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This excerpt taken from the MRO 8-K filed Jun 29, 2005. Designated
Officers”).
9. Each request by the Borrower for an Advance and the acceptance by the Borrower of the proceeds of such Advance will constitute a representation and warranty by the Borrower that on the date of such Advance the representations and warranties contained in Section 10 are correct on and as of the date of such Advance, before and after giving effect to such Advance and to the application of the proceeds therefrom, as though made on and as of such date (other than any such representations or warranties that, by their terms, refer to a date other than the date of such Advance). In addition, the Borrower agrees to deliver to the Lender such other documents and other information requested by the Lender in connection with an Advance requested by the Borrower.
10. The Borrower represents and warrants as follows:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation.
(b) The execution, delivery and performance by the Borrower of this Agreement, and the consummation of the transactions contemplated hereby, are within the Borrower’s corporate powers and authority, have been duly authorized by all necessary corporate action, and do not contravene (i) its charter or by-laws or (ii) any law or any contractual restriction binding on or affecting it.
(c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by the Borrower of this Agreement.
(d) This Agreement has been duly executed and delivered by the Borrower, and is its legal, valid and binding obligation enforceable against the Borrower in accordance with its terms.
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(e) There is no pending or threatened action, suit, investigation, litigation or proceeding affecting the Borrower or its subsidiaries before any court, governmental agency or arbitrator that (i) could be reasonably likely to have a material adverse effect on the business, operations, condition (financial or otherwise) or prospects of the Borrower and its subsidiaries taken as a whole, the Lender’s rights and remedies under this Agreement, or the Borrower’s ability to perform its obligations under this Agreement, or (ii) purports to affect the legality, validity or enforceability of this Agreement or the consummation of the transactions contemplated hereby.
(f) The Borrower is not an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
(g) No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of the Borrower to the Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement 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 any 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.
(h) No proceeds of any Advance will be used to purchase or carry any margin stock (within the meaning of Regulation U issued by the Board of Governors of the Federal Reserve System) or to extend credit to others for the purpose of purchasing or carrying any margin stock.
11. This Agreement may be terminated by the Borrower or the Lender by giving written notice of termination to the other party hereto, but no such termination will affect the Borrower’s obligations with respect to Advances outstanding at the time of such termination. The Lender may amend or modify the terms and conditions of this Agreement at any time without prior notice to the Borrower and without the Borrower’s consent, but no such amendment or modification will affect the Borrower’s obligations with respect to Advances outstanding at the time of such amendment or modification. At the time the Borrower makes a request for an Advance, the Lender agrees to notify the Borrower of any such amendment or modification, provided that neither the Lender’s agreement to so notify the Borrower, nor the Lender’s failure to so notify the Borrower, will affect the uncommitted nature of this Agreement.
12. All notices and other communications provided for hereunder will be in writing (including telecopier communication) and mailed, telecopied or delivered, if to the Borrower, at its address at 5555 San Felipe, Houston, TX 77056, Attention: Treasurer; if to the Lender, at its address at One Penn’s Way, New Castle, DE, 19720, Attention: Dennis Banfield, Loan Administrator; or, as to either party, at such other address as is designated by such party in a written notice to the other party. All such notices and communications will, when mailed or telecopied, be effective three Business Days after deposit in the mails, or when telecopied, respectively, except that notices and communications to the Lender pursuant to Sections 2, 3 or 11 will not be effective until received by the Lender.
13. No failure on the Lender’s part to exercise, and no delay in exercising, any right hereunder will operate as a waiver thereof; nor will any single or partial exercise of any such right preclude any
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other or further exercise thereof or the exercise of any other right. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
14. (a) The Borrower agrees to pay on demand all of the Lender’s reasonable out-of-pocket costs and expenses (including without limitation, reasonable counsel fees and expenses) in connection with the preparation, execution, delivery, administration, modification, amendment and enforcement (whether through negotiations, legal proceedings or otherwise) of this Agreement.
(b) The Borrower will defend, indemnify and hold harmless the Lender, its affiliates and each of its and their respective officers, directors, employees, agents, advisors and representatives (each, an “ |
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