EXHIBIT 10.1
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SECOND AMENDMENT TO LOAN AGREEMENT
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THIS SECOND AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into as of the 12th day of February, 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 (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) modify the
pricing and (ii) add Global Physics Solutions, Inc., a Delaware
corporation, as a Borrower under the Agreement.
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below, such terms and provisions shall be deemed superseded hereby.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", "Liquidity
Premium" and "Maturity Date" in SECTION 1.1 of the Agreement are hereby
amended and restated to read as follows:
"Liquidity Premium" means 0.30% with respect to all LIBOR
Loans and 0.22% with respect to all Prime Loans.
"Interest Rate" means Borrower's 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 1.80% 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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"Maturity Date" shall mean February 12, 2012, unless extended
by the Bank pursuant to any modification, extension or renewal
note executed by the Borrower and accepted by the Bank in its
sole and absolute discretion in substitution for the Revolving
Note.
(b) A new SECTION 2.7 is hereby added to the Agreement to
read as follows:
2.7 PREPAYMENT PENALTY. If the Revolving Loan Commitment is
terminated voluntarily by Borrowers prior to February 12, 2011,
Borrower agrees to pay to the Bank as compensation for the
costs of the Bank being prepared to make funds available to
Borrower under this Agreement, a prepayment fee equal to one
percent (1%) of the Revolving Loan Commitment. At any time
after February 12, 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.
(c) SECTION 5.2 of the Agreement is hereby amended by
removing the words "one and nine-tenths percent (1.90%)" appearing in the
middle of such Section and replacing them with the words "one and
eighth-tenths percent (1.80%)" in their place.
(d) SECTION 8.3(d) of the Agreement is hereby amended and
restated in its entirety as follows:
(d) investments in (1) each of the entities listed on
SCHEDULE 8.3 hereto and (2) other Wholly-Owned Subsidiaries,
joint ventures and other Investments in an aggregate amount not
to exceed $2,000,000 at any time following the Closing Date.
(e) A new SECTION 11.11 is hereby added to the Agreement to
read as follows:
11.11 INTEREST RATE AGREEMENTS. Any default or breach by the
Borrowers in the performance of any obligation or agreement
under any Interest Rate Agreement, which default or breach
continues for ten (10) days.
(f) SECTION 13.21, 13.22 and 13.23 are hereby added to the
Agreement to read in their entirety as follows:
13.21 REIMBURSEMENT AMONG BORROWERS. To the extent that any
Borrower shall be required to pay a portion of Borrowers'
Obligations which shall exceed the amount of loans, advances or
other extensions of credit received by any such Borrower and
all interest, costs, fees and expenses attributable to such
loans, advances or other extensions of credit, then such
Borrower shall be reimbursed by the other Borrowers for the
amount of such excess PRO RATA, based on their respective net
worths as of the date hereof. This SECTION 13.21 is intended
only to define the relative rights of the Borrowers among the
Borrowers and nothing set forth in this SECTION 13.21 is
intended to or shall impair the obligations of Borrowers,
jointly and severally, to pay Borrowers' Obligations to Bank as
and when the same shall become due and payable in accordance
with the terms hereof.
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13.22 GUARANTY. The effect of the joint and several
obligations of Borrowers hereunder is that each Borrower hereby
unconditionally and absolutely guarantees to Bank, irrespective
of the validity, regularity or enforceability of this Agreement
or any other Loan Document, the full and prompt payment in full
to Bank at maturity of all Borrowers' Obligations. The
guaranty set forth in this SECTION 13.22 shall in all respects
be continuing, absolute and unconditional, and shall remain in
full force and effect until Borrowers' Obligations have been
fully repaid (except for any contingent obligations that
survive termination of the Loan Documents). The guaranty set
forth in this SECTION 13.22 is an absolute and unconditional
guaranty of payment and not of collectibility. THE GUARANTY
OBLIGATION SET FORTH IN THIS SECTION 13.22 SHALL IN ALL
RESPECTS BE IN FURTHERANCE, AND SHALL IN NO EVENT BE DEEMED IN
LIMITATION, OF THE OBLIGATIONS OF EACH BORROWER UNDER THIS
AGREEMENT.
13.23 JOINT AND SEVERAL LIABILITY. Except as specifically set
forth herein, the liability of each Borrower under this
Agreement and the Loan Documents in general shall be joint and
several, and each reference herein to the Borrowers shall be
deemed to refer to each such Borrower. In furtherance and not
in limitation of Bank's rights and remedies hereunder or at
law, Bank may proceed under this Agreement and the other Loan
Documents against any one or more of the Borrowers in its
absolute and sole discretion for any of Borrowers' Obligations
or any other liability or obligation of the Borrowers arising
hereunder.
(g) SCHEDULES 7.1, 7.16 and 7.17 are hereby deleted in their
entirety and replaced with SCHEDULE 7.1, 7.16 and 7.17 hereto,
respectively.
(h) SCHEDULE 8.3 attached hereto is hereby added to the
Agreement.
(i) Any and all references to the term "Borrower" in the
Agreement shall be deemed to refer to and include each of Xxxxxxxx, Inc., a
Delaware corporation and Global Physics Solutions, Inc., a Delaware
corporation.
(j) EXHIBIT A to the Agreement is hereby amended and restated
with EXHIBIT A attached hereto.
3. ASSENT TO AGREEMENT. Global Physics Solutions, Inc. is hereby
made a Borrower under the Agreement and agrees to be bound by and comply
with all of the terms and conditions of the Agreement as of the date hereof
and hereby assumes all obligations and is entitled to the rights and
benefits of a Borrower under the Agreement. From and after the date
hereof, any and all references to a "Borrower" or the "Borrowers" shall be
deemed to include each of Xxxxxxxx and GPS, except for references to a
Borrower relating to its status prior to this Amendment. Each of Xxxxxxxx
and GPS hereby makes and agrees to each representation, covenant and
warranty contained in the Agreement (after giving effect to this Amendment)
as of the date hereof which are incorporated by reference herein. Each of
Xxxxxxxx and GPS hereby agrees that all notices delivered to Xxxxxxxx in
accordance with the Agreement shall be effective for notice to GPS.
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4. DELIVERY OF DOCUMENTS. The following documents and other items
shall be delivered concurrently with this Amendment:
a. Amended and Restated Revolving Note; and
b. Such other documents, certificates, opinions and
financing statements as Bank shall request.
5. 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.
6. LIMITED WAIVER. Pursuant to the request of Borrowers, the Bank
waives any Event of Default arising or occurring under SECTION 11.3 of the
Agreement as a result of the failure of Xxxxxxxx to provide the Bank with
an Officer's Certificate notifying the Bank not less than ten (10) days
prior to the acquisition of each of Global Physics Solutions, Inc.,
Gammadata Matteknik AB and the dosimetry business of Studsvick Nuclear AB
in accordance with the terms of SECTION 8.4. The Borrowers hereby
acknowledge that the waiver contained in this Amendment is granted by the
Bank only for the limited purpose set forth herein and each term and
provision of the Agreement continues in full force and effect. Further,
the waiver in no manner creates a course of dealing or otherwise impairs
the future ability of the Bank to declare an Event of Default under or
otherwise enforce the terms of the Agreement.
7. 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.
8. 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
parties hereto. There are no conditions precedent or subsequent to the
effectiveness of this Amendment.
9. 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 Second Amendment to Loan Agreement)
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
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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AMENDED AND RESTATED REVOLVING NOTE
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$30,000,000 Chicago, Illinois
February 12, 2010
FOR VALUE RECEIVED, on or before February 12, 2012 (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 THIRTY MILLION AND 00/100 DOLLARS ($30,000,000)
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 and
that certain Second 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 Borrower
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 June 17, 2009
in the maximum principal amount available of $30,000,000 (the "Prior Note")
of Xxxxxxxx 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 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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