SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Plug Power Inc.
(Name of Issuer)
$0.01 Par Value Common Stock
(Title of Class of Securities)
72919P103
(CUSIP Number)
CATHERINE S. HILL, ESQ
Catherine S. Hill, PLLC
4 Global View
Troy, NY 12180
(518) 285-7586
November 3, 1999
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
Schedule because of 240.13d-1(e), 240.13d-1(g), check the following box:
CUSIP No. 72919P103
1. NAME OF REPORTING PERSONS
Mechanical Technology Incorporated
IRS IDENTIFICATION NOS. OF ABOVE PERSONS (entities only)
141462255
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b)
3. SEC USE ONLY
4. SOURCE OF FUNDS
OO, BK, WC
5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Organized under the Laws of the State of New York
NUMBER OF SHARES BENEFICIALLY OWNED BY
EACH REPORTING PERSON WITH:
<PAGE>
7. SOLE VOTING POWER
13,704,315 shares (32.5%)
8. SHARED VOTING POWER
0
9. SOLE DISPOSITIVE POWER
13,704,315 shares (32.5%)
10. SHARED DISPOSITIVE POWER
0
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
13,704,315 shares
12. CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
32.5%
14. TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
Item 1. Security and Issuer.
The class of equity securities to which this statement on Schedule 13D relates
is the common stock, par value $0.01 per share (the "Common Stock") of Plug
Power Inc. ("Plug Power"), a Delaware Corporation with its principal office
located at 968 Albany-Shaker Road, Latham, NY 12110.
Item 2. Identity and Background.
This statement is being filed by Mechanical Technology Incorporated, a New York
Corporation ("MTI"). First Albany Companies, Inc., a New York corporation
("FAC") owns [approximately 34%] percent of the outstanding shares of MTI, and
accordingly, may control MTI. George McNamee ("McNamee") and Alan Goldberg
("Goldberg"; MTI, FAC, McNamee and Goldberg are collectively, the "Control
Persons") are Co-Chief Executive Officers of FAC and therefore may control FAC.
MTI is a manufacturer of advanced products that combine precision sensing
capabilities with proprietary software to serve a variety of applications for
commercial and military aviation, computer equipment and energy conversion
markets. The address of MTI's principal office and principal business is 968
Albany-Shaker Road, Latham, NY 12110.
FAC is a holding company that, through its principal wholly-owned subsidiary,
First Albany Corporation ("First Albany"), is an investment banking, securities
trading and brokerage firm serving corporations, governments and institutional
investors. The address of FAC's principal office and principal business is 30
South Pearl Street, Albany, NY 12207.
McNamee is Chairman of the Board of Directors of Plug Power and Chief Executive
Officer and a Director of MTI. His principal occupation is as Co-Chief
Executive Officer and Chairman of the Board of Directors of FAC. His business
address is at FAC's principal offices at 30 South Pearl Street, Albany,
NY 12207.
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Goldberg is a Director of MTI. His principal occupation is as Co-Chief
Executive Officer, Director and President of FAC. His business address is at
FAC's principal offices at 30 South Pearl Street, Albany, NY 12207.
The name, business address and present principal occupation or employment of
each executive officer and director (the "Executive Officers and Directors") of
MTI and FAC are set forth in Schedule 1, attached hereto and made a part
hereof. Each of such individuals is a citizen of the United States of America,
except for J. Anthony Boeckh, Ph.D., who is a citizen of Canada.
McNamee and Goldberg are each citizens of the United States of America.
During the past five years, neither MTI, FAC, McNamee, Goldberg nor any of the
Executive Officers and Directors have been (a) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors), or (b) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities to, Federal or State Securities Laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds and Other Consideration.
As of November 2, 1999, MTI owned 13,704,315 membership interests of Plug Power,
LLC, which were converted into 13,704,315 shares of Plug Power Common Stock
pursuant to a recapitalization effected on November 2, 1999. MTI was a founding
member of Plug Power, LLC, and has owned membership interests in Plug Power,LLC
since June of 1997. On June 27, 1997, MTI contributed assets related to its
fuel cell program, including intellectual property, 22 employees, equipment,
and the right to receive government contracts for research and development of
PEM fuel cell systems, if awarded, in exchange for 4,750,000 membership
interests. On June 11, 1998, MTI contributed a below market value lease to
Plug Power, LLC in exchange for 2,000,000 membership interests. On June 15,
1998, August 20, 1998, October 6, 1998, October 23, 1998, November 9, 1998,
November 30, 1998, December 21, 1998, January 11, 1999, February 1, 1999 and
February 15, 1999, MTI contributed a total of $5,000,000 in cash or cash
equivalents to Plug Power, LLC in exchange for a total of 1,000,000 membership
interests. On January 26, 1999, MTI received 2,250,000 membership interests
in Plug Power, LLC as payment of a deferred purchase price based on the number
of government contracts awarded to Plug Power prior to April 1, 1999. On June
30, 1999, MTI received 704, 315 Plug Power, LLC membership interests in
exchange for conveying a 35-acre parcel of land with three office buildings and
a house (the "Plug Campus") to Plug Power, LLC. In that transaction, Plug Power,
LLC also assumed approximately $6,200,000 in pre-existing debt on the Plug
Campus. On September 30, 1999, MTI received 266,667 Plug Power membership
interests in exchange for $2,000,000 in cash. On November 1, 1999, MTI
received 2,733,333 Plug Power membership interests in exchange for $20,500,000
in cash proceeds of MTI's loan from KeyBank, N.A.. Plug Power became a section
12(b) reporting company as of October 28, 1999, the effective date of their
registration statement.
Item 4. Purpose of Transaction.
MTI converted its membership interests to Plug Power Common Stock, and
previously purchased membership interests in Plug Power, LLC for investment
purposes. Pursuant to MTI's Credit Agreement with KeyBank, N.A. (the "Credit
Agreement"), MTI has pledged 13,704,314 shares of Plug Power Common Stock as
collateral for its $22,500,000 loan from KeyBank, N.A. ("Loan"). Although the
Credit Agreement does not require MTI to sell shares of Plug Power Common
<PAGE>
Stock, MTI may sell shares of Plug Power Common Stock to repay interest or
principal on Loan. Pursuant to the Credit Agreement, MTI is obligated to make
interest only payments for the first 18 months following the closing of the
Loan, and to repay the principal in 6 equal quarterly installments of
$3,750,000 each, plus appropriate interest payments, commencing on
June 30, 2001. See exhibits 2 and 3.
From time to time, MTI and the Control Persons have engaged in discussions
with Plug Power, its officers and directors and other significant shareholders
relating to Plug Power's policies, management, directors, business, operations,
financial condition, strategies and other developments, and MTI and the Control
Persons intend to engage in such discussions in the future. From time to time,
each of MTI and the Control Persons may buy or sell additional Shares on the
open market, in private negotiated transactions, from Plug Power or otherwise.
Notwithstanding the foregoing, as significant shareholders of Plug Power and
through any of its representatives that may be members of Plug Power's Board of
Directors, MTI and the Control Persons may consider, from time to time, (i) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the issuer or any of its subsidiaries, (ii) a sale or
transfer of a material amount of the assets of the issuer or any of its
subsidiaries, (iii) any material change in the present capitalization or
dividend policy of the issuer, (iv) any other material change in the issuer's
business or corporate structure, (v) changes in the issuer's charter, bylaws,
or instruments corresponding thereto or other actions which may impede the
acquisition of control of the issuer by any person; (vi) causing a class of
securities of the issuer to be delisted from a national securities exchange or
to cease to be authorized to be quoted on an inter-dealer quotation system of a
registered national securities association, (vii) causing a class of equity
securities of the issuer to become eligible for termination of a registration
pursuant to Section 12(g)(4) of the Exchange Act or (viii) any action similar
to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) MTI is the direct beneficial owner of 13,704,315 shares of Plug Power
Common Stock, representing 32.5% of the Common Stock outstanding as of
November 3, 1999.
(b) MTI has the sole power to direct the vote and disposition of all Common
Stock directly owned by it as described in paragraph (a).
(c) During the past 60 days MTI did not purchase any Plug Power Common Stock,
it did however purchase the following Plug Power membership interests:
DATE AMOUNT PRICE SOURCE OF FUNDS
9/30/99 266,667 $2,000,000 Working capital,
proceeds of
rights offering.
11/1/99 2,733,333 $20,500,000 Bank loan from KeyBank,
N.A. All Plug Power Common
Stock was pledged to KeyBank,
N.A. in connection with the
loan. See Exhibits 2 and 3.
During the past 60 days, the following Control persons purchased the following
number of shares of Plug Power Common Stock.
<PAGE>
PERSON AMOUNT
George McNamee 10,000 shares
Dale Church 1,000 shares
Edward Dohring 1,000 shares
Alan Goldberg None
E. Dennis O'Connor 1,000 shares
Walter Robb 1,000 shares
Beno Sternlicht 1,000 shares
Cynthia Scheuer 500 shares
Dennis Chaves 500 shares
(d) No other person is known to have the right to receive dividends from, or
proceeds from the sale of, the Common Stock acquired by MTI in this
transaction.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings, or Relationships with Respect
to the Securities of the Issuer.
MTI and Plug Power have no contracts, arrangements, understandings or
relationships (legal or otherwise) with any person with respect to any
securities of the Issuer, including, but not limited to transfer or voting of
any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or loss,
or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1: Information with Respect to Directors and Executive Officers of
Mechanical Technology, Incorporated and First Albany Companies, Inc.
Exhibit 2: Credit Agreement between MTI and KeyBank, N.A. dated
November 1, 1999.
Exhibit 3: Stock Pledge Agreement between MTI and KeyBank, N.A. dated
November 1, 1999.
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DATED: __________________ MECHANICAL TECHNOLOGY, INCORPORATED
____________________________
By:
<PAGE>
Exhibit 1
INFORMATION WITH RESPECT TO DIRECTORS AND EXECUTIVE
OFFICERS OF MECHANICAL TECHNOLGY INCORPORATED AND
FIRST ALBANY COMPANIES, INC.
The following table sets forth the name and present principal occupation or
employment of the current directors and executive officers of Mechanical
<PAGE>
Technology, Incorporated, and First Albany Companies, Inc.
Name Occupation
George C. McNamee Chairman of the Board, director, and Co-Chief
Director and Officer, MTI Executive Officer of First Albany Companies,
Director and Officer, FAC Inc. Director and Chief Executive Officer of
MTI. Chairman of the Board of Directors of
Plug Power, Inc. His present business address
is 30 South Pearl Street, Albany, New York,
12207.
Dale Church Chief Executive Officer, Ventures and
Director, MTI Solutions, LLC, and Trustee of National Defense
Industrial Association. His present business
address is Ventures and Solutions, LLC, 9
Franklin Street, Alexandria, Virginia, 22314.
Edward A. Dohring Recently retired as Vice President, Silicon
Director, MTI Valley Group and President, SVG Lithography
Systems. His present business address is 360
Beach Avenue, Rochester, New York, 14612.
Alan P. Goldberg Director, President and Co-Chief Executive
Director, MTI Officer of First Albany Companies, Inc.
Director and Officer, FAC Director of MTI. His present business address
is 30 South Pearl Street, Albany, New York,
12207.
E. Dennis O'Connor Director of New Products and Technology, Masco
Director, MTI Corporation. His present business address is
2266 Red Apple Road, Manistee, Michigan, 49660.
Dr. Walter L. Robb President and Management Consultant, Vantage
Director, MTI Management, Inc. His present business address is
Vantage Management, Inc., 3000 Troy-Schenectady
Road, Niskayuna, New York, 12309.
Dr. Beno Sternlicht President, Benjosh Management Corporation and
Director, MTI President, Arben International. His present
business address is 123 Partridge Run,
Schenectady, New York, 12309.
Cynthia Scheuer Vice President and Chief Financial officer of
Officer, MTI Mechanical Technology, Incorporated. Her present
business address is 968 Albany-Shaker Road,
Latham, New York, 12110.
Dennis P. Chaves Vice President and General Manager, Advanced
Officer, MTI Products, Mechanical Technology, Incorporated.
His present business address is 968 Albany-
Shaker Road, Latham, New York, 12110.
Daniel V. McNamee III President of The Publishing & Media Group, a
Director, FAC management consulting firm specializing in the
media communications industry. His present
business address is 475 Fifth Avenue, 19th
Floor, New York, New York, 10017.
<PAGE>
J. Anthony Boeckh, Ph.D. Chairman and Chief Executive Officer of
Director, FAC BCA Publications Ltd., Montreal, Canada, and
Editor-in-Chief of The Bank Credit Analyst. He
is also a principal of Greydanus, Boeckh and
Associates, Inc., Montreal, Canada, a fixed
income specialty manager. His present business
address is BCA Publications Ltd., 1002
Sherbrooke St. West, Ste. 1600, Montreal,
Canada, H3A 3L6.
Peter Barton Business consultant and investor. His present
Director, FAC business address is c/o Liberty Media Corp.,
8101 East Prentice Avenue, Suite 500,
Englewood, Colorado, 80111.
Walter Fiederowicz Business consultant and investor. His present
Director, FAC business address is 39 Painter Hill Road,
Woodbury, Connecticut 06798.
Hugh A. Johnson, Jr. Director, Senior Vice President and Chief
Director and Officer, FAC Investment Officer of First Albany Companies,
Inc., and First Albany and Chairman of First
Albany Asset Management Corporation. His
present business address is 30 South Pearl
Street, Albany, New York, 12207.
Benaree P. Wiley President and Chief Executive Officer of The
Director, FAC Partnership, a Boston-based organization founded
by business and civic leaders to promote the
development of professionals of color through
access to corporate, municipal and state
leaders. Her present business address is 334
Boylston Street, Suite 400, Boston,
Massachusetts, 02116.
Charles L. Schwager Consultant to Loanet, Inc., a provider of
Director, FAC on-line, real time accounting services to
support financial institutions engaged in the
business of borrowing and lending securities.
His principal business address is 12B Manor
Parkway, Salem, New Hampshire, 03079.
Stephen P. Wink Secretary and General Counsel of FAC and Sr.
Officer, FAC Vice President, General Counsel and Secretary
of First Albany. His present business address
is 30 South Pearl Street, Albany, New York,
12207.
Timothy Wells Chief Financial Officer of First Albany
Officer, FAC Companies, Inc., and Senior Vice President of
First Albany. His present business address is
30 South Pearl Street, Albany, New York,
12207.
MECHANICAL TECHNOLOGY INCORPORATED
as the Borrower
And
KEYBANK NATIONAL ASSOCIATION
as the Lender
_____________________
CREDIT AGREEMENT
dated as of
November 1, 1999
_____________________
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND TERMS 1
1.1. Certain Defined Terms 1
1.2. Computation of Time Periods 9
1.3. Accounting Terms 9
SECTION 2. AMOUNT AND TERMS OF LOANS 9
2.1. Commitment for Loans 9
2.2. Minimum Borrowing Amounts, etc. 9
2.3. Disbursement of Loan Proceeds 10
2.4. Closing Fees 10
2.5. Note; Loan Accounts 10
2.6. Voluntary Conversion of Loans 10
2.7. Interest 11
2.8. Selection and Continuation of Interest Periods 15
2.9. Illegality, Increased Costs, etc. 16
2.10. Breakage Compensation 17
SECTION 3. PAYMENTS 17
3.1. Voluntary Prepayments 17
3.2. Scheduled Repayments and Mandatory Prepayments 18
3.3. Method and Place of Payment 19
SECTION 4. CONDITIONS PRECEDENT 19
4.1. Notice of Closing Date; Effectiveness; Note 19
4.2. Fees, etc 20
4.3. Other Credit Documents 20
4.4. Borrower's Arrangements with the Company;
Company's IPO 20
4.5. No Default or Event of Default;
Representations True and Correct 20
4.6. Corporate Charter and Long Form Good Standing 20
4.7. Corporate Certificate 21
<PAGE>
Page
4.8. Opinion of Counsel 21
4.9. Deposit and Delivery of Collateral; Taxes, etc 21
4.10. Proceedings and Documents 21
SECTION 5. REPRESENTATIONS AND WARRANTIES 21
5.1. Organizational Status, etc. 21
5.2. Subsidiaries 21
5.3. Organizational Power and Authority, etc. 21
5.4. No Violation 22
5.5. Governmental Approvals 22
5.6. Litigation 22
5.7. Use of Proceeds; Margin Regulations 22
5.8. Financial Statements, etc. 23
5.9. No Material Adverse Change. 23
5.10. Tax Returns and Payments 23
5.11. Title to Properties, etc. 24
5.12. Lawful Operations, etc. 24
5.13. Compliance with ERISA 24
5.14. Intellectual Property, etc. 24
5.15. Year 2000 Computer Matters 25
5.16. Investment Company 25
5.17. Security Interests 25
5.18. True and Complete Disclosure 25
SECTION 6. AFFIRMATIVE COVENANTS 26
6.1. Reporting Requirements 26
6.2. Books, Records and Inspections 28
6.3. Insurance 28
6.4. Payment of Taxes and Claims 28
6.5. Corporate Franchises 29
6.6. Good Repair 29
6.7. Compliance with Statutes, etc. 29
6.8. Certain Subsidiaries to Join in
Subsidiary Guaranty 29
6.9. Senior Debt 29
SECTION 7. NEGATIVE COVENANTS 30
7.1. Changes in Business 30
7.2. Consolidation, Merger, Acquisitions,
Asset Sales, etc. 30
7.3. Liens 32
7.4. Dividends, etc 32
7.5. Transactions with Affiliates 32
SECTION 8. EVENTS OF DEFAULT 33
8.1. Events of Default 33
8.2. Acceleration, etc. 35
8.3. Application of Liquidation Proceeds 35
SECTION 9. MISCELLANEOUS 36
9.1. Payment of Expenses etc. 36
9.2. Right of Setoff 37
9.3. Notices 37
9.4. Benefit of Agreement 37
9.5. No Waiver: Remedies Cumulative 38
9.6. Independence of Covenants. 38
<PAGE>
Page
9.7. Governing Law; Submission to Jurisdiction;
Venue; Waiver of Jury Trial 39
9.8. Counterparts 39
9.9. Effectiveness; Integration 39
9.10. Headings Descriptive 39
9.11. Amendment or Waiver 39
9.12. Survival of Indemnities 40
9.13. Domicile of Loans 40
9.14. Confidentiality 40
9.15. General Limitation of Liability 40
9.16. No Duty 40
9.17. Lender Not Fiduciary to Borrower, etc. 41
9.18. Survival of Representations and Warranties 41
EXHIBIT A - FORM OF NOTE
EXHIBIT B-1 - FORM OF SECURITY AGREEMENT
EXHIBIT B-2 - FORM OF PLEDGE AGREEMENT
EXHIBIT B-3 - FORM OF SUBSIDIARY GUARANTY
EXHIBIT C - FORM OF CORPORATE CERTIFICATE
EXHIBIT D - FORM OF OPINION OF COUNSEL TO THE BORROWER
<PAGE>
THIS CREDIT AGREEMENT, dated as of November 1, 1999, between (i) MECHANICAL
TECHNOLOGY INCORPORATED, a New York corporation (herein, together with its
successors and assigns, the "Borrower"); and (ii) KEYBANK NATIONAL ASSOCIATION,
a national banking association (herein, together with its successors and
assigns, the "Lender"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms used herein and
defined in section 1 are used herein as so defined.
(2) The Borrower has applied to the Lender for a single draw term loan
credit facility in the aggregate principal amount of $22,500,000, in order to
finance a capital contribution in an equivalent amount by the Borrower to Plug
Power, LLC, a Delaware limited liability company, in exchange for additional
membership interests in Plug Power, LLC.
(3) Following the incurrence of one or more Loans hereunder on the Closing
Date, the payment by the Borrower out of the proceeds of such Loans of such
capital contribution to Plug Power, LLC (to the extent not previously paid,
after giving effect to a recent $2,000,000 prepayment of such capital
contribution) and the completion of the acquisition by the Borrower of such
additional membership interests in Plug Power, LLC, it is contempplated that
Plug Power, LLC will be merged into Plug Power Inc., a Delaware corporation
(herein, together with its successors and assigns, the "Company"), and that the
membership interests held by the Borrower in Plug Power, LLC will be converted
into shares of common stock of the Company.
(4) It is also contemplated that, promptly following completion of such
merger, the Company will complete an underwritten initial public offering of
shares of its common stock.
(5) Subject to and upon the terms and conditions set forth herein, the
Lender is willing to make available to the Borrower the credit facilities
provided for herein.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1.1. Certain Defined Terms. As used herein, the following terms shall have
the meanings herein specified unless the context otherwise requires. Defined
terms in this Agreement shall include in the singular number the plural and in
the plural the singular:
"Account Control Agreement" shall have the meaning provided in section 4.3.
"Adjusted Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (A) either (i) the rate per annum for deposits in Dollars
for a maturity most nearly comparable to such Interest Period which appears on
page 3750 of the Dow Jones Telerate Screen as of 11:00 A.M. (local time at the
Notice Office) on the date which is two Business Days prior to the commencement
of such Interest Period, or (ii) if such a rate does not appear on such a page,
an interest rate per annum equal to the average (rounded upward to the nearest
whole multiple of 1/100ths of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in Dollars are offered to the
Lender by prime banks in the London interbank Eurodollar market for deposits of
<PAGE>
amounts in same day funds comparable to the outstanding principal amount of the
Eurodollar Loan for which an interest rate is then being determined with
maturities comparable to the Interest Period to be applicable to such
Eurodollar Loan, determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest Period, in each
case divided (and rounded upward to the nearest whole multiple of 1/100ths of
1%) by (B) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D).
"Affiliate" shall mean, with respect to any person, any other person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with such person. A person shall be deemed to control a second person
if such first person possesses, directly or indirectly, the power (i) to vote
10% or more of the securities having ordinary voting power for the election of
directors or managers of such second person or (ii) to direct or cause the
direction of the management and policies of such second person, whether through
the ownership of voting securities, by contract or otherwise. Notwithstanding
the foregoing, (x) a director, officer or employee of a person shall not,
solely by reason of such status, be considered an Affiliate of such person; and
(y) the Lender shall not in any event be considered an Affiliate of the
Borrower or any of its Subsidiaries.
"Agreement" shall mean this Credit Agreement, as the same may be from time to
time further modified, amended and/or supplemented.
"Applicable Eurodollar Margin" shall have the meaning provided in section
2.7(f).
"Applicable Lending Office" shall mean (i) the Lender's Domestic Lending Office
in the case of Prime Rate Loans, and (ii) the Lender's Eurodollar Lending
Office in the case of Eurodollar Loans.
"Authorized Officer" shall mean any officer or employee of any Credit Party
designated in writing to the Lender by such Credit Party as being authorized to
execute and deliver any Credit Documents or take any actions in connection with
the Credit Documents on behalf of such Credit Party.
"Bankruptcy Code" shall have the meaning provided in section 8.1(h).
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Business Day" shall mean (i) for all purposes other than as covered by clause
(ii) below, any day excluding Saturday, Sunday and any day which shall be in
the city in which the applicable Payment Office is located a legal holiday or a
day on which banking institutions are authorized by law or other governmental
actions to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
any day which is a Business Day described in clause (i) and which is also a day
on which dealings are carried on in the London interbank market and banks are
open for business in London.
"Cash Proceeds" shall mean with respect to any sale or other disposition of any
property, the aggregate cash payments (including any cash received by way of
deferred payment pursuant to a note receivable issued in connection with such
<PAGE>
sale or other disposition, other than the portion of such deferred payment
constituting interest, but only as and when so received) received by the
Borrower and/or any Subsidiary from such sale or other disposition.
"Change of Control" shall mean and include any of the following:
(i) during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Borrower's Board of Directors
(together with any new directors (x) whose election by the Borrower's Board of
Directors was, or (y) whose nomination for election by the Borrower's
shareholders was (prior to the date of the proxy or consent solicitation
relating to such nomination), approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
such period or whose election or nomination for election was previously so
approved), shall cease for any reason to constitute a majority of the directors
then in office;
(ii) any person or group (as such term is defined in section 13(d)(3) of the
1934 Act), other than the Borrower, any trustee or other fiduciary holding
securities under an employee benefit plan of the Borrower, or any members of
the Current Holder Group, shall acquire, directly or indirectly, beneficial
ownership (within the meaning of Rule 13d-3 and 13d-5 of the 1934 Act) of more
than 35%, on a fully diluted basis, of the economic or voting interest in the
Borrower's capital stock;
(iii) the shareholders of the Borrower approve a merger or consolidation of
the Borrower with any other person, other than a merger or consolidation which
would result in the voting securities of the Borrower outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted or exchanged for voting securities of the surviving or
resulting entity) more than 75% of the combined voting power of the voting
securities of the Borrower or such surviving or resulting entity outstanding
after such merger or consolidation; and/or
(iv) the shareholders of the Borrower approve a plan of complete liquidation
of the Borrower or an agreement or agreements for the sale or disposition by
the Borrower of all or substantially all of the Borrower's assets.
As used in this definition, the term"Current Holder Group" shall mean (i) those
persons, if any, who as of the Effective Date have disclosed in filings with
the SEC their beneficial ownership of more than 5% of the outstanding shares of
capital stock of the Borrower, (ii) those other persons who are officers and
directors of the Borrower at the Effective Date, (iii) the spouses, heirs,
legatees, descendants and blood relatives to the third degree of consanguinity
of any such person, (iv) the executors and administrators of the estate of any
such person, and any court appointed guardian of any such person, and (v) any
trust, family partnership or similar investment entity for the benefit of any
such person referred to in the foregoing clauses (i), (ii) and (iii) and/or any
other persons (including for charitable purposes), so long as one or more
members of the Current Holder Group has the exclusive or a joint right to
control the voting and disposition of securities held by such trust, family
partnership or other investment entity.
"Closing Date" shall mean November 1, 1999.
"Collateral" shall mean any collateral covered by any Security Document.
<PAGE>
"Collateral Coverage Ratio" shall mean at any date of determination the ratio
of (i) the Market Value of the Collateral at such time, to (ii) the sum of (A)
the then aggregate outstanding principal amount of the Loans, plus (B) the
amount of interest which would accrue hereunder on such Loans during the
succeeding three months if such Loans bore interest at the Prime Rate
"Commitment" shall have the meaning provided in section 2.1.
"Company" shall have the meaning provided in the Preliminary Statements of this
Agreement.
"Continue", "Continuation" and "Continued" each refers to a continuation of a
Eurodollar Loan for an additional Interest Period as provided in section 2.8.
"Convert", "Conversion" and "Converted" each refers to a conversion of a Loan
of one Type into a Loan of another Type, pursuant to section 2.6, 2.8(b) or
2.9.
"Credit Documents" shall mean this Agreement, the Notes, the Subsidiary
Guaranty and each Security Document.
"Credit Party" shall mean (i) the Borrower and (ii) each other person which is
a Subsidiary or Affiliate of the Borrower and which is also a party to any
Credit Document.
"Debt" shall mean, in the case of any person and without duplication, (i) all
indebtedness of such person for borrowed money; (ii) all bonds, notes,
debentures and similar debt securities of such person; and (iii) all guarantees
by such person of any Debt of any other person.
"Default" shall mean any event, act or condition which with notice or lapse of
time, or both, would constitute an Event of Default.
"Dollars", "U.S. dollars", "U.S.Dollars" and the sign "$" each means lawful
money of the United States.
"Domestic Lending Office" shall mean, with respect to the Lender, the Payment
Office of the Lender, or such other office of the Lender as the Lender may from
time to time specify to the Borrower.
"Effective Date" shall have the meaning provided in section 9.9.
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings arising under any
Environmental Law or any permit issued under any such law (hereafter "Claims"),
including, without limitation, (a) any and all Claims by governmental or
regulatory authorities for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and (b)
any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from the storage, treatment or release of any Hazardous Materials or arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" shall mean any applicable Federal, state, foreign or local
statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy and rule of common law, and
any binding and enforceable judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment
<PAGE>
issued to or rendered against the Borrower or any of its Subsidiaries relating
to the environment, employee health and safety or Hazardous Materials,, in each
case as now or hereafter in effect or amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the
Effective Date and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in section 3(9) of ERISA)
which together with the Borrower or a Subsidiary of the Borrower would be
deemed to be a "single employer" (i) within the meaning of section 414(b),(c),
(m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary of
the Borrower being or having been a general partner of such person.
"Eurodollar Lending Office" shall mean, with respect to the Lender, the Payment
Office of the Lender, or such other office of the Lender as the Lender may from
time to time specify to the Borrower.
"Eurodollar Loan" shall mean each Loan, denominated in U.S. Dollars, bearing
interest at the rates provided in section 2.7(b).
"Eurodollar Pricing Blackout Period" shall have the meaning specified in
section 2.7(f).
"Event of Default" shall have the meaning provided in section 8.1.
"Federal Funds Effective Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Lender from three Federal Funds brokers of
recognized standing selected by the Lender.
"GAAP" shall mean generally accepted accounting principles in the United States
of America as in effect from time to time.
"Hazardous Materials" shall mean (i) any petrochemical or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls, and radon gas;
and (ii) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "restricted hazardous materials", "extremely hazardous wastes",
"restrictive hazardous wastes", "toxic substances", "toxic pollutants",
"contaminants" or "pollutants", or words of similar meaning and regulatory
effect under any applicable Environmental Law.
"Interest Period" with respect to any Eurodollar Loan shall mean the interest
period applicable thereto, as determined pursuant to section 2.8.
"IPO" shall have the meaning provided in section 4.4(b).
"KeyBank" shall mean KeyBank National Association, a national banking
association, together with its successors and assigns.
<PAGE>
"Lender" shall have the meaning provided in the first paragraph of this
Agreement.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement or any lease in the nature
thereof).
"Loan" shall have the meaning provided in section 2.1. As provided herein,
Loans may be Eurodollar Loans or Prime Rate Loans, which are the only Types of
Loans which can be outstanding hereunder.
"Margin Stock" shall have the meaning provided in Regulation U.
"Market Value" shall mean, as of any date, (i) in the case of any property
subject to the Security Agreement, the amount of any cash or cash equivalent
investments held as Collateral under the Security Agreement, or (ii) in the
case of any of the Pledged Shares subject to the Pledge Agreement, the last bid
or closing price of per share of such security on the most recent trading day,
as identified by the Lender on the basis of published quotations or information
reported to the Lender by a reputable dealer or market information reporting
service selected by it.
"Material Adverse Effect" shall mean (i) when used with reference to the
Borrower or any of its Subsidiaries, a material adverse effect on the business,
operations, prospects, property, assets, liabilities or financial condition of,
the Borrower and its Subsidiaries, taken as a whole, or a material adverse
effect on the ability of the Borrower to perform its obligations under the
Credit Documents, or (ii) when used with reference to any other person, a
material adverse effect on the business, operations, prospects, property,
assets, liabilities or financial condition of such person and its Subsidiaries,
taken as a whole, as the case may be.
"Material Subsidiary" shall mean, at any time, with reference to any person,
any Subsidiary of such person (i) that has assets at such time comprising 5% or
more of the consolidated assets of such person and its Subsidiaries, or (ii)
whose operations in the current fiscal year are expected to, or whose
operations in the most recent fiscal year did (or would have if such person had
been a Subsidiary for such entire fiscal year), represent 5% or more of the
consolidated earnings before interest, taxes, depreciation and amortization of
such person and its Subsidiaries for such fiscal year.
"Maturity Date" shall mean the third anniversary of the Closing Date.
"Minimum Borrowing Amount" shall mean (i) for any Prime Rate Loan, $500,000,
with minimum increments thereafter of $100,000; and (ii) for any Eurodollar
Loan, $2,000,000, with minimum increments thereafter of $1,000,000.
"Multiemployer Plan" shall mean a multiemployer plan, as defined in section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of the preceding
three plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean an employee benefit plan, other than a
Multiemployer Plan, to which the Borrower or any ERISA Affiliate, and one or
more employers other than the Borrower or an ERISA Affiliate, is making or
accruing an obligation to make contributions or, in the event that any such
plan has been terminated, to which the Borrower or an ERISA Affiliate made or
accrued an obligation to make contributions during any of the five plan years
preceding the date of termination of such plan.
<PAGE>
"Net Cash Proceeds" shall mean with respect to any sale or other disposition of
any property, the Cash Proceeds resulting therefrom net of (i) any reasonable
and customary expenses of sale, including brokerage or underwriting fees and
commissions, and (ii) all federal, state, and local taxes paid or reasonably
estimated to be payable by the seller or its affiliated group as a result
thereof.
"1933 Act" shall mean the Securities Act of 1933, as amended.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended.
"Note" shall have the meaning provided in section 2.5(a).
"Notice of Continuation" shall have the meaning provided in section 2.8(a).
"Notice of Conversion" shall have the meaning provided in section 2.6.
"Notice Office" shall mean the office of the Lender at 66 South Pearl Street,
Albany, New York 12207 (facsimile: (518) 487-4285), or such other office,
located in a city in the United States Eastern Time Zone, as the Lender may
designate to the Borrower from time to time.
"October 1999 Form 8-K" shall have the meaning provided in section 5.8(a).
"Payment Office" shall mean the office of the Lender at 66 South Pearl Street,
Albany, New York 12207 (facsimile: (518) 487-4285), or such other office,
located in a city in the United States Eastern Time Zone, as the Lender may
designate to the Borrower from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established pursuant
to section 4002 of ERISA, or any successor thereto.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan as defined in
section 4001 of ERISA, which is maintained or contributed to by (or to which
there is an obligation to contribute by) the Borrower or a Subsidiary of the
Borrower or an ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Borrower, or a Subsidiary of
the Borrower or an ERISA Affiliate maintained, contributed to or had an
obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in section 4.3.
"Pledged Shares" shall have the meaning provided in the Pledge Agreement.
"Pricing Grid Table" shall mean each Pricing Grid Table which appears in
section 2.7(f).
"Prime Rate" shall mean, for any period, a fluctuating interest rate per annum
as shall be in effect from time to time which rate per annum shall at all times
be equal to the greater of (i) the rate of interest established by KeyBank in
Cleveland, Ohio, from time to time, as its prime rate, whether or not publicly
announced, which interest rate may or may not be the lowest rate charged by it
for commercial loans or other extensions of credit; and (ii) the Federal Funds
Effective Rate in effect from time to time plus 1/2 of 1% per annum.
<PAGE>
"Prime Rate Loan" shall mean each Loan, denominated in U. S. Dollars, bearing
interest at the rates provided in section 2.7(a).
"Prohibited Transaction" shall mean a transaction with respect to a Plan that
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.
"Registration Statement" shall have the meaning provided in section 4.4(b).
"Regulation D" shall mean Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof establishing reserve requirements.
"Regulation U" shall mean Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof establishing margin requirements.
"Reportable Event" shall mean an event described in section 4043 of ERISA or
the regulations thereunder with respect to a Plan, other than those events as
to which the notice requirement is waived under subsections .22, .23, .25, .27,
.28, .29, .30, .31, .32, .34, .35, .62, .63, .64, .65 or .67 of PBGC Regulation
section 4043.
"Scheduled Repayment" shall have the meaning provided in section 3.2(a).
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Regulation D" shall mean Regulation D as promulgated under the Securities
Act of 1933, as amended, as the same may be in effect from time to time.
"Security Agreement" shall have the meaning provided in section 4.3.
"Security Documents" shall mean the Security Agreement, the Account Control
Agreement, the Pledge Agreement and each other document pursuant to which any
Lien or security interest is granted by any Credit Party to the Lender as
security for any of the obligations of the Borrower under the Credit Documents
and any other obligations owed to the Lender or any of its Affiliates which are
specifically stated to be secured thereby.
"Subsidiary" of any person shall mean and include (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity in which such person directly or indirectly through
Subsidiaries, has more than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall mean a
Subsidiary of the Borrower.
"Subsidiary Guaranty" shall have the meaning provided in section 6.8.
"Type" shall mean any type of Loan determined with respect to the interest
option applicable thereto, i.e., a Prime Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
<PAGE>
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the actuarial present value of the accumulated plan benefits under the
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement
of Financial Accounting Standards No. 87, based upon the actuarial assumptions
used by the Plan's actuary in the most recent annual valuation of the Plan.
"United States" and "U.S." each means United States of America.
"Wholly-Owned Subsidiary" shall mean with respect to any person each Subsidiary
of such person at least 95% of whose capital stock, member interests,
partnership interests or other equity interests, other than director's
qualifying shares or similar interests, are owned directly or indirectly by
such person.
"Written", "written" or "in writing" shall mean any form of written
communication or a communication by means of telex, facsimile transmission,
telegraph or cable.
1.2. Computation of Time Periods. In this Agreement 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".
1.3. Accounting Terms. Except as otherwise specifically provided herein, all
terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. Commitment for Loans. Subject to and upon the terms and conditions
herein set forth, the Lender agrees to make a single loan (a "Loan") to the
Borrower on the Closing Date in the principal amount of $22,500,000 (the
Lender's "Commitment"). The Loan made on the Closing Date shall be a Prime Rate
Loan. Following the Closing Date, except as otherwise provided, all or a
portion of the principal amount of a Loan may, at the option of the Borrower,
be maintained as, or Converted into, either a Prime Rate Loan or a Eurodollar
Loan, and all or a portion of the principal amount of a Eurodollar Loan may be
Continued for additional Interest Periods, with the result that more than one
Loan (all Loans, collectively"Loans") may be outstanding at any particular
time. A Loan may be either a Prime Rate Loan or a Eurodollar Loan, which are
the only Types of Loans which may be outstanding hereunder. If a Loan is a
Eurodollar Loan, it shall have a single Interest Period applicable thereto.
Loans shall be denominated only in Dollars. The principal amount of any Loan
which is prepaid or repaid may not be reborrowed. If the Loan is not made on
the Closing Date because any of the conditions specified in section 4 is not
satisfied, the Lender's Commitment and all its obligations under this Agreement
shall automatically terminate.
2.2. Minimum Borrowing Amounts, etc. The aggregate principal amount of each
Loan shall not be less than the Minimum Borrowing Amount for such Loan. No
Eurodollar Loan which is outstanding shall have the exact same Interest Period
as any other Eurodollar Loan which is outstanding. There shall be no more than
4 Eurodollar Loans outstanding at any time.
<PAGE>
2.3. Disbursement of Loan Proceeds. Subject to the terms and conditions
hereof, no later than 11:00 A.M. (local time at the Payment Office of the
Lender) on the Closing Date, the Lender will make available the amount of the
Loan to be made on the Closing Date, in Dollars and immediately available funds
at the Lender's Payment Office, by depositing such funds to the Borrower's
account at such Payment Office, or by wire transferring such funds to such
other account in another financial institution located in the United States as
may be designated by the Borrower in writing to the Lender.
2.4. Closing Fees. The Borrower shall pay to the Lender at its Payment
Office on the Closing Date, and in immediately available funds, such closing
fees in connection with the transactions contemplated hereby as have heretofore
been agreed upon in writing between the Borrower and the Lender.
2.5. Note; Loan Accounts. (a) Form of Note. The Borrower's obligation to pay
the principal of, and interest on, the Loans made to it by the Lender shall be
evidenced by a promissory note of the Borrower substantially in the form of
Exhibit A (the "Note").
(b) Note. The Note issued by the Borrower to the Lender shall: (i) be
executed by the Borrower; (ii) be payable to the order of the Lender and be
dated on or prior to the date of any Loan evidenced thereby; (iii) be payable
in the principal amount of Loans evidenced thereby; (iv) mature on the Maturity
Date; (v) bear interest as provided in section 2.7 in respect of the Prime Rate
Loans or Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
repayable in the Scheduled Repayments provided for in section 3.2; (vii) be
subject to mandatory prepayment as provided in section 3.2; and (viii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(c) Loan Accounts of Lender. The Lender shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof, and
(to the extent applicable) the Interest Period if such Loan is a Eurodollar
Loan, (ii) the amount of any principal due and payable or to become due and
payable from the Borrower to the Lender hereunder, and (iii) the amount of any
sum received by the Lender hereunder.
(d) Effect of Loan Accounts, etc. The entries made in the accounts
maintained pursuant to section 2.5(c) shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided, that the
failure of the Lender to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay or prepay the
Loans in accordance with the terms of this Agreement.
2.6. Voluntary Conversion of Loans. The Borrower shall have the option to
Convert on any Business Day all or a portion at least equal to the applicable
Minimum Borrowing Amount of the outstanding principal amount of any Loan into a
Loan or Loans of the other Type of Loan which can be made hereunder, provided
that:
(a) no partial Conversion of a Eurodollar Loan shall reduce the outstanding
principal amount thereof to less than the Minimum Borrowing Amount applicable
thereto;
(b) any Conversion of a Eurodollar Loan into a Prime Rate Loan shall be
made on, and only on, the last day of an Interest Period for such Eurodollar
Loan, unless the Borrower pays the compensation required under section 2.10 in
connection with such Conversion;
<PAGE>
(c) a Prime Rate Loan may only be Converted into a Eurodollar Loan if no
Default under section 8.1(a) or Event of Default is in existence on the date of
the Conversion unless the Lender otherwise agrees;
(d) a Prime Rate Loan may not be Converted into a Eurodollar Loan during any
Eurodollar Pricing Blackout Period;
(e) a Prime Rate Loan may not be Converted into a Eurodollar Loan during
any period when such Conversion is not permitted under section 2.9; and
(f) Eurodollar Loans resulting from this section 2.6 shall conform to the
requirements of section 2.2.
Each such Conversion shall be effected by the Borrower giving the Lender at its
Notice Office, prior to 11:00 A.M. (local time at such Notice Office), at least
three Business Days', in the case of Conversion into a Eurodollar Loan (or
prior to 11:00 A.M. (local time at such Notice Office) same Business Day's, in
the case of a Conversion into a Prime Rate Loan) prior written notice (or
telephonic notice promptly confirmed in writing if so requested by the Lender)
(each a "Notice of Conversion"), specifying the Loans to be so Converted, the
Type of Loans to be Converted into and, if to be Converted into a Eurodollar
Loan, the Interest Period to be initially applicable thereto.
2.7. Interest. (a) Interest on Prime Rate Loans. During such periods as a
Loan is a Prime Rate Loan, the unpaid principal amount of such Loan shall bear
interest at a fluctuating rate per annum which shall at all times be equal to
the Prime Rate in effect from time to time.
(b) Interest on Eurodollar Loans. During such periods as a Loan is a
Eurodollar Loan, the unpaid principal amount of such Loan shall bear interest
at a rate per annum which shall at all times during any Interest Period
applicable thereto be the relevant Adjusted Eurodollar Rate for such Interest
Period, plus the Applicable Eurodollar Margin in effect from time to time.
(c) Default Interest. Notwithstanding the above provisions, if a Default
under section 8.1(a) or Event of Default is in existence, upon written notice
from the Lender to the Borrower, all outstanding amounts of principal and, to
the extent permitted by law, all overdue interest, in respect of each and every
Loan shall bear interest, payable on demand, at a rate per annum equal to 2%
per annum above the rate otherwise applicable thereto pursuant to section
2.7(a) or (b). If any amount (other than the principal of and interest on the
Loans) payable by the Borrower under the Credit Documents is not paid when due,
such amount shall, upon written notice from the Lender to the Borrower, bear
interest, payable on demand, at a rate per annum equal to the Prime Rate in
effect from time to time plus 2% per annum.
(d) Accrual and Payment of Interest. Interest shall accrue from and
including the date of a Loan to but excluding the date of any prepayment or
repayment thereof and shall be payable in the case of any Loan, (i) which is a
Prime Rate Loan, monthly in arrears on the first Business Day of each calendar
month, (ii) which is a Eurodollar Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three
months, on the dates which are successively three months after the commencement
of such Interest Period, and (iii) on any repayment, prepayment or Conversion
(on the amount repaid, prepaid or Converted), at maturity (whether by
acceleration or otherwise) and, after such maturity, on demand.
<PAGE>
(e) Computations of Interest. All computations of interest on all Loans
hereunder shall be made on the actual number of days elapsed over a year of 360
days.
(f) Availability of Eurodollar Pricing Option; Determination of Applicable
Eurodollar Margin. A Prime Rate Loan may not be Converted, in whole or in part,
into a Eurodollar Loan, and a Eurodollar Loan may not be Continued, in whole or
in part, for an additional Interest Period or Interest Periods, during any
period (a "Eurodollar Pricing Blackout Period") in which there is no currently
effective Applicable Eurodollar Margin which has been determined by the Lender
in accordance with the provisions hereof. The Lender shall have the right at
any time, based upon a good faith review by it of the factors reflected in the
Pricing Grid Tables, information known by it and upon its good faith conclusion
that the conditions and requirements necessary to establish and determine an
Applicable Eurodollar Margin have not been met or achieved, to withdraw any
currently effective determination by it of the Applicable Eurodollar Margin,
such withdrawal to be effective on not less than one Business Days' prior
written notice to the Borrower. For all purposes of this Agreement, there shall
be considered to be in effect a currently effective Applicable Eurodollar
Margin only if the Lender shall have given the Borrower written notice of its
determination of the Applicable Eurodollar Margin in accordance with the
provisions of this section 2.7(f) and such determination shall not have been
withdrawn by the Lender in accordance with the above preceding sentence.
As used herein, the term "Applicable Eurodollar Margin", as applied to any
Eurodollar Loan, means the particular rate per annum determined by the Lender
from time to time in accordance with the Pricing Grid Tables which appear below
and the following provisions:
(i) The Lender shall determine the Applicable Eurodollar Margin from time
to time whenever it reasonably believes that the factors identified in the
Pricing Grid Tables have initially been achieved or have changed. Any
determination by the Lender of the Applicable Eurodollar Margin shall become
effective on such date as the Lender may specify on not less than one Business
Days' prior written notice to the Borrower. Any determination by the Lender of
any of the matters referred to in this section 2.7(f) shall be conclusive and
binding upon the parties absent manifest error.
(ii) Notwithstanding the above provisions, during any period when (1) a
Default under section 8.1(a) has occurred and is continuing, or (2) an Event of
Default has occurred and is continuing, the Applicable Eurodollar Margin shall
be the highest rate per annum indicated therefor in the Pricing Grid Tables,
regardless of any other factors.
(iii) If the Lender determines at any time that the Applicable Eurodollar
Margin could be determined on the basis indicated for both of the Pricing Grid
Tables, and the Applicable Eurodollar Margin would be smaller if one Pricing
Grid Table were used rather than the other, the Lender's determination of the
Applicable Eurodollar Margin shall be made on the basis of the smaller
Applicable Eurodollar Margin.
(iv) The Pricing Grid Table which appears below shall be used at such time
or times as the Lender shall have determined that (1) some or all of the
Pledged Shares are covered by a currently effective registration statement
filed under the 1933 Act, (2) the Borrower is not constrained from selling such
Pledged Shares by the terms of any "lock-up" or other restriction contained in
any other document or by any other applicable requirement, and (3) such Pledged
Shares are listed and could be freely traded on NASDAQ or a national stock
<PAGE>
exchange (the number of Pledged Shares which meet all of the foregoing
requirements are herein sometimes referred to as the "Registered Pledged
Shares").
PRICING GRID TABLE
Minimum Average Daily
Trading Volume for Most Applicable Eurodollar Margin
LTRV Ratio Recent 4 Week Period (expressed in basis points)
? 100.00% 30,000 225.00
? 90.00% 40,000 190.00
? 80.00% 50,000 140.00
? 65.00% 60,000 100.00
? 50.00% 70,000 75.00
As used above, the term "LTRV Ratio" shall mean the ratio, expressed as a
percentage, of (i) the sum of (A) the then aggregate outstanding principal
amount of the Loans, plus (B) the amount of interest which would accrue
hereunder on such Loans during the succeeding three months if such Loans bore
interest at the Prime Rate, to (ii) the Market Value of the Registered Pledged
Shares.
(v) The Pricing Grid Table which appears below shall be used at such time
or times as the Lender shall have determined that (1) some or all of the
Pledged Shares are covered by a currently effective registration statement
filed under the 1933 Act, or could be sold in a calendar quarter in compliance
with SEC Rule 144, (2) the Borrower is not constrained from selling such
Pledged Shares by the terms of any "lock-up" or other restriction contained in
any other document or by any other applicable requirement, and (3) such Pledged
Shares are listed and could be freely traded on NASDAQ or a national stock
exchange.
PRICING GRID TABLE
Minimum Average Daily Trading Applicable Eurodollar
Average Per Share Volume for Most Recent 4 Week Margin
Price Period (expressed in basis
points)
? $15.00 30,000 225.00
? $20.00 40,000 200.00
? $25.00 50,000 175.00
? $30.00 60,000 150.00
? $35.00 70,000 125.00
<PAGE>
As used above, the term "Average Per Share Price" shall mean the average over
the most recent period of 10 trading days of the higher of the closing or bid
price per share for the Pledged Shares on a national securities exchange or on
NASDAQ.
(vi) The Lender has assumed, solely for purposes of preparing the Pricing
Grid Tables, that 6,000,000 shares of the Company's Common Stock will be
offered in the IPO (subject to an overallotment option for the underwriters of
900,000 shares) at an offering price of between $13.00 and $15.00 per share,
and that after giving effect to the IPO (but not the overallotment option) the
Company will have approximately 42,208,480 shares of its Common Stock
outstanding and the Borrower will own approximately 13,700,000, or
approximately 32.5% of such outstanding shares. If any of such assumptions are
incorrect, the Lender shall modify the trading volume and Average Per Share
Prices reflected in the Pricing Grid Tables appropriately and shall notify the
Borrower of such modifications in writing, whereupon this Agreement shall be
deemed amended to reflect the modifications as so notified by the Lender.
(vii) If at any time subsequent to the Closing Date any of the following
events occurs, the Lender shall modify the trading volume and Average Per Share
Prices reflected in the Pricing Grid Tables appropriately and shall notify the
Borrower of such modifications in writing, whereupon this Agreement shall be
deemed amended to reflect the modifications as so notified by the Lender:
(1) the Company shall issue or sell any shares of its Common Stock in a
public offering or placement with institutional investors;
(2) the Company shall grant, issue or sell (whether directly or by
assumption in a merger or otherwise) any rights or warrants to subscribe for or
to purchase, or any options for the purchase of, its Common Stock or any stock
or securities convertible into or exchangeable for its Common Stock, other than
pursuant to the stock option and employee stock ownership plans as described in
the Registration Statement;
(3) the Company shall issue or sell (whether directly or by assumption in a
merger or otherwise) any stock or securities convertible into or exchangeable
for its Common Stock;
(4) the Company shall declare an extraordinary dividend or distribution
upon any stock of the Company;
(5) there shall be a stock dividend, stock split, reverse stock split,
stock reclassification, reduction of capital, or other similar event with
respect to the capital stock of the Company;
(6) the Company or any of its Subsidiaries shall directly or indirectly
purchase, repurchase, redeem or otherwise acquire for value or retire any
shares of the capital stock of the Company; or
(7) shares of the capital stock of the Company shall be issued, or shall be
converted or exchanged into other securities or property, in connection with a
merger or consolidation involving the Company or any of its Subsidiaries.
(g) Information as to Interest Rates. The Lender upon determining the
interest rate for any Loan shall promptly notify the Borrower thereof.
<PAGE>
2.8. Selection and Continuation of Interest Periods. (a) The Borrower shall
have the right
(x) at the time it gives a Notice of Conversion in respect of the
Conversion into a Eurodollar Loan, to select in such Notice the Interest Period
to be applicable to such Eurodollar Loan, and
(y) prior to 11:00 A.M. (local time at the Notice Office) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Eurodollar Loan, to elect by giving the Lender written or telephonic notice (in
the case of telephonic notice, promptly confirmed in writing if so requested by
the Lender) to Continue all or the Minimum Borrowing Amount of the principal
amount of such Eurodollar Loan as one or more Eurodollar Loans and to select
the Interest Period to be applicable to any such Eurodollar Loan (any such
notice, a "Notice of Continuation"),
which Interest Period shall, at the option of the Borrower, be a one, two,
three or six month period; provided, that notwithstanding anything to the
contrary contained above, the Borrower's right to select an Interest Period or
to effect any Continuation shall be subject to the applicable provisions of
section 2.9 and to the following:
(i) no Eurodollar Loan may result from a Conversion, and no Interest Period
for a Eurodollar Loan may be Continued, during any Eurodollar Pricing Blackout
Period;
(ii) the initial Interest Period for any Eurodollar Loan shall commence on
the date of the Conversion into or initial Continuation of such Eurodollar Loan
and each Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest Period
expires;
(iii) if any Interest Period begins on a day for which there is no
numerically) corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day, provided that if any Interest Period would otherwise expire on a day which
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for any Eurodollar Loan may be selected which would
end after the Maturity Date;
(vi) no Eurodollar Loan resulting from a Continuation shall be in a
principal amount less than the Minimum Borrowing Amount applicable thereto; and
(vii) no Interest Period may be elected at any time when a Default under
section 8.1(a) or an Event of Default is then in existence unless the Lender
otherwise agrees.
(b) If upon the expiration of any Interest Period the Borrower would have
been entitled to but has failed to Continue the respective Eurodollar Loan by
electing a new Interest Period to be applicable thereto as provided above, the
Borrower shall be deemed to have elected to Continue such Eurodollar Loan for
an additional Interest Period of the shorter of (i) the same length as the
<PAGE>
expiring Interest Period or (ii) the longest Interest Period otherwise
permissible under section 2.8(a)(iv). In such circumstance, the Lender shall
determine the relevant Adjusted Eurodollar Rate applicable to such additional
Interest Period two Business Days prior to the commencement of such additional
Interest Period. If upon the expiration of any Interest Period the Borrower is
not entitled to elect a new Interest Period to be applicable to a Eurodollar
Loan as provided above, the Borrower shall be deemed to have elected to Convert
such Eurodollar Loan to a Prime Rate Loan effective as of the expiration date
of such current Interest Period.
2.9. Illegality, Increased Costs, etc. (a) If the Lender shall notify the
Borrower that the introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for the Lender or its
Applicable Lending Office to perform its obligations hereunder to make
Eurodollar Loans or to fund or maintain Eurodollar Loans hereunder, (i) the
obligation of the Lender to Continue a Eurodollar Loan for a new Interest
Period commencing on the expiration of the current Interest Period, or to
Convert a Prime Rate Loan into a Eurodollar Loan, as applicable, shall be
suspended until the Lender shall notify the Borrower that the circumstances
causing such suspension no longer exist and (ii) the Borrower shall forthwith
prepay in full all Eurodollar Loans then outstanding, together with interest
accrued thereon, unless the Borrower, within five Business Days of notice from
the Lender, Converts all Eurodollar Loans then outstanding into Prime Rate
Loans.
(b) If the Lender shall have determined that after the Effective Date, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged by law with the interpretation or administration thereof, or compliance
by the Lender or its parent corporation with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
authority, central bank, or comparable agency, in each case made subsequent to
the Effective Date, has or would have the effect of reducing by an amount
reasonably deemed by the Lender to be material the rate of return on the
Lender's or its parent corporation's capital or assets as a consequence of the
Lender's commitments or obligations hereunder to a level below that which the
Lender or its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration the Lender's or
its parent corporation's policies with respect to capital adequacy), then from
time to time, within 15 days after demand by the Lender, the Borrower shall pay
to the Lender such additional amount or amounts as will compensate the Lender
or its parent corporation for such reduction. The Lender, upon determining in
good faith that any additional amounts will be payable pursuant to this section
2.9(b), will give prompt written notice thereof to the Borrower, which notice
shall set forth, in reasonable detail, the basis of the calculation of such
additional amounts, which basis must be reasonable, although the failure to
give any such notice shall not release or diminish the Borrower's obligations
to pay additional amounts pursuant to this section 2.9(b) upon the subsequent
receipt of such notice.
(c) Notwithstanding anything in this Agreement to the contrary, (i) the
Lender shall not be entitled to compensation or payment or reimbursement of
other amounts under section 2.9(b) for any amounts incurred or accruing more
than 180 days prior to the giving of notice to the Borrower of additional costs
or other amounts of the nature described in such section, and (ii) the Lender
shall not demand compensation for any reduction referred to in section 2.9(b)
<PAGE>
if it shall not at the time be the general policy or practice of the Lender to
demand such compensation, payment or reimbursement in similar circumstances
under comparable provisions of other credit agreements.
2.10. Breakage Compensation. The Borrower shall compensate the Lender, upon
its written request (which request shall set forth the detailed basis for
requesting and the method of calculating such compensation), for all reasonable
losses (including loss of anticipated profits), expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required
by the Lender to fund its Eurodollar Loans) which the Lender may sustain: (i)
if for any reason (other than a default by the Lender), a Continuation of, or
Conversion into, a Eurodollar Loan by the Borrower does not occur on a date
specified therefor in a Notice of Continuation or Notice of Conversion, (ii) if
any repayment, prepayment, Continuation or Conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest Period
applicable thereto; (iii) if any prepayment of any of its Eurodollar Loans is
not made on any date specified in a notice of prepayment given by the Borrower;
or (iv) as a consequence of any other default by the Borrower to repay its
Eurodollar Loans when required by the terms of this Agreement.
SECTION 3. PAYMENTS.
3.1. Voluntary Prepayments. The Borrower shall have the right to prepay any
of its Loans, in whole or in part, without premium or penalty, from time to
time on the following terms and conditions:
(a) the Borrower shall give the Lender at the Notice Office written or
telephonic notice (in the case of telephonic notice, promptly confirmed in
writing if so requested by the Lender) of its intent to prepay the Loans, the
amount of such prepayment and (in the case of Eurodollar Loans) the specific
Eurodollar Loans (and the amount thereof) to be prepaid, which notice shall be
received by the Lender by
(x) 11:00 A.M. (local time at the Notice Office) three Business
Days prior to the date of such prepayment, in the case of any prepayment
of Eurodollar Loans, or
(y) 12:00 noon (local time at the Notice Office) on the date of such
prepayment, in the case of any prepayment of Prime Rate Loans;
(b) each partial prepayment of any Loan shall be in an aggregate principal
of at least (iA $500,000 or an integral multiple of $100,000 in excess thereof,
in the case of Prime Rate Loans, and (ii) $2,000,000 or an integral multiple of
$1,000,000 in excess thereof, in the case of Eurodollar Loans;
(c) no partial prepayment of any Loan shall reduce the principal amount of
such Loan to an amount less than the Minimum Borrowing Amount applicable
thereto;
(d) each prepayment pursuant to this section 3.1 shall be applied to the
Scheduled Repayments in order of maturity; and
(e) each prepayment of Eurodollar Loans pursuant to this section 3.1 on any
date other than the last day of the Interest Period applicable thereto shall be
accompanied by any amounts payable in respect thereof under section 2.10.
<PAGE>
3.2. Scheduled Repayments and Mandatory Prepayments. The Loans shall be
subject to mandatory repayment or prepayment in accordance with the following
provisions:
(a) Scheduled Repayments of Loans. On the last Business Day of each March,
June, September and December, commencing with the first such date which follows
the 18th month anniversary of the Closing Date and continuing until the last
such date which is prior to the Maturity Date, the Borrower shall be required
to, and shall, repay $3,750,000 aggregate principal amount of the Loans, and on
the Maturity Date the Borrower shall repay the entire remaining aggregate
principal amount of the outstanding Loans (each such repayment, a "Scheduled
Repayment"). Voluntary prepayments of the Loans pursuant to section 3.1 and
mandatory prepayments of the Loans pursuant to section 3.2(c) will be applied
to the Scheduled Repayments in order of maturity.
(b) If Collateral Coverage Ratio Not Met. If on any date (after giving
effect to any other payments on such date) the Lender determines (which
determination shall be binding on the parties, in the absence of manifest
error) that the Collateral Coverage Ratio is less than 4.00 to 1.00, then (1)
the Lender shall promptly notify the Borrower thereof in writing, specifying
the amount of cash which would be required to be pledged under the Security
Agreement so as to result in a Collateral Coverage Ratio of at least 4.00 to
1.00, and (2) if within three Business Days after any such notice is given the
Borrower does not so pledge additional cash sufficient to achieve such
Collateral Coverage Ratio, the Borrower will immediately prepay Loans in an
aggregate principal amount, conforming to the requirements as to the amount of
partial prepayments provided for in section 3.1, at least sufficient result in
a Collateral Coverage Ratio of at least 4.00 to 1.00. Any prepayments of the
Loans pursuant to this section 3.2(b) shall be applied to the Scheduled
Repayments in inverse order of maturity.
(c) Sales, etc. of Pledged Shares. If at any time the Borrower shall
receive Net Cash Proceeds from (1) any sale, transfer or other disposition by
the Borrower of any Pledged Shares, (2) any dividend or distribution in
connection with a partial or complete liquidation of the issuer of any of the
Pledged Shares, or (3) any transaction involving a merger, consolidation,
reorganization or recapitalization of the issuer of the Pledged Shares, then
promptly and in any event not later than the third Business Day following the
date of receipt by the Borrower of any such Net Cash Proceeds, the Borrower
shall prepay the principal of the Loans in an aggregate amount, conforming to
the requirements as to the amount of partial prepayments provided for in
section 3.1, at least equal to 100% of the Net Cash Proceeds so received. Any
prepayments of the Loans pursuant to this section 3.2(c) shall be applied to
the Scheduled Repayments in order of maturity.
(d) Change of Control. On the date on which a Change of Control occurs,
notwithstanding anything to the contrary contained in this Agreement, the then
outstanding principal amount of all Loans shall become due and payable and
shall be prepaid in full.
(e) If IPO Not Completed. If the IPO is not completed by the Company by
November 5, 1999, as contemplated by the Registration Statement,
notwithstanding anything to the contrary contained in this Agreement, the then
outstanding principal amount of all Loans shall become due and payable and
shall be prepaid in full.
(f) Particular Loans to be Prepaid. With respect to each repayment or
prepayment of Loans required by this section 3.2, the Borrower shall designate
<PAGE>
the Types of Loans which are to be prepaid and the specific Loan(s) to which
such repayment or prepayment is to be made, provided that (i) the Borrower
shall first so designate all Loans that are Prime Rate Loans and Eurodollar
Loans with Interest Periods ending on the date of repayment or prepayment prior
to designating any other Eurodollar Loans for repayment or prepayment, and (ii)
if the outstanding principal amount of a Eurodollar Loan is reduced below the
applicable Minimum Borrowing Amount as a result of any such repayment or
prepayment, then all the remaining principal amount of such Eurodollar Loan
shall be Converted into a Prime Rate Loan. In the absence of a designation by
the Borrower as described in the preceding sentence, the Lender shall, subject
to the above, make such designation in its sole discretion with a view, but no
obligation, to minimize breakage costs owing under section 2.10. Any repayment
or prepayment of Eurodollar Loans pursuant to this section 3.2 shall in all
events be accompanied by such compensation as is required by section 2.10.
3.3. Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement shall be made to the Lender not later
than 12:00 noon (local time at the Payment Office) on the date when due and
shall be made at the Payment Office in immediately available funds and in
lawful money of the United States of America, it being understood that
telephonic notice (confirmed in writing) by the Borrower to the Lender to make
a payment from the funds in the Borrower's account at the Payment Office shall
constitute the making of such payment to the extent of such funds held in such
account. Any payments under this Agreement which are made later than 12:00 noon
(local time at the Payment Office) shall be deemed to have been made on the
next succeeding Business Day. Whenever any payment to be made hereunder shall
be stated to be due on a day which is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to
payments of principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension. All payments
made by the Borrower hereunder, under any Note or any other Credit Document,
will be made without setoff, counterclaim or other defense.
SECTION 4. CONDITIONS PRECEDENT.
The obligation of the Lender to make the Loan on the Closing Date is subject to
the satisfaction of each of the following conditions on the Closing Date:
4.1. Notice of Closing Date; Effectiveness; Note. The Lender shall have
received a notice of the Closing Date in accordance with the requirements of
section 2.3 and on or prior to the Closing Date, (iA the Effective Date shall
have occurred and (ii) there shall have been delivered to the Lender the Note
executed by the Borrower in the amount, maturity and as otherwise provided
herein.
4.2. Fees, etc. The Borrower shall have paid or caused to be paid all fees
required to be paid by it on or prior to such date pursuant to section 2.4
hereof and all reasonable fees and expenses of the Lender and of special
counsel to the Lender which have been invoiced on or prior to such date in
connection with the preparation, execution and delivery of this Agreement and
the other Credit Documents and the consummation of the transactions
contemplated hereby and thereby.
4.3. Other Credit Documents. The Credit Parties named therein shall have
duly executed and delivered and there shall be in full force and effect, and
original counterparts shall have been delivered to the Lender, of, (i) the
Investment Property Security Agreement (as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, the
<PAGE>
"Security Agreement"), substantially in the form attached hereto as Exhibit
B-1; (ii) the Account Control Agreement (as modified, amended or supplemented
from time to time in accordance with the terms thereof and hereof, the "Account
Control Agreement"), substantially in the form attached as an Exhibit to the
Security Agreement; and (iii) the Pledge Agreement (as modified, amended or
supplemented from time to time in accordance with the terms thereof and hereof,
the "Pledge Agreement"), substantially in the form attached hereto as Exhibit
B-2.
4.4. Borrower's Arrangements with the Company; Company's IPO. (a) The
Borrower shall have delivered to the Lender a true, correct and complete copy
of (i) each agreement to which it or any of its Subsidiaries has made any
commitment to make an investment in, or capital contribution to, the Company
(including its predecessors in interest), (ii) any agreement affecting the
right of the Borrower to sell, pledge or otherwise transfer, or to vote, any of
its equity interests in the Company, (iii) any agreement entitling the Borrower
to require the registration under the 1933 Act of any shares of Common Stock of
the Company owned by it, and (iv) any lease of property or license of
technology between the Borrower and the Company.
(b) The Borrower shall have delivered to the Lender a true, correct and
complete copy of the registration statement filed by the Company with the SEC
under the 1933 Act in connection with the initial public offering of shares of
its common stock (the "IPO"), including any and all amendments and exhibits
thereto (such registration statement, and any amendments thereto as of the date
it becomes effective under the 1933 Act, the "Registration Statement").
(c) The underwriters and the Company shall have signed the underwriting
agreement and "priced" the IPO at a level which, subject to completion of the
IPO, will result in gross proceeds to the Company of at least $75,000,000, and
the settlement and closing of the IPO shall have been scheduled for November 3,
1999.
4.5. No Default or Event of Default; Representations True and Correct. At
and as of the Closing Date and after giving effect to the Loan made on the
Closing Date, (i) there shall exist no Default or Event of Default and (ii) all
representations and warranties of the Credit Parties contained herein or in the
other Credit Documents shall be true and correct in all material respects with
the same effect as though such representations and warranties had been made on
and as of the Closing Date, except to the extent that such representations and
warranties expressly relate to an earlier specified date, in which case such
representations and warranties shall have been true and correct in all material
respects as of the date when made.
4.6. Corporate Charter and Long Form Good Standing. The Lender shall have
received (i) a copy of the Certificate or Articles of Incorporation of the
Borrower and any and all amendments and restatements thereof, certified as of a
recent date by the Secretary of State (or other appropriate governmental
official) of the State of New York, and (ii) a certificate the Secretary of
State of the State (or other appropriate governmental official) of New York,
dated as of a recent date, listing all charter documents affecting the Borrower
and certifying as to the good standing of the Borrower.
4.7. Corporate Certificate. The Lender shall have received a certificate of
the Secretary or an Assistant Secretary of the Borrower, dated the Closing Date
or reasonably prior thereto, substantially in the form attached hereto as
Exhibit C, and such certificate shall be satisfactory in form and substance to
the Lender.
<PAGE>
4.8. Opinion of Counsel. On the Closing Date, the Lender shall have received
an opinion, addressed to the Lender and dated the Closing Date, from Catherine
Hill, Esq., counsel for the Borrower, substantially in the form of Exhibit D
hereto and covering such other matters incident to the transactions
contemplated hereby as the Lender may reasonably request, such opinion to be in
form and substance satisfactory to the Lender.
4.9. Deposit and Delivery of Collateral; Taxes, etc. All collateral items
required to be deposited with or physically delivered to the Lender under the
Security Documents shall have been so deposited or delivered, accompanied by
any appropriate instruments of transfer, and all taxes, fees and other charges
then due and payable in connection with the execution and delivery of the
Security Documents, the perfection of the security interests created thereunder
and the issue and delivery of the Note shall have been paid in full. After
giving effect to such deposits and delivery, the Collateral Coverage Ratio
shall be at least 4.00 to 1.00.
4.10. Proceedings and Documents. All corporate (or other organizational) and
other proceedings and all documents incidental to the transactions contemplated
hereby shall be satisfactory in substance and form to the Lender and its
special counsel and the Lender shall have received all such counterpart
originals or certified or other copies of such documents as the Lender or its
special counsel may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lender to enter into this Agreement and to make the Loan
on the Closing Date, the Borrower makes the following representations and
warranties to, and agreements with, the Lender, all of which shall survive the
execution and delivery of this Agreement and the incurrence of the Loan:
5.1. Organizational Status, etc. Each of the Borrower and its Subsidiaries
(i) is a duly organized or formed and validly existing corporation, partnership
or limited liability company, as the case may be, in good standing under the
laws of the jurisdiction of its formation and has the corporate, partnership or
limited liability company power and authority, as applicable, to own its
property and assets and to transact the business in which it is engaged and
presently proposes to engage, and (ii) has duly qualified and is authorized to
do business in all jurisdictions where it is required to be so qualified except
where the failure to be so qualified would not have a Material Adverse Effect.
5.2. Subsidiaries. As of the date hereof, the Borrower has no Subsidiary.
5.3. Organizational Power and Authority, etc. Each Credit Party has the
corporate or other organizational power and authority to execute, deliver and
carry out the terms and provisions of the Credit Documents to which it is party
and has taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of the Credit Documents to
which it is party. Each Credit Party has duly executed and delivered each
Credit Document to which it is party and each Credit Document to which it is
party constitutes the legal, valid and binding agreement or obligation of such
Credit Party enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws generally
affecting creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law).
<PAGE>
5.4. No Violation. Neither the execution, delivery and performance by any
Credit Party of the Credit Documents to which it is party nor compliance with
the terms and provisions thereof, nor the consummation of the loan transactions
contemplated therein (i) will contravene any provision of any law, statute,
rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality applicable to such Credit Party or its properties
and assets, (ii) will conflict with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under,
or result in the creation or imposition of (or the obligation to create or
impose) any Lien (other than the Lien of any Security Document) upon any of the
property or assets of such Credit Party or any of its Subsidiaries pursuant to
the terms of any promissory note, bond, debenture, indenture, mortgage, deed of
trust, credit or loan agreement, or any other material agreement or other
instrument, to which such Credit Party or any of its Subsidiaries is a party or
by which it or any of its property or assets are bound or to which it may be
subject, or (iii) will violate any provision of the articles or certificate of
incorporation, code of regulations, by-laws or other organizational document of
such Credit Party.
5.5. Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required as a
condition to (i) the execution, delivery and performance by any Credit Party of
any Credit Document to which it is a party, or (ii) the legality, validity,
binding effect or enforceability of any Credit Document to which any Credit
Party is a party.
5.6. Litigation. There are no actions, suits or proceedings pending or, to,
the knowledge of the Borrower, threatened with respect to the Borrower or any
of its Subsidiaries (i) that have, or could reasonably be expected to have, a
Material Adverse Effect, or (ii) which question the validity or enforceability
of any of the Credit Documents, or of any action to be taken by the Borrower or
any of the other Credit Parties pursuant to any of the Credit Documents.
5.7. Use of Proceeds; Margin Regulations. (a) The proceeds of the Loan made
on the Closing Date shall be used by the Borrower solely to (i) effect payment
by the Borrower of the remaining $20,500,000 capital contribution payable by it
pursuant to the Mandatory Capital Contribution Agreement among the Borrower,
Edison Development Corporation and Plug Power, LLC, entered into in 1999 which
is described in the Registration Statement, and (ii) finance the prior
prepayment by the Borrower of $2,000,000 of its capital contribution
obligations under such Agreement, by providing the Borrower with funds for
working capital requirements and other lawful purposes not inconsistent with
the requirements of this Agreement.
(bi No part of the proceeds of any Loan will be used directly or indirectly
to purchase or carry Margin Stock, or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, in violation of any of the
provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
5.8. Financial Statements, etc. (a) The Borrower has furnished to the Lender
complete and correct copies of (i) the audited consolidated balance sheets of
the Borrower and its consolidated subsidiaries as of the end of its fiscal
years ended on or nearest to September 30, 1997 and September 30, 1998, and the
related audited consolidated statements of income, stockholders' equity, and
cash flows for the fiscal years then ended, accompanied by the unqualified
report thereon of the Borrower's independent accountants; and (ii) the
<PAGE>
unaudited condensed consolidated balance sheets of the Borrower and its
consolidated subsidiaries as of June 25, 1999, and the related unaudited
condensed consolidated statements of income and of cash flows of the Borrower
and its consolidated subsidiaries for the fiscal quarter or quarters then
ended, as contained in the Form 10-Q Quarterly Report of the Borrower filed
with the SEC for such fiscal quarter. All such financial statements have been
prepared in accordance with GAAP, consistently applied (except as stated
therein), and fairly present the financial position of the Borrower and its
consolidated subsidiaries as of the respective dates indicated and the
consolidated results of their operations and cash flows for the respective
periods indicated, subject in the case of any such financial statements which
are unaudited, to normal audit adjustments, none of which will involve a
Material Adverse Effect. The Borrower and its Subsidiaries did not have, as of
the date of the latest financial statements referred to above, and will not
have as of the Closing Date after giving effect to the incurrence of the Loan
hereunder, any material or significant contingent liability, or liability for
taxes, long-term lease or unusual forward or long-term commitment, that is not
reflected in the foregoing financial statements or the notes thereto in
accordance with GAAP and which in any such case is material in relation to the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries, except for the commitments and
other obligations and liabilities incurred in connection with the sale of Ling
Electronics, Inc. and Ling Electronics, Ltd. in October 1999, and the
investment and other commitments made with Satcon Technology Corporation in
October 1999, all as previously publicly announced and described in a Form 8-K
Current Report with respect thereto filed by the Borrower with the SEC
(the"October 1999 Form 8-K").
(b) Each Credit Party has received consideration which is the reasonable
equivalent value of the obligations and liabilities that it has incurred to the
Lender. Each Credit Party has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage,
is solvent and able to pay its debts as they mature and owns property having a
value, both at fair valuation and at present fair salable value, greater than
the amount required to pay its debts; and no Credit Party is entering into the
Credit Documents with the intent to hinder, delay or defraud its creditors. For
purposes of this section 5.8(b), "debt" means any liability on a claim, and
"claim" means (x) right to payment whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured; or (y) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured
or unsecured.
5.9. No Material Adverse Change. Since September 30, 1998, there has been no
change in the condition, business or affairs of the Borrower and its
Subsidiaries taken as a whole, or their properties and assets considered as an
entirety, which, individually or in the aggregate, has had or could reasonably
be expected to have, a Material Adverse Effect, other than any changes which
may have been described in the Borrower's October 1999 Form 8-K and the Form
10-Q Quarterly Reports for subsequent fiscal periods which have been filed with
the SEC and copies of which have been delivered to the Lender prior to the date
hereof .
5.10. Tax Returns and Payments. The Borrower and each of its Subsidiaries has
each filed all federal income tax returns and all other material tax returns,
domestic and foreign, required to be filed by it and has paid all material
<PAGE>
taxes and assessments payable by it which have become due, other than those not
yet delinquent and except for those contested in good faith. The Borrower and
each of its Subsidiaries has established on its books such charges, accruals
and reserves in respect of taxes, assessments, fees and other governmental
charges for all fiscal periods as are required by GAAP. The Borrower knows of
no proposed assessment for additional federal, foreign or state taxes for any
period, or of any basis therefor, which, individually or in the aggregate,
taking into account such charges, accruals and reserves in respect thereof as
the Borrower and its Subsidiaries have made, could reasonably be expected to
have a Material Adverse Effect.
5.11. Title to Properties, etc. The Borrower and each of its Subsidiaries has
good and marketable title, in the case of real property, and good title (or
valid leaseholds, in the case of any leased property), in the case of all other
property, to all of its properties and assets; and the interests of the
Borrower and each of its Subsidiaries in the properties reflected in the most
recent balance sheet referred to in section 5.8, taken as a whole, were
sufficient, in the judgment of the Borrower, as of the date of such balance
sheet for purposes of the ownership and operation of the businesses conducted
by the Borrower and such Subsidiaries; provided, that it is understood that the
foregoing representation is qualified by the fact and effect of the sale in
October 1999 by Borrower of certain of its then Subsidiaries as described in
the October 1999 Form 8-K.
5.12. Lawful Operations, etc. Except for known situations or incidents which
are reserved for on the most recent consolidated balance sheet referred to in
section 5.8 or which, if not so reserved, could not reasonably be expected to
have a Material Adverse Effect, the Borrower and each of its Subsidiaries is in
full compliance with all material requirements imposed by law which are
applicable to them, their operations or their properties, whether federal or
state or local, including (without limitation) all Environmental Laws.
5.13. Compliance with ERISA. Compliance by the Borrower with the provisions
hereof and Loans contemplated hereby will not involve any prohibited
transaction within the meaning of ERISA or section 4975 of the Code. The
Borrower and each of its Subsidiaries, (i) has fulfilled all obligations under
minimum funding standards of ERISA and the Code with respect to each Plan that
is not a Multiemployer Plan or a Multiple Employer Plan, (ii) has satisfied all
respective contribution obligations in respect of each Multiemployer Plan and
each Multiple Employer Plan, (iii) is in compliance in all material respects
with all other applicable provisions of ERISA and the Code with respect to each
Plan, each Multiemployer Plan and each Multiple Employer Plan, and (iv) has not
incurred any liability under the Title IV of ERISA to the PBGC with respect to
any Plan, any Multiemployer Plan, any Multiple Employer Plan, or any trust
established thereunder. No Plan or trust created thereunder has been
terminated, and there have been no Reportable Events, with respect to any Plan
or trust created thereunder or with respect to any Multiemployer Plan or
Multiple Employer Plan, which termination or Reportable Event will or, to the
best of the Borrower's knowledge, could result in the termination of such Plan,
Multiemployer Plan or Multiple Employer Plan and give rise to a material
liability of the Borrower or any ERISA Affiliate in respect thereof. Neither
the Borrower nor any ERISA Affiliate is at the date hereof, or has been at any
time within the two years preceding the date hereof, an employer required to
contribute to any Multiemployer Plan or Multiple Employer Plan, or a
"contributing sponsor" (as such term is defined in section 4001 of ERISA) in
any Multiemployer Plan or Multiple Employer Plan. Neither the Borrower nor any
ERISA Affiliate has any contingent liability with respect to any
post-retirement "welfare benefit plan" (as such term is defined in ERISA)
except as has been disclosed to the Lender in writing.
<PAGE>
5.14. Intellectual Property, etc. The Borrower and each of its Subsidiaries
has obtained or has the right to use all material patents, trademarks,
servicemarks, trade names, copyrights, licenses and other rights with respect
to the foregoing necessary for the present and planned future conduct of its
business, without any known conflict with the rights of others, except for such
patents, trademarks, servicemarks, trade names, copyrights, licenses and
rights, the loss of which, and such conflicts, which in any such case
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect.
5.15. Year 2000 Computer Matters. The Borrower and its Subsidiaries have
reviewed the areas within their business and operations which could be
adversely affected by, and have developed or are developing a program to
address on a timely basis the "Year 2000 Computer Issue" (that is, the risk
that computer applications used by the Borrower and its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999). Based on such
review and program, the Borrower reasonably believes that the "Year 2000
Computer Issue" is not reasonably likely to have a Material Adverse Effect.
5.16. Investment Company Act, etc. Neither the Borrower nor any of its
Subsidiaries is subject to regulation with respect to the creation or
incurrence of Indebtedness under the Investment Company Act of 1940, as
amended, the Interstate Commerce Act, as amended, the Federal Power Act, as
amended, the Public Utility Holding Company Act of 1935, as amended, or any
applicable state public utility law.
5.17. Security Interests. Once executed and delivered, and until terminated
in accordance with the terms thereof, each of the Security Documents creates,
as security for the obligations purported to be secured thereby, a valid and
enforceable perfected security interest in and Lien on all of the Collateral
subject thereto from time to time, in favor of the Lender, superior to and
prior to the rights of all third persons and subject to no other Liens. No
filings or recordings are required in order to perfect the security interests
created under any Security Document except for filings or recordings required
in connection with any such Security Document which shall have been made, or
for which satisfactory arrangements have been made, upon or prior to the
execution and delivery thereof. All recording, stamp, intangible or other
similar taxes required to be paid by any person under applicable legal
requirements or other laws applicable to the property encumbered by the
Security Documents in connection with the execution, delivery, recordation,
filing, registration, perfection or enforcement thereof have been paid.
5.18. True and Complete Disclosure. All factual information (taken as a
whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to the Lender for purposes of or
in connection with this Agreement or any transaction contemplated herein is,
and all other such factual information (taken as a whole) hereafter furnished
by or on behalf of such person in writing to the Lender will be, true and
accurate in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any material fact
necessary to make such information (taken as a whole) not misleading at such
time in light of the circumstances under which such information was provided,
except that any such future information consisting of financial projections
prepared by the Borrower is only represented herein as being based on good
faith estimates and assumptions believed by such persons to be reasonable at
the time made, it being recognized by the Lender that such projections as to
<PAGE>
future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ materially from
the projected results.
SECTION 6. AFFIRMATIVE COVENANTS.
The Borrower hereby covenants and agrees that, unless subsequent to the
Effective Date the Lender otherwise consents in writing, the Borrower will from
and after the Effective Date and until such time as the Commitment has been
terminated and the Loans, together with interest, have been paid in full,
comply with the following covenants:
6.1. Reporting Requirements. The Borrower will furnish to the Lender:
(a) Annual Financial Statements. As soon as available and in any event
within 90 days after the close of each fiscal year of the Borrower, the
consolidated and consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income, of stockholder's equity
and of cash flows for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year, all in reasonable detail and accompanied
by the opinion with respect to such consolidated financial statements of
independent public accountants of recognized national standing selected by the
Borrower, which opinion shall be unqualified and shall (i) state that such
accountants audited such consolidated financial statements in accordance with
generally accepted auditing standards, that such accountants believe that such
audit provides a reasonable basis for their opinion, and that in their opinion
such consolidated financial statements present fairly, in all material
respects, the consolidated financial position of the Borrower and its
consolidated subsidiaries as at the end of such fiscal year and the
consolidated results of their operations and cash flows for such fiscal year in
conformity with generally accepted accounting principles, or (ii) contain such
statements as are customarily included in unqualified reports of independent
accountants in conformity with the recommendations and requirements of the
American Institute of Certified Public Accountants (or any successor
organization).
(b) Quarterly Financial Statements. As soon as available and in any event
within 45 days after the close of each of the first three quarterly accounting
periods in each fiscal year of the Borrower, the unaudited condensed
consolidated and consolidating balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of such quarterly period and the
related unaudited condensed consolidated and consolidating statements of income
and of cash flows for such quarterly period, and setting forth, in the case of
such unaudited consolidated statements of income and of cash flows, comparative
figures for the related periods in the prior fiscal year, and which
consolidated financial statements shall be certified on behalf of the Borrower
by the Chief Financial Officer or other Authorized Officer of the Borrower,
subject to changes resulting from normal year-end audit adjustments.
(c) Officer's Compliance Certificates. At the time of the delivery of the
financial statements provided for in sections 8.1(a) and (b), a certificate on
behalf of the Borrower of the Chief Financial Officer or other Authorized
Officer of the Borrower to the effect that, to the best knowledge of the
Borrower, no Default or Event of Default exists or, if any Default or Event of
Default does exist, specifying the nature and extent thereof.
<PAGE>
(d) Budgets and Forecasts. Not later than 30 days after the commencement of
each fiscal year of the Borrower, a consolidated budget in reasonable detail
for such entire fiscal year and for each of the fiscal quarters in such fiscal
year, and (if and to the extent prepared by management of the Borrower) for any
subsequent fiscal years, as customarily prepared by management for its internal
use, setting forth, with appropriate discussion, the forecasted balance sheet,
income statement, operating cash flows and capital expenditures of the Borrower
and its Subsidiaries (and their respective divisions or lines of business) for
the period or periods covered thereby, and the principal assumptions upon which
forecasts and budget are based.
(e) Notice of Default or Litigation. Promptly, and in any event within
three Business Days, in the case of clause (i) below, or five Business Days, in
the case of clause (ii) below, after the Borrower obtains knowledge thereof,
notice of
(i) the occurrence of any event which constitutes a Default or Event of
Default, which notice shall specify the nature thereof, the period of existence
thereof and what action the Borrower proposes to take with respect thereto, and
(ii) any litigation or governmental or regulatory investigation or
proceeding pending against or involving the Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect.
(f) ERISA. Promptly, and in any event within 10 days after the Borrower has
actual knowledge of the occurrence of any of the following, the Borrower will
deliver to each of the Lenders a certificate on behalf of the Borrower of an
Authorized Officer of the Borrower setting forth the full details as to such
occurrence and the action, if any, that the Borrower, such Subsidiary or such
ERISA Affiliate is required or proposes to take, together with any notices
required or proposed to be given to or filed with or by the Borrower, the
Subsidiary, the ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto:
(i) that a Reportable Event has occurred with respect to any Plan;
(ii) the institution of any steps by the Borrower, any ERISA Affiliate, the
PBGC or any other person to terminate any Plan;
(iii) the institution of any steps by the Borrower or any ERISA Affiliate to
withdraw from any Plan;
(iv) the institution of any steps by the Borrower or any Subsidiary to
withdraw from any Multiemployer Plan or Multiple Employer Plan, if such
withdrawal could result in withdrawal liability (as described in Part 1 of
Subtitle E of Title IV of ERISA) in excess of $1,000,000;
(v) a non-exempt "prohibited transaction" within the meaning of section 406
of ERISA in connection with any Plan;
(vi) that a Plan has an Unfunded Current Liability exceeding $1,000,000;
(vii) any material increase in the contingent liability of the Borrower or
any Subsidiary with respect to any post-retirement welfare liability; or
(viii) the taking of any action by, or the threatening of the taking of any
action by, the Internal Revenue Service, the Department of Labor or the PBGC
with respect to any of the foregoing.
<PAGE>
(g) Environmental Matters. Promptly upon, and in any event within 10
Business Days after the Borrower obtains actual knowledge thereof, notice of
any of the following environmental matters which involves any reasonable
possibility (in the Borrower's reasonable judgment) of resulting in a Material
Adverse Effect: (i) any pending or threatened (in writing) Environmental Claim;
or (ii) any condition or occurrence which would reasonably be expected to form
the basis of an Environmental Claim. All such notices shall describe in
reasonable detail the nature of the Environmental Claim or other matter and the
Borrower's or such Subsidiary's evaluation thereof or response thereto.
(h) SEC Reports and Registration Statements. Promptly upon transmission
thereof or other filing with the SEC, copies of all registration statements
(other than the exhibits thereto and any registration statement on Form S-8 or
its equivalent) and annual, quarterly or current reports that the Borrower or
any of its Subsidiaries files with the SEC.
(i) Other Information. With reasonable promptness, such other information
or documents (financial or otherwise) relating to the Borrower or any of its
Subsidiaries as any Lender may reasonably request from time to time.
6.2. Books, Records and Inspections. The Borrower will, and will cause each
of its Subsidiaries to, (i) keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Borrower or such Subsidiaries, as the case may be,
in accordance with GAAP, in the case of the Borrower, or which are reconcilable
to a GAAP presentation, in the case of any Subsidiary; and (ii) permit, upon at
least two Business Days' notice to the Chief Financial Officer or any other
Authorized Officer of the Borrower, officers and designated representatives of
the Lender to visit and inspect any of the properties or assets of the Borrower
and any of its Subsidiaries in whomsoever's possession (but only to the extent
the Borrower or such Subsidiary has the right to do so to the extent in the
possession of another person), and to examine (and make copies of or take
extracts from) the books of account of the Borrower and any of its Subsidiaries
and discuss the affairs, finances and accounts of the Borrower and of any of
its Subsidiaries with, and be advised as to the same by, its and their officers
and independent accountants and independent actuaries, if any, all at such
reasonable times and intervals and to such reasonable extent as the Lender may
request.
6.3. Insurance. The Borrower will, and will cause each of its Subsidiaries
to, (i) maintain insurance coverage by such insurers and in such forms and
amounts and against such risks as are generally consistent with the insurance
coverage maintained by the Borrower and its Subsidiaries at the date hereof,
and (ii) forthwith upon the Lender's written request, furnish to the Lender
such information about such insurance as the Lender may from time to time
reasonably request, which information shall be prepared in form and detail
reasonably satisfactory to the Lender and certified by an Authorized Officer of
the Borrower.
6.4. Payment of Taxes and Claims. The Borrower will pay and discharge, and
will cause each of its Subsidiaries to pay and discharge, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Borrower or any of its
Subsidiaries; provided that neither the Borrower nor any of its Subsidiaries
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
<PAGE>
adequate reserves with respect thereto in accordance with GAAP; and provided,
further, that the Borrower will not be considered to be in default of any of
the provisions of this sentence if the Borrower or any Subsidiary fails to pay
any such amount which, individually or in the aggregate, is immaterial to the
Borrower and its Subsidiaries considered as an entirety.
6.5. Corporate Franchises. The Borrower will do, and will cause each of its
Subsidiaries to do, or cause to be done, all things necessary to preserve and
keep in full force and effect its corporate or other organizational existence,
rights, authority and franchises, provided that nothing in this section 6.5
shall be deemed to prohibit (i) any transaction permitted by section 7.2; (ii)
the termination of existence of any Subsidiary if (A) the Borrower determines
that such termination is in its best interest and (B) such termination is not
adverse in any material respect to the interests of the Lender as a creditor of
the Borrower; or (iii) the loss of any rights, authorities or franchises if the
loss thereof, in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
6.6. Good Repair. The Borrower will, and will cause each of its Subsidiaries
to, ensure that its material properties and equipment used or useful in its
business in whomsoever's possession they may be, are kept in good repair,
working order and condition, normal wear and tear excepted, provided that this
sentence shall not prohibit the Borrower or any Subsidiary from discontinuing
the operation and/or the maintenance of any of its properties if (i) the
Borrower has concluded that such discontinuance is desirable in the overall
conduct of the business of the Borrower and its Subsidiaries considered as an
entirety, and (ii) such discontinuance could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.7. Compliance with Statutes, etc. The Borrower will, and will cause each
of its Subsidiaries to, comply, in all material respects, with all applicable
statutes, regulations and orders of, and all applicable restrictions imposed
by, all governmental bodies, domestic or foreign, in respect of the conduct of
its business and the ownership of its property, including (without limitation)
all Environmental Laws, other than those (i) being contested in good faith by
appropriate proceedings, as to which adequate reserves are established to the
extent required under GAAP, and (ii) the noncompliance with which would not
have, and which would not be reasonably expected to have, a Material Adverse
Effect.
6.8. Certain Subsidiaries to Join in Subsidiary Guaranty. In the event that
at any time after the Closing Date the Borrower has any Material Subsidiary
which (1) is not a party to the Subsidiary Guaranty, and (2) is organized under
the laws of the District of Columbia or one of the States of the United States,
then the Borrower will notify the Lender in writing of such event, identifying
the Subsidiary in question and referring specifically to the rights of the
Lender under this section. The Borrower will, within 30 days following request
therefor from the Lender, cause such Subsidiary to deliver to the Lender (i) if
the Subsidiary Guaranty has not already been executed and delivered, the
Subsidiary Guaranty (as modified, amended or supplemented from time to time in
accordance with the terms thereof and hereof, the "Subsidiary Guaranty"),
substantially in the form attached hereto as Exhibit B-3, or (ii) if the
Subsidiary Guaranty has already been executed and delivered, a joinder
supplement, reasonably satisfactory in form and substance to the Lender, duly
executed by such Subsidiary, pursuant to which such Subsidiary joins in the
Subsidiary Guaranty as a guarantor thereunder, and (iii) if such Subsidiary is
a corporation, resolutions of the Board of Directors of such Subsidiary,
certified by the Secretary or an Assistant Secretary of such Subsidiary as duly
adopted and in full force and effect, authorizing the execution and delivery of
<PAGE>
the Subsidiary Guaranty or such joinder supplement, as applicable, or if such
Subsidiary is not a corporation, such other evidence of the authority of such
Subsidiary to execute the Subsidiary Guaranty or such joinder supplement, as
applicable, as the Lender may reasonably request.
6.9. Senior Debt. The Borrower will at all times ensure that (i) the claims
of the Lender in respect of the Loans and the Borrower will, with respect to
any Collateral, rank prior to the claims of any other creditor of the Borrower
with respect to the Collateral which arise out of other Debt of the Borrower;
and (ii) any Debt of the Borrower which is subordinated in any manner to the
claims of any secured or unsecured creditor of the Borrower will be
subordinated in like manner to the claims of the Lender in respect of the
Loans.
SECTION 7. NEGATIVE COVENANTS.
The Borrower hereby covenants and agrees that, unless subsequent to the
Effective Date the Lender otherwise consents in writing, the Borrower will from
and after the Effective Date and until such time as the Commitment has been
terminated and the Loans, together with interest, have been paid in full,
comply with the following covenants:
7.1. Changes in Business. Neither the Borrower nor any of its Subsidiaries
will engage in any business if, as a result, the general nature of the
business, taken on a consolidated basis, which would then be engaged in by the
Borrower and its Subsidiaries, would be substantially changed from the general
nature of the business engaged in or contemplated to be engaged in by the
Borrower and its Subsidiaries on the date hereof.
7.2. Consolidation, Merger, Acquisitions, Asset Sales, etc. The Borrower
will not, and will not permit any Subsidiary to, (1) wind up, liquidate or
dissolve its affairs, (2) enter into any transaction of merger or
consolidation, (3) sell or otherwise dispose of any of its property or assets,
or (4) agree to do any of the foregoing at any future time, except that the
following shall be permitted:
(a) Certain Intercompany Mergers, etc. If no Default or Event of Default
shall have occurred and be continuing or would result therefrom,
(i) the merger, consolidation or amalgamation of any Subsidiary of the
Borrower with or into the Borrower, provided the Borrower is the surviving or
continuing or resulting corporation;
(ii) the merger, consolidation or amalgamation of any Subsidiary of the
Borrower with or into another Subsidiary of the Borrower, provided that the
surviving or continuing or resulting corporation is a Wholly-Owned Subsidiary
of the Borrower;
(iii) the liquidation, winding up or dissolution of any Subsidiary of the
Borrower; and
(iv) the transfer or other disposition of any property by the Borrower to
any Wholly-Owned Subsidiary or by any Subsidiary to the Borrower or any other
Wholly- Owned Subsidiary of the Borrower;
shall each be permitted, if after giving effect thereto at least 60% of the
consolidated total assets of the Borrower are owned directly by the Borrower
and not indirectly through Subsidiaries.
<PAGE>
(b) Other Mergers, etc. Involving the Borrower. The Borrower may
consolidate or merge with any other corporation, or sell, transfer or otherwise
dispose of all or substantially all of the property and assets of the Borrower
and its Subsidiaries to any person, if (i) the surviving, continuing or
resulting corporation of such merger or consolidation (if other than the
Borrower) or the acquiring person unconditionally assumes the obligations of
the Borrower under the Credit Documents pursuant to an assumption agreement in
form and substance reasonably satisfactory to the Lender, (ii) no Event of
Default has occurred and is continuing or would result therefrom, (iii) the
security interests created by the Security Documents would not be impaired, or
the priority thereof adversely affected, as a result thereof, and (iv) no
Change of Control would be occasioned thereby.
(c) Sales of Pledged Shares. The Borrower may sell any Pledged Shares for
cash consideration if:
(i) no Default or Event of Default shall have occurred and be continuing or
would result therefrom;
(ii) both before and after giving effect to such sale and any
contemporaneous prepayment of the Loans out of the proceeds thereof, the
Collateral Coverage Ratio would be at least 4.00 to 1.00;
(iii) such sale is made in (1) an open market transaction at the prevailing
market bid, asked or closing price; or (2) a private transaction, including a
transaction with a "market maker" or underwriter and the consideration for such
transaction represents fair value (as determined by management of the
Borrower); and
(iv) contemporaneously with the completion of such transaction the Borrower
prepays its Loans as and to the extent required by section 3.2 hereof.
(d) Sales of Inventory and Certain Ordinary Course Sales. The Borrower or
any of its Subsidiaries may effect sales of inventory and worn-out, obsolete or
surplus real property and improvements, equipment and fixtures, in each case in
the ordinary course of business.
(e) Other Permitted Dispositions. If no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Borrower or any
of its Subsidiaries may (1) sell any other property, or (2) permit any
Subsidiary to be merged or consolidated with a person which is not an Affiliate
of the Borrower; provided that:
(i) the consideration for such transaction represents fair value (as
determined by management of the Borrower), and in the case of any such
transaction involving consideration in excess of $2,000,000, at least 75% of
such consideration consists of cash, and
(ii) the cumulative aggregate consideration for all transactions referred to
in this section 7.2(e) which involve any assets other than liquid investments
or marketable securities and which are completed after September 30, 1999 does
not exceed $1,000,000;
and, provided, further, that there shall be excluded from the operation of, and
any computations under, this section 7.2(e), the October 1999 sale of all or
substantially all of the assets of Ling Electronics, Inc. and Ling Electronics,
Ltd.
<PAGE>
To the extent the Lender waives the provisions of this section 7.2 with respect
to the sale, transfer or other disposition of any Collateral, or any Collateral
is sold, transferred or disposed of as permitted by this section 7.2, (i) such
Collateral shall be sold, transferred or disposed of free and clear of the
Liens created by the respective Security Documents; (ii) if all of the capital
stock of a Subsidiary which is a party to the Subsidiary Guaranty is sold as
permitted by this section 7.2, such Subsidiary shall be released from the
Subsidiary Guaranty; and (iii) the Lender shall take all actions necessary in
order to effectuate the foregoing. Without limitation of the foregoing, if the
Borrower indicates that it intends in accordance with section 7.2(c) to sell
any Pledged Shares covered by one or more stock certificates in the possession
of the Lender under the Pledge Agreement, the Lender will cooperate with the
Borrower to pre-position appropriate stock certificates with the broker
selected by the Borrower to effect any particular sale.
7.3. Liens. The Borrower will not, and will not permit any of its
Subsidiaries to, (1) create or suffer to exist, any security interest or other
Lien, or any other type of preferential arrangement, upon or with respect to
any of its properties, whether now owned or hereafter acquired, or (2) assign
any right to receive income, in each case to secure or provide for the payment
of any Debt, except that the foregoing restriction shall not apply to:
(a) Liens created in favor of the Lender pursuant to the Security
Documents;
(b) any other Liens in favor of the Lender or any of its Affiliates
securing any obligations of the Borrower or any of its Subsidiaries or
Affiliates; or
(c) the following: (i) purchase money liens or purchase money security
interests upon or in any property acquired or held by the Borrower or any
Subsidiary in the ordinary course of business to secure the purchase price of
such property or to secure Debt incurred solely for the purpose of financing
the acquisition of such property, and (ii) security interests or other Liens
existing on such property at the time of its acquisition (other than any such
security interest or other Lien created in contemplation of such acquisition),
provided that the aggregate principal amount of the Debt secured by the
security interests and other Liens referred to in this section 7.3(b) shall not
exceed $250,000 at any time outstanding.
7.4. Dividends, etc. The Borrower will not (i) directly or indirectly
declare, order, pay or make any dividend or other distribution on or in respect
of any capital stock of any class of the Borrower, whether by reduction of
capital or otherwise, other than dividends payable solely in shares (or rights
to acquire shares) of the same class, or (ii) directly or indirectly make, or
permit any of its Subsidiaries to directly or indirectly make, any purchase,
redemption, retirement or other acquisition of (1) any capital stock of any
class of the Borrower, or (2) any warrants, rights or options to acquire, or
any securities convertible into or exchangeable for, any capital stock of the
Borrower.
7.5. Transactions with Affiliates. The Borrower will not, and will not
permit any Subsidiary to, enter into any transaction or series of transactions
with any Affiliate (other than, in the case of the Borrower, any Subsidiary,
and in the case of a Subsidiary, the Borrower or another Subsidiary) other than
in the ordinary course of business of and pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such Subsidiary than
would obtain in a comparable arm's-length transaction with a person other than
<PAGE>
an Affiliate, except (i) sales of goods to an Affiliate for use or distribution
outside the United States which in the good faith judgment of the Borrower
complies with any applicable legal requirements of the Internal Revenue Code,
or (ii) agreements and transactions with and payments to officers, directors
and shareholders which are either (A) entered into in the ordinary course of
business and not prohibited by any of the provisions of this Agreement, or (B)
entered into outside the ordinary course of business, approved by the directors
or shareholders of the Borrower, and not prohibited by any of the provisions of
this Agreement.
SECTION 8. EVENTS OF DEFAULT.
8.1. Events of Default. Any of the following specified events shall
constitute an Event of Default (each an "Event of Default"):
(a) Payments: the Borrower shall (i) default in the payment when due
(whether at Maturity, on a date fixed for a Scheduled Repayment, on a date on
which a required prepayment is to be made, upon acceleration or otherwise) of
any principal of the Loans; or (ii) default, and such default shall continue
for five or more days, in the payment when due of any interest on the Loans; or
(iii) default, and such default shall continue for 10 or more days after the
Lender's written request therefor, in the payment when due of any other amounts
owing hereunder or under any other Credit Document; or
(b) Representations, etc.: any representation, warranty or statement made
by the Borrower or any other Credit Party herein or in any other Credit
Document or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material
respect on the date as of which made or deemed made; or
(c) Certain Negative Covenants: the Borrower shall default in the due
performance or observance by it of any term, covenant or agreement contained in
section 7.2, 7.3 or 7.4 of this Agreement or section 9(b) or 9(c) of the
Security Agreement; or
(d) Other Covenants: any Credit Party shall default in the due performance
or observance by it of any term, covenant or agreement contained in this
Agreement or any other Credit Document, other than those referred to in section
8.1(a) or (b) or (c) above, and such default is not remedied within 30 days
after the earlier of (i) an executive officer of the Borrower obtaining actual
knowledge of such default and (ii) the Borrower receiving written notice of
such default from the Lender (any such notice to be identified as a "notice of
default" and to refer specifically to this paragraph); or
(e) Cross Default Under Other Agreements: the Borrower or any of its
Subsidiaries shall (i) default in any payment with respect to any Debt or other
financial obligation (other than the Loans) owed to the Lender or any of its
Affiliates, or any Debt having an unpaid principal amount of $1,000,000 or
greater, and such default shall continue after the applicable grace period, if
any, specified in any agreement or instrument relating thereto, or (ii) default
in the observance or performance of any covenant or condition contained in any
such agreement or instrument (and all grace periods applicable to such
observance, performance or condition shall have expired), or any other event
shall occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Debt or other
financial obligations (or a trustee or agent on behalf of such holder or
holders) to cause any such Debt or other financial obligations to become due
prior to its stated maturity; or any such Debt or other financial obligation
<PAGE>
shall be declared to be due and payable, or shall be required to be prepaid
(other than by a regularly scheduled required prepayment or redemption, prior
to the stated maturity thereof); or
(f) Other Credit Documents: the Subsidiary Guaranty or any Security
Document (once executed and delivered) shall cease for any reason (other than
termination in accordance with its terms) to be in full force and effect; or
any Credit Party shall default in any payment obligation thereunder beyond any
grace period provided in respect thereof (taking into account any notice
required to be given in connection therewith); or any Credit Party shall
default in any material respect in the due performance and observance of any
other obligation thereunder and such default shall continue unremedied for a
period of at least 30 days after notice by the Lender; or any Credit Party
shall (or seek to) disaffirm or otherwise limit its obligations thereunder
otherwise than in strict compliance with the terms thereof; or
(g) Judgments: one or more judgments or decrees shall be entered against
the Borrower and/or any of its Subsidiaries involving a liability (other than a
liability covered by insurance, as to which the carrier has adequate claims
paying ability and has not denied coverage or reserved its rights) of
$1,000,000 or more in the aggregate for all such judgments and decrees for the
Borrower and its Subsidiaries, and any such judgments or decrees shall not have
been vacated, discharged or stayed or bonded pending appeal within 30 days (or
such longer period, not in excess of 60 days, during which enforcement thereof,
and the filing of any judgment lien, is effectively stayed or prohibited) from
the entry thereof; or
(h) Bankruptcy, etc.: any of the following shall occur:
(i) the Borrower or any of its Material Subsidiaries (the Borrower and each
of such other persons, each a "Principal Party") shall commence a voluntary
case concerning itself under Title 11 of the United States Code entitled
"Bankruptcy," as now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or
(ii) an involuntary case is commenced under the Bankruptcy Code against any
Principal Party and the petition is not controverted within 10 days, or is not
dismissed within 90 days, after commencement of the case; or
(iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of any Principal
Party; or
(iv) any Principal Party commences (including by way of applying for or
consenting to the appointment of, or the taking of possession by, a
rehabilitator, receiver, custodian, trustee, conservator or liquidator
(collectively, a "conservator") of itself or all or any substantial portion of
its property) any other proceeding under any reorganization, arrangement,
adjustment of debt, relief of debtors, dissolution, insolvency, liquidation,
rehabilitation, conservatorship or similar law of any jurisdiction whether now
or hereafter in effect relating to such Principal Party; or
(v) any such proceeding is commenced against any Principal Party to the
extent such proceeding is consented by such person or remains undismissed for a
period of 90 days; or
(vi) any Principal Party is adjudicated insolvent or bankrupt; or
<PAGE>
(vii) any order of relief or other order approving any such case or
proceeding is entered; or
(viii) any Principal Party suffers any appointment of any conservator or the
like for it or any substantial part of its property which continues
undischarged or unstayed for a period of 90 days; or
(ix) any Principal Party makes a general assignment for the benefit of
creditors; or
(x) any corporate (or similar organizational) action is taken by any
Principal Party for the purpose of effecting any of the foregoing; or
(i) ERISA: (i) any of the events described in clauses (i) through (viii) of
section 6.1(f) shall have occurred; or (ii) there shall result from any such
event or events the imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability; and (iii) any such
event or events or any such lien, security interest or liability, individually,
and/or in the aggregate, in the opinion of the Lender, has had, or could
reasonably be expected to have, a Material Adverse Effect.
8.2. Acceleration, etc. Upon the occurrence of any Event of Default, and at
any time thereafter, if any Event of Default shall then be continuing, the
Lender may, by written notice to the Borrower, take any or all of the following
actions, without prejudice to the rights of the Lender to enforce its claims
against the Borrower or any other Credit Party in any manner permitted under
applicable law:
(a) declare the Lender's Commitment terminated, whereupon the Commitment of
the Lender shall forthwith terminate immediately without any other notice of
any kind;
(b) declare the principal of and any accrued interest in respect of all
Loans to be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and/or
(c) exercise any other right or remedy available under any of the Credit
Documents or applicable law;
provided that, if an Event of Default specified in section 8.1(h) shall occur
with respect to the Borrower, the result which would occur upon the giving of
written notice by the Lender as specified in clauses (a) and/or (b) above shall
occur automatically without the giving of any such notice.
8.3. Application of Liquidation Proceeds. All monies received by the Lender
from the exercise of remedies hereunder or under the other Credit Documents or
under any other documents relating to this Agreement shall, unless otherwise
required by the terms of the other Credit Documents or by applicable law, be
applied as follows:
(a) first, to the payment of all expenses (to the extent not paid by the
Borrower) incurred by the Lender in connection with the exercise of such
remedies, including, without limitation, all reasonable costs and expenses of
collection, attorneys' fees, court costs and any foreclosure expenses;
(b) second, to the payment of interest then accrued on the outstanding Loans;
<PAGE>
(c) third, to the payment of the principal balance then owing on the
outstanding Loans;
(d) fourth, to the payment to the Lender of any other amounts then accrued
and unpaid under the Credit Documents;
(e) fifth, to the payment of all other amounts owed by the Borrower to the
Lender and/or any of its Affiliates which are secured by the Security
Documents, and if such proceeds are insufficient to pay such amounts in full,
to the payment of such amounts pro rata; and
(f) finally, any remaining surplus to the Borrower or to whomsoever shall
be lawfully entitled thereto.
SECTION 9. MISCELLANEOUS.
9.1. Payment of Expenses etc. (a) Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to pay (or reimburse
the Lender for) all reasonable out-of-pocket costs and expenses of the Lender
in connection with (i) the negotiation, preparation, execution and delivery of
the Credit Documents and the documents and instruments referred to therein,
(ii) any amendment, waiver or consent relating to any of the Credit Documents
which is requested by any Credit Party, and (iii) the enforcement of any of the
Credit Documents or the other documents and instruments referred to therein,
including, without limitation, in each such case the reasonable fees and
disbursements of Jones, Day, Reavis & Pogue, or other special counsel to the
Lender.
(b) The Borrower agrees to pay and hold the Lender harmless from and
against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save the Lender harmless from and against
any and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to the Lender) to pay such taxes.
(c) The Borrower agrees to indemnify the Lender and its officers,
directors, employees, representatives, agents and Affiliates, and their
respective successors and assigns (collectively, the "Indemnitees") from and
hold each of them harmless against any and all losses, costs, expenses,
liabilities, penalties, fines, claims, damages, costs or expenses reasonably
incurred by any of them as a result of, or arising out of, or in any way
related to, or by reason of
(i) any investigation, litigation or other proceeding (whether or not the
Lender is a party thereto) related to the entering into and/or performance of
any Credit Document or the use of the proceeds of any Loans hereunder or the
consummation of any transactions contemplated in any Credit Document, other
than any such investigation, litigation or proceeding arising out of
transactions solely involving the assignment by the Lender of all or a portion
of its Loans and Commitment, or the granting of participations therein, as
provided in this Agreement, or arising solely out of any examination of the
Lender by any regulatory or other governmental authority having jurisdiction
over it, or
(ii) the actual or alleged presence of Hazardous Materials in the air,
surface water or groundwater or on the surface or subsurface of any property at
any time owned, leased or operated by the Borrower or any of its Subsidiaries
or any of their respective predecessors in interest, the release, generation,
<PAGE>
storage, transportation, handling or disposal of Hazardous Materials at any
location, whether or not owned or operated by the Borrower or any of its
Subsidiaries, if the Borrower or any such Subsidiary could have or is alleged
to have any responsibility in respect thereof, the non-compliance of any such
property with foreign, federal, state and local laws, regulations and
ordinances (including applicable permits thereunder) applicable thereto, or any
Environmental Claim asserted against the Borrower or any of its Subsidiaries,
in respect of any such property,
including, in each case, without limitation, the reasonable fees and
disbursements of counsel incurred in connection with any such investigation,
litigation or other proceeding (but excluding any such losses, liabilities,
claims, damages or expenses to the extent incurred by reason of the gross
negligence or willful misconduct of the person to be indemnified or of any
other Indemnitee who is such person or an Affiliate of such person). To the
extent that the undertaking to indemnify, pay or hold harmless any person set
forth in the preceding sentence may be unenforceable because it is violative of
any law or public policy, the Borrower shall make the maximum contribution to
the payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
9.2. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
the Lender is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to the Borrower or to
any other person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any
other Debt at any time held or owing by the Lender (including, without
limitation, by branches and agencies of the Lender wherever located) to or for
the credit or the account of the Borrower against and on account of the
obligations and liabilities of the Borrower to the Lender under this Agreement
or under any of the other Credit Documents, including, without limitation, all
other claims of any nature or description arising out of or connected with this
Agreement or any other Credit Document, irrespective of whether or not the
Lender shall have made any demand hereunder and although said obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
9.3. Notices. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including
telegraphic, telex, facsimile and e-mail transmission or cable communication)
and mailed, telegraphed, telexed, transmitted, cabled or delivered, if to the
Borrower, at 968 Albany-Shaker Road, Latham, New York 12110, attention: Chief
Financial Officer (facsimile: (518) 785-2127); or if to the Lender at its
Notice Office; or at such other address as shall be designated by any party in
a written notice to the other parties hereto. All such notices and
communications shall be mailed, telegraphed, telexed, transmitted, or cabled or
sent by overnight courier, and shall be effective when received.
9.4. Benefit of Agreement. (a) General. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns, provided that the Borrower may not assign or
transfer any of its rights or obligations hereunder without the prior written
consent of the Lender, and, provided, further, that any assignment by the
Lender of its rights and obligations hereunder shall be effected in accordance
with section 9.4(c).
(b) Participations. Notwithstanding the foregoing, the Lender may at any
time grant participations in any of its rights hereunder or under any of the
<PAGE>
Notes to an Affiliate of the Lender which is a commercial bank, financial
institution or other "accredited investor" (as defined in SEC Regulation D), or
(y) one or more other commercial banks, financial institutions or other
"accredited investors" as so defined, provided that in the case of any such
participation, (i) the participant shall not have any rights under this
Agreement or any of the other Credit Documents, including rights of consent,
approval or waiver (the participant's rights against the Lender in respect of
such participation to be those which are customary and are set forth in the
agreement executed by the Lender in favor of the participant relating thereto);
(ii) the Lender's obligations under this Agreement (including, without
limitation, its Commitment hereunder) shall remain unchanged; (iii) the Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations; (iv) the Lender shall remain the holder of any Note for
all purposes of this Agreement; and (v) the Borrower shall continue to deal
solely and directly with the selling Lender in connection with the Lender's
rights and obligations under this Agreement.
(c) Assignments by Lender. Notwithstanding the foregoing, the Lender may
assign all of its Loans and Commitment, and its rights and obligations
hereunder, to (i) an Affiliate of the Lender which is a commercial bank,
financial institution or other "accredited investor" (as defined in SEC
Regulation D), or (ii) another commercial bank, financial institution or other
"accredited investor" (as defined in SEC Regulation D) which (if no Event of
Default is in existence) is reasonably acceptable to the Borrower. Upon any
such assignment the assigning Lender shall be relieved of its obligations
hereunder with respect to its assigned Commitment. Nothing in this section
9.4(c) shall prevent or prohibit the Lender from pledging its Note or Loans to
a Federal Reserve Bank in support of borrowings made by the Lender from such
Federal Reserve Bank.
(d) No SEC Registration or Blue Sky Compliance. Notwithstanding any other
provisions of this section 9.4, no transfer or assignment of the interests or
obligations of the Lender hereunder or any grant of participation therein shall
be permitted if such transfer, assignment or grant would require the Borrower
to file a registration statement with the SEC or to qualify the Loans under the
"Blue Sky" laws of any State.
(e) Representations of Lender. The Lender initially party to this Agreement
hereby represents, and each person that became the Lender pursuant to an
assignment permitted by this section 9.4 will, upon its becoming party to this
Agreement, represent that it is a commercial lender, other financial
institution or other "accredited" investor (as defined in SEC Regulation D)
which makes or acquires loans in the ordinary course of its business and that
it will make or acquire Loans for its own account in the ordinary course of
such business, provided that subject to the preceding sections 9.4(b) and (c),
the disposition of any promissory notes or other evidences of or interests in
Indebtedness held by the Lender shall at all times be within its exclusive
control.
9.5. No Waiver: Remedies Cumulative. No failure or delay on the part of the
Lender in exercising any right, power or privilege hereunder or under any other
Credit Document and no course of dealing between the Borrower and the Lender
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which the Lender would otherwise have. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
<PAGE>
or demand in similar or other circumstances or constitute a waiver of the
rights of the Lender to any other or further action in any circumstances
without notice or demand.
9.6. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action, event, condition or
circumstance is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or would otherwise be within the limitations
or restrictions of, another covenant, shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or event, condition or
circumstance exists.
9.7. Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK. TO THE
FULLEST EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER
THAN THE STATE OF NEW YORK GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS. Any legal action or proceeding with respect to this Agreement or any
other Credit Document may be brought in the Supreme Court of Albany County, New
York, or of the United States for the Northern District of New York, and, by
execution and delivery of this Agreement, the Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrower hereby
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to the Borrower at
its address for notices pursuant to section 9.3, such service to become
effective 30 days after such mailing or at such earlier time as may be provided
under applicable law. Nothing herein shall affect the right of the Lender to
serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Borrower in any other
jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in section 9.7(a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
9.8. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Lender.
9.9. Effectiveness; Integration. This Agreement shall become effective on
the date (the "Effective Date") on which the Borrower and the Lender shall have
signed a copy hereof (whether the same or different copies) and shall have
<PAGE>
delivered the same to the Lender at the Notice Office. This Agreement, the
other Credit Documents and any separate letter agreements with respect to fees
payable to the Lender, constitute the entire contract among the parties
relating to the subject matter hereof and thereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof or thereof.
9.10. Headings Descriptive. The headings of the several sections and other
portions of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
9.11. Amendment or Waiver. Neither this Agreement, any of the other Credit
Documents, nor any terms hereof or thereof, may be amended, changed, waived,
discharged or terminated unless such amendment, change, waiver, discharge or
termination is in writing signed by the Borrower (or other appropriate Credit
Party) and the Lender.
9.12. Survival of Indemnities. All indemnities set forth herein including,
without limitation, in section 2.9, 2.10 and 9.1 shall survive the execution
and delivery of this Agreement and the making and prepayment or repayment of
the Loans.
9.13. Domicile of Loans. The Lender may transfer and carry its Loans at, to
or for the account of any branch office, subsidiary or Affiliate of the Lender,
provided that the Borrower shall not be responsible for any additional costs
arising under section 2.9 resulting from any such transfer.
9.14. Confidentiality. The Lender shall hold all non-public information
obtained pursuant to the requirements of this Agreement in accordance with its
customary procedure for handling confidential information of this nature and in
accordance with safe and sound banking practices. Notwithstanding the
foregoing, the Lender may in any event make disclosures of, and furnish copies
of such information (i) when reasonably required by any bona fide transferee or
participant in connection with the contemplated transfer of any Loans or
Commitment or participation therein (provided that each such prospective
transferee and/or participant shall execute an agreement for the benefit of the
Borrower with such prospective transferor Lender and/or participant containing
provisions substantially identical to those contained in this section 9.14);
(ii) to its parent corporation or corporations and its and their Affiliates,
and to its and their auditors and attorneys; and (iii) as required or requested
by any governmental agency or representative thereof or pursuant to legal
process, provided that, unless specifically prohibited by applicable law or
court order, the Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of the Lender by such
governmental agency) for disclosure of any such non-public information prior to
disclosure of such information. In no event shall the Lender be obligated or
required to return any materials furnished by or on behalf of the Borrower or
any of its Subsidiaries. The Borrower hereby agrees that the failure of the
Lender to comply with the provisions of this section 9.14 shall not relieve the
Borrower of any of its obligations to the Lender under this Agreement and the
other Credit Documents.
9.15. General Limitation of Liability. No claim may be made by or through the
Borrower or any of its Affiliates against the Lender or its directors,
officers, employees, attorneys, agents or Affiliates, and no claim may be made
by the Lender against the Borrower, for any damages other than actual
compensatory damages in respect of any claim for breach of contract or any
<PAGE>
other theory of liability arising out of or related to the transactions
contemplated by this Agreement or any of the other Credit Documents, or any
act, omission or event occurring in connection therewith; and the Borrower and
the Lender each hereby, to the fullest extent permitted under applicable law,
waives, releases and agrees not to sue or counterclaim upon any such claim for
any special, consequential or punitive damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
9.16. No Duty. All attorneys, accountants, appraisers, consultants and other
professional persons (including the firms or other entities on behalf of which
any such person may act) retained by the Lender with respect to the
transactions contemplated by the Credit Documents shall have the right to act
exclusively in the interest of the Lender, and shall have no duty of
disclosure, duty of loyalty, duty of care, or other duty or obligation of any
type or nature whatsoever to the Borrower, to any of its Subsidiaries or
Affiliates, or to any other person, with respect to any matters within the
scope of such representation or related to their activities in connection with
such representation. The Borrower agrees, on behalf of itself and its
Subsidiaries, not to assert any claim or counterclaim against any such persons
with regard to such matters, all such claims and counterclaims, now existing or
hereafter arising, whether known or unknown, foreseen or unforeseeable, being
hereby waived, released and forever discharged.
9.17. Lender Not Fiduciary to Borrower, etc. The relationship among the
Borrower and its Subsidiaries and Affiliates, on the one hand, and the Lender,
on the other hand, is solely that of debtor and creditor, and the Lender has no
fiduciary or other special relationship with the Borrower and/or any of its
Subsidiaries and Affiliates, and no term or provision of any Credit Document,
no course of dealing, no written or oral communication, or other action, shall
be construed so as to deem such relationship to be other than that of debtor
and creditor.
9.18. Survival of Representations and Warranties. All representations and
warranties herein shall survive the making of Loans hereunder, the execution
and delivery of this Agreement, the Notes and any other documents the forms of
which are attached as Exhibits hereto, the issue and delivery of the Notes, any
disposition thereof by any holder thereof, and any investigation made by the
Lender or on its behalf. All statements contained in any certificate or other
document delivered to the Lender by or on behalf of the Borrower or any of its
Subsidiaries or Affiliates pursuant hereto or otherwise specifically for use in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower hereunder, made as of the
respective dates specified therein or, if no date is specified, as of the
respective dates furnished to the Lender.
IN WITNESS WHEREOF, each of the parties hereto has caused one or more
counterparts of this Agreement to be duly executed and delivered as of the
date first above written.
MECHANICAL TECHNOLOGY
INCORPORATED,
as the Borrower
By:_______________________________
Cynthia A. Scheuer
Vice President & Chief Financial Officer
<PAGE>
KEYBANK NATIONAL ASSOCIATION,
as the Lender
By:_______________________________
William B. Palmer, Vice President
EXHIBIT A
PROMISSORY NOTE
$22,500,000 Albany, New York
, 1999
FOR VALUE RECEIVED, the undersigned MECHANICAL TECHNOLOGY INCORPORATED, a New
York corporation (herein, together with its successors and assigns, the
"Borrower"), hereby promises to pay to the order of KEYBANK NATIONAL
ASSOCIATION (the "Lender"), in lawful money of the United States of America and
in immediately available funds, at the Payment Office of the Lender, TWENTY-TWO
MILLION FIVE HUNDRED THOUSAND DOLLARS AND NO CENTS ($22,500,000.00), on the
Maturity Date, and prior thereto, in installments on the dates and in the
amounts provided in section 3.2(a) of the Credit Agreement. Certain capitalized
terms used herein without definition shall have the respective meanings
ascribed thereto in the Credit Agreement referred to below.
The Borrower promises also to pay interest in like currency and funds on the
unpaid principal amount hereof to the Lender, at said office, from the date
hereof until paid at the rates and at the times provided in section 2.7 of the
Credit Agreement.
This Note is the Note referred to in the Credit Agreement, dated as of November
1, 1999, between the Borrower and the Lender (as from time to time in effect,
the "Credit Agreement"), and is entitled to the benefits thereof and of the
other Credit Documents. As provided in the Credit Agreement, this Note is
subject to mandatory prepayment prior to the Maturity Date, in whole or in
part.
In case an Event of Default shall occur and be continuing, the principal of and
accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives presentment, demand, protest or notice of any kind
in connection with this Note. No failure to exercise, or delay in exercising,
any rights hereunder on the part of the holder hereof shall operate as a waiver
of any such rights.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
<PAGE>
MECHANICAL TECHNOLOGY INCORPORATED
By:____________________________________
Title:
LOANS AND PAYMENTS OF PRINCIPAL
Amount
of
Date Amount Type Principal Unpaid
of of of Interest Paid or Principal Made
Notation Loan Laon Period Prepaid Balance By
EXHIBIT B-1
____________________________
FORM OF
SECURITY AGREEMENT
____________________________
<PAGE>
EXHIBIT B-2
____________________________
FORM OF
PLEDGE AGREEMENT
____________________________
EXHIBIT B-3
____________________________
FORM OF
SUBSIDIARY GUARANTY
____________________________
<PAGE>
EXHIBIT C
___________________________
FORM OF
CORPORATE CERTIFICATE
____________________________
MECHANICAL TECHNOLOGY INCORPORATED
Corporate Certificate
The undersigned certifies that she is an Assistant Secretary of MECHANICAL
TECHNOLOGY INCORPORATED, a New York corporation (the "Company"), and that as
such she is authorized to execute and deliver this Certificate on behalf of the
Company, and further certifies that:
(1) Filing of Charter Documents. No corporate document amending or
otherwise modifying the Company's articles of incorporation has been filed with
the Secretary of State of New York since _________.
(2) No Proceedings for Amendments, Merger, etc. No proceeding for the
amendment of the Articles of Incorporation of the Company, or for the merger,
consolidation, sale of substantially all of the assets and business,
liquidation or dissolution of the Company has been taken on or since such date
or is pending.
(3) Organization and Standing. The Company is validly existing in good
standing under the laws of the State of New York. The Company is duly qualified
as a foreign corporation and is in good standing in the following
jurisdictions: _____.
(4) By-Laws. Attached hereto as Exhibit A is a complete and correct copy of
the By- Laws of the Company, as amended and in effect since prior to
__________, and thereafter to and including the date hereof.
(5) Resolutions. Attached hereto as Exhibit B is a complete and correct
copy of resolutions duly adopted by the duly elected Directors of the Company
at a meeting duly called and held on _______, 1999, at which a quorum was
present and acting throughout.
(6) Full Force and Effect. Such resolutions have not been amended, modified
or rescinded and are in full force and effect on the date hereof.
(7) Credit Agreement, etc. Such resolutions constitute all of the
resolutions adopted by the Directors of the Company incident to the
transactions contemplated by the Credit Agreement (the "Credit Agreement"; with
capitalized terms used herein without definition having the respective meanings
<PAGE>
ascribed thereto in the Credit Agreement), dated as of November 1, 1999,
between the Company and KeyBank National Association. The execution, delivery
and performance by the Company of the Credit Agreement, and all other documents
to which the Company is to be a party as contemplated by the Credit Agreement,
have been duly authorized by such resolutions.
(8) Incumbency. Each of the following persons now is and at all times since
prior to ____________, has been a duly elected or appointed officer of the
Company, holding the office or offices in the Company set opposite his or her
name below, and that the signature of each such person set opposite his or her
name below is his or her own true original or facsimile signature:
Name Title Signature
George C. McNamee Chief Executive Officer ________________________
Cynthia A. Scheuer Vice President & Chief ________________________
Financial Officer
John Recupero Secretary ________________________
Catherine S. Hill Assistant Secretary ________________________
M. Shelia Lamb Assistant Secretary ________________________
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate on behalf of the Company on the date specified below.
________________________________
M. Shelia Lamb
Assistant Secretary
Dated: November 1, 1999
The undersigned, one of the officers named in the foregoing Certificate, hereby
confirms such Certificate as of the date hereof and hereby certifies on behalf
of the Company, with reference to the Credit Agreement (terms used below having
the respective meanings ascribed thereto in the Credit Agreement) as follows:
(i) All of the representations and warranties of the Company contained in
the Credit Agreement and the other Credit Documents were true and correct in
all material respects when made and are true and correct in all material
respects on and as of the date hereof as though made on and as of the date
hereof, except to the extent that such representations and warranties expressly
relate to an earlier specified date, in which case such representations and
warranties are hereby represented only as being true and correct in all
material respects as of the date when made.
(ii) No Default or Event of Default has occurred and is continuing.
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate on behalf of the Company on the date specified below.
____________________________________
Cynthia A. Scheuer, Vice President
& Chief Financial Officer
November 1, 1999
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE BORROWER
____________ __, 1999
KeyBank National Association
66 South Pearl Street
Albany, New York 12207
Re: $22,500,000 Credit Agreement,
dated as of November 1, 1999,
with Mechanical Technology Incorporated
Ladies and Gentlemen:
We have acted as special counsel to Mechanical Technology Incorporated, a New
York corporation (the "Borrower"), in connection with (i) the execution and
delivery of the Credit Agreement, dated as of November 1, 1999 (the "Credit
Agreement"), between the Borrower and KeyBank National Association (the
"Lender"), and (ii) the transactions contemplated thereby. Unless otherwise
indicated, capitalized terms used herein but not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement. This opinion
letter is delivered by us to you at the request of the Borrower in accordance
with the requirements of section 4.8 of the Credit Agreement.
As such special counsel, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents, records and
matters of law as we have considered necessary as a basis for the opinions set
forth herein, including without limitation the following:
(a) the Credit Agreement;
(b) the Note delivered today pursuant to the Credit Agreement;
(c) the Security Agreement;
(d) the Account Control Agreement; and
(e) the Pledge Agreement.
The documents referred to in clauses (a) through (e) above are herein sometimes
referred to as the "Credit Documents" and the documents referred to in clauses
(c), (d) and (e) above are herein sometimes referred to as the "Security
Documents".
<PAGE>
In our examination we have assumed the genuineness of all signatures (other
than as to the Borrower), the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies and the authenticity of the originals of
such copies. As to questions of fact not independently verified by us we have
relied, to the extent we deemed appropriate, upon representations and
certificates of officers of the Borrower, public officials and other
appropriate persons. All assumptions and statements of reliance as to factual
matters herein have been made without any independent investigation or
verification on our part except to the extent otherwise expressly stated, and
we express no opinion with respect to the subject matter or accuracy of such
assumptions or items relied upon. We have also assumed the due authorization,
execution and delivery of the Credit Documents on the part of the Lender, and
the legality, validity, binding effect on, and enforceability of the Credit
Documents against, the Lender. This opinion letter is subject to, and is to be
construed in accordance with, the principles and limitations set forth in the
Special Report by the TriBar Opinion Committee, U.C.C. Security Interest
Opinions, 49 Bus. Law. 362 (1993).
We understand that you have considered the applicability of fraudulent transfer
laws to the transactions contemplated by the Credit Documents, as to which laws
we express no opinion, and have satisfied yourself with respect thereto.
Our examination of matters of law in connection with the opinions expressed
herein has been limited to the federal laws of the United States and the laws
of the State of New York and, accordingly, no opinions expressed herein shall
be deemed to cover any other laws.
We have neither examined nor requested an examination of the indices or records
of any court or governmental or other agency, authority, instrumentality or
entity, nor have we made inquiry of any person or entity, except as expressly
set forth in this opinion letter. In addition, we have not independently
verified or investigated the accuracy or completeness of any factual
information and, because the scope of our examination did not include such
verification, we assume no responsibility for the accuracy or completeness of
any such information.
As used herein, "to our knowledge" shall mean to the actual knowledge of the
lawyers who have been actively involved in the negotiation of the Credit
Documents and the lawyers in our firm who are the current primary contacts for
the Borrower at the firm.
Based upon the foregoing and subject to the qualifications, assumptions and
limitations contained in this opinion letter, we are of the opinion that:
1. Corporate Status, etc. The Borrower (i) is a validly existing
corporation under the laws of the jurisdiction of its formation and has the
corporate power and authority to own its property and assets and to transact
the business in which it is engaged and presently proposed to engage and (ii)
to our knowledge, is duly qualified and is authorized to do business and is in
good standing in each jurisdiction where it is required to be so qualified
except where the failure to be so qualified would not have a Material Adverse
Effect.
2. Subsidiaries. To our knowledge, the Borrower has no Subsidiary other
than as described in section 5.2 of the Credit Agreement.
<PAGE>
3. Corporate Power and Authority, etc. The Borrower has the corporate
power and authority to execute, deliver and carry out the terms and provisions
of the Credit Documents to which it is a party and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Credit Documents to which it is a party.
4. Credit Documents. The Borrower has duly executed and delivered each
Credit Document to which it is a party and each such Credit Document to which
it is a party constitutes the legal, valid and binding agreement or obligation
of the Borrower enforceable against it in accordance with its terms, except to
the extent that the enforceability thereof may be limited by (i) applicable
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
similar laws, and related judicial doctrines, from time to time in effect
affecting creditors' rights and remedies generally, (ii) general principles of
equity (including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, equitable defenses and limits on the
availability of equitable remedies), whether such principles are considered in
a proceeding at law or in equity, and (iii) the qualification that certain
other provisions of such Credit Documents may be unenforceable in whole or in
part under the laws (including judicial decisions) of the State of New York or
other applicable jurisdictions, but the inclusion of such provisions does not
affect the validity as against the Borrower of any of such Credit Documents as
a whole, and such Credit Documents contain adequate provisions for enforcing
payment of the obligations governed or secured thereby and for the realization
of the principal rights and benefits afforded thereby, subject to the other
qualifications and limitations contained in this opinion letter.
5. No Violation. Neither the execution, delivery or performance by the
Borrower of the Credit Documents to which it is a party nor compliance with the
terms and provisions thereof, (i) will contravene any provision of any State of
New York or United States federal law, statute, rule, regulation (including,
without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System), or, to our knowledge, any order, writ, injunction or
decree of any court or governmental instrumentality applicable to the Borrower
or its properties and assets, (ii) will conflict or result in any breach of,
any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to
create or impose) any Lien (other than the Liens created pursuant to the
Security Documents) upon any of the property or assets of the Borrower pursuant
to the terms of any material indenture, mortgage, deed of trust, agreement or
other instrument of which we have knowledge to which the Borrower is a party or
by which it or any of its property or assets are bound or to which it may be
subject or (iii) will violate any provision of the charter or by-laws of the
Borrower.
6. Governmental Approvals. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any New York or United States federal governmental or public body
or authority, is required to authorize or is required as a condition to (i) the
execution, delivery and performance by the Borrower of any Credit Document to
which it is a party, or (ii) the legality, validity, binding effect or
enforceability as against the Borrower of any such Credit Document.
7. Litigation. To our knowledge, there are no actions, suits or
proceedings pending or, to, our knowledge, threatened with respect to the
Borrower or any of its Subsidiaries (i) that have, or could reasonably be
expected to have, a Material Adverse Effect, or (ii) which question the
<PAGE>
validity or enforceability of any of the Credit Documents, or of any action to
be taken by the Borrower pursuant to any of the Credit Documents to which it is
a party.
8. Investment Company Act, etc. The Borrower is not subject to regulation
with respect to the creation or incurrence of Indebtedness under the Investment
Company Act of 1940, as amended, the Interstate Commerce Act, as amended, the
Federal Power Act, as amended, the Public Utility Holding Company Act of 1935,
as amended, or any applicable state public utility law.
9. Pledged Shares. The Pledge Agreement, together with delivery of the
certificates representing the shares of stock of the Company identified on
Schedule I to the Pledge Agreement (the "Pledged Shares") to the Collateral
Agent in the State of New York, creates in favor of the Lender, as security for
the Secured Obligations (as defined in the Pledge Agreement), a perfected
security interest under the Uniform Commercial Code of the State of New York in
the Pledged Shares. Assuming the Lender acquires its interest in the Pledged
Shares in good faith and without notice of any adverse claim, and that each
certificate for any of the Pledged Shares is indorsed in the name of the Lender
or in blank (either on such certificate or in a separate stock power related
thereto), the Lender will acquire its security interest in the Pledged Shares
free of any adverse claims. No filings or recordings are required under the
Uniform Commercial Code of the State of New York in order to perfect the
security interest created under the Pledge Agreement with respect to such
Pledged Shares.
* * * * *
The opinions set forth above are subject to the following assumptions,
qualifications and limitations:
[to be completed
in a manner acceptable
to the Lender]
This opinion letter is being furnished only to the addressee and is solely for
its benefit and the benefit of its participants and assigns in connection with
the transactions contemplated by the Credit Documents. This opinion letter may
not be relied upon for any other purpose, or relied upon by any other person,
firm or corporation for any purpose, without our prior written consent.
Very truly yours,
<PAGE>
STOCK PLEDGE AGREEMENT
THIS AGREEMENT, dated as of November 1, 1999 (herein as amended or otherwise
modified, "this Agreement"), by MECHANICAL TECHNOLOGY INCORPORATED, a New York
corporation (herein, together with its successors and assigns, the "Pledgor" or
the "Borrower"), with KEYBANK NATIONAL ASSOCIATION, a national banking
association (herein, together with its successors and assigns, the "Lender"):
PRELIMINARY STATEMENTS:
(1) The Lender has entered into a Credit Agreement, dated as of the date
hereof (said Agreement, as it may hereafter be amended or otherwise modified
from time to time, being the "Credit Agreement", the terms defined therein and
not otherwise defined herein being used herein as therein defined), with the
Borrower.
(2) The Pledgor is the owner of membership interests in Plug Power, LLC
(the "Membership Interests"). Proceeds of the Loans incurred by the Pledgor
under the Credit Agreement, in the amount of $20,500,000, are being used to
make a capital contribution to Plug Power, LLC in exchange for additional
Membership Interests. The balance of the proceeds of the Loans under the Credit
Agreement are being used to finance a $2,000,000 capital contribution which the
Pledgor recently made in Plug Power, LLC in exchange for additional Membership
Interests.
(3) After the execution and delivery of this Agreement, and pursuant to a
merger agreement between Plug Power, LLC and Plug Power Inc., a Delaware
corporation (herein, togetherwith its successors and assigns, the "Company"),
the Membership Interests owned by the Pledgor will be converted into the shares
(the "Pledged Shares") of stock described in Schedule I hereto and issued by
the Company.
(4) It is a condition precedent to the making of Loans by the Lender under
the Credit Agreement that the Pledgor shall have made the pledge contemplated
by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender to make Loans under the Credit Agreement, the Pledgor hereby agrees as
follows:
1. Pledge. The Pledgor hereby pledges to the Lender, and grants to the
Lender a security interest in, the following (the "Pledged Collateral"):
(a) the Membership Interests owned by the Pledgor, the Pledged Shares into
which such Membership Interests will be converted upon the merger of Plug
Power, LLC into the Company, as described above, and the certificates
representing the Pledged Shares, and all dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(b) all additional shares of stock of any issuer of the Pledged Shares from
time to time acquired by the Pledgor in any manner, and the certificates
representing such additional shares, and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such shares; and
(c) all proceeds of any and all of the foregoing Collateral (including,
without limitation, proceeds that constitute property of the types described
above).
<PAGE>
2. Security for Secured Obligations. This Agreement secures the payment of
(i) all obligations of the Borrower now or hereafter existing under the Credit
Agreement and the Note, whether for principal, interest, fees, expenses or
otherwise, (ii) all obligations of the Pledgor now or hereafter existing under
this Agreement, and (iii) all obligations of the Borrower now or hereafter
existing in favor of the Lender or any of its Affiliates which the Lender may
from time to time designate in writing to the Pledgor as being entitled to the
benefits of the security hereof (all such obligations of the Borrower referred
to in this section 2 being the "Secured Obligations"). Without limiting the
generality of the foregoing, this Agreement secures the payment of all amounts
which constitute part of the Secured Obligations and would be owed by the
Borrower but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
3. Delivery of Pledged Collateral; Removal of Legends; Use of Securities
Account. (a) The Pledgor shall instruct the Company and its transfer agent to
physically deliver directly to the Lender all certificates for the Pledged
Shares which are issuable to the Pledgor upon conversion of the Membership
Interests owned by the Pledgor into the Pledged Shares in connection with the
merger of Plug Power, LLC into the Company as described above. All certificates
or instruments representing or evidencing the Pledged Collateral shall be
delivered to and held by or on behalf of the Lender pursuant hereto and shall
be in suitable form for transfer by delivery, or shall be accompanied by duly
executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Lender. The Lender shall have the right, in its
discretion, at any time during the continuance of an Event of Default and
without notice to the Pledgor, to transfer to or to register in the name of the
Lender or any of its nominees any or all of the Pledged Collateral, subject
only to the revocable rights specified in section 6(a). In addition, the Lender
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments
of smaller or larger denominations.
(b) If any Pledged Collateral is subject to any contractual restriction on
transfer arising under any agreement to which the Pledgor is a party with the
issuer, other shareholders and/or any underwriters, and any certificate or
certificates for such Pledged Collateral contain a legend which makes reference
to such restrictions, the Pledgor will, from time to time and as promptly as
circumstances permit, take all such actions as are within its power to request
and obtain the removal of such legend from certificates for the maximum number
of shares as to which it is entitled to have such legend removed.
(c) If after the date hereof any or all of the Pledged Collateral may be
held in book entry form and the Pledgor desires that such Pledged Collateral be
held in such form in an account which the Pledgor has with a broker which is a
member firm of the National Association of Securities Dealers, then the Lender
will cooperate with the Pledgor in transferring such Pledged Collateral to such
account, provided that there is in place an "account control agreement"
reasonably satisfactory to the Lender which is sufficient to perfect its
security interest in the Pledged Collateral held in such account and all
proceeds thereof.
4. Representations and Warranties. The Pledgor represents and warrants
that upon completion of the merger of Plug Power, LLC into the Company as
described above:
(a) The Pledged Shares will have been duly authorized and validly issued
and will be fully paid and non-assessable.
<PAGE>
(b) The Pledgor will be the legal and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, option or other
charge or encumbrance except for the security interest created by this
Agreement.
(c) The pledge of the Pledged Shares pursuant to this Agreement will create
a valid and perfected first priority security interest in the Pledged
Collateral, securing the payment of the Secured Obligations.
(d) No consent of any other person or entity and no authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required (i) for the pledge by the Pledgor of
the Pledged Collateral pursuant to this Agreement or for the execution,
delivery or performance of this Agreement by the Pledgor, (ii) for the
perfection or maintenance of the security interest created hereby (including
the first priority nature of such security interest) or (iii) for the exercise
by the Lender of the voting or other rights provided for in this Agreement or
the remedies in respect of the Pledged Collateral pursuant to this Agreement
(except as may be required in connection with any disposition of any portion of
the Pledged Collateral by laws affecting the offering and sale of securities
generally).
(e) The Pledged Shares identified on Schedule I represent all of the equity
interests in the issuer of the Pledged Shares which are owned by the Borrower
or any of its Subsidiaries as of the date of completion of the merger of Plug
Power, LLC into the Company. The Pledged Shares constitute as of such date the
percentage of the issued and outstanding shares of stock of the issuer thereof
indicated on Schedule I.
(f) There are no conditions precedent to the effectiveness of this
Agreement that have not been satisfied or waived.
(g) The Pledgor has, independently and without reliance upon the Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
5. Further Assurances. The Pledgor agrees that at any time and from time
to time, at the expense of the Pledgor, the Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Lender may reasonably request,
in order to perfect and protect any security interest granted or purported to
be granted hereby or to enable the Lender to exercise and enforce its rights
and remedies hereunder with respect to any Pledged Collateral.
6. Voting Rights; Dividends; etc. (a) So long as no Event of Default shall
have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from exercising
any and all voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
of this Agreement or the Credit Agreement; provided, however, that the Pledgor
shall not exercise or refrain from exercising any such right if, in the
Lender's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof, and, provided, further,
that the Pledgor shall give the Lender at least five days' written notice of
the manner in which it intends to exercise, or the reasons for refraining from
exercising, any such right.
<PAGE>
(ii) The Pledgor shall be entitled to receive and retain any and all
dividends and distributions paid in respect of the Pledged Collateral,
provided, however, that any and all
(A) dividends and distributions paid or payable other than in cash in
respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, and Pledged
Collateral, and
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus,
shall be, and shall be forthwith delivered to the Lender to hold as, Pledged
Collateral and shall, if received by the Pledgor, be received in trust for the
benefit of the Lender, be segregated from the other property or funds of the
Pledgor, and be forthwith delivered to the Lender as Pledged Collateral in the
same form as so received (with any necessary indorsement or assignment).
(iii) The Lender shall execute and deliver (or cause to be executed and
delivered) to the Pledgor all such proxies and other instruments as the Pledgor
may reasonably request for the purpose of enabling the Pledgor to exercise the
voting and other rights which it is entitled to exercise pursuant to paragraph
(i) above and to receive the dividends or distributions which it is authorized
to receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from exercising
the voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to section 6(a)(i) shall, upon notice to the Pledgor by the
Lender, cease and (y) to receive the dividends and distributions which it would
otherwise be authorized to receive and retain pursuant to section 6(a)(ii)
shall automatically cease, and all such rights shall thereupon become vested in
the Lender who shall thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights and to receive and hold as
Pledged Collateral such dividends and distributions.
(ii) All dividends and distributions which are received by the Pledgor
contrary to the provisions of paragraph (i) of this section 6(b) shall be
received in trust for the benefit of the Lender, shall be segregated from other
funds of the Pledgor and shall be forthwith paid over to the Lender as Pledged
Collateral in the same form as so received (with any necessary indorsement).
7. Transfers and Other Liens. The Pledgor agrees that it will not (i)
sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Pledged Collateral, except for
sales of the Pledged Collateral made in accordance with the provisions of
section 7.2(c) of the Credit Agreement; or (ii) create or permit to exist any
lien, security interest, option or other charge or encumbrance upon or with
respect to any of the Pledged Collateral, except for the security interest
under this Agreement.
8. Lender Appointed Attorney-in-Fact. The Pledgor hereby appoints the
Lender the Pledgor's attorney-in-fact, with full authority in the place and
stead of the Pledgor and in the name of the Pledgor or otherwise, from time to
time in the Lender's discretion to take any action and to execute any
<PAGE>
instrument which the Lender may deem necessary or advisable to accomplish the
purposes of this Agreement (subject to the rights of the Pledgor under section
6), including, without limitation, to receive, indorse and collect all
instruments made payable to the Pledgor representing any dividend[, interest
payment] or other distribution in respect of the Pledged Collateral or any part
thereof and to give full discharge for the same.
9. Lender May Perform. If the Pledgor fails to perform any agreement
contained herein, the Lender may itself perform, or cause performance of, such
agreement, and the expenses of the Lender incurred in connection therewith
shall be payable by the Pledgor under section 13.
10. The Lender's Duties. The powers conferred on the Lender hereunder are
solely to protect its interest in the Pledged Collateral and shall not impose
any duty upon it to exercise any such powers. Except for the safe custody of
any Pledged Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Lender shall have no duty as to any Pledged
Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not the Lender has or is deemed to have
knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against any parties or any other rights pertaining to any
Pledged Collateral. The Lender shall be deemed to have exercised reasonable
care in the custody and preservation of any Pledged Collateral in its
possession if such Pledged Collateral is accorded treatment substantially equal
to that which the Lender accords its own property.
11. Remedies upon Default. If any Event of Default shall have occurred and
be continuing:
(a) The Lender may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party on default
under the Uniform Commercial Code in effect in the State of New York at that
time (the "Code") (whether or not the Code applies to the affected Collateral),
and may also, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private
sale, at any exchange, broker's board or at any of the Lender's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Lender may deem commercially reasonable. The Pledgor agrees that,
to the extent notice of sale shall be required by law, at least ten days'
notice to the Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. The Lender may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(b) Any cash held by the Lender as Pledged Collateral and all cash proceeds
received by the Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of the Lender, be held by the Lender as collateral for, and/or then
or at any time thereafter be applied (after payment of any amounts payable to
the Lender pursuant to section 13) in whole or in part by the Lender against,
all or any part of the Secured Obligations in such order as the Lender shall
elect. Any surplus of such cash or cash proceeds held by the Lender and
<PAGE>
remaining after payment in full of all the Secured Obligations shall be paid
over to the Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
12. Registration Rights. If the Lender shall determine to exercise its
right to sell all or any of the Pledged Collateral pursuant to section 11, the
Pledgor agrees that, upon request of the Lender, the Pledgor will, at its own
expense:
(a) execute and deliver, and cause each issuer of the Pledged Collateral
contemplated to be sold and the directors and officers thereof to execute and
deliver, all such instruments and documents, and do or cause to be done all
such other acts and things, as may be necessary or, in the opinion of the
Lender, advisable to register such Pledged Collateral under the provisions of
the 1933 Act, and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the Lender, are
necessary or advisable, all in conformity with the requirements of the 1933 Act
and the rules and regulations of the SEC applicable thereto;
(b) use its best efforts to qualify the Pledged Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, as requested by the Lender;
(c) cause each such issuer to make available to its security holders, as
soon as practicable, an earning statement which will satisfy the provisions of
section 11(a) of the 1933 Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof
valid and binding and in compliance with applicable law.
13. Expenses. The Pledgor will upon demand pay to the Lender the amount of
any and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Lender may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon,
any of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Lender hereunder or (iv) the failure by the Pledgor to perform or
observe any of the provisions hereof.
14. Amendments, etc. No amendment or waiver of any provision of this
Agreement, and no consent to any departure by the Pledgor herefrom, shall in
any event be effective unless the same shall be in writing and signed by the
Lender, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
15. Addresses for Notices. All notices and other communications provided
for hereunder shall be in writing (including telecopier, electronic e-mail,
telegraphic, telex or cable communication) and mailed, telecopied, e-mailed,
telegraphed, telexed, cabled or delivered to it, at its address specified in
the Credit Agreement, or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and other communications shall be effective when received.
16. Pursuant to the terms hereof and execute and deliver to the Pledgor
such documents as the Pledgor shall reasonabl Continuing Security Interest;
Assignments under Credit Agreement. This Agreement shall create a continuing
<PAGE>
security interest in the Pledged Collateral and shall (i) remain in full force
and effect until the later of (x) the payment in full of the Note and all other
amounts payable under this Agreement and (y) the expiration or termination of
the Commitment, (ii) be binding upon the Pledgor, its successors and assigns,
and (iii) inure to the benefit of, and be enforceable by, the Lender and its
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), the Lender may assign or otherwise transfer all or any
portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Loans and the
Note) to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to the
Lender herein or otherwise. Upon the later of the payment in full of the Note
and all other amounts payable under this Agreement and the expiration or
termination of the Commitment, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to the Pledgor.
Upon any such termination, the Lender will, at the Pledgor's expense, return to
the Pledgor such of the Pledged Collateral as shall not have been sold or
otherwise applied pury request to evidence such termination.
17. Governing Law; UCC Terms. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms defined in Article 9
of the Code are used herein as therein defined.
18. Counterparts. This Agreement may be executed in any number of
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one agreement.
IN WITNESS WHEREOF, the Pledgor and the Lender have caused this Agreement to be
duly executed and delivered as of the date first above written.
MECHANICAL TECHNOLOGY
INCORPORATED,
as Pledgor
By:_________________________________
Cynthia A. Scheuer
Vice President
& Chief Financial Officer
KEYBANK NATIONAL ASSOCIATION,
as Lender
By:___________________________________
_ William B. Palmer, Vice President
<PAGE>
SCHEDULE I
Stock Percentage
Certificate Number of of Outstanding
Stock Issuer Class of Stock Nos. Par Value Shares Shares
Plug Power Common Stock Various $0.01 13,704,315 Approx. 32.5%
Inc.
