DEMAND LINE OF CREDIT AGREEMENT by and between CITIZENS BANK OF PENNSYLVANIA and ARTESIAN RESOURCES CORPORATION ARTESIAN WATER COMPANY, INC. ARTESIAN WATER PENNSYLVANIA, INC. ARTESIAN WATER MARYLAND, INC. ARTESIAN WASTEWATER MANAGEMENT, INC. ARTESIAN...
by
and between
CITIZENS
BANK OF PENNSYLVANIA
and
ARTESIAN
RESOURCES CORPORATION
ARTESIAN
WATER COMPANY, INC.
ARTESIAN
WATER PENNSYLVANIA, INC.
ARTESIAN
WATER MARYLAND, INC.
ARTESIAN
WASTEWATER MANAGEMENT, INC.
ARTESIAN
WASTEWATER MARYLAND, INC.
ARTESIAN
UTILITY DEVELOPMENT, INC.
ARTESIAN
DEVELOPMENT CORPORATION
ARTESIAN
CONSULTING ENGINEERS, INC.
January
19, 2010
THIS
DEMAND LINE OF CREDIT AGREEMENT (the “Agreement”) is made as of the 19th day of
January, 2010, by and between ARTESIAN RESOURCES CORPORATION, a Delaware
corporation, ARTESIAN WATER COMPANY, INC., a Delaware corporation, ARTESIAN
WATER PENNSYLVANIA, INC., a Pennsylvania corporation, ARTESIAN WATER MARYLAND,
INC., a Delaware corporation, ARTESIAN WASTEWATER MANAGEMENT, INC., a Delaware
corporation, ARTESIAN WASTEWATER MARYLAND, INC., a Delaware corporation,
ARTESIAN UTILITY DEVELOPMENT, INC., a Delaware corporation, ARTESIAN DEVELOPMENT
CORPORATION, a Delaware corporation, ARTESIAN CONSULTING ENGINEERS, INC., a
Delaware corporation, (jointly and severally, “Borrower”), and CITIZENS BANK OF
PENNSYLVANIA (“Bank”). Borrower and Bank agree, under seal, as
follows:
BACKGROUND
A. The
Borrower has requested the Bank to extend a $40,000,000 demand line of credit
(“Line of Credit”) to the Borrower.
B. The
Bank is willing to agree to provide the Line of Credit, subject to the terms and
conditions of this Agreement.
ARTICLE
1
DEFINITIONS
Section
1.1. Definitions. When
used in this Agreement, the following terms shall have the respective meanings
set forth below.
a. “Adjusted LIBOR
Rate” means,
relative to any LIBOR Rate Loan to be made, continued or maintained as a LIBOR
Rate Loan for any LIBOR Interest Period, a rate per annum determined by dividing
(x) the LIBOR Rate for such LIBOR Interest Period by (y) a percentage equal to
one hundred percent (100%) minus the LIBOR Reserve Percentage.
1.1.1. “Advance” means a
borrowing under the Line of Credit in accordance with Section 2.5
hereof.
1.1.2. “Affiliate” means as
to any Person, each other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by or is under common control with
the Person in question. For purposes of this definition, “control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, whether through the
ownership of voting securities, by contract, or otherwise.
1.1.3. “Agreement” means this
Demand Line of Credit Agreement and all exhibits and schedules hereto, as each
may be amended from time to time.
1.1.4. “Applicable Margin”
means one hundred forty (140) Basis Points if Bank provides such cash management
services.
1.1.5. “Available Amount”
means $40,000,000.
1.1.6. “Bank” means Citizens
Bank of Pennsylvania and its successors and assigns pursuant to Section 8.3
hereof.
1.1.7. “Bank Indebtedness”
means all obligations and Indebtedness of Borrower to Bank, whether now or
hereafter owing or existing, including, without limitation, all obligations
under the Credit Documents, all other obligations or undertakings now or
hereafter made by or for the benefit of Borrower under any other agreement,
promissory note or undertaking now existing or hereafter entered into by
Borrower with Bank, including, without limitation, all obligations of Borrower
to Bank under any guaranty or surety agreement and all obligations of Borrower
to immediately pay to Bank the amount of any overdraft on any deposit account
maintained with Bank, together with all interest and other sums payable in
connection with any of the foregoing.
1.1.8. “Basis Point” means
one-hundredth of one percent.
1.1.9. “Borrower” means,
jointly and severally, ARTESIAN RESOURCES CORPORATION, a Delaware corporation,
ARTESIAN WATER COMPANY, INC., a Delaware corporation, ARTESIAN WATER
PENNSYLVANIA, INC., a Pennsylvania corporation, ARTESIAN WATER MARYLAND, INC., a
Delaware corporation, ARTESIAN WASTEWATER MANAGEMENT, INC., a Delaware
corporation, ARTESIAN WASTEWATER MARYLAND, INC., a Delaware corporation,
ARTESIAN UTILITY DEVELOPMENT, INC., a Delaware corporation, ARTESIAN DEVELOPMENT
CORPORATION, a Delaware corporation, and ARTESIAN CONSULTING ENGINEERS, INC., a
Delaware corporation.
1.1.10. “Borrowing Notice”
means the certificate in the form attached hereto as Exhibit A
to be delivered by Borrower to Bank as a condition of each Advance.
1.1.11. “Business Day”
means:
(a) any day
which is neither a Saturday or Sunday nor a legal holiday on which commercial
banks are authorized or required to be closed in Wilmington,
Delaware;
(b) when such
term is used to describe a day on which a borrowing, payment, prepaying, or
repaying is to be made in respect of any LIBOR Rate Loan, any day which is: (i)
neither a Saturday or Sunday nor a legal holiday on which commercial banks are
authorized or required to be closed in New York City; and (ii) a London Banking
Day; and
(c) when such
term is used to describe a day on which an interest rate determination is to be
made in respect of any LIBOR Rate Loan, any day which is a London Banking
Day..
1.1.12. “Code” means the
Internal Revenue Code of 1986, as amended from time to time, and all rules and
regulations with respect thereto in effect from time to time.
1.1.13. “Credit Documents”
means this Agreement, the Note and any other agreements, documents, instruments
and writings now or hereafter existing, creating, evidencing, or relating to any
of the liabilities of Borrower to the Bank together with all amendments,
modifications, renewals or extensions thereof.
1.1.14. “Daily LIBOR
Rate” shall
mean, for any day, the rate of one (1) month U.S. Dollar deposits as reported on
Reuters Page LIBOR01 as of 11:00 a.m., London time, on such day, or if such day
is not a London Banking Day (as defined herein), then the immediately preceding
London Banking Day (or if not so reported, then as determined by the Bank from
another recognized source or interbank quotation).
1.1.15. “Daily LIBOR Rate
Loan” means any loan or advance the rate of interest applicable to which
is based upon the Daily LIBOR Rate.
1.1.16. "Default Rate" has the
meaning set forth in Section 2.4.3 hereof.
1.1.17. “Dollars” or “$” means
the lawful currency of the United States.
1.1.18. “Environmental Control
Statutes” means any federal, state, county, regional or local laws
governing the control, storage, removal, spill, release or discharge of
Hazardous Substances, including without limitation CERCLA, the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976
and the Hazardous and Solid Waste Amendments of 1984, the Federal Water
Pollution Control Act, as amended by the Clean Water Act of 1976, the Hazardous
Materials Transportation Act, the Emergency Planning and Community Right to Know
Act of 1986, the National Environmental Policy Act of 1975, the Oil Pollution
Act of 1990, any similar or implementing state law, and in each case including
all amendments thereto and all rules and regulations promulgated thereunder and
permits issued in connection therewith.
1.1.19. “EPA” means the United
States Environmental Protection Agency, or any successor thereto.
1.1.20. “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time,
any successor statute of similar import, and all rules and regulations with
respect thereto in effect from time to time.
1.1.21. “ERISA Affiliate”
means any Person that is a member of any group or organization within the
meaning of Code sections 414(b), (c), (m) or (o) of which Borrower is a
member.
1.1.22. “GAAP” means generally
accepted accounting principles as in effect in the United States of America set
forth in the Opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and in statements of the Financial
Accounting Standards Board and in such other statements by such other entity as
Bank may reasonably approve, which are applicable in the circumstances as of the
date in question; and such principles observed in a current period shall be
comparable in all material respects to those applied in a preceding
period.
1.1.23. “Hazardous Substance”
means petroleum products and items defined in the Environmental Control Statutes
as “hazardous substances”, “hazardous wastes”, “pollutants” or “contaminants”
and any other toxic, reactive, corrosive, carcinogenic, flammable or hazardous
substance or other pollutant.
1.1.24. “Hedging Contracts”
means, interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements, or any other agreements or arrangements entered into
between the Borrower or its affiliates and the Bank and designed to protect the
Borrower against fluctuations in interest rates or currency exchange
rates.
