[EXECUTION COPY] Exhibit 10.11
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
by and among
GP STRATEGIES CORPORATION,
GENERAL PHYSICS CORPORATION,
as the BORROWERS,
THE LENDERS PARTY HERETO,
and
FLEET NATIONAL BANK,
as AGENT, as ISSUING BANK and as LEAD ARRANGER,
dated as of December 14, 2001
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TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION.......................1
1.1 Definitions......................................................1
1.2 Principles of Construction.......................................1
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT..................1
2.1 Revolving Credit Loans; Revolving Credit Notes...................1
2.2 Swing Line Loans; Swing Line Notes...............................1
2.3 Procedure for Borrowing..........................................1
2.4 Termination or Reduction of Commitments..........................1
2.5 Prepayments of Loans; Additional Collateral......................1
2.6 Use of Proceeds..................................................1
2.7 Letter of Credit Sub-Facility....................................1
2.8 Letter of Credit Participation and Funding Commitments...........1
2.9 Absolute Obligation With Respect to Letter of Credit Payments....1
2.10 Payments.........................................................1
2.11 Cash Collateral Accounts:........................................1
2.12 Defaulting Lender................................................1
3. INTEREST, FEES, YIELD PROTECTIONS, ETC...........................1
3.1 Interest Rate and Payment Dates..................................1
3.2 Fees.............................................................1
3.3 Conversions......................................................1
3.4 Concerning Interest Periods......................................1
3.5 Indemnification for Loss.........................................1
3.6 Capital Adequacy.................................................1
3.7 Reimbursement for Increased Costs................................1
3.8 Illegality of Funding............................................1
3.9 Substituted Interest Rate........................................1
3.10 Taxes............................................................1
3.11 Option to Fund...................................................1
3.12 Replacement of Lenders...........................................1
3.13 Guaranty Provisions..............................................1
4. REPRESENTATIONS AND WARRANTIES...................................1
4.1 Subsidiaries; Capitalization.....................................1
4.2 Existence and Power..............................................1
4.3 Authority and Execution..........................................1
4.4 Binding Agreement; etc...........................................1
4.5 Litigation.......................................................1
4.6 Required Consents................................................1
4.7 Absence of Defaults; No Conflicting Agreements...................1
4.8 Compliance with Applicable Laws..................................1
4.9 Taxes............................................................1
4.10 Governmental Regulations.........................................1
4.11 Federal Reserve Regulations; Use of Loan Proceeds................1
4.12 Plans............................................................1
4.13 Financial Statements.............................................1
4.14 Property.........................................................1
4.15 Authorizations...................................................1
4.16 Environmental Matters............................................1
4.17 Solvency.........................................................1
4.18 Absence of Certain Restrictions..................................1
4.19 No Misrepresentation.............................................1
4.20 Intangible Assets................................................1
4.21 Material Subsidiaries............................................1
5. CONDITIONS TO EFFECTIVENESS OF SECOND AMENDED AND RESTATED CREDIT
AGREEMENT......................................................1
5.1 Evidence of Action...............................................1
5.2 This Agreement...................................................1
5.3 Notes; Letter of Credit Documents................................1
5.4 Absence of Litigation............................................1
5.5 Approvals and Consents...........................................1
5.6 Absence of Material Adverse Change...............................1
5.7 Financial Officer's Certificate..................................1
5.8 Check-the-Box Status.............................................1
5.9 Opinion of Counsel to the Borrowers and their Subsidiaries.......1
5.10 Previous Information.............................................1
5.11 Borrowers Security Agreement; Subordination Agreement;
Subsidiary Guaranty and Security Agreement and Related Matters 1
5.12 Search Reports and Related Documents.............................1
5.13 Borrowing Base Certificate.......................................1
5.14 Property, Public Liability and Other Insurance...................1
5.15 Fees.............................................................1
5.16 Fees and Expenses of Special Counsel.............................1
5.17 Closing Date.....................................................1
5.18 Charge of Shares; Debenture; Deed of Guarantee and Indemnity and
Related Matters...............................................1
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT..........1
6.1 Compliance.......................................................1
6.2 Borrowing Request; Letter of Credit Request; Compliance with
Borrowing Base................................................1
6.3 Certain Documents................................................1
6.4 Other Documents..................................................1
7. AFFIRMATIVE COVENANTS............................................1
7.1 Financial Statements and Information.............................1
7.2 Certificates; Other Information..................................1
7.3 Legal Existence..................................................1
7.4 Taxes............................................................1
7.5 Insurance........................................................1
7.6 Performance of Obligations.......................................1
7.7 Condition of Property............................................1
7.8 Observance of Legal Requirements.................................1
7.9 Inspection of Property; Books and Records; Discussions...........1
7.10 Authorizations...................................................1
7.11 Financial Covenants..............................................1
7.12 Additional Subsidiaries..........................................1
7.13 Mortgages........................................................1
7.14 Title Reports; Appraisals........................................1
8. NEGATIVE COVENANTS...............................................1
8.1 Indebtedness.....................................................1
8.2 Liens............................................................1
8.3 Merger, Consolidations and Acquisitions..........................1
8.4 Dispositions.....................................................1
8.5 Investments, Loans, Etc..........................................1
8.6 Restricted Payments..............................................1
8.7 Capital Expenditures; Leases.....................................1
8.8 Business and Name Changes........................................1
8.9 ERISA............................................................1
8.10 Prepayments of Indebtedness......................................1
8.11 Amendments, Etc. of Certain Agreements...........................1
8.12 Transactions with Affiliates.....................................1
8.13 Issuance of Additional Capital Stock.............................1
8.14 Limitation on Upstream Dividends by Subsidiaries.................1
8.15 Limitation on Negative Pledges...................................1
8.16 Margin Stock.....................................................1
8.17 Intangible Assets................................................1
8.18 Hydro Med Subordinated Debt Documents............................1
8.19 No Prepayment of Subordinated Debt...............................1
8.20 No Investments, etc. in Certain Subsidiaries.....................1
9. DEFAULT..........................................................1
9.1 Events of Default................................................1
9.2 Contract Remedies................................................1
10. THE AGENT........................................................1
10.1 Appointment......................................................1
10.2 Delegation of Duties.............................................1
10.3 Exculpatory Provisions...........................................1
10.4 Reliance by Agent................................................1
10.5 Notice of Default................................................1
10.6 Non-Reliance on Agent and Other Lenders..........................1
10.7 Indemnification..................................................1
10.8 Agent in Its Individual Capacity.................................1
10.9 Successor Agent..................................................1
11. OTHER PROVISIONS.................................................1
11.1 Amendments and Waivers...........................................1
11.2 Notices..........................................................1
11.3 No Waiver; Cumulative Remedies...................................1
11.4 Survival of Representations and Warranties and Certain Obligation1
11.5 Expenses.........................................................1
11.6 Lending Offices..................................................1
11.7 Successors and Assigns...........................................1
11.8 Indemnity........................................................1
11.9 Limitation of Liability..........................................1
11.10 Counterparts.....................................................1
11.11 Adjustments; Set-off.............................................1
11.12 Construction.....................................................1
11.13 Governing Law....................................................1
11.14 Headings Descriptive.............................................1
11.15 Severability.....................................................1
11.16 Integration......................................................1
11.17 Consent to Jurisdiction..........................................1
11.18 Service of Process...............................................1
11.19 No Limitation on Service or Suit.................................1
11.20 WAIVER OF TRIAL BY JURY..........................................1
11.21 Treatment of Certain Information.................................1
11.22 Judgment Currency................................................1
11.23 Pledge to Federal Reserve........................................1
11.24 Lost Notes.......................................................1
11.25 Interest Adjustment..............................................1
11.26 No Set-off or Counterclaim; Loan Documents in Full Effect........1
11.27 Amendment and Restatement........................................1
11.28 Re-Allocation of Loans, Letters of Credit Outstandings and
Commitments...................................................1
11.29 Certain Collateral Matters.......................................1
EXHIBITS
Exhibit A....Commitments
Exhibit B-1..Form of Second Amended and Restated Revolving Credit Note
Exhibit B-2..Form of Swing Line Note
Exhibit C-1..Form of Borrowing Request
Exhibit C-2..Form of Letter of Credit Request
Exhibit D....Form of Notice of Conversion
Exhibit E....Form of Compliance Certificate
Exhibit F-1..Form of Opinion - New York counsel to the Obligors
Exhibit F-2..Form of Opinion - UK counsel to GP (UK)
Form F-3.....Form of Opinion - Real Estate counsel to the Obligors
Exhibit G....Form of Assignment and Acceptance Agreement
Exhibit H....Form of Second Amended and Restated Borrowers Security Agreement
Exhibit I....Form of Second Amended and Restated Subsidiary Guaranty
and Security Agreement
Exhibit J....Form of Amended and Restated Intercompany Demand Note
Exhibit K-1..Form of Amended and Restated Subordination Agreement - Obligors
Exhibit K-2..Form of Amended and Restated Subordination Agreement
.... - Parent and Physics
Exhibit K-3..Form of Amended and Restated Subordination Agreement
.... - SGLG and Physics
Exhibit L....Form of Borrowing Base Certificate
Exhibit M....Form of Charge of Shares
Exhibit N....Form of Debenture
Exhibit O....Form of Deed of Guarantee and Indemnity
SCHEDULES
Schedule 1.1 -....Eligible Real Estate Schedule 2.7 -....Letters of Credit
Schedule 4.1 -....Subsidiaries and Authorized, Issued and Outstanding Stock
Schedule 4.5 -....Litigation Schedule 4.16-....Environmental Matters Schedule
4.21-....Material Subsidiaries and Foreign Subsidiaries Schedule 8.1
-....Indebtedness and Joint Ventures Schedule 8.2 -....Liens Schedule 8.5
-....Investments and Eligible Securities Collateral and Other Marketable
Securities Schedule 11.2 ....Contacts
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 15,
1998, as amended and restated as of August 31, 2000, and as further amended and
restated as of December 14, 2001, by and among GP STRATEGIES CORPORATION (the
"Parent"), a Delaware corporation and GENERAL PHYSICS CORPORATION ("Physics"), a
Delaware corporation (Parent and Physics shall individually be referred to
herein as a "Borrower" and shall collectively be referred to herein as the
"Borrowers"), the lenders party hereto (together with their respective assigns,
collectively, the "Lenders", and individually, each a "Lender") and FLEET
NATIONAL BANK ("Fleet"), as agent for the Lenders (in such capacity, the
"Agent"), as issuing bank (in such capacity, the "Issuing Bank") and as the lead
arranger (in such capacity, the "Lead Arranger").
RECITALS:
(1) The Borrower, General Physics Canada Ltd. ("GP Canada"), the
Lenders and the Agent entered into a Credit Agreement, dated June 15, 1998, as
amended by Amendment No. 1, dated as of July 21, 1998, Amendment No. 2, dated as
of December 31, 1998, Amendment No. 3 dated as of May 7, 1999, and Amendment Xx.
0, xxxxx xx xx Xxxxxxxx 00, 0000 (xx amended and modified by the foregoing, the
"Original Agreement").
(2) The parties to the Original Agreement agreed to amend and restate
the Original Agreement in its entirety by entering into an Amended and Restated
Credit Agreement, dated as of August 31, 2000, as amended by the First
Amendment, dated as of December 15, 2000, the Second Amendment, dated, as of
March 8, 2001, the Third Amendment, dated as of June 15, 2001, the Fourth
Amendment, dated as of October, 15, 2001, and the Fifth Amendment, dated as of
December 14, 2001 (as amended and modified by the foregoing, the "Existing
Credit Agreement").
(3) The Borrowers have requested, among other things, to amend and
restate the Existing Credit Agreement, to combine the existing term loans and
revolving loans into a single revolving credit loan facility which will be used,
among other things, to repay the GP Canada Facility (as defined in the Existing
Credit Agreement) and to provide a revolving credit loan facility for working
capital and general corporate purposes of the Borrowers and their Subsidiaries,
and the Issuing Bank, the Swing Line Loan Lender, the Lenders and the Agent are
willing to amend the Existing Credit Agreement and to provide such
accommodations on the terms and conditions set forth herein.
(4) The parties hereto agree that effective on the Closing Date (such
capitalized term, and other capitalized terms used in these recitals, to have
the definitions set forth in Section 1.1 below), the Existing Credit Agreement
is hereby amended and restated in its entirety.
(5) Pursuant to the Existing Credit Agreement, the Parent and certain
of its Subsidiaries granted to the Agent for the benefit of the Lenders certain
guaranties and first priority, perfected pledges and security interests and/or
liens in the Collateral delivered pursuant to certain Collateral Documents and
in certain other Loan Documents, all as more particularly set forth in such Loan
Documents.
(6) In order to induce the Issuing Bank, the Swing Line Loan Lender,
the Lenders and the Agent to amend and restate the Existing Credit Agreement and
to make any Loans or issue any Letter of Credit hereunder, the Parent desires,
and it is a condition to the effectiveness hereof, that the Parent and its
Subsidiaries confirm their respective grants to the Agent for the benefit of the
Lenders of the aforementioned first priority perfected pledges and security
interests and/or liens in such collateral to secure all Obligations under and in
connection with this Agreement and the other Loan Documents, confirm all related
guaranties and pledge agreements, and grant certain additional collateral, all
as more particularly set forth in this Agreement and the other Loan Documents.
(7) The outstanding Loans and Commitments of certain of the Lenders
under the Existing Credit Agreement have been reallocated among the credit
facilities provided for hereunder, and certain new Lenders have become parties
to this Agreement, so that after giving effect thereto the Revolving Loan
Commitment Percentages of all Lenders are as set forth on Exhibit A hereto.
NOW, THEREFORE, in consideration for the foregoing agreements and for
other good and valuable consideration whose receipt and sufficiency are
acknowledged, the Borrowers, the Lenders, the Issuing Bank, the Swing Line Loan
Lender, the Lead Arranger and the Agent agree to the following terms.
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": collectively, the Revolving Credit Loans (or any
portions thereof), and/or the Swing Line Loans (or any portion thereof) at such
time as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Account(s)": with respect to any Person: (a) all "accounts" as defined
in the Uniform Commercial Code of the State of New York and, in addition, all of
the accounts, contract rights (including its rights as an unpaid vendor, or
lienor, including stoppage in transit, replevin and reclamation), instruments,
documents, chattel paper, notes and drafts of such Person, whether secured or
unsecured, and whether or not specifically assigned to the Agent or any Lender
hereunder, and including any right to payment which has been earned under a
contract right and all inventory returned or reclaimed from Account Debtors and
all rights to payment for goods sold or leased or services rendered; and (b) all
products and proceeds (whether cash proceeds or otherwise) of the foregoing,
whether now owned, held, or hereafter acquired by such Person.
"Accountants": KPMG Peat Marwick LLP (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by Parent and reasonably satisfactory to the Agent.
"Account Debtor": at any time, in addition to the definition of
"account debtor" as contained in the Uniform Commercial Code of the State of New
York, any Person who is obligated under or on account of an Account, or any
Person who is represented by any Borrower to be so obligated.
"Accounts Receivable Borrowing Base": 80% of Eligible Accounts from
time to time outstanding.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
"Acquisition": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including through a merger,
amalgamation, dividend or otherwise and whether in a single transaction or in a
series of related transactions), of (i) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be either a Subsidiary of
such Person or otherwise under the control of such Person, (ii) any business,
going concern or division or segment of any other Person, or (iii) any Property
of any other Person other than in the ordinary course of business, provided,
however, that no acquisition of all or substantially all of the assets of such
other Person shall be deemed to be in the ordinary course of business.
"Advance": an ABR Advance or a Eurodollar Advance, as the case may be.
"Adjustment Date": the first day of the month following the month in
which a Compliance Certificate is delivered by the Borrowers pursuant to Section
7.1(c).
"Affected Advance": as defined in Section 3.9.
"Affected Principal Amount": in the event that (i) any Borrower shall
fail for any reason to borrow a Loan in respect of which it shall have requested
a Eurodollar Advance or convert an Advance to a Eurodollar Advance after it
shall have notified the Agent of its intent to do so, an amount equal to the
principal amount of such Eurodollar Advance; (ii) a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount of such Eurodollar Advance; or
(iii) any Borrower shall prepay or repay all or any part of the principal amount
of a Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount of such Advance so prepaid or
repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 5% or more of the securities or other
interests having ordinary voting power for the election of directors or other
Managing Persons thereof, other than as a limited partner of such other Person
or (ii) to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Aggregate Appraisal Value": the aggregate value of all Eligible Real
Estate as set forth in Appraisals delivered to the Agent by the Borrowers or any
of its Subsidiaries.
"Agreement": this Second Amended and Restated Credit Agreement, as the
same may be amended, supplemented, amended and restated or otherwise modified
from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum
(rounded upward, if necessary, to the next highest 1/16 of 1%) equal to the
higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of 1% and
(ii) the Fleet Rate in effect on such date.
"Applicable Margin": For the period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Leverage Ratio, as determined for the Fiscal
Quarter of the Parent and its Subsidiaries ended immediately prior to the
applicable Rate Adjustment Period.
Revolving
Loan Letter of
ABR Eurodollar Commitment Credit
Level Leverage Ratio Advances Advances Fee Commissions
---------------------------- ----------- --------------------------- ----------
I Greater than or 1.50% 3.00% .50% 3.00%
equal to
2.00:1.00
---------------------------- ----------- --------------------------- ----------
II Greater than or 1.25% 2.50% .50% 2.50%
equal to
1.50:1.00 but
less than
2.00:1.00
---------------------------- ----------- --------------------------- ----------
III Greater than or 1.00% 2.00% .375% 2.00%
equal to
1.00:1.00 but
less than
1.50:1.00
---------------------------- ----------- --------------------------- ----------
IV Less than .75% 1.75% .25% 1.75%
1.00:1.00
---------------------------- ----------- --------------------------- ----------
Notwithstanding the foregoing, the Applicable Margin for ABR Advances,
Eurodollar Advances, Revolving Loan Commitment Fees and Letter of Credit
Commissions payable during the period commencing on the Closing Date through
(and including) the First Adjustment Date shall be the Applicable Margin set
forth in Level I above. Changes in the Applicable Margin resulting from a change
in the Leverage Ratio shall become effective upon delivery by the Parent to the
Agent of a new Compliance Certificate pursuant to Section 7.1(c). If the Parent
shall fail to deliver a Compliance Certificate within 45 days after the end of
any Fiscal Quarter (or within 90 days, in the case of the last Fiscal Quarter of
the Fiscal Year), the Applicable Margin from and including the 46th (or 91st, as
the case may be) day after the end of such Fiscal Quarter to but not including
the date the Parent delivers to the Agent a Compliance Certificate, shall
conclusively equal (a) in the case of ABR Advances or Eurodollar Advances, the
highest Applicable Margin for such Advances, (b) in the case of Revolving Loan
Commitment Fees, the highest Applicable Margin for such Revolving Loan
Commitment Fees set forth above, and (c) in the case of Letter of Credit
Commissions, the highest Applicable Margin for such Letter of Credit Commissions
set forth above.
"Appraisal": an appraisal delivered by the Parent or any of its
Subsidiaries to the Agent by an appraiser selected by the Agent and using such
methodology as is satisfactory to the Agent in its sole discretion.
"Appraisal Date": the earlier of (a) each anniversary of the Closing
Date or (b) any date selected by the Agent in its sole discretion.
"Approved Bank": any bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating from (i) Standard &
Poor's is at least A-1 or the equivalent thereof or (ii) Xxxxx'x is at least P-1
or the equivalent thereof.
"Arbitration": That certain arbitration and/or legal action proceeding
initiated by the Parent against MCI, an operating subsidiary of WorldCom, Inc.
"Assignment": as defined in Section 11.7(c).
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee, substantially in the form of
Exhibit G hereto.
"Authorized Signatory": as to (i) any Person which is a corporation,
the chairman of the board, the president, any vice president, the chief
financial officer or any other officer thereof acceptable to the Agent and (ii)
any Person which is not a corporation, the general partner or other Managing
Person thereof acceptable to the Agent.
"Benefited Lender": as defined in Section 11.11(a).
"Borrower" and "Borrowers" are defined in the preamble.
"Borrowers Security Agreement": the Second Amended and Restated
Borrowers Security Agreement, by and between the Borrowers and the Agent
substantially in the form of Exhibit H hereto, as amended, supplemented, amended
and restated, or otherwise modified from time to time.
"Borrowing Base": (i) Accounts Receivable Borrowing Base; plus (ii) the
Marketable Securities Borrowing Base; plus (iii) the Real Estate Borrowing Base.
The Agent shall have the right to review such computations and if, in its
reasonable judgment, such computations have not been completed in accordance
with the terms of this Agreement, the Agent shall have the right to correct such
errors.
"Borrowing Base Account(s)": those accounts receivable arising out of
the sale or lease of goods or the rendition of services by Parent, Physics, or
MXL and with respect to each such Person: (a) all "accounts" as defined in the
Uniform Commercial Code of the State of New York and, in addition, all of the
accounts, contract rights (including its rights as an unpaid vendor, or lienor,
including stoppage in transit, replevin and reclamation), instruments,
documents, chattel paper, notes and drafts of such Person, whether secured or
unsecured, and whether or not specifically assigned to the Agent or any Lender
hereunder, and including any right to payment which has been earned under a
contract right and all inventory returned or reclaimed from Account Debtors and
all rights to payment for goods sold or leased or services rendered; and (b) all
products and proceeds (whether cash proceeds or otherwise) of the foregoing,
whether now owned, held, or hereafter acquired by such Person.
"Borrowing Base Certificate": a certificate substantially in the form
of Exhibit L hereto, together with such changes thereto as the Agent may from
time to time reasonably request for the purpose of monitoring the Borrowers'
compliance with the limitations on the amount of the Revolving Credit Loans that
may be outstanding at any time hereunder.
"Borrowing Date": any Business Day on which (a) the Lenders make
Revolving Credit Loans to the Borrowers, (b) the Swing Line Loan Lender makes
Swing Line Loans to the Borrowers or (c) the Issuing Bank issues a Letter of
Credit for the account of the Borrowers.
"Borrowing Request": a request for Revolving Credit Loans and/or Swing
Line Loans in the form of Exhibit C-1 hereto.
"Business Day": for all purposes other than as set forth in clause (ii)
below, (i) any day other than a Saturday, a Sunday or a day on which commercial
banks located in New York City are authorized or required by law or other
governmental action to close, and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which eurodollar funding between banks may be
carried on in London, England.
"Capital Expenditures": with respect to any Person for any period, the
aggregate of all expenditures incurred by such Person during such period which,
in accordance with GAAP, are required to be included in "Additions to Property,
Plant or Equipment" or similar items reflected on the balance sheet of such
Person, provided, however, that "Capital Expenditures" shall not include (i)
operating leases, or (ii) expenditures of proceeds of insurance settlements in
respect of lost, destroyed or damaged assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed or
damaged assets, equipment or other property within six months of the receipt of
such proceeds.
"Capital Lease Obligations": with respect to any Person, obligations of
such Person with respect to leases which are required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations, rights in or
other equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or convertible
into such shares, interests, participations, rights or other equity, whether now
outstanding or issued after the Closing Date.
"Cash Collateral": as defined in Section 2.11.
"Cash Collateralize" means, with respect to a Letter of Credit, the
deposit of immediately available funds into the Cash Collateral Accounts
maintained with (or on behalf of) the Agent on terms satisfactory to the Agent
in an amount equal to the Stated Amount of such Letter of Credit.
"Cash Collateral Accounts": as defined in Section 2.11.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in full support thereof) having maturities of not
more than twelve months from the date of acquisition, (ii) Dollar denominated
time deposits, certificates of deposit and bankers acceptances of (x) any Lender
or (y) any Approved Bank, in any such case with maturities of not more than
twelve months from the date of acquisition, (iii) commercial paper issued by any
Approved Bank or by the parent company of any Approved Bank and commercial paper
issued by, or guaranteed by, any industrial or financial company with an
unsecured non-credit supported short-term commercial paper rating of at least
A-1 or the equivalent by Standard & Poor's or at least P-1 or the equivalent by
Moody's, or guaranteed by any industrial or financial company with a long term
unsecured non-credit supported senior debt rating of at least A or X- 0, or the
equivalent, by Standard & Poor's or Moody's, as the case may be, and in each
case maturing within twelve months after the date of acquisition, (iv)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within twelve months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's or Moody's and (v)
investments in money market funds with a daily right of redemption and a net
asset value of $1.00 per share and substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (iv)
above.
"Change in Control": Should (i) any two of Xxxxx X. Xxxxxxxxx, Xxxxxx
X. Xxxxxxx or Xxxx X. XxXxxxxxx cease (whether due to retirement, disability,
death or otherwise) to hold the office, serve in the capacity or exercise the
managerial policy-making responsibilities which on the date hereof he/she now
holds, serves in or exercises with or on behalf of the Borrowers and/or
Subsidiary Guarantor in which he/she now holds, serves or exercises and a
replacement therefor reasonably satisfactory to the Agent has not been elected
and assumed such responsibilities within 120 days of such cessation or (ii) any
person or group (within the meaning of Sections 13(d) and 14(d) under the
Exchange Act), shall become the ultimate "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital
Securities representing more than 20% of the Capital Stock of the Parent on a
fully diluted basis or (iii) during any period of 24 consecutive months,
individuals who at the beginning of such period constituted the Board of
Directors of the Parent (together with any new directors whose election to such
Board or whose nomination for election by the stockholders of the Parent was
approved by a vote of a majority of the directors then still in office who were
either directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of the Parent then in office or (iv) the
occurrence of any "Change of Control" (or similar term) under (and as defined
in) any Subordinated Debt.
"Charge of Shares": the Charge of Shares, by and among Physics, GP (UK)
and the Agent substantially in the form of Exhibit M hereto, as amended,
supplemented, amended and restated, or otherwise modified from time to time.
"Check-the-Box Status": A Foreign Subsidiary that is classified as a
partnership for U.S. Federal income tax purposes under Treasury Reg. sec.
301.7701-3.
"Closing Date": December 14, 2001.
"Code": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"Collateral": the Property in which a security interest is granted
under the Borrowers Security Agreement, the Subsidiary Guaranty and Security
Agreement, the Mortgages or under any of the other Loan Documents.
"Collateral Documents": (i) upon the execution and delivery thereof,
the Borrowers Security Agreement, the Subsidiary Guaranty and Security
Agreement, Charge of Shares, Debenture, Deed of Guaranty and Indemnity and each
of the Mortgages, as each may be amended, supplemented or otherwise modified
from time to time, (ii) the Intercompany Demand Loan Documents and (iii) all
documents executed or delivered in connection with any of the foregoing.
"Commitment": collectively, the Revolving Loan Commitment or the Swing
Line Loan Commitment.
"Commitment Amounts": the Revolving Loan Commitment Amount and the
Swing Line Loan Commitment Amount.
"Compensatory Interest Payment": as defined in Section 3.1(c).
"Compliance Certificate": a certificate substantially in the form of
Exhibit E hereto.
"Confidential Information": as described in Section 11.21.
"Consolidated": the Parent and its Subsidiaries on a consolidated basis
in accordance with GAAP.
"Consolidated Debt Service": for any period, the sum of (i)
Consolidated Interest Expense for such period and (ii) all scheduled payments of
principal on Consolidated Funded Debt during such period.
"Consolidated EBITDA": for any period shall mean net income (or net
loss) of the Parent and its Subsidiaries, determined on a Consolidated basis in
accordance with GAAP for such period plus (i) the sum of, without duplication,
(a) Consolidated Interest Expense, (b) provision for income taxes of the Parent
and its Subsidiaries, (c) depreciation, amortization and other non-cash charges
of the Parent and its Subsidiaries, (d) any reductions in selling, general and
administrative expenses incurred in connection with the deferred compensation
plan of the Parent, (e) extraordinary losses from sales, exchanges and other
dispositions of Property not in the ordinary course of business, each to the
extent utilized in determining such net income for such period; minus (ii) the
sum of, without duplication, each of the following with respect to the Parent
and its Subsidiaries, to the extent utilized in determining such net income (or
net loss): (a) extraordinary gains from sales, exchanges and other dispositions
of Property not in the ordinary course of business (other than cash gains on
sales of publicly traded Capital Stock; provided, that, with respect to such
cash gains of publicly traded Capital Stock and the calculation of Consolidated
EBITDA for any Fiscal Quarter in any calendar year, the amount of cash gains
from the sale of publicly traded Capital Stock that may be included in the
calculation of Consolidated EBITDA shall not exceed an amount that, when added
to the amount of cash gains from the sale of publicly traded Capital Stock for
all other Fiscal Quarters in such calendar year (even if prior to the Closing
Date), exceeds $6,000,000), (b) interest income, (c) investment income (other
than investment income in an amount not in excess of $100,000 on account of a
promissory note made by Five Star to the order of Parent) (d) cash in an
aggregate amount not to exceed $750,000 in connection with any wind down and
dissolution of Hydro Med Sciences, Inc. and taken during the Fiscal Quarter
ending December 31, 2001 (e) non-cash charges for investments by the Parent in
Five Star and GSE Systems, and (f) other non-recurring items.
"Consolidated Fixed Charges": for any period, the sum of, without
duplication, all scheduled repayments and prepayments of principal on any
Indebtedness plus, Consolidated Interest Expense plus, dividends plus, income
taxes, each paid during such period by the Parent and its Subsidiaries.
"Consolidated Funded Debt": at any date of determination, the aggregate
funded indebtedness (as determined in accordance with GAAP) and Capital Lease
Obligations of the Parent and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, on such date.
"Consolidated Interest Expense": for any period, interest expense (both
accrued and paid) of the Parent and its Subsidiaries determined on a
Consolidated basis in accordance with GAAP, but excluding costs and fees
incurred in connection with extensions of the Existing Credit Agreement for the
period ending December 31, 2001.
"Consolidated Net Worth": at any date of determination, the sum of all
amounts which would be included under "Shareholders' Equity" or any analogous
entry on a Consolidated balance sheet of the Parent determined in accordance
with GAAP as of such date.
"Consolidated Tangible Net Worth": Consolidated Net Worth minus,
without duplication, deferred charges (excluding deferred assets in connection
with the GP Strategies Corporation Millennium Cell, LLC Option Plan),
intangibles and treasury stock, all determined in accordance with GAAP.
"Consolidating": the Parent and its Subsidiaries each taken separately.
"Contingent Obligation": as to any Person (a "secondary obligor"), any
obligation of such secondary obligor (i) guaranteeing or in effect guaranteeing
any return on any investment made by another Person, or (ii) guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividend or other obligation (a
"primary obligation") of any other Person (a "primary obligor") in any manner,
whether directly or indirectly, including any obligation of such secondary
obligor, whether contingent, (a) to purchase any primary obligation or any
Property constituting direct or indirect security therefor, (b) to advance or
supply funds (A) for the purchase or payment of any primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of a primary obligor, (c) to purchase
Property, securities or services primarily for the purpose of assuring the
beneficiary of any primary obligation of the ability of a primary obligor to
make payment of a primary obligation, (d) otherwise to assure or hold harmless
the beneficiary of a primary obligation against loss in respect thereof, and (e)
in respect of the liabilities of any partnership in which a secondary obligor is
a general partner, except to the extent that such liabilities of such
partnership are nonrecourse to such secondary obligor and its separate Property,
provided, however, that the term "Contingent Obligation" shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
business. The amount of any Contingent Obligation of a Person shall be deemed to
be an amount equal to the stated or determinable amount of a primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Control Person": as defined in Section 3.6.
"Covered Event": (i) any Disposition by any Obligor (other than sale of
the common stock of Millenium Cell, Inc.) and (ii) any and all issuance(s)
and/or equity offering(s) of Capital Stock by any Obligor. For the avoidance of
doubt, any cash received by Hydro Med Sciences, Inc. solely from the sale of
securities issued by Hydro Med Sciences, Inc. shall be excluded from the
definition of Covered Event.
"Conversion Date": the date on which: (i) a Eurodollar Advance is
converted to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar
Advance or (iii) a Eurodollar Advance is converted to a new Eurodollar Advance.
"Credit Exposure": at any time, the sum at such time of (i) the
outstanding principal balance of the Revolving Credit Loans of all Lenders plus
Swing Line Loans made by the Swing Line Loan Lender, plus (ii) an amount equal
to the Letter of Credit Outstandings.
"Debenture": the Debenture, by and between Physics and the Agent
substantially in the form of Exhibit N hereto, as amended, supplemented, amended
and restated, or otherwise modified from time to time.
