Exhibit 10.1
EXECUTION COPY
THIRD AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as
of June 15, 2001 (this "Third Amendment"), among GP STRATEGIES CORPORATION
("Parent"), a Delaware corporation, GENERAL PHYSICS CANADA LTD., ("GP Canada"),
a corporation organized under the laws of Ontario, Canada (Parent and GP Canada
shall individually be referred to herein as the "Borrower" and shall
collectively be referred to herein as the "Borrowers"), the lenders that are
signatories hereto (collectively, the "Lenders" and each individually a
"Lender"), and FLEET NATIONAL BANK (f/k/a Fleet Bank, National Association) as a
Lender ("Fleet"), as Agent to the Lenders (in such capacity, the "Agent") and as
Issuing Bank (in such capacity, the "Issuing Bank").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, the Lenders, the Issuing Bank and the Agent
have heretofore entered into a certain Amended and Restated Credit Agreement
(amending and restating the Credit Agreement, dated as of June 15, 1998), dated
as of August 31, 2000 (the "Existing Credit Agreement" and, as heretofore
amended, and together with this Third Amendment, the "Credit Agreement"); and
WHEREAS, the Borrowers desire to amend the Existing Credit Agreement in
order to, among other things, (i) extend the Parent Maturity Date to October 15,
2001, (ii) reduce the Parent Commitment to $42,000,000, (iii) amend the
Applicable Margin for Eurodollar Advances and ABR Advances and (iv) amend
certain financial covenants all as more fully set forth herein;
WHEREAS, the Borrowers further desire to amend the Existing Credit
Agreement in order to permit MXL and the Parent to obtain mortgage financing on
certain real property owned by MXL in Downers Grove, Illinois the proceeds of
which shall be used to fund the Parent Cash Collateral Account; and
WHEREAS, the Lenders are willing to consent to such amendments, but
only upon the terms and conditions set forth below including, but not limited to
Article III;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined or the context otherwise requires, terms used
in this Third Amendment, including its preamble and recitals, have the meanings
provided in the Credit Agreement.
ARTICLE II
AMENDMENTS TO CERTAIN PROVISIONS OF
THE CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Effective Date (as
defined in Section 3.1), certain terms and provisions of the Existing Credit
Agreement are hereby amended in accordance with this Article II. Except as so
amended, the Existing Credit Agreement shall continue in full force and effect
in accordance with its terms.
SECTION 2.1 Amendment to definition of Additional MXL Security
Documents. The definition of Additional MXL Security Documents is hereby amended
by deleting the word "Mortgage" appearing in such definition and substituting in
lieu thereof the word "Mortgages".
SECTION 2.2 New definition of Applicable Fee Percentage. The definition
of Applicable Fee Percentage is hereby deleted in its entirety and replaced with
the following new definition:
"Applicable Fee Percentage": with respect to the Parent Commitment Fee
and Letter of Credit Commissions, the percentage set forth below under the
applicable column:
Applicable Fee Percentage
Parent Commitment Letter of Credit Commissions
Fee Standby Trade
.50% 2.95% .25%
SECTION 2.3 New definition of Applicable Margin. The definition of
Applicable Margin is hereby deleted in its entirety and replaced with the
following new definition:
"Applicable Margin" with respect to the unpaid principal balance
of Parent ABR Advances and Parent Eurodollar Advances, the percentage
set forth below under the applicable column:
Applicable Margin (Type of Advance)
ABR Eurodollar
1.50% 2.95%
SECTION 2.4 Amendment to definition of Consolidated EBITDA. The
definition of Consolidated EBITDA is hereby amended by deleting the figure
"$3,000,000" appearing at the end of clause (ii)(a) thereof and substituting in
lieu thereof the figure "$6,000,000".
SECTION 2.5 Amendment to definition of Covered Event. The definition of
Covered Event is hereby amended by deleting the phrase "MXL Mortgage
Transaction" appearing in such definition and replacing it with the phrase "MXL
Pennsylvania Mortgage Transaction".
SECTION 2.6 New definition of Interest Payment Date. The definition of
Interest Payment Date is hereby deleted in its entirety and replaced with the
following new definition:
"Interest Payment Date": (i) as to any ABR Advance, the last
day of each month commencing on the first of such days to occur after
such ABR Advance is made or any Eurodollar Advance is converted to an
ABR Advance, (ii) as to any Eurodollar Advance, the last day of such
Interest Period and (iii) as to all Advances, the Maturity Date.
SECTION 2.7 Amendment to definition of Interest Period. The definition
of Interest Period is hereby amended by deleting the words "one, two, three, six
or nine months thereafter" appearing on the third and fourth lines thereof and
replacing such words with "one month thereafter".
SECTION 2.8 New definition of LaSalle. The definition of LaSalle is
inserted as a new definition in its correct alphabetical order.