1.1.25. “Hedging Obligations”
means, with respect to the Borrower, all liabilities of the Borrower or its
affiliates to the Bank under Hedging Contracts.
1.1.26. “Indebtedness”
means:
(a) all items
(except items of capital stock or of surplus) which in accordance with GAAP
would be included in determining total liabilities as shown on the liability
side of a balance sheet of such Person as at the date as of which Indebtedness
is to be determined, excluding (i) contributions in aid of construction, (ii)
advances in aid of construction and (iii) deferred taxes;
(b) to the
extent not included in the foregoing, all indebtedness, obligations, and
liabilities secured by any mortgage, pledge, lien, conditional sale or other
title retention agreement or other security interest to which any property or
asset owned or held by such Person is subject, whether or not the indebtedness,
obligations or liabilities secured thereby shall have been assumed by such
Person; and
(c) to the
extent not included or specifically excluded in the foregoing, all indebtedness,
obligations and liabilities of others which such Person has directly or
indirectly guaranteed, endorsed (other than for collection or deposit in the
ordinary course of business), sold with recourse, or agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire or in respect of which
such Person has agreed to supply or advance funds (whether by way of loan, stock
purchase, capital contribution or otherwise) or otherwise to become directly or
indirectly liable.
1.1.27. “Interest Payment
Date” means,
relative to (i) any LIBOR Rate Loan with a one (1) month LIBOR Interest Period,
the last Business Day of such LIBOR Interest Period, (ii) any LIBOR Rate Loan
will a LIBOR Interest Period greater than one (1) month or any Daily LIBOR Rate
Loan,
the ____ day of each month.
1.1.28. “LIBOR Interest
Period” means relative to any LIBOR Rate Loans:
(a) initially,
the period beginning on (and including) the date on which such LIBOR Rate Loan
is made or continued as a LIBOR Rate Loan and ending on (but excluding) the day
which numerically corresponds to such date one, two or three months thereafter
(or, if such month has no numerically corresponding day, on the last Business
Day of such month), in each case as selected by Borrower by irrevocable notice
to the Bank pursuant to Section 2.11 hereof; and
(b) thereafter,
each period commencing on the last day of the preceding LIBOR Interest Period
applicable to such LIBOR Rate Loan and ending one, two or three months
thereafter, as selected by Borrower by irrevocable notice to the Bank pursuant
to Section 2.5 hereof;
provided, however,
that
(a) at
no time may there be more than four (4) LIBOR Interest Periods in effect with
respect to the LIBOR Rate Loans;
(b) LIBOR
Interest Periods commencing on the same date for LIBOR Rate Loans comprising
part of the same Advance under this Agreement shall be of the same
duration;
(c) LIBOR
Interest Periods for LIBOR Rate Loans in connection with which Borrower has or
may incur Hedging Obligations with the Bank shall be of the same duration as the
relevant periods set under the applicable Hedging Contracts;
(d) if
such LIBOR Interest Period would otherwise end on a day which is not a Business
Day, such LIBOR Interest Period shall end on the next following Business Day
unless such day falls in the next calendar month, in which case such LIBOR
Interest Period shall end on the first preceding Business Day; and
(e) no
LIBOR Interest Period may end later than the Maturity Date.
1.1.29. “Late Charge” has the
meaning set forth in Section 2.4.3 hereof.
1.1.30. “Letter(s) of Credit”
means the letter(s) of credit issued by Bank on account of Borrower, as account
party in favor of a beneficiary.
1.1.31. “LIBOR Rate” means,
relative to any LIBOR Interest Period, the offered rate for deposits of U.S.
Dollars in an amount approximately equal to the amount of the requested LIBOR
Rate Loan for a term coextensive with the designated LIBOR Interest Period which
the British Bankers’ Association fixes as its LIBOR rate as of 11:00 a.m. London
time on the day that is two London Banking Days prior to the beginning of such
LIBOR Interest Period. If such day is not a London Banking Day, the
LIBOR Rate shall be determined on the next preceding day which is a London
Banking Day. If for any reason the Bank cannot determine such offered
rate by the British Bankers’ Association, the Bank may, in its discretion,
select a replacement index based on the arithmetic mean of the quotations, if
any, of the interbank offered rate by first class banks in London or New York
for deposits in comparable amounts and maturities.
1.1.32. “LIBOR Rate Loan”
means any loan or advance the rate of interest applicable to which is based upon
the LIBOR Rate.
1.1.33. “LIBOR Reserve
Percentage” means, relative to any day of any LIBOR Interest Period, the
maximum aggregate (without duplication) of the rates (expressed as a decimal
fraction) of reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional adjustments
or other scheduled changes in reserve requirements) under any regulations of the
Board of Governors of the Federal Reserve System (the “Board”) or other
governmental authority having jurisdiction with respect thereto as issued from
time to time and then applicable to assets or liabilities consisting of
“Eurocurrency Liabilities”, as currently defined in Regulation D of the Board,
having a term approximately equal or comparable to such LIBOR Interest
Period.
1.1.34. “Line of Credit” has
the meaning set forth in the Background of this Agreement.
1.1.35. “Local Authorities”
means individually and collectively the state and local governmental authorities
and administrative agencies which govern the commercial or industrial facilities
owned or operated by the Borrower.
1.1.36. “London Banking Day”
means a day on which dealings in US dollar deposits are transacted in the London
interbank market.
1.1.37. “Material Adverse
Effect” means either singly or in the aggregate, the occurrence of any
event, condition, circumstance or proceeding of any Borrower that materially and
adversely affects the financial condition or operations of Artesian Resources
Corporation.
1.1.38. “Note” shall mean the
demand note, dated the date hereof, of the Borrower payable to the order of the
Bank, as the same may be amended, renewed, replaced, or supplemented from time
to time.
1.1.39. “Other Taxes” has the
meaning set forth in Section 2.9.2 hereof.
1.1.40. “PBGC” means the
Pension Benefit Guaranty Corporation, or any successor thereto.
1.1.41. “Person” means an
individual, corporation, trust, limited partnership, general partnership,
limited liability company or unincorporated association and any government
agency, department or political subdivision thereof.
1.1.42. “Plan” means any
pension benefit or welfare benefit plan as defined in sections 3(1), (2) or (3)
of ERISA maintained or sponsored by, contributed to, or covering employees of,
Borrower or any ERISA Affiliate.
1.1.43. “Prime Rate” means the
annual interest rate publicly announced by Bank from time to time as its prime
rate. The Prime Rate is determined from time to time by Bank as a
means of pricing some loans to its borrowers. The Prime Rate is not
tied to any external rate of interest or index, and does not necessarily reflect
the lowest rate of interest actually charged by Bank to any particular class or
category of customers. If and when the Prime Rate changes, the rate
of interest with respect to any amounts hereunder to which the Prime Rate
applies will change automatically without notice to Borrower, effective on the
date of any such change.
1.1.44. “Prime Rate Loan”
means any loan for the period(s) when the rate of interest applicable to such
Loan is calculated by reference to the Prime Rate.
1.1.45. “Regulation D” means
Regulation D of the Board of Governors of the Federal Reserve System, comprising
Part 204 of Title 12, Code of Federal Regulations, as amended from time to time,
and any successor thereto.
1.1.46. “Release” means any
spill, leak, emission, discharge, release or the pumping, pouring, emptying,
disposing, injecting, escaping, leaching or dumping of a Hazardous
Substance.
1.1.47. “Taxes” has the
meaning set forth in Section 2.9.1 hereof.
1.1.48. “Termination Date”
means
the
earlier of (i) January ___, 2011 or (ii) on DEMAND.
Section
1.2. Rules of Construction,
Interpretation.
1.2.1. GAAP. Except
as otherwise provided herein, financial and accounting terms used in the
foregoing definitions or elsewhere in this Agreement, shall be defined in
accordance with GAAP. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be done in accordance with GAAP, to
the extent applicable, except where such principles are inconsistent with the
requirements of this Agreement.
1.2.2. Directly or
Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or that such person is prohibited from taking,
such provision shall be applicable whether the action in question is taken
directly or indirectly by such Person.
1.2.3. Plural/Singular. Except
as otherwise provided herein, capitalized terms used in the foregoing
definitions or elsewhere in this Agreement that are defined in the singular may
also be used in the plural and any such terms which are defined in the plural
may also be used in the singular.
