002 with Koninklijke Philips Electronics
N.V. ("Philips N.V."), which was subsequently assigned to the Borrower. The
deposits with Philips N.V. bear interest at a rate of United States ("U.S.")
LIBOR minus1/4%.
2. Navigation Technologies B.V. entered into a deposit agreement dated as of
September 26, 2003, with Philips N.V. The deposits with Philips N.V. bear
interest at a rate of U.S. LIBOR minus1/4% for a U.S. Dollar deposit and
EURIBOR/EONIA minus1/4% for Euro deposits.
3. Two of the Company's directors, Xx. Xxxxxx and Xx. Xxxxxxxxxxx, are
employed by Philips N.V. or its affiliates. Xx. xx Xxxxx, another one of the
Company's directors, was employed by Philips N.V. until June 2002.
4. The Company entered into a Registration Rights Agreement with Philips
B.V. dated as of March 29, 2001. Under this agreement, the Company has granted
Philips B.V. certain rights with respect to the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of shares of the
Company's common stock owned by Philips. The Company's obligations terminate
with respect to the registration rights after the earlier of (i) five years
after the Company's initial public offering or (ii) the date at which Philips
B.V. is able to sell all registrable securities held by it within a 180 day
period in accordance with Rule 144 under the Securities Act.
5. The Company has entered into transactions with affiliates of Philips,
including ATOS ORIGIN Technology in Business, Inc. (as of October 31, 2000,
Philips holds less than 50% of the common stock of this affiliate), Philips
Speech Processing Aachen (which the Company believes is no longer an affiliate
of Philips as of 2002), Philips International B.V., Philips Nederland B.V.,
Philips Fiscal Affairs, and Philips Electronics North America Corporation, to
provide the Company with certain consulting services, tax consulting services,
fleet services, and purchasing services, respectively.
6. On November 29, 2000, the Company obtained an irrevocable standby letter
of credit with LaSalle Bank N.A. in conjunction with one of the Company's
facility leases. The original face amount of $2.0 million declines annually over
the next seven years until November 30, 2007, which is the end of the facility
lease. Philips issued an unconditional and irrevocable guarantee to LaSalle Bank
N.A. as the primary obligor in accordance with the Company's obligations
regarding this facility lease. The Company issued a counter guarantee in which
it agreed to pay a fee of 1.5% per annum of the original $2.0 million face value
amount of the standby letter of credit as reduced from time to time in
accordance with its terms. As of December 31, 2002 the Company owed $30,000 in
connection with such counter guarantee.
7. During 2002, the Company moved from its independent insurance program to
Philips' global risk management program whereby the majority of the Company's
insurance is provided under Philips' insurance policies. As of December 31,
2002, the Company owed approximately $200,000 in connection with the Philips'
insurance program.
8. The Company has a consulting agreement with T. Xxxxxxx Xxxxxxx, one of
our directors, whereby the Company agreed to pay Xx. Xxxxxxx $3,000 per day for
consulting services as requested by the Company and accepted by Xx. Xxxxxxx. Xx.
Xxxxxxx also agreed to provide general advice and support to the Company for 10
to 15 hours per month without charge. The Company agreed to provide Xx. Xxxxxxx
with communication capabilities for up to $30,000 during the term of the
agreement and health and dental benefits.
9. See disclosure of hedging agreements on Schedule 6.05.
SCHEDULE 6.08
EXISTING RESTRICTIONS
Restrictions contained in the Status Quo Stipulation and Proposed Order
described in Item 2 of Schedule 3.06.
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