"LaSalle": LaSalle Bank National Association, a national
banking association.
SECTION 2.9 New definition of MXL Illinois Assignment. The definition
of MXL Illinois Assignment is inserted as a new definition in its correct
alphabetical order.
"MXL Illinois Assignment": the Assignment of Rents and Leases, dated
as of June, 2001 by and between MXL and LaSalle.
SECTION 2.10 New definition of MXL Illinois Certificate. The definition
of MXL Illinois Certificate is inserted as a new definition in its correct
alphabetical order.
"MXL Illinois Certificate": the Certificate of Representations,
Warranties and Covenants, dated as of June, 2001 by and between MXL, the
Parent and LaSalle.
SECTION 2.11 New definition of MXL Illinois Indemnity Agreement. The
definition of MXL Illinois Indemnity Agreement is inserted as a new definition
in its correct alphabetical order.
"MXL Illinois Indemnity Agreement": the Environmental Indemnity
Agreement, dated as of June, 2001 by and between MXL, the Parent and
LaSalle.
SECTION 2.12 New definition of MXL Illinois Guaranty. The definition of
MXL Illinois Guaranty is inserted as a new definition in its correct
alphabetical order.
"MXL Illinois Guaranty": the Guaranty of Payment dated as of June,
2001 by and between LaSalle and the Parent.
SECTION 2.13 New definition of MXL Illinois Mortgage. The definition of
MXL Illinois Mortgage is inserted as a new definition in its correct
alphabetical order.
"MXL Illinois Mortgage": the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing dated June, 2001 by
and between MXL, as mortgagor, and LaSalle, as mortgagee, relating to
the MXL Illinois Property and securing the MXL Illinois Mortgage Note.
SECTION 2.14 New definition of MXL Illinois Mortgage Documents. The
definition of MXL Illinois Mortgage Documents is inserted as a new definition in
its correct alphabetical order.
"MXL Illinois Mortgage Documents": the collective reference to
the following documents (i) the MXL Illinois Mortgage, (ii) the MXL
Illinois Mortgage Note, (iii) the MXL Illinois Guaranty, (iv) the MXL
Illinois Assignment, (v) the MXL Illinois Indemnity Agreement, (vi) the
MXL Illinois Certificate and (vii) the Additional MXL Security
Documents executed in connection with the MXL Illinois Mortgage, each
in form and substance satisfactory to the Agent.
SECTION 2.15 New definition of MXL Illinois Mortgage Note. The
definition of MXL Illinois Mortgage Note is inserted as a new definition in its
correct alphabetical order.
"MXL Illinois Mortgage Note": the promissory note in a maximum
principal amount of $1,250,000 dated June, 2001 made by MXL and payable
to the order of LaSalle, issued pursuant to the MXL Illinois Mortgage.
SECTION 2.16 New definition of MXL Illinois Mortgage Transaction. The
definition of MXL Illinois Mortgage Transaction is inserted as a new definition
in its correct alphabetical order.
"MXL Illinois Mortgage Transaction": the transactions to be
consummated pursuant to the MXL Illinois Mortgage Documents, on the
terms set forth in such documents.
SECTION 2.17 New definition of MXL Illinois Property. The definition of
MXL Illinois Property is inserted as a new definition in its correct
alphabetical order.
"MXL Illinois Property": the MXL Property located at 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxxx.
SECTION 2.18 Amendment to definition of MXL Mortgage. The definition of
MXL Mortgage is hereby deleted in its entirety.
SECTION 2.19 New definition of MXL Mortgages. The definition of MXL
Mortgages is inserted as a new definition in its correct alphabetical order.
"MXL Mortgages": collectively, the MXL Illinois Mortgage and
the MXL Pennsylvania Mortgage.
SECTION 2.20 Amendment to definition of MXL Mortgage Documents. The
definition of MXL Mortgage Documents is hereby deleted in its entirety and
replaced with the following new definition:
"MXL Mortgage Documents": collectively, the MXL Illinois
Mortgage Documents and the MXL Pennsylvania Mortgage Documents.
SECTION 2.21 Amendment to definition to MXL Mortgage Note. The
definition of MXL Mortgage Note is hereby deleted in its entirety.
SECTION 2.22 Amendment to definition to MXL Mortgage Transaction. The
definition of MXL Mortgage Transaction is hereby deleted in its entirety.
SECTION 2.23 New definition of MXL Mortgage Transactions. The
definition of MXL Mortgage Transactions is inserted as a new definition in its
correct alphabetical order.
"MXL Mortgage Transactions": the transactions to be
consummated pursuant to the MXL Mortgage Documents, on the terms set
forth in such documents.