"Deed of Guarantee and Indemnity": the Deed of Guarantee and Indemnity,
by and between Physics, GP (UK) and the Agent substantially in the form of
Exhibit O hereto, as amended, supplemented, amended and restated, or otherwise
modified from time to time.
"Default": any event or condition which, with the giving of notice, the
lapse of time, or any other condition, would, unless cured or waived, constitute
an Event of Default.
"Defaulting Lender": as defined in Section 2.12.
"Disposition": with respect to any Person, any sale, assignment,
transfer or other disposition by such Person, by any means, of (i) the Capital
Stock of any other Person, including without limitation with respect to the
Borrowers or any Subsidiary Guarantor, the Capital Stock of any direct or
indirect Subsidiary (including pursuant to a Hydro Med Sale), (ii) any business,
going concern or division or segment thereof, (iii) any other Property of such
Person other than in the ordinary course of business (other than inventory,
except to the extent subject to a bulk sale), provided, however, that no such
sale, assignment, transfer or other disposition of Property shall be deemed to
be in the ordinary course of business if the fair market value thereof is in
excess of $2,000,000, or (iv) the sale, assignment, transfer or disposition of
all or substantially all of the Property of (a) such Person, or (b) any
Operating Entity.
"Dollars" and "$": lawful currency of the United States.
"Domestic Subsidiary": a Subsidiary of the Parent organized under the
laws of the United States or a state thereof.
"Effective Date": the date on which all conditions in Section 5 and in
Section 6 have been satisfied.
"Eligible Accounts": Borrowing Base Accounts payable to other than GP
(UK) (i) which are General Eligible Accounts, (ii) which are owed by account
debtors located within the United States of America and (iii) which are due and
payable within 90 days from the original date of invoice, except with respect to
Government Assigned Receivables which shall be due and payable within 120 days
from the original date of invoice.
"Eligible Real Estate": each Mortgaged Property as to which the Parent
or any of its Subsidiaries has delivered an Appraisal in compliance with Section
7.15 as set forth in Schedule 1.1 (as such Schedule is amended or otherwise
modified from time to time pursuant to Section 7.15). Notwithstanding any of the
foregoing, no Mortgaged Property shall be deemed Eligible Real Estate if,
(a) the Borrowers or any Subsidiary does not have sole lawful, absolute
and marketable fee simple title to such Mortgaged Property;
(b) such Mortgaged Property is not subject to title insurance in form
and substance satisfactory to the Agent;
(c) such Mortgaged Property is not located in the United States;
(d) such Mortgaged Property is subject to any Liens other than Liens
permitted pursuant to Sections 8.2 (i), (ii), (iv) through (vii) and (xv);
(e) such Mortgaged Property is the subject of proceedings under the
United States bankruptcy laws, any state insolvency laws or any similar
law; or
(f) such Mortgaged Property is not in compliance with all applicable
laws.
"Eligible Securities Collateral": The following types of marketable
securities that are subject to a first priority perfected security interest in
favor of the Agent for the ratable benefit of the Lenders and for which there
can be obtained a publicly quoted fair market value: U.S. Treasury Obligations;
Municipal Bonds; stocks and bonds listed on the New York Stock Exchange; stocks
and bonds listed on NASDAQ; and over the counter listed stocks and bonds;
provided, however, that (a) no bond shall come within this definition of
"Eligible Securities Collateral" unless it is of investment grade; which shall
mean such bond has a BBB or better rating from Standard and Poor's Corporation
or a BAA or better rating from Xxxxx'x Investment Services, Inc.; and (b) no
stock shall come within this definition of "Eligible Securities Collateral" (i)
unless it is publicly traded and has a publicly reported fair market value and
may be freely traded by the owner thereof; (ii) if it is stock of a financial
institution or stock of a securities firm (the determination of whether the
applicable stock is stock of a financial institution or a securities firm shall
be in the sole discretion of the Agent) and (iii) if all or any part of a Loan
was made for the purpose of "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect.
"Employee Benefit Plan": an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained, sponsored or contributed to by the Borrowers,
any of their Subsidiaries or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person which is a member of any group of organizations within the meaning of
Sections 414(b) or (c) of the Code (or, solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, Sections 414(m) or (o) of the Code) of which the Parent or any of its
Subsidiaries is a member.
"Eurodollar Advances": the Revolving Credit Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Eurodollar Advance for each
Interest Period thereof, a rate of interest per annum, as determined by the
Agent, obtained by dividing the rate computed by paragraph (a) by the amount
computed under paragraph (b) (and then rounding to the nearest 1/100 of 1% or,
if there is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%):
(a) the rate, as determined on the basis of the offered rates for
deposits in U.S. Dollars, for a period of time comparable to such Interest
Period for such Eurodollar Advance which appears on the Telerate page 3750 as of
11:00 a.m. London time on the day that is two Business Days preceding the first
day of such Eurodollar Advance; provided, however, if the rate described above
does not appear on the Telerate System on any applicable interest determination
date, the Eurodollar Rate shall be the rate (rounded upwards as described above,
if necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may replace
the LIBO Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London Time), on the day that is two (2) Business Days prior to the
beginning of such Interest Period; and
If both the Telerate and Reuters system are unavailable, then the rate
for that date will be determined on the basis of the offered rates for deposits
in U.S. Dollars for a period of time comparable to such Interest Period for such
Eurodollar Advance which are offered by four major banks in the London interbank
market at approximately 11:00 a.m. London time, on the day that is two (2)
Business Days preceding the first day of such Eurodollar Advance as selected by
the Agent. The principal London office of each of the four major London banks
will be requested to provide a quotation of its U.S. Dollar deposit offered
rate. If at least two such quotations are provided, the rate for that date will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that date will be determined on the basis of
the rates quoted for loans in U.S. Dollars to leading European banks for a
period of time comparable to such Eurodollar Advance offered by major banks in
New York City at approximately 11:00 a.m. New York City time, on the day that is
two Business Days preceding the first day of such Eurodollar Advance. In the
event that the Agent is unable to obtain any such quotation as provided above,
it will be deemed that the Eurodollar Rate pursuant to a Eurodollar Advance
cannot be determined.
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal Reserve System and any
other banking authority to which Fleet and other major United States money
center banks are subject, in respect of eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board of Governors of
the Federal Reserve System), without benefit of credit for proration, exceptions
or offsets which may be available from time to time to Fleet.
The Agent shall use its reasonable commercial efforts to advise the Borrowers of
the Eurodollar Rate as soon as practicable after each change in the Eurodollar
Rate; provided however, that the failure of the Agent to so advise the Borrowers
on any one or more occasions shall not result in any liability of the Agent or
affect the rights of the Lenders or the Agent or the obligations of the
Borrowers under this Agreement or any other Loan Document.
"Event of Default": as defined in Section 9.1.
"Existing Bank Debt": collectively, the Indebtedness of the Parent and
GP Canada and certain Subsidiary Guarantors under the Existing Credit Agreement
and the documents, instruments and agreements executed pursuant thereto or in
connection therewith, including all outstanding principal, unpaid and accrued
interest, unpaid and accrued fees and other unpaid sums thereunder, as such
Indebtedness is reallocated among the credit facilities provided for under this
Agreement.
"Existing Credit Agreement": shall have the meaning set forth in the
recitals hereto.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on such preceding Business Day as so published
on the next succeeding Business Day, and (ii) if such rate is not so published
for any day, the Federal Funds Rate for such day shall be the average of the
quotations for such day on such transactions received by Fleet as determined by
Fleet and reported to the Agent.
"Fees": as defined in Section 2.10.
"Fee Letter": The confidential amended and restated fee letter dated as
of December 10, 2001 by and among the parties thereto.
"Financial Officer": as to any Person, the chief financial officer of
such Person or such other officer as shall be satisfactory to the Agent.
"Financial Statements": as defined in Section 4.13.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"First Adjustment Date": means the date of delivery to the Agent of the
December 31, 2001 financial statements and the related Compliance Certificate.
"Fiscal Year": means any 12 consecutive calendar months ending on the
31st day of December. Reference to a Fiscal Year with a number corresponding to
a calendar year (e.g., "Fiscal Year 2001") refers to the Fiscal Year ending
during such calendar year.
"Five Star": Five Star Group, Inc.
"Fixed Charge Coverage Ratio": as at any date of determination, the
ratio of (a) Consolidated EBITDA less Capital Expenditures of the Parent and its
Subsidiaries for the applicable Fiscal Quarter ending on such date for such
Fiscal Quarter to (b) the sum of Consolidated Fixed Charges for such Fiscal
Quarter.
"Fleet": Fleet National Bank.
"Fleet Rate": the variable per annum rate of interest so designated
from time to time by Fleet as its prime commercial lending rate, such rate to be
adjusted automatically (without notice) on the effective date of any change in
such designated rate. The Fleet Rate is a reference rate set by Fleet and is
based upon various factors including Fleet's costs and desired return, general
economic conditions and other factors and used as a reference point for pricing
loans and does not necessarily represent the lowest or best rate being charged
to any customer.
"Foreign Subsidiaries": any Subsidiary, other than a Domestic
Subsidiary, which becomes a Material Subsidiary and any other Foreign Subsidiary
that has not obtained Check-the-Box Status.
"Funded Current Liability Percentage": as defined in Section 401(a)(29)
of the Code.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied.
"General Eligible Accounts": Borrowing Base Accounts that have been
validly assigned to the Agent and in which the Agent, for the ratable benefit of
the Lenders, has a first priority perfected security interest and otherwise
comply with all of the terms, conditions, warranties and representations made to
Agent and the Lenders, but General Eligible Accounts shall not include the
following: (a) Accounts with respect to which the account debtor is an officer,
director, employee, or agent of Parent or an affiliate of Parent; (b) Accounts
with respect to which the sale is on an installment sale, lease or other
extended payment basis; (c) all Accounts owing by any account debtor if fifty
percent (50%) or more of the Accounts due from such account debtor are deemed
not to be General Eligible Accounts hereunder; (d) Accounts with respect to
which the account debtor is a subsidiary of, affiliate of, or has common
officers or directors with Parent; (e) Accounts with respect to which the Agent
does not for any reason (other than Agent's failure to perfect) have a perfected
first priority Lien; (f) Accounts with respect to which Parent is or may become
liable to the account debtor for goods sold or services rendered by the account
debtor to Parent, to the extent of Parent's existing or potential liability to
such account debtor; (g) Accounts with respect to which the account debtor has
disputed any liability, or the account debtor has made any claim with respect to
any other Account due to Parent, or the Account is otherwise subject to any
right of setoff, deduction, breach of warranty or other defense, dispute or
counterclaim by the account debtor; (h) that portion of the Accounts owed by any
single Account Debtor which exceeds twenty five percent (25%) of all of the
Accounts; (i) that portion of any Accounts representing late fees, service
charges or interest, but only to the extent of such portion; (j) Accounts of an
account debtor where the account debtor is located in Minnesota or New Jersey
unless the payee with respect to such account (1) with respect to such state,
has received a Certificate of Authority to do business and is in good standing
in such state, or (2) has filed a Notice of Business Activities Report with the
applicable state authority in such state, as applicable, for the then current
year; (k) Accounts owed by any account debtor which is insolvent or is the
subject of an insolvency proceeding; (l) that portion or any Accounts
represented by contract rights, documents, instruments, chattel paper or general
intangibles; (m) any and all Accounts of an account debtor whose
creditworthiness is not satisfactory to the Agent in its sole credit judgment
based on information available to the Agent; (n) Accounts that have been billed
but are not yet earned and (o) Accounts with respect to which the Account Debtor
is a federal governmental authority unless such Accounts are Government Assigned
Receivables. References to percentages of all Accounts are based on dollar
amount of Accounts, and not number of Accounts.
"Governmental Authority": any foreign, federal, state, provincial,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"Government Assigned Receivables": Borrowing Base Accounts where the
Account Debtor is the United States of America or any department, agency or
instrumentality of the United States and for which Parent, Physics, and MXL, as
the case may be, has complied with the Assignment of Claims Act of 1940, as
amended (31 U.S.C. Section 203 et seq.).
"GP Canada": shall have the meaning set forth in the recitals hereto.
"GP (UK)": means General Physics Corporation (UK) Limited.
"Highest Lawful Rate": as to any Lender or the Issuing Bank, the
maximum rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on the Note held by it
or by the Issuing Bank on the Reimbursement Agreements, as the case may be, or
which may be owing to such Lender or the Issuing Bank pursuant to the Loan
Documents under the laws applicable to such Lender or the Issuing Bank and this
transaction.
"Hydro Med Sale": any sale, assignment, transfer or other disposition
by the Parent of any of the Capital Stock of Hydro Med Sciences, Inc. to any
other Person, in an aggregate amount not less than $5,000,000 or such other
amount agreed to in writing by the Agent, all on terms and conditions
satisfactory to the Agent.
"Hydro Med Subordinated Debt": $2,640,000 in aggregate principal amount
of Indebtedness owing by Parent under its 6% Convertible Exchangeable Notes due
June 30, 2003, (the "Notes") which Notes at the option of the purchasers thereof
may be converted into approximately 19.99% of the fully diluted equity of Hydro
Med Sciences, Inc.
"Indebtedness": as to any Person, at a particular time, all items which
constitute, without duplication, (i) indebtedness for borrowed money, (ii)
indebtedness in respect of the deferred purchase price of Property or services
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other than carriers', warehousemen's, mechanics', repairmen's or other
like non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations, (viii) all obligations of such Person in
respect of Capital Stock subject to mandatory redemption or redemption at the
option of the holder thereof, in whole or in part, (ix) indebtedness owing under
Interest Rate Protection Agreements (on a net basis with respect to all such
Interest Rate Protection Agreements) and (x) all Contingent Obligations of such
Person in respect of any of the foregoing.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnified Person": as defined in Section 11.8.
"Indemnified Tax": as defined in Section 3.10(a).
"Indemnified Tax Person": as defined in Section 3.10(a).
"Intercompany Demand Loan Collateral": all of the accounts receivable
and inventory of each Foreign Subsidiary, now or hereafter acquired.
"Intercompany Demand Loan Documents": the Intercompany Demand Note, the
Intercompany Demand Loan Security Documents and each other document, instrument
and agreement executed pursuant to or in connection with any of the foregoing,
each as amended, supplemented or modified from time to time, as pledged to the
Agent pursuant to the Borrowers Security Agreement and/or Subsidiary Guarantee
and Security Agreement.
"Intercompany Demand Loan Security Documents": the security documents
executed by each Foreign Subsidiary in favor of Parent or a Subsidiary of Parent
in order to grant such Person a first Lien in the Intercompany Demand Loan
Collateral.
"Intercompany Demand Note": one or more negotiable demand promissory
notes made by a Foreign Subsidiary to the order of Parent, or a Domestic
Subsidiary of Parent evidencing loans by the Parent or such Domestic Subsidiary
to such Foreign Subsidiary, substantially in the form of Exhibit J hereto.
"Intercompany Indebtedness": loans which are made by (i) the Borrowers
to any Subsidiary Guarantor or to any Foreign Subsidiary, or (ii) any Subsidiary
Guarantor to any other Subsidiary Guarantor.
"Interest Coverage Ratio": as at any date of determination, the ratio
of (i) Consolidated EBITDA of the Parent and its Subsidiaries for the applicable
Fiscal Quarter ending on such date to (ii) Consolidated Interest Expense of the
Parent and its Subsidiaries for such Fiscal Quarter.
"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 Revolving Loan Commitment Termination Date.
"Interest Period": with respect to any Eurodollar Advance requested by
the Borrowers, the period commencing on, as the case may be, the Borrowing Date
or Conversion Date with respect to such Eurodollar Advance and one month
thereafter, as selected by the Borrowers in its irrevocable Borrowing Request or
its irrevocable Notice of Conversion, provided, however, that (i) if any
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day, (ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the appropriate subsequent calendar month.
Interest Periods shall be subject to the provisions of Section 3.4.
"Interest Rate Protection Arrangement": any interest rate swap, cap or
collar arrangement, or any currency foreign exchange transaction, or any other
derivative or capital markets product customarily offered by banks or other
financial institutions to their customers in order to reduce the exposure of
such customers to interest rate or currency fluctuations, as the same may be
amended, supplemented or otherwise modified from time to time, in each case on
terms and conditions satisfactory to the Agent; provided, however, in no event
shall any Interest Rate Protection Arrangement be entered into for speculative
purposes.
"Issuing Bank": means, collectively, Fleet or the Person issuing the
Letters of Credit hereunder as designated by the Agent in its capacity as
Issuing Bank of the Letters of Credit.
"Investments": as defined in Section 8.5.
"Killingly Property": as defined under "Mortgages."
"Letters of Credit": as defined in Section 2.7.
"Letter of Credit Commissions": as defined in Section 3.2(b).
"Letter of Credit Commitment": the commitment of the Issuing Bank to
issue Letters of Credit for the account of Parent having an aggregate
outstanding face amount up to the Letter of Credit Commitment Amount, and the
commitment of the Lenders to participate in such Letter of Credit as set forth
in Section 2.8.
"Letter of Credit Commitment Amount": Five Million and 00/100 Dollars
($5,000,000.00), as such amount may be reduced from time to time.
"Letter of Credit Outstandings": at any time, an amount equal to the
sum of (a) the then aggregate amount which is undrawn and available under all
issued and outstanding Letters of Credit, and (b) the then aggregate amount of
all unpaid and outstanding Reimbursement Obligations.
"Letter of Credit Participation": with respect to each Lender, its
obligations to the Issuing Bank hereunder.
"Letter of Credit Request": a request in the form of Exhibit C-2
hereto.
"Leverage Ratio": at any date of determination, the ratio of (i)
Consolidated Funded Debt of the Parent and its Subsidiaries for the applicable
Fiscal Quarter ending on such date to (ii) Consolidated EBITDA of the Parent and
its Subsidiaries for the such Fiscal Quarter.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"Loan Documents": collectively, this Agreement, the Revolving Credit
Notes, the Swing Line Note, the Fee Letter, the Subordination Agreement, each
Reimbursement Agreement, the Interest Rate Protection Arrangements (to the
extent such Interest Rate Protection Arrangements are entered into by a Rate
Protection Lender), the Collateral Documents and all other agreements,
instruments and documents executed or delivered in connection herewith, in each
case as amended, supplemented or otherwise modified from time to time.
"Loans": the Revolving Credit Loans and the Swing Line Loans.
"Loan Value": shall apply to only Eligible Securities Collateral, shall
be determined based on the publicly quoted fair market value of Eligible
Securities Collateral at the time of calculation of each Borrowing Base and
shall mean the percentages indicated below for the type of Eligible Securities
Collateral based on such publicly quoted fair market value:
Type Of Security Loan Value
Cash and Cash Equivalents 100%
U.S. Treasury Obligations with maturities of less than 1 year 95%
U.S. Treasury Obligations with maturities of 1 year or more 90%
Municipal Bonds 80%
A1/P1 Commercial Paper 80%
Bonds listed on the New York Stock Exchange 70%
Bonds listed on the American Stock Exchange 70%
Publicly Traded Stocks (including Millennium Cell, Inc.) 50%
"Managing Person": with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as amended, supplemented or
otherwise modified from time to time.
"Marketable Securities Borrowing Base": The Loan Value of Eligible
Securities Collateral.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations, business, performance, prospects or Property of
the Parent and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers or any Obligor to perform their obligations under any Loan Document or
(iii) the ability of the Agent and the Lenders to enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations, business, performance, prospects or Property of
the Parent and its Subsidiaries taken as a whole, (ii) the ability of the
Borrowers or any other Obligor to perform their obligations under any Loan
Document or (iii) the ability of the Agent and the Lenders to enforce the Loan
Documents.
"Material Subsidiary": means each of the Subsidiary Guarantors and any
other Subsidiary of the Parent which (i) as at the end of the most recent Fiscal
Quarter of Parent, held 5% or more of the Consolidated assets of Parent and its
Subsidiaries, or (ii) for the four most recently completed Fiscal Quarters of
Parent accounted for more than 5% of the Consolidated EBITDA, as shown on the
financial statements of Parent and its Subsidiaries, provided that for purposes
of determining whether any Subsidiary acquired or organized after the date
hereof is a Material Subsidiary, the financial statements of the Parent and its
Subsidiaries shall be adjusted to include such Subsidiary acquired or organized
after the date hereof as if such Subsidiary had been a Subsidiary at all times
during such four Fiscal Quarters or, if shorter, during the period after it was
organized.
"Maturity Date": December 14, 2004.
"Minimum Net Worth Amount:" As at September 30, 2001 and the last day
of each Fiscal Quarter thereafter, 90% of the Parent's Consolidated Net Worth
plus, (A) 80% of the Parent's Consolidated net income (on a cumulative basis)
for each Fiscal Quarter commencing December 31, 2001 plus, (B) 80% of the Net
Cash Proceeds (on a cumulative basis) resulting from any equity issuance by
Parent or any of its Subsidiaries.
"Moody's": Xxxxx'x Investors Service, Inc., or any successor thereto.
"Mortgage Amendment": collectively, (i) the first amendment to the
Mortgage on the Pawling Property, dated as of December 14, 2001, between the
Parent and the Agent, (ii) the first amendment to the Mortgage on the Reservoir
Property, dated as of December 14, 2001, between Chestnut Hill Reservoir Corp.
and the Agent, and (iii) the first amendment to the Mortgage on the Killingly
Property, dated as of December 14, 2001, between the Parent and the Agent.
"Mortgages": a mortgage on (i) Property owned by Parent and located in
Pawling, New York (the "Pawling Property"), pursuant to which the Agent shall be
granted a first priority mortgage Lien for the ratable benefit of the Lenders,
to secure the Obligations, which Mortgage shall be in form and substance
satisfactory to the Agent and (ii) Property owned by Chestnut Hill Reservoir
Corp. and located in Connecticut (the "Reservoir Property"), pursuant to which
the Agent shall be granted a first priority mortgage Lien for the ratable
benefit of the Lenders, to secure the guarantee of Chestnut Hill Reservoir Corp.
under the Subsidiary Guaranty and Security Agreement, which Mortgage shall be in
form and substance satisfactory to the Agent and (iii) Property owned by the
Parent and located in Killingly, Connecticut (the "Killingly Property"),
pursuant to which the Agent shall be granted a first priority mortgage Lien for
the ratable benefit of the Lenders, to secure the Obligations, which Mortgage
shall be in form and substance satisfactory to the Agent.
"Mortgaged Property": any Real Estate which is subject to any Mortgage.
"Multi-employer Plan": a Pension Plan which is a multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
"MXL": MXL Industries, Inc.
"Net Cash Proceeds": with respect to any Covered Event or Disposition
by any Obligor, the aggregate gross sales proceeds received by such Obligor, in
cash in connection with such Covered Event less all reasonable out of pocket
fees, commissions and taxes paid as a result of such Covered Event or
Disposition, and other reasonable expenses incurred in connection with such
Covered Event or Disposition.
"Notes": means, as the context may require, a Revolving Credit Note or
a Swing Line Note.
"Notice of Conversion":a notice substantially in the form of Exhibit D.
"Obligations": all of the Indebtedness, liabilities and obligations of
the Borrowers and each other Obligor to the Lenders, the Issuing Bank, the Swing
Line Loan Lender and the Agent arising under the Loan Documents (including any
Reimbursement Obligations), including Obligations under Interest Rate Protection
Arrangements with a Rate Protection Lender, in each case whether fixed,
contingent, now existing or hereafter arising, created, assumed, incurred or
acquired, direct or indirect, matured or unmatured, absolute or contingent,
whether or not currently contemplated (including any interest accruing during
the pendency of any proceeding of the type described in Section 9.1(i), whether
or not allowed in such proceeding), as such Indebtedness, obligations and
liabilities may be amended, increased, modified, renewed, refinanced by the
Agent and the Lenders, refunded or extended from time to time.
"Obligor": means, as the context may require, the Borrowers and each
other Person (other than a Lender) obligated under any Loan Document (including
each Subsidiary Guarantor).
"Operating Entity": any Person or any business or operating unit of a
Person which is, or could be, operated separate and apart from (i) the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"Original Agreement": shall have the meaning set forth in the recitals
hereto.
"Organizational Documents": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"Other Taxes": as defined in Section 3.10(c).
"Pawling Property": as defined under "Mortgages."
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"Pension Plan": at any date of determination, any Employee Benefit Plan
(including a Multi-employer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Parent, any of its Subsidiaries or any ERISA Affiliate.
"Permitted Lien": a Lien permitted to exist under Section 8.2.
"Person": any individual, firm, partnership, limited liability company,
joint venture, corporation, association, business enterprise, joint stock
company, unincorporated association, trust, Governmental Authority or any other
entity, whether acting in an individual, fiduciary, or other capacity, and for
the purpose of the definition of "ERISA Affiliate", a trade or business.
"Physics": General Physics Corporation.
"Prohibited Transaction": a transaction which is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Proposed Lender": as defined in Section 3.12.
"Rate Protection Lenders": collectively, the Lenders and any Affiliates
of the Lenders which from time to time enter or have entered into Interest Rate
Protection Arrangements with Parent.
"Real Estate": all real property at any time owned or leased (as lessee
or sublessee) by the Borrowers or any of their Subsidiaries.
"Real Estate Borrowing Base": the Real Estate Borrowing Base Percentage
for the applicable Fiscal Year of the Borrowers, multiplied by, the Aggregate
Appraisal Value.
"Real Estate Borrowing Base Percentage": for each Fiscal Year of the
Borrowers, the percentages set forth below:
Calendar Real Estate Borrowing Base Percentage
-------- -------------------------------------
Year
----
2002 50%
2003 25%
2004 and thereafter 0%
"Reference Period": as of any date of determination, the period of four
(4) consecutive Fiscal Quarters of the Borrowers and their Subsidiaries ending
on such date, or if such date is not a Fiscal Quarter end date, the period of
four (4) consecutive Fiscal Quarters most recently ended (in each case treated
as a single accounting period).
"Refunded Swing Line Loans": as defined in Section 2.3(b)(ii).
"Regulatory Change": (i) the introduction or phasing in of any law,
rule or regulation after the Relevant Date, (ii) the issuance or promulgation
after the Relevant Date of any directive, guideline or request from any
Governmental Authority (whether or not having the force of law), or (iii) any
change after the Relevant Date in the interpretation of any existing law, rule,
regulation, directive, guideline or request by any Governmental Authority
charged with the administration thereof. For purposes of this definition, the
term "Relevant Date" shall mean (i) in the case of each Lender listed on the
signature pages hereof, the Effective Date, or (ii) in the case of each other
Lender, the effective date of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender.
"Reimbursement Agreement": as defined in Section 2.7(b).
"Reimbursement Obligation": the joint and several obligation of the
Borrowers to reimburse the Issuing Bank for amounts drawn under a Letter of
Credit.
"Remaining Interest Period": (i) in the event that the Borrowers shall
fail for any reason to borrow a Revolving Credit Loan in respect of which it
shall have requested a Eurodollar Advance or convert an Advance to a Eurodollar
Advance after it shall have notified the Agent of its intent to do so, a period
equal to the Interest Period that the Borrowers elected in respect of such
Eurodollar Advance; or (ii) in the event that a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that the
Borrowers shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date of such
prepayment or repayment to but excluding the last day of such Interest Period.
"Reportable Event": with respect to any Pension Plan, (i) any event set
forth in Sections 4043(c) (other than a Reportable Event as to which the 30 day
notice requirement is waived by the PBGC under applicable regulations), 4062(c)
or 4063(a) of ERISA or the regulations thereunder, (ii) an event requiring the
Borrowers, any of their Subsidiaries or any ERISA Affiliate to provide security
to a Pension Plan under Section 401(a)(29) of the Code, or (iii) any failure to
make any payment required by Section 412(m) of the Code.
"Required Lenders": means, at any time, Lenders holding greater than 66
2/3% of the Revolving Credit Loan Commitments; provided, however, that if any
Lender shall be a Defaulting Lender at such time, then there shall be excluded
from the determination of Required Lenders at such time, the Revolving Loan
Commitment of such Defaulting Lender.
"Required Reduction Amount": (a) with respect to Covered Events that do
not involve the sale of assets that were included in the Borrowing Base, 100% of
the Net Cash Proceeds and (b) with respect to Covered Events that involve the
sale of assets that were included in the Borrowing Base, the amount equal to an
amount that when added to the amount of the reduction in the Borrowing Base (as
a result of the sold assets no longer being included in the Borrowing Base)
equals 100% of the total Net Cash Proceeds (for the avoidance of doubt, the
Required Reduction Amount is determined in accordance with the following
formula: x + reduction in Borrowing Base = (1.00)(Net Cash Proceeds)); provided,
that, if same would result in a negative number the Required Reduction Amount
shall be deemed zero.
"Reservoir Property": as defined under "Mortgages".
"Restricted Payment": as to any Person (i) any dividend or other
distribution, direct or indirect, on account of any shares of Capital Stock in
such Person now or hereafter outstanding (other than a dividend payable solely
in shares of such Capital Stock to the holders of such shares) and (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition, direct or indirect, of any shares of any class of Capital Stock in
such Person now or hereafter outstanding.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in
Section 2.1(a).
"Revolving Credit Note" and "Revolving Credit Notes": as defined in
Section 2.1(b).
"Revolving Loan Commitment": in respect of any Lender, such Lender's
undertaking during the Revolving Loan Commitment Period to make Revolving Credit
Loans (including Revolving Credit Loans pursuant to Section 2.3(b)(ii)) and
purchase participations in Letters of Credit subject to the terms and
conditions, hereof, in an aggregate outstanding amount not exceeding the
commitment amount of such Lender.
"Revolving Loan Commitment Amount": means, on any date, $40,000,000, as
such amount may be reduced from time to time.
"Revolving Loan Commitment Fee": as defined in Section 3.2(a).
"Revolving Loan Commitment Percentage": means, relative to any Lender,
the applicable percentage set forth opposite its name on Exhibit A hereto under
the Revolving Loan Commitment column or set forth in an Assignment and
Acceptance Agreement under the Revolving Loan Commitment column, as such
percentage may be adjusted from time to time pursuant to an Assignment and
Acceptance Agreement executed by such Lender and its Assignee Lender and
delivered pursuant to Section 11.7(c). A Lender shall not have any Revolving
Loan Commitment if its percentage under the Revolving Loan Commitment column is
zero.
"Revolving Loan Commitment Period": means the period from the Effective
Date through the Revolving Loan Commitment Termination Date.
"Revolving Loan Commitment Termination Date": the earlier of the
Business Day immediately preceding the Maturity Date or such earlier date on
which the Commitments shall have been terminated in accordance herewith or the
Loans shall become due and payable, whether by acceleration or otherwise.
"SEC": the United States Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Solvent": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital. For purposes of this definition, the amount of any contingent liability
at any time shall be computed as the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability after taking into account
probable payments by co-obligors.
"Special Counsel": Xxxxxxx Xxxx LLP, counsel to the Agent.
"Standby Letters of Credit": as defined in Section 2.7(a).
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc., or any successor thereto.
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such Letter
of Credit.
"Subordinated Debt": the Hydro Med Subordinated Debt and all other
Indebtedness of a Obligor which is subordinated to the Obligations on terms and
conditions at least as favorable to the Lenders as are contained in the
Subordination Agreement or on other terms and conditions acceptable to the Agent
and the Required Lenders, provided that, notwithstanding the terms of the
Subordination Agreement, in order for such Indebtedness (other than the Hydro
Med Subordinated Debt) to be considered "Subordinated Debt", the principal
amount of such Indebtedness shall not be payable until at least 180 days after
the Revolving Loan Commitment Termination Date, and no principal of or interest
on or other amounts in respect to such Indebtedness shall be payable at any time
after the occurrence and during the continuance of any Event of Default.
"Subordination Agreement": the subordination agreements substantially
in the forms of Exhibits K-1, K-2 and K-3 hereto.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the Managing Person, irrespective of whether a class or classes shall or might
have voting power by reason of the happening of any contingency, or (ii) in
respect of an association, partnership, limited liability company, joint venture
or other business entity, is entitled to share in more than 50% of the profits
and losses, however determined.
"Subsidiary Guarantor": MXL, GP (UK), GP e-Learning Technologies, Inc.,
The Chestnut Hill Reservoir Company, and each present and future Material
Subsidiary of Parent that is a Domestic Subsidiary and each Foreign Subsidiary
provided, that the delivery of such guarantee by such Foreign Subsidiary, would
not have a material adverse tax consequence on the Parent and its Subsidiaries,
taken as a whole or on such Foreign Subsidiary.