1.2.4. DEMAND. BORROWER
UNDERSTANDS AND ACKNOWLEDGES THAT THE LINE OF CREDIT IS A PAYMENT ON DEMAND LOAN
FACILITY. BORROWER UNDERSTANDS AND ACKNOWLEDGES THAT BANK MAY DEMAND
PAYMENT HEREUNDER AT ANY TIME AND WITHOUT ANY REASON. NOTHING
CONTAINED IN THIS NOR ANY OTHER CREDIT DOCUMENT SHALL BE CONSTRUED TO PREVENT
BANK FROM MAKING DEMAND FOR PAYMENT HEREUNDER AT ANY TIME THAT BANK, IN THE
EXERCISE OF ITS SOLE DISCRETION, DEEMS NECESSARY OR DESIRABLE; AND IN THE EVENT
OF ANY SUCH DEMAND, (i) BANK SHALL HAVE NO FURTHER OBLIGATION TO MAKE ADVANCES
OR TO EXTEND CREDIT AND (ii) THE ENTIRE UNPAID PRINCIPAL BALANCE HEREUNDER AND
ALL ACCRUED INTEREST AND ALL OTHER OBLIGATIONS HEREUNDER SHALL BECOME DUE AND
PAYABLE IMMEDIATELY UPON THE MAKING OF SUCH DEMAND.
ARTICLE
2
CREDIT
FACILITY
Section
2.1. The
Facility. From time to time prior to the Termination Date,
subject to the provisions below, the Bank shall make Advances to Borrower, which
Borrower shall pay and may reborrow, so long as the aggregate amount of Advances
outstanding at any one time shall not exceed the Available Amount.
Section
2.2. Note. The
indebtedness of the Borrower to the Bank will be evidenced by the
Note. The original principal amount of the Note will be the Available
Amount; provided, however, that
notwithstanding the face amount of the Note, Borrower’s liability
under the Note shall be limited at all times to its actual indebtedness,
principal, interest and fees, then outstanding hereunder.
Section
2.3. Use of
Proceeds. Funds advanced under the Line of Credit shall be
used solely for (i) short-term working capital, (ii) investment in facilities or
equipment, or (iii) Letters of Credit.
Section
2.4. Repayment, Prepayments and
Interest.
2.4.1. The
aggregate principal balance outstanding on the Termination Date under the Note
shall be due and payable on the Termination Date. Except as set forth
in Section 2.4.7 hereof, all Advances shall be either LIBOR Rate Loans or Daily
LIBOR Rate Loans, as selected by Borrower. All Advances to which the
“sweep” product offered by the Bank will be applied, shall be Daily LIBOR Rate
Loans.
2.4.2. Continuations. All
LIBOR Rate Loans shall mature and become payable in full on the last day of the
LIBOR Interest Period relating to such LIBOR Rate Loan. Upon
maturity, a LIBOR Rate Loan shall be continued for an additional LIBOR Interest
Period.
2.4.3. Interest
Provisions. Interest on the
outstanding principal amount of each loan, when classified as a: (i) LIBOR Rate
Loan, shall accrue during each LIBOR Interest Period at a rate per annum equal
to the sum of the Adjusted LIBOR Rate for such LIBOR Interest Period plus the
Applicable Margin, and be due and payable on each Interest Payment Date and on
the Termination Date, (ii) Daily LIBOR Rate Loan, shall accrue daily at a rate
per annum equal to the sum of the Daily LIBOR Rate plus the Applicable Margin,
and be due and payable on each Interest Payment Date and on the Termination Date
and (iii) Prime Rate Loan, shall accrue at a rate per annum equal to the sum of
the Prime Rate and be due and payable on each Interest Payment Date and on the
Termination Date.
2.4.4. Voluntary
Prepayment of LIBOR Rate Loans. LIBOR Rate Loans and Daily LIBOR Rate
Loans may be prepaid upon the terms and conditions set forth
herein. For LIBOR Rate Loans and Daily LIBOR Rate Loans in connection
with which the Borrower has or may incur Hedging Obligations, additional
obligations may be associated with prepayment, in accordance with the terms and
conditions of the applicable Hedging Contracts. The Borrower
shall give the Bank, no later than 10:00 a.m., New York City time, at least four
(4) Business Days notice of any proposed prepayment of any LIBOR Rate Loans and
Daily LIBOR Rate Loans, specifying the proposed date of payment of such LIBOR
Rate Loans and Daily LIBOR Rate Loans, and the principal amount to be
paid. Each partial prepayment of the principal amount of LIBOR Rate
Loans and Daily LIBOR Rate Loans shall be in an integral multiple of $10,000 and
accompanied by the payment of all charges outstanding on such LIBOR Rate Loans
(including the LIBOR Breakage Fee) and Daily LIBOR Rate Loans and of all accrued
interest on the principal repaid to the date of payment.
2.4.5. LIBOR
Breakage Fees. Upon: (i) any default by Borrower in making any
borrowing of or continuation of any LIBOR Rate Loan following Borrower’s
delivery of a borrowing request or continuation notice hereunder or under the
Agreement or (ii) any prepayment of a LIBOR Rate Loan on any day that is not the
last day of the relevant LIBOR Interest Period (regardless of the source of such
prepayment and whether voluntary, by acceleration or otherwise), the Borrower
shall pay an amount (“LIBOR Breakage Fee”),
as calculated by the Bank, equal to the amount of any losses, expenses and
liabilities (including without limitation any loss of margin and anticipated
profits) that Bank may sustain as a result of such default or
payment. The Borrower understands, agrees and acknowledges that: (i)
the Bank does not have any obligation to purchase, sell and/or match funds in
connection with the use of the LIBOR Rate as a basis for calculating the rate of
interest on a LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and (iii) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating the LIBOR Breakage Fee
and other funding losses incurred by the Bank. Borrower further
agrees to pay the LIBOR Breakage Fee and other funding losses, if any, whether
or not the Bank elects to purchase, sell and/or match funds.
2.4.6. Late
Charge and Default Rate. Notwithstanding the foregoing, if the
Borrower fails to make any payment of principal, interest or other amount coming
due pursuant to the provisions of the Note within ten (10) calendar days of the
date due and payable, the Borrower also shall pay to the Bank a late charge
equal to five percent (5.0%) of the amount of such payment (the “Late Charge”). Such
ten (10) day period shall not be construed in any way to extend the due date of
any such payment. Upon maturity, whether by acceleration, demand or
otherwise, and at the Bank’s option upon the occurrence of any Event of Default
and during the continuance thereof, the Note shall bear interest at a rate that
shall be three percentage points (3.0%) in excess of the interest rate in effect
from time to time under the Note but not more than the maximum rate allowed by
law (the “Default
Rate”). The Default Rate shall continue to apply whether or
not judgment shall be entered on the Note. Both the Late Charge and
the Default Rate are imposed as liquidated damages for the purpose of defraying
the Bank’s expenses incident to the handling of delinquent payments, but are in
addition to, and not in lieu of, the Bank’s exercise of any rights and remedies
hereunder, under the other Credit Documents or under applicable law, and any
fees and expenses of any agents or attorneys which the Bank may
employ. In addition, the Default Rate reflects the increased credit
risk to the Bank of carrying a loan that is in default. The Borrower
agrees that the Late Charge and Default Rate are reasonable forecasts of just
compensation for anticipated and actual harm incurred by the Bank, and that the
actual harm incurred by the Bank cannot be estimated with certainty and without
difficulty.
2.4.7. Miscellaneous LIBOR Rate
Loan Terms.
(a) LIBOR
Rate Lending Unlawful. If the Bank shall determine (which
determination shall, upon notice thereof to the Borrower be conclusive and
binding on the Borrower) that the introduction of or any change in or in the
interpretation of any law, rule, regulation or guideline, (whether or not having
the force of law) makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for the Bank to make, continue or
maintain any LIBOR Rate Loan as a LIBOR Rate Loan and/or a Daily LIBOR Rate Loan
as a Daily LIBOR Rate Loan, the obligations of the Bank to make, continue or
maintain any such LIBOR Rate Loans and/or Daily LIBOR Rate Loans shall, upon
such determination, forthwith be suspended until the Bank shall notify the
Borrower that the circumstances causing such suspension no longer exist, and all
LIBOR Rate Loans and/or Daily LIBOR Rate Loans of such type shall automatically
convert into Prime Rate Loans at the end of the then current LIBOR Interest
Periods (or in the case of Daily LIBOR Rate Loans, the same day) with respect
thereto or sooner, if required by such law or assertion.
(b) Unavailability
of LIBOR Rate. In the event that Borrower shall have requested a
LIBOR Rate Loan and/or a Daily LIBOR Rate Loan in accordance with the Note and
this Agreement and the Bank, in its sole discretion, shall have determined that
U.S. dollar deposits in the relevant amount and for the relevant LIBOR Interest
Period are not available to the Bank in the London interbank market; or by
reason of circumstances affecting the Bank in the London interbank market,
adequate and reasonable means do not exist for ascertaining the LIBOR Rate
and/or the Daily LIBOR Rate applicable to the relevant LIBOR Interest Period; or
the LIBOR Rate or the Daily LIBOR Rate no longer adequately and fairly reflects
the Bank’s cost of funding loans; upon notice from the Bank to the Borrower, the
obligations of the Bank hereunder and under this Agreement to make or continue
any loans as, or to convert any loans into, LIBOR Rate Loans and/or Daily LIBOR
Rate Loans of such duration shall forthwith be suspended until the Bank shall
notify the Borrower that the circumstances causing such suspension no longer
exist.
