Exhibit 99.4
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "Agreement") is made
this day of , 2003, by and among Bank of America, N.A., a
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national banking association (together with its successors and assigns are
hereinafter referred to as the "Senior Lender"), Pequot Private Equity Fund III,
L.P., a Delaware limited partnership, and Pequot Offshore Private Equity
Partners III, L.P., a Delaware limited partnership (together with their
successors and assigns are hereinafter referred to as the "Junior Lender"), and
Analex Corporation, a Delaware corporation ("Analex"), and the subsidiaries of
Borrower identified on the signature pages hereto ("Subsidiary Guarantors," and,
together with Analex, separately and collectively, "Borrower").
RECITALS
A. Analex is indebted to Junior Lender for a loan (the "Junior Loan") in
the aggregate principal amount of $10,000,000, which indebtedness is evidenced
by secured subordinated promissory notes (collectively, the "Junior Note") made
by Borrower and payable to Junior Lender. The Subsidiary Guarantors have
guaranteed payment of the Junior Indebtedness.
B. Analex has executed those certain promissory notes (collectively, the
"Senior Note") with aggregate principal balances totaling $11,500,000.00 in
favor of Senior Lender, payable with interest and upon the terms and conditions
described therein, evidencing a loan (the "Senior Loan"), which Senior Note is
secured by, among other things, a security interest (as the same may be
hereafter amended, extended, restated, supplemented, increased, consolidated,
renewed or otherwise modified or replaced from time to time, the "Senior Lien")
covering certain personal property more particularly described on Schedule A
attached hereto and made a part hereof (the "Collateral"). The Subsidiary
Guarantors have guaranteed payment of the Senior Indebtedness.
C. The Senior Lender is unwilling to permit the indebtedness evidenced by
the Junior Note and to continue the Senior Loan unless the rights of the Junior
Lender under the Junior Loan Documents (hereinafter defined) are, among other
things, limited such that (i) the Junior Lender can only take action against the
Borrower or the Collateral to the extent provided herein while the Senior Loan
remains unpaid, (ii) the Junior Lender can only take actions to delay refinance,
foreclosure or collection of the Senior Loan to the extent provided herein, and
(iii) the Senior Lender will control the disposition of the Junior Lender's
claims against the Borrower and the Collateral in the event of the Borrower's
bankruptcy or debtor reorganization proceedings to the extent provided herein.
D. The Senior Lender and the Junior Lender have agreed that the Junior Loan
Documents are to be subordinated such that, among other things, they will
provide only the rights provided herein for payment to and enforcement by the
Junior Lender until such time as the Borrower owns the Collateral free and clear
of the Senior Loan Documents (hereinafter defined) and the Senior Loan has been
repaid.
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Exhibit 99.4
E. In consideration of the consent by the Senior Lender to the issuance by
Analex of the Junior Note and the execution and delivery by the Senior Lender of
the Fourth Amendment to Credit Agreement substantially in the form attached
hereto, Junior Lender is willing to execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the Senior Lender and
the Junior Lender hereby covenant and agree as follows:
ARTICLE I
DEFINED TERMS
Section 1.01. Definitions. Unless otherwise defined herein, all capitalized
terms used herein and defined in the Senior Loan Documents are used herein as
therein defined. The following terms shall have the meanings herein specified
unless the context otherwise requires (such meanings to apply to such terms in
both the singular and plural forms):
"Agreement" means this Intercreditor and Subordination Agreement dated as
of July 16, 2003 by and among the Senior Lender, the Junior Lender and the
Borrower.
"Collateral" shall have the meaning provided in the second recital.