"Subsidiary Guaranty and Security Agreement": collectively the Second
Amended and Restated Subsidiary Guaranty and Security Agreements by and among
each applicable Subsidiary Guarantor and the Agent, substantially in the Form of
Exhibit I hereto, as further amended, supplemented, amended and restated or
otherwise modified from time to time.
"Swing Line Loan": as defined in Section 2.2(a).
"Swing Line Loan Commitment": the commitment of the Swing Line Loan
Lender to make Swing Line Loans for the account of the Borrowers in an aggregate
amount up to the Swing Line Loan Commitment Amount, and the commitment of the
Lenders to participate in the Swing Line Loan Exposure as set forth in Section
2.3(b).
"Swing Line Loan Commitment Amount": One Million and 00/100 Dollars
($1,000,000.00), as such amount may be reduced from time to time.
"Swing Line Loan Commitment Period": means the period from the
Effective Date through the Revolving Loan Commitment Termination Date.
"Swing Line Loan Credit Exposure": with respect to the Swing Line Loan
Lender, as of any date, the same as of such date of the outstanding principal
balances of the Swing Line Loans.
"Swing Line Loan Lender": means, subject to the terms of this
Agreement, Fleet.
"Synthetic Lease": any obligation of any Person under a lease treated
as an operating lease under generally accepted accounting principles and as a
loan of financing under United States income tax purposes.
"Taxes": as defined in Section 3.10(a).
"Tax on the Income": as defined in Section 3.10(a).
"Termination Date" means the date on which all Obligations have been
paid in full in cash, all Letters of Credit have been terminated, expired or
cash collateralized and all Commitments have been permanently terminated.
"Termination Event": with respect to any Pension Plan, (i) a Reportable
Event, (ii) the termination of a Pension Plan, or the filing of a notice of
intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment
as a termination under Section 4041(c) of ERISA, (iii) the institution of
proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv) the
appointment of a trustee to administer any Pension Plan under Section 4042 of
ERISA.
"Total Consolidated Liabilities": defined and determined in accordance
with GAAP.
"Trade Letters of Credit": as defined in Section 2.7(a).
"Type": with respect to any Loan, the character of such Loan as an ABR
Advance or a Eurodollar Advance, each of which constitutes a type of loan.
"Unfunded Pension Liabilities": with respect to any Pension Plan, at
any date of determination, the amount determined by taking the accumulated
benefit obligation, as disclosed in accordance with Statement of Accounting
Standards No. 87, "Employers' Accounting for Pensions", over the fair market
value of Pension Plan assets.
"United States": the United States of America (including the States
thereof and the District of Columbia).
"Unqualified Amount": as defined in Section 3.1(c).
"Unrecognized Retiree Welfare Liability": with respect to any Employee
Benefit Plan that provides post retirement benefits other than pension benefits,
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Post Retirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of the
Parent and its Subsidiaries, provided that prior to the date such Statement is
applicable to the Borrowers, such amount shall be based on an estimate made in
good faith of such transition obligation.
"Updated Borrowing Base Certificate": a Borrowing Base Certificate that
(i) is updated to include a current calculation of the Marketable Securities
Borrowing Base as of a date which is not more than one Business Day prior to the
preparation of such Updated Borrowing Base Certificate, (ii) includes the
calculation of the Accounts Receivable Borrowing Base contained in the most
recent Borrowing Base Certificate furnished pursuant to the terms of this
Agreement, (iii) is updated to include a current calculation of the Real Estate
Borrowing Base as of a date which is not more than one Business Day prior to the
preparation of such Updated Borrowing Base Certificate and (iv) contains a
certification from an Authorized Signatory that such Authorized Signatory knows
of no material adverse change in the Accounts Receivable Borrowing Base,
Marketable Securities Borrowing Base or the Real Estate Borrowing Base from that
reflected in the most recent Borrowing Base Certificate furnished pursuant to
the terms of this Agreement.
"Upstream Dividends": as defined in Section 8.14.
"U.S. Person": a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under any
laws of the United States, or any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
1.2 Principles of Construction
(a) All terms defined in a Loan Document shall have the meanings
given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto,
unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate, opinion
or other document made or delivered pursuant thereto, accounting terms not
defined in Section 1.1, and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in this Agreement, the Agent, the
Lenders and the Borrowers shall negotiate in good faith to amend such ratio or
requirement to reflect such change in GAAP (subject to the approval of the
Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrowers shall provide to the Agent and the Lenders
financial statements and other documents required under this Agreement or as
reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to
such change in GAAP. Unless otherwise expressly provided, all financial
covenants and defined financial terms shall be computed on a consolidated basis
for the Parent and its Subsidiaries, in each case without duplication.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the
contrary, any reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to the
contrary, in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
(h) References in any Loan Document to a fiscal period shall refer
to that fiscal period of the Parent.
(i) The words "include" and "including", when used in each Loan
Document, shall mean that the same shall be included "without limitation",
unless otherwise expressly provided therein.
2. AMOUNT AND TERMS OF LOANS AND LETTERS OF CREDIT
2.1 Revolving Credit Loans; Revolving Credit Notes
(a) Subject to the terms and conditions hereof, each Lender
severally (and not jointly) agrees to make revolving credit loans (each a
"Revolving Credit Loan" and, as the context may require, collectively with all
other Revolving Credit Loans of such Lender and with the Revolving Credit Loans
of all other Lenders, the "Revolving Credit Loans") to the Borrowers from time
to time during the Revolving Loan Commitment Period, provided, that immediately
after giving effect thereto, (i) the aggregate outstanding principal amount of
the Revolving Credit Loans of any Lender, together with such Lender's Revolving
Loan Commitment Percentage of the aggregate amount of all Swing Line Loans and
Letter of Credit Outstandings, shall not exceed such Lender's Revolving Loan
Commitment Percentage of the lesser of the (x) then existing Borrowing Base and
(y) Revolving Loan Commitment Amount and (ii) the Credit Exposure does not
exceed the lesser of (x) the then existing Borrowing Base, and (y) the Revolving
Loan Commitment Amount. During the Revolving Loan Commitment Period, the
Borrowers may borrow, prepay in whole or in part and reborrow under the
Revolving Loan Commitment, all in accordance with the terms and conditions of
this Agreement. Subject to the provisions of Sections 2.3 and 3.3, at the option
of the Borrowers, Revolving Credit Loans may be made as one or more (i) ABR
Advances, (ii) Eurodollar Advances or (iii) any combination thereof.
(b) The Revolving Credit Loans made by each Lender shall be
evidenced by a promissory note of the Borrowers, each of which shall amend and
restate in its entirety the Revolving Credit Note payable to such Lender and
provided in connection with the Existing Credit Agreement and each of which
shall be substantially in the form of Exhibit B-1 hereto, with appropriate
insertions therein as to date and principal amount (each, as indorsed or
modified from time to time, a "Revolving Credit Note" and, collectively with the
Revolving Credit Notes of all other Lenders, the "Revolving Credit Notes"),
payable to the order of such Lender, dated the Closing Date, and in the stated
principal amount equal to such Lender's Revolving Loan Commitment Amount. The
outstanding principal balance of the Revolving Credit Loans shall be due and
payable on the Revolving Loan Commitment Termination Date.
2.2 Swing Line Loans; Swing Line Notes
(a) Subject to the terms and conditions hereof, the Swing Line Loan
Lender agrees to make Swing Line Loans (each a "Swing Line Loan" and as the
context may require, collectively with all other Swing Line Loans of the Swing
Line Loan Lender, the "Swing Line Loans") to the Borrowers from time to time
during the Swing Line Loan Commitment Period, equal to the amount of the Swing
Line Loan requested by the Borrowers to be made on such day. The Swing Line Loan
Lender shall not be permitted or required to make Swing Line Loans if, after
giving effect thereto, (i) the aggregate outstanding principal amount of all
Swing Line Loans would exceed the then existing Swing Line Loan Commitment
Amount or (ii) unless otherwise agreed to by the Swing Line Loan Lender, in its
sole discretion, the sum of all Swing Line Loans and Revolving Credit Loans made
by the Swing Line Loan Lender, plus, the Swing Line Loan Lender's Revolving Loan
Commitment Percentage of the aggregate amount of all Letter of Credit
Outstandings would exceed the Swing Line Loan Lender's Revolving Loan Commitment
Percentage of the then existing Revolving Loan Commitment Amount. All Swing Line
Loans shall be made as ABR Advances and shall not be entitled to be converted in
Eurodollar Advances.
(b) The Swing Line Loans made by the Swing Line Loan Lender shall
be evidenced by a promissory note, of the Borrowers, each of which shall be
substantially in the form of Exhibit B-2 hereto, with appropriate insertions
therein as to date an principal amount (each as indorsed or modified from time
to time, a "Swing Line Loan Note"), payable to the order of the Swing Line Loan
Lender, dated the Closing Date, and in the stated principal amount equal to the
Swing Line Loan Lender's Swing Line Loan Commitment Amount. The outstanding
principal amount of the Swing Line Loans shall be due and payable on the
Revolving Loan Commitment Termination Date.
2.3 Procedure for Borrowing. Loans (other than Swing Line Loans) shall
be made by the Lenders in accordance with subsection (a) below, and Swing Line
Loans shall be made by the Swing Line Loan Lender in accordance with subsection
(b) below.
(a) Revolving Credit Loans. (i) The Borrowers may borrow under the
applicable Revolving Loan Commitment on any Business Day during the applicable
Revolving Loan Commitment Period provided the applicable Borrower shall notify
the Agent by the delivery of a Borrowing Request signed by the applicable
Borrower (together with an Updated Borrowing Base Certificate delivered pursuant
to Section 6.2). The Borrowing Request shall be sent by telecopy and shall be
irrevocable (confirmed promptly, and in any event within five Business Days, by
the delivery to the Agent of a Borrowing Request manually signed by the
applicable Borrower) no later than: 11:00 a.m., three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Advances, or either 11:00
a.m., one Business Day prior to the requested Borrowing Date, or 10:00 a.m. on
the requested Borrowing Date in the case of ABR Advances, specifying (A) the
aggregate principal amount to be borrowed under the Revolving Loan Commitment,
(B) the requested Borrowing Date, (C) whether such borrowing is to consist of
one or more Eurodollar Advances, ABR Advances, or a combination thereof, (D) if
the borrowing is to consist of one or more Eurodollar Advances, the length of
the Interest Period for each such Eurodollar Advance and (E) if all or any part
of the applicable Revolving Credit Loan will directly or indirectly be used by,
or be for the benefit of, any Subsidiary Guarantor, the name of such Subsidiary
Guarantor. With respect to the Borrowers, each (i) Eurodollar Advance to be made
on a Borrowing Date, when aggregated with all amounts to be converted to a
Eurodollar Advance on such date and having the same Interest Period as such
first Eurodollar Advance, shall equal no less than $500,000 or such amount plus
a whole multiple of $100,000 in excess thereof, and (ii) each ABR Advance made
on each Borrowing Date shall equal no less than $500,000 or such amount plus a
whole multiple of $100,000 in excess thereof or, if less, the Revolving Loan
Commitment Amount.
(ii) Upon receipt of each Borrowing Request, the Agent shall
promptly notify each Lender thereof. Subject to its receipt of the notice
referred to in the preceding sentence, each Lender will make available to the
Agent for the account of each Borrower at the office of the Agent set forth in
Section 11.2 not later than 12:00 noon on the relevant Borrowing Date requested
by the applicable Borrower, in funds immediately available to the Agent at such
office, the amount of its Revolving Loan Commitment Percentage of the requested
Revolving Credit Loans. The amounts so made available to the Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement, as determined by the Agent, be made available on
such date to the applicable Borrower by the Agent at the office of the Agent
specified in Section 11.2 by crediting an account of the applicable Borrower on
the books of such office with the aggregate of said amounts received by the
Agent.
(iii) Unless the Agent shall have received prior notice from a
Lender (by telephone or otherwise, such notice to be promptly confirmed by
telecopy or other writing) that such Lender will not make available to the Agent
such Lender's applicable Revolving Loan Commitment Percentage of the applicable
Loans requested by the applicable Borrower, the Agent may assume that such
Lender has made such share available to the Agent on the Borrowing Date in
accordance with this Section, provided that such Lender received notice of the
requested Loans from the Agent, and the Agent may, in reliance upon such
assumption, make available to the Borrowers on the Borrowing Date a
corresponding amount. If and to the extent such Lender shall not have so made
its applicable Revolving Loan Commitment Percentage of such Loans available to
the Agent, such Lender and the Borrowers severally agree to pay to the Agent
forthwith on demand such corresponding amount (to the extent not previously paid
by the other), together with interest thereon for each day from the date such
amount is made available to the Borrowers to the date such amount is paid to the
Agent, at a rate per annum equal to, in the case of the Borrowers, the
applicable interest rate set forth in the Applicable Margin for ABR Advances,
and, in the case of such Lender, at a rate of interest per annum equal to the
Federal Funds Rate for the first three days after the due date of such payment
until the date such payment is received by the Agent and the Federal Funds Rate
plus 2% thereafter. Such payment by the Borrowers, however, shall be without
prejudice to its rights against such Lender. If such Lender shall pay to the
Agent such corresponding amount, such amount so paid shall constitute such
Lender's Revolving Credit Loan as part of the Revolving Credit Loans for
purposes of this Agreement, which such Loan shall be deemed to have been made by
such Lender on the Borrowing Date applicable to such Loans.
(iv) If a Lender makes a new Revolving Credit Loan to any Borrower
on a Borrowing Date on which such Borrower is to repay a Revolving Credit Loan
from such Lender, such Lender shall apply the proceeds of such new Revolving
Credit Loan to make such repayment, and only the excess of the proceeds of such
new Revolving Credit Loan over the Revolving Credit Loan being repaid need be
made available to the Agent.
(b) Swing Line Loans. (i) By telephonic notice to the Swing Line
Loan Lender on or before 12:00 noon on a Business Day (followed (within one
Business Day) by the delivery of a confirming Borrowing Request), the Borrowers
may from time to time irrevocably request Swing Line Loans in an aggregate
minimum amount of $500,000 an integral multiple of $100,000. The proceeds of
each Swing Line Loan shall be made available by the Swing Line Loan Lender to
the Borrowers by wire transfer to the account the applicable Borrower shall have
specified in its notice therefor by the close of business on the Business Day
telephonic notice is received by the Swing Line Loan Lender.
(ii) If (A) any Swing Line Loan shall be outstanding for more than
four (4) Business Days, (B) any Swing Line Loan is or will be outstanding on a
date when a Borrower requests that a Revolving Credit Loan be made, or (C) any
Default shall occur and be continuing, then each Lender (other than the Swing
Line Loan Lender) irrevocably agrees that it will, at the request of the Swing
Line Loan Lender, make a Revolving Credit Loan (which shall initially be funded
as an ABR Advance in an amount equal to such Lender's Revolving Loan Commitment
Percentage of the aggregate principal amount of all such Swing Line Loans then
outstanding (such outstanding Swing Line Loans hereinafter referred to as the
"Refunded Swing Line Loans")). On or before 11:00 a.m. on the first Business Day
following receipt by each Lender of a request to make Revolving Credit Loans as
provided in the preceding sentence, each Lender shall deposit in an account
specified by the Swing Line Loan Lender the amount so requested in same day
funds and such funds shall be applied by the Swing Line Loan Lender to repay the
Refunded Swing Line Loans. At the time the Lenders make the above referenced
Revolving Credit Loans, the Swing Line Loan Lender shall be deemed to have made,
in consideration of the making of the Refunded Swing Line Loans, Revolving
Credit Loans in an amount equal to the Swing Line Loan Lender's Revolving Loan
Commitment Percentage of the aggregate principal amount of the Refunded Swing
Line Loans. Upon the making (or deemed making, in the case of the Swing Line
Loan Lender) of any Revolving Credit Loans pursuant to this clause, the amount
so funded shall become outstanding under such Lender's Revolving Credit Note and
shall no longer be owed under the Swing Line Note. All interest payable with
respect to any Revolving Credit Loans made (or deemed made, in the case of the
Swing Line Loan Lender) pursuant to this clause shall be appropriately adjusted
to reflect the period of time during which the Swing Line Loan Lender has
outstanding Swing Line Loans in respect of which such Revolving Credit Loans
were made. Each Lender's obligation to make Revolving Credit Loans referred to
in this clause shall be absolute and unconditional and shall not be affected by
any circumstance, including (i) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Loan Lender,
any Obligor or any Person for any reason whatsoever; (ii) the occurrence of
continuance of any Default; (iii) any adverse change in the condition (financial
or otherwise) of any Obligor; (iv) the acceleration or maturity of any
Obligation or the termination of any commitment after making the Swing Line
Loan; (v) any breach of any Loan Document by any Person or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to the
foregoing.
2.4 Termination or Reduction of Commitments
(a) Voluntary Reductions. Any Borrower shall have the right, upon
at least three Business Days' prior written notice to the Agent, (i) at any time
when the Credit Exposure shall be zero or at any time such Borrower elects to
pay or to prepay the Loans in their entirety, to terminate the Revolving Loan
Commitments of all of the Lenders, and (ii) at any time and from time to time
when the Revolving Loan Commitment Amount shall exceed the Credit Exposure, to
permanently reduce the Revolving Loan Commitment Amount by a sum not greater
than the amount of such excess, provided, however, that each such partial
reduction shall be in the amount of $1,000,000 or such amount plus a whole
multiple of $500,000 in excess thereof.
(b) Mandatory Reductions Relating to Insurance. The Revolving Loan
Commitment Amount of each Lender shall be permanently reduced by the amounts, at
the times and to the extent, required by Section 7.5(b).
(c) Mandatory Reduction Relating to Mandatory Prepayments. Upon the
receipt of mandatory prepayments made pursuant to Section 2.5(d) below.
(d) In General. (i) Each reduction of the Revolving Loan Commitment
Amount, shall be made by reducing each Lender's applicable Revolving Loan
Commitment Amount by an amount equal to such Lender's applicable Revolving Loan
Commitment Percentage. Any optional or mandatory reduction of the Revolving Loan
Commitment Amount pursuant to the terms of this Agreement which reduces the
Revolving Loan Commitment Amount below the sum of the Letter of Credit
Commitment Amount and the Swing Line Loan Commitment Amount shall result in an
automatic and corresponding reduction of the Letter of Credit Commitment and the
Swing Line Loan Commitment (as specified by the Borrowers if, after giving
effect to such reduction in the Revolving Loan Commitment Amount, the Revolving
Loan Commitment Amount exceeds the Swing Line Loan Commitment Amount) to an
aggregate amount not in excess of the then current Revolving Loan Commitment
Amount, as so reduced without any further action on the part of the Issuing Bank
or the Swing Line Loan Lender.
(ii) Simultaneously with each reduction of the Commitment Amount
under this Section, the Borrowers shall pay the Revolving Loan Commitment Fee
accrued on the amount by which the Revolving Loan Commitment Amount has been
reduced.
(ii) Notwithstanding anything contained in Sections 2.4(b), (c),
(d)(i) or (d)(ii) above, the Borrowers shall not be required to reduce the
Revolving Loan Commitment Amount below $35,000,000 as a result of any
prepayments of the Loans required by Sections 2.5(d) or 7.5 other than pursuant
to a voluntary reduction of the Revolving Loan Commitment Amount.
2.5 Prepayments of Loans; Additional Collateral
(a) Voluntary Prepayments. (i) Any Borrower may, at its option,
prepay its Revolving Credit Loans without premium or penalty (but subject to
Section 3.5), in full at any time or in part from time to time by notifying the
Agent in writing at least one Business Day prior to the proposed prepayment
date, in the case of Revolving Credit Loans consisting of ABR Advances and at
least three Business Days prior to the proposed prepayment date, in the case of
Revolving Credit Loans consisting of Eurodollar Advances, specifying whether the
Revolving Credit Loans to be prepaid consist of ABR Advances, Eurodollar
Advances, or a combination thereof, the Revolving Credit Loan to be prepaid, the
amount to be prepaid and the date of prepayment. Each such notice shall be
irrevocable and the amount specified in each such notice shall be due and
payable on the date specified, together with accrued interest to the date of
such payment on the amount prepaid. Upon receipt of such notice, the Agent shall
promptly notify each Lender thereof. Each partial prepayment of Revolving Credit
Loans pursuant to this subsection shall be in an aggregate principal amount of
$500,000 or such amount plus a whole multiple of $100,000 in excess thereof, or,
if less, the outstanding principal balance of the Revolving Credit Loans. After
giving effect to any partial prepayment with respect to Eurodollar Advances
which were made (whether as the result of a borrowing or a conversion) to a
Borrower on the same date and which had the same Interest Period, the
outstanding principal balance of such Eurodollar Advances shall exceed (subject
to Section 3.3) $1,000,000 or such amount plus a whole multiple of $100,000 in
excess thereof.
(ii) Any Borrower may, at its option, prepay its Swing Line Loans
without premium or penalty in full at any time or in part from time to time by
prior telephonic notice to the Swing Line Loan Lender on or before 1:00 p.m. on
the day before such prepayment (such notice to be confirmed in writing 24 hours
thereafter). Each such notice shall be irrevocable and the amount specified in
each such notice shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount prepaid. All such
voluntary partial prepayments shall be in a aggregate minimum amount of $500,000
and an integral multiple of $100,000.
(b) Mandatory Prepayments of Loans Relating to Termination of the
Revolving Loan Commitments. Upon the termination of the Commitments of all of
the Lenders, the Borrowers shall prepay the outstanding principal balance of all
Loans and deposit into the Cash Collateral Accounts an amount which would cause
the balance on deposit in the Cash Collateral Accounts to equal or exceed an
amount equal to 105% of the aggregate amount of all Letter of Credit
Outstandings of the Lenders. Upon each reduction of the Revolving Loan
Commitment Amount, if the Credit Exposure exceeds the Revolving Loan Commitment
Amount as so reduced, the Borrowers shall either (i) prepay the applicable
Revolving Credit Loans or Swing Line Loans (or both), or (ii) make a deposit
into the Cash Collateral Accounts, or both, so that the Revolving Loan
Commitment Amount as so reduced plus the balance on deposit in the Cash
Collateral Accounts exceeds the Credit Exposure.
(c) Mandatory Borrowing Base Prepayment of Loans; Contribution to
Cash Collateral Accounts. If on any day prior to the Revolving Loan Commitment
Termination Date, the Credit Exposure shall exceed the Borrowing Base as set
forth on the most recent Borrowing Base Certificate or Updated Borrowing Base
Certificate, as the case may be, the Borrowers shall, within ten (10) days of
such day (but in no event later than the Revolving Loan Commitment Termination
Date), prepay the Revolving Credit Loans or Swing Line Loans (or both) in an
amount equal to the lesser of such excess and the outstanding principal balance
of the Loans, provided, however, that if after giving effect to such prepayment
the aggregate principal balance of outstanding Loans is zero and the Credit
Exposure still exceeds the Borrowing Base, the Borrowers shall deposit as Cash
Collateral (into the Cash Collateral Accounts) an amount equal to 105% of such
excess. Until such excess has been prepaid and such deposit, if required, has
been made, the Borrowers shall not be entitled to borrow additional Revolving
Credit Loans or Swing Line Loans or request the issuance of any Letter of
Credit.
(d) Mandatory Prepayment from Covered Events and Other Events.
(i) With respect to each Covered Event, (A) the Borrowers shall
within one Business Day of the consummation of each such Covered Event, deliver
to the Agent the Required Reduction Amount of such Covered Event and such
Required Reduction Amount shall be applied by the Borrowers to make a mandatory
prepayment of the Revolving Credit Loans and (B) the Borrowers shall, within one
Business Day of the consummation of each such Covered Event, deliver to the
Agent 100% of the non-cash consideration, if any, with respect to each such
Covered Event to be held as additional collateral for the Obligations.
(ii) Within two Business Days of receipt of the Net Cash Proceeds
from the sale of the common stock of Millenium Cell, Inc. by the Borrowers, 75%
of the amount of such Net Cash Proceeds shall be applied by the Borrowers to
make a mandatory prepayment of the Revolving Credit Loans.
(iii) Within two Business Days of receipt of any recovery in
connection with the Arbitration by the Borrowers, 75% of the amount of the such
recovery shall be applied by the Borrowers to make a mandatory prepayment of the
Revolving Credit Loans.
(e) In General. Simultaneously with each prepayment of a Loan, the
Borrowers shall prepay all accrued interest on the amount prepaid through the
date of prepayment and any amount required pursuant to Section 3.10 hereto.
Unless otherwise specified by the Borrowers, each prepayment of Loans shall
first be applied to ABR Advances. If any prepayment or any other payment is made
in respect of any Eurodollar Advance, in whole or in part, prior to the last day
of the applicable Interest Period, the Borrowers, jointly and severally, as
applicable, agree to indemnify the Lenders in accordance with Section 3.5.
2.6 Use of Proceeds
The Borrowers agree that the proceeds of the Revolving Credit Loans
Swing Line Loans or Letters of Credit shall be used solely, directly or
indirectly, to (i) pay all of the Fees of the Borrowers due hereunder, (ii) pay
the reasonable out-of-pocket fees and expenses incurred by the Obligors in
connection with the Loan Documents, (iii) refinance all Existing Bank Debt and
(iv) for the Borrowers' and their Subsidiaries, other than Hydro Med Sciences,
Inc., working capital and general corporate purposes not inconsistent with the
provisions hereof. Notwithstanding anything to the contrary contained in any
Loan Document, the Borrowers agree that no part of the proceeds of any Revolving
Credit Loan, Swing Line Loan or Letters of Credit will be used, directly or
indirectly, for a purpose which violates any law, including the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System,
as amended.
2.7 Letter of Credit Sub-Facility
(a) Subject to the terms and conditions of this Agreement, the
Issuing Bank agrees, in reliance on the agreement of the other Lenders set forth
in Section 2.8, to issue standby letters of credit (the "Standby Letters of
Credit") or commercial (trade) letters of credit (the "Trade Letters of Credit"
and, together with the Standby Letters of Credit, and the letters of credit
currently outstanding (the "Existing L/C's") and issued by the Issuing Bank for
the account of the Borrowers described on Schedule 2.7 hereto, collectively, the
"Letters of Credit") denominated in Dollars during the Revolving Loan Commitment
Period for the account of the Borrowers, provided that, immediately after the
issuance of each Letter of Credit, (i) the Letter of Credit Outstandings of all
Lenders (whether or not the conditions for drawing under any Letter of Credit
have or may be satisfied) would not exceed the Letter of Credit Commitment
Amount, and (ii) the Credit Exposure would not exceed the lesser of the
Borrowing Base (as reflected in an Updated Borrowing Base Certificate) and the
Revolving Loan Commitment Amount. Each Standby Letter of Credit shall have an
expiration date which shall be not later than the earlier of (i) 365 days after
the date of issuance thereof or (ii) sixty days before the Revolving Loan
Commitment Termination Date. Each Trade Letter of Credit shall have an
expiration date which shall be not later than the earlier of (i) 180 days after
the date of issuance thereof (although any such Letter of Credit shall be
renewable for an additional 365 day period but in no event later than the
Revolving Loan Commitment Termination Date) or (ii) sixty days before the
Revolving Loan Commitment Termination Date. No Letter of Credit shall be issued
if the Agent, or any Lender by notice to the Agent no later than 1:00 p.m. one
Business Day prior to the requested date of issuance of such Letter of Credit,
shall have determined that any condition set forth in Sections 5 or 6 has not
been satisfied.
(b) Each Letter of Credit shall be issued for the account of the
Borrowers in support of an obligation of the Borrowers or a Subsidiary in favor
of a beneficiary who has requested the issuance of such Letter of Credit as a
condition to a transaction entered into in connection with the Borrowers', or
Subsidiary's ordinary course of business. The applicable Borrower shall give the
Agent a Letter of Credit Request for the issuance of each Letter of Credit by
11:00 a.m., three Business Days prior to the requested date of issuance. No
Letter of Credit Request shall be honored unless such Borrower shall have
delivered to the Issuing Bank (x) the Issuing Bank's standard Continuing
Agreement for Letters of Credit (the "Reimbursement Agreement") and (y) with
respect to each Letter of Credit Request, the Issuing Bank's standard Letter of
Credit application, in each case executed by an Authorized Signatory of such
Borrower, and each Letter of Credit Request shall also specify (i) the
beneficiary of such Letter of Credit and the obligations of such Borrower or of
a Subsidiary Guarantor in respect of which such Letter of Credit is to be
issued, (ii) such Borrower's proposal as to the conditions under which a drawing
may be made under such Letter of Credit and the documentation to be required in
respect thereof, (iii) the maximum amount to be available under such Letter of
Credit, and (iv) the requested dates of issuance and expiration. Upon receipt of
such Letter of Credit Request from any Borrower, the Agent shall promptly notify
the Issuing Bank and each other Lender thereof. Each Letter of Credit shall be
in form and substance reasonably satisfactory to the Issuing Bank, with such
provisions with respect to the conditions under which a drawing may be made
thereunder and the documentation required in respect of such drawing as the
Issuing Bank shall reasonably require. Each Letter of Credit shall be used
solely for the purposes described therein. The Issuing Bank shall, on the
proposed date of issuance and subject to the terms and conditions of the
Reimbursement Agreement and to the other terms and conditions of this Agreement,
issue the requested Letter of Credit.
(c) Each payment by the Issuing Bank of a draft drawn under a
Letter of Credit shall give rise to an obligation on the part of the Borrowers
to reimburse the Issuing Bank immediately for the amount thereof.
(d) Notwithstanding anything to the contrary contained herein or in
any Reimbursement Agreement, to the extent that the terms of this Agreement
shall be inconsistent with the terms of such Reimbursement Agreement, the terms
of this Agreement shall govern.
(e) It is expressly agreed that as to the Existing L/C's,
notwithstanding the fact that some of such L/C's may have been issued for the
account of Physics and were executed in connection with the Existing Bank Debt,
and notwithstanding the fact that such Existing L/C's were issued in connection
with the Existing Bank Debt, for purposes of this Agreement, Parent shall be
obligated, jointly and severally with Physics, for all reimbursement and other
obligations in connection therewith as if such Existing L/C's were issued
pursuant to this Agreement. To the extent the Agent or the Issuing Bank
determines that the provisions of any documents executed in connection with the
Existing Bank Debt would be required to effect the intent of this subparagraph
2.7(e), such documents and provisions (but only such documents and provisions)
shall remain in full force and effect as long as the Agent or the Issuing Bank
deems necessary to effect the provisions of this subparagraph 2.7(e).
2.8 Letter of Credit Participation and Funding Commitments
(a) Each Lender hereby unconditionally, irrevocably and severally
(and not jointly) for itself only and without any notice to or the taking of any
action by such Lender, takes an undivided participating interest in the
obligations of the Issuing Bank under and in connection with each Letter of
Credit in an amount equal to such Lender's Revolving Loan Commitment Percentage
of the amount of such Letter of Credit. Each Lender shall be liable to the
Issuing Bank for its Revolving Loan Commitment Percentage of the unreimbursed
amount of any draft drawn and honored under each Letter of Credit. Each Lender
shall also be liable for an amount equal to the product of its Revolving Loan
Commitment Percentage and any amounts paid by the Borrowers pursuant to Section
2.7(c) and 2.9 that are subsequently rescinded or avoided, or must otherwise be
restored or returned. Such liabilities shall be unconditional and without regard
to the occurrence of any Default or Event of Default or the compliance by the
Borrowers with any of its obligations under the Loan Documents.
(b) The Issuing Bank will promptly notify the Agent, and the Agent
will promptly notify each Lender (which notice shall be promptly confirmed in
writing) of the date and the amount of any draft presented under any Letter of
Credit with respect to which full reimbursement of payment is not made by the
Borrowers as provided in Section 2.7(c), and forthwith upon receipt of such
notice, such Lender (other than the Issuing Bank in its capacity as a Lender)
shall make available to the Agent for the account of the Issuing Bank its
Revolving Loan Commitment Percentage of the amount of such unreimbursed draft at
the office of the Agent specified in Section 11.2, in lawful money of the United
States and in immediately available funds, before 4:00 p.m., on the day such
notice was given by the Agent, if the relevant notice was given by the Agent at
or prior to 1:00 p.m., on such day, and before 12:00 noon, on the next Business
Day, if the relevant notice was given by the Agent after 1:00 p.m., on such day.
The Agent shall distribute the payments made by each such Lender (other than the
Issuing Bank in its capacity as a Lender) pursuant to the immediately preceding
sentence to the Issuing Bank promptly upon receipt thereof in like funds as
received. Each such Lender shall indemnify and hold harmless the Agent and the
Issuing Bank from and against any and all losses, liabilities (including
liabilities for penalties), actions, suits, judgments, demands, costs and
expenses (including reasonable attorneys' fees and expenses and an
administration fee of not less than $100 payable to the Issuing Bank as the
issuer of the relevant Letter of Credit) resulting from any failure on the part
of such Lender to provide, or from any delay in providing, the Agent with such
Lender's Revolving Loan Commitment Percentage of the amount of any payment made
by the Issuing Bank under a Letter of Credit in accordance with this subsection
(b) (except in respect of losses, liabilities or other obligations suffered by
the Issuing Bank resulting from the gross negligence or willful misconduct of
the Issuing Bank). If a Lender does not make available to the Agent when due
such Lender's Revolving Loan Commitment Percentage of any unreimbursed payment
made by the Issuing Bank under a Letter of Credit (other than payments made by
the Issuing Bank by reason of its gross negligence or willful misconduct), such
Lender shall be required to pay interest to the Agent for the account of the
Issuing Bank on such Lender's Revolving Loan Commitment Percentage of such
payment at a rate of interest per annum equal to the Federal Funds Rate for the
first three days after the due date of such payment until the date such payment
is received by the Agent and the Federal Funds Rate plus 2% thereafter. The
Agent shall distribute such interest payments to the Issuing Bank upon receipt
thereof in like funds as received.
(c) Whenever the Agent is reimbursed by the Borrowers, for the
account of the Issuing Bank, for any payment under a Letter of Credit and such
payment relates to an amount previously paid by a Lender in respect of its
Revolving Loan Commitment Percentage of the amount of such payment under such
Letter of Credit, the Agent (or the Issuing Bank, to the extent that the Agent
has paid the same to the Issuing Bank) will pay over such payment to such Lender
(i) before 4:00 p.m. on the day such payment from the Borrowers is received, if
such payment is received at or prior to 1:00 P.M. on such day, or (ii) before
12:00 noon on the next succeeding Business Day, if such payment from the
Borrowers is received after 12:00 p.m. on such day.
2.9 Absolute Obligation With Respect to Letter of Credit Payments
(a) The payment of drafts under any Letter of Credit shall be made
in accordance with the terms of such Letter of Credit and (i) the Uniform
Customs and Practice for Documentary Credits of International Chamber of
Commerce No. 500, as adopted or amended from time to time, in the case of Trade
Letters of Credit and (ii) the International Standby Practices 1998 or most
recent revision thereof or successor thereto which shall be in effect from time
to time, in the case of Standby Letters of Credit. The Issuing Bank shall be
entitled to honor any drafts and accept any documents presented to it by the
beneficiary of such Letter of Credit in accordance with the terms of such Letter
of Credit and believed by the Issuing Bank in good faith to be genuine. The
Issuing Bank shall not have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing documents which may be presented to
it, but shall be responsible only to determine in accordance with customary
commercial practices that the documents which are required to be presented
before payment or acceptance of a draft under any Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit.
(b) The Borrowers' obligation to reimburse the Agent for the
account of the Issuing Bank in respect of a Letter of Credit for each payment
under or in respect of such Letter of Credit shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrowers may have or have had against the
beneficiary of such Letter of Credit, the Agent, the Issuing Bank, as issuer of
such Letter of Credit, any Lender or any other Person, including any defense
based on the failure of any drawing to conform to the terms of such Letter of
Credit, its lack of knowledge of the issuance of such Letter of Credit, any
drawing document proving to be forged, fraudulent or invalid, or the legality,
validity, regularity or enforceability of such Letter of Credit; provided, that,
with respect to any Letter of Credit, the foregoing shall not relieve the
Issuing Bank of any liability it may have to the Borrowers for any actual
damages sustained by the Borrowers arising from a wrongful payment under such
Letter of Credit made as a result of the Issuing Bank's gross negligence or
willful misconduct.
(c) At any time when an Event of Default exists, upon demand made
by the Agent acting at the request of the Required Lenders, the Borrowers shall
be obligated forthwith to deposit in the Cash Collateral Accounts an amount in
immediately available funds equal to the sum of (x) the aggregate undrawn face
amount of the outstanding Letters of Credit, (y) the aggregate amount of unpaid
drafts drawn on all Letters of Credit, and (z) the aggregate unpaid
Reimbursement Obligations (after giving effect to any Revolving Credit Loans
made on such date to pay any such Reimbursement Obligations).
2.10 Payments
(a) Each payment, including each prepayment, of principal and
interest on the Loans, of the Revolving Loan Commitment Fee, the Letter of
Credit Commissions and of all of the other fees to be paid to the Agent and the
Lenders in connection with this Agreement (the Revolving Loan Commitment Fee,
the Letter of Credit Commissions, the additional Letter of Credit fees and the
Letter of Credit fronting fees referred to in Section 3.2(b), together with all
of such other fees, being sometimes hereinafter collectively referred to as the
"Fees") shall be made by the Borrowers prior to 12:00 noon on the date such
payment is due to the Agent for the account of the applicable Lenders at the
Agent's office specified in Section 11.2, in each case in lawful money of the
United States, in immediately available funds and without set-off or
counterclaim. As between the Borrowers and the Lenders, any payment by the
Borrowers to the Agent for the account of the Lenders shall be deemed to be
payment by the Borrowers to the Lenders. The failure of the Borrowers to make
any such payment by such time shall not constitute a Default, provided, that
such payment is made on such due date, but any such payment made after 12:00
noon on such due date shall be deemed to have been made on the next Business Day
for the purpose of calculating interest on amounts outstanding on the Loans.
Subject to Section 9.2(b), promptly upon receipt by the Agent of each payment,
including each prepayment, pursuant to this Section, the Agent shall remit such
payment in like funds as received as follows: (i) in the case of the Revolving
Loan Commitment Fees and the Letter of Credit Commissions, to each Lender
according to its Revolving Loan Commitment Percentage, and (ii) in the case of
principal and interest on the Loans, to each Lender pro rata according to its
Revolving Loan Commitment Percentage of the amount of principal or interest, as
the case may be, which is then due and payable to the Lenders on account of the
Loans.
(b) If any payment hereunder, under the Notes or under any
Reimbursement Agreement shall be due and payable on a day which is not a
Business Day, the due date thereof (except as otherwise provided in the
definition of Interest Period) shall be extended to the next Business Day and
(except with respect to payments in respect of the Fees) interest shall be
payable at the applicable rate specified herein during such extension, provided,
however that if such next Business Day is after the Revolving Loan Commitment
Termination Date, any such payment shall be due on the immediately preceding
Business Day.
2.11 Cash Collateral Accounts: (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 and Physics but under the sole dominion and control of the Agent,
two separate cash collateral accounts designated as (a) "GP Strategies
Corporation Cash Collateral Account" and (b) "General Physics Corporation Cash
Collateral Account" (collectively, the "Cash Collateral Accounts"). The
Borrowers hereby pledge 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 Cash Collateral Accounts and all sums at any time and from time to time on
deposit therein (the Cash Collateral Accounts, together with all sums on deposit
therein, being sometimes hereinafter collectively referred to as the "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 Borrowers agree 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 Cash Collateral. The Borrowers agree that they will not (i) sell
or otherwise dispose of any of the Cash Collateral or (ii) create or permit to
exist any Lien upon any of the Cash Collateral. The Borrowers hereby authorize
the Agent, at any time any Obligations shall be required to be paid, to apply
any and all cash on deposit in the Cash Collateral Accounts towards all such
Obligations which shall then be due and owing.
2.12 Defaulting Lender
(a) Notwithstanding anything to the contrary herein, in the event
any Lender (x) has refused (which refusal constitutes a breach by such Lender of
its obligations under this Agreement) to make available its portion of any Loan
or (y) notifies either the Agent or the Borrowers that it does not intend to
make available its portion of any Loan (if the actual refusal would constitute a
breach by such Lender of its obligations under this Agreement) (each a "Lender
Default"), all rights and obligations hereunder of such Lender (a "Defaulting
Lender") as to which a Lender Default is in effect and of the other parties
hereto shall be modified to the extent of the express provisions of this Section
2.12 while such Lender Default remains in effect.
(b) Loans shall be incurred pro rata from Lenders (the
"Non-Defaulting Lenders") which are not Defaulting Lenders based on their
respective Revolving Loan Commitment Percentages with respect to such Loans, and
no Revolving Loan Commitment Percentage of any Lender or any pro rata share of
any Loans required to be advanced by any Lender shall be increased as a result
of such Lender Default. Amounts received in respect of principal of any type of
Loans shall be applied to reduce the applicable Loans of each Lender pro rata
based on the Revolving Loan Commitment Percentage at the time of such
application; provided, that such amount shall not be applied to any Loans of a
Defaulting Lender at any time when, and to the extent that, the aggregate amount
of Loans of any Non-Defaulting Lender exceeds such Non-Defaulting Lender's
Revolving Loan Commitment Percentage of all Loans then outstanding.
(c) A Defaulting Lender shall not be entitled to give instructions
to the Agent or to approve, disapprove, consent to or vote on any matters
relating to this Agreement and the other Loan Documents. All amendments, waivers
and other modifications of this Agreement and the other Loan Documents may be
made without regard to a Defaulting Lender and, for purposes of the definition
of "Required Lenders", a Defaulting Lender shall be deemed not to be a Lender
and not to have Loans outstanding.
(d) Other than as expressly set forth in this Section 2.12, the
rights and obligations of a Defaulting Lender (including, without limitation,
the obligation to indemnify the Agent) and the other parties hereto shall remain
unchanged. To the extent any Borrower incur any costs directly related to a
repayment under Section 2.3, such Defaulting Lender shall reimburse such
Borrower for all such costs. Nothing in this Section 2.12 shall be deemed to
release any Defaulting Lender from its obligations under this Agreement and the
other Loan Documents, shall alter such obligations, shall operate as a waiver of
any default by such Defaulting Lender hereunder, or shall prejudice any rights
which the any Borrower, the Agent or any Lender may have against any Defaulting
Lender as a result of any default of such Defaulting Lender hereunder.
In the event a Defaulting Lender cures to the satisfaction of the
Agent, which shall not be unreasonably withheld, the breach which caused a
Lender to become a Defaulting Lender, such Defaulting Lender shall no longer be
a Defaulting Lender and shall be treated as a Lender under this Agreement.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1 Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section
3.1(b) and 3.1(c), prior to the Revolving Loan Commitment Termination Date, (i)
the Revolving Credit Loans shall bear interest on the outstanding principal
balance thereof (A) in the case of ABR Advances, at the Alternate Base Rate,
plus, the Applicable Margin for ABR Advances, and (B) in the case of Eurodollar
Advances, at the Eurodollar Rate, plus, the Applicable Margin for Eurodollar
Advances, and (ii) the Swing Line Loans shall bear interest on the outstanding
principal balance thereof at the Alternative Base Rate plus, the Applicable
Margin for ABR Advances.
(b) Late Charges. Upon the occurrence and during the continuance of
an Event of Default, the unpaid principal balance of the Revolving Credit Loans
and the Swing Line Loans shall bear interest, payable on demand, at a rate per
annum (whether before or after the entry of a judgment thereon) equal to 2% plus
the interest rate (including the Applicable Margin) which would otherwise be
applicable under Section 3.1(a), and any overdue Reimbursement Obligation,
interest or other amount payable under the Loan Documents shall bear interest,
payable on demand, at a rate per annum (whether before or after the entry of a
judgment thereon) equal to the Alternate Base Rate, plus, the Applicable Margin
for ABR Advances, plus, 2%.
(c) Highest Lawful Rate. At no time shall the interest rate payable
on the Loans of any Lender, together with the Fees and all other amounts payable
under the Loan Documents to such Lender, to the extent the same are construed to
constitute interest, exceed the Highest Lawful Rate applicable to such Lender.
If with respect to any Lender for any period during the term of this Agreement,
any amount paid to such Lender under the Loan Documents, to the extent the same
shall (but for the provisions of this Section) constitute or be deemed to
constitute interest, would exceed the maximum amount of interest permitted by
the Highest Lawful Rate applicable to such Lender during such period (such
amount being hereinafter referred to as an "Unqualified Amount"), then (i) such
Unqualified Amount shall be applied or shall be deemed to have been applied as a
prepayment of the Loans of such Lender, and (ii) if in any subsequent period
during the term of this Agreement, all amounts payable under the Loan Documents
to such Lender in respect of such period which constitute or shall be deemed to
constitute interest shall be less than the maximum amount of interest permitted
by the Highest Lawful Rate applicable to such Lender during such period, then
the Borrowers shall pay to such Lender, as interest and not in repayment of
principal, in respect of such period an amount (each a "Compensatory Interest
Payment") equal to the lesser of (x) a sum which, when added to all such
amounts, would equal the maximum amount of interest permitted by the Highest
Lawful Rate applicable to such Lender during such period, and (y) an amount
equal to the Unqualified Amount less all other Compensatory Interest Payments
made in respect thereof.
(d) In General. Interest on ABR Advances and on Eurodollar Advances
shall be calculated on the basis of a 360-day year, in each case, for the actual
number of days elapsed. Except as otherwise provided in Section 3.1(b), interest
shall be payable in arrears on each Interest Payment Date and upon each payment
(including prepayment) of the Loans. Any change in the interest rate on the
Loans resulting from a change in the Alternate Base Rate or reserve requirements
shall become effective as of the opening of business on the day on which such
change shall become effective. The Agent shall, as soon as practicable, notify
the Borrowers and the Lenders of the effective date and the amount of each such
change in the Fleet Rate, but any failure to so notify shall not in any manner
affect the obligation of the Borrowers to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Alternate Base Rate
or a Eurodollar Rate by the Agent pursuant to this Agreement shall be conclusive
and binding on all parties hereto absent manifest error. The Borrowers
acknowledge that to the extent interest payable on ABR Advances is based on the
Fleet Rate, such rate is only one of the bases for computing interest on loans
made by the Lenders, and by basing interest payable on ABR Advances on the Fleet
Rate, the Lenders have not committed to charge, and the Borrowers have not in
any way bargained for, interest based on a lower or the lowest rate at which the
Lenders may now or in the future make loans to other borrowers.
3.2 Fees
(a) Revolving Loan Commitment Fee. Each Borrower, jointly and
severally, agrees to pay to the Agent, for the account of the Lenders in
accordance with each Lender's Revolving Loan Commitment Percentage, a fee (the
"Revolving Loan Commitment Fee"), during the Revolving Loan Commitment Period,
at a rate per annum equal to the Applicable Margin for Commitment Fees on the
average daily unused portion of the Revolving Loan Commitment Amount (net of
Letter of Credit Outstandings). The Revolving Loan Commitment Fee shall be
payable quarterly in arrears on the last day of each March, June, September and
December of each year, commencing on the first such day following the Effective
Date, and ending on the Revolving Loan Commitment Termination Date. The
Revolving Loan Commitment Fee shall be calculated on the basis of a 360 day year
for the actual number of days elapsed. The making of Swing Line Loans shall not
constitute usage of the Revolving Loan Commitment with respect to the
calculation of the Revolving Loan Commitment Fee to be paid by the Borrowers to
the Lenders.
(b) Letter of Credit Commissions; Fronting Fees and Additional
Fees. The Borrowers, jointly and severally, agree to pay to (i) the Agent, for
the account of the Lenders in accordance with each Lender's Revolving Loan
Commitment Percentage, commissions (the "Letter of Credit Commissions") with
respect to the Letters of Credit for the period from and including the date of
issuance of each thereof to and including the expiration date thereof, at a rate
per annum equal to (x) with respect to Standby Letters of Credit, the Applicable
Margin applicable thereto in effect on the date of issuance thereof, and (y)
with respect to Trade Letters of Credit the Applicable Margin applicable thereto
(but in no event less than $75) in effect on the date of issuance thereof, in
each case on the average daily maximum amount available under any contingency to
be drawn under such Letter of Credit, and (ii) to the Issuing Bank for its own
account, (x) a Letter of Credit fronting fee as set forth in the Fee Letter,
payable upon issuance of each such Letter of Credit, and (y) its standard fees
and charges customarily charged to customers similar to the Borrowers with
respect to any Letter of Credit. The Letter of Credit Commissions shall be (A)
calculated on the basis of a 360-day year for the actual number of days elapsed
and (B) payable quarterly in arrears on the last day of each March, June,
September and December of each year and on the Revolving Loan Commitment
Termination Date.
(c) Agent's Fees. Each Borrower, jointly and severally, agrees to
pay to the Agent, for its own account, such other fees as have been agreed to in
the Fee Letter.
3.3 Conversions
(a) The Borrowers may elect from time to time to convert one or
more of its Eurodollar Advances to ABR Advances by giving the Agent at least one
Business Day's prior irrevocable notice of such election, specifying the Advance
to be converted, provided, that any such conversion of Eurodollar Advances shall
only be made on the last day of the Interest Period applicable thereto. In
addition, any Borrower may elect from time to time to convert its (i) ABR
Advances to Eurodollar Advances and (ii) Eurodollar Advances to new Eurodollar
Advances by selecting a new Interest Period therefor, in each case by giving the
Agent at least three Business Days' prior irrevocable notice of such election,
in the case of a conversion to Eurodollar Advances, specifying the amount to be
so converted and the initial Interest Period relating thereto, provided that any
such conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such conversion of Eurodollar Advances to new Eurodollar
Advances shall only be made on the last day of the Interest Period applicable to
the Eurodollar Advances which are to be converted to such new Eurodollar
Advances. Each such notice shall be irrevocable and shall be given by the
delivery by telecopy of a Notice of Conversion (confirmed promptly, and in any
event within five Business Days), by the delivery to the Agent of a Notice of
Conversion manually signed by the applicable Borrower. The Agent shall provide
the applicable Lenders with, prompt but no later than two Business Days, notice
of each such election. Advances may be converted pursuant to this Section in
whole or in part, provided that the amount to be converted by the applicable
Borrower to each Eurodollar Advance, when aggregated with any Eurodollar Advance
to be made to the applicable Borrower on such date in accordance with Section
2.3 and having the same Interest Period as such first Eurodollar Advance, shall
equal no less than $1,000,000 or such amount plus a whole multiple of $100,000
in excess thereof.
(b) Notwithstanding anything in this Agreement to the contrary,
upon the occurrence and during the continuance of a Default or an Event of
Default, the Borrowers shall not have any right to elect to convert any existing
ABR Advance to a new Eurodollar Advance or to convert any existing Eurodollar
Advance to a new Eurodollar Advance. In such event, all ABR Advances shall be
automatically continued as ABR Advances and all Eurodollar Advances shall be
automatically converted to ABR Advances on the last day of the Interest Period
applicable to such Eurodollar Advance.
(c) Each conversion shall be effected by each Lender by reflecting
the Type of Loan from the Advance being converted to the new ABR Advance or
Eurodollar Advance, as the case may be, (it being understood that any such
conversion shall not constitute a borrowing. Each conversion of an Advance does
not reflect a repayment of the converted Advance or an additional borrowing, but
a continuation of the original obligation in full force and effect.
3.4 Concerning Interest Periods
Notwithstanding any other provision of any Loan Document:
(a) If any Borrower shall have failed to elect a Eurodollar Advance
under Section 2.3(a) or 3.3, as the case may be, in connection with any
borrowing of new Revolving Credit Loans or expiration of an Interest Period with
respect to any existing Eurodollar Advance, the amount of the Revolving Credit
Loans subject to such borrowing or such existing Eurodollar Advance shall
thereafter be a Eurodollar Advance for one or more Interest Periods of one month
until such time, if any, as a new Eurodollar Advance shall have been elected
pursuant to Section 3.3.
(b) No Interest Period selected in respect of the borrowing or
conversion of any Eurodollar Advance shall end after the Revolving Loan
Commitment Date.
(c) The Borrowers shall not be permitted to have more than ten
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Borrowing Request shall
constitute the making of one Eurodollar Advance for the purpose of calculating
such limitation.
3.5 Indemnification for Loss
Notwithstanding anything contained herein to the contrary, if any
Borrower shall fail to borrow or convert on a Borrowing Date or Conversion Date
after it shall have given notice to do so in which it shall have requested a
Eurodollar Advance, or if a Eurodollar Advance shall be terminated for any
reason prior to the last day of the Interest Period applicable thereto, or if,
while a Eurodollar Advance is outstanding, any repayment or prepayment of such
Eurodollar Advance is made for any reason (including as a result of acceleration
or illegality) on a date which is prior to the last day of the Interest Period
applicable thereto, the Borrowers agree, jointly and severally, to indemnify
each Lender against, and to pay on demand directly to such Lender, any loss or
expense suffered by such Lender as a result of such failure to borrow or
convert, termination, repayment or prepayment, including an amount, if greater
than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal), applicable to such
Eurodollar Advances;
"C" equals the Eurodollar Rate (expressed as a decimal), in effect on or about
the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such date, for
deposits in an amount equal approximately to such Lender's pro rata share of the
Affected Principal Amount with an Interest Period equal approximately to the
applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, including in liquidating or employing deposits
acquired to fund or maintain the funding of its pro rata share of the Affected
Principal Amount, or redeploying funds prepaid or repaid, in amounts which
correspond to its pro rata share of the Affected Principal Amount. Each
determination by the Agent or a Lender pursuant to this Section shall be
conclusive and binding on the Borrowers absent manifest error.
3.6 Capital Adequacy
If the amount of capital required or expected to be maintained by
any Lender, or the Issuing Bank or any Person directly or indirectly owning or
controlling such Lender, or the Issuing Bank (each a "Control Person"), shall be
affected by the occurrence of a Regulatory Change and such Lender, or the
Issuing Bank shall have determined that such Regulatory Change shall have had or
will thereafter have the effect of reducing (i) the rate of return on such
Lender's, the Issuing Bank's or such Control Person's capital, or (ii) the asset
value to such Lender, the Issuing Bank or such Control Person of the Loans made
or maintained by such Lender, or of the Reimbursement Obligations or any
participation therein, in any case to a level below that which such Lender, the
Issuing Bank or such Control Person could have achieved or would thereafter be
able to achieve but for such Regulatory Change (after taking into account such
Lender's, the Issuing Bank's or such Control Person's policies regarding capital
adequacy) by an amount deemed by such Lender, or the Issuing Bank to be material
to such Lender, the Issuing Bank or Control Person, then, within ten days after
demand by such Lender or the Issuing Bank, the Borrowers shall pay to such
Lender, the Issuing Bank or such Control Person such additional amount or
amounts as shall be sufficient to compensate such Lender, the Issuing Bank or
such Control Person, as the case may be, for such reduction.
3.7 Reimbursement for Increased Costs
If any Lender, the Agent or the Issuing Bank shall determine that a
Regulatory Change:
(a) does or shall subject it to any Taxes of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to it
of principal, interest or any other amount payable hereunder in respect of its
Eurodollar Advances, or impose on the Agent, the Issuing Bank or such Lender any
other condition regarding the Letters of Credit including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for, in
each case, imposition of, or change in the rate of, Tax on the Income of such
Lender); or
(b) does or shall impose, modify or make applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances which is not otherwise
included in the determination of a Eurodollar Rate, or against any Letters of
Credit issued by the Issuing Bank or participated in by any Lender;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing, converting or maintaining its Eurodollar Advances or its
commitment to make such Eurodollar Advances, or to reduce any amount receivable
hereunder in respect of its Eurodollar Advances, or to increase the cost to the
Issuing Bank of issuing or maintaining the Letters of Credit or the cost to any
Lender of participating therein or the cost to the Agent or the Issuing Bank of
performing its respective functions hereunder with respect to the Letters of
Credit, then, in any such case, the Borrowers shall pay such Lender, the Agent,
or the Issuing Bank, as the case may be, within ten days after demand therefor,
such additional amounts as is sufficient to compensate such Lender, the Issuing
Bank or the Agent, as the case may be, for such additional cost or reduction in
such amount receivable which such Lender, the Issuing Bank or the Agent, as the
case may be, deems to be material as determined by such Lender, the Issuing Bank
or the Agent, as the case may be; provided, however, that nothing in this
Section shall require the Borrowers to indemnify the Lenders, the Agent, or the
Issuing Bank, as the case may be, with respect to withholding Taxes for which
the Borrowers have no obligation under Section 3.10. No failure by any Lender or
the Agent, or the Issuing Bank to demand, and no delay in demanding,
compensation for any increased cost shall constitute a waiver of its right to
demand such compensation at any time. A statement setting forth the calculations
of any additional amounts payable pursuant to this Section submitted by a
Lender, the Agent or the Issuing Bank, as the case may be, to the Borrowers
shall be conclusive absent manifest error.
3.8 Illegality of Funding
Notwithstanding any other provision hereof, if any Lender shall
reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify the Borrowers
and the Agent thereof, and (i) the commitment of such Lender to make such
Eurodollar Advances or convert ABR Advances to Eurodollar Advances shall
forthwith be suspended, (ii) such Lender shall fund its portion of each
requested Eurodollar Advance as an ABR Advance and (iii) such Lender's Revolving
Credit Loans then outstanding as such Eurodollar Advances, if any, shall be
converted automatically to ABR Advances on the last day of the then current
Interest Period applicable thereto or at such earlier time as may be required by
law. If the commitment of any Lender with respect to Eurodollar Advances is
suspended pursuant to this Section and such Lender shall have obtained actual
knowledge that it is once again legal for such Lender to make or maintain
Eurodollar Advances, such Lender shall promptly notify the Agent and the
Borrowers thereof and, upon receipt of such notice by each of the Agent and the
Borrowers, such Lender's commitment to make or maintain Eurodollar Advances
shall be reinstated.
3.9 Substituted Interest Rate
In the event that (i) the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that by reason
of circumstances affecting the interbank eurodollar market either adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate applicable
pursuant to Section 3.1 or (ii) the Required Lenders shall have notified the
Agent that they have determined (which determination shall be conclusive and
binding on the Borrowers) that the applicable Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of maintaining or funding
loans bearing interest based on such Eurodollar Rate, with respect to any
portion of the Loans that the applicable Borrower has requested be made as
Eurodollar Advances or Eurodollar Advances that will result from the requested
conversion of any portion of the Advances into or of Eurodollar Advances (each,
an "Affected Advance"), the Agent shall promptly notify such Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances. If the Agent shall
give such notice, (a) any Affected Advances shall be made as ABR Advances, (b)
the Advances (or any portion thereof) that were to have been converted to
Affected Advances shall be converted to ABR Advances and (c) any outstanding
Affected Advances shall be converted, on the last day of the then current
Interest Period with respect thereto, to ABR Advances. Until any notice under
clauses (i) or (ii), as the case may be, of this Section has been withdrawn by
the Agent (by notice to the Borrowers promptly upon either (x) the Agent having
determined that such circumstances affecting the interbank eurodollar market no
longer exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate pursuant to Section 3.1 or (y) the Agent having been notified by
such Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), no further Eurodollar Advances shall be
required to be made by the Lenders, nor shall the Borrowers have the right to
convert all or any portion of the Loans to or as Eurodollar Advances.
3.10 Taxes
(a) Payments to be Free and Clear. Except as otherwise expressly
required by applicable law, all payments by each Obligor under the Loan
Documents to or for the account of the Agent, the Issuing Bank, or any Lender
(each, an "Indemnified Tax Person") shall be made free and clear of, and without
any deduction or withholding for or on account of, any and all present or future
income, stamp or other taxes, levies, imposts, duties, fees, assessments,
deductions, withholdings, or other charges of whatever nature, now or hereafter
imposed, levied, collected, withheld, or assessed by any jurisdiction, or by any
department, agency, state, province or other political subdivision thereof or
therein (collectively, "Taxes"), excluding as to any Indemnified Tax Person, (i)
a Tax on the Income imposed on such Indemnified Tax Person and (ii) any
interest, fees, additions to tax or penalties for late payment thereof (each
such nonexcluded Tax, an "Indemnified Tax"). For purposes hereof, "Tax on the
Income" shall mean, as to any Person, a Tax imposed by one of the following
jurisdictions or by any political subdivision or taxing authority thereof: (i)
the United States, (ii) Canada, (iii) the jurisdiction in which such Person is
organized, (iv) the jurisdiction in which such Person's principal office or
lending offices are located; which Tax is an income tax or franchise tax imposed
on all or part of the net income or net profits of such Person or which Tax
represents interest, fees, or penalties for late payment of such an income tax
or franchise tax.
(b) Grossing Up of Payments. If any Obligor or any other Person is
required by any law, rule, regulation, order, directive, treaty or guideline to
make any deduction or withholding (which deduction or withholding would
constitute an Indemnified Tax) from any amount required to be paid by any
Obligor to or on behalf of an Indemnified Tax Person under any Loan Document,
then (i) such Obligor shall pay such Indemnified Tax before the date on which
penalties attach thereto, such payment to be made for its own account (if the
liability to pay is imposed on such Obligor) or on behalf of and in the name of
such Indemnified Tax Person (if the liability is imposed on such Indemnified Tax
Person), and (ii) the sum payable to such Indemnified Tax Person shall be
increased as may be necessary so that after making all required deductions and
withholdings (including deductions and withholdings applicable to additional
sums payable under this Section) such Indemnified Tax Person receives an amount
equal to the sum it would have received had no such deductions or withholdings
been made. Notwithstanding the foregoing, no additional amount shall be required
to be paid to any Indemnified Tax Person under clause (ii) of the preceding
sentence except to the extent that the requirement to deduct or withhold or the
amount thereof is attributable to (i) the introduction after the Effective Date
of any law, rule or regulation requiring any Person to withhold or deduct any
amount from any payment under the Loan Documents in respect of an Indemnified
Tax or (ii) any increase after the Effective Date in the rate of any such
withholding or deduction.
(c) Other Taxes. Each Obligor agrees, to pay any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents (collectively, the "Other Taxes").
(d) Evidence of Payment. Within 30 days after the reasonable
request therefor by the Agent in connection with any payment of Indemnified
Taxes or Other Taxes, each Obligor will furnish to the Agent the original or a
certified copy of an official receipt from the jurisdiction to which payment is
made evidencing payment thereof or, if unavailable, a certificate from a
Financial Officer that states that such payment has been made and that sets
forth the date and amount of such payment.
(e) U.S. Tax Certificates. Each Indemnified Tax Person that is
organized under the laws of any jurisdiction other than the United States or any
political subdivision thereof that is exempt from United States federal
withholding tax, or that is subject to such tax at a reduced rate under an
applicable treaty, with respect to payments under the Loan Documents shall
deliver, to the extent that is legally entitled to do so, to the Agent for
transmission to the Borrowers, on or prior to the Effective Date (in the case of
each Indemnified Tax Person listed on the signature pages hereof) or on the
effective date of the Assignment and Acceptance Agreement or other document
pursuant to which it becomes an Indemnified Tax Person (in the case of each
other Indemnified Tax Person), and at such other times as may be required by
applicable law, either (i) two duly completed copies of either (x) Internal
Revenue Service Form W-8BEN claiming, to the extent then available, a reduced
rate under an applicable treaty or (y) Internal Revenue Service Form W-8ECI, or
in either case an applicable successor form; or (ii) in the case of an
Indemnified Tax Person that is not legally entitled to deliver either form
listed in clause (e)(i) but is legally entitled to deliver the certificate
described in clause (e)(ii), a certificate to the effect that such Indemnified
Tax Person is not (x) a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (y) a "10 percent shareholder" of the Borrowers within the meaning of
Section 881(c)(3)(B) of the Code, or (z) a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code. In addition, each Indemnified Tax Person shall deliver
the forms described above promptly upon the obsolescence or invalidity of any
form previously delivered by such Indemnified Tax Person. No Obligor shall be
required to pay any additional amount to any such Indemnified Tax Person under
subsection (b)(ii) above if such Indemnified Tax Person shall have failed to
satisfy the requirements of the two immediately preceding sentences; provided
that if such Indemnified Tax Person shall have satisfied such requirements on
the Effective Date (in the case of each Indemnified Tax Person listed on the
signature pages hereof) or on the effective date of the Assignment and
Acceptance Agreement or other document pursuant to which it became an
Indemnified Tax Person (in the case of each other Indemnified Tax Person),
nothing in this subsection shall relieve any Obligor of its obligation to pay
any additional amounts pursuant to subsection (b)(ii) to the extent that, as a
result of any change in applicable law or treaty, such Indemnified Tax Person is
no longer properly entitled to deliver certificates, documents or other evidence
at a subsequent date establishing the fact that such Indemnified Tax Person is
entitled to such exemption or reduced rate.
(f) In the event that an Indemnified Tax Person is entitled to
receive a refund of or credit for or remission or repayment of taxes withheld or
paid pursuant to this Section 3.10 ("Tax Credit"), which credit or refund is
identifiable by such Indemnified Tax Person as being a result of taxes withheld
in connection with sums payable hereunder or under any other Loan Document, such
Indemnified Tax Person shall use reasonable efforts to obtain the Tax Credit,
and upon receipt of such Tax Credit shall promptly notify the Agent and the
Borrowers and shall remit to the Borrowers the amount of such Tax Credit
(without interest) allocable to payments made hereunder or under the other Loan
Documents.
3.11 Option to Fund
Each Lender has indicated that, if any Borrower requests a
Eurodollar Advance, such Lender may wish to purchase one or more deposits in
order to fund or maintain its funding of its Revolving Loan Commitment
Percentage of such Eurodollar Advance during the Interest Period with respect
thereto; it being understood that the provisions of this Agreement relating to
such funding are included only for the purpose of determining the rate of
interest to be paid in respect of such Eurodollar Advance and any amounts owing
under Sections 3.5 and 3.7. Each Lender shall be entitled to fund and maintain
its funding of all or any part of each Eurodollar Advance in any manner it sees
fit, but all such determinations hereunder shall be made as if each Lender had
actually funded and maintained its Revolving Loan Commitment Percentage of each
Eurodollar Advance during the applicable Interest Period through the purchase of
deposits in the London interbank market in an amount equal to its Revolving Loan
Commitment Percentage of such Eurodollar Advance having a maturity corresponding
to such Interest Period. Any Lender may fund its Revolving Loan Commitment
Percentage of each Eurodollar Advance from or for the account of any branch or
office of such Lender as such Lender may choose from time to time.
3.12 Replacement of Lenders
Notwithstanding the foregoing, if (i) any Lender shall request
compensation pursuant to Section 3.6 or the Borrowers shall be required to pay
any additional amounts pursuant to Section 3.10 in respect of any Lender in an
aggregate amount in excess of $50,000, (ii) any Lender shall give any notice to
the Borrowers or the Agent pursuant to Section 3.7, (iii) any Lender shall on
two or more occasions give a notice to the Borrowers or the Agent pursuant to
Section 3.8, or (iv) any Lender shall be an uncured Defaulting Lender on two or
more occasions; then, in each such case, provided that no Default or Event of
Default shall then exist and be continuing, during the 90 day period after the
receipt of such request or notice, the Borrowers may require that such Lender
transfer all of its right, title and interest under this Agreement and each of
such Lender's Notes to any lender identified by the Borrowers and approved by
the Agent (such approval not to be unreasonably withheld) (a "Proposed Lender")
if such Proposed Lender agrees to assume all of the obligations of such Lender
for consideration equal to the outstanding principal amount of such Lender's
Loans and all unreimbursed sums paid by such Lender under Section 2.8(b),
together with interest thereon to the date of such transfer and all other
amounts payable under the Loan Documents to such Lender on or prior to the date
of such transfer (including any fees accrued hereunder and any amounts which
would be payable under Section 3.5 as if all of such Lender's Loans were being
prepaid in full on such date). Subject to the execution and delivery of new
Notes, an instrument of assignment and assumption, and such other documents as
such Lender may reasonably require, such Proposed Lender shall be a "Lender" for
all purposes hereunder. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements of the Borrowers contained in
Sections 3.5, 3.6, 11.5, 11.8 and 11.10 (without duplication of any payments
made to such Lender by the Borrowers or the Proposed Lender) shall survive for
the benefit of any Lender replaced under this Section with respect to the time
prior to such replacement.
3.13 Guaranty Provisions. Each Borrower acknowledges and agrees that,
whether or not specifically indicated as such in a Loan Document, all
Obligations shall be joint and several Obligations of each individual Borrower,
and in furtherance of such joint and several Obligations, each Borrower hereby
irrevocably guarantees the payment of all Obligations of each other Borrower as
set forth below.
(a) Guaranty. Each Borrower hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the full and punctual
payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all Obligations; provided,
however, that each Borrower shall only be liable under this Agreement for the
maximum amount of such liability that can be hereby incurred without rendering
this Agreement, as it relates to such Borrower, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This guaranty constitutes a guaranty of payment when due and not
of collection, and each Borrower specifically agrees that it shall not be
necessary or required that any Lender exercise any right, assert any claim or
demand or enforce any remedy whatsoever against any Obligor or any other Person
before or as a condition to the obligations of such Borrower hereunder.
(b) Guaranty Absolute, etc. The guaranty agreed to above shall in
all respects be a continuing, absolute, unconditional and irrevocable guaranty
of payment, and shall remain in full force and effect until the Revolving Loan
Commitment Termination Date. Each Borrower jointly and severally guarantees that
the Obligations will be paid strictly in accordance with the terms of each Loan
Document under which such Obligations arise, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Lender with respect thereto. The liability of each
Borrower under this Agreement shall be joint and several, absolute,
unconditional and irrevocable irrespective of (a) any lack of validity, legality
or enforceability of any Loan Document; (b) the failure of any Lender (i) to
assert any claim or demand or to enforce any right or remedy against any Obligor
or any other Person (including any other guarantor) under the provisions of any
Loan Document or otherwise, or (ii) to exercise any right or remedy against any
other guarantor (including any Obligor) of, or collateral securing, any
Obligations; (c) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Obligations, or any other extension,
compromise or renewal of any Obligation; (d) any reduction, limitation,
impairment or termination of any Obligations for any reason, including any claim
of waiver, release, surrender, alteration or compromise, and shall not be
subject to (and each Borrower hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations or otherwise; (e) any
amendment to, rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of any Loan Document; (f) any addition,
exchange, release, surrender or non-perfection of any collateral, or any
amendment to or waiver or release or addition of, or consent to or departure
from, any other guaranty held by any Lender securing any of the Obligations; or
(g) any other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, any Obligor, any surety or any
guarantor.
(c) Reinstatement, etc. Each Borrower agrees that its guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Lender, upon the insolvency, bankruptcy or
reorganization of any other Borrower, any other Obligor or otherwise, all as
though such payment had not been made.
(d) Waiver, etc. Each Borrower hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Agreement and any requirement that any Lender protect, secure, perfect
or insure any Lien, or any property subject thereto, or exhaust any right or
take any action against any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the Obligations, as the
case may be.
(e) Postponement of Subrogation, etc. Each Borrower agrees that it
will not exercise any rights which it may acquire by way of rights of
subrogation under any Loan Document to which it is a party, nor shall any
Borrower seek or be entitled to seek any contribution or reimbursement from any
Obligor, in respect of any payment made hereunder, under any other Loan Document
or otherwise, until following the Revolving Loan Commitment Termination Date.
Any amount paid to any Borrower on account of any such subrogation rights prior
to the Revolving Loan Commitment Termination Date shall be held in trust for the
benefit of the Lenders and shall immediately be paid and turned over to the
Agent for the benefit of the Lenders in the exact form received by such Borrower
(duly endorsed in favor of the Agent, if required), to be credited and applied
against the Obligations, whether matured or unmatured; provided, however, that
if (a) any Borrower has made payment to the Lenders of all or any part of the
Obligations; and (b) the Revolving Loan Commitment Termination Date has
occurred; then at such Borrower's request, the Agent, (on behalf of the Lenders)
will, at the expense of such Borrower, execute and deliver to such Borrower
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to such Borrower of an
interest in the Obligations resulting from such payment. In furtherance of the
foregoing, at all times prior to the Revolving Loan Commitment Termination Date,
each Borrower shall refrain from taking any action or commencing any proceeding
against any Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments made under any Loan Document to any Lender.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this
Agreement and to make the Loans and the Issuing Bank to issue the Letters of
Credit and the Lenders to participate therein, each Borrower, jointly and
severally, makes the following representations and warranties to the Agent, the
Issuing Bank and each Lender:
4.1 Subsidiaries; Capitalization
As of the Effective Date, the Parent has only the Subsidiaries set
forth on, and the authorized, issued and outstanding Capital Stock of the Parent
and each such Subsidiary is as set forth on, Schedule 4.1. As of the Effective
Date, and except as set forth on Schedule 4.1, the shares of, or partnership or
other interests in, each Subsidiary of the Parent are owned beneficially and of
record by the Parent or another Subsidiary of the Parent, are free and clear of
all Liens and are duly authorized, validly issued, fully paid and nonassessable.
As of the Effective Date, except as set forth on Schedule 4.1, (i) no Obligor
nor any of the Foreign Subsidiaries has issued any securities convertible into,
or options or warrants for, any common or preferred equity securities thereof,
(ii) there are no agreements, voting trusts or understandings binding upon the
Parent or any of its Subsidiaries with respect to the voting securities of the
Parent or any of its Subsidiaries or affecting in any manner the sale, pledge,
assignment or other disposition thereof, including any right of first refusal,
option, redemption, call or other right with respect thereto, whether similar or
dissimilar to any of the foregoing, and (iii) all of the outstanding Capital
Stock of each Obligor or Foreign Subsidiary is owned by the Parent or another
Obligor.
4.2 Existence and Power
Each Borrower, each Obligor and each of the Foreign Subsidiaries is
duly incorporated, organized or formed and validly existing in good standing
under the laws of the jurisdiction of its incorporation or formation, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of the business conducted therein or the
Property owned by it therein makes such qualification necessary, except where
such failure to qualify could not reasonably be expected to have a Material
Adverse Effect.
4.3 Authority and Execution
Each Borrower, each Obligor and each of the Foreign Subsidiaries
has full legal power and authority to enter into, execute, deliver and perform
the terms of the Loan Documents to which it is a party all of which have been
duly authorized by all proper and necessary corporate, partnership or other
applicable action and is in full compliance with its Organizational Documents.
4.4 Binding Agreement; etc.
The Loan Documents (other than the Notes) constitute, and the
Notes, when issued and delivered pursuant hereto for value received, will
constitute, the valid and legally binding obligations of each Obligor and each
Foreign Subsidiary, in each case, to the extent it is a party thereto,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws now or hereafter affecting the enforcement
of creditors' rights generally and except that the remedy of specific
performance and other equitable remedies are subject to judicial discretion. The
Liens granted to the Agent in the Collateral are first (subject to Permitted
Liens) priority (or the local equivalent thereof) security interests and no
Liens exist on any of the Collateral described above other than the Liens
created in favor of the Agent pursuant to a Loan Document and the Permitted
Liens.
4.5 Litigation
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of any Borrower, any other Obligor or any of the
Foreign Subsidiaries) pending or, to the knowledge of any Borrower, threatened
against any Borrower, any other Obligor or any of the Foreign Subsidiaries or
maintained by the any Borrower, any other Obligor or any of the Foreign
Subsidiaries or which may affect the Property of any Borrower, or any other
Obligor or any of the Foreign Subsidiaries or any of their respective Properties
or rights, which (i) could reasonably be expected to have a Material Adverse
Effect, (ii) call into question the validity or enforceability of, or otherwise
seek to invalidate, any Loan Document, or (iii) might, individually or in the
aggregate, materially and adversely affect any of the transactions contemplated
by any Loan Document.
4.6 Required Consents
Except for information filings required to be made in the ordinary
course of business which are not a condition to the performance by any Borrower
or any of their Subsidiaries under the Loan Documents to which it is a party, no
consent, authorization or approval of, filing with, notice to, or exemption by,
stockholders or holders of any other equity interest, any Governmental Authority
or any other Person is required to authorize, or is required in connection with
the execution, delivery or performance of the Loan Documents to which any
Borrower or any of their Subsidiaries is a party or is required as a condition
to the validity or enforceability of the Loan Documents to which any of the same
is a party. Each Borrower, prior to each borrowing by it hereunder, has obtained
all necessary approvals and consents of, and has filed or caused to be filed all
reports, applications, documents, instruments and information required to be
filed pursuant to all applicable laws, rules, regulations and requests of, all
Governmental Authorities in connection with such borrowing.
4.7 Absence of Defaults; No Conflicting Agreements
(a) None of the Obligors, the Foreign Subsidiaries nor the
Borrowers is in default under any mortgage, indenture, contract or agreement to
which it is a party or by which it or any of its Property is bound, the effect
of which default could reasonably be expected to have a Material Adverse Effect.
The execution, delivery or carrying out of the terms of the Loan Documents will
not constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of any Borrower, any other
Obligor or any of the Foreign Subsidiaries or result in a breach of or require
the mandatory repayment of or other acceleration of payment under or pursuant to
the terms of any such mortgage, indenture, contract or agreement.
(b) Neither the Parent nor any of its Subsidiaries is in default
with respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Authority which default could reasonably be expected to have a
Material Adverse Effect.
4.8 Compliance with Applicable Laws
Each Borrower, each other Obligor and each of the Foreign
Subsidiaries is complying in all material respects with all statutes,
regulations, rules and orders of all Governmental Authorities which are
applicable to such Borrower, such other Obligor or such Foreign Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect.
4.9 Taxes
Each Borrower, each other Obligor, and each of the Foreign
Subsidiaries has filed or caused to be filed all tax returns required to be
filed and has paid, or has made adequate provision for the payment of, all taxes
shown to be due and payable on said returns or in any assessments made against
it (other than those being contested as required under Section 7.4) which would
be material to such Borrower, such other Obligor or such Foreign Subsidiaries,
and no tax Liens have been filed with respect thereto. The charges, accruals and
reserves on the books of the Parent, each other Obligor and each of the
Subsidiaries with respect to all taxes are, to the best knowledge of any
Borrower, adequate for the payment of such taxes, and the Parent does not know
of any unpaid assessment which is due and payable against any Borrower, any
other Obligor or any of the Foreign Subsidiaries or any claims being asserted
which could reasonably be expected to have a Material Adverse Effect, except
such thereof as are being contested as required under Section 7.4, and for which
adequate reserves have been set aside in accordance with GAAP.
4.10 Governmental Regulations
None of the Obligors, the Foreign Subsidiaries, the Borrowers nor
any Person controlled by, controlling, or under common control with, any
Borrower or any of its Subsidiaries, is subject to regulation under the Public
Utility Holding Company Act of 1935, as amended, the Federal Power Act, as
amended, or the Investment Company Act of 1940, as amended, or is subject to any
statute or regulation which prohibits or restricts the incurrence of
Indebtedness, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
4.11 Federal Reserve Regulations; Use of Loan Proceeds
None of the Obligors, Foreign Subsidiaries nor the Borrowers is
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
After giving effect to the making of each Revolving Credit Loan and the issuance
of each Letter of Credit, Margin Stock will constitute less than 25% of the
assets (as determined by any reasonable method) of the Borrowers and their
respective Subsidiaries.
4.12 Plans
Each Employee Benefit Plan is in compliance with ERISA and the
Code, where applicable, in all material respects, except where non-compliance
could not reasonably be expected to have a Material Adverse Effect. As of the
Effective Date, (i) the amount of all Unfunded Pension Liabilities under the
Pension Plans, excluding any plan which is a Multi-employer Plan, does not
exceed $250,000, and (ii) the amount of the aggregate Unrecognized Retiree
Welfare Liability under all applicable Employee Benefit Plans does not exceed
$250,000. The Parent and each of its Subsidiaries and ERISA Affiliates has
complied with the requirements of Section 515 of ERISA with respect to each
Pension Plan which is a Multi-employer Plan, except where non-compliance could
not reasonably be expected to have a Material Adverse Effect. As of the
Effective Date, neither the Parent nor its Subsidiaries or ERISA Affiliates have
any liability under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of purchaser default) and the aggregate
potential annual withdrawal liability payments, as determined in accordance with
Title IV of ERISA, of the Parent and its Subsidiaries and ERISA Affiliates with
respect to all Pension Plans which are Multi-employer Plans is approximately
$250,000. The Parent and its Subsidiaries and ERISA Affiliates have, as of the
Effective Date, made all contributions or payments to or under each such Pension
Plan required by law or the terms of such Pension Plan or any contract or
agreement with respect thereto, except where non-compliance could not reasonably
be expected to have a Material Adverse Effect. No material liability to the PBGC
has been, or is expected by the Borrower, any of its Subsidiaries or any ERISA
Affiliate to be, incurred by the Borrower, any such Subsidiary or any ERISA
Affiliate. Liability, as referred to in this Section includes any joint and
several liability. Each Employee Benefit Plan which is a group health plan
within the meaning of Section 5000(b)(1) of the Code is in material compliance
with the continuation of health care coverage requirements of Section 4980B of
the Code or applicable state law, except where non-compliance could not
reasonably be expected to have a Material Adverse Effect.
4.13 Financial Statements
The Parent heretofore delivered to the Agent and the Lenders copies of
the (i) audited Consolidated and unaudited Consolidating Balance Sheets of
Parent as of December 31, 2000 and the related Consolidated and Consolidating
Statements of Operations, Stockholder's Equity and Cash Flows for the Fiscal
Years then ended and (ii) the unaudited Consolidated and Consolidating Balance
Sheets of Parent as of September 30, 2001, and the related Consolidated and
Consolidating Statements of Operations, Stockholder's Equity and Cash Flows for
the Fiscal Quarters then ended (with the related notes and schedules, the
"Financial Statements"). The Financial Statements fairly present the
Consolidated and Consolidating financial condition and results of the operations
of Parent and its Subsidiaries as of the dates and for the periods indicated
therein (subject, in the case of such unaudited statements, to normal year-end
adjustments) and have been prepared in conformity with GAAP. Except as reflected
in the Financial Statements or in the notes thereto, neither Parent nor any of
its Subsidiaries has any obligation or liability of any kind (whether fixed,
accrued, Contingent, unmatured or otherwise) which, in accordance with GAAP,
should have been shown on the Financial Statements and was not. Since the date
of the Financial Statements, Parent and each of its Subsidiaries has conducted
its business only in the ordinary course and there has been no Material Adverse
Change.
4.14 Property
Each Borrower and each of the other Obligors and each Foreign
Subsidiary has good and marketable title to, or a valid leasehold interest in,
all of its real Property, and is the owner of, or has a valid lease of, all
personal property, in each case which is material to the Parent and its
Subsidiaries, taken as a whole, subject to no Liens, except Permitted Liens. All
leases of Property to any Borrower, any Obligor or any of the Foreign
Subsidiaries are in full force and effect, such Borrower, such Obligor or such
Foreign Subsidiary, as the case may be, enjoys quiet and undisturbed possession
under all leases of real property and none of the Obligors, any of the Foreign
Subsidiaries nor any Borrower is in default beyond any applicable grace period
of any provision thereof, the effect of which could reasonably be expected to
have a Material Adverse Effect.
4.15 Authorizations
Each Borrower, each Obligor and each Foreign Subsidiary possesses or
has the right to use all franchises, licenses and other rights as are material
and necessary for the conduct of its business, and with respect to which it is
in compliance, with no known conflict with the valid rights of others which
could reasonably be expected to have a Material Adverse Effect. No event has
occurred which permits or, to the best knowledge of the Borrowers, after notice
or the lapse of time or both, or any other condition, could reasonably be
expected to permit, the revocation or termination of any such franchise, license
or other right which revocation or termination could reasonably be expected to
have a Material Adverse Effect.
4.16 Environmental Matters
Except as set forth in Schedule 4.16, none of the Obligors, the
Foreign Subsidiaries nor the Borrowers (i) has received written notice or
otherwise learned of any claim, demand, action, event, condition, report or
investigation indicating or concerning any potential or actual liability which
individually or in the aggregate could reasonably be expected to have a Material
Adverse Effect, arising in connection with (A) any non-compliance with or
violation of the requirements of any applicable federal, state, provincial or
local environmental health or safety statute or regulation, or (B) the release
or threatened release of any toxic or hazardous waste, substance or constituent,
or other substance into the environment, (ii) to the best knowledge of any
Borrower, has any threatened or actual liability in connection with the release
or threatened release of any toxic or hazardous waste, substance or constituent,
or other substance into the environment which individually or in the aggregate
could reasonably be expected to have a Material Adverse Effect, (iii) has
received notice of any federal, state or provincial investigation evaluating
whether any remedial action is needed to respond to a release or threatened
release of any toxic or hazardous waste, substance or constituent or other
substance into the environment for which any Borrower, any other Obligor or any
of the Foreign Subsidiaries is or would be liable, which liability could
reasonably be expected to have a Material Adverse Effect, or (iv) has received
notice that any Borrower, any other Obligor or any of the Foreign Subsidiaries
is or may be liable to any Person under the Comprehensive Environmental
Response, Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 et
seq., or any analogous state or foreign law, which liability could reasonably be
expected to have a Material Adverse Effect. Each Borrower, each other Obligor,
each of the Foreign Subsidiaries is in compliance with the financial
responsibility requirements of federal and state environmental laws to the
extent applicable, including those contained in 40 C.F.R., parts 264 and 265,
subpart H, and any analogous state or foreign law, except in those cases in
which the failure so to comply would not reasonably be expected to have a
Material Adverse Effect.
4.17 Solvency
Immediately after giving effect to the transactions contemplated by
the Loan Documents, each Borrower is and will be Solvent and the Borrowers
together with the other Obligors and each of the Foreign Subsidiaries on a
consolidated basis is and will be Solvent.
4.18 Absence of Certain Restrictions
No indenture, certificate of designation for preferred stock,
agreement or instrument to which any Borrower, any other Obligor or any of the
Foreign Subsidiaries is a party (other than this Agreement), prohibits or limits
in any way, directly or indirectly the ability of any Obligor or Foreign
Subsidiary to make Restricted Payments or repay any Indebtedness to any Borrower
or to another Subsidiary of the Parent.
4.19 No Misrepresentation
No representation or warranty contained in any Loan Document and no
certificate or report from time to time furnished by any Borrower nor any of
their Subsidiaries in connection with the transactions contemplated thereby,
contains or will contain a misstatement of material fact or omits or will omit
to state a material fact required to be stated in order to make the statements
therein contained not misleading in the light of the circumstances under which
made, provided that any projections or pro-forma financial information contained
therein are based upon good faith estimates and assumptions believed by the
Borrowers to be reasonable at the time made, it being recognized by the Agent,
the Issuing Bank, and the Lenders that such projections as to future events are
not to be viewed as facts, and that actual results during the period or periods
covered thereby may differ from the projected results. There are no liabilities
of any Borrower or any of its Subsidiaries of any kind whatsoever, whether
accrued, contingent, absolute, determined, determinable or otherwise, and there
is no existing condition, situation or set of circumstances, which could
reasonably be expected to result in a Material Adverse Effect, other than those
liabilities provided for or disclosed in the most recently delivered financial
statements
4.20 Intangible Assets.
The only registered patents, registered trademarks, registered
service marks, registered trade names, or registered copyrights, or rights with
respect to the foregoing or any pending applications therefor of any Obligor or
any Foreign Subsidiary are (i) the registered trade name "GP General Physics
Corporation" owned by Physics, (ii) two registered trademarks owned by MXL that
are not used in the ongoing business operations of any Obligor or Foreign
Subsidiary, (iii) registered trademarks owned by certain of the Obligors or
Foreign Subsidiaries that relate solely to businesses being terminated, which
trademarks are not used in the ongoing business operations of any Obligor or
Foreign Subsidiary and (iv) the registered trade name "GP" appearing inside an
oval. Except for the registered trade name "GP General Physics Corporation" and
the registered trade name "GP" appearing inside an oval, no registered patent,
registered trademark, registered service xxxx, registered trade name, or
registered copyright, or rights with respect to the foregoing are necessary to
conduct the business of any Obligor or Foreign Subsidiary as now conducted or as
proposed to be conducted.
4.21 Material Subsidiaries.
Each Material Subsidiary is either an Obligor or a Foreign
Subsidiary and is listed on Schedule 4.21 hereto.
5. CONDITIONS TO EFFECTIVENESS OF SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
The conditions precedent fulfilled in connection with the obligation of
each Lender to extend credit under the Existing Credit Agreement are set forth
in Section 5 of the Existing Credit Agreement and the Parent, the Agent and each
of the Lenders has copies of the documents referred to in such Section 5. In
addition to the conditions precedent set forth in Section 6 herein, the
effectiveness of this Agreement as an amendment and restatement of the Existing
Credit Agreement, and the obligation of each Lender to make Loans or the Issuing
Bank to issue Letters of Credit in connection herewith and the Lenders to
participate therein, shall be subject to the fulfillment of the following
conditions precedent:
5.1 Evidence of Action
The Agent shall have received a certificate, dated the Closing
Date, of the Secretary or Assistant Secretary or other analogous counterpart of
each Obligor (i) attaching a true and complete copy of the resolutions of its
Managing Person and of all documents evidencing all necessary corporate,
partnership or similar action (in form and substance satisfactory to the Agent)
taken by it to authorize the Loan Documents to which it is a party and the
transactions contemplated thereby, (ii) attaching a true and complete copy of
its Organizational Documents (or a certificate of an authorized officer that the
Organizational Documents have not changed from those provided in connection with
the Original Agreement, (iii) setting forth the incumbency of its officer or
officers or other analogous counterpart who may sign the Loan Documents,
including therein a signature specimen of such officer or officers and (iv)
attaching a certificate of good standing of the appropriate Governmental
Authority of the jurisdiction of its formation and of each other jurisdiction in
which it is qualified to do business, except, in the case of such other
jurisdiction, when the failure to be in good standing in such jurisdiction could
not have a Material Adverse Effect.
5.2 This Agreement
The Agent shall have received counterparts of this Agreement signed
by each of the parties hereto (or receipt by the Agent from a party hereto of a
telecopy signature page signed by such party which shall have agreed to promptly
provide the Agent with originally executed counterparts hereof).
5.3 Notes; Letter of Credit Documents
(i) The Agent shall have received the Revolving Credit Notes and
the Swing Line Note, duly executed by an Authorized Signatory of the Borrowers
and (ii) the Agent and the Issuing Bank shall have received a Reimbursement
Agreement, each duly executed by an Authorized Signatory of Parent.
5.4 Absence of Litigation
There shall be no injunction, writ, preliminary restraining order
or other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for in the Loan Documents and no action or
proceeding by or before any Governmental Authority has been commenced and is
pending or, to the knowledge of the Borrowers, threatened, seeking to prevent or
delay the transactions contemplated by the Loan Documents or challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith, and the Agent shall have received a certificate, in all
respects satisfactory to the Agent, of an executive officer of the Parent to the
foregoing effects.
5.5 Approvals and Consents
All approvals and consents of all Persons required to be obtained
in connection with the consummation of the transactions contemplated by the Loan
Documents shall have been obtained and shall be in full force and effect, and
all required notices have been given and all required waiting periods shall have
expired and the Agent shall have received a certificate, in all respects
satisfactory to the Agent, of an executive officer of the Parent to the
foregoing effects.
5.6 Absence of Material Adverse Change
No material adverse change in the business, assets, liabilities,
financial condition or results of operations of the Borrowers has occurred since
the filing with the SEC of Parent's Form 10-Q for the Fiscal Quarter ending
September 30, 2001 and the Agent shall have received a certificate, in all
respects satisfactory to the Agent, of an executive officer of the Parent to the
foregoing effect.
5.7 Financial Officer's Certificate
The Agent shall have received a certificate of a Financial Officer
of the Borrowers, dated the Closing Date, in all respects satisfactory to the
Agent certifying that with respect to all extensions of credit outstanding as of
the Closing Date, to the best knowledge of each such Financial Officer, the
Borrowers are and will be Solvent and the Borrowers together with each Obligor
and each Foreign Subsidiary are Solvent.
5.8 Check-the-Box Status
GP (UK) shall be deemed to have obtained Check-the-Box Status.
5.9 Opinion of Counsel to the Borrowers and their Subsidiaries
The Agent shall have received opinions from Xxxxxx, Xxxxx & Bockius
LLP as (i) special New York counsel to the Borrowers and the domestic Obligors,
(ii) special English counsel to GP (UK) and (iii) special Real Estate counsel to
the Obligors. Each opinion shall be addressed to the Agent and the Lenders, and
shall be dated the Closing Date, and shall be substantially in the forms of
Exhibits F-1, F-2 and F-3 hereto. It is understood that such opinions are being
delivered to the Agent and the Lenders upon the direction of the Borrowers and
their Subsidiaries and that the Agent and the Lenders may and will rely on such
opinions.
5.10 Previous Information
All of the information provided by or on behalf of the Borrowers or
any of their Subsidiaries to the Agent and/or the Lenders prior to their
commitment to extend credit to the Borrowers (the "Pre-Commitment Information")
shall be true and correct in all material aspects; and no development or change
shall have occurred, and no additional information shall have come to the
attention of the Agent or any Lender, that (i) has resulted in or could
reasonably be expected to result in a material change in, or material deviation
from, the Pre-Commitment Information or (ii) has had or could reasonably be
expected to have a Material Adverse Effect.
5.11 Borrowers Security Agreement; Subordination Agreement; Subsidiary
Guaranty and Security Agreement and Related Matters
(a) The Agent shall have received a Second Amended and Restated
Borrowers Security Agreement substantially in the form of Exhibit H hereto, duly
executed, by an Authorized Signatory of each of the Borrowers and dated the
Closing Date together with (i) executed notices required by the Borrowers
Security Agreement to comply with the Federal Assignment of Claims Act and
relevant provincial legislation to the extent not heretofore provided, (ii) one
or more share certificates (or a "control agreement" in form and substance
satisfactory to the Agent with respect thereto), representing (x) all of the
issued and outstanding Capital Stock of each Subsidiary Guarantor and all of the
issued and outstanding Capital Stock owned by the Parent in respect of (A) Hydro
Med Sciences, Inc. and (B) any and every other Person (unless the applicable
share certificate is already in the possession of the Agent or a "control"
agreement satisfactory to the Agent has theretofore been fully executed and
delivered to the Agent with respect to such shares), (y) 100% of all the issued
and outstanding Capital Stock owned by the Borrowers in respect of GP (UK) and
each Foreign Subsidiary that is a Material Subsidiary that has Check-the-Box
Status (unless the applicable share certificate is already in the possession of
the Agent with respect to such shares), and (z) 65% of all of the issued and
outstanding Capital Stock owned by the Borrowers in respect of each Foreign
Subsidiary that is a Material Subsidiary (unless the applicable share
certificate is already in the possession of the Agent with respect to such
shares), together, in each case, with an undated stock power, executed in blank
by an Authorized Signatory of the owner of such Capital Stock, in respect of
each such certificate, (iii) such UCC Financing Statements (or other comparable
documents with respect to Collateral located outside of the United States),
executed by the Parent and Physics, as required, as shall be reasonably
requested by the Agent in order to perfect the security interest in any
collateral security granted under its Borrowers Security Agreement, (iv) a
Federal Reserve Form U-1 in form and substance satisfactory to the Agent
executed by each pledgor of Capital Stock, (v) each Intercompany Demand Note
payable to the Borrowers, duly executed by the applicable Foreign Subsidiary and
duly endorsed in blank by Parent to the Agent, the originals of each of the
Intercompany Demand Documents and assignments of financing statements (or other
similar mechanism required to perfect security interests under applicable law)
from the Borrowers to the Agent and (vi) such other documents as the Agent may
require in connection with the perfection of its security interests therein.
(b) (i) Each Obligor shall have executed an amended and restated
subordination agreement in favor of the Agent in substantially the form of
Exhibit K-1 hereto providing for the subordination of all obligations to the
other Obligors to the Obligations (the "Subordination Agreement"), (ii) Parent
and Physics shall have executed an amended and restated Subordination Agreement
in favor of the Agent in substantially the form of Exhibit K-2 hereto relating
to the 6% Subordinated Debentures Due 2004 dated as of August 31, 1994 issued by
Physics (including non-payment of such obligations at all times) to the Parent
Obligations and (iii) SGLG, Inc. and Physics shall have executed an amended and
restated Subordination Agreement in favor of the Agent in substantially the form
of Exhibit K-3 hereto providing for the subordination of Physics obligations to
SGLG, Inc. (including non-payment of such obligations at all times, except
payments of $50,000 in each three-month period may be made in certain
circumstances set forth therein) to the Obligations.
(c) The Agent shall have received a Subsidiary Guaranty and
Security Agreement substantially in the form of Exhibit I hereto, duly executed
by an Authorized Signatory of each Subsidiary Guarantor together with (i)
executed notices required by the Subsidiary Guaranty and Security Agreement to
comply with the Federal Assignment of Claims Act and the Financial
Administration Act (Canada) and relevant provincial legislation to the extent
not heretofore provided, (ii) one or more share certificates (or a "control
agreement" in form and substance satisfactory to the Agent with respect
thereto), representing (x) all of the issued and outstanding Capital Stock owned
by any and/or each Subsidiary of the Borrowers in respect of (A) Hydro Med
Sciences, Inc. and (B) any and every other Person (unless the applicable share
certificate is already in the possession of the Agent or a "control" agreement
satisfactory to the Agent has theretofore been fully executed and delivered to
the Agent with respect to such shares), (y) 100% of all the issued and
outstanding Capital Stock owned by the Borrowers in respect of GP (UK) and each
Foreign Subsidiary that is a Material Subsidiary that has Check-the-Box Status
(unless the applicable share certificate is already in the possession of the
Agent with respect to such shares), and (z) 65% of all of the issued and
outstanding Capital Stock owned by the Borrowers in respect of each Foreign
Subsidiary that is a Material Subsidiary (unless the applicable share
certificate is already in the possession of the Agent with respect to such
shares), together, in each case, with an undated stock power, executed in blank
by an Authorized Signatory of the owner of such Capital Stock, in respect of
each such certificate, (iii) such UCC Financing Statements, executed by each
Subsidiary Guarantor where required, as shall be reasonably requested by the
Agent in order to perfect the security interest in any collateral security
granted under the Subsidiary Guaranty and Security Agreement, (iv) each
Intercompany Demand Note payable to a Subsidiary, duly executed by the
applicable Foreign Subsidiary and duly endorsed in blank by such Subsidiary to
the Agent, the originals of each of the Intercompany Demand Documents and
assignments of financing statements (or other similar mechanism required to
perfect security interests under applicable law) from the applicable Subsidiary
to the Agent and (v) a Federal Reserve Form U-1 in form and substance
satisfactory to the Agent executed by each pledgor of Capital Stock and (vi)
such other documents as the Agent may require in connection with the perfection
of its security interests therein.
(d) The Agent shall have received each original promissory note
endorsed to the Agent with respect to all extensions of credit made pursuant to
Section 8.5(k).
(e) The Agent shall have received the Mortgage Amendment relating
to the Pawling Property and the Reservoir Property.
5.12 Search Reports and Related Documents
The Agent shall have received (i) UCC, tax and judgment lien search
reports and other search reports in all respects satisfactory to the Agent with
respect to each applicable public office where Liens are or may be filed
disclosing that there are no Liens of record in such official's office covering
any Property of the Borrowers or any of the Material Subsidiaries or showing the
Borrowers or Material Subsidiary as debtor thereunder (other than Permitted
Liens) and (ii) a certificate of the Parent signed by an Authorized Signatory
thereof, dated the first Borrowing Date, certifying that, upon the making of
Loans and the issuance of Letters of Credit on the first Borrowing Date, there
will exist no Liens on any Property of the Borrowers or any Material Subsidiary
other than Permitted Liens.
5.13 Borrowing Base Certificate
The Agent shall have received the initial Borrowing Base
Certificate, dated the Closing Date, and the sum of the Credit Exposure shall
not exceed the Borrowing Base as reflected in such Borrowing Base Certificate;
provided, that, the information set forth in such Borrowing Base Certificate
with respect to (i) Eligible Securities Collateral shall be based on the fair
market value of the applicable Eligible Securities Collateral as at a date that
is not more than three Business Days prior to the Closing Date and (ii) Eligible
Real Estate shall be based on the Aggregate Appraisal Value by Valuation
Consultant, Inc. that is not more than $4,340,000 prior to the Closing Date.
5.14 Property, Public Liability and Other Insurance
The Agent shall have received (A) copies of, or certificates of the
brokers with respect to, each policy of insurance owned by the Borrowers or a
Subsidiary Guarantor in form and substance satisfactory to the Agent, naming the
Agent, in its capacity as such, as additional insured and loss payee as its
interests may appear; and (B) evidence of the Borrowers' and Subsidiary
Guarantor's liability insurance policies, each together with the endorsements
required by Section 7.5.
5.15 Fees
All fees and expenses payable to the Agent, the Issuing Bank and
the Lenders on the first Borrowing Date shall have been paid.
5.16 Fees and Expenses of Special Counsel
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.17 Closing Date
The Closing Date shall occur no later than December 21, 2001.
5.18 Charge of Shares; Debenture; Deed of Guarantee and Indemnity and
Related Matters.
The Agent shall have received a Charge of Shares, Debenture and
Deed of Guarantee and Indemnity, each substantially in the form of Exhibit M,
Exhibit N and Exhibit O, respectively hereto, duly executed, by an Authorized
Signatory of each of Physics and GP (UK), as the case may be, and dated the
Closing Date together with (i) all of the issued and outstanding Capital Stock
of each GP (UK), together, with an undated stock power, executed in blank by an
Authorized Signatory of Physics as owner of such Capital Stock, in respect of
each such certificate, and (ii) such other documents as the Agent may require in
connection with the perfection of its security interests therein.
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
The obligation of each Lender to make any Loan or the Issuing Bank to
issue any Letter of Credit on a Borrowing Date and each Lender to participate
therein is subject to the satisfaction of the following conditions precedent as
of the date of such Loan or the issuance of such Letter of Credit, as the case
may be:
6.1 Compliance
On each Borrowing Date and after giving effect to the Loans to be
made and the Letters of Credit to be issued thereon (i) there shall exist no
Default or Event of Default, (ii) the representations and warranties contained
in the Loan Documents shall be true and correct with the same effect as though
such representations and warranties had been made on such Borrowing Date, except
to the extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall have been
true and correct on and as of such earlier date, and (iii) each Obligor and each
Foreign Subsidiary shall be in compliance with all of the terms, covenants and
conditions of the Loan Documents to which it is a party. Each borrowing
(including with respect to Swing Line Loans) by the Borrowers and each request
by the Borrowers for the issuance of a Letter of Credit shall constitute a
certification by the Borrowers as of such Borrowing Date that each of the
foregoing matters is true and correct in all respects.
6.2 Borrowing Request; Letter of Credit Request; Compliance with
Borrowing Base
With respect to the Revolving Credit Loans and Swing Line Loans to
be made, and the Letters of Credit to be issued, (i) on each Borrowing Date, the
Agent shall have received, (a) in the case of Revolving Credit Loans and Swing
Line Loans, a Borrowing Request, (b) in the case of Letters of Credit, a Letter
of Credit Request and an application with respect to the Letter of Credit
requested, (c) in the case of Swing Line Loans, telephonic notice (followed by a
Borrowing Request) in accordance with Section 2.3(b) herein and (d) in each
case, an Updated Borrowing Base Certificate, in each case duly executed by an
Authorized Signatory of the Borrowers and (ii) after giving effect to the
Revolving Credit Loan(s) to be made and/or the Letter(s) of Credit to be issued,
the Credit Exposure does not exceed the lesser of (i) the then existing
Borrowing Base and (ii) the Revolving Loan Commitment Amount as reflected in the
updated Borrowing Base Certificate.
6.3 Certain Documents
All documents required by the provisions of the Loan Documents to
be executed or delivered to the Agent or any Lender on or before the applicable
Borrowing Date shall have been so executed and delivered on or before such
Borrowing Date.
6.4 Other Documents
Each of the Agent, the Issuing Bank, and the Lenders shall have
received such other documents, each in form and substance reasonably
satisfactory to it, as it shall reasonably require in connection with the making
of the Loans and the issuance of the Letters of Credit on such Borrowing Date.
7. AFFIRMATIVE COVENANTS
Each Borrower agrees, jointly and severally, that, so long as this
Agreement is in effect, any Loan or Reimbursement Obligation (contingent or
otherwise) in respect of any Letter of Credit remains outstanding and unpaid, or
any other amount is owing under any Loan Document to any Lender, the Issuing
Bank or the Agent, the Borrowers shall:
7.1 Financial Statements and Information
Maintain, and cause each of its Subsidiaries to maintain, a
standard system of accounting in accordance with GAAP, and furnish or cause to
be furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 105 days after
the end of each Fiscal Year, a copy of the Parent's Consolidated and
Consolidating Balance Sheets as at the end of such Fiscal Year, together with
the related Consolidated and Consolidating Statements of Operations and
Stockholders' Equity and Consolidated Cash Flows as of and through the end of
such Fiscal Year, setting forth in each case in comparative form the figures for
the preceding Fiscal Year. The Consolidated Balance Sheets and Consolidated
Statements of Operations, Stockholders' Equity and Cash Flows (as well as like
separate consolidated Balance Sheets and Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows of Physics) shall be audited and certified
without qualification by the Accountants, which certification shall (i) state
that the examination by such Accountants in connection with such Consolidated
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, included such tests of the accounting
records and such other auditing procedures as were considered necessary in the
circumstances, and (ii) include the opinion of such Accountants that such
Consolidated financial statements have been prepared in accordance with GAAP in
a manner consistent with prior fiscal periods, except as otherwise specified in
such opinion. The Consolidating Balance Sheets and Consolidating Statements of
Operations, Stockholders' Equity and Cash Flows shall be certified by a
Financial Officer of the Parent, as being complete and correct in all material
respects and as presenting fairly the Consolidating financial condition and the
Consolidating results of operations of the Parent and its Subsidiaries.
Notwithstanding any of the foregoing, the Parent may satisfy its obligation to
furnish Consolidated Balance Sheets and Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows by furnishing copies of the Parent's annual
report on Form 10-K in respect of such Fiscal Year, together with the financial
statements required to be attached thereto, provided the Parent is required to
file such annual report on Form 10-K with the SEC and such filing is actually
made.
(b) As soon as available, but in any event within 50 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a copy of
the Consolidated and Consolidating Balance Sheets of the Parent and its
Consolidated Subsidiaries as at the end of each such quarterly period, together
with the related Consolidated and Consolidating Statements of Operations and
Consolidated Statement of Cash Flows for such period and for the elapsed portion
of the Fiscal Year through such date, setting forth in each case in comparative
form the figures for the corresponding periods of the preceding Fiscal Year,
certified by a Financial Officer of the Parent, as being complete and correct in
all material respects and as presenting fairly the Consolidated and
Consolidating financial condition and the Consolidated and Consolidating results
of operations of the Parent and its Subsidiaries. Notwithstanding any of the
foregoing, the Parent may satisfy its obligation to furnish quarterly
Consolidated Balance Sheets and Consolidated Statement of Operations and Cash
Flows by furnishing copies of the Parent's quarterly report on Form 10-Q in
respect of such Fiscal Quarter, together with the financial statements required
to be attached thereto, provided the Parent is required to file such quarterly
report on Form 10-Q with the SEC and such filing is actually made.
(c) Within 50 days after the end of each of the first three Fiscal
Quarters (105 days after the end of the last Fiscal Quarter), a Compliance
Certificate, certified by a Financial Officer of the Parent.
(d) As soon as available, but not later than 30 days after the last
day of each Fiscal Year, budgets for the Parent and its Subsidiaries for the
coming Fiscal Year, in form and substance reasonably satisfactory to the Agent.
(e) Monthly, and not later than the 25th day following the last day
of each month, (i) with respect to the Parent and its Subsidiaries, separate
accounts receivable aging reports for the Borrowers, GP Canada, GP (UK) and MXL
as of the last day of the immediately preceding month, in form and substance
reasonably satisfactory to the Agent, (ii) a certification as to the outstanding
principal balance of each Intercompany Demand Note as of the last day of the
immediately preceding month, (iii) a Borrowing Base Certificate together with
statements of accounts payable as of the last day of the immediately preceding
month, (iv) a report in a format satisfactory to the Agent comparing the actual
results of Physics, GP Canada, GP (UK) and MXL, each separately, against its
respective projections, both for the immediately preceding month and for the
year to date and (v) separate internally prepared financial statements of
Physics, GP Canada, GP (UK) and MXL.
(f) Not less than one and not more than three days prior to each
Borrowing Date, an Updated Borrowing Base Certificate.
(g) Not less than one and not more than three days prior to each
Covered Event, an Updated Borrowing Base Certificate giving effect to the
transactions contemplated by such Covered Event.
(h) Within 25 days of the last day of each Fiscal Quarter, a report
in a format satisfactory to the Agent comparing Parent's actual results against
its projections (on a consolidated and consolidating basis), both for such
immediately preceding Fiscal Quarter and for the year to date.
(i) Such other information as the Agent or any Lender may
reasonably request from time to time.
7.2 Certificates; Other Information
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the Parent or
any of its Subsidiaries in an aggregate amount in excess of $500,000 is declared
or shall become due and payable prior to its stated maturity, or is called and
not paid when due, (ii) a default shall have occurred under any note (other than
the Notes), certificate, security or other evidence of Indebtedness in an
aggregate amount in excess of $500,000, or the holder or obligee of any note
(other than the Notes), certificate, security or other evidence of Indebtedness,
with respect to any other Indebtedness of the Parent or any of its Subsidiaries
has the right to declare Indebtedness in an aggregate amount in excess of
$500,000 due and payable prior to its stated maturity, (iii) there shall occur
and be continuing a Default or an Event of Default or (iv) a Change in Control
should occur;
(b) Prompt written notice of: (i) any citation, summons, subpoena,
order to show cause or other document naming the Parent or any of its
Subsidiaries a party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect or which calls
into question the validity or enforceability of any of the Loan Documents, and
include with such notice a copy of such citation, summons, subpoena, order to
show cause or other document, and (ii)(A) any lapse or other termination of any
material license, permit, franchise or other authorization issued to the Parent
or any of its Subsidiaries by any Person or Governmental Authority, and (B) any
refusal by any Person or Governmental Authority to renew or extend any such
material license, permit, franchise or other authorization, which lapse,
termination, refusal or dispute could reasonably be expected to have a Material
Adverse Effect;
(c) Promptly upon becoming available, copies of all (i)
registration statements, regular, periodic or special reports, schedules and
other material which the Parent or any of its Subsidiaries may now or hereafter
be required to file with or deliver to any securities exchange or the SEC, and
(ii) material news releases and annual reports relating to the Parent or any of
its Subsidiaries;
(d) Prompt written notice in the event that the Parent, any of its
Subsidiaries or any ERISA Affiliate knows, or has reason to know, that (i) any
Termination Event with respect to a Pension Plan has occurred or will occur,
(ii) any condition exists with respect to a Pension Plan which presents a
material risk of termination of the Pension Plan, imposition of an excise tax,
requirement to provide security to the Pension Plan or other liability on the
Parent, any of its Subsidiaries or any ERISA Affiliate, (iii) the Parent, any of
its Subsidiaries or any ERISA Affiliate has applied for a waiver of the minimum
funding standard under Section 412 of the Code with respect to a Pension Plan,
(iv) the aggregate amount of the Unfunded Pension Liabilities under all Pension
Plans is in excess of $1,000,000, (v) the aggregate amount of Unrecognized
Retiree Welfare Liability under all applicable Employee Benefit Plans is in
excess of $1,000,000, (vi) the Parent, any of its Subsidiaries or any ERISA
Affiliate has engaged in a Prohibited Transaction with respect to an Employee
Benefit Plan, (vii) the imposition of any tax under Section 4980B(a) of the Code
or (viii) the assessment of a civil penalty under Section 502(c) of ERISA,
together with a certificate of a Financial Officer of the Parent setting forth
the details of such event and the action which the Parent, such Subsidiary or
such ERISA Affiliate proposes to take with respect thereto, together with a copy
of all notices and filings with respect thereto, and which in the case of
clauses (vi) through (viii) could reasonably be expected to have a Material
Adverse Effect.
(e) Prompt written notice in the event that the Parent, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying the Parent, such Subsidiary or such ERISA Affiliate of any final
decision finding liability and the date by which such liability must be paid,
together with a copy of such letter and a certificate of a Financial Officer of
the Parent setting forth the action which the Parent, such Subsidiary or such
ERISA Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in any event by
the date such amendment is adopted, a copy of any Pension Plan amendment that
the Parent, any of its Subsidiaries or any ERISA Affiliate proposes to adopt
which would require the posting of security under Section 401(a)(29) of the
Code, together with a certificate of a Financial Officer of the Parent setting
forth the reasons for the adoption of such amendment and the action which the
Parent, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto.
(g) As soon as possible and in any event by the tenth day after any
required installment or other payment under Section 412 of the Code owed to a
Pension Plan shall have become due and owing and remain unpaid a copy of the
notice of failure to make required contributions provided to the PBGC by the
Parent, any of its Subsidiaries or any ERISA Affiliate under Section 412(n) of
the Code, together with a certificate of a Financial Officer setting forth the
action which the Parent, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
(h) Promptly upon the same becoming available, and in any event by
15th day of each month, (i) a listing of all Government Receivables created
since the last such report provided and (ii) a duly executed Confirmatory
Assignment of Contract and Notice of Assignment of Accounts Receivable as
Security, substantially in the form of Exhibit A and Exhibit B, respectively, to
the Subsidiary Guaranty and Security Agreement and the Borrowers Security
Agreement.
(i) Prompt written notice of any change in the budgets furnished
pursuant to Section 7.1(d) with respect to any Fiscal Year subsequent to Fiscal
Year 2001.
(j) Promptly after completed, consolidated projections prepared, as
revised from time to time, with respect to the Obligors; provided, that, if
consolidating projections are prepared with respect to any Obligor (which
preparation shall be in the sole discretion of the Obligors), then such
projections shall also be furnished to the Agent promptly after completed.
(k) Such other information as the Agent or any Lender shall
reasonably request from time to time.
7.3 Legal Existence
Except as may otherwise be permitted by Sections 8.3 and 8.4,
maintain, and cause each Obligor and each of its Foreign Subsidiaries to
maintain, its corporate, partnership or analogous existence, as the case may be,
in good standing in the jurisdiction of its incorporation or formation and in
each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect.
7.4 Taxes
Pay and discharge when due, and cause each Obligor and each of its
Foreign Subsidiaries so to do, all Taxes upon or with respect to the Borrowers,
any Obligor and any Foreign Subsidiary and all Taxes upon the income, profits
and Property of the Borrowers, any Obligor and any Foreign Subsidiary, which if
unpaid, could reasonably be expected to have a Material Adverse Effect or become
a Lien on Property of any Borrower, any Obligor and any Foreign Subsidiary
(other than a Lien described in Section 8.2(i)), unless and to the extent only
that such Taxes shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrowers, the applicable Obligor or the Foreign
Subsidiary and provided that any such contested Tax shall not constitute, or
create, a Lien on any Property of any Borrower, any Obligor and any Foreign
Subsidiary senior to the Liens, if any, granted to the Agent and the Lenders by
the Collateral Documents on such Property, and, provided further, that the
Borrowers, the applicable Obligor and the applicable Foreign Subsidiary shall
give the Agent prompt notice of such contest and that such reserve or other
appropriate provision as shall be required by the Accountants in accordance with
GAAP shall have been made therefor.
7.5 Insurance
(a) Insurance. Maintain, and cause each Obligor and each of the
Foreign Subsidiaries to maintain, insurance with financially sound insurance
carriers on such of its Property, against at least such risks, and in at least
such amounts, as are usually insured against by similar businesses, including
public liability (bodily injury and property damage), fidelity, business
interruption, and workers' compensation with deductibles which are customary for
companies engaged in similar businesses, and which, in the case of property
insurance, shall be (i) in amounts sufficient to prevent such Borrower or such
Subsidiary from becoming a co-insurer, and (ii) against all risks; and file with
the Agent within ten days after request therefor a detailed list of such
insurance then in effect, stating the names of the carriers thereof, the policy
numbers, the insureds thereunder, the amounts of insurance, dates of expiration
thereof, and the Property and risks covered thereby, together with a certificate
of the Financial Officer (or such other officer as shall be acceptable to the
Agent) of each Borrower certifying that in the opinion of such officer such
insurance is adequate in nature and amount, complies with the obligations of
such Borrower under this Section, and is in full force and effect.
(b) Insurance Covering Collateral. Promptly upon request therefor,
deliver or cause to be delivered to the Agent originals or duplicate originals
of all such policies of insurance covering the Collateral. All such insurance
policies in respect of property insurance and business interruption insurance
shall contain a standard loss payable clause and shall be endorsed to provide
that, in respect of the interests of the Agent, the Issuing Bank, and the
Lenders: (i) the Agent shall be an additional insured, (ii) 30 days' prior
written notice of any cancellation, reduction of amounts payable, or any changes
and amendments shall be given to the Agent, and (iii) the Agent shall have the
right, but not the obligation, to pay any premiums due or to acquire other such
insurance upon the failure of such Borrower or such Subsidiary to pay the same
or to so insure. All property insurance policies shall name the Agent as sole
loss payee in respect of each claim relating to the Collateral and resulting in
a payment under any such insurance policy exceeding $1,000,000. Provided that no
Default or Event of Default shall exist, the Agent agrees, promptly upon its
receipt thereof, to pay over to the Borrowers, the applicable Obligor or the
applicable Foreign Subsidiary that owns the applicable Property the proceeds of
such payment to enable the Borrowers, the applicable Obligor or the applicable
Foreign Subsidiary to repair, restore or replace the Property subject to such
claim. To the extent that such the Borrowers, any Obligor or the Foreign
Subsidiary fails to repair, restore or replace such Property subject to a claim,
an amount equal to such proceeds shall be immediately applied as a permanent
reduction of the Revolving Loan Commitment Amount pursuant to Section 2.4(b). If
a Default or Event of Default shall then exist, the Agent shall (i) hold the
proceeds of such payment as Collateral until such Default or Event of Default
shall no longer exist and then pay over the same to the Borrowers or Obligor to
enable the Borrowers or Obligor to repair, restore or replace or cause to be
repaired, restored or replaced the Property subject to the claim which resulted
in such payment or (ii) hold such proceeds as Collateral and apply the same to
the obligations of the Borrowers or Obligor under the Loan Documents in such
order, in such amounts and at such times as the Agent, with the consent of
Required Lenders, shall decide.
(c) Concurrent Insurance. Neither the Parent nor any of its
Subsidiaries shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to subsection (b) above unless the Agent has approved the carrier and the form
and content of the insurance policy, including naming the Agent as an additional
insured and sole loss payee thereunder.
7.6 Performance of Obligations
Pay and discharge when due, and cause each Obligor and each of the
Foreign Subsidiaries so to do, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, could
reasonably be expected to (i) have a Material Adverse Effect, or (ii) become a
Lien upon Property of the Parent, any Obligor, or any of the Foreign
Subsidiaries other than a Permitted Lien, unless and to the extent only that the
validity of such Indebtedness, obligation or claim shall be contested in good
faith and by appropriate proceedings diligently conducted and that any such
contested Indebtedness, obligations or claims shall not constitute, or create, a
Lien on any Property of the Borrower, any Obligor, or any of the Foreign
Subsidiaries senior to the Lien, if any, granted to the Agent under the
Collateral Documents on such Property, and provided that the Borrowers, Obligor
or Foreign Subsidiary shall give the Agent prompt notice of any such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.7 Condition of Property
At all times, maintain, protect and keep in good repair, working
order and condition (ordinary wear and tear excepted), and cause each of the
Obligors and Foreign Subsidiaries so to do, all Property necessary to the
operation of any Obligor's or such Foreign Subsidiary's business.
7.8 Observance of Legal Requirements
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time hereafter
may be applicable to it, a violation of which could reasonably be expected to
have a Material Adverse Effect, except such thereof as shall be contested in
good faith and by appropriate proceedings diligently conducted by it, provided
that each Borrower shall give the Agent prompt notice of such contest and that
such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.9 Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice, at the
Lenders' expense (unless a Default or an Event of Default has occurred and is
continuing in which case it shall be at the Borrowers' expense) permit
representatives of the Agent and each Lender to visit the offices of each
Borrower, each other Obligor and each Foreign Subsidiary, to examine the books
and records thereof and Accountants' reports relating thereto, and to make
copies or extracts therefrom, to discuss the affairs of each Borrower, each
other Obligor and each Foreign Subsidiary with the respective officers thereof,
and to examine and inspect the Property of each Borrower, each other Obligor and
each Foreign Subsidiary and to meet and discuss the affairs of each Borrower,
each other Obligor and each Foreign Subsidiary with the Accountants.
7.10 Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in full
force and effect, all material licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business.
7.11 Financial Covenants
(a) Fixed Charge Coverage Ratio. Maintain as of the last day of
each Reference Period set forth below a Fixed Charge Coverage Ratio in a
proportion not less than that set forth below opposite each such Fiscal Quarter:
Reference Period Ratio
---------------- -----
12/31/01 - 9/30/02 1.45:1.00
12/31/02 and thereafter 1.50:1.00
(b) Leverage Ratio. Maintain as of the last day of each Reference
Period set forth below, a Leverage Ratio in a proportion not greater than the
ratios set forth below opposite each such Fiscal Quarter:
Reference Period Ratio
---------------- -----
12/31/01 - 9/30/02 3.00:1.00
12/31/02 -9/30/02 2.50:1.00
12/31/03 and thereafter 2.25:1.00
(c) Minimum Consolidated Net Worth. Maintain at all times as of the
last day of each Fiscal Quarter, Consolidated Net Worth in an amount not less
than the Minimum Net Worth Amount for such Fiscal Quarter.
(d) Interest Coverage Ratio. Maintain as of the last day of each
Reference Period set forth below an Interest Coverage Ratio in a proportion not
less than set forth opposite such Fiscal Quarter:
Reference Period Ratio
---------------- -----
12/31/01 - 9/30/02 2.90:1.00
12/31/02 - 9/30/03 3.50:1.00
12/31/03 and thereafter 3.75:1.00
7.12 Additional Subsidiaries
Not allow any Subsidiary to be acquired or established by any
Obligor after the Closing Date without the prior written consent of the Agent
and the Required Lenders and to the extent such consent is furnished, the Parent
shall:
(i) On or prior to each date hereafter upon which a Person shall
have become a Material Subsidiary of the Parent, (a) deliver such certificates,
stock powers and other documents as would be required by Section 5.11(a)(ii)
and/or Section 5.11(c)(ii) as if such Material Subsidiary were a Material
Subsidiary as of the first Borrowing Date or as otherwise may be required hereby
and/or by the Borrowers Security Agreement and/or by the Subsidiary Guaranty and
Security Agreement and such other documents as the Agent shall request;
provided, that, to the extent such new Material Subsidiary is not a Subsidiary
of a Obligor, the owner of the Capital Stock of such new Material Subsidiary
shall execute all documentation reasonably requested by the Agent in order to
effect the pledge to the Agent, for the ratable benefit of the Lenders, of (A)
100% of the issued and outstanding Capital Stock of such new Material Subsidiary
to the extent it is a Domestic Subsidiary or a Foreign Subsidiary that has
Check-the-Box Status and (B) 65% of the issued and outstanding Capital Stock of
such new Material Subsidiary to the extent it is a Foreign Subsidiary that is
not does not have Check-the Box Status, (b) cause each such Material Subsidiary
that is a Domestic Subsidiary to become a party to the Subsidiary Guaranty and
Security Agreement and provide and execute all documents requested by the Agent
to perfect a Lien in Collateral granted thereunder (to the extent such Material
Subsidiary owns Property of the type described as Collateral in such Subsidiary
Guaranty and Security Agreement) and (c) cause each such Material Subsidiary
that is not a Domestic Subsidiary to execute an Intercompany Demand Note to the
order of the Parent or a Subsidiary of the Parent, as the case may be, shall
endorse such note in blank and deliver same, together with any related
Intercompany Demand Loan Documents, to the Agent (for the ratable benefit of the
Lenders), together with all of the other documents necessary to perfect the
Agent's first Lien therein.
(ii) On or prior to each date hereafter upon which two or more
Subsidiaries (which are not individually Material Subsidiaries) hold 15% or more
of the Consolidated assets of the Parent or account for more than 15% of the
Consolidated EBIDTA, as shown on the most recently delivered financial
statements of the Parent and its Subsidiaries (a) deliver such certificates,
stock powers and other documents as would be required by Section 5.11(a)(ii)
and/or Section 5.11(c)(ii) as if one or more such Subsidiaries were a Material
Subsidiary as of the first Borrowing Date or as otherwise may be required hereby
and/or by the Borrowers Security Agreement and/or by the Subsidiary Guaranty and
Security Agreement and such other documents as the Agent shall request, (b)
cause one or more of such Subsidiaries that is a Domestic Subsidiary to become a
party to the Subsidiary Guaranty and Security Agreement and provide and execute
all documents requested by the Agent to perfect a Lien in Collateral granted
thereunder (to the extent such Material Subsidiary owns Property of the type
described as Collateral in such Subsidiary Guaranty and Security Agreement) and
(c) cause one or more of such Subsidiaries that is not a Domestic Subsidiary to
execute an Intercompany Demand Note to the order of the Parent or a Subsidiary
of the Parent and the Parent, or its Subsidiary, as the case may be, shall
endorse such note in blank and deliver same, together with any related
Intercompany Demand Loan Documents, to the Agent (for the ratable benefit of the
Lenders), together with all of the other documents necessary to perfect the
Agent's first Lien therein so that, after the delivery of the documents and
other items required under sub-sections (i), (ii) and (iii), not more than 10%
of the Consolidated assets of the Parent is held by, and not more than 10% of
the Consolidated EBITDA is attributable to any two or more Subsidiaries which
are not Material Subsidiaries.
7.13 Mortgages
Within 30 days after the acquisition by the Parent or any of its
Subsidiaries of any real property owned in fee with a value in excess of
$100,000, the Parent or such Subsidiary shall take all steps necessary, at their
own cost and expense, to (a) grant the Agent a first priority mortgage Lien on
such real property, fixtures and buildings and improvements thereon and (b)
obtain title insurance coverage on such property in an amount, containing such
terms and exceptions and issued by an insurance company, acceptable to the Agent
in the Agent's reasonable discretion (together with such favorable legal
opinions with respect thereto as the Agent may reasonably request).
7.14 Title Reports; Appraisals
(a) The Borrowers shall take all reasonable action requested by the
Agent and (i) cooperate fully with the Agent in order to enable the Agent to
procure an amended title report from a title company reasonably satisfactory to
the Agent with respect to each property covered by a Mortgage (other than the
Reservoir Property) and (ii) in respect of any Real Estate constituting Eligible
Real Estate, deliver to the Agent an Appraisal prior to the Appraisal Date, and,
with respect to any additional Real Estate to be included as Eligible Real
Estate, an Appraisal, in form and substance satisfactory to the Agent (together
with an updated Schedule 1.1) no less than ten (10) days prior to any Borrowing
Date on which such Property is to be included as Eligible Real Estate.
(b) The Borrowers shall deliver to the Agent on or prior to 30 days
after the Closing Date a new Appraisal covering the Eligible Real Estate (to the
extent such properties are still owned by an Obligor), each in form and
substance satisfactory to the Agent.
(c) The Borrowers shall take all other reasonable action required
by the Agent to enable the Agent to determine the Aggregate Appraisal Value.
8. NEGATIVE COVENANTS
Each Borrower agrees, jointly and severally, that, so long as this
Agreement is in effect, any Loan or Reimbursement Obligation (contingent or
otherwise) in respect of any Letter of Credit remains outstanding and unpaid, or
any other amount is owing under any Loan Document to any Lender, the Issuing
Bank or the Agent, the Borrowers shall not:
8.1 Indebtedness
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any other Obligor or any Foreign Subsidiary so to do,
except:
(a) Indebtedness of each Borrower to the Lenders and the Agent
under this Agreement and the Loan Documents;
(b) Current liabilities incurred in the ordinary course of business
not incurred through (i) the borrowing of money, or (ii) the obtaining of credit
except for credit on an open account basis customarily extended and in fact
extended in connection with purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor; materials and supplies to the extent
that payment therefor shall not at the time be required to be made;
(d) Indebtedness in respect of judgments or awards that do not
constitute an Event of Default under Section 9.1(j);
(e) Intercompany Indebtedness;
(f) Other unsecured Indebtedness in an aggregate principal amount
not in excess of $500,000 at any one time outstanding;
(g) Indebtedness in respect of deferred liabilities other than for
deferred taxes and other than for borrowed money, including without limitation,
deferred compensation (other than deferred compensation incurred in connection
with the Millennium Cell, Inc. deferred compensation plan in an amount not to
exceed $10,000,000 in the aggregate), provided that the aggregate amount of such
Indebtedness of the Obligors shall not exceed $1,000,000 at any one time
outstanding;
(h) Indebtedness in respect of deferred taxes;
(i) Indebtedness secured by the security interests referred to in
subsection 8.2(viii) hereof and Capitalized Lease Obligations, in each case
incurred only if, after giving effect thereto, the limit on Capital Expenditures
set forth in Section 8.7 hereof would not be breached;
(j) Subordinated Debt;
(k) Indebtedness existing on the date hereof as set forth on
Schedule 8.1 hereto and other Indebtedness described in Schedule 8.1 hereto; and
(l) (i) Contingent Obligations set forth on Schedule 8.1 hereto and renewals,
extensions or replacements of Contingent Obligations set forth on Schedule 8.1
hereto in respect of obligations in amounts not exceeding the amount guaranteed
under the Contingent Obligation set forth in Schedule 8.1; (ii) other Contingent
Obligations if (A) at the time of entering into any such Contingent Obligation,
the Borrowers shall be in compliance with all of the terms and conditions of
this Agreement and (B) the aggregate amount outstanding of all Contingent
Obligations entered into pursuant to this subsection 8.1(l)(ii) (whether
guarantees of payment or performance) shall at no time exceed $1,000,000. For
the purposes hereof, if the Borrowers and/or Material Subsidiary shall have a
Contingent Obligation of the same obligations of another Person, the amount of
only one of such Contingent Obligation shall be counted for purposes of this
Section 8.1(l)(ii), and (iii) Contingent Obligations in respect of the
Indebtedness described in Section 8.1(m).
8.2 Liens
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any other Obligor
or any Foreign Subsidiary so to do, except
(i) Liens for Taxes in the ordinary course of business which are
not delinquent or which are being contested in accordance with Section 7.4,
provided that enforcement of such Liens is stayed pending such contest,
(ii) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA),
(iii) deposits or pledges to secure bids, tenders, contracts (other
than contracts for the payment of money), leases, statutory obligations, surety
and appeal bonds and other obligations of like nature arising in the ordinary
course of business,
(iv) zoning ordinances, easements, rights of way, minor defects,
irregularities, and other similar restrictions affecting real Property which do
not adversely affect the value of such real Property or the financial condition
of the Borrowers or any Subsidiary or impair its use for the operation of the
business of the Borrowers or any Subsidiary,
(v) Liens arising by operation of law such as mechanics',
materialmen's, carriers', warehousemen's liens incurred in the ordinary course
of business which are not delinquent by more than 90 days or which are being
contested in accordance with Section 7.6, provided that enforcement of such
Liens is stayed pending such contest,
(vi) Liens arising out of judgments or decrees which are being
contested in accordance with Section 7.6, provided that enforcement of such
Liens is stayed pending such contest,
(vii) Liens in favor of the Agent and the Lenders under the Loan
Documents and Liens in connection with the Intercompany Demand Loan Documents,
(viii) Liens under other capital leases and Liens on Property
(including, in the event such Property constitutes capital stock of a newly
acquired Subsidiary, Liens on the Property of such Subsidiary) acquired by any
Borrower or a Material Subsidiary after the Effective Date within the terms of
this Agreement and either existing on such Property when acquired, or created
contemporaneously with such acquisition to secure the payment or financing of
the purchase price thereof, provided that (w) such Liens attach only to the
Property so purchased or acquired, (x) the Indebtedness secured by such Liens is
permitted by Section 8.1(i), (y) the Indebtedness secured or covered by any such
Lien shall not exceed the lesser of the cost or fair market value of the
Property acquired and shall not be renewed or extended or prepaid from the
proceeds of any borrowing by the Borrowers and (z) the aggregate amount of all
Indebtedness secured by Liens of the type permitted by this subsection
8.2(viii), on a Consolidated basis shall not at any time exceed $700,000 at any
one time outstanding in the aggregate with respect to all the Obligors taken as
a whole,
(ix) Liens on Margin Stock to the extent that a prohibition on such
Liens would result in the Agent and the Lenders being deemed to be "indirectly
secured" by Margin Stock under Regulation U of the Board of Governors of the
Federal Reserve System, as amended, taking into account the value of Margin
Stock owned by the Parent and its Subsidiaries and any other relevant facts and
circumstances,
(x) Liens on Property of any Obligor or Foreign Subsidiary existing
on the Effective Date as set forth on Schedule 8.2, but not any increases in the
amounts secured thereby or extensions thereof to additional Property,
(xi) Liens on Property of any Obligor or Foreign Subsidiary
acquired prior to the Effective Date provided that such Liens are limited to the
Property so acquired and were not created in contemplation of such acquisition,
(xii) any interest or title of a lessor in assets being leased by
any of the Borrowers or any Material Subsidiary under an operating lease,
(xiii) the right reserved to or vested in any Governmental
Authority by any statutory provision, or by the terms of any lease, license,
franchise, grant or permit of such Person, to terminate any such lease, license,
franchise, grant or permit or to require annual or other payments as a condition
to the continuance thereof, and
(xiv) any Lien resulting from security given to a public utility or
Governmental Authority when required by such utility or such Governmental
Authority in connection with the operation of the business of any Borrower.
8.3 Merger, Consolidations and Acquisitions
Consolidate with, or permit any Obligor or Foreign Subsidiary to
consolidate with, be acquired by, amalgamate with, merge or wind up into or with
any Person, or make any Acquisition or enter into any binding agreement to do
any of the foregoing which is not contingent on obtaining the consent of the
Required Lenders or the consent of all of the Lenders in the case of any
Acquisition, except:
(a) Capital Expenditures permitted by Section 8.7;
(b) provided that (i) the Agent shall have received ten days' prior
written notice thereof and (ii) immediately before and after giving effect
thereto no Default or Event of Default shall exist, any direct or indirect
wholly-owned Subsidiary of any Borrower may merge or consolidate with any
Borrower or any other direct or indirect wholly-owned Subsidiary of such
Borrower, provided that in the event of a merger or amalgamation of any Borrower
and such wholly-owned Subsidiary, the applicable Borrower shall be the survivor;
(c) mergers or amalgamations involving any Borrower or a Subsidiary
Guarantor as long as the applicable Borrower or the Subsidiary Guarantor is the
surviving entity; and
(d) Investments permitted by Section 8.5 provided, that no Borrower
shall be permitted to make any equity Investment in any other Person.
8.4 Dispositions
Make any Disposition, or permit any other Obligor or any Foreign
Subsidiary so to do, except:
(a) Dispositions by any Borrower and/or any other Obligor or
Foreign Subsidiary other than GP Canada of any Investments (other than
marketable securities) permitted under Section 8.5(a); provided, that, 100% of
the proceeds thereof are applied in accordance with Section 2.5(d) hereof and,
provided, further within ten Business Days prior to each such Disposition, the
Agent and the Lenders shall have received a certificate in respect thereto
signed by an Authorized Signatory of the applicable Borrower identifying the
Property to be sold or otherwise disposed of and stating the total consideration
to be paid in respect of such Disposition, together with estimates of items to
be deducted therefrom in arriving at the Net Cash Proceeds and if at the time
such Investment(s) was included in the Borrowing Base as reflected in the most
recent Borrowing Base Certificate, an Updated Borrowing Base Certificate
demonstrating compliance with the Borrowing Base after giving effect to the
applicable Disposition;
(b) Dispositions of Property which, in the reasonable opinion of
each Borrower, any Obligor or any Foreign Subsidiary, is obsolete or no longer
useful in the conduct of its business;
(c) Dispositions by any Borrower and/or any other Obligor or
Foreign Subsidiary other than GP Canada of marketable securities by the Parent;
provided, that, the Borrowers shall apply 100% of the Net Cash Proceeds thereof
within one Business Day of the receipt thereof in accordance with the terms of
Section 2.5(d) hereof and, provided, further that within ten Business Days prior
to each such Disposition, the Agent and the Lenders shall have received a
certificate in respect thereto signed by an Authorized Signatory of the
applicable Borrower identifying the Property to be sold or otherwise disposed of
and stating the total consideration to be paid in respect of such Disposition,
together with estimates of items to be deducted therefrom in arriving at the Net
Cash Proceeds and if at the time any of such marketable securities were included
in the Borrowing Base as reflected in the most recent Borrowing Base
Certificate, an Updated Borrowing Base Certificate demonstrating compliance with
the Borrowing Base after giving effect to the applicable Disposition;
(d) Dispositions by the Parent in connection with the consummation
of the Hydro Med Sale; and
(e) Other Dispositions by the Borrowers and/or any other Obligor or
Foreign Subsidiary as to which 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
any Borrower, any Obligor or any of the Foreign Subsidiaries shall be payable in
cash, or if there should be non-cash consideration, such non-cash consideration
shall not exceed $500,000 (as determined on or before the closing thereof) and
such total consideration received or to be received therefor shall not be less
than the fair market value thereof as reasonably determined by the Managing
Person of such Borrower, such Obligor or such Foreign Subsidiary,
(iii) the Borrowers shall apply the Net Cash Proceeds thereof
within one Business Day of the receipt thereof as required and provided by
Section 2.5(d), and
(iv) within ten Business Days prior to each such Disposition, the
Agent and the Lenders shall have received a certificate in respect thereto
signed by an Authorized Signatory of the Parent identifying the Property to be
sold or otherwise disposed of and stating (x) that immediately before or after
giving effect thereto, no Default or Event of Default shall exist, (y) that the
consideration received or to be received by the Parent or such Subsidiary for
such Property has been determined by the Managing Person thereof to be not less
than the fair market value of such Property and (z) the total consideration to
be paid in respect of such Disposition, together with estimates of items to be
deducted therefrom in arriving at the Net Cash Proceeds.
8.5 Investments, Loans, Etc.
At any time, directly or indirectly, purchase or otherwise hold,
own, acquire or invest in the Capital Stock of, evidence of indebtedness or
other obligation or security issued by, any other Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds or
credit to, or make any Acquisition, or become a partner or joint venturer in any
partnership or joint venture, or enter into any Interest Rate Protection
Arrangement, or make any other investment (whether in cash or other Property) in
any other Person, or make any commitment or otherwise to agree to do any of the
foregoing (all of which are sometimes referred to herein as "Investments"), or
permit any of its Subsidiaries so to do, except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the Effective Date as set forth on
Schedule 8.5;
(c) normal business banking accounts and short-term certificates of
deposit and time deposits in, or issued by, federally insured institutions in
amounts not exceeding the limits of such insurance;
(d) Investments in Interest Rate Protection Arrangements (where
used for hedging purposes) covering a notional principal amount not in excess of
the Revolving Loan Commitment Amount;
(e) loans and extensions of credit to employees of a Obligor or
Foreign Subsidiary that are not officers of a Obligor not in excess of $250,000
in the aggregate at any one time outstanding;
(f) Investments by any Borrower or any Subsidiary in Intercompany
Indebtedness permitted under Section 8.1;
(g) Investments in the form of a subordinated note not in excess of
$5,000,000 payable to Parent in connection with the Disposition of Five Star;
(h) Investments in Eligible Securities Collateral by Parent and/or
its Subsidiaries (and in that regard, the Parent represents that Schedule 8.5
contains a list of all Eligible Securities Collateral and other marketable
securities owned by Parent and/or its Subsidiaries as of the Closing Date);
(i) Investments of the Borrowers described on Schedule 8.1;
(j) Investments by the Parent in GP (UK); and
(k) loans to Persons solely for such Person to exercise stock
options he/she has with respect to the Parent's Capital Stock under the Parent's
stock option plan (such loans are referred to herein individually as an "Option
Loan" and collectively as the "Option Loans"); provided, that, no such Option
Loan shall be permitted unless (i) there is no reduction in the Parent's net
assets as a result of such Option Loan and no Obligor makes or is obligated to
make any distribution, advance or payment of cash in connection with such Option
Loan, (ii) such Option Loan is evidenced by a promissory note payable by such
employee to the order of the Parent in the face amount of such Option Loan, such
promissory note is endorsed to the Agent, the Agent is given possession of the
original of such note and the Agent is granted a first priority perfected
security interest in such note for the ratable benefit of the Lenders and the
Issuing Bank, (iii) the making of such Option Loan does not violate any statute,
regulation, rule or order of any Governmental Authority and (iv) the amount of
such Option Loan, when added to the aggregate principal balance of all other
Option Loans then outstanding, does not exceed $7,500,000;
provided, that no Borrower shall be permitted to make any equity Investment in
any other Person.
8.6 Restricted Payments.
Declare or pay any Restricted Payments payable in cash or
otherwise, apply any of its Property thereto or set apart any sum therefor, or
permit any of its Subsidiaries to do so, except:
(i) any Borrower may declare and pay any dividend payable solely in
shares of its common stock, and
(ii) any Subsidiary may declare and pay dividends to its immediate
parent.
8.7 Capital Expenditures; Leases.
Make any, and will not permit any other Obligor to make any,
Capital Expenditures or incur any obligation to make Capital Expenditures, or
lease any assets pursuant to any operating lease or Synthetic Lease, other than
in connection with Capital Expenditures, Synthetic Leases and operating leases
and obligations in connection therewith in an aggregate Consolidated amount in
excess of $2,500,000 in any Fiscal Year. Capital Expenditures shall be
calculated on a noncumulative basis so that amounts not expended in a Fiscal
Year may not be carried over and expended in any subsequent Fiscal Year.
8.8 Business and Name Changes
(i) Materially change the nature of the business of the Parent or
its Subsidiaries as conducted on the Effective Date, or alter or modify its
structure or status, or change its Fiscal Year from that in effect on the
Effective Date, or permit any of the Obligors or Foreign Subsidiaries so to do,
or
(ii) Change the name or chief executive office of the Parent, any
other Obligor or any Subsidiary unless the Agent shall have received (1) 30
days' notice prior to a change in name or chief executive office of any such
Person and (2) such documents as the Agent may request to continue the
perfection of any Liens on the Property of such Borrower, any such other Obligor
or such Subsidiary whose name or chief executive office is to be changed.
8.9 ERISA
Cause any Pension Plan to have a Funded Current Liability
Percentage of less than 60%, or increase benefits, or permit any of its
Subsidiaries so to do, under any Employee Benefit Plan or establish or
contribute to any new Employee Benefit Plan.
8.10 Prepayments of Indebtedness
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness (other than the Indebtedness under the Loan Documents), or permit
any other Obligor or any Subsidiary so to do other than payments to another
Obligor provided no Default or Event of Default exists before and after giving
effect to any such prepayment.
8.11 Amendments, Etc. of Certain Agreements
Enter into or agree to any amendment, modification or waiver of any
term or condition of its Organizational Documents in any way which could
reasonably be expected to be adverse to the interests of the Lenders or the
Agent, or permit any of its Subsidiaries so to do.
8.12 Transactions with Affiliates
Become a party to any transaction with an Affiliate (other than a
Obligor or a Foreign Subsidiary), or permit any Obligor or any of the Foreign
Subsidiaries so to do, unless the Parent's, the applicable Obligor's or
applicable Foreign Subsidiary's Managing Person shall have determined that the
terms and conditions relating thereto are as favorable to such Borrower, such
Obligor, or such Foreign Subsidiary as those which would be obtainable at the
time in a comparable arms-length transaction with a Person other than an
Affiliate.
8.13 Issuance of Additional Capital Stock
Issue any additional Capital Stock, or permit any Obligor or any
Foreign Subsidiary so to do, except that each Borrower may issue additional
Capital Stock (i) in connection with the payment of any dividend and (ii) as
long as (x) no Default or Event of Default exists before and after giving effect
to any such issuance of Capital Stock and (y) the Borrowers apply 100% of the
Net Cash Proceeds thereof within one Business Day of the receipt thereof in
accordance with the terms of Section 2.5(d) hereof.
8.14 Limitation on Upstream Dividends by Subsidiaries
Permit or cause any of its Subsidiaries to enter into or agree, or
otherwise be or become subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person pursuant to the terms of which (i)
such Subsidiary is or would be prohibited from declaring or paying any cash
dividends on any class of its Capital Stock owned directly or indirectly by the
Parent or any of the other Subsidiaries or from making any other distribution on
account of any class of any such Capital Stock (herein referred to as "Upstream
Dividends"), or (ii) the declaration or payment of Upstream Dividends by a
Subsidiary to the Parent or another Subsidiary, on an annual or cumulative
basis, is or would be otherwise limited or restricted.
8.15 Limitation on Negative Pledges
Enter into any agreement, other than (i) this Agreement and (ii)
purchase money mortgages or capital leases permitted by this Agreement (in which
cases, any prohibition or limitation shall only be effective against the assets
financed thereby), or permit any of its Subsidiaries so to do, which prohibits
or limits the ability of the Parent or any Subsidiary to create, incur, assume
or suffer to exist any Lien upon any of its Property or revenues, whether now
owned or hereafter acquired.
8.16 Margin Stock
Allow any part of the proceeds any Loan to be utilized (i) for the
purpose of "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or (ii) for any purpose which violates, or which would be inconsistent
with, the provisions of the Regulations of such Board of Governors.
8.17 Intangible Assets
Obtain any patent, trademark, service xxxx, trade name, or
copyright, or rights with respect to the foregoing, or permit any other Obligor
or any of the Foreign Subsidiaries so to do, unless contemporaneously therewith
the applicable Borrower, Obligor and/or Foreign Subsidiary, as the case may be,
takes all action and executes all documents reasonably required to grant the
Agent, for the ratable benefit of the Lenders, a first Lien on the applicable
patent, trademark, service xxxx, trade name, or copyright, or rights with
respect to the foregoing.
8.18 Hydro Med Subordinated Debt Documents.
Enter into any amendment, modification or waiver of any of the
documents, instruments or agreements executed pursuant to or in connection with
the Hydro Med Subordinated Debt to the extent any such amendment, modification
or waiver is or could be viewed as adverse to the interests of the Agent, the
Issuing Bank or any Lender.
8.19 No Prepayment of Subordinated Debt. The Parent will not, and will
not permit any of its Subsidiaries, to:
(i) make any payment or prepayment of principal of, or premium or
interest on, any Subordinated Debt, (x) other than, so long as no Default has
occurred and is continuing, on the stated, scheduled date for payment of
interest or other mandatory payments expressly set forth in the applicable
documents evidencing the Subordinated Debt, or (y) which would violate the terms
of this Agreement and the applicable documents evidencing the Subordinated Debt,
(ii) redeem, retire, purchase, defease or otherwise acquire any
Subordinated Debt, unless expressly required to redeem or purchase such
Indebtedness under the documents evidencing the Subordinated Debt.
8.20 No Investments, etc. in Certain Subsidiaries.
Notwithstanding anything to the contrary in this Agreement, in no
event shall the aggregate amount of Investments by the Borrowers and their
Material Subsidiaries in, or transfers of cash or property by the Borrowers or
their Material Subsidiaries to any non-Material Subsidiaries or Subsidiaries not
a party to the Subsidiary Guaranty and Security Agreement, in the aggregate
amount exceed $1,000,000 in any Fiscal Year. Notwithstanding the foregoing, the
Parent may expend up to $750,000 in the aggregate in the event of a wind-down
and dissolution of Hydro Med Sciences, Inc.
9. DEFAULT
9.1 Events of Default
The following shall each constitute an "Event of Default"
hereunder:
(a) The (i) failure of any Borrower to make any payment of
principal hereunder, any payments under a Reimbursement Agreement or any
payments in respect of any Reimbursement Obligation, in each case when due and
payable, or (ii) failure of any Borrower to make any deposit into the Cash
Collateral Accounts when required hereby; or
(b) The failure of any Borrower to make any payment of interest,
Fees, expenses or other amounts payable under any Loan Document (or otherwise to
the Agent with respect to the loan facilities established hereunder) within five
Business Days of the date when due and payable; or
(c) The failure of any Borrower to observe or perform any covenant
or agreement contained in Sections 2.5, 2.6, 7.1, 7.2(a), (d), (e), 7.3, 7.11,
7.12, 7.13 or Section 8; or
(d) The failure of any Obligor to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days after such Obligor shall
have obtained knowledge thereof; or
(e) Any representation or warranty made by any Obligor (or by an
officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(f) Liabilities and/or other obligations of any Borrower (other
than its obligations hereunder), any of their Subsidiaries or any other Obligor,
whether as principal, guarantor, surety or other obligor, for the payment of any
Indebtedness or operating leases in an aggregate amount in excess of $500,000
(or the foreign currency equivalent) (i) shall become or shall be declared to be
due and payable prior to the expressed maturity thereof, or (ii) shall not be
paid when due or within any grace period for the payment thereof, (iii) any
holder of any such obligation shall have the right to declare such obligation
due and payable prior to the expressed maturity thereof or (iv) as a consequence
of the occurrence or continuation of any event or condition, any Borrower, any
of their Subsidiaries or any other Obligor, has become obligated to purchase or
repay any Indebtedness before its regularly scheduled maturity date; or
(g) Any license, franchise, permit, right, approval or agreement of
any Borrower, any of their Subsidiaries or any other Obligor, is not renewed, or
is suspended, revoked or terminated and the non-renewal, suspension, revocation
or termination thereof could have a Material Adverse Effect; or
(h) Any Borrower, any of their Foreign Subsidiaries or any other
Obligor, shall (i) suspend or discontinue its business, (ii) make an assignment
for the benefit of creditors, (iii) generally not be paying its debts as such
debts become due, (iv) admit in writing its inability to pay its debts as they
become due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent
(however such insolvency shall be evidenced), (vii) file any petition or answer
or institute any proceeding seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief,
including any plan of compromise or arrangement or other corporate proceeding
involving or affecting its creditors, under any present or future statute, law
or regulation of any jurisdiction, (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee or other similar official for it or any
substantial part of its Property, (ix) be the subject of any such proceeding
filed against it which remains undismissed for a period of 60 days, (x) file any
answer admitting or not contesting the material allegations of any such petition
filed against it or any order, judgment or decree approving such petition in any
such proceeding, (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, sequestrator,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of such Borrower, such
Foreign Subsidiary or such other Obligor; or
(i) An order for relief is entered under the bankruptcy or
insolvency laws of any jurisdiction or any other decree or order is entered by a
court having jurisdiction (i) adjudicating any Borrower, any of their Foreign
Subsidiaries or any other Obligor, bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of or in respect of any Borrower, any of their Foreign
Subsidiaries or any other Obligor, under the bankruptcy or insolvency laws of
any jurisdiction, (iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Borrower, any of
their Foreign Subsidiaries or any other Obligor, or of any substantial part of
the Property of any thereof, or (iv) ordering the winding up or liquidation of
the affairs of any Borrower, any of their Foreign Subsidiaries or any other
Obligor, and any such decree or order continues unstayed and in effect for a
period of 60 days; or
(j) Judgments or decrees against any Borrower, any of their Foreign
Subsidiaries or any other Obligor, aggregating in excess of $500,000 (or the
foreign currency equivalent) shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 60 days; or
(k) Any Loan Document shall cease, for any reason, to be in full
force and effect, or any Obligor shall so assert in writing or shall disavow any
of its obligations under any Loan Document, or any "Event of Default" shall have
occurred under, and as such term is defined in, any Loan Document; or
(l) The occurrence of a Change in Control; or
(m) (i) Any Termination Event shall occur; (ii) any Accumulated
Funding Deficiency, regardless of whether waived, shall exist with respect to
any Pension Plan; (iii) any Person shall engage in any Prohibited Transaction
involving any Employee Benefit Plan; (iv) the Parent, any of its Subsidiaries or
any ERISA Affiliate shall fail to pay when due an amount which is payable by it
to the PBGC or to a Pension Plan under Title IV of ERISA; (v) the imposition of
any tax under Section 4980B(a) of the Code; (vi) the assessment of a civil
penalty with respect to any Employee Benefit Plan under Section 502(c) of ERISA;
or (vii) any other event or condition shall occur or exist with respect to an
Employee Benefit Plan which in the case of clauses (i) through (vii) would,
individually or in the aggregate, have a Material Adverse Effect.
(n) Unless otherwise waived or consented to by the Agent, the
Lenders and the Issuing Bank in writing, the subordination provisions relating
to any Subordinated Debt (the "Subordination Provisions") shall fail to be
enforceable by the Agent, the Lenders and the Issuing Bank in accordance with
the terms thereof, or the monetary Obligations shall fail to constitute "senior
debt" (or similar term) referring to such Obligations; or any Borrower or any of
its Subsidiaries shall, directly or indirectly, disavow or contest in any manner
(a) the effectiveness, validity or enforceability of any of the Subordination
Provisions, (b) that the Subordination Provisions exist for the benefit of the
Agent, the Lenders and the Issuing Bank or (c) that all payments of principal of
or premium and interest on the Subordinated Debt, or realized from the
liquidation of any property of any Obligor, shall be subject to any of such
Subordination Provisions.
(o) Any Loan Document or any Lien granted thereunder shall (except
in accordance with its terms), in whole or in part, terminate, cease to be
effective or cease to be the legally valid, binding and enforceable obligation
of any Obligor party thereto; any Obligor or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability; or, except as permitted under any Loan Document, any Lien
securing the Obligations shall, in whole or in part, cease to be a perfected
first registered priority Lien, subject to Permitted Liens.
9.2 Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (i) if such event is an Event of
Default specified in clause (h) or (i) above, the Commitments of all of the
Lenders shall immediately and automatically terminate and the Loans, all accrued
and unpaid interest thereon and all other amounts owing under the Loan Documents
shall immediately become due and payable, and the Agent may, and, upon the
direction of the Required Lenders shall, exercise any and all remedies and other
rights provided in the Loan Documents, and (ii) if such event is any other Event
of Default, any or all of the following actions may be taken: (A) with the
consent of the Required Lenders, the Agent may, and upon the direction of the
Required Lenders shall, by notice to any Borrower, declare the Commitments of
all of the Lenders terminated forthwith, whereupon such Commitments shall
immediately terminate, and (B) with the consent of the Required Lenders, the
Agent may, and upon the direction of the Required Lenders shall, by notice of
default to any Borrower, declare the Loans, all accrued and unpaid interest
thereon and all other amounts owing under the Loan Documents to be due and
payable forthwith, whereupon the same shall immediately become due and payable,
and the Agent may, and upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided in the Loan Documents.
Except as otherwise provided in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived. Each Borrower hereby
further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, now or at any time
hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that the Commitments of all the Lenders shall have
been terminated or the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section, any funds received by the
Agent and the Lenders from or on behalf of the Borrowers shall be applied by the
Agent and the Lenders in liquidation of the Loans of the Borrowers and the other
obligations of the Borrowers under the Loan Documents in the following manner
and order: (i) first, to the payment of interest on, and then the principal
portion of, any Loans which the Agent may have advanced on behalf of any Lender
for which the Agent has not then been reimbursed by such Lender or the
Borrowers; (ii) second, to the payment of any fees or expenses due the Agent
from the Borrowers, (iii) third, to reimburse the Agent and the Lenders for any
expenses (to the extent not paid pursuant to clause (ii) above) due from the
Borrowers pursuant to the provisions of Section 11.5; (iv) fourth, to the
payment of accrued Fees and all other fees, expenses and amounts due under the
Loan Documents (to the extent not paid pursuant to clause (ii) above) (other
than principal and interest on the Loans and amounts payable in connection with
Interest Rate Protection Arrangements with a Rate Protection Lender), (v) fifth,
to the payment, in the case of interest received from or on behalf of the
Borrowers, pro rata according to the Revolving Loan Commitment Percentage of
each Lender, of interest due on the Revolving Credit Loans, (vi) sixth, to the
payment pro rata in the case of principal received from or on behalf of the
Borrowers and/or in the case of amounts received on account of Interest Rate
Protection Arrangements with a Rate Protection Lender, pro rata according to the
principal on the then outstanding Loans and the amount then owed in connection
with such Interest Rate Protection Arrangement(s); and, if more than one such
Interest Rate Protection Arrangement then exists, pro rata among all such
Interest Rate Protection Arrangements, of principal on the Loans; and (vii)
seventh, to the payment of any other amounts owing to the Agent, the Issuing
Bank and the Lenders under any Loan Document.
10. THE AGENT
10.1 Appointment
Each of the Issuing Bank and each Lender hereby irrevocably
designates and appoints Fleet as the Agent of the Issuing Bank and such Lender
under the Loan Documents and each of the Issuing Bank and each Lender hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of the Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of the Loan
Documents, together with such other powers as are reasonably incidental thereto.
The duties of the Agent shall be mechanical and administrative in nature, and,
notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Agent shall not have any duties or responsibilities other than those
expressly set forth therein, or any fiduciary relationship with, or fiduciary
duty to, the Issuing Bank or any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the Loan
Documents or otherwise exist against the Agent.
10.2 Delegation of Duties
The Agent may execute any of its duties under the Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to rely upon, and
shall be fully protected in, and shall not be under any liability for, relying
upon, the advice of counsel concerning all matters pertaining to such duties.
10.3 Exculpatory Provisions
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to the
Issuing Bank or any of the Lenders for any recitals, statements, representations
or warranties made by any Borrower or any other Obligor or any officer thereof
contained in the Loan Documents or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent under or
in connection with, the Loan Documents or for the value, validity,
effectiveness, genuineness, perfection, enforceability or sufficiency of any of
the Loan Documents or for any failure of any Borrower or any other Obligor or
any other Person to perform its obligations thereunder. The Agent shall not be
under any obligation to the Issuing Bank or any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, the Loan Documents, or to inspect the Property, books or
records of any Borrower or any other Obligor. The Issuing Bank and the Lenders
acknowledge that the Agent shall not be under any duty to take any discretionary
action permitted under the Loan Documents unless the Agent shall be instructed
in writing to do so by the Issuing Bank and Required Lenders and such
instructions shall be binding on the Issuing Bank and all Lenders and all
holders of the Notes; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or is contrary to
law or any provision of the Loan Documents. The Agent shall not be under any
liability or responsibility whatsoever, as Agent, to any Borrower, or any other
Obligor or any other Person as a consequence of any failure or delay in
performance, or any breach, by the Issuing Bank or any Lender of any of its
obligations under any of the Loan Documents.
10.4 Reliance by Agent
The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, opinion, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by a proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
the Borrowers or any other Obligor), independent accountants and other experts
selected by the Agent. The Agent may treat the Issuing Bank or each Lender, as
the case may be, or the Person designated in the last notice filed with it under
this Section, as the holder of all of the interests of the Issuing Bank or such
Lender, as the case may be, in its Loans, in its Notes, the Letters of Credit
and the Reimbursement Obligations, as applicable, until written notice of
transfer, signed by the Issuing Bank or such Lender (or the Person designated in
the last notice filed with the Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the Agent,
shall have been filed with the Agent. The Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability or genuineness
of the Loan Documents or any instrument, document or communication furnished
pursuant thereto or in connection therewith, and the Agent shall be entitled to
assume that the same are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be. The Agent shall be fully
justified in failing or refusing to take any action under the Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon the Issuing Bank, all the Lenders and all future holders of the
Notes and the Reimbursement Obligations.
10.5 Notice of Default
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from the Issuing Bank, a Lender or any Borrower. In the
event that the Agent receives such a notice, the Agent shall promptly give
notice thereof to the Issuing Bank, the Lenders and any Borrower. The Agent
shall take such action with respect to such Default or Event of Default as shall
be directed by the Required Lenders, provided, however, that unless and until
the Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
10.6 Non-Reliance on Agent and Other Lenders
Each of the Issuing Bank and each Lender expressly acknowledges
that neither the Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter, including any review
of the affairs of any Borrower or any other Obligor, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each of
the Issuing Bank and each Lender represents to the Agent that it has,
independently and without reliance upon the Agent, the Issuing Bank or any
Lender, and based on such documents and information as it has deemed appropriate
made its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of each Borrower
and each other Obligor and the value and Lien status of any collateral security
and made its own decision to enter into this Agreement. Each of the Issuing Bank
and each Lender also represents that it will, independently and without reliance
upon the Agent, the Issuing Bank or any Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, evaluations and decisions in taking or not taking action under
any Loan Document, and to make such investigation as it deems necessary to
inform itself as to the business, operations, Property, financial and other
condition and creditworthiness of each Borrower and each other Obligor and the
value and Lien status of any collateral security. Except for notices, reports
and other documents expressly required to be furnished to the Issuing Bank
and/or the Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide the Issuing Bank or any Lender with any credit or
other information concerning the business, operations, Property, financial and
other condition or creditworthiness of any Borrower and any other Obligor which
at any time may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification
Each Lender agrees to indemnify and hold harmless the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to
its Revolving Loan Commitment Percentage or, in the event any Loans shall be
outstanding, from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever including any amounts paid to the Lenders (through the
Agent) by the Borrowers or any other Obligor pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned, which may at any time (including at any time following the
payment of the Revolving Credit Loans and the Notes) be imposed on, incurred by
or asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken by
the Agent under or in connection with any of the foregoing; provided, however,
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent resulting from the finally
adjudicated gross negligence or willful misconduct of the Agent. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its pro rata share of any unpaid costs and expenses (including
reasonable fees and expenses of counsel) payable by the Borrowers under Section
11.5 to the extent that the Agent has not been paid such fees or has not been
reimbursed for such costs and expenses, by the Borrowers. The failure of any
Lender to reimburse the Agent promptly upon demand for its pro rata share of any
amount required to be paid by the Lenders to the Agent as provided in this
Section shall not relieve any other Lender of its obligation hereunder to
reimburse the Agent for its pro rata share of such amount, but no Lender shall
be responsible for the failure of any other Lender to reimburse the Agent for
such other Lender's pro rata share of such amount. The agreements in this
Section shall survive the termination of the Commitments of all of the Lenders
and the payment of all amounts payable under the Loan Documents.
10.8 Agent in Its Individual Capacity
Fleet and its affiliates may make secured or unsecured loans to,
accept deposits from, issue letters of credit for the account of, act as trustee
under indentures of, and generally engage in any kind of business with, any
Borrower or any other Obligor as though Fleet were not Agent hereunder and Fleet
did not arrange the transactions contemplated hereby; provided, however, that
any new loans made by the Agent to any Borrower must be disclosed to the Lenders
within 30 days of the making of any new loan(s). With respect to the Commitments
made or renewed by Fleet and the Notes issued to, and the Reimbursement
Obligations owing to, Fleet, Fleet shall have the same rights and powers under
the Loan Documents as any Lender and may exercise the same as though it were not
the Agent, and the terms "Lender" and "Lenders" shall in each case include
Fleet.
10.9 Successor Agent
If at any time the Agent deems it advisable, in its sole
discretion, it may submit to the Issuing Bank, each of the Lenders and any
Borrower a written notice of its resignation as Agent under the Loan Documents,
such resignation to be effective upon the earlier of (i) the written acceptance
of the duties of the Agent under the Loan Documents by a successor Agent and
(ii) on the 30th day after the date of such notice. Upon any such resignation,
the Required Lenders shall have the right to appoint from among the Lenders
which is a commercial bank a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders and accepted such appointment in
writing within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Issuing Bank and the
Lenders, appoint a successor Agent, which successor Agent shall be a commercial
bank organized under the laws of the United States or any State thereof and
having a combined capital, surplus, and undivided profits of at least
$250,000,000 and which shall be reasonably acceptable to the Parent. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent's rights, powers, privileges and duties as Agent under the Loan Documents
shall be terminated. The Borrowers, the other Obligors, the Issuing Bank and the
Lenders shall execute such documents as shall be necessary to effect such
appointment. After any retiring Agent's resignation as Agent, the provisions of
the Loan Documents shall inure to its benefit as to any actions taken or omitted
to be taken by it, and any amounts owing to it, while it was Agent under the
Loan Documents. If at any time there shall not be a duly appointed and acting
Agent, each Borrower agrees, jointly and severally, to make each payment due
under the Loan Documents directly to the Issuing Bank and the Lenders entitled
thereto during such time.
11. OTHER PROVISIONS
11.1 Amendments and Waivers
Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Agent and the
appropriate parties to the Loan Documents (other than the Issuing Bank and the
Lenders) may, from time to time, enter into written amendments, supplements or
modifications thereof and, with the consent of the Required Lenders, the Agent
on behalf of the Issuing Bank and the Lenders, may execute and deliver to any
such parties a written instrument waiving or consenting to the departure from,
on such terms and conditions as the Agent may specify in such instrument, any of
the requirements of the Loan Documents or any Default or Event of Default and
its consequences; provided, however, that no such amendment, supplement,
modification, waiver or consent shall:
(a) without the consent of all of the Lenders (i) increase the
Revolving Loan Commitment Amount of any Lender, (ii) extend the Revolving Loan
Commitment Period, (iii) reduce the rate or amount, or extend the time of
payment, of the Revolving Loan Commitment Fee or the Letter of Credit
Commissions, (iv) reduce the rate or amount of, or extend the time of payment
of, interest on any Loan or any Note or Reimbursement Obligation, (v) reduce the
amount, or extend the time of payment of any installment or other payment of
principal on any Loan or any Note or Reimbursement Obligation, (vi) decrease or
forgive the principal amount of any Loan or any Note or Reimbursement
Obligation, (vii) consent to any Acquisitions by any of the Obligors or (viii)
consent to any assignment or delegation by any Borrower of any of their rights
or obligations under any Loan Document;
(b) without the consent of all the Lenders (i) change the
provisions of Section 3.5, 3.6, 3.7, 3.9, 3.10, 9.1(a), this Section 11.1 or
Section 11.7(a), (ii) change the definition of "Required Lenders", or any
provision of this Agreement requiring the consent or approval of all Lenders
(iii) change the several nature of the Lenders' obligations, (iv) change any
provision governing the sharing of payments and liabilities among the Lenders,
(v) release all or substantially all of the obligations of any Obligor under any
Loan Document, (other than in connection with (A) a Disposition permitted under
Section 8.4, or (B) any release specifically provided for in the Collateral
Documents), or (vi) release any substantial portion of the Collateral or any
security interest therein (other than in connection with (A) a Disposition
permitted under Section 8.4, (B) a dissolution permitted by Section 7.3, or (C)
any release specifically provided for in the Collateral Documents);
(c) without the written consent of the Swing Line Loan Lender,
amend, modify or waive any provision of Sections 2.2 and 2.3(b) or otherwise
change any of the rights or obligations of the Swing Line Loan Lender under any
Loan Document;
(d) without the written consent of the Issuing Bank, amend, modify
or waive any provision of Sections 2.7, 2.8, 2.9 or 3.2(b)(ii) or otherwise
change any of the rights or obligations of the Issuing Bank under any Loan
Document; and
(e) without the written consent of the Agent, amend, modify or
waive any provision of Section 10 or otherwise change any of the rights or
obligations of the Agent under any Loan Document.
Any such amendment, supplement, modification, waiver or consent
shall apply equally to the Agent, the Issuing Bank, the Swing Line Loan Lender
and each of the Lenders and shall be binding upon the parties to the applicable
Loan Document, the Lenders, the Issuing Bank, the Swing Line Loan Lenders, the
Agent and all future holders of the Notes and the Reimbursement Obligations. In
the case of any waiver, the parties to the applicable Loan Document, the Issuing
Bank, the Lenders and the Agent shall be restored to their former position and
rights hereunder and under the outstanding Notes and other Loan Documents to the
extent provided for in such waiver, and any Default or Event of Default waived
shall not extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. Notwithstanding anything to the contrary
contained in any Loan Document, the Agent may, at any time and from time to time
without the consent of any one or more of the Lenders, release any Collateral or
any security interest therein in connection with (A) any disposition of such
Collateral permitted by Section 8.4, (B) any dissolution permitted by Section
7.3, or (C) any release specifically provided for in the Collateral Documents.
11.2 Notices
All notices, requests and demands to or upon the respective parties
to the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail, first-class postage prepaid, or, in the
case of notice by telecopy, when sent, addressed as follows in the case of the
Borrowers, the Agent or the Issuing Bank, and as set forth in Schedule 11.2 in
the case of each Lender, or addressed to such other addresses as to which the
Agent may be hereafter notified by the respective parties thereto or any future
holders of the Notes:
Borrowers:
c/o GP Strategies Corporation
0 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, CFO
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxx & Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Agent or the Issuing Bank:
Fleet National Bank
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
except that any notice, request or demand by the Borrowers to or upon the Agent,
the Issuing Bank or the Lenders pursuant to Sections 2.3, 2.7 or 3.3 shall not
be effective until received. Any party to a Loan Document may rely on signatures
of the parties thereto which are transmitted by telecopy or other electronic
means as fully as if originally signed.
11.3 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of
the Agent, the Issuing Bank or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties and Certain Obligations
(a) All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
(b) The obligations of the Borrowers under Sections 3.5, 3.6, 3.7,
3.8, 3.9, 3.10, 11.5 and 11.8 shall survive the termination of the Commitments
of all of the Lenders, the Letter of Credit Commitment, and the payment of the
Loans, the Reimbursement Obligations, and all other amounts payable under the
Loan Documents.
11.5 Expenses
Each Borrower agrees, jointly and severally, promptly upon
presentation of a statement or invoice therefor, and whether any Loan is made or
any Letter of Credit is issued (i) to pay or reimburse Fleet (in its capacity as
Agent and arranger) for all its respective out-of-pocket costs and expenses
reasonably incurred in connection with the development, preparation, execution
and syndication of, the Loan Documents and any amendment, supplement or
modification thereto (whether or not executed or effective), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of Special
Counsel, (ii) to pay or reimburse each of the Issuing Bank, the Swing Line Loan
Lender, the Agent and the Lenders for all of its reasonable out-of-pocket costs
and expenses, including reasonable fees and disbursements of counsel, incurred
in connection with (A) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom, (B) in connection with the
negotiation of any restructuring or "work-out" (whether consummated or not) of
the obligations of any Obligor under any of the Loan Documents, and (C) the
enforcement of this Section and (iii) to pay, indemnify, and hold each of the
Issuing Bank, the Swing Line Loan Lender, the Lenders, and the Agent harmless
from and against, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other similar taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents and any such other documents, and (iv) to pay, indemnify and hold each
of the Issuing Bank, the Swing Line Loan Lender, the Lenders and the Agent and
each of its officers, directors and employees harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable counsel fees and disbursements) with respect to
the enforcement and performance of the Loan Documents, the use of the proceeds
of the Loans and the Letters of Credit and the enforcement and performance of
the provisions of any subordination agreement involving the Agent and the
Lenders (all the foregoing, collectively, the "Indemnified Liabilities") and, if
and to the extent that the foregoing indemnity may be unenforceable for any
reason, the Borrowers agree to make the maximum payment not prohibited under
applicable law; provided, however, that the Borrowers shall have no obligation
to pay Indemnified Liabilities to the Agent, the Issuing Bank, the Swing Line
Loan Lender, or any Lender arising from the finally adjudicated gross negligence
or willful misconduct of the Agent, the Issuing Bank, the Swing Line Loan
Lender, or such Lender or claims between one indemnified party and another
indemnified party. The agreements in this Section shall survive the termination
of the Commitments of all of the Lenders, the Letter of Credit Commitment and
the payment of all amounts payable under the Loan Documents. In addition, the
Borrowers jointly and severally also agree to reimburse the Administrative Agent
on demand for all reasonable third party administration, audit and monitoring
expenses incurred in connection with the Borrowing Base and determinations in
respect thereof.
11.6 Lending Offices
(a) Each Lender shall have the right at any time and from time to
time to transfer its Loans and Reimbursement Obligations to a different office,
provided that such Lender shall promptly notify the Agent and the Borrowers of
any such change of office. Such office shall thereupon become such Lender's
lending office, provided, however, that no Lender shall be entitled to receive
any greater amount under Sections 3.5, 3.7 and 3.10, as a result of a transfer
of any such Loans and Reimbursement Obligations to a different office of such
Lender than it would be entitled to immediately prior thereto unless such claim
would have arisen even if such transfer had not occurred.
(b) Each Lender agrees that, upon the occurrence of any event
giving rise to any increased cost or indemnity under Sections 3.5, 3.7 and 3.10
with respect to such Lender, it will, if requested by the Borrowers, use
reasonable efforts to designate another lending office for any Loans and
Reimbursement Obligations affected by such event, provided that such designation
is made on such terms that such Lender and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the
consequence of the event giving rise to the operation of any such Section.
Nothing in this Section shall affect or postpone any of the obligations of the
Borrowers or the right of any Lender provided in Sections 3.5, 3.6, 3.7 and
3.10.
11.7 Successors and Assigns
(a) This Agreement, the Notes and the other Loan Documents to which
the Borrowers are a party shall be binding upon and inure to the benefit of the
Borrowers, the Lenders, the Agent, the Swing Line Loan Lender, the Issuing Bank
all future holders of the Notes and Reimbursement Obligations and their
respective successors and assigns. The Borrowers shall not delegate any
obligation or duty under any Loan Document without the prior written consent of
the Agent, the Issuing Bank, the Swing Line Loan Lender and each Lender.
(b) Subject to Section 11.7(e), any Lender may at any time assign
all or any portion of its rights under any Loan Document to any Federal Reserve
Bank.
(c) In addition to its rights under Section 11.7(b), each Lender
shall have the right to sell, assign, transfer or negotiate (each an
"Assignment") all or a portion of its Loans, its Commitment and its Notes, to
any subsidiary or Affiliate of such Lender, to any other Lender, or to any other
bank, insurance company, financial institution, pension fund, mutual fund or
other similar fund, provided that (i) each such Assignment shall be of a
constant, and not a varying, percentage of all of the assignor Lender's rights
and obligations under the Loan Documents, (ii) the Commitment Amount of the
Commitment assigned shall be not less than $5,000,000 or the full Commitment
Amount of such assignor Lender's Commitment, (iii) unless the assignee is
another Lender or a subsidiary or Affiliate of any Lender, or unless at the time
of such Assignment an Event of Default shall exist, Parent shall have consented
thereto in writing (which consent shall not be unreasonably withheld), and (iv)
the assignor Lender and such assignee shall deliver to the Agent three copies of
an Assignment and Acceptance Agreement executed by each of them, along with an
assignment fee in the sum of $3,500 for the account of the Agent. Upon receipt
of such number of executed copies of each such Assignment and Acceptance
Agreement together with the assignment fee therefor and the Parent's consent to
such Assignment, if required, the Agent shall record the same and execute not
less than two copies of such Assignment and Acceptance Agreement in the
appropriate place, deliver one such copy to the assignor and one such copy to
the assignee, and deliver one photocopy thereof, as executed, to the Borrowers.
From and after the Assignment Effective Date specified in, and as defined in,
such Assignment and Acceptance Agreement, the assignee thereunder shall be a
party hereto and shall for all purposes of this Agreement and the other Loan
Documents be deemed a "Lender" and, to the extent provided in such Assignment
and Acceptance Agreement, the assignor Lender thereunder shall be released from
its obligations under this Agreement and the other Loan Documents. Each Borrower
agrees, jointly and severally, that, if requested, in connection with each such
Assignment, it shall at its own cost and expense execute and deliver (1) to the
Agent or such assignee a Note in a maximum principal amount equal to the
Commitment Amount of the Commitment assumed by such assignee, and (2) to the
Agent or such assignor Lender, in the event that such assignor Lender shall not
have assigned all of its Commitment, a Note in a maximum principal amount equal
to the Commitment Amount of the Commitment retained by such assignor, in each
case either in escrow pending the delivery of, or against receipt of, such
assignor Lender's existing Note. The Agent shall be entitled to rely upon the
representations and warranties made by the assignee under each Assignment and
Acceptance Agreement. Notwithstanding any other term of this Section, the
agreement of Fleet to provide the Swing Line Loan Commitment shall not impair or
otherwise restrict in any manner the ability of Fleet to make any assignment of
its Loans or Commitment, it being understood and agreed that Fleet may terminate
its Swing Line Loan Commitment either in whole or in part, in connection with
the making of any assignment.
(d) In addition to the participations provided for in Section
11.11, each Lender may grant participations in all or any part of its Loans, its
Notes and its Commitments to one or more banks, insurance companies, pension
funds, mutual funds or other financial institutions, provided that (i) such
Lender's obligations under this Agreement and the other Loan Documents shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties to this Agreement and the other Loan Documents for the performance of
such obligations, (iii) the Parent, the Agent, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents, (iv) the granting of such participation does not
require that any additional loss, cost or expense be borne by the Borrowers at
any time, and (v) the voting rights of any holder of any participation shall be
limited to decisions that in accordance with Section 11.1 require the consent of
all of the Lenders.
(e) No Lender shall, as between and among the Borrower, the Agent,
the Issuing Bank and such Lender, be relieved of any of its obligations under
the Loan Documents as a result of any assignment of or granting of
participations in, all or any part of its Loans, its Commitment and its Note,
except that a Lender shall be relieved of its obligations to the extent of any
such Assignment of all or any part of its Loans, its Commitments or its Notes
pursuant to Section 11.7(c).
11.8 Indemnity
Each Borrower, jointly and severally, agrees, to defend, protect,
indemnify, and hold harmless the Agent, the Issuing Bank and each and all of the
Lenders, each of their respective Affiliates and each of the respective
officers, directors, employees and agents of each of the foregoing (each an
"Indemnified Person" and, collectively, the "Indemnified Persons") from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any kind
or nature whatsoever (including the fees and disbursements of counsel to such
Indemnified Persons) in connection with any investigative, administrative or
judicial proceeding, whether direct, indirect or consequential and whether based
on any federal, state or provincial laws or other statutory regulations,
including securities and commercial laws and regulations, under common law or at
equitable cause, or on contract or otherwise, including any liabilities and
costs under environmental laws, Federal, state, provincial or local health or
safety laws, regulations, or common law principles, arising from or in
connection with the past, present or future operations of any Borrower, any
other Obligor, or their respective predecessors in interest, or the past,
present or future environmental condition of the Property of the Parent or any
of its Subsidiaries, the presence of asbestos-containing materials at any such
Property, or the release or threatened release of any Hazardous Substance (as
defined under applicable environmental law) into the environment from any such
Property) in any manner relating to or arising out of the Loan Documents, any
commitment letter executed and delivered by the Parent or any of its
Subsidiaries, the Issuing Bank and/or the Agent, the capitalization of the
Parent or any of its Subsidiaries, the Commitments, the Letter of Credit
Commitment, the making of, issuance of, management of and participation in the
Loans or the Letters of Credit, or the use or intended use of the Letters of
Credit and the proceeds of the Loans hereunder, provided that the Borrowers
shall not have any obligation under this Section to an Indemnified Person with
respect to any of the foregoing to the extent found in a final judgment of a
court having jurisdiction to have resulted primarily out of the gross negligence
or willful misconduct of such Indemnified Person or arising solely from claims
between one such Indemnified Person and another such Indemnified Person. The
indemnity set forth herein shall be in addition to any other obligations or
liabilities of the Parent to each Indemnified Person under the Loan Documents or
at common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments of all of the Lenders, the Letter
of Credit Commitment and the payment of all Indebtedness of the Obligors under
the Loan Documents.
11.9 Limitation of Liability
No claim may be made by the Parent, any other Obligor, any of its
Subsidiaries, any Lender or other Person against the Agent, any Lender, or any
directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and the Parent, its Subsidiaries, such other
Obligor, any such Lender or other Person hereby waives, releases and agrees not
to xxx upon any claim for any such damages, whether or not accrued and whether
or not known or suspected to exist in its favor.
11.10 Counterparts
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document or to any document evidencing, and
of any an amendment, modification, consent or waiver to or of any Loan Document
transmitted by telecopy shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the parties
thereto shall be deposited with each of the Borrowers, the Issuing Bank, the
Agent and the Lenders. Any party to a Loan Document may rely upon the signatures
of any other party thereto which are transmitted by telecopy or other electronic
means to the same extent as if originally signed.
11.11 Adjustments; Set-off
(a) If any Lender (a "Benefited Lender"), shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of its Loans, Notes or the Reimbursement Obligations in
excess of its Revolving Loan Commitment Percentage of payments then due and
payable on account of the Loans, the Notes, and the Reimbursement Obligations
received by all the Lenders, then such Benefited Lender shall forthwith
purchase, without recourse, for cash, from the other Lenders such participations
in their Loans and Notes, as shall be necessary to cause such Benefited Lender
to share such excess payment with each of them according to their Revolving Loan
Commitment Percentages, provided, however, that if all or any portion of such
excess payment is thereafter recovered from such Benefited Lender, such purchase
from such other Lenders shall be rescinded, and each such other Lender shall
repay to such Benefited Lender the purchase price to the extent of such
recovery, together with an amount equal to such other Lender's pro rata share
(according to the proportion of (i) the amount of such other Lender's required
repayment to (ii) the total amount so recovered from such Benefited Lender) of
any interest or other amount paid or payable by such Benefited Lender in respect
of the total amount so recovered. The Parent agrees that such Benefited Lender
so purchasing a participation from such other Lenders pursuant to this
subsection (a) may exercise such rights to payment (including the right of
set-off) with respect to such participation as fully as such Benefited Lender
were the direct creditor of such Parent in the amount of such participation.
(b) In addition to any rights and remedies of the Issuing Bank and
the Lenders provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents, or
at any time upon the occurrence and during the continuance of an Event of
Default, under Sections 9.1(a) or (b), each of the Issuing Bank, the Swing Line
Loan Lender and the Lenders shall have the right, without prior notice to the
Parent or any other Obligor, any such notice being expressly waived by each
Borrower and each other Obligor to the extent not prohibited by applicable law,
to set-off and apply against any indebtedness, whether matured or unmatured, of
the Borrowers or such other Obligor, as the case may be, to the Issuing Bank or
such Lender, as the case may be, any amount owing from the Issuing Bank, the
Swing Line Loan Lender or such Lender, as the case may be, to such Borrower or
such other Obligor, as the case may be, at, or at any time after, the happening
of any of the above-mentioned events. To the extent not prohibited by applicable
law, the aforesaid right of set-off may be exercised by the Issuing Bank, the
Swing Line Loan Lender or such Lender, as the case may be, against the Borrowers
or such other Obligor, as the case may be, or against any trustee in bankruptcy,
custodian, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor of the Borrowers or such
other Obligor, as the case may be, or against anyone else claiming through or
against the Borrowers or such other Obligor, as the case may be, or such trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by the Issuing Bank, the Swing Line Loan Lender or such Lender, as the
case may be, prior to the making, filing or issuance, or service upon the
Issuing Bank or such Lender, as the case may be, of, or of notice of, any such
petition, assignment for the benefit of creditors, appointment or application
for the appointment of a receiver, or issuance of execution, subpoena, order or
warrant. Each of the Issuing Bank, the Swing Line Loan Lender and the Lenders
agrees promptly to notify the Borrowers and the Agent after any such set-off and
application made by the Issuing Bank, the Swing Line Loan Lender or such Lender,
as the case may be, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
11.12 Construction
Each party to a Loan Document represents that it has been
represented by counsel in connection with the Loan Documents and the
transactions contemplated thereby and that the principle that agreements are to
be construed against the party drafting the same shall be inapplicable.
11.13 Governing Law
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING FOR SUCH PURPOSES SECTIONS 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), EXCLUDING THE LAW OF CONFLICTS BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS EXCEPT TO THE EXTENT
THE VALIDITY OR PERFECTION OF A SECURITY INTEREST UNDER A LOAN DOCUMENT, OR
REMEDIES UNDER A LOAN DOCUMENT, IN RESPECT OF ANY COLLATERAL ARE GOVEREND BY THE
LAWS OF THE JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH LETTER OF CREDIT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES
DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO LAWS OR RULES ARE DESIGNATED, IN
THE CASE OF STANDBY LETTERS OF CREDIT, THE INTERNATIONAL STANDBY PRACTICES
(ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP98
RULES")) AND, IN THE CASE OF TRADE LETTERS OF CREDIT, THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS, 1993 REVISION (INTERNATIONAL CHAMBER OF
COMMERCE PUBLICATION NO. 500 (THE "UCP 500 RULES")), AND, AS TO MATTERS NOT
GOVERNED BY THE ISP98 RULES OR THE UCP 500 RULES, AS APPLICABLE, THE INTERNAL
LAWS OF THE STATE OF NEW YORK. This Agreement and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to the
subject matter hereof and thereof and supersede any prior agreements, written or
oral, with respect thereto.
11.14 Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
11.15 Severability
Every provision of the Loan Documents is intended to be severable,
and if any term or provision thereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.16 Integration
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between the Agent and the Borrowers with respect
to certain fees, the Loan Documents embody the entire agreement and
understanding among the Borrowers, the Agent, the Issuing Bank and the Lenders
with respect to the subject matter thereof and supersede all prior agreements
and understandings among the Borrowers, the Agent, the Issuing Bank and the
Lenders with respect to the subject matter thereof.
11.17 Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Obligor hereby agrees that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
11.18 Service of Process
Each party to a Loan Document hereby irrevocably consents to the
service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 11.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
11.19 No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver, consent
or amendment thereto shall affect the right of the Agent, the Issuing Bank or
any Lender to serve process in any manner permitted by law or limit the right of
the Agent, the Issuing Bank or any Lender to bring proceedings against any
Obligor in the courts of any jurisdiction or jurisdictions in which such Obligor
may be served.
11.20 WAIVER OF TRIAL BY JURY
EACH OF THE AGENT, THE ISSUING BANK, THE SWING LINE LOAN LENDER,
THE LENDERS AND THE BORROWERS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWERS HEREBY CERTIFY THAT NO
REPRESENTATIVE OR AGENT OF THE ISSUING BANK, THE SWING LINE LOAN LENDER, THE
AGENT, OR THE LENDERS, OR COUNSEL TO THE ISSUING BANK, THE AGENT OR THE LENDERS,
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ISSUING BANK, THE AGENT, THE
SWING LINE LOAN LENDER OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH
BORROWER ACKNOWLEDGES THAT THE ISSUING BANK, THE AGENT AND THE LENDERS HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS
SECTION.
11.21 Treatment of Certain Information
Each of the Issuing Bank and Lenders understands that some of the
information furnished to it pursuant to this Loan Agreement may be received by
it prior to the time that such information shall have been made public, and each
of the Issuing Bank and Lenders hereby agree that it will keep, and will direct
its officers and employees to keep, all the information provided to it pursuant
to this Loan Agreement confidential prior to its becoming public (through
publication other than as a result of action by Issuing Bank and one of the
Lenders in violation of this Section 11.21) subject, however, to (i) disclosure
to officers, directors, employees, representatives, agents, auditors,
consultants, advisors, lawyers and affiliates of the Issuing Bank or such
Lender, in the ordinary course of business, (ii) disclosure to such officers,
directors, employees, agents and representatives of a prospective assignee or
participant as need to know such information in connection with the evaluation
of a possible participation in the Commitments hereunder (who will be informed
of the confidential nature of the material); (iii) the obligations of the
Issuing Bank and Lenders or a participant under applicable law, or pursuant to
subpoenas or other legal process, to make information available to governmental
agencies and examiners or to others and the right of the Issuing Bank and
Lenders to use such information in proceedings to enforce their rights and
remedies hereunder or under any other Loan Document or in any proceeding against
the Issuing Bank and lenders in connection with this Loan Agreement or under any
other Loan Document or the transactions contemplated hereunder; (iv) disclosure
to the extent such information (A) becomes publicly available other than as a
result of a breach of this Loan Agreement or (B) becomes available to the
Issuing Bank or Lender or a participant on a non-confidential basis, not in
breach of any agreement or other obligation to the Borrowers from a source other
than the Borrowers; (v) disclosure to the extent the Borrowers shall have
consented to such disclosure in writing; or (vi) the Issuing Bank or each Lender
or participant's right to make information available (A) to any corporation
controlled by the Issuing Bank or Lender or participant or under common control
with the Issuing Bank or Lender or participant in connection with the sale of a
participation by such Lender or participant to such other corporation provided
such transferee agrees to be bound by confidentiality or (B) in accordance with
Section 11.21.
11.22 Judgment Currency
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due to a Lender in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which, in accordance with normal banking procedures, such
Lender could purchase the Original Currency with the Other Currency on the
Business Day preceding the day on which final judgment is given or, if permitted
by applicable law, on the day on which the judgment is paid or satisfied.
(b) The obligations of the Borrowers in respect of any sum due in
the Original Currency from it to a Lender under any of the Loan Documents shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by the Lender of any sum
adjudged to be so due in the Other Currency, the Lender may, in accordance with
normal banking procedures, purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to the Lender in the Original Currency, each Borrower agrees,
as a separate obligation and notwithstanding the judgment, to indemnify the
Lender, against any loss, and, if the amount of the Original Currency so
purchased exceeds the sum originally due to the Lender in the Original Currency,
the Lender shall remit such excess to such Borrower.
11.23 Pledge to Federal Reserve
Any Lender may at any time pledge all or any portion of its rights
under the Loan Documents including any portion of any Note payable to it to any
of the twelve (12) Federal Reserve Banks organized under Section 4 of the
Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement
thereof shall release any such Lender from its obligations under any of the Loan
Documents.
11.24 Lost Notes
Upon receipt of an affidavit of an officer of any Lender as to the
loss, theft, destruction or mutilation of any Note or any other security
document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon surrender and cancellation of such Note
or other Collateral Document, the Borrowers will issue, in lieu thereof, a
replacement Note or other Collateral Document in the same principal amount
thereof and otherwise of like tenor.
11.25 Interest Adjustment
All agreements between the Obligors and the Agent and the Lenders
are hereby expressly limited so that in no contingency or event whatsoever,
whether by reason of acceleration of maturity of the indebtedness evidenced
hereby or otherwise, shall the amount paid or agreed to be paid to the Lenders
for the use or the forbearance of the indebtedness evidenced by the Notes exceed
the maximum permissible under applicable law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof provided,
however, that in the event there is a change in the law which results in a
higher permissible rate of interest, then the Loan Documents shall be governed
by such new law as of its effective date. In this regard, it is expressly agreed
that it is the intent of the Obligors, the Agent and the Lenders in the
execution, delivery and acceptance of this Agreement to contract in strict
compliance with the laws of the State of New York from time to time in effect.
If, under or from any circumstances whatsoever, fulfillment of any provision
hereof or of any of the Loan Documents at the time of performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
any circumstances whatsoever the Lenders should ever receive as interest an
amount which would exceed the highest lawful rate, such amount which would be
excessive interest shall be applied to the reduction of the principal balance
evidenced by a Note (in such manner as the Lenders may determine in their sole
discretion) and not to the payment of interest. This provision shall control
every other provision of all agreements between the Obligors and the Agent and
the Lenders.
11.26 No Set-off or Counterclaim; Loan Documents in Full Effect
The Borrowers hereby acknowledge, confirm and declare that (i) all
sums owing to the Agent and/or the Lenders in connection with the Loan Documents
are owed without offset, deduction, counterclaim or defense of any kind or
nature to the payment thereof and (ii) the Loan Documents and the Liens and
security interests created thereby are valid, subsisting and, to the Borrowers'
knowledge, perfected liens and security interests.
11.27 Amendment and Restatement
This Agreement amends and restates the Existing Credit Agreement
and all indebtedness, liabilities, Obligations, Liens and security interests
arising or created under the Loan Documents continue in full force and effect
(except as expressly heretofore modified and/or modified and/or amended and
restated in connection with the transactions contemplated by this Agreement),
unimpaired and undischarged. This Agreement is a replacement, consolidation,
amendment and restatement of the Existing Credit Agreement (and the Revolving
Credit Notes are issued in substitution and exchange for, and not in
satisfaction of, certain Indebtedness outstanding under the Existing Credit
Agreement) and IS NOT A NOVATION.
11.28 Re-Allocation of Loans, Letters of Credit Outstandings and
Commitments.
All Loans, Letters of Credit Outstanding and Commitments of each
Lender under the Existing Credit Agreement shall, from and after the Effective
Date, be assigned and re-allocated among the Loans, Letters of Credit and
Commitments provided for hereunder, so that after giving effect hereto, the
Revolving Loan Commitment Percentages of all Lenders are set forth on Exhibit A
hereto.
11.29 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 11.29.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
GP STRATEGIES CORPORATION
By:
Name: Xxxxx X. Xxxxxxxxx
Title: President and Chief Financial Officer
GENERAL PHYSICS CORPORATION
By:
Name:
Title:
FLEET NATIONAL BANK,
Individually, as Issuing Bank and as Agent
By:
Name:
Title:
DIME SAVINGS BANK OF NEW YORK, FSB
By:
Name:
Title:
LASALLE BUSINESS CREDIT INC.
By:
Name:
Title:
EXHIBIT A
LENDERS;
REVOLVING LOAN COMMITMENT PERCENTAGES;
ADDRESSES
--------------------------------------------------------------------------------
Revolving Loan
Commitment
LENDER Commitment Percentage
-------------------------------------------------------------------------------
$20,000,000 50%
FLEET NATIONAL BANK
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
-------------------------------------------------------------------------------
$10,000,000 25%
LASALLE BUSINESS CREDIT INC.
000 X. XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------------------------------------------------------
DIME SAVINGS BANK $10,000,000 25%
OF NEW YORK, FSB
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
------------------------------------------------------------------------------
TOTAL COMMITMENT $40,000,000 100%
------------------------------------------------------------------------------