SECTION 2.24 New definition of MXL Pennsylvania Mortgage. The
definition of MXL Pennsylvania Mortgage is inserted as a new definition in its
correct alphabetical order.
"MXL Pennsylvania Mortgage": the Open-end Mortgage and
Security Agreement dated March 8, 2001 by and between MXL, as
mortgagor, and Allfirst Bank, as mortgagee, relating to the MXL
Pennsylvania Property and securing the MXL Pennsylvania Mortgage Note.
SECTION 2.25 New definition of MXL Pennsylvania Mortgage Documents. The
definition of MXL Pennsylvania Mortgage Documents is inserted as a new
definition in its correct alphabetical order.
"MXL Pennsylvania Mortgage Documents": the collective
reference to the following documents (i) the MXL Pennsylvania Mortgage
Note, (ii) the MXL Credit Agreement, (iii) the MXL Pennsylvania
Mortgage, (iv) the Parent Suretyship Agreement and (v) the Additional
MXL Security Documents executed in connection with MXL Pennsylvania
Mortgage, each in the form delivered to the Agent.
SECTION 2.26 New definition of MXL Pennsylvania Mortgage Note. The
definition of MXL Pennsylvania Mortgage Note is inserted as a new definition in
its correct alphabetical order.
"MXL Pennsylvania Mortgage Note": the Term Note in a principal
amount of $1,680,000 dated March 8, 2001 made by MXL and payable to the
order of Allfirst Bank, issued pursuant to the MXL Pennsylvania Credit
Agreement.
SECTION 2.27 New definition of MXL Pennsylvania Mortgage Transaction.
The definition of MXL Pennsylvania Mortgage Transaction is inserted as a new
definition in its correct alphabetical order.
"MXL Pennsylvania Mortgage Transaction": the transactions to
be consummated pursuant to the MXL Pennsylvania Mortgage Documents, on
the terms set forth in such documents.
SECTION 2.28 Amendment to definition of Net Cash Proceeds. The
definition of Net Cash Proceeds is hereby amended by deleting the phrase "MXL
Mortgage Transaction" appearing in such definition and replacing it with the
phrase "MXL Pennsylvania Mortgage Transaction".
SECTION 2.29 New definition of Parent Maturity Date. The definition of
Parent Maturity Date is hereby deleted in its entirety and replaced with the
following new definition:
"Parent Maturity Date": October 15, 2001, or such earlier date
on which the Revolving Credit Notes shall become due and payable,
whether by acceleration or otherwise.
SECTION 2.30 Amendment to definition of Required Reduction Amount. The
definition of Required Reduction Amount is hereby amended by deleting the phrase
"MXL Mortgage Transaction" appearing in clause (a)(i) in such definition and
replacing it with the phrase "MXL Pennsylvania Mortgage Transaction".
SECTION 2.31 New definition of Special Counsel. The definition of
Special Counsel is hereby deleted in its entirety and replaced with the
following new definition:
"Special Counsel": Xxxxxxx Xxxx LLP, special counsel to the Agent.
SECTION 2.32 New definition of Third Amendment Effective Date. The
definition of Third Amendment Effective Date is inserted as a new definition in
its correct alphabetical order.
"Third Amendment Effective Date": means June 15, 2001.
SECTION 2.33 Amendment to Clause (c) of Section 2.4 (Termination or
Reduction of Parent Commitments and GP Canada Credit Exposure) of the Existing
Credit Agreement. Clause (c) of Section 2.4 of the Credit Agreement is hereby
amended by deleting the phrase "MXL Mortgage Transaction" in each place such
phrase appears in such section and replacing it with the phrase "MXL
Pennsylvania Mortgage Transaction".
SECTION 2.34 Amendment to Clause (d)(ii) of Section 2.5 (Payments of
Loans; Overadvance Reductions; Additional Collateral) of the Existing Credit
Agreement. Clause (d)(ii) of Section 2.5 is hereby amended by deleting the
phrase "MXL Mortgage Transaction" in each place such phrase appears in such
section and replacing it with the phrase "MXL Pennsylvania Mortgage
Transaction".