(c) Increased
Costs. If, on or
after the date hereof, the adoption of any applicable law, rule or regulation or
guideline (whether or not having the force of law), or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency: (a) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System of
the United States) against assets of, deposits with or for the account of, or
credit extended by, the Bank or shall impose on the Bank or on the London
interbank market any other condition affecting its LIBOR Rate Loans, Daily LIBOR
Rate Loans or its obligation to make LIBOR Rate Loans or Daily LIBOR Rate Loans;
or (b) shall impose on the Bank any other condition affecting its LIBOR Rate
Loans, Daily LIBOR Rate Loans or its obligation to make LIBOR Rate Loans or
Daily LIBOR Rate Loans, and the result of any of the foregoing is to increase
the cost to the Bank of making or maintaining any LIBOR Rate Loan or Daily LIBOR
Rate Loans, or to reduce the amount of any sum received or receivable by the
Bank under this agreement with respect thereto, by an amount deemed by the Bank
to be material, then, within fifteen (15) days after demand by the Bank, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such increased cost or reduction.
(d) Increased
Capital Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by the Bank, or person controlling the Bank, and the Bank
determines (in its sole and absolute discretion) that the rate of return on its
or such controlling person’s capital as a consequence of its commitments or the
loans made by the Bank is reduced to a level below that which the Bank or such
controlling person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by the Bank
to the Borrower, the Borrower shall immediately pay directly to the Bank
additional amounts sufficient to compensate the Bank or such controlling person
for such reduction in rate of return. A statement of the Bank as to
any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, the Bank may use
any method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
(e) Taxes. All
payments by the Borrower of principal of, and interest on, the LIBOR Rate Loan
and the Daily LIBOR Rate Loan and all other amounts payable hereunder shall be
made free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by the Bank’s net
income or receipts (such non-excluded items being called “Taxes”). In
the event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will:
(i) pay
directly to the relevant authority the full amount required to be so withheld or
deducted;
(ii) promptly
forward to the Bank an official receipt or other documentation satisfactory to
the Bank evidencing such payment to such authority; and
(iii) pay to
the Bank such additional amount or amounts as is necessary to ensure that the
net amount actually received by the Bank will equal the full amount the Bank
would have received had no such withholding or deduction been
required.
Moreover,
if any Taxes are directly asserted against the Bank with respect to any payment
received by the Bank hereunder, the Bank may pay such Taxes and the Borrower
will promptly pay such additional amount (including any penalties, interest or
expenses) as is necessary in order that the net amount received by the Bank
after the payment of such Taxes (including any Taxes on such additional amount)
shall equal the amount the Bank would have received had not such Taxes been
asserted.
If the
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Bank the required receipts or other required documentary
evidence, the Borrower shall indemnify the Bank for any incremental Taxes,
interest or penalties that may become payable by the Bank as a result of any
such failure.
Section
2.5. Advances.
2.5.1. Except as
set forth in the next sentence, Borrower shall give the Bank prior written
notice not later than three o’clock (3:00) p.m. (Eastern Standard Time), on the
date of an Advance. Any such notice shall be in the form of the
Borrowing Notice, shall be certified by the chief financial officer, the
president or the executive vice president of the Borrower, and shall set forth
the aggregate amount of the requested Advance; provided, however, so long as
Borrower uses the “sweep” product offered by the Bank, no Borrowing Notice shall
be required for any Advance except the initial Advance.
2.5.2. Upon
receiving a request for an Advance in accordance with subsection 2.5.1 above,
the Bank shall promptly make the requested Advance available to Borrower (i) by
crediting such amount to Borrower’s deposit account with the Bank on the day of
the requested Advance, or (ii) otherwise in accordance with such instructions as
have been provided by Borrower to the Bank with sufficient notice to permit the
Bank, in accordance with standard Banking practices, to timely comply with such
instructions.
2.5.3. Each
request for an Advance pursuant to this Section 2.5 shall be irrevocable and
binding on the Borrower. With respect to any Advance, Borrower shall
indemnify the Bank against any loss, cost or expense incurred by the Bank as a
result of any failure to fulfill on or before the date specified in such request
for an Advance the applicable conditions set forth in Article 5, including,
without limitation, any loss (including loss of margin and anticipated profits),
cost or expense incurred by reason of the liquidation or redeployment of
deposits or other funds acquired by the Bank to fund the Advance when such
Advance, as a result of such failure, is not made on such date, as calculated by
the Bank.
Section
2.6. Letter of
Credit. In addition to making Advances to the Borrower as
provided in Section 2.5 hereof, the Bank may issue Letter(s) of
Credit. All amounts drawn or that could be drawn under the Letter of
Credit shall be deemed to be an Advance under the Line of Credit and evidenced
by the Note and the Available Amount shall be reduced by the aggregate amounts
drawn and available to be drawn under the Letter(s) of Credit. Any
amounts disbursed by Bank pursuant to any Letter of Credit shall automatically
be deemed an Advance to the Borrower and shall bear interest from the date of
advance at the rate set forth in this Agreement. The Letter(s) of
Credit shall be governed by the terms of this Agreement and by one or more
reimbursement or application agreements, in form and content satisfactory to the
Bank, executed by the Borrower in favor of the Bank. Each Letter of
Credit will be issued in the Bank’s sole discretion and in form acceptable to
the Bank. The Borrower shall pay to Bank all transactional and
customary fees required by Bank in connection with the issuance of the Letter of
Credit. Bank shall have no obligation to issue Letter(s) of Credit
which would result in the Bank’s obligation thereunder to exceed
$500,000.
Section
2.7. Prepayment. Borrower
may prepay the outstanding principal balance under the Line of Credit at any
time without premium or penalty. Prepayments of all or any portion of
the Line of Credit prior to the Termination Date shall not reduce the Line of
Credit amount and may be reborrowed.
Section
2.8. Payments;
Application. All payments of principal, interest, fees and
other amounts due hereunder, including any prepayments thereof, shall be made by
Borrower to the Bank in immediately available funds before twelve o’clock
(12:00) noon on any Business Day at the office of the Bank set forth in Section
8.9 hereof or Bank’s office that is located at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other office or location as the Bank from time to
time so notifies Borrower. Borrower hereby authorizes the Bank to
charge any account maintained by Borrower with the Bank from time to time for
all payments of principal, interest, fees and costs when due
hereunder. Any and all payments on account of the Line of Credit will
be applied to accrued and unpaid interest, outstanding principal and other sums
due hereunder or under the Credit Documents, in such order as Bank, in its
discretion, elects. If Borrower makes a payment or payments and such
payment or payments, or any part thereof, are subsequently invalidated, declared
to be fraudulent or preferential, set aside or are required to be repaid to a
trustee, receiver, or any other person under any bankruptcy act, state,
provincial or federal law, common law or equitable cause, then to the extent of
such payment or payments, the obligations or part thereof hereunder intended to
be satisfied shall be revived and continued in full force and effect as if said
payment or payments had not been made.
ARTICLE
3
REPRESENTATIONS
AND WARRANTIES
Borrower
represents and warrants as follows:
Section
3.1. Organization; Good Standing;
Qualification. Borrower is a corporation duly organized and
validly existing under the laws of the State of its
organization. Borrower has full power and authority to execute,
deliver and comply with the Credit Documents and to carry on its business as it
is now being conducted. Borrower is duly licensed or qualified as a
corporation in any jurisdiction where the failure to be so qualified would have
a Material Adverse Effect.
Section
3.2. Licenses. Borrower
and its respective employees and agents have all licenses, registrations,
approvals and other authority as may be necessary to enable them to own and
operate its business and perform all services and business that they have agreed
to perform in any state, municipality or other jurisdiction, and the same are
valid, binding and enforceable without any adverse limitations thereon, except
where the failure to have any or all such licenses, registrations, approvals or
other authority would not have a Material Adverse Effect.
Section
3.3. Accuracy of Information;
Full Disclosure.
3.3.1. All
financial information furnished to Bank concerning the Borrower and other
entities in accordance with the terms of the Agreement, have been prepared in
accordance with GAAP and fairly present the financial condition of Borrower and
such other entities as of the dates and for the periods covered and there has
been no material adverse change in the financial condition or business of
Borrower or such other entities considered as a whole from the date of such
statements to the date hereof; and
3.3.2. All
financial statements and other documents furnished by Borrower to the Bank in
connection with this Agreement do not and will not contain any untrue statement
of material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading. Borrower has disclosed
to the Bank in writing any and all facts which materially and adversely affect
the business, properties, operations or condition, financial or otherwise, of
Borrower and its Affiliates considered as a whole, or Borrower’s ability to
perform its obligations under this Agreement and the other Credit
Documents.