"Enforcement Action" means the commencement of the exercise of any remedies
against Borrower to enforce the Junior Loan under the Junior Loan Documents
including, without limitation, the commencement of any litigation or proceeding,
including the commencement of any foreclosure proceeding, the exercise of any
power of sale, the sale by advertisement, the taking of a deed or assignment in
lieu of foreclosure, the obtaining of a receiver or the taking of any other
enforcement action against, or the taking of possession or control of, any of
the Collateral, but specifically excludes (a) requests and demands made upon
Borrower by delivery of notices to Borrower and the cure by the Junior Lender of
any Default by Borrower under the Senior Loan Documents as provided herein, (b)
assertion or enforcement of any right of the Junior Lender to receive payment
from proceeds of a foreclosure sale of any Collateral incident to foreclosure of
the liens or security interests of the Senior Loan Documents which may remain
after payment of costs and expenses of such foreclosure and payment and
satisfaction in full of the Senior Indebtedness and (c) the filing of claims in
any Insolvency Proceeding concerning Borrower as may be required to protect and
preserve the right of the Junior Lender to participate in such Insolvency
Proceeding as creditor and to participate in distributions of assets of Borrower
in said Insolvency Proceeding with respect to the Junior Indebtedness after
payment and satisfaction in full of the Senior Indebtedness, but subject in all
respects to the rights of the Senior Lender under and as provided in this
Agreement and without in any way impairing or affecting the right of the Senior
Lender to require performance and observance by the Junior Lender of or the
obligations of the Junior Lender to perform and observe the covenants,
undertakings and agreements of the Junior Lender under and as provided in this
Agreement.
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Exhibit 99.4
"Insolvency Proceeding" means any proceeding under Title 11 of the United
States Code (11 U.S.C. Sec. 101 et. seq.) or any other insolvency, liquidation,
reorganization or other similar proceeding concerning Borrower, any action for
the dissolution of Borrower, any proceeding (judicial or otherwise) concerning
the application of the assets of Borrower, for the benefit of its creditors, the
appointment of or any proceeding seeking the appointment of a trustee, receiver
or other similar custodian for all or any substantial part of the assets of
Borrower or any other action concerning the adjustment of the debts of Borrower,
the cessation of business by Borrower, except following a sale, transfer or
other disposition of all or substantially all of the assets of Borrower in a
transaction permitted under the Senior Loan Documents.
"Junior Indebtedness" shall mean, collectively, all of the indebtedness of
the Borrower for borrowed money, including interest thereon and any other
amounts payable in respect thereof or in connection therewith, evidenced by:
(a) the Junior Note; and
(b) the Note Purchase Agreement.
"Junior Loan" shall have the meaning provided in the first recital.
"Junior Loan Documents" shall mean the Junior Note and the Note Purchase
Agreement and any and all instruments, documents and agreements now or hereafter
evidencing, securing or guarantying the Junior Indebtedness.
"Junior Note" shall have the meaning provided in the first recital.
"Note Purchase Agreement" shall mean that certain Subordinated Note and
Series A Convertible Preferred Stock Purchase Agreement dated July 18, 2003 by
and among the Junior Lender and Analex.
"Plan Voting Rights" means, with respect to any Person, the rights of such
Person to vote to approve or reject any plan of reorganization in respect of the
Borrower in an Insolvency Proceeding.
"Senior Indebtedness" shall mean, collectively, all of the indebtedness,
liabilities and obligations of Borrower evidenced by the Senior Note and all
amounts due or to become due pursuant to the Senior Loan Documents.
"Senior Lien" shall have the meaning provided in the second recital.
"Senior Loan" shall have the meaning provided in the second recital.
"Senior Loan Documents" shall mean the Senior Note, the Senior Lien and any
and all instruments, documents and agreements now or hereafter evidencing,
securing or guarantying the Senior Indebtedness.
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Exhibit 99.4
"Senior Note" shall have the meaning provided in the second recital.
ARTICLE 2
SUBORDINATION; STANDSTILL; PAYMENTS
Section 2.01. Subordination. Except as set forth in Section 2.05, the
Junior Lender hereby agrees that the Junior Indebtedness is and shall be
subordinate, to the extent and in the manner hereinafter set forth, to the prior
payment in full of the Senior Indebtedness. Except as specifically provided in
Section 2.05 hereof, no payment shall be made by or on behalf of the Borrower
for or on account of any Junior Indebtedness, and the Junior Lender shall not
take or receive from the Borrower, directly or indirectly, in cash or other
property or by setoff or in any other manner, including, without limitation,
from or by way of collateral, payment of all or any of the Junior Indebtedness,
unless and until the Senior Indebtedness shall have been paid in full.