SECTION 2.35 Amendment to Clause (a) of Section 2.11 (Cash Collateral
Accounts) of the Existing Credit Agreement. Clause (a) to Section 2.11 is hereby
amended by deleting such clause in its entirety and replacing it with the
following:
(a)(i) The Agent shall establish and maintain at its offices
at 1185 Avenue of the Americas, New York, NY in the name of the Parent but under
the sole dominion and control of the Agent, a separate cash collateral account
designated as "GP Strategies Corporation Cash Collateral Account" (the "Parent
Cash Collateral Account"). All net proceeds of the sale by the Parent of (i)
real estate, including net proceeds obtained in connection with the MXL Illinois
Mortgage Transaction, and (ii) any assets not used in the calculation of the
Borrowing Base, shall be immediately deposited into the Parent Cash Collateral
Account. All net proceeds of the sale of the common stock of Millennium Cell
Inc. ("Millennium Stock") shall be immediately deposited into the Parent Cash
Collateral Account until the aggregate balance in the Parent Cash Collateral
Account is not less than $6,000,000, after which point fifty-percent (50%) of
the proceeds of all sales of Millennium Stock shall be immediately deposited
into the Parent Cash Collateral Account, with the remaining fifty percent (50%)
of such proceeds to be applied by the Parent, promptly upon its receipt thereof,
to reduce the outstanding principal balance of the Revolving Credit Loans. The
Parent may, at its option, direct the Agent to apply the Parent Cash Collateral
(as defined below) to reduce the outstanding principal amount of the Term Loans.
Such application of the Parent Cash Collateral to the Term Loans shall result in
a dollar-for-dollar reduction of the minimum required balance in the Parent Cash
Collateral Account. Notwithstanding anything to the contrary contained herein,
in no event shall any monies deposited in the Parent Cash Collateral Account or
any similar collateral account pledged to the Agent on behalf of the Lenders be
included in the calculation of the Borrowing Base.
(ii) The Parent hereby pledges to the Agent for its benefit,
the benefit of the Issuing Bank and the pro rata benefit of the Lenders, a Lien
on and security interest in the Parent Cash Collateral Account and all sums at
any time and from time to time on deposit therein (the Parent Cash Collateral
Account, together with all sums on deposit therein, being sometimes hereinafter
collectively referred to as the "Parent Cash Collateral"), as first priority
collateral security for the prompt payment in full when due, whether at stated
maturity, by acceleration or otherwise of all the Obligations. The Parent agrees
that at any time and from time to time at its expense, it will promptly execute
and deliver to the Agent any further instruments and documents, and take any
further actions, that may be necessary or that the Agent may reasonably request,
in order to perfect and protect any first priority security interest granted or
purported to be granted hereby or enable the Agent to exercise and enforce its
rights and remedies hereunder with respect to any Parent Cash Collateral. The
Parent agrees that it will not (i) sell or otherwise dispose of any of the
Parent Cash Collateral or (ii) create or permit to exist any Lien upon any of
the Parent Cash Collateral. The Parent hereby authorizes the Agent, at any time
any Obligations shall be required to be paid, to apply any and all cash on
deposit in the Parent Cash Collateral Account towards all such Obligations which
shall then be due and owing.
SECTION 2.36 Amendment to Clause (b) of Section 2.11 (Cash Collateral
Accounts) of the Existing Credit Agreement. Clause (b) to Section 2.11 is hereby
amended by deleting the phrase ", except for Permitted Liens" in the fifth
sentence in such Section.
SECTION 2.37 Amendment to Clause (a) of Section 3.1 (Interest Rate and
Payment Dates (Prior to Maturity)) of the Existing Credit Agreement. Clause (a)
of Section 3.1(f) is hereby amended by deleting the table in such Section and
replacing it with the following table:
ADVANCES RATE
Each Parent ABR Advance Alternate Base Rate plus 1.50%.
.
Each GP Canada ABR Advance Alternate Base Rate plus 1.50%.
Each Parent Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus 2.95%.
Each GP Canada Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus 2.95%.
SECTION 2.38 Amendment to Clause (f) of Section 3.1 (Interest Rate and
Payment Dates (Further Adjustments to Applicable Margins and Applicable
Percentages)) of the Existing Credit Agreement. Clause (f) of Section 3.1 is
hereby deleted in its entirety.
SECTION 2.39 Amendment to Section 7.11(d) (Financial Covenants (Minimum
Consolidated EBITDA)) of the Existing Credit Agreement. Clause (d) of Section
7.11 is hereby amended by deleting the table in such Clause and substituting in
lieu thereof the following table:
Fiscal Quarter Amount
-------------- ------
June 30, 2001 $4,500,000
and each fiscal quarter thereafter
SECTION 2.40 Amendment to Section 7.18 (Cash Collateral Balance) of the
Existing Credit Agreement. Section 7.18 is hereby inserted as a new Section in
its correct numerical order:
7.18 Cash Collateral Balance
The Parent shall maintain a balance of not less than
$5,000,000 in the Parent Cash Collateral Account on August 30, 2001
(which amount shall, for the avoidance of doubt, include all amounts
deposited in the Parent Cash Collateral Account as of the Third
Amendment Effective Date) and such balance shall be maintained at all
times thereafter, subject however to any reductions set forth in
Section 2.11(a)(i), until the Obligations have been paid in cash in
full and the Commitments have been permanently terminated.
SECTION 2.41 Amendment to Clause (n) of Section 8.1 (Indebtedness) of
the Existing Credit Agreement. Clause (n) of Section 8.1 is hereby amended by
deleting such clause in its entirety and substituting in lieu thereof the
following:
(n) Indebtedness in a principal amount not to exceed (A) $1,680,000 in
respect of the MXL Pennsylvania Mortgage Transaction and (B) $1,250,000
in respect of the MXL Illinois Mortgage Transaction (including the
Contingent Obligations of the Parent contemplated by the respective MXL
Mortgage Documents) provided that the following conditions have been
satisfied:
(i) no Default or Event of Default shall exist immediately
before or after giving effect thereto,
(ii) the total consideration received or to be received
therefor by MXL and/or the Parent shall be payable in cash,
(iii) MXL and/or Parent shall apply the Net Cash Proceeds of
the MXL Pennsylvania Mortgage Transaction on the Business Day
of the receipt thereof as required and provided by Section
2.5(d),
(iv) the Parent shall deposit the net proceeds of the MXL
Illinois Mortgage Transaction immediately upon receipt thereof
as required and provided by Section 2.11(a), and
(v) Prior to the closing of such transaction, the Agent and
the Lenders shall have received a certificate in respect
thereof signed by an Authorized Signatory of MXL and the
Parent identifying the Property to be sold or otherwise
disposed of and stating (x) that immediately before and after
giving effect thereto, no Default or Event of Default shall
exist and (y) the total consideration to be received by MXL
and/or the Parent in connection therewith.
SECTION 2.42 Amendment to Clause (xiii) of Section 8.2 (Liens) of the
Existing Credit Agreement. Clause (xiii) of Section 8.2 is hereby amended by
deleting such clause in its entirety and substituting in lieu thereof the
following:
(xiii) a mortgage Lien on (A) the MXL Pennsylvania Property securing
obligations incurred in connection with the MXL Pennsylvania Mortgage
Transaction provided that (a) such Lien attaches only to the MXL
Pennsylvania Property and personal property located thereon and
encompassed by the definition of "Mortgaged Property" set forth in the
MXL Pennsylvania Mortgage and (b) the Indebtedness secured by such Lien
is permitted by Section 8.1(n) and (B) the MXL Illinois Property
securing obligations incurred in connection with the MXL Illinois
Mortgage Transaction provided that (a) such Lien attaches only to the
MXL Illinois Property and personal property located thereon and
encompassed by the definition of "Premises" set forth in the MXL
Illinois Mortgage and (b) the Indebtedness secured by such Lien is
permitted by Section 8.1(n).
SECTION 2.43 Amendment to Section 8.3 (Merger, Consolidations and
Acquisitions) of the Existing Credit Agreement. Section 8.3 is hereby amended by
inserting the following proviso at the end of such Section:
"provided, that after the Third Amendment Effective Date no Borrower
shall be permitted to make any Acquisition of any other Person."
SECTION 2.44 Amendment to Section 8.5 (Investments, Loans, Etc.) of the
Existing Credit Agreement. Section 8.5 is hereby amended by inserting the
following proviso at the end of such Section:
"provided, that after the Third Amendment Effective Date no Borrower
shall be permitted to make any equity Investment in any other Person."
SECTION 2.45 Amendment to Clause (b) of Section 8.7 (Capital
Expenditures; Operating Leases) of the Existing Credit Agreement. Clause (b) of
Section 8.7 is hereby amended by deleting the phrase "MXL Mortgage Transaction"
and substituting in lieu thereof the phrase "MXL Mortgage Transactions".
SECTION 2.46 Amendment to Clause (c) of Section 9.1 (Events of Default)
of the Existing Credit Agreement. Clause (c) of Section 9.1 is hereby deleted in
its entirety and replaced with the following:
(c) The failure of the Borrower to observe or perform any
covenant or agreement contained in (i) Section 2.5, 2.6, 7.1, 7.3,
7.11, 7.12 or Section 8 or (ii) Section 7.18 and such failure has not
been remedied within five (5) days of any Credit Party's knowledge of a
violation of Section 7.18; or
SECTION 2.47 Amendment to Section 11.2 (Notices) of the Existing Credit
Agreement. Section 11.2 of the Existing Credit Agreement is hereby amended by
deleting all notice information for the Agent or the Issuing Bank and
substituting in lieu thereof the following:
The Agent or the Issuing Bank:
Fleet National Bank
000 Xxxx Xxxxxx
XXXX00000X
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Fleet National Bank
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 2.48 Amendment to Section 11 of the Existing Credit Agreement.
Section 11 is hereby amended by inserting the following new Section 11.28 in its
correct numerical order.
SECTION 11.28 Certain Collateral Matters.