Section
3.4. Pending Litigation or
Proceedings. There are no judgments outstanding or actions,
suits or proceedings pending or, to Borrower’s knowledge, threatened against or
affecting Borrower or its Affiliates, at law or in equity or before or by any
federal, provincial, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign that
would have a Material Adverse Effect.
Section
3.5. Due Authorization; No Legal
Restrictions. Borrower has the power and authority under the
laws of the state of its organization, and under its organizational documents,
to enter into and perform this Agreement, the Note, the other Credit Documents
and other agreements and documents required hereunder and to which it is a
party. The execution and delivery by Borrower of the Credit Documents
to which it is a party, the consummation of the transactions contemplated by the
Credit Documents and the fulfillment and compliance with the respective terms,
conditions and provisions of the Credit Documents: (i) have been duly authorized
by all requisite action of Borrower, (ii) will not conflict with or result in a
breach of, or constitute a default (or might, upon the passage of time or the
giving of notice or both, constitute a default) under, any of the terms,
conditions or provisions of any applicable statute, law, rule, regulation or
ordinance or Borrower’s certificate of incorporation or bylaws, or any
indenture, mortgage, loan or credit agreement or instrument to which
Borrower is a party or by which it may be bound or affected, or any
judgment or order of any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, and (iii) will not
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the property or assets of Borrower under the terms
or provisions of any such agreement or instrument.
Section
3.6. Enforceability. The
Credit Documents have been duly executed by Borrower and delivered to Bank and
constitute legal, valid and binding obligations of Borrower, enforceable in
accordance with their terms.
Section
3.7. Compliance with Laws,
Agreements, Other Obligations, Orders or Governmental
Regulations. Borrower is not in default of its certificate of
incorporation or bylaws. Borrower has not been declared in default of
the performance or observance of any of its obligations, covenants or conditions
contained in any indenture or other agreement creating, evidencing or securing
any Indebtedness or pursuant to which any such Indebtedness is issued and
Borrower is not in violation of or in default under any other agreement or
instrument or any judgment, decree, order, statute, rule or governmental
regulation, applicable to it or by which its properties may be bound or
affected.
Section
3.8. Governmental Consents, No
Violations of Laws or Agreements. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority on the part of Borrower is required in connection with the execution,
delivery or performance by Borrower of the Credit Documents or the consummation
of the transactions contemplated thereby.
Section
3.9. Taxes. Borrower
has filed all tax returns which it is required to file, if any, and has paid, or
made provision for the payment of, all taxes which have or may have become due
pursuant to such returns or pursuant to any assessment received by
it. Such tax returns are complete and accurate in all
respects. Borrower has no knowledge of any proposed additional
assessment or basis for any assessment of additional taxes.
Section
3.10. Current
Compliance. Borrower is currently in compliance with all of
the terms and conditions of the Credit Documents.
Section
3.11. Leases and
Contracts. Borrower has complied with the provisions of all
leases, contracts or commitments of any kind (such as employment agreements,
collective bargaining agreements, powers of attorney, distribution agreements,
patent license agreements, contracts for future purchase or delivery of goods or
rendering of services, bonus, pension and retirement plans or accrued vacation
pay, insurance and welfare agreements) to which it is a party and is not in
default thereunder, except to the extent such noncompliance is not reasonably
likely to have a Material Adverse Effect. To Borrower’s knowledge, no
other party is in default under any such leases, contracts or other commitments
and no event has occurred which, but for the giving of notice or the passage of
time or both, would constitute an event of default thereunder.
Section
3.12. Intellectual
Property. Borrower owns or possesses the irrevocable right to
use all of the patents, trademarks, service marks, trade names, copyrights,
licenses, franchises and permits and rights with respect to the foregoing
necessary to own and operate its respective properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others.
Section
3.13. Business
Interruptions. Within three (3) years prior to the date
hereof, neither the business nor operations of Borrower or its Affiliates have
been materially and adversely affected in any way by any casualty, strike,
lockout, combination of workers, order of the United States of America or any
state or local government, or any political subdivision or agency thereof,
directed against Borrower. There are no pending or threatened labor
disputes, strikes, lockouts or similar occurrences or grievances against the
business being operated by Borrower or its Affiliates.
Section
3.14. Accuracy of Representations
and Warranties. No representation or warranty by Borrower
contained herein or in any certificate or other document furnished by Borrower
pursuant hereto or in connection herewith fails to contain any statement of
material fact necessary to make such representation or warranty not misleading
in light of the circumstances under which it was made. There is no
fact which Borrower knows or should know and has not disclosed to Bank, which
does or may materially and adversely affect Borrower or any of Borrower’s
operations.
Section
3.15. ERISA. To
Borrower’s knowledge, Borrower is in compliance in all material respects with
all applicable provisions of ERISA and the regulations promulgated
thereunder:
3.15.1. Borrower
does not maintain or contribute to nor has Borrower maintained or contributed to
any multiemployer plan (as defined in section 4001 of ERISA) under which
Borrower or any ERISA Affiliate could have any withdrawal
liability;
3.15.2. Borrower
does not sponsor or maintain any Plan under which there is an accumulated
funding deficiency within the meaning of section 412 of the Code, whether or not
waived;
3.15.3. The
aggregate liability for accrued benefits and other ancillary benefits under each
Plan that is or will be sponsored or maintained by Borrower (determined on the
basis of the actuarial assumptions prescribed for valuing benefits under
terminating single-employer defined benefit plans under Title IV of ERISA) does
not exceed the aggregate fair market value of the assets under each such defined
benefit pension Plan;
3.15.4. The
aggregate liability of Borrower arising out of or relating to a failure of any
Plan to comply with the provisions of ERISA or the Code, will not have a
Material Adverse Effect; and
3.15.5. Except as
set forth on Schedule 3.15.5 hereto, there does not exist any unfunded liability
(determined on the basis of actuarial assumptions utilized by the actuary for
the plan in preparing the most recent Annual Report) of Borrower under any plan,
program or arrangement providing post-retirement life or health
benefits.
To
Borrower’s knowledge, the foregoing is true and correct with respect to any
ERISA Affiliate.
Section
3.16. No Extension of Credit for
Securities. Borrower is not now, nor at any time has it been
engaged principally, or as one of its important activities, in the business of
extending or arranging for the extension of credit, for the purpose of
purchasing or carrying any “margin stock” or “margin securities” within the
meaning of Regulations U, G, T or X of the Board of Governors of the Federal
Reserve System; nor will the proceeds of the Line of Credit be used by Borrower
directly or indirectly, for such purposes.
Section
3.17. Hazardous Wastes, Substances
and Petroleum Products.
3.17.1. Borrower
(i) has received all permits and filed all notifications required by the
Environmental Control Statutes to carry on its respective business(es); and (ii)
is in material compliance with all Environmental Control Statutes.
3.17.2. Borrower
has given any written or oral notice required to the appropriate United States
federal, state or local agency with regard to any actual or imminently
threatened Release of Hazardous Substances on properties owned, leased or
operated by Borrower or used in connection with the conduct of its business and
operations.
3.17.3. Borrower
has not received notice that it is potentially responsible for clean-up,
remediation, costs of clean-up or remediation, fines or penalties with respect
to any actual or imminently threatened Release of Hazardous Substances pursuant
to any Environmental Control Statute.
Section
3.18. Foreign Assets Control
Regulations. Neither the borrowing by Borrower nor its use of
the proceeds thereof will violate foreign assets, trade or similar control
regulations.
Section
3.19. Investment Company
Act. Borrower is not directly or indirectly controlled by or
acting on behalf of any person which is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
ARTICLE
4
CONDITIONS
Section
4.1. First
Advance. The obligation of the Bank to make the first Advance
shall be subject to the Bank’s receipt of the following documents, each in form
and substance satisfactory to the Bank:
4.1.1. This
Agreement. This Agreement duly executed by
Borrower.
4.1.2. Promissory
Note. The Note duly executed by Borrower.
4.1.3. Intentionally
Omitted.
4.1.4. Authorization
Documents. All proceedings taken by Borrower in connection
with the transactions contemplated by this Agreement and all documents incident
to such transactions shall be satisfactory in form and substance to Bank and
Bank’s counsel, and Bank shall have received all documents or other evidence
which it reasonably may request in connection with such proceedings and
transactions. Borrower shall have delivered to Bank one or more
certificates, in form and substance satisfactory to Bank, dated the date hereof
and signed by an authorized officer, certifying; (i) true copies of the
certificate of incorporation and bylaws; (ii) true copies of all actions taken
relative to the Credit Documents; and (iii) the names, true signatures and
incumbency of the officers authorized to execute and deliver this Agreement and
the other Credit Documents. Bank may conclusively rely on such
certificate(s) unless and until a later certificate revising the prior
certificate has been received by Bank.