Section 2.02. Standstill; Limitation on Junior Lender Rights. (a)
Notwithstanding Junior Lender's rights under applicable law or any provision of
the Junior Loan Documents to the contrary, the Junior Lender hereby acknowledges
and agrees that it shall not (A) accelerate the Junior Indebtedness or any
portion thereof, or (B) take any Enforcement Action until, in any such case, the
earlier of (i) the satisfaction in full of the Senior Indebtedness or (ii) the
acquisition of the Senior Indebtedness by the Junior Lender. Junior Lender
hereby waives any right it may have to require that the Senior Lender marshal
any assets of Borrower in favor of the Junior Lender and the Junior Lender
agrees that it shall not acquire, by subrogation or otherwise, any lien, estate,
right or other interest in any of the Collateral or the proceeds therefrom that
is or may be prior to any Senior Loan Document.
(b) Until the earlier of (i) the satisfaction in full of the Senior
Indebtedness or (ii) the acquisition of the Senior Indebtedness by the Junior
Lender, the Junior Lender hereby covenants and agrees that it will not
acquiesce, petition or otherwise invoke or cause any other Person to invoke the
process of the United States of America, any state or other political
subdivision thereof or any other jurisdiction, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government for the purpose of commencing or sustaining a case against
Borrower, under a Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of Borrower or all or any part of its property or assets
or ordering the winding-up or liquidation of the affairs of Borrower.
Section 2.03. Non-Interference by Junior Lender. Until such time as the
Junior Lender is permitted to take an Enforcement Action in accordance with the
terms of Section 2.02 or Section 2.05, the Junior Lender shall not institute any
judicial or administrative proceeding against Borrower or the Senior Lender
which directly or indirectly would interfere with or delay the exercise by the
Senior Lender of its rights and remedies in respect of the Collateral or any
part thereof or under the Senior Loan Documents or this Agreement. Without
limiting the generality of the foregoing, in the event of a bankruptcy or
insolvency of Borrower, the Junior Lender shall not object to or oppose any
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Exhibit 99.4
efforts by the Senior Lender to obtain relief from the automatic stay under
Section 362 of the United States Bankruptcy Code or to seek to cause such
entity's bankruptcy estate to abandon the Collateral (or any portion thereof)
that is subject to the Senior Lien.
Section 2.04. Assignment of Voting Rights. The Junior Lender hereby
absolutely, irrevocably and unconditionally assigns and sets over to the Senior
Lender all of the Junior Lender's Plan Voting Rights in any Insolvency
Proceeding respecting Borrower.
Section 2.05. Payments on Junior Indebtedness. (a) Except as otherwise
provided in Section 2.05(b), as long as no Event of Default has occurred and is
continuing under the Senior Lien or other Senior Loan Documents or would occur
as a result of any such payment (taking into account scheduled payments of
interest and prepayments of principal), the Junior Lender may receive and retain
quarterly payments of interest and payments of principal (including prepayments)
on the Junior Indebtedness pursuant to the Junior Note from Borrower.
(b) If any such Event of Default (other than an Event of Default arising
from the failure to pay any sum of money, including principal (whether due upon
acceleration of maturity or otherwise), interest, fees, expenses or any other
amount or an Event of Default arising from a cross-default with respect to the
Junior Indebtedness which has not been waived by the Junior Lender) shall have
occurred and be continuing, and if the Senior Lender has not waived such Event
of Default or fails to exercise any of its remedies (other than requests and
demands made upon Borrower by delivery of notices to Borrower) against Borrower
within 180 days after Senior Lender has given notice of such Event of Default to
Junior Lender pursuant to Section 3.01, Junior Lender may receive and retain
quarterly payments of interest and payments of principal (including prepayments
but excluding any principal payment the maturity of which has been accelerated)
on the Junior Indebtedness pursuant to the Junior Note from Borrower and Junior
Lender may undertake any Enforcement Action against Borrower, provided that any
money or other property collected or received by Junior Lender pursuant to such
Enforcement Action in excess of what the Junior Lender is entitled to pursuant
to the Junior Loan Documents and this Section 2.05 (excluding any principal
payment the maturity of which has been accelerated) shall be applied to the
Senior Indebtedness until the Senior Indebtedness is satisfied in full. If
Senior Lender exercises any remedy against Borrower with respect to the Senior
Indebtedness, Junior Lender may exercise the same remedy against Borrower with
respect to the Junior Indebtedness, provided that any money or other property
collected or received by Junior Lender pursuant to the exercise of such remedy
shall be applied to the Senior Indebtedness until the Senior Indebtedness is
satisfied in full. Notwithstanding the foregoing, during any 360-day period, the
aggregate number of days during which payments to and Enforcement Action by
Junior Lender may be blocked as a result of any one such Event of Default and
the failure of the Senior Lender to exercise its remedies shall not exceed 180
days.
