EXHIBIT 10.1
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THIRD AMENDMENT TO LOAN AGREEMENT
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THIS THIRD AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into as of the 31st day of October, 2010 by and among XXXXXXXX, INC., a
Delaware corporation ("Xxxxxxxx"), and GLOBAL PHYSICS SOLUTIONS, INC., a
Delaware corporation ("GPS"; and, together with Xxxxxxxx, each individually
a Borrower, and collectively, the "Borrowers"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (the "Bank").
W I T N E S S E T H:
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WHEREAS, Bank and Xxxxxxxx are party to that certain Loan Agreement
dated as of October 5, 2007, as amended by that certain First Amendment to
Loan Agreement dated as of June 17, 2009 and that Second Amendment to Loan
Agreement dated as of February 12, 2010 (collectively, the "Agreement");
and
WHEREAS, the Bank and the Borrowers desire to amend the Agreement in
accordance with this Amendment to, among other items, (i) increase the
amount of the Revolving Loan Commitment from $30,000,000 to $50,000,000,
(ii) extend the maturity date, and (iii) modify the pricing.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms
and conditions of this Amendment, the parties, intending to be bound,
hereby agree as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms which
are not defined hereunder shall have the same meanings as set forth in the
Agreement, and the Agreement, to the extent not inconsistent with this
Amendment, is incorporated herein by this reference as though the same were
set forth in its entirety. To the extent any terms and provisions of the
Agreement are inconsistent with the amendments set forth in PARAGRAPH 2
below, such terms and provisions shall be deemed superseded hereby. Except
as specifically set forth herein, the Agreement shall remain in full force
and effect and its provisions shall be binding on the parties hereto.
2. AMENDMENT OF THE AGREEMENT.
(a) The definitions of the terms "INTEREST RATE", "LIBOR
RATE", "LIQUIDITY PREMIUM", "MATURITY DATE" and "REVOLVING LOAN COMMITMENT"
in SECTION 1.1 of the Agreement are hereby amended and restated to read as
follows:
"INTEREST RATE" means Borrowers' option from time to time of
(i) the Prime Rate MINUS 0.50% PLUS the Liquidity Premium in
effect for Prime Loans (the "Prime Based Interest Rate") or
(ii) the LIBOR Rate PLUS 1.75% PLUS the Liquidity Premium in
effect for LIBOR Loans (the "LIBOR Based Interest Rate");
provided, however, the Prime Based Interest Rate shall only be
available when (i) the Prime Based Interest Rate is more than
the LIBOR Based Interest Rate or (ii) in instances where the
LIBOR Rate is not available in accordance with SECTION 2.2(b)
and (c).
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"LIBOR RATE" means the one-month LIBOR Rate quoted by the Bank
from Reuters Screen LIBOR01 Page or any successor thereto,
which shall be that one-month LIBOR Rate in effect two New York
Banking Days prior to the Reprice Date, adjusted for any
reserve requirement and any subsequent costs arising from a
change in government regulation, such rate to be reset monthly
on each Reprice Date. The term "Reprice Date" means the 1st
day of each month. If the initial advance under this Note
occurs on other than the Reprice Date, the initial one-month
LIBOR Rate shall be that one-month LIBOR Rate in effect two (2)
New York Banking Days prior to the date of the initial advance,
which rate plus the percentage described above shall be in
effect until the next Reprice Date.
"LIQUIDITY PREMIUM" means 0.35% with respect to all LIBOR Loans
and 0.32% with respect to all Prime Loans.
"MATURITY DATE" shall mean October 31, 2013, unless extended by
the Bank pursuant to any modification, extension or renewal
note executed by the Borrowers and accepted by the Bank in its
sole and absolute discretion in substitution for the Revolving
Note.
"REVOLVING LOAN COMMITMENT" shall mean Fifty Million Dollars
($50,000,000).
(b) The first sentence of SECTION 2.1(a) is hereby amended
and restated to read as follows:
Subject to the terms and conditions of this Agreement and the
other Loan Documents, and in reliance upon the representations
and warranties of Borrower set forth herein and in the other
Loan Documents, the Bank agrees to make such Revolving Loans at
such times as Borrower may from time to time request until, but
not including, the Maturity Date, and in such amounts as
Borrower may from time to time request; provided, however, that
the aggregate principal balance of all Revolving Loans and all
Letter of Credit Obligations (the "Outstandings") outstanding
at any time shall not exceed (i) the Revolving Loan Commitment
in the event Outstandings (including the requested advance) are
less than or equal to $25,000,000 and (ii) Revolving Loan
Availability in the event Outstandings (including the requested
advance) are greater than $25,000,000.
(c) SECTION 2.1(c)(i) of the Agreement is hereby amended and
restated to read as follows:
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(i) MANDATORY PREPAYMENTS. All Revolving Loans hereunder
shall be repaid by Borrower on the Maturity Date, unless
payable sooner pursuant to the provisions of this Agreement.
In the event the aggregate outstanding principal balance of all
Revolving Loans and Letter of Credit Obligations hereunder
exceeds (i) the Revolving Loan Commitment (in the event the
aggregate amount of outstanding Revolving Loans and the stated
amount of all Letters of Credit are less than or equal to
$25,000,000) or (ii) Revolving Loan Availability (in the event
the aggregate amount of outstanding Revolving Loans and the
stated amount of all Letters of Credit are greater than
$25,000,000), Borrower shall, without notice or demand of any
kind, immediately make such repayments of the Revolving Loans
or take such other actions as shall be necessary to eliminate
such excess. Also, if Borrower chooses not to convert any
Revolving Loan which is a LIBOR Loan to a Prime Loan as
provided in SECTION 2.2(b) and SECTION 2.2(c), then such
Revolving Loan shall be immediately due and payable on the
last New York Banking Day of the then-existing Loan Period or
on such earlier date as required by law, all without further
demand, presentment, protest or notice of any kind, all of
which are hereby waived by Borrower (each a "Mandatory
Prepayment").
(d) SECTION 2.7 of the Agreement is hereby amended and
restated to read as follows:
2.7 PREPAYMENT PENALTY. If the Revolving Loan Commitment is
terminated voluntarily by Borrowers prior to October 31, 2011,
Borrowers agree to pay to the Bank as compensation for the
costs of the Bank being prepared to make funds available to
Borrowers under this Agreement, a prepayment fee equal to one
percent (1%) of the aggregate amount of the Revolving Loan
Commitment in existence on October 31, 2010. At any time after
October 31, 2011, the Borrowers may terminate the Revolving
Loan Commitment at their option with no prepayment penalty,
upon ten (10) days' prior notice to the Bank, provided that
the Borrowers prepay all outstanding Revolving Loans,
accrued interest and all other Obligations as set forth in
SECTION 2.1(c)(ii) concurrently therewith.
(e) SECTION 5.2 of the Agreement is hereby amended by
removing the words "one and eight-tenths percent (1.80%)" appearing in the
middle of such Section and replacing them with the words "one and
three-quarters percent (1.75%)" in their place.
(f) SECTION 8.4(v) is hereby amended by deleting the
reference to "$20,000,000" appearing in the last paragraph of such section
and replacing it with "$25,000,000."
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(g) SECTION 9.7(i) is hereby amended and restated to read as
follows:
(i) within forty-five (45) days after the last day of each
calendar quarter from and after the date hereof when (i) the
aggregate amount of Revolving Loans and Letter of Credit
Obligations exceeds $25,000,000 and (ii) cash on deposit at the
Bank is at least $10,000,000, in each case determined as of the
last Business Day of each fiscal quarter, a duly executed
Borrowing Base Certificate in the form of EXHIBIT C to this
Agreement (each a "Borrowing Base Certificate"); provided,
however, that such Borrowing Base Certificate shall be required
to be delivered within thirty (30) days of the last day of each
calendar month in all instances when (x) the aggregate amount
of Revolving Loans and Letter of Credit Obligations exceeds
$25,000,000 and (y) Cash on deposit at the Bank is less than
$10,000,000 in each case determined as of the last Business Day
of the prior month.
(h) EXHIBIT A to the Agreement is hereby amended and restated
with EXHIBIT A attached hereto.
(i) EXHIBIT C to the Agreement is hereby amended and restated
with Exhibit C attached hereto.
3. DELIVERY OF DOCUMENTS. The following documents and other items
shall be delivered concurrently with this Amendment:
a. Second Amended and Restated Revolving Note; and
b. Such other documents, certificates, opinions and
financing statements as Bank shall request.
4. REPRESENTATIONS, COVENANTS AND WARRANTIES; NO DEFAULT. The
representations, covenants and warranties set forth in SECTIONS 7, 8 and 9
of the Agreement shall be deemed remade as of the date hereof by Borrowers,
except that any representations and warranties that specifically relate to
a particular date shall be true and correct as of such date and all
references to the Agreement in such representations and warranties shall be
deemed to include this Amendment. After giving effect to this Amendment,
no Event of Default has occurred and is continuing and no event has
occurred and is continuing which, with the lapse of time, the giving of
notice, or both, would constitute such an Event of Default under the
Agreement.
5. FEES AND EXPENSES. The Borrowers agree to pay on demand all
costs and expenses of or incurred by Bank, including, but not limited to,
reasonable legal fees and expenses, in connection with the evaluation,
negotiation, preparation, execution and delivery of this Amendment.
6. EFFECTUATION. The amendments to the Agreement contemplated by
this Amendment shall be deemed effective immediately upon the full
execution of this Amendment and without any further action required by the
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parties hereto. There are no conditions precedent or subsequent to the
effectiveness of this Amendment.
7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by telefacsimile or electronic mail
shall be equally effective as delivery of a manually executed counterpart
of this Amendment.
[SIGNATURE PAGE FOLLOWS]
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(Signature Page to Third Amendment to Loan Agreement)
IN WITNESS WHEREOF, the parties hereto have duly executed this Third
Amendment to Loan Agreement as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION XXXXXXXX, INC., a Delaware
corporation
By: By:
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Its: Its:
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GLOBAL PHYSICS SOLUTIONS, INC.,
a Delaware corporation
By:
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Its:
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EXHIBIT A
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to Loan Agreement
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SECOND AMENDED AND RESTATED REVOLVING NOTE
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$50,000,000 Chicago, Illinois
October 31, 2010
FOR VALUE RECEIVED, on or before October 31, 2013 (or, if such day is
not a New York Banking Day, on the next following New York Banking Day),
each of the undersigned, XXXXXXXX, INC., a Delaware corporation
("Xxxxxxxx"), and GLOBAL PHYSICS SOLUTIONS, INC., a Delaware corporation
("GPS"; and, together with Xxxxxxxx, each individually a "Borrower", and
collectively, the "Borrowers"), jointly and severally, promise to pay to
the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association
(herein, together with its successors and assigns, called the "Bank"), the
maximum principal sum of FIFTY MILLION AND 00/100 DOLLARS ($50,000,000) or,
if less, the aggregate unpaid principal amount of all Loans made by the
Bank to the undersigned pursuant to that certain Loan Agreement dated as of
October 5, 2007 among the Borrowers and the Bank, as amended by that
certain First Amendment to Loan Agreement dated as of June 17, 2009, that
certain Second Amendment to Loan Agreement dated as of February 12, 2010
and that certain Third Amendment to Loan Agreement of even date herewith
(herein, as the same may be further amended, modified or supplemented from
time to time, called the "Loan Agreement") as shown either on the schedule
attached hereto (and any continuation thereof) or in the Bank's records.
Borrowers further promise to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding
from the date hereof until paid in full at such rates and at such times as
shall be determined in accordance with the provisions of the Loan
Agreement. Accrued interest shall be payable on the dates specified in the
Loan Agreement.
Payments of both principal and interest are to be made in the lawful
money of the United States of America in immediately available funds at the
Bank's principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, or at such other place as may be designated by the Bank to Borrowers
in writing.
This Note is the Revolving Note referred to in, evidences
indebtedness incurred under, and is subject to the terms and provisions of,
the Loan Agreement. The Loan Agreement, to which reference is hereby made,
sets forth said terms and provisions, including those under which this Note
may or must be paid prior to its due date or may have its due date
accelerated. Terms used but not otherwise defined herein are used herein
as defined in the Loan Agreement.
In addition to, and not in limitation of, the foregoing and the
provisions of the Loan Agreement hereinabove referred to, Borrowers further
agree, subject only to any limitation imposed by applicable law, to pay all
expenses, including attorneys' fees and expenses, incurred by the holder of
this Note in seeking to collect any amounts payable hereunder which are not
paid when due, whether by acceleration or otherwise.
This Note is an amendment and restatement of, but not a repayment of,
that certain Amended and Restated Revolving Note dated as of February 12,
2010 in the maximum principal amount available of $30,000,000 (the "Prior
Note") of Borrowers payable to the order of Bank and does not and shall not
be deemed to constitute a novation therefor. Such Prior Note shall be of
no further force and effect upon the execution of this Note; provided,
however, that the outstanding amount of principal and interest under the
Prior Note as of the date of this Note is hereby deemed indebtedness
evidenced by this Note and incorporated herein by this reference.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is binding upon the undersigned and its successors and
assigns, and shall inure to the benefit of the Bank and its successors and
assigns. This Note is made under and governed by the laws of the State of
Illinois without regard to conflict of laws principles.
(Signature Page Follows)
(Signature Page to Second Amended and Restated Revolving Note)
IN WITNESS WHEREOF, Borrowers have executed this Note as of the day
and year first above written.
XXXXXXXX, INC.,
a Delaware corporation
By:
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Its:
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GLOBAL PHYSICS SOLUTIONS, INC.,
a Delaware corporation
By:
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Its:
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EXHIBIT C
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to Loan Agreement
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FORM OF BORROWING BASE CERTIFICATE
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To: U.S. Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Please refer to the Loan Agreement dated as of October 5, 2007 (as
amended or otherwise modified from time to time, the "Loan Agreement")
between Xxxxxxxx, Inc. and U.S. Bank National Association. This
certificate (this "Certificate"), together with supporting calculations
attached hereto, is delivered to you pursuant to the terms of the Loan
Agreement. Capitalized terms used but not otherwise defined herein shall
have the same meanings herein as in the Loan Agreement.
The Borrower hereby certifies and warrants to the Bank that at the
close of business on ______________, 200__ (the "Calculation Date"), the
Borrowing Base was $_____________, computed as set forth on the schedule
attached hereto.
IN WITNESS WHEREOF, Borrower has caused this Certificate to be
executed and delivered by its officer thereunto duly authorized on
___________, ______.
XXXXXXXX, INC.,
a Delaware corporation
By:
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Its:
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GLOBAL PHYSICS SOLUTIONS, INC.,
a Delaware corporation
By:
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Its:
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SCHEDULE TO BORROWING BASE CERTIFICATE
Dated as of [_________________]
COLLATERAL REPORT
Loan # _____________________
DATE _______________________ REPORT #________________________
PERIOD COVERED ________________________ TO ________________________
1. DOMESTIC ACCOUNTS RECEIVABLE as of $__________
2. BORROWING BASE VALUE (80%) $__________
3. DOMESTIC INVENTORY as of __________ $__________
4. BORROWING BASE VALUE (50%) $__________
5. NET BOOK VALUE OF DOMESTIC FIXED ASSETS
as of __________ $__________
6. BORROWING BASE VALUE (50% of Line 5) $__________
7. DOMESTIC CASH ON HAND (100%) $__________
8. BORROWING BASE (Lesser of Sum of
Lines 2 +4 + 6 + 7 or $25,000,000) $__________
9. TOTAL REVOLVING LOANS $__________
10. TOTAL LETTER OF CREDIT OBLIGATIONS $__________
11. REQUESTED ADVANCE $__________
12. TOTAL OUTSTANDINGS (9+10+11) $__________
13. EXCESS/(DEFICIT) (8-12) $__________
For the purpose of inducing U.S. BANK NATIONAL ASSOCIATION to grant loans
to us pursuant to the Loan Agreement, and any and all amendments thereto,
and any and all other agreements executed by the undersigned and given to
U.S. BANK NATIONAL ASSOCIATION (collectively the "Agreements"), we hereby
certify that the foregoing is true and correct in all particulars and that
the above-described assets meet the requirements set forth in the
Agreements.