4.1.5. Certificate of Good
Standing. A certificate of good standing or subsistence, as
applicable issued by the Secretary of State of the state of organization of
Borrower.
4.1.6. Intentionally
Omitted.
4.1.7. Borrowing
Notice. A completed Borrowing Notice required under Subsection
2.5.1 hereof and any other documents or information reasonably required by the
Bank in connection therewith.
4.1.8. Other
Documents. Such additional documents as the Bank reasonably
may request.
Section
4.2. Subsequent
Advances. The obligation of the Bank to make additional
Advances shall be subject to the Bank’s receipt of a completed Borrowing Notice,
if required under Section 2.5.1 hereof.
ARTICLE
5
GENERAL
COVENANTS
Borrower
covenants and agrees that so long as the Line of Credit or any Indebtedness of
Borrower to the Bank is outstanding, Borrower will perform and comply with the
following covenants:
Section
5.1. Payment of Principal,
Interest and Other Amounts Due. Borrower will pay when due all
Indebtedness owed to the Bank and all other amounts payable by it
hereunder.
Section
5.2. Merger; Consolidation;
Business Acquisitions; Affiliates. Borrower shall (i) not
merge into or consolidate with any Person or permit any Person to merge into it
with a value in excess of $10,000,000 without the Bank’s prior written consent
and (ii) provide Bank with prior written notice of all of all other mergers,
consolidations and business acquisitions.
Section
5.3. Taxes; Claims for Labor and
Materials. Borrower will pay or cause to be paid when due all
taxes, assessments, governmental charges or levies imposed upon it or its
income, profits, payroll or any property belonging to it, including without
limitation all withholding taxes, and all claims for labor, materials and
supplies which, if unpaid, might become a lien or charge upon any of its
properties or assets; provided that Borrower shall not be required to pay any
such tax (other than real estate taxes which must be paid regardless of
challenge), assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings promptly initiated
and diligently conducted by it, and neither execution nor foreclosure sale or
similar proceedings shall have been commenced in respect thereof (or such
proceedings shall have been stayed pending the disposition of such contest of
validity), and it shall have set aside on its books adequate reserves with
respect thereto.
Section
5.4. Existence; Approvals;
Qualification; Business Operations; Compliance with Laws;
Notification.
5.4.1. Borrower
(i) will obtain, preserve and keep in full force and effect (a) its separate
existence and (b) all rights, licenses, registrations and franchises necessary
to the proper conduct of its business or affairs, the absence of which could
result in a Material Adverse Effect; (ii) will qualify and remain qualified as a
foreign corporation in each jurisdiction in which the character or location of
the properties owned by it or the business transacted by it requires such
qualification; (iii) will continue to engage in its present business
substantially as presently conducted; and (iv) will comply with the requirements
of all applicable laws and all rules, regulations (including environmental
regulations) and orders of regulatory agencies and authorities having
jurisdiction over it.
5.4.2. With
respect to any Environmental Control Statute, Borrower will immediately notify
Bank when, in connection with the conduct of the Borrower’s business or
operations, any Person (including, without limitation, any United States
federal, state or local agency) provides oral or written notification to
Borrower, or Borrower otherwise becomes aware, of a condition with regard to an
actual or imminently threatened Release of Hazardous Substances which could
reasonably be expected to have a Material Adverse Effect; and notify Bank in
detail immediately upon the receipt by Borrower or any Affiliate of an assertion
of liability under the Environmental Control Statutes, of any actual or alleged
failure to comply with, failure to perform, breach, violation or default under
any such statutes or regulations which could reasonably be expected to have a
Material Adverse Effect or of the occurrence or existence of any facts, events
or circumstances which with the passage of time, the giving of notice, or both,
could create such a failure to breach, violation or default.
Section
5.5. Maintenance of Properties,
Intellectual Property.
5.5.1. Borrower
will maintain, preserve, protect and keep or cause to be maintained, preserved,
protected and kept its real and personal property used or useful in the conduct
of its business in good working order and condition, reasonable wear and tear
excepted, and will pay and discharge when due the cost of repairs to and
maintenance of the same.
5.5.2. With
respect to any and all trademarks, registrations, copyrights, patents, patent
rights and applications for any of the foregoing which are material to
Borrower’s business, Borrower shall maintain and protect the same and shall take
and assert any and all remedies available to Borrower to prevent any other
Person from infringing upon or claiming any interest in any such trademarks,
registrations, copyrights, patents, patent rights or application for any of the
foregoing.
Section
5.6. Insurance.
5.6.1. Borrower
will carry adequate insurance issued by a financially capable insurer against
all such liability and hazards as are usually carried by entities engaged in the
same or a similar business similarly situated, and in addition, will carry
business interruption insurance in such amounts as may be
reasonable.
5.6.2. In the
event of any loss that has a Material Adverse Effect in excess of $1,000,000,
Borrower will give Bank prompt notice thereof.
Section
5.7. Inspections;
Examinations.
5.7.1. Borrower
authorizes all federal, state and municipal authorities to furnish to Bank
copies of reports or examinations relating to Borrower, whether made by Borrower
or otherwise.
5.7.2. The
officers of Bank, or such Persons as any of them may designate, may visit and
inspect any of the properties of Borrower, examine (either by Bank’s employees
or by independent accountants) any assets of Borrower, including the books of
account of Borrower, and discuss the affairs, finances and accounts of Borrower
with their officers at such times as Bank may reasonably request.
Section
5.8. Default Under Other
Indebtedness. Borrower will not permit any of its Indebtedness
to be in default. If any Indebtedness of Borrower is declared or becomes due and
payable before its expressed maturity by reason of default, the holder of any
such Indebtedness shall have the right (or upon the giving of notice or the
expiration of any cure period, or both, shall have the right) to declare such
Indebtedness to be so due and payable, Borrower will immediately give Bank
written notice of such declaration, acceleration or right of
declaration.
Section
5.9. Pension
Plans. Borrower shall (i) keep in full force and effect any
and all Plans which are presently in existence or may, from time to time, come
into existence under ERISA, unless such Plans can be terminated without material
liability to Borrower in connection with such termination (as distinguished from
any continuing funding obligation); (ii) make contributions to all of Borrower’s
Plans in a timely manner and in a sufficient amount to comply with the
requirements of ERISA; (iii) comply with all material requirements of ERISA
which relate to such Plans so as to preclude the occurrence of any Reportable
Event, Prohibited Transaction or material “accumulated funding deficiency” as
such term is defined in ERISA; and (iv) notify Bank immediately upon receipt by
Borrower of any notice of the institution of any proceeding or other action
which may result in the termination of any Plan, including those administered by
an ERISA Affiliate, and deliver to Bank, promptly after the filing or receipt
thereof, copies of all reports or notices which Borrower files or receives under
ERISA with or from the Internal Revenue Service, the PBGC, or the United States
Department of Labor.
Section
5.10. Change in Control,
etc. Borrower shall not permit a change-in-control of its ownership
interests or make any amendment to its organizational documents that would have
a Material Adverse Effect without the prior written consent of Bank; provided,
however, that Bank shall not unreasonably withhold its consent.
Section
5.11. Transactions with
Affiliates. Borrower shall not enter into or conduct any
transaction with any Affiliate except on terms that would be usual and customary
in a similar transaction between Persons not affiliated with each other or
except as disclosed to Bank prior thereto and accepted by Bank, except for tax
sharing and other management agreements that are customary within holding
companies and as required by the Delaware Public Service
Commission. Borrower will not make any loans or extensions of credit
to any of its Affiliates (except in the ordinary course of business),
shareholders or officers.
Section
5.12. Name or Address
Change. Borrower shall not change its name or address except upon thirty
(30) days prior written notice to Bank.
Section
5.13. Notices. Borrower
will promptly notify Bank of (i) any action or proceeding brought against
Borrower that would have a Material Adverse Effect, (ii) any fact, condition or
event which, with the giving of notice or the passage of time or both, could
cause a Material Adverse Effect, (iii) the failure of Borrower to observe any of
its undertakings under the Credit Documents, or (iv) any material adverse change
in the assets, business, operations or financial condition of
Borrower.
Section
5.14. Additional Documents and
Future Actions. Borrower will, at its sole reasonable cost,
take such actions and provide Bank from time to time with such agreements,
financing statements and additional instruments, documents or information as the
Bank may in its reasonable discretion deem necessary or advisable to carry out
the terms of the Credit Documents.
Section
5.15. Restrictions on Use of
Proceeds. Borrower will not carry or purchase with the
proceeds of the Line of Credit any “margin stock” or “margin security” within
the meaning of Regulations U, G, T or X of the Board of Governors of the Federal
Reserve System.