Section 2.06. Distributions Held in Trust. If the Junior Lender shall
receive any cash distributions in respect of, or other proceeds of, the
Collateral (including, without limitation, (i) any distribution arising directly
or indirectly from any lien of the Senior Lender being avoided, declared to be
fraudulent, or otherwise set aside under the provisions of any law governing
fraudulent conveyances or transfers, and (ii) any distribution arising directly
or indirectly by reason of or in
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Exhibit 99.4
connection with an Insolvency Proceeding), in excess of what the Junior Lender
is entitled to pursuant to the Junior Loan Documents and Section 2.05 (or would
have been entitled to if such Insolvency Proceeding had not occurred or if any
such lien had not been avoided, declared to be fraudulent, or otherwise set
aside under the provisions of any law governing fraudulent conveyances or
transfers), the Junior Lender shall hold the same in trust, as trustee, for the
benefit of the Senior Lender and shall promptly deliver the same to or at the
direction of the Senior Lender, for the benefit of the Senior Lender in
precisely the form received (except for the endorsement or assignment thereof by
such Junior Lender without recourse or warranty), it being understood that it is
the intention of the parties that until the Senior Indebtedness (without regard
to any modifications thereof arising by reason of or in connection with an
Insolvency Proceeding) is repaid in full, the Senior Lender shall receive all
proceeds relating to any realization upon, distribution in respect of or
interest in any of the Collateral as and to the extent set forth in the Senior
Loan Documents. In the event the Junior Lender fails to make any such
endorsement or assignment, the Senior Lender, or any of its officers or
employees, is hereby irrevocably authorized to make the same.
ARTICLE 3
NOTICE OF DEFAULT;
SUBSTITUTE PERFORMANCE CONSENT;
JUNIOR LENDER RIGHTS; REINSTATEMENT
Section 3.01. Notice of Default. In the event of an Event of Default under
any Senior Loan Document, the Senior Lender will provide to the Junior Lender a
copy of any related notice of default delivered to Borrower, and such notice
shall be sent to the Junior Lender in the manner provided for in Section 5.01.
In the event of an "Event of Default" (as defined in the Note Purchase
Agreement) under any Junior Loan Document, the Junior Lender will provide to the
Senior Lender a copy of any related notice of default delivered to Borrower and
such notice shall be sent to the Senior Lender in the manner provided for in
Section 5.01.
Section 3.02. Performance by the Junior Lender; Waiver of Subrogation. The
Senior Lender shall accept performance by the Junior Lender of any of the
obligations of Borrower within the cure period, if any, set forth in the Senior
Loan Documents as though performed by Borrower but the Junior Lender shall have
no obligation to so perform. Notwithstanding any such performance by the Junior
Lender of any such obligations of Borrower, the Junior Lender hereby absolutely
and irrevocably waives, to the fullest extent permitted by applicable law, any
rights it may have, by contract, at law or in equity, to be subrogated to the
Senior Lender's rights against Borrower under the Senior Loan Documents or to
the Senior Lender's liens on any of the Collateral until payment in full of the
Senior Indebtedness or acquisition of the Senior Indebtedness by the Junior
Lender.
Section 3.03. Consent by the Junior Lender. The Junior Lender hereby
consents and agrees that any lawful action taken by or on behalf of the Senior
Lender in the exercise of the Senior Lender's rights and/or remedies under the
Senior Loan Documents (including, without limitation, any foreclosure or
acquisition of title to the Collateral or any part thereof by deed in lieu of
foreclosure or otherwise) are hereby deemed to be consented to and approved by
the Junior Lender in all respects.
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Exhibit 99.4
Section 3.04. Junior Lender Rights. (a) The provisions of this Agreement
shall not affect the rights of Junior Lender (i) to convert the Junior Notes to
equity of Borrower and (ii) as shareholders of the Borrower either generally or
under the Borrower's Stockholders' Voting Agreement dated as of July 16, 2003.
(b) Subject to the terms of this Agreement, the Senior Lender agrees to
enter into a control agreement with the collateral agent for the Junior Lender
with respect to all accounts of the Borrower held by the Senior Lender.
(c) Promptly following payment in full of the Senior Indebtedness or
acquisition of the Senior Indebtedness by the Junior Lender, the Senior Lender
agrees to transfer to the collateral agent for the Junior Lender all stock
certificates of Subsidiaries of Borrower and any other Collateral held by Senior
Lender. Borrower hereby consents to such transfer by the Senior Lender. This
Section 3.04(c) shall survive the termination of this Agreement pursuant to
Section 5.10(b).
Section 3.05 Reinstatement. Junior Lender agrees that if at any time all or
any part of any payment theretofore applied to pay the Senior Indebtedness is,
or must be, rescinded or returned for any reasons whatsoever, including without
limitation, the insolvency, bankruptcy or reorganization of the Borrower, this
Agreement shall, to the extent that such payment is or must be rescinded or
returned, be deemed to have continued in existence notwithstanding such
application, and this Agreement shall continue to be effective or be reinstated,
as the case may be, as though such application had not been made.
ARTICLE 4
ADDITIONAL REPRESENTATIONS AND COVENANTS
OF THE JUNIOR LENDER
Section 4.01. Representations and Covenants. The Junior Lender hereby
further represents, warrants, covenants and agrees with the Senior Lender as
follows:
(a) Without limiting the generality of any other provisions of this
Agreement, the Senior Lender may at any time and from time to time without
the consent of, or notice to the Junior Lender, and without incurring
responsibility to the Junior Lender:
(1) change the manner, place or terms of payment or performance
of, and/or change or extend the time of payment or performance of,
renew or alter, any portion of the Senior Indebtedness or any other
obligations of any Person evidenced or secured by the Senior Loan
Documents, any security therefor, or any liability incurred directly
or indirectly in respect thereof;
(2) sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at
any time pledged or
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Exhibit 99.4
mortgaged to secure, or howsoever securing, the Senior Indebtedness or
any other obligations of any Person evidenced or secured by the Senior
Loan Documents, or any liabilities incurred directly or indirectly in
respect thereof, and/or any offset thereagainst;
(3) exercise or refrain from exercising any rights against
Borrower or others or otherwise act or refrain from acting;
(4) settle or compromise any portion of the Senior Indebtedness
or any other obligations of any Person evidenced or secured by the
Senior Loan Documents, any security therefor or any liability incurred
directly or indirectly in respect thereto;
(5) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of Borrower to the Senior Lender
regardless of what liability or liabilities of Borrower remain unpaid
or unperformed; and/or
(6) consent to or waive any breach of, or any act, omission or
default under, any of the Senior Loan Documents, or otherwise amend,
modify or supplement any of the Senior Loan Documents or any other
instruments or agreements executed and delivered in connection
therewith or otherwise relating thereto.
(b) The Junior Lender hereby makes the following representations and
warranties to the Senior Lender as of the date hereof:
(1) The Junior Lender has the power, authority and legal right to
execute, deliver and perform this Agreement. This Agreement has been
duly authorized by all necessary action of Junior Lender, duly
executed and delivered by Junior Lender and constitutes valid and
binding obligations of Junior Lender enforceable against Junior Lender
in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting rights of creditors generally,
and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(2) Neither the execution, delivery or performance by Junior
Lender of this Agreement nor compliance by it with the terms and
provisions hereof, (i) will contravene any provision of any law,
statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to
create or impose) any lien upon any of the property or assets of the
Junior Lender pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement, loan agreement, partnership agreement or
any other agreement, contract or instrument to which the Junior Lender
is a party or by which it or any of
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Exhibit 99.4
its property or assets is bound or to which it may be subject or (iii)
will violate any provision of the organizational documents of the
Junior Lender.
(3) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made prior to the date hereof), or exemption by,
any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with,
(i) the execution, delivery and performance by the Junior Lender of
this Agreement or (ii) the legality, validity, binding effect or
enforceability of this Agreement with respect to the Junior Lender.
(c) The Senior Lender hereby makes the following representations and
warranties to the Senior Lender as of the date hereof:
(1) The Senior Lender has the power, authority and legal right to
execute, deliver and perform this Agreement. This Agreement has been
duly authorized by all necessary action of Senior Lender, duly
executed and delivered by Senior Lender and constitutes valid and
binding obligations of Senior Lender enforceable against Senior Lender
in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting rights of creditors generally,
and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity
or at law).
(2) Neither the execution, delivery or performance by Senior
Lender of this Agreement nor compliance by it with the terms and
provisions hereof, (i) will contravene any provision of any law,
statute, rule or regulation or any order, writ, injunction or decree
of any court or governmental instrumentality, (ii) will conflict or be
inconsistent with or result in any breach of any of the terms,
covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to
create or impose) any lien upon any of the property or assets of the
Senior Lender pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement, loan agreement, partnership agreement or
any other agreement, contract or instrument to which the Senior Lender
is a party or by which it or any of its property or assets is bound or
to which it may be subject or (iii) will violate any provision of the
organizational documents of the Senior Lender.
(3) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as
have been obtained or made prior to the date hereof), or exemption by,
any governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection with,
(i) the execution, delivery and performance by the Senior Lender of
this Agreement or (ii) the legality, validity, binding effect or
enforceability of this Agreement with respect to the Senior Lender.
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Exhibit 99.4
ARTICLE 5
MISCELLANEOUS
Section 5.01. Notices. All notices requested hereunder or pertaining hereto
shall be in writing, shall be deemed delivered and effective upon the earlier of
(a) delivery, or (b) refusal of the addressee to accept delivery or failure of
delivery after at least one attempt, in each case under this clause (b) as such
events are recorded in the ordinary business records of the delivery entity, if
such notice is sent by a nationally recognized express courier service, with all
charges prepaid or charged to the sender's account, or by United States Mail,
certified or registered, return receipt requested, and with all postage and
other charges prepaid, in either case to the applicable addresses as set forth
in this Agreement, and shall be addressed as follows:
If to Senior Lender: Bank of America, N.A.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxx
If to Junior Lender: c/o Pequot Capital Management, Inc.
000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
with a copy to:
Xxxxx Xxxxx
c/o Pequot Capital Management, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with an additional copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: E. Xxx Xxxx
or to each such party at such other addresses as such party may designate in a
written notice to the other parties.
Section 5.02. Modification. No provision of this Agreement may be changed,
waived, discharged or terminated orally, by telephone or by any other means
except by an instrument in
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Exhibit 99.4
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.
Section 5.03. Governing Law; Arbitration: Waiver of Jury Trial; Limitation
of Liability.
(a) Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT
REGARD TO CHOICE OF LAW PRINCIPLES.
(b) Arbitration; Jury Trial Waiver.
(i) THIS PARAGRAPH CONCERNS THE RESOLUTION OF ANY CONTROVERSIES
OR CLAIMS BETWEEN JUNIOR LENDER OR BORROWER (EACH A "PARTY")
AND SENIOR LENDER, WHETHER ARISING IN CONTRACT, TORT OR BY
STATUTE, INCLUDING BUT NOT LIMITED TO CONTROVERSIES OR
CLAIMS THAT ARISE OUT OF OR RELATE TO: (I) THIS AGREEMENT
(INCLUDING ANY RENEWALS, EXTENSIONS OR MODIFICATIONS); OR
(II) ANY DOCUMENT RELATED TO THIS AGREEMENT (COLLECTIVELY A
"CLAIM");
(ii) AT THE REQUEST OF ANY PARTY OR SENIOR LENDER, ANY CLAIM
SHALL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH
THE FEDERAL ARBITRATION ACT (TITLE 9, U.S. CODE) (THE
"ACT"). THE ACT WILL APPLY EVEN THOUGH THIS AGREEMENT
PROVIDES THAT IT IS GOVERNED BY THE LAW OF A SPECIFIED
STATE;
(iii) ARBITRATION PROCEEDINGS WILL BE DETERMINED IN ACCORDANCE
WITH THE ACT, THE APPLICABLE RULES AND PROCEDURES FOR THE
ARBITRATION OF DISPUTES OF JAMS OR ANY SUCCESSOR THEREOF
("JAMS"), AND THE TERMS OF THIS PARAGRAPH. IN THE EVENT OF
ANY INCONSISTENCY, THE TERMS OF THIS PARAGRAPH SHALL
CONTROL;
(iv) THE ARBITRATION SHALL BE ADMINISTERED BY JAMS AND CONDUCTED
IN ANY U.S. STATE WHERE REAL OR TANGIBLE PERSONAL PROPERTY
COLLATERAL FOR THIS AGREEMENT IS LOCATED OR
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Exhibit 99.4
IF THERE IS NO SUCH COLLATERAL, IN THE COMMONWEALTH OF
VIRGINIA. ALL CLAIMS SHALL BE DETERMINED BY ONE ARBITRATOR;
HOWEVER, IF CLAIMS EXCEED $5,000,000, UPON THE REQUEST OF
ANY PARTY OR SENIOR LENDER, THE CLAIMS SHALL BE DECIDED BY
THREE ARBITRATORS. ALL ARBITRATION HEARINGS SHALL COMMENCE
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION AND CLOSE
WITHIN 90 DAYS OF COMMENCEMENT AND THE AWARD OF THE
ARBITRATOR(S) SHALL BE ISSUED WITHIN 30 DAYS OF THE CLOSE OF
THE HEARING. HOWEVER, THE ARBITRATOR(S), UPON A SHOWING OF
GOOD CAUSE, MAY EXTEND THE COMMENCEMENT OF THE HEARING FOR
UP TO AN ADDITIONAL 60 DAYS. THE ARBITRATOR(S) SHALL PROVIDE
A CONCISE WRITTEN STATEMENT OF REASONS FOR THE AWARD. THE
ARBITRATION AWARD MAY BE SUBMITTED TO ANY COURT HAVING
JURISDICTION TO BE CONFIRMED AND ENFORCED;
(v) THE ARBITRATOR(S) WILL HAVE THE AUTHORITY TO DECIDE WHETHER
ANY CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS AND, IF
SO, TO DISMISS THE ARBITRATION ON THAT BASIS. FOR PURPOSES
OF THE APPLICATION OF THE STATUTE OF LIMITATIONS, THE
SERVICE ON JAMS UNDER APPLICABLE JAMS RULES OF A NOTICE OF
CLAIM IS THE EQUIVALENT OF THE FILING OF A LAWSUIT. ANY
DISPUTE CONCERNING THIS ARBITRATION PROVISION OR WHETHER A
CLAIM IS ARBITRABLE SHALL BE DETERMINED BY THE
ARBITRATOR(S). THE ARBITRATOR(S) SHALL HAVE THE POWER TO
AWARD LEGAL FEES PURSUANT TO THE TERMS OF THIS AGREEMENT;
(vi) THIS PARAGRAPH DOES NOT LIMIT THE RIGHT OF ANY PARTY OR
SENIOR LENDER TO: (I) EXERCISE SELF-HELP REMEDIES, SUCH AS
BUT NOT LIMITED TO, SETOFF; (II) INITIATE JUDICIAL OR
NONJUDICIAL FORECLOSURE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL; (III) EXERCISE ANY JUDICIAL OR POWER OF
SALE RIGHTS, OR (IV) ACT IN A COURT OF LAW TO OBTAIN AN
INTERIM REMEDY, SUCH AS BUT NOT LIMITED TO, INJUNCTIVE
RELIEF, WRIT OF POSSESSION OR APPOINTMENT OF A
12
Exhibit 99.4
RECEIVER, OR ADDITIONAL OR SUPPLEMENTARY REMEDIES; AND
(vii) BY AGREEING TO BINDING ARBITRATION, THE PARTIES AND SENIOR
LENDER IRREVOCABLY AND VOLUNTARILY WAIVE ANY RIGHT THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM.
FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THIS
AGREEMENT TO ARBITRATE, TO THE EXTENT ANY CLAIM IS NOT
ARBITRATED, THE PARTIES AND LENDER IRREVOCABLY AND
VOLUNTARILY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF SUCH CLAIM. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES AND LENDER ENTERING INTO THIS
AGREEMENT.
(b) Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, NO CLAIM MAY BE MADE BY
ANY PARTY AGAINST THE SENIOR LENDER OR ANY AFFILIATE, DIRECTOR,
OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF IT FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF
CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY). EACH PARTY HEREBY
WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH
DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND
WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
Section 5.04. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original. Such counterparts shall
constitute but one and the same instrument and shall be binding upon, and shall
inure to the benefit of, each of the undersigned individually as fully and
completely as if all had signed one instrument.
Section 5.05. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the Junior Lender and the Senior Lender and their
respective successors and assigns, including, as to the Senior Lender, without
limitation, any holder of the Senior Note and any Affiliate
13
Exhibit 99.4
of the Senior Lender which acquires all or part of the Collateral by any sale,
assignment or foreclosure under the Senior Lien, by deed or other assignment in
lieu of foreclosure, or otherwise.
Section 5.06. No Third Party Beneficiaries. Nothing contained in this
Agreement shall be deemed to indicate that this Agreement has been entered into
for the benefit of any Person other than the Senior Lender and the Junior
Lender.
Section 5.07. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction and this Agreement shall
be interpreted to carry out the intentions of the parties to the greatest extent
possible.
Section 5.08. No Waiver.
(a) No waiver shall be deemed to be made by the Senior Lender of any of its
rights hereunder, or under the Senior Loan Documents, unless the same shall be
in writing and signed by the Senior Lender, and each waiver, if any, shall be a
waiver only with respect to the specific instances involved and shall in no way
impair the rights of the Senior Lender in any other respect or at any other
time.
(b) No waiver shall be deemed to be made by the Junior Lender of any of its
rights hereunder, or under the Junior Loan Documents, unless the same shall be
in writing and signed by the Junior Lender, and each waiver, if any, shall be a
waiver only with respect to the specific instances involved and shall in no way
impair the rights of the Junior Lender in any other respect or at any other
time.
Section 5.09. Agreement by Borrower. By its execution of this Agreement,
Borrower agrees to be bound by the terms hereof, to observe the lien priorities
and the priorities of payments set forth herein and to conduct its affairs
consistently with the terms hereof.
Section 5.10. Termination. This Agreement shall terminate upon the earliest
of (a) the conversion of all of the Junior Notes to equity of Analex, (b)
payment in full of the Senior Indebtedness or acquisition of the Senior
Indebtedness by the Junior Lender and (c) payment in full of the Junior Notes.
(Signature Page Follows)
14
Exhibit 99.4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SENIOR LENDER: Bank of America, N.A.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
JUNIOR LENDER: Pequot Private Equity Fund III, L.P.
By: Pequot Capital Management, Inc.,
its Investment Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Pequot Offshore Private Equity Partners
Fund III, L.P.
By: Pequot Capital Management, Inc.,
its Investment Advisor
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
BORROWER: Analex Corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Advanced Biosystems, Inc.
By:
-------------------------------------
Name:
-----------------------------------
15
Exhibit 99.4
Title:
----------------------------------
SyCom Services, Inc.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
16