(a) The Agent is authorized on behalf of the Lenders, without the
necessity of any notice to or further consent from the
Lenders, from time to time to take any action with respect to
any Collateral or the Loan Documents which may be necessary to
perfect and maintain perfected the security interest in and
Liens upon the Collateral granted pursuant to the Loan
Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and
in its discretion, to release any security interest or Lien
granted to or held by the Agent upon any Collateral (i) upon
termination of the Commitments and Letter of Credit
Commitments and payment in full in cash of all principal and
interest on the Loans, all fees payable pursuant to Section
2.10, all Reimbursement Obligations, and all other Obligations
payable under the Credit Agreement and under any Loan
Document; (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition
permitted hereunder; (iii) constituting property in which the
Borrowers or any other obligor of the Borrowers owned no
interest at the time the security interest and/or Lien was
granted or at any time thereafter; (iv) constituting property
leased to the Borrowers or any other obligor of the Borrowers
under a lease which has expired or been terminated in a
transaction permitted under the Credit Agreement or is about
to expire and which has not been, and is not intended by the
Borrowers or any of the Subsidiaries of the Borrowers to be
renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the
Indebtedness evidenced thereby has been paid in full; or (vi)
if approved, authorized or ratified by the Required Lenders or
as otherwise required by Section 11.1, each Lender. Upon
request by the Agent at any time, the Lenders will confirm in
writing the Agent's authority to release particular Collateral
pursuant to this Section 11.28.
SECTION 2.49 Amendment to Exhibit A to the Existing Credit Agreement.
The Existing Credit Agreement is hereby further amended by deleting Exhibit A to
the Existing Credit Agreement in its entirety and substituting in lieu thereof
the following new Exhibit A attached to this Third Amendment.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 Conditions to Effectiveness of Article II. The amendments
set forth in Article II shall become effective upon the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Article III
(the "Effective Date").
SECTION 3.2 Resolutions, etc. The Agent shall have received from each
of the Borrowers and Guarantors, a certificate, dated as of the date hereof, of
its Secretary or Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Third Amendment and each other Loan Document to be executed by it; and
(b) the incumbency and signatures of the officers of each of
the Borrowers authorized to act with respect to this Third Amendment
and each other Loan Document as is to be executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary or Assistant Secretary of each
of the Borrowers canceling or amending such prior certificate.
SECTION 3.3 Amendment Fees. The Borrowers shall have paid to the Agent,
for the pro rata account of each Lender, the portion of the Amendment Fees (as
defined in Section 5.1 herein) due and payable on the date hereof.
SECTION 3.4 Closing Fees, Expenses, etc. The Agent shall have been paid
or reimbursed by the Borrowers for the reasonable out-of-pocket costs and
expenses incurred by the Agent and the Lenders in connection with the
negotiation, preparation and administration of this Third Amendment, including,
without limitation, the legal fees and expenses of the Agent and Lenders'
counsel.
SECTION 3.5 Opinions of Counsel. The Agent and the Lenders shall have
received legal opinions, dated the Effective Date, in form and substance
satisfactory to the Agent from (a) Xxxxxx Xxxxx & Xxxxxxx, LLP, New York counsel
to the Parent and (b) Goodmans, LLP, Canadian counsel to GP Canada, as to such
matters as the Agent may reasonably request.
SECTION 3.6 Execution of Counterparts. The Agent shall have received
counterparts of this Third Amendment duly executed by GP Canada, the Parent, the
Agent, the Lenders and each of the respective parties to the Loan Documents in
accordance with Section 5.4 herein, each of which counterparts shall be deemed
to be an original and all of which shall constitute together but one and the
same agreement.
SECTION 3.7 Execution of Amendments to Security Agreements. The Agent
shall have received an execution copy of the First Amendment to the Amended and
Restated Borrower Security Agreement and the First Amendment to Subsidiary
Guaranty and Security Agreement, each duly executed and delivered by the
respective parties thereto, which shall be in form satisfactory to the Agent.
SECTION 3.8 Representations and Warranties. The Agent shall have
received a certificate executed by the chief financial officer of each of the
Parent and GP Canada certifying that the representations and warranties set
forth in Section 4 of the Credit Agreement and in the other Loan Documents are
true and correct in all material respects as of the Effective Date, and that no
Default or Event of Default has occurred and is continuing.
SECTION 3.9 Cash Collateral Account. The Parent shall have established
a cash collateral account with the Agent in accordance with Section 2.11(a) of
the Credit Agreement.
SECTION 3.10 Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of GP Canada, the Parent or any other
Person shall be satisfactory in form and substance to the Agent and its counsel;
the Agent and its counsel shall have received all information, approvals,
opinions, documents or instruments as the Agent or its counsel may reasonably
request.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
In order to induce the Lenders and the Agent to enter into this Third
Amendment, GP Canada and the Parent jointly and severally represent and warrant
unto the Agent, the Issuing Bank and each Lender as set forth in this Article
IV.
SECTION 4.1 Compliance With Warranties. The representations and
warranties set forth in Section 4 of the Credit Agreement and in each other Loan
Document delivered in connection herewith or therewith are true and correct in
all material respects with the same effect as if made on and as of the Effective
Date (unless stated to relate solely to an earlier date).
SECTION 4.2 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each of GP Canada and the Parent of this Third
Amendment and each Loan Document to be executed by it in connection with the
terms and conditions hereof, have been duly authorized by all necessary
corporate action, and do not (i) contravene GP Canada's or the Parent's charter,
other incorporation papers, by-laws or any stock provision or any amendment
thereof or of any indenture, agreement, instrument or undertaking binding upon
GP Canada or the Parent, (ii) contravene or result in a default under any
contractual restriction, law or governmental regulation or court decree or order
binding on or affecting GP Canada or the Parent or (iii) result in, or require
the creation or imposition of, any Lien (except as contemplated in or created by
the Loan Documents).
SECTION 4.3 Validity, etc. This Third Amendment has been duly executed
and delivered and is, and each other Loan Document to be executed and delivered
by GP Canada or the Parent, as the case may be, will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of GP
Canada and the Parent, as the case may be, enforceable in accordance with their
respective terms; subject in each case to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally, and subject to the effect of general principles of
equity (regardless of whether considered in a proceeding in equity or at law).
Each of such Loan Documents which purports to create a security interest creates
a valid first priority security interest in the Collateral subject thereto,
subject only to Liens permitted by Section 8.2, securing the payment of the
Obligations.
SECTION 4.4 No Material Adverse Change. There has been no event or
occurrence, nor has any fact or state of facts existed, which could reasonably
be expected to have a material adverse change in the financial condition,
operations, assets, business, properties, revenues or prospects of the Parent or
GP Canada, taken as a whole.
SECTION 4.5 Compliance With Credit Agreement. As of the execution and
delivery of this Third Amendment and as of the Effective Date, each of GP
Canada, the Parent and each other Person is in compliance with all the terms and
conditions of the Credit Agreement and the other Loan Documents to be observed
or performed by it, and no Default has occurred and is continuing.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1 Amendment Fees. In consideration of the Lenders'
agreement to amend the Existing Credit Agreement pursuant to the terms of this
Third Amendment, the Borrowers shall pay to the Agent, for pro rata distribution
to the Lenders, amendment and extension fees in such amounts and at such times
as set forth in the table below (the "Amendment Fees"). The Amendment Fees,
shall be deemed fully earned as of the date hereof:
Date Payable Amendment Fee Payment
Third Amendment Effective Date $ 100,000
October 15, 2001 $ 50,000
--------
Total Amendment Fees: $150,000
The Borrowers acknowledge and agree that the Amendment Fees set forth
herein constitute Obligations under the Existing Credit Agreement.
The Lenders further agree that, if the Borrowers have repaid all of
their Obligations to the Agent and the Lenders in cash in full no later than
2:00 p.m. (New York time) October 15, 2001 (including repayment of the GP Canada
Obligations and termination of the Commitments), the Lenders shall waive the
Borrowers' payment of that portion of the Amendment Fees ($50,000) payable on
October 15, 2001.
SECTION 5.2 No Present Claims. Except as described further below, each
of the Borrowers acknowledges and agrees that (i) it has no claim or cause of
action against the Agent or the Lenders (or any of the Agent or the Lenders'
directors, officers, employees or agents), (ii) it has no offset right,
counterclaim or defense of any kind against any of its obligations, indebtedness
or liabilities to the Agent or the Lenders, and (iii) the Agent and the Lenders
have heretofore properly performed and satisfied in a timely manner all of their
obligations to the Borrowers. Except as described further below, the Agent and
the Lenders wish (and the Borrowers hereby agree) to eliminate any possibility
that any past conditions, acts, omissions, events, circumstances or matters
would impair or otherwise adversely affect any of the Agent's or Lenders'
rights, interests, contracts, collateral security or remedies. Therefore, each
of the Borrowers hereby unconditionally releases, waives and forever discharges
(A) any and all liabilities, obligations, duties, promises or indebtedness of
any kind of the Agent and the Lenders to the Borrowers, except the obligations
to be performed by the Agent or the Lenders for the Borrower as expressly stated
in this Third Amendment, the Credit Agreement and the other Loan Documents, and
(B) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether known or unknown, which the Borrowers might
otherwise have against the Agent or the Lenders or any of their directors,
officers, employees or agents, in either case (A) or (B), on account of any
condition, act, omission, event, contract, liability, obligation, indebtedness,
claim, cause of action, defense, circumstance or matter of any kind whatsoever
that existed, arose or occurred at any time prior to the date hereof or which
could thereafter arise as the result of the execution of (or the satisfaction of
any condition precedent or subsequent to) this Third Amendment, the Credit
Agreement or any of the other Loan Documents; provided, however, that the
foregoing shall not serve as a release by the Parent of any claims
("Non-Released Claims") to recover damages incurred by the Parent (limited, in
any event, to the market value of Parent's Millennium Stock) as a result of a
cause of action (a "Millennium Claim") by Millennium Cell Inc. or its successor
("Millennium") against the Parent for the recovery of the Parent's Millennium
Stock (A) issued by Millennium in replacement of the Millennium Stock
represented by Millennium Stock Certificate No. MC0129 and (B) owned by the
Parent at the time of such Millennium Claim; provided further, that the amount
of any such damages shall be reduced on a dollar-for-dollar basis to the extent
of the amount of any damages actually paid by the Agent to Millennium under the
terms of the Lost Securities Bond No. 06 s 103551566 BCM or otherwise as a
result of any cause of action by Millennium against Agent for the recovery of
the market value of Parent's Millennium Stock. The Agent agrees not to assert a
defense that a Non-Released Claim is barred by the statute of limitations
provided that such Non-Released Claim is brought not more than one year after
the related Millennium Claim is brought.
SECTION 5.3 Ratification of Existing Credit Agreement. The Existing
Credit Agreement, as expressly amended by the terms hereof, is hereby ratified,
approved and confirmed in each and every respect. Except as specifically amended
herein, the Existing Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof and except as expressly set forth herein
the provisions hereof shall not operate as a waiver of any right, power or
privilege of the Agent and the Lenders nor shall the entering into of this Third
Amendment preclude the Lenders from refusing to enter into any further or future
amendments. This Third Amendment shall be deemed to be a "Loan Document" for all
purposes of the Credit Agreement and all other Loan Documents.
SECTION 5.4 Consent and Acknowledgment of Guarantors and obligors. By
their signatures below, each Person that is a party to the Loan Documents,
hereby acknowledges, consents and agrees to this Third Amendment and hereby
ratifies and confirms their respective obligations under each of the Loan
Documents executed and delivered by it in all respects.
SECTION 5.5 Existing Credit Agreement, References, etc. All references
to the Existing Credit Agreement in any other document, instrument, agreement or
writing shall hereafter be deemed to refer to the Existing Credit Agreement as
modified hereby. As used in the Existing Credit Agreement, the terms
"Agreement", "herein", "hereinafter", "hereunder", "hereto" and words of similar
import shall mean, from and after the applicable Effective Date, the Existing
Credit Agreement as modified by this Third Amendment.
SECTION 5.6 Headings. The various headings of this Third Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Third Amendment or any provisions hereof.
SECTION 5.7 Governing Law; Entire Agreement. THIS THIRD AMENDMENT SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK. This Third Amendment constitutes the entire understanding among the
parties hereto with respect to the subject matter hereof and supersedes any
prior agreements, written or oral, with respect thereto. This Third Amendment
and the provisions contained herein may be modified only by an instrument in
writing executed by GP Canada, the Parent, the Guarantors and the other obligors
with respect to Section 5.4, the Agent, the Issuing Bank and the Lenders.
[remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
GP STRATEGIES CORPORATION
By:________________________
Name:
Title:
GENERAL PHYSICS CANADA LTD.
By:________________________
Name:
Title:
FLEET NATIONAL BANK (f/k/a Fleet Bank
National Association), Individually,
as Issuing Bank and as Agent
By:_________________________
Name:
Title:
KEYBANK, NATIONAL ASSOCIATION
By:_________________________
Name:
Title:
MELLON FINANCIAL SERVICES
CORPORATION,
Attorney-in-Fact for Mellon Bank, N.A.
By:_________________________
Name:
Title:
THE DIME SAVINGS BANK OF NEW YORK, FSB
By:_________________________
Name:
Title:
ACKNOWLEDGED, CONFIRMED
AND AGREED TO WITH RESPECT
TO SECTION 5.4:
-----------
MXL INDUSTRIES, INC.
By:________________________
Name:
Title:
GENERAL PHYSICS CORPORATION
By:________________________
Name:
Title:
EXHIBIT A
List of Commitment Amounts
Revolving Credit Term Loan Commitment
Commitment Amount
Amount
Fleet National Bank $18,375,000.00 $ 5,660,156.25
Mellon Bank, N.A. $10,500,000.00 $ 3,234,375.00
KeyBank, N.A. $ 7,875,000.00 $ 2,425,781.25
The Dime Savings Bank $ 5,250,000.00 $ 1,617,187.50
of New York, FSB
TOTAL $42,000,000.00 $12,937,500.00