Section
5.16. Fiscal
Year. Borrower shall not change its fiscal year without
providing notice of such change to Bank.
Section
5.17. Accounts. Borrower
shall maintain its primary operating account with Bank, which account shall be
opened within sixty (60) days after the date hereof.
ARTICLE
6
ACCOUNTING
RECORDS, REPORTS AND FINANCIAL STATEMENTS
Section
6.1. Financial
Statements. Borrower will submit to Bank the following
information in form and content acceptable to Bank, to the extent such
information is not publicly available:
6.1.1. Within
120 days of each fiscal year end of the Borrower, annual consolidated financial
statements of Artesian Resources Corporation, audited by an independent
certified public accountant acceptable to Bank.
6.1.2. Within
120 days of each fiscal year end of the Borrower, annual, management-prepared
consolidating financial statements of Artesian Resources
Corporation.
6.1.3. Within
120 days of each fiscal year end of Artesian Resources Corporation, the Form 10K
of Artesian Resources Corporation filed with the Securities and Exchange
Commission.
6.1.4. Within 60
days after the end of each fiscal quarter of the Borrower, (i) a quarterly
financial statement of Artesian Resources Corporation, certified by the chief
financial officer of Artesian Resources Corporation and (ii) the Form 10Q of
Artesian Resources Corporation filed with the Securities and Exchange
Commission.
6.1.5. Such
other information requested by Bank that is necessary for Bank to clarify any
information provided to Bank pursuant to Sections 6.1.1 through 6.1.4
above.
ARTICLE
7
REMEDIES
Section
7.1. Remedies Generally.
Upon DEMAND and at any time thereafter that any Indebtedness owed by Borrower to
Bank remains outstanding, the Bank may declare the entire unpaid balance,
principal, interest and fees, of all Indebtedness of Borrower to the Bank,
hereunder or otherwise, to be immediately due and payable. Upon
DEMAND, the Line of Credit shall immediately and automatically terminate and the
Bank shall have no further obligation to make any Advances. In
addition, the Bank may increase the interest rate on the Line of Credit to the
Default Rate, without notice; and the Bank may enter any premises occupied by
Borrower; and/or in addition to any rights granted hereunder or in any documents
delivered in connection herewith, the Bank shall have all the rights and
remedies granted by any applicable law, all of which shall be cumulative in
nature.
Section
7.2. Set-Off. Without
limiting the rights of Bank under applicable law, Bank has and may exercise a
right of set-off, a lien against and a security interest in all property of
Borrower or its Affiliate now or at any time in Bank’s or any Affiliate of
Bank’s possession in any capacity whatsoever, including but not limited to any
balance of any deposit, trust or agency account, or any other bank account with
Bank or any Affiliate of Bank, as security for all Bank Indebtedness. At any
time and from time to time following DEMAND by Bank, Bank may without notice or
demand, set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by Bank to or for the credit of Borrower against any or all of the
Bank Indebtedness and the Borrower’s obligations under the Credit
Documents.
ARTICLE
8
MISCELLANEOUS
Section
8.1. Indemnification and Release
Provisions; Costs and Expenses.
8.1.1. Except to
the extent of the negligence or wilful misconduct on the part of the specific
party indemnified hereunder, Borrower hereby indemnifies and agrees to protect,
defend and hold harmless Bank and its directors, officers, officials, agents,
employees and counsel and their respective heirs, administrators, executors,
successors and assigns, from and against, any and all losses, liabilities
(including without limitation settlement costs and amounts, transfer taxes,
documentary taxes, or assessments or charges made by any governmental
authority), claims, damages, interest, judgments, costs, or expenses, including
without limitation reasonable fees and disbursements of counsel, incurred by any
of them arising out of or in connection with or by reason of this Agreement, the
Line of Credit or any other Credit Document, including without limitation, any
and all losses, liabilities, claims, damages, interests, judgments, costs or
expenses relating to or arising under any Environmental Control Statute or the
application of any such statute to Borrower’s or any Affiliate’s properties or
assets. Borrower hereby releases Bank and its respective directors,
officers, agents, employees and counsel from any and all claims for loss,
damages, costs or expenses caused or alleged to be caused by any act or omission
on the part of any of them, except to the extent caused by the gross negligence
or wilful misconduct of any party to be released hereunder. All
obligations provided for in this Section 8.1 shall survive any termination of
this Agreement or the Line of Credit and the repayment of the Line of
Credit.
Section
8.2. Certain Fees, Costs,
Expenses and Expenditures. Borrower agrees to pay on demand
all costs and expenses of Bank, including without limitation:
8.2.1. all
reasonable costs and expenses to third parties in connection with the
preparation, review, negotiation, execution and delivery of the Credit
Documents, and the other documents to be delivered in connection therewith, or
any amendments, extensions and increases to any of the foregoing (including,
without limitation, attorney’s fees and expenses, and the cost of
appraisals);
8.2.2. all
losses, reasonable costs and expenses in connection with the enforcement,
protection and preservation of the Bank’s rights or remedies under the Credit
Documents, or any other agreement relating to any Bank Indebtedness, or in
connection with legal advice relating to the rights or responsibilities of Bank
(including without limitation court costs, reasonable attorneys’ fees and
reasonable expenses of accountants and appraisers); and
In the
event Borrower shall fail to pay taxes, insurance, assessments, costs or
expenses which it is required to pay hereunder, or breaches any obligations
under the Credit Documents, Bank in its discretion, upon ten (10) days prior
notice to Borrower, may make expenditures for such purposes and the amount so
expended (including attorney’s fees and expenses, filing fees and other charges)
shall be payable by Borrower on demand and shall constitute part of the Bank
Indebtedness.
With
respect to any amount required to be paid by Borrower under this Section 8.2, in
the event Borrower fails to pay such amount within five (5) days of demand,
Borrower shall also pay to Bank interest thereon at the Default
Rate. Borrower’s obligations under this Section 8.2 shall survive
termination of this Agreement.
Section
8.3. Participations and
Assignments. Borrower hereby acknowledges and agrees that the
Bank may at any time:
8.3.1. at Bank’s
sole cost and expense, grant participations in all or any portion of the Line of
Credit or the Note or of its right, title and interest therein or in or to this
Agreement to any other lending office or to any other bank, lending institution
or other entity; and
8.3.2. assign
all or any portion of its rights under the Line of Credit; and
8.3.3. pledge or
assign its interest in the Line of Credit, the Note or any participation
interest, including collateral therefor, to any Federal Reserve Bank in
accordance with applicable law.
Section
8.4. Binding and Governing
Law. This Agreement and all documents executed hereunder shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns and shall be governed as to their validity,
interpretation and effect by the laws of the State of Delaware.
Section
8.5. Survival. All
agreements, representations, warranties and covenants of Borrower contained
herein or in any documentation required hereunder shall survive the execution of
this Agreement and the making of the Line of Credit hereunder and except for
Section 10.1, which provides otherwise, will continue in full force and effect
as long as any indebtedness or other obligation of Borrower to the Bank remains
outstanding.
Section
8.6. No Waiver;
Delay. If the Bank shall waive any power, right or remedy
arising hereunder or under any applicable law, such waiver shall not be deemed
to be a waiver or the later occurrence or recurrence of any of said
events. No delay by the Bank in the exercise of any power, right or
remedy shall, under any circumstances, constitute or be deemed to be a waiver,
express or implied, of the same and no course of dealing between the parties
hereto shall constitute a waiver of the Bank’s powers, rights or
remedies. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section
8.7. Modification;
Waiver. Except as otherwise provided in this Agreement, no
modification or amendment hereof, or waiver or consent hereunder, shall be
effective unless made in a writing signed by appropriate officers of the parties
hereto. Whenever any consent, approval or waiver is requested
hereunder, the determination to grant such request shall be in the Bank’s sole
discretion (unless otherwise indicated).
Section
8.8. Headings. The
various headings in this Agreement are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement or any provision
hereof.
Section
8.9. Notices. Any
notice, request, consent or other communication made, given or required
hereunder or in connection herewith shall be deemed satisfactorily given if in
writing (including facsimile transmissions) and delivered by hand, mail
(registered or certified mail) or overnight courier to the parties at their
respective addresses or facsimile number set forth below or such other addresses
or facsimile numbers as may be given by any party to the others in
writing:
To
Borrower:
Artesian
Resources Corporation
Artesian
Water Company, Inc.
Artesian
Water Pennsylvania, Inc.
Artesian
Water Maryland, Inc.
Artesian
Wastewater Management, Inc.
Artesian
Wastewater Maryland, Inc.
Artesian
Utility Development, Inc.
Artesian
Development Corporation
Artesian
Consulting Engineers, Inc.
▇.▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
With a
copy to:
Artesian
Water Company, Inc.
▇.▇. ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
|
|
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇, Esquire
|
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
To
Bank:
Citizens
Bank of Pennsylvania
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
With a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP
Hercules
Plaza, Suite 5100
▇.▇. ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇
▇. ▇▇▇▇▇▇▇, Esquire
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone
No.: ▇▇▇-▇▇▇-▇▇▇▇
Section
8.10. Payment on Non-Business
Days. Whenever any payment to be made hereunder shall be
stated to be due on a day other than a Business Day, such payment may be made on
the next succeeding Business Day, provided however that such extension of time
shall be included in the computation of interest due in conjunction with such
payment or other fees due hereunder, as the case may be.
Section
8.11. Time of
Day. Except as expressly provided otherwise herein, all time
of day restrictions imposed herein shall be calculated using the local time in
Wilmington, Delaware.
Section
8.12. Severability. If
any provision of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
Section
8.13. Counterparts. This
Agreement may be executed in any number of counterparts with the same effect as
if all the signatures on such counterparts appeared on one document, and each
such counterpart shall be deemed to be an original.
Section
8.14. Consent to Jurisdiction and
Service of Process. Borrower hereby consents to the exclusive
jurisdiction of any state or federal court located within the District of
Delaware, and irrevocably agree that, subject to the Bank’s election, all
actions or proceedings relating to the Credit Documents or the transactions
contemplated hereunder shall be litigated in such courts, and Borrower waives
any objection which it may have based on lack of personal jurisdiction, improper
venue or forum non conveniens to the conduct of any proceeding in any such
court. Nothing contained in this Section 8.14 shall affect the right
of Bank to serve legal process in any other manner permitted by law or affect
the right of Bank to bring any action or proceeding against Borrower or its
property in the courts of any other jurisdiction.
Section
8.15. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE NOTE OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK ENTERING
INTO THIS AGREEMENT.
Section
8.16. ADDITIONAL WAIVERS;
LIMITATIONS.
8.16.1. IN
CONNECTION WITH ANY PROCEEDINGS UNDER THE CREDIT DOCUMENTS, INCLUDING WITHOUT
LIMITATION ANY ACTION BY BANK IN REPLEVIN, FORECLOSURE OR OTHER COURT PROCESS OR
IN CONNECTION WITH ANY OTHER ACTION RELATED TO THE CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER, BORROWER WAIVES:
(a) ALL
PROCEDURAL ERRORS, DEFECTS AND IMPERFECTIONS IN SUCH PROCEEDINGS;
(b) ALL
BENEFITS UNDER ANY PRESENT OR FUTURE LAWS EXEMPTING ANY PROPERTY, REAL OR
PERSONAL, OR ANY PART OF ANY PROCEEDS THEREOF FROM ATTACHMENT, LEVY OR SALE
UNDER EXECUTION, OR PROVIDING FOR ANY STAY OF EXECUTION TO BE ISSUED ON ANY
JUDGMENT RECOVERED UNDER ANY OF THE CREDIT DOCUMENTS OR IN ANY REPLEVIN OR
FORECLOSURE PROCEEDING, OR OTHERWISE PROVIDING FOR ANY VALUATION, APPRAISAL OR
EXEMPTION;
(c) PRESENTMENT
FOR PAYMENT, DEMAND, NOTICE OF DEMAND, NOTICE OF NON-PAYMENT, PROTEST AND NOTICE
OF PROTEST OF ANY OF THE CREDIT DOCUMENTS, INCLUDING THE NOTE; AND
(d) ALL
RIGHTS TO CLAIM OR RECOVER ATTORNEY’S FEES AND COSTS IN THE EVENT THAT BORROWER
IS SUCCESSFUL IN ANY ACTION TO REMOVE OR SUSPEND A JUDGMENT ENTERED BY
CONFESSION.
8.16.2. FORBEARANCE. BANK
MAY RELEASE, COMPROMISE, FORBEAR WITH RESPECT TO, WAIVE, SUSPEND, EXTEND OR
RENEW ANY OF THE TERMS OF THE CREDIT DOCUMENTS, UPON FIVE (5) DAYS NOTICE TO
BORROWER.
8.16.3. LIMITATION ON
LIABILITY. BORROWER SHALL BE RESPONSIBLE FOR AND BANK IS
HEREBY RELEASED FROM ANY CLAIM OR LIABILITY IN CONNECTION WITH:
(a) SAFEKEEPING
ANY PROPERTY (EXCEPT FOR PROPERTY IN BANK’S POSSESSION);
(b) ANY LOSS
OR DAMAGE TO ANY PROPERTY (EXCEPT FOR PROPERTY IN BANK’S
POSSESSION);
(c) ANY
DIMINUTION IN VALUE OF THE PROPERTY; OR
(d) ANY ACT
OR DEFAULT OF ANOTHER PERSON.
BANK
SHALL ONLY BE LIABLE FOR ANY ACT OR OMISSION ON ITS PART CONSTITUTING GROSS
NEGLIGENCE OR WILFUL MISCONDUCT. IN THE EVENT BORROWER BRINGS SUIT AGAINST BANK
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER AND BANK IS FOUND NOT
TO BE LIABLE, BORROWER WILL INDEMNIFY AND HOLD BANK HARMLESS FROM ALL COSTS AND
EXPENSES, INCLUDING ATTORNEY FEES AND COSTS, INCURRED BY BANK IN CONNECTION WITH
SUCH SUIT. THIS AGREEMENT IS NOT INTENDED TO OBLIGATE BANK TO TAKE ANY ACTION
WITH RESPECT TO THE COLLATERAL OR TO INCUR EXPENSES OR PERFORM ANY OBLIGATION OR
DUTY OF BORROWER.
Section
8.17. ACKNOWLEDGMENTS. BORROWER
ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND
EXECUTION OF THIS AGREEMENT AND, SPECIFICALLY, SECTION 8.16 HEREOF, AND FURTHER
ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE FOREGOING WAIVER OF JURY TRIAL
AND ADDITIONAL WAIVERS HAVE BEEN FULLY EXPLAINED TO BORROWER BY SUCH
COUNSEL.
Section
8.18. Confidential
Information. Borrower acknowledges that (i) participations and
assignments by Lender and (ii) statutes, regulations and lawful orders of any
court or governmental entity having jurisdiction over the parties hereto, may
require that certain confidential information be released to third
parties. Lender shall use reasonable efforts to limit the
distribution of such confidential information to such third parties and their
respective employees and agents. Prior to any participation of the
Line of Credit by Lender, Lender shall provide notice to Borrower of the
distribution of such confidential information to any such
participants. Borrower acknowledges that Lender will not be
responsible to Borrower for the actions of third parties because of their
disclosure or misuse of the information given to them.
Section
8.19. U.S. Patriot Act/OFAC
Notice. To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions
to obtain, verify, and record information that identifies each Person who
establishes a formal relationship with such institution. Therefore,
when Borrower enter into this business relationship with Bank, Bank will ask
Borrower or their officers or owners their name, address, date of birth (for
individuals) and other pertinent information that will allow Bank to identify
Borrower. Bank may also ask to see Borrowers’ organizational
documents or other identifying information.
{remainder
of page intentionally left blank}
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
BANK:
CITIZENS
BANK OF PENNSYLVANIA
By:___________________________(SEAL)
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Vice
President
BORROWER:
ATTEST: ARTESIAN
WATER COMPANY, INC.
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Treasurer / Chief
Financial Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer/ Chief Financial Officer of Artesian Water Company, Inc., being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
RESOURCES CORPORATION
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Resources Corporation, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
WATER PENNSYLVANIA, INC.
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Water Pennsylvania, Inc., being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
WATER MARYLAND, INC.
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Water Maryland, Inc., being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
|
ATTEST:
|
ARTESIAN
WASTEWATER MANAGEMENT, INC.
|
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Wastewater Management, Inc.,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
WASTEWATER MARYLAND, INC.
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Wastewater Maryland, Inc. by
signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
UTILITY DEVELOPMENT, INC.
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Utility Development, Inc., being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
ATTEST: ARTESIAN
DEVELOPMENT CORPORATION
___________________________ By:___________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer / Chief Financial
Officer
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, who acknowledged himself to be the
Treasurer / Chief Financial Officer of Artesian Development Corporation, being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date:
IN
WITNESS WHEREOF, the undersigned, by their duly authorized officers, have
executed and delivered this Demand Line of Credit Agreement under seal the day
and year first above written.
|
ATTEST:
|
ARTESIAN
CONSULTING ENGINEERING, INC.
|
___________________________ By:___________________________(SEAL)
Name:
Title:
STATE OF
DELAWARE )
) ss.
COUNTY OF
NEW
CASTLE )
On this,
the ____ day of January, 2010, before me, a Notary Public, the undersigned
officer, personally appeared _________________________, who acknowledged himself
to be the __________________________ of Artesian Consulting Engineering, Inc.,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing on behalf of said corporation.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary
Expiration Date: