Exhibit 10
AMENDED AND RESTATED CREDIT AGREEMENT
by and among
GP STRATEGIES CORPORATION,
GENERAL PHYSICS CANADA LTD.
THE LENDERS PARTY HERETO,
AND
FLEET BANK, NATIONAL ASSOCIATION,
AS AGENT, AS ISSUING BANK AND AS ARRANGER
Dated as of June 15, 1998, as amended and restated as of August 31, 2000
<PAGE>
TABLE OF CONTENTS
AMENDED AND RESTATED CREDIT AGREEMENT 1
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION 1
1.1 Definitions 1
1.2 Principles of Construction 32
2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS AND LETTERS OF CREDIT 33
2.1 Revolving Credit Loans; Revolving Credit Notes 33
2.2 Term Loans; Term Notes 34
2.3 Procedure for Borrowing 35
2.4 Termination or Reduction of Parent Commitments and
GP Canada Credit Exposure.......................................... 37
2.5 Prepayments of Loans; Overadvance Reductions; Additional Collateral.37
2.6 Use of Proceeds.................................................... 40
2.7 Letter of Credit Sub-Facility ......................................41
2.8 Letter of Credit Participation and Funding Commitments .............42
2.9 Absolute Obligation With Respect to Letter of Credit Payments ......44
2.10 Payments ...........................................................45
2.11 Cash Collateral Accounts ...........................................46
2.12 Defaulting Lender ..................................................47
2.13 Recordation of Mortgages. ..........................................48
3. INTEREST, FEES, YIELD PROTECTIONS, ETC. ............................48
3.1 Interest Rate and Payment Dates ....................................48
3.2 Fees 51
3.3 Conversions ........................................................52
3.4 Concerning Interest Periods ........................................53
3.5 Indemnification for Loss ...........................................53
3.6 Capital Adequacy ...................................................54
3.7 Reimbursement for Increased Costs ..................................55
3.8 Illegality of Funding ..............................................56
3.9 Substituted Interest Rate ..........................................56
3.10 Taxes ..............................................................57
3.11 Option to Fund .....................................................59
3.12 Replacement of Lenders .............................................59
<PAGE>
4. REPRESENTATIONS AND WARRANTIES ..........................................60
4.1 Subsidiaries; Capitalization .......................................60
4.2 Existence and Power ................................................61
4.3 Authority and Execution ............................................61
4.4 Binding Agreement ..................................................61
4.5 Litigation .........................................................61
4.6 Required Consents ..................................................62
4.7 Absence of Defaults; No Conflicting Agreements .....................62
4.8 Compliance with Applicable Laws ....................................62
4.9 Taxes ..............................................................63
4.10 Governmental Regulations ...........................................63
4.11 Federal Reserve Regulations; Use of Loan Proceeds ..................63
4.12 Plans ..............................................................63
4.13 Financial Statements ...............................................64
4.14 Property ...........................................................65
4.15 Authorizations .....................................................65
4.16 Environmental Matters ..............................................65
4.17 Solvency ...........................................................66
4.18 Absence of Certain Restrictions ....................................66
4.19 No Misrepresentation ...............................................66
4.20 Intangible Assets. .................................................67
4.21 Material Subsidiaries; Systems Merger. .............................67
5. CONDITIONS TO EFFECTIVENESS OF AMENDMENT AND RESTATEMENT TO ORIGINAL
AGREEMENT ...............................................................67
5.1 Evidence of Action .................................................67
5.2 This Agreement .....................................................68
5.3 Notes; Letter of Credit Documents ..................................68
5.4 Absence of Litigation ..............................................68
5.5 Approvals and Consents .............................................68
5.6 Absence of Material Adverse Change .................................69
5.7 Financial Officer's Certificate ....................................69
5.8 Intentionally Omitted ..............................................69
5.9 Opinion of Counsel to the Borrowers and their Subsidiaries .........69
5.10 Previous Information ...............................................69
5.11 Borrower Security Agreement; Subordination Agreement; Parent
Guaranty; Subsidiary Guaranty and Security Agreement and
Related Matters ...................................................70
5.12 Search Reports and Related Documents ...............................71
5.13 Intentionally Omitted ..............................................72
5.14 Borrowing Base Certificate .........................................72
5.15 Property, Public Liability and Other Insurance .....................72
5.16 Fees ...............................................................72
5.17 Fees and Expenses of Special Counsel ...............................72
5.18 Morgan Keegan Consent ..............................................72
<PAGE>
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT .................73
6.1 Compliance ..........................................................73
6.2 Borrowing Request; Letter of Credit Request; Compliance with
Borrowing Base .....................................................73
6.3 Certain Documents ...................................................73
6.4 Other Documents .....................................................73
7. AFFIRMATIVE COVENANTS ...................................................74
7.1 Financial Statements and Information ...............................74
7.2 Certificates; Other Information ....................................76
7.3 Legal Existence ....................................................78
7.4 Taxes ..............................................................78
7.5 Insurance ..........................................................79
7.6 Performance of Obligations .........................................80
7.7 Condition of Property ..............................................80
7.8 Observance of Legal Requirements ...................................80
7.9 Inspection of Property; Books and Records; Discussions .............81
7.10 Authorizations .....................................................81
7.11 Financial Covenants ................................................81
7.12 Additional Subsidiaries ............................................82
7.13 Hydro Med Issues ...................................................83
7.14 Mortgages ..........................................................84
7.15 In-House Counsel Opinion ...........................................84
7.16 Title Reports; Appraisals ..........................................84
7.17 Morgan Keegan Consent ..............................................84
<PAGE>
8. NEGATIVE COVENANTS ......................................... ............84
8.1 Indebtedness .......................................................84
8.2 Liens ..............................................................86
8.3 Merger, Consolidations and Acquisitions ............................88
8.4 Dispositions .......................................................88
8.5 Investments, Loans, Etc. ...........................................90
8.6 Restricted Payments. ...............................................92
8.7 Capital Expenditures; Operating Leases. ............................92
8.8 Business and Name Changes ..........................................92
8.9 ERISA ..............................................................93
8.10 Prepayments of Indebtedness ........................................93
8.11 Amendments, Etc. of Certain Agreements .............................93
8.12 Transactions with Affiliates .......................................93
8.13 Issuance of Additional Capital Stock ...............................93
8.14 Limitation on Upstream Dividends by Subsidiaries ...................94
8.15 Limitation on Negative Pledges .....................................94
8.16 Margin Stock .......................................................94
8.17 IT Adjustment Issues ...............................................94
8.18 Hydro Med Subordinated Debt Documents ..............................94
8.19 Intangible Assets ..................................................95
8.20 Hydro Med Issues ...................................................95
9. DEFAULT .................................................................95
9.2 Contract Remedies ..................................................97
10. THE AGENT ...............................................................99
10.1 Appointment ........................................................99
10.2 Delegation of Duties ...............................................99
10.3 Exculpatory Provisions 100
10.4 Reliance by Agent .................................................100
10.5 Notice of Default .................................................101
10.6 Non-Reliance on Agent and Other Lenders ...........................101
10.7 Indemnification ...................................................102
10.8 Agent in Its Individual Capacity ..................................103
10.9 Successor Agent ...................................................103
<PAGE>
11. OTHER PROVISIONS .......................................................104
11.1 Amendments and Waivers ...........................................104
11.2 Notices ..........................................................105
11.3 No Waiver; Cumulative Reies ......................................107
11.4 Survival of Representations and Warranties and Certain
Obligations......................................................107
11.5 Expenses .........................................................107
11.6 Lending Offices ..................................................108
11.7 Successors and Assigns ...........................................109
11.8 Indemnity ........................................................110
11.9 Limitation of Liability ..........................................111
11.10 Counterparts .....................................................111
11.11 Adjustments; Set-off .............................................112
11.12 Construction .....................................................114
11.13 Governing Law ....................................................114
11.14 Headings Descriptive .............................................114
11.15 Severability .....................................................114
11.16 Integration ......................................................114
11.17 Consent to Jurisdiction ..........................................114
11.18 Service of Process ...............................................115
11.19 No Limitation on Service or Suit .................................115
11.20 WAIVER OF TRIAL BY JURY ..........................................115
11.21 Treatment of Certain Information .................................116
11.22 Judgment Currency ................................................116
11.23 Pledge to Federal Reserve ........................................117
11.24 Lost Notes .......................................................117
11.25 Interest Adjustment ..............................................117
11.26 No Set-off or Counterclaim; Loan Documents in Full Effect ........118
11.27 Obligations Unimpaired; Amendment and Restatement ................118
<PAGE>
EXHIBITS
Exhibit A Commitments
Exhibit B-1 Form of Amended and Restated Revolving Credit Note
Exhibit B-2 Form of Amended and Restated Term Note
Exhibit C-1 Form of Borrowing Request
Exhibit C-2 Form of Letter of Credit Request
Exhibit D Form of Notice of Conversion
Exhibit E Form of Compliance Certificate
Exhibit F-1 Form of Opinion - New York counsel
Exhibit F-2 Form of Opinion - in-house counsel to Parent and Subsidiaries
Exhibit F-3 Form of Opinion - Canadian counsel
Exhibit G Form of Assignment and Acceptance Agreement
Exhibit H-1 Form of Amended and Restated Borrower Security Agreement - Parent
Exhibit H-2 Form of original Borrower Security
Agreement - GP Canada and form of Hypothec - GP Canada
Exhibit I Form of Amended and Restated Subsidiary Guaranty
and Security Agreement
Exhibit J Form of Amended and Restated Parent Guaranty and Subordination
Agreement
Exhibit K Form of Intercompany Demand Note
Exhibit L-1 Form of Subordination Agreement - Credit Parties
Exhibit L-2 Form of Subordination Agreement - Parent and Physics
Exhibit L-3 Form of Subordination Agreement - SGLG and Physics
Exhibit M Form of Borrowing Base Certificate
SCHEDULES
Schedule 4.1 - Subsidiaries and Authorized, Issued and Outstanding Stock
Schedule 4.5 - Litigation
Schedule 4.16 - Environmental Matters
Schedule 4.21 - Material Subsidiaries and Foreign Subsidiaries
Schedule 8.1 - Indebtedness and Joint Ventures
Schedule 8.2 - Liens
Schedule 8.5 - Investments and Eligible Securities Collateral and Other
Marketable Securities
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 15, 1998, as
amended and restated as of August 31 2000, by and among GP STRATEGIES
CORPORATION ("Parent"), a Delaware corporation and GENERAL PHYSICS CANADA LTD.
("GP Canada"), a corporation organized under the laws of Ontario, Canada (Parent
and GP Canada shall individually be referred to herein as a "Borrower" and shall
collectively be referred to herein as the "Borrowers"), the lenders party hereto
(together with their respective assigns, the "Lenders", each a "Lender") and
FLEET BANK, NATIONAL ASSOCIATION, as agent for the Lenders (in such capacity,
the "Agent") and as Issuing Bank (in such capacity, the "Issuing Bank").
RECITALS:
(1)......The Borrowers, the Lenders and the Agent entered into a Credit
Agreement, dated June 15, 1998, as amended by Amendment No. 1 dated as of July
21, 1998, Amendment No. 2 dated as of December 31, 1998, Amendment No. 3 dated
as of May 7, 1999 and Amendment No. 4 dated as of December 17, 1999 (as
heretofore amended, modified and supplemented, the "Original Agreement").
(2)......Pursuant to the Original Agreement the Lenders and the Issuing
Bank extended credit to the Borrowers for the purposes therein specified.
(3)......The Borrowers, the Lenders and the Agent wish to amend and restate
the Original Agreement to make certain changes in the terms of the Original
Agreement.
(4)......The parties hereto agree that effective on the Closing Date, the
Original Agreement is amended and restated in its entirety.
NOW, THEREFORE, in consideration for the foregoing agreements and for other
good and valuable consideration whose receipt and sufficiency are acknowledged,
each Borrower, the Lenders, the Issuing Bank and the Agent agree to the
following terms.
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1 Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR Advances": collectively, the Revolving Credit Loans (or any
portions thereof), and/or the Term Loans (or any portion thereof) at such time
as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
<PAGE>
"Account(s)": with respect to any Person: (a) all "accounts" as
defined in the Uniform Commercial Code of the State of New York and, in
addition, all of the accounts, contract rights (including its rights as an
unpaid vendor, or lienor, including stoppage in transit, replevin and
reclamation), instruments, documents, chattel paper, notes and drafts of such
Person, whether secured or unsecured, and whether or not specifically assigned
to the Agent or any Lender hereunder, and including any right to payment which
has been earned under a contract right and all inventory returned or reclaimed
from Account Debtors and all rights to payment for goods sold or leased or
services rendered; and (b) all products and proceeds (whether cash proceeds or
otherwise) of the foregoing, whether now owned, held, or hereafter acquired by
such Person.
"Accounts Receivable Borrowing Base": the sum of (i) 80% of Eligible
Accounts from time to time outstanding, plus (ii) the lesser of (A) $3,500,000
or (B) 80% of the Eligible Foreign Accounts from time to time outstanding.
"Accountants": KPMG Peat Marwick LLP (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by Parent and reasonably satisfactory to the Agent.
"Account Debtor": at any time, in addition to the definition of
"account debtor" as contained in the Uniform Commercial Code of the State of New
York, any Person who is obligated under or on account of an Account, or any
Person who is represented by a Borrower to be so obligated.
"Accumulated Funding Deficiency": as defined in Section 302 of ERISA.
"Acquisition": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including through a merger,
amalgamation, dividend or otherwise and whether in a single transaction or in a
series of related transactions), of (i) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be either a Subsidiary of
such Person or otherwise under the control of such Person, (ii) any business,
going concern or division or segment of any other Person, or (iii) any Property
of any other Person other than in the ordinary course of business, provided,
however, that no acquisition of all or substantially all of the assets of such
other Person shall be deemed to be in the ordinary course of business.
"Adjusted Available Parent Commitment Amount": at any time, an amount
equal to the Aggregate Parent Commitment Amount minus the Aggregate Parent
Credit Exposure at such time.
"Advance": an ABR Advance or a Eurodollar Advance, as the case may be.
"Affected Advance": as defined in Section 3.9.
<PAGE>
"Affected Principal Amount": in the event that (i) either Borrower shall
fail for any reason to borrow a Loan in respect of which it shall have requested
a Eurodollar Advance or convert an Advance to a Eurodollar Advance after it
shall have notified the Agent of its intent to do so, an amount equal to the
principal amount of such Eurodollar Advance; (ii) a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, an amount equal to the principal amount of such Eurodollar Advance; and
(iii) either Borrower shall prepay or repay all or any part of the principal
amount of a Eurodollar Advance prior to the last day of the Interest Period
applicable thereto, an amount equal to the principal amount of such Advance so
prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 5% or more of the securities or other
interests having ordinary voting power for the election of directors or other
Managing Persons thereof, other than as a limited partner of such other Person
or (ii) to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Agreement": this Amended and Restated Credit Agreement, as the same may be
amended, supplemented or otherwise modified from time to time.
"Aggregate Commitment Amount": at any time, the sum at such time of the
Commitment Amounts of all Lenders.
"Aggregate Commitment Percentage": as to any Lender in respect of such
Lender's Commitment and its obligation with respect to Letters of Credit, the
percentage equal to the sum of such Lender's Parent Commitment Amount plus such
Lender's GP Canada Credit Exposure divided by the sum of the Aggregate Parent
Commitment Amount plus the Aggregate GP Canada Credit Exposure (or if the Parent
Commitment does not then exist, the percentage determined as aforesaid on the
last day that the Parent Commitment did exist).
"Aggregate Credit Exposure": at any time, the sum at such time of (i) the
outstanding principal balance of the Revolving Credit Loans of all Lenders,
plus, (ii) the outstanding principal balance of the Term Loans of all the
Lenders, plus (iii) an amount equal to the Letter of Credit Exposure of all
Lenders.
"Aggregate GP Canada Commitment Amount": at any time, the sum at such time
of the GP Canada Commitment Amount of all Lenders.
"Aggregate GP Canada Credit Exposure": at any time, the sum at such time of
the outstanding principal balance of the Term Loans of all Lenders.
<PAGE>
"Aggregate Parent Commitment Amount": at any time, the sum at such time of
the Parent Commitment Amount of all Lenders.
"Aggregate Parent Credit Exposure": at any time, the sum at such time of
(i) the outstanding principal balance of the Revolving Credit Loans of all
Lenders, plus (ii) an amount equal to the Letter of Credit Exposure of all
Lenders.
"Alternate Base Rate": on any date, a rate of interest per annum equal to
the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of 1%
or (ii) the Fleet Rate in effect on such date.
"Amendment Fee": as defined in Section 3.2(d).
"Applicable Fee Percentage": subject to adjustment pursuant to Section
3.1(f) hereof, with respect to the Parent Commitment Fee and Letter of Credit
Commissions, the percentage set forth below under the applicable column:
Applicable Fee Percentage
Parent
Commitment Letter of Credit Commissions
Fee Standby Trade
.50% 2.75% .25%
"Applicable Margin": subject to adjustment pursuant to Section 3.1(f)
hereof, with respect to the unpaid principal balance of Parent ABR Advances and
Parent Eurodollar Advances, the percentage set forth below under the applicable
column:
Applicable Margin (Type of Advance)
ABR Eurodollar
1.25% 2.75%
"Approved Bank": any bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating from (i) Standard &
Poor's is at least A-1 or the equivalent thereof or (ii) Moody's is at least P-1
or the equivalent thereof.
"Assignment": as defined in Section 11.7(c).
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee, substantially in the form of
Exhibit G to the Original Agreement.
<PAGE>
"Authorized Signatory": as to (i) any Person which is a corporation, the
chairman of the board, the president, any vice president, the chief financial
officer or any other officer thereof acceptable to the Agent and (ii) any Person
which is not a corporation, the general partner or other Managing Person thereof
acceptable to the Agent.
"Available Parent Commitment Amount": at any time, an amount equal to (i)
the lesser of (x) the Aggregate Parent Commitment Amount and (y) the Borrowing
Base, minus (ii) the Aggregate Parent Credit Exposure at such time.
"Beginning Net Worth Amount": 95% of Parent's Consolidated Net Worth as at
June 30, 2000.
"Benefited GP Canada Lender": as defined in Section 11.11(b).
"Benefited Parent Lender": as defined in Section 11.11(a).
"Borrower Security Agreement": collectively (i) one Amended and Restated
Borrower Security Agreement, by and between the Parent and the Agent
substantially in the form of Exhibit H-1, as amended, supplemented or otherwise
modified from time to time, (ii) the Borrower Security Agreement by and between
GP Canada and the Agent dated as of June 15, 1998, as amended, supplemented or
otherwise modified from time to time and (iii) one movable hypothec (the
"Hypothec") by and between GP Canada and the Agent in the form of Exhibit H-2,
as amended, supplemented or otherwise modified from time to time.
"Borrowing Base": (i) Accounts Receivable Borrowing Base; plus (ii) the
Marketable Securities Borrowing Base; plus (iii) the Overadvance Amount (as
reduced from time to time).
"Borrowing Base Account(s)": those accounts receivable arising out of the
sale or lease of goods or the rendition of services by Parent, Physics, MXL or
GP (UK) and with respect to each such Person: (a) all "accounts" as defined in
the Uniform Commercial Code of the State of New York and, in addition, all of
the accounts, contract rights (including its rights as an unpaid vendor, or
lienor, including stoppage in transit, replevin and reclamation), instruments,
documents, chattel paper, notes and drafts of such Person, whether secured or
unsecured, and whether or not specifically assigned to the Agent or any Lender
hereunder, and including any right to payment which has been earned under a
contract right and all inventory returned or reclaimed from Account Debtors and
all rights to payment for goods sold or leased or services rendered; and (b) all
products and proceeds (whether cash proceeds or otherwise) of the foregoing,
whether now owned, held, or hereafter acquired by such Person.
"Borrowing Base Certificate": a certificate in the form of Exhibit M
hereto.
<PAGE>
"Borrowing Date": (i) as to the Parent Facility, any Business Day on which
(a) the Lenders make Revolving Credit Loans to the Parent or (b) the Issuing
Bank issues a Letter of Credit for the account of the Parent and (ii) as to the
GP Canada Facility, the GP Canada Borrowing Date.
"Borrowing Request": a request for Revolving Credit Loans and/or Term Loans
in the form of Exhibit C-1.
"Business Day": for all purposes other than as set forth in clause (ii)
below, (i) any day other than a Saturday, a Sunday or a day on which commercial
banks located in New York City or Toronto, Canada are authorized or required by
law or other governmental action to close, and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which eurodollar funding between banks may be
carried on in London, England.
"Capital Expenditures": with respect to any Person for any period, the
aggregate of all expenditures incurred by such Person during such period which,
in accordance with GAAP, are required to be included in "Additions to Property,
Plant or Equipment" or similar items reflected on the balance sheet of such
Person, provided, however, that "Capital Expenditures" shall not include (i)
operating leases, or (ii) expenditures of proceeds of insurance settlements in
respect of lost, destroyed or damaged assets, equipment or other property to the
extent such expenditures are made to replace or repair such lost, destroyed or
damaged assets, equipment or other property within six months of the receipt of
such proceeds.
"Capital Lease Obligations": with respect to any Person, obligations of
such Person with respect to leases which are required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations, rights in or
other equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or convertible
into such shares, interests, participations, rights or other equity.
"Cash Equivalents": (i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or instrumentality
thereof (provided that the full faith and credit of the United States of America
is pledged in full support thereof) having maturities of not more than twelve
months from the date of acquisition, (ii) Dollar denominated time deposits,
certificates of deposit and bankers acceptances of (x) any Lender or (y) any
Approved Bank, in any such case with maturities of not more than twelve months
from the date of acquisition, (iii) commercial paper issued by any Approved Bank
<PAGE>
or by the parent company of any Approved Bank and commercial paper issued by, or
guaranteed by, any industrial or financial company with an unsecured non-credit
supported short-term commercial paper rating of at least A-1 or the equivalent
by Standard & Poor's or at least P-1 or the equivalent by Moody's, or guaranteed
by any industrial or financial company with a long term unsecured non-credit
supported senior debt rating of at least A or A- 2, or the equivalent, by
Standard & Poor's or Moody's, as the case may be, and in each case maturing
within twelve months after the date of acquisition, (iv) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within twelve months from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's or Moody's and (v) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in clauses (i) through (iv) above.
"Change in Management": Should any two of Scott N. Greenberg, Jerome I.
Feldman or John C. McAuliffe cease (whether due to retirement, disability, death
or otherwise) to hold the office, serve in the capacity or exercise the
managerial policy-making responsibilities which on the date hereof he/she now
holds, serves in or exercises with or on behalf of the applicable Borrower
and/or Subsidiary Guarantor in which he/she now holds, serves or exercises and a
replacement therefor reasonably satisfactory to the Agent has not been elected
and assumed such responsibilities within 120 days of such cessation.
"Closing Date": August 31, 2000.
"Code": the Internal Revenue Code of 1986, as the same may be amended from
time to time, or any successor thereto, and the rules and regulations issued
thereunder, as from time to time in effect.
"Collateral": the Property in which a security interest is granted under
the Borrower Security Agreement and/or under the Subsidiary Guaranty and
Security Agreement and/or under each of the Mortgages.
"Collateral Documents": (i) upon the execution and delivery thereof, each
Borrower Security Agreement, the Subsidiary Guaranty and Security Agreement and
each of the Mortgages, as each may be amended, supplemented or otherwise
modified from time to time, (ii) the Intercompany Demand Loan Documents and
(iii) all documents executed or delivered in connection with any of the
foregoing.
"Commitment": the Parent Commitment in the case of the Parent Facility and
the GP Canada Commitment in the case of the GP Canada Facility.
"Commitment Amounts": the Parent Commitment Amounts in the case of the
Parent Facility and the GP Canada Commitment Amounts in the case of the GP
Canada Facility.
<PAGE>
"Commitment Percentage": as to the Parent Facility, the Parent Commitment
Percentage and as to the GP Canada Facility, the GP Canada Commitment
Percentage.
"Compensatory Interest Payment": as defined in Section 3.1(c).
"Compliance Certificate": a certificate substantially in the form of
Exhibit E.
"Confidential Information": as described in Section 11.21.
"Consolidated": the Parent and its Subsidiaries on a consolidated basis in
accordance with GAAP.
"Consolidated Debt Service": for any period, the sum of (i) Consolidated
Interest Expense for such period and (ii) all scheduled payments of principal on
Consolidated Funded Debt during such period.
"Consolidated EBITDA": for any period shall be calculated prior to any IT
Adjustment (but solely up to the maximum $36,000,000 provided in the definition
of IT Adjustment, it being expressly agreed that all amounts in excess of such
$36,000,000 (whether cash and/or non-cash) shall be included in the calculation
of Consolidated EBITDA) and shall mean net income (or net loss) of the Parent
and its Subsidiaries, determined on a Consolidated basis in accordance with GAAP
for such period plus (i) the sum of, without duplication, (a) Consolidated
Interest Expense, (b) provision for income taxes of the Parent and its
Subsidiaries, (c) depreciation, amortization and other non-cash charges
(including charges in connection with the GP Strategies Corporation Millennium
Cell, LLC Option Plan) of the Parent and its Subsidiaries, (d) extraordinary
losses from sales, exchanges and other dispositions of Property not in the
ordinary course of business, each to the extent utilized in determining such net
income for such period; minus (ii) the sum of, without duplication, each of the
following with respect to the Parent and its Subsidiaries, to the extent
utilized in determining such net income (or net loss): (a) extraordinary gains
from sales, exchanges and other dispositions of Property not in the ordinary
course of business (other than cash gains on sales of publicly traded Capital
Stock; provided, that, with respect to such cash gains of publicly traded
Capital Stock and the calculation of Consolidated EBITDA for any fiscal quarter
in any calendar year, the amount of cash gains from the sale of publicly traded
Capital Stock that may be included in the calculation of Consolidated EBITDA
shall not exceed an amount that, when added to the amount of cash gains from the
sale of publicly traded Capital Stock for all other fiscal quarters in such
calendar year (even if prior to the Closing Date), exceeds $3,000,000), (b)
interest income, (c) investment income (other than investment income in an
amount not in excess of $100,000 on account of a promissory note made by Five
Star to the order of Parent) and (d) other non-recurring items.
<PAGE>
"Consolidated Interest Expense": for any period, interest expense of the
Parent and its Subsidiaries determined on a Consolidated basis in accordance
with GAAP.
"Consolidated Fixed Charges": for any period, the sum of, without
duplication, (i) Consolidated Debt Service for such period and (ii) income taxes
paid during such period by the Parent and its Subsidiaries.
"Consolidated Funded Debt": at any date of determination, the aggregate
funded indebtedness (as determined in accordance with GAAP) and Capital Lease
Obligations of the Parent and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP, on such date.
"Consolidated Net Worth": at any date of determination, the sum of all
amounts which would be included under "Shareholders' Equity" or any analogous
entry on a Consolidated balance sheet of the Parent determined in accordance
with GAAP as of such date.
"Consolidated Tangible Net Worth": Consolidated Net Worth minus, without
duplication, deferred charges (excluding deferred assets in connection with the
GP Strategies Corporation Millennium Cell, LLC Option Plan), intangibles and
treasury stock, all determined in accordance with GAAP and at any time the IT
Adjustment is less than $36,000,000, minus the difference between $36,000,000
and the aggregate amount of the IT Adjustments occurring prior to the time of
calculation.
"Consolidating": Parent and its Subsidiaries each taken separately.
"Contingent Obligation": as to any Person ( a "secondary obligor"), any
obligation of such secondary obligor (i) guaranteeing or in effect guaranteeing
any return on any investment made by another Person, or (ii) guaranteeing or in
effect guaranteeing any Indebtedness, lease, dividend or other obligation (a
"primary obligation") of any other Person (a "primary obligor") in any manner,
whether directly or indirectly, including any obligation of such secondary
obligor, whether contingent, (a) to purchase any primary obligation or any
Property constituting direct or indirect security therefor, (b) to advance or
supply funds (A) for the purchase or payment of any primary obligation or (B) to
maintain working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of a primary obligor, (c) to purchase
Property, securities or services primarily for the purpose of assuring the
beneficiary of any primary obligation of the ability of a primary obligor to
make payment of a primary obligation, (d) otherwise to assure or hold harmless
the beneficiary of a primary obligation against loss in respect thereof, and (e)
in respect of the liabilities of any partnership in which a secondary obligor is
a general partner, except to the extent that such liabilities of such
partnership are nonrecourse to such secondary obligor and its separate Property,
provided, however, that the term "Contingent Obligation" shall not include the
indorsement of instruments for deposit or collection in the ordinary course of
<PAGE>
business. The amount of any Contingent Obligation of a Person shall be deemed to
be an amount equal to the stated or determinable amount of a primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"Control Person": as defined in Section 3.6.
"Conversion Date": the date on which: (i) a Eurodollar Advance is converted
to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar Advance or
(iii) a Eurodollar Advance is converted to a new Eurodollar Advance.
"Covered Event": (i) any Disposition by any Credit Party and (ii) any and
all issuance(s) and/or equity offering(s) of Capital Stock by any Credit Party.
"Credit Exposure": with respect to any Lender as of any date, the sum as of
such date of (i) the outstanding principal balance of such Lender's Revolving
Credit Loans, plus, (ii) the outstanding principal balance of such Lender's Term
Loans, plus (iii) an amount equal to such Lender's Letter of Credit Exposure.
"Credit Party": each Borrower, the Parent Guarantor, and each Subsidiary
Guarantor.
"Default": any event or condition which, with the giving of notice, the
lapse of time, or any other condition, would, unless cured or waived, constitute
an Event of Default.
"Defaulting Lender": as defined in Section 2.12.
"Disposition": the MXL Sale/Leaseback and in addition thereto, with respect
to any Person, any sale, assignment, transfer or other disposition by such
Person, by any means, of (i) the Capital Stock of any other Person, including
without limitation with respect to either Borrower or any Subsidiary Guarantor,
the Capital Stock of any direct or indirect Subsidiary, (ii) any business, going
concern or division or segment thereof, (iii) any other Property of such Person
other than in the ordinary course of business (other than inventory, except to
the extent subject to a bulk sale), provided, however, that no such sale,
assignment, transfer or other disposition of Property shall be deemed to be in
the ordinary course of business if the fair market value thereof is in excess of
$2,000,000, or (iv) the sale, assignment, transfer or disposition of all or
substantially all of the Property of (a) such Person, or (b) any Operating
Entity.
"Disposition Proposal": with respect to each Disposition proposed to be
consummated by GP Canada, a written certificate signed by an Authorized
Signatory of GP Canada, in form and substance satisfactory to the Agent and the
Required Lenders, that (i) identifies the Property to be sold or otherwise
<PAGE>
disposed of, (ii) identifies the identity of the proposed purchaser of such
Property, (iii) identifies the total consideration to be paid in respect of such
Disposition, together with estimates of items to be deducted therefrom in
arriving at the Net Cash Proceeds, (iv) contains a detailed itemization as to
the proposed use of the Net Cash Proceeds expected to be derived from such
Disposition and (v) states (x) that immediately before or after giving effect to
such Disposition, no Default or Event of Default shall exist and (y) that the
consideration received or to be received by GP Canada for such Property has been
determined by the Managing Person of GP Canada to be not less than the fair
market value of such Property.
"Dollars" and "$": lawful currency of the United States.
"Domestic Subsidiary": a Subsidiary of the Parent organized under the laws
of the United States or a state thereof.
"Effective Date": the date on which all conditions in Section 5 and in
Section 6 have been satisfied.
"Eligible Accounts": Borrowing Base Accounts payable to other than GP (UK)
(i) which are General Eligible Accounts, (ii) which are owed by account debtors
located within the United States of America and (iii) which are due and payable
within 90 days from the original date of invoice, except with respect to
Government Assigned Receivables which shall be due and payable within 120 days
from the original date of invoice.
"Eligible Foreign Accounts": Borrowing Base Accounts payable to GP (UK) (i)
which are owed by account debtors located within Great Britain, (ii) which are
General Eligible Accounts and (iii) which are due and payable within 90 days
from the original date of invoice.
"Eligible Securities Collateral": The following types of marketable
securities that are subject to a first priority perfected security interest in
favor of the Agent for the ratable benefit of the Lenders and for which there
can be obtained a publicly quoted fair market value: U.S. Treasury Obligations;
Municipal Bonds; stocks and bonds listed on the New York Stock Exchange; stocks
and bonds listed on NASDAQ; and over the counter listed stocks and bonds;
provided, however, that (a) no bond shall come within this definition of
"Eligible Securities Collateral" unless it is of investment grade; which shall
mean such bond has a BBB or better rating from Standard and Poor's Corporation
or a BAA or better rating from Moody's Investment Services, Inc.; and (b) no
stock shall come within this definition of "Eligible Securities Collateral" (i)
unless it is publicly traded and has a publicly reported fair market value and
may be freely traded by the owner thereof (provided that, shares in Millennium
Cell, Inc. shall be deemed Eligible Securities Collateral with a Loan Value of
25% until the date the Lock-up Agreement expires and they become freely tradable
by the owner thereof); (ii) if it is stock of a financial institution or stock
of a securities firm (the determination of whether the applicable stock is stock
of a financial institution or a securities firm shall be in the sole discretion
<PAGE>
of the Agent) and (iii) if all or any part of a Loan was made for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect.
"Employee Benefit Plan": an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained, sponsored or contributed to by any Borrower,
any of its Subsidiaries or any ERISA Affiliate.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations issued thereunder, as from time
to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person which is a member of any group of organizations within the meaning of
Sections 414(b) or (c) of the Code (or, solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, Sections 414(m) or (o) of the Code) of which the Parent or any of its
Subsidiaries is a member.
"Eurodollar Advances": collectively, the Revolving Credit Loans (or any
portions thereof), and/or the Term Loans (or any portions thereof) at such time
as they (or such portions) are made and/or being maintained at a rate of
interest based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each Eurodollar Advance for each
Interest Period thereof, a rate of interest per annum, as determined by the
Agent, obtained by dividing the rate computed by paragraph (a) by the amount
computed under paragraph (b) (and then rounding to the nearest 1/100 of 1% or,
if there is no nearest 1/100 of 1%, then to the next higher 1/100 of 1%):
(a) the rate, as determined on the basis of the offered rates for deposits
in U.S. Dollars, for a period of time comparable to such Interest Period for
such Eurodollar Advance which appears on the Telerate page 3750 as of 11:00 a.m.
London time on the day that is two Business Days preceding the first day of such
Eurodollar Advance; provided, however, if the rate described above does not
appear on the Telerate System on any applicable interest determination date, the
Eurodollar Rate shall be the rate (rounded upwards as described above, if
necessary) for deposits in Dollars for a period substantially equal to the
Interest Period on the Reuters Page "LIBO" (or such other page as may replace
the LIBO Page on that service for the purpose of displaying such rates), as of
11:00 a.m. (London Time), on the day that is two (2) Business Days prior to the
beginning of such Interest Period; and
<PAGE>
If both the Telerate and Reuters system are unavailable, then the rate for
that date will be determined on the basis of the offered rates for deposits in
U.S. Dollars for a period of time comparable to such Interest Period for such
Eurodollar Advance which are offered by four major banks in the London interbank
market at approximately 11:00 a.m. London time, on the day that is two (2)
Business Days preceding the first day of such Eurodollar Advance as selected by
the Agent. The principal London office of each of the four major London banks
will be requested to provide a quotation of its U.S. Dollar deposit offered
rate. If at least two such quotations are provided, the rate for that date will
be the arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that date will be determined on the basis of
the rates quoted for loans in U.S. Dollars to leading European banks for a
period of time comparable to such Eurodollar Advance offered by major banks in
New York City at approximately 11:00 a.m. New York City time, on the day that is
two Business Days preceding the first day of such Eurodollar Advance . In the
event that the Agent is unable to obtain any such quotation as provided above,
it will be deemed that the Eurodollar Rate pursuant to a Eurodollar Advance
cannot be determined.
(b) a number equal to 1.00 minus the aggregate of the then stated maximum
rates during such Interest Period of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors of the Federal Reserve System and any
other banking authority to which Fleet and other major United States money
center banks are subject, in respect of eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board of Governors of
the Federal Reserve System), without benefit of credit for proration, exceptions
or offsets which may be available from time to time to Fleet.
The Agent shall use its best efforts to advise the applicable Borrower of
the Eurodollar Rate as soon as practicable after each change in the Eurodollar
Rate; provided however, that the failure of the Agent to so advise the Borrowers
on any one or more occasions shall not result in any liability of the Agent or
affect the rights of the Lenders or the Agent or the obligations of the
Borrowers under this Agreement or any other Loan Document.
"Event of Default": as defined in Section 9.1.
"Existing Bank Debt": collectively, the Indebtedness of Parent and certain
Subsidiary Guarantors under that certain Credit Agreement dated March 26, 1997
by and among Parent, certain of the Subsidiary Guarantors and Fleet Bank,
National Association as Administrative and Collateral Agent and the documents,
instruments and agreements executed pursuant thereto or in connection therewith,
including all outstanding principal, unpaid and accrued interest, unpaid and
accrued fees and other unpaid sums thereunder.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to
<PAGE>
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on such preceding Business Day as so published
on the next succeeding Business Day, and (ii) if such rate is not so published
for any day, the Federal Funds Rate for such day shall be the average of the
quotations for such day on such transactions received by Fleet as determined by
Fleet and reported to the Agent.
"Fees": as defined in Section 2.10.
"Financial Officer": as to any Person, the chief financial officer of such
Person or such other officer as shall be satisfactory to the Agent.
"Financial Statements": as defined in Section 4.13.
"Five Star": Five Star Group, Inc.
"Fixed Charge Coverage Ratio": with respect to any fiscal quarter, the
ratio of (a) Consolidated EBITDA for the applicable fiscal quarter to (b) the
sum of Consolidated Fixed Charges for such fiscal quarter plus Capital
Expenditures for such fiscal quarter.
"Fleet": Fleet Bank, National Association.
"Fleet Rate": the variable per annum rate of interest so designated from
time to time by Fleet as its prime commercial lending rate, such rate to be
adjusted automatically (without notice) on the effective date of any change in
such designated rate. The Fleet Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer.
"Foreign Subsidiaries": General Physics Corporation (UK) Limited and any
other Subsidiary, other than a Domestic Subsidiary or GP Canada, which becomes a
Material Subsidiary.
"Funded Current Liability Percentage": as defined in Section 401(a)(29) of
the Code.
"GAAP": generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and in the statements and pronouncements of the
Financial Accounting Standards Board or in such other statement by such other
entity as may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of determination,
consistently applied.
<PAGE>
"General Eligible Accounts": Borrowing Base Accounts that have been validly
assigned to the Agent and in which the Agent, for the ratable benefit of the
Lenders, has a first priority perfected security interest and otherwise comply
with all of the terms, conditions, warranties and representations made to Agent
and the Lenders, but General Eligible Accounts shall not include the following:
(a) Accounts with respect to which the account debtor is an officer, director,
employee, or agent of Parent or an affiliate of Parent; (b) Accounts with
respect to which the sale is on an installment sale, lease or other extended
payment basis; (c) all Accounts owing by any account debtor if fifty percent
(50%) or more of the Accounts due from such account debtor are deemed not to be
General Eligible Accounts hereunder; (d) Accounts with respect to which the
account debtor is a subsidiary of, affiliate of, or has common officers or
directors with Parent; (e) Accounts with respect to which the Agent does not for
any reason (other than Agent's failure to perfect) have a perfected first
priority Lien; (f) Accounts with respect to which Parent is or may become liable
to the account debtor for goods sold or services rendered by the account debtor
to Parent, to the extent of Parent's existing or potential liability to such
account debtor; (g) Accounts with respect to which the account debtor has
disputed any liability, or the account debtor has made any claim with respect to
any other Account due to Parent, or the Account is otherwise subject to any
right of setoff, deduction, breach of warranty or other defense, dispute or
counterclaim by the account debtor; (h) that portion of the Accounts owed by any
single Account Debtor which exceeds twenty five percent (25%) of all of the
Accounts; (i) that portion of any Accounts representing late fees, service
charges or interest, but only to the extent of such portion; (j) Accounts of an
account debtor where the account debtor is located in Minnesota or New Jersey
unless the payee with respect to such account (1) with respect to such state,
has received a Certificate of Authority to do business and is in good standing
in such state, or (2) has filed a Notice of Business Activities Report with the
applicable state authority in such state, as applicable, for the then current
year; (k) Accounts owed by any account debtor which is insolvent or is the
subject of an insolvency proceeding; (l) that portion or any Accounts
represented by contract rights, documents, instruments, chattel paper or general
intangibles; (m) any and all Accounts of an account debtor whose
creditworthiness is not satisfactory to the Agent in its sole credit judgment
based on information available to the Agent; (n) Accounts that have been billed
but are not yet earned and (o) Accounts with respect to which the Account Debtor
is a federal governmental authority unless such Accounts are Government Assigned
Receivables. References to percentages of all Accounts are based on dollar
amount of Accounts, and not number of Accounts.
"Governmental Authority": any foreign, federal, state, provincial,
municipal or other government, or any department, commission, board, bureau,
agency, public authority or instrumentality thereof, or any court or arbitrator.
"Government Assigned Receivables": Borrowing Base Accounts where the
Account Debtor is the United States of America or any department, agency or
instrumentality of the United States and for which Parent, Physics, MXL and GP
<PAGE>
(UK), as the case may be, has complied with the Assignment of Claims Act of
1940, as amended (31 U.S.C. Section 203 et seq.).
"GP Canada Borrowing Date": June 15, 1998.
"GP Canada Cash Collateral": as defined in Section 2.11(b).
"GP Canada Cash Collateral Account": as defined in Section 2.11(b).
"GP Canada Commitment": in respect of any Lender, such Lender's undertaking
on the GP Canada Borrowing Date to make Term Loans, subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding
the GP Canada Commitment Amount of such Lender.
"GP Canada Commitment Amount": as of any date and with respect to any
Lender, the amount set forth adjacent to its name under the heading "GP Canada
Commitment Amount" in Exhibit A hereto on such date or, in the event that such
Lender is not listed in Exhibit A hereto, the "GP Canada Commitment Amount"
which such Lender shall have assumed from another Lender in accordance with
Section 11.7 on or prior to such date, in each case as the same may be adjusted
from time to time pursuant to Sections 2.4 and 11.7, which amounts, as of the
Closing Date represent the original GP Canada Commitment Amount as of the GP
Canada Borrowing Date.
"GP Canada Commitment Percentage": as to any Lender in respect of such
Lender's GP Canada Commitment, the percentage equal to such Lender's GP Canada
Commitment Amount divided by the Aggregate GP Canada Commitment Amount (or, if
no GP Canada Commitments then exist, the percentage equal to such Lender's GP
Canada Commitment Amount on the last day upon which GP Canada Commitments did
exist divided by the Aggregate GP Canada Commitment Amount on such day);
provided, that, as to each Lender, such Lender's GP Canada Commitment Percentage
shall at all times equal such Lender's Parent Commitment Percentage.
"GP Canada Credit Exposure": with respect to any Lender as of any date, the
sum as of such date of the outstanding principal balance of such Lender's Term
Loans.
"GP Canada Facility": the credit facility described in Section 2.2.
"GP Canada Maturity Date": the later of July 15, 2003 and the date which is
five years and one day after the GP Canada Borrowing Date, or such earlier date
on which the Term Notes shall become due and payable, whether by acceleration or
otherwise.
"GP Canada Obligations": all of the Indebtedness, liabilities and
obligations of GP Canada to the Lenders, the Issuing Bank and the Agent, whether
<PAGE>
now existing or hereafter arising, direct or indirect, absolute or contingent,
whether or not currently contemplated, arising under the Loan Documents.
"GP Canada Outstanding Percentage": as of any date and with respect to each
Lender, a fraction the numerator of which is the GP Canada Credit Exposure of
such Lender, on such date, and the denominator of which is the aggregate GP
Canada Credit Exposure of all Lenders on such date.
"GP (UK)": means General Physics Corporation (UK) Limited.
"Highest Lawful Rate": as to any Lender or the Issuing Bank, the maximum
rate of interest, if any, that at any time or from time to time may be
contracted for, taken, charged or received by such Lender on the Note held by it
or by the Issuing Bank on the Reimbursement Agreements, as the case may be, or
which may be owing to such Lender or the Issuing Bank pursuant to the Loan
Documents under the laws applicable to such Lender or the Issuing Bank and this
transaction.
"Hydro Med Subordinated Debt": $2,640,000 in aggregate principal amount of
Indebtedness owing by Parent under its 6% Convertible Exchangeable Notes due
June 30, 2003, (the "Notes") which Notes at the option of the purchasers thereof
may be converted into approximately 19.99% of the fully diluted equity of Hydro
Med Sciences, Inc.
"Hypothec": as defined under Borrower Security Agreement.
"Indebtedness": as to any Person, at a particular time, all items which
constitute, without duplication, (i) indebtedness for borrowed money, (ii)
indebtedness in respect of the deferred purchase price of Property or services
(other than trade payables incurred in the ordinary course of business), (iii)
indebtedness evidenced by notes, bonds, debentures or similar instruments, (iv)
obligations with respect to any conditional sale or title retention agreement,
(v) indebtedness arising under acceptance facilities and the amount available to
be drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any Property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other than carriers', warehousemen's, mechanics', repairmen's or other
like non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations, (viii) all obligations of such Person in
respect of Capital Stock subject to mandatory redemption or redemption at the
option of the holder thereof, in whole or in part, (ix) indebtedness owing under
Interest Rate Protection Agreements (on a net basis with respect to all such
Interest Rate Protection Agreements) and (x) all Contingent Obligations of such
Person in respect of any of the foregoing; provided, that, as to MXL,
Indebtedness shall not include the MXL Sale/Leaseback.
<PAGE>
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnified Person": as defined in Section 11.8.
"Indemnified Tax": as defined in Section 3.10(a).
"Indemnified Tax Person": as defined in Section 3.10(a).
"Installment Payment Date": any date on which all or any portion of the
principal amount of the Term Loans are due and payable.
"Intercompany Demand Loan Collateral": all of the accounts receivable and
inventory of each Foreign Subsidiary, now or hereafter acquired.
"Intercompany Demand Loan Documents": the Intercompany Demand Note, the
Intercompany Demand Loan Security Documents and each other document, instrument
and agreement executed pursuant to or in connection with any of the foregoing,
each as amended, supplemented or modified from time to time, as pledged to the
Agent pursuant to the Borrower Security Agreement and/or Subsidiary Guarantee
and Security Agreement.
"Intercompany Demand Loan Security Documents": the security documents
executed by each Foreign Subsidiary in favor of Parent or a Subsidiary of Parent
in order to grant such Person a first Lien in the Intercompany Demand Loan
Collateral.
"Intercompany Demand Note": one or more negotiable demand promissory notes
made by a Foreign Subsidiary to the order of Parent, or a Domestic Subsidiary of
Parent evidencing loans by the Parent or such Domestic Subsidiary to such
Foreign Subsidiary, substantially in the form of Exhibit K.
"Intercompany Indebtedness": loans which are made by (i) any Borrower to
any Subsidiary Guarantor or to any Foreign Subsidiary, (ii) GP Canada to Parent
or (iii) any Subsidiary Guarantor to any other Subsidiary Guarantor.
"Interest Payment Date": (i) as to any ABR Advance, the last day of each
month commencing on the first of such days to occur after such ABR Advance is
made or any Eurodollar Advance is converted to an ABR Advance, (ii) as to any
Eurodollar Advance as to which the applicable Borrower has selected an Interest
Period of one, two or three months, the last day of such Interest Period, (iii)
as to any Eurodollar Advance as to which the applicable Borrower has selected an
Interest Period of six or nine months, the last day of each three month interval
occurring during such Interest Period and the last day of such Interest Period;
and (iv) as to all Advances, the Maturity Date.
<PAGE>
"Interest Period": with respect to any Eurodollar Advance requested by a
Borrower, the period commencing on, as the case may be, the Borrowing Date or
Conversion Date with respect to such Eurodollar Advance and ending one, two,
three, six or nine months thereafter, as selected by such Borrower in its
irrevocable Borrowing Request or its irrevocable Notice of Conversion, provided,
however, that (i) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day, (ii) any Interest
Period which begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the
appropriate subsequent calendar month. Interest Periods shall be subject to the
provisions of Section 3.4 and (iii) no portion of the Term Loans shall be
continued as or converted into a Eurodollar Advance with an Interest Period
which extends beyond an Installment Payment Date if, after giving effect to the
continuation or conversion of such Eurodollar Advance, the amount payable on any
Installment Payment Date would exceed the sum of (i) the aggregate principal
amount of the outstanding portion of the Term Loans constituting Eurodollar
Advances with Interest Periods ending prior to such Installment Payment Date and
(ii) the aggregate outstanding portion of the Term Loans constituting ABR
Advances.
"Interest Rate Protection Arrangement": any interest rate swap, cap or
collar arrangement, or any currency foreign exchange transaction, or any other
derivative or capital markets product customarily offered by banks or other
financial institutions to their customers in order to reduce the exposure of
such customers to interest rate or currency fluctuations, as the same may be
amended, supplemented or otherwise modified from time to time; provided,
however, in no event shall any Interest Rate Protection Arrangement be entered
into for speculative purposes.
"Investments": as defined in Section 8.5.
"IT Adjustment": Up to a maximum of $36,000,000 on account of reserves,
charges, asset write-offs, closure costs, ongoing operating losses and other
costs and expenses of Parent for the fiscal quarter ending June 30, 2000 or any
fiscal period thereafter with respect to its sale or closure of the IT Business.
"IT Business": The Borrowers' open enrollment information technology
training business operations in Canada and the United Kingdom.
"Letters of Credit": as defined in Section 2.7.
"Letter of Credit Commissions": as defined in Section 3.2(b).
"Letter of Credit Commitment": the commitment of the Issuing Bank to issue
Letters of Credit for the account of Parent having an aggregate outstanding face
<PAGE>
amount up to the Letter of Credit Commitment Amount, and the commitment of the
Lenders to participate in the Letter of Credit Exposure as set forth in Section
2.8.
"Letter of Credit Commitment Amount": Five Million and 00/100 Dollars
($5,000,000.00).
"Letter of Credit Exposure": at any time, (i) in respect of all the
Lenders, the sum at such time, without duplication, of (x) the aggregate undrawn
face amount of the outstanding Letters of Credit, (y) the aggregate amount of
unpaid drafts drawn on all Letters of Credit, and (z) the aggregate unpaid
Reimbursement Obligations (after giving effect to any Revolving Credit Loans
made on such date to pay any such Reimbursement Obligations), and (ii) in
respect of any Lender, an amount equal to such Lender's Parent Commitment
Percentage multiplied by the amount determined under clause (i) of this
definition.
"Letter of Credit Participation": with respect to each Lender, its
obligations to the Issuing Bank hereunder.
"Letter of Credit Request": a request in the form of Exhibit C- 2.
"Letter of Intent": the letter, dated August 25, 2000, executed by
Corporate Property Associates 14 Incorporated and the Parent and captioned "Sale
and Leaseback of two Office and Light Industrial Facilities owned by MXL
Industries Inc.," in the form delivered to the Agent.
"Leverage Ratio": at any date of determination, the ratio of (i) Total
Consolidated Liabilities (excluding liabilities in connection with the GP
Strategies Corporation Millennium Cell, LLC Option Plan) as of such date to (ii)
the sum of Consolidated Tangible Net Worth and Subordinated Debt, each as of
such date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as any
of the foregoing.
"Life Insurance Policies": two life insurance policies on the life of Jerry
Feldman in the aggregate face amount of $4,000,000.
"Life Insurance Proceeds": the aggregate cash surrender value of the Life
Insurance Policies.
"Loan Documents": collectively, this Agreement, the Revolving Credit Notes,
the Term Notes, the Subordination Agreement, each Reimbursement Agreement, the
Parent Guaranty, the Interest Rate Protection Arrangements (to the extent such
<PAGE>
Interest Rate Protection Arrangements are entered into by a Rate Protection
Lender), the Collateral Documents and all other agreements, instruments and
documents executed or delivered in connection herewith, in each case as amended,
supplemented or otherwise modified from time to time.
"Loans": the Revolving Credit Loans and the Term Loans.
"Loan Value": shall apply to only Eligible Securities Collateral, shall be
determined based on the publicly quoted fair market value of Eligible Securities
Collateral at the time of calculation of each Borrowing Base and shall mean the
percentages indicated below for the type of Eligible Securities Collateral based
on such publicly quoted fair market value:
Type Of Security Loan Value
Cash and Cash Equivalents 100%
U.S. Treasury Obligations with maturities of less than 1 year 95%
U.S. Treasury Obligations with maturities of 1 year or more 90%
Municipal Bonds 80%
A1/P1 Commercial Paper 80%
Bonds listed on the New York Stock Exchange 70%
Bonds listed on the American Stock Exchange 70%
Publicly Traded Stocks 50%
Millennium Cell, Inc. (prior to expiration of Lock-up Agreement) 25%
"Lock-up Agreement": the Lock-up Agreement dated August 9, 2000 relating to
the common stock of Millennium Cell, Inc. owned by the Parent addressed to
Morgan Keegan & Company, Inc. and executed by the Parent.
"Managing Person": with respect to any Person that is (i) a corporation,
its board of directors, (ii) a limited liability company, its board of control,
managing member or members, (iii) a limited partnership, its general partner,
(iv) a general partnership or a limited liability partnership, its managing
partner or executive committee or (v) any other Person, the managing body
thereof or other Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in Regulation U of the Board
of Governors of the Federal Reserve System, as amended, supplemented or
otherwise modified from time to time.
"Marketable Securities Borrowing Base": The Loan Value of Eligible
Securities Collateral.
"Material Adverse Change": a material adverse change in (i) the financial
condition, operations, business, prospects or Property of the Parent and its
Subsidiaries taken as a whole, (ii) the ability of any Borrower to perform its
<PAGE>
obligations under the Loan Documents or (iii) the ability of the Agent and the
Lenders to enforce the Loan Documents.
"Material Adverse Effect": a material adverse effect, other than the IT
Adjustment, on (i) the financial condition, operations, business, prospects or
Property of the Parent and its Subsidiaries taken as a whole, (ii) the ability
of any Borrower to perform its obligations under the Loan Documents or (iii) the
ability of the Agent and the Lenders to enforce the Loan Documents.
"Material Subsidiary": means each of the Subsidiary Guarantors and any
other Subsidiary of the Parent which (i) as at the end of the most recent fiscal
quarter of Parent, held 10% or more of the Consolidated assets of Parent and its
Subsidiaries, or (ii) for the four most recently completed fiscal quarters of
Parent accounted for more than 10% of the Consolidated EBITDA, as shown on the
financial statements of Parent and its Subsidiaries, provided that for purposes
of determining whether any Subsidiary acquired or organized after the date
hereof is a Material Subsidiary, the financial statements of the Parent and its
Subsidiaries shall be adjusted to include such Subsidiary acquired or organized
after the date hereof as if such Subsidiary had been a Subsidiary at all times
during such four fiscal quarters or, if shorter, during the period after it was
organized.
"Maturity Date": means either the Parent Maturity Date or the GP Canada
Maturity Date, as the context requires.
"Maximum Overadvance Amount": During the periods set forth below, the
amount set forth below opposite such period:
Period Amount
Closing Date through August 30, 2000 $ 8,000,000
August 31, 2000 through September 29, 2000 $ 7,500,000
September 30, 2000 through October 30, 2000 $ 7,000,000
October 31, 2000 through November 29, 2000 $ 6,500,000
November 30, 2000 through December 30, 2000 $ 6,000,000
December 31, 2000 through January 30, 2001 $ 4,500,000
January 31, 2001 through February 27, 2001 $ 3,500,000
February 28, 2001 through March 30, 2001 $ 1,500,000
March 31, 2001 and at all times thereafter -0-
"Minimum Excess Availability": as at the last day of each fiscal quarter of
the Parent, an Available Parent Commitment Amount in an amount equal to the
lesser of $3,000,000 or the Overadvance Amount (as such Overadvance Amount is
reduced from time to time).
<PAGE>
"Minimum Net Worth Amount:" As at (i) June 30, 2000, $70,728,000, (ii)
September 30, 2000, $70,000,000 and (iii) December 31, 2000 and the last day of
each fiscal quarter thereafter, $71,000,000 plus, in each case, (A) 80% of the
Parents' Consolidated net income (on a cumulative basis) for each fiscal quarter
commencing December 31, 2000 plus, in each case, (B) 80% of the Net Cash
Proceeds (on a cumulative basis) resulting from any equity issuance by Parent or
any of its Subsidiaries.
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
"Morgan Keegan Consent": the written consent, dated August 23, 2000, of
Morgan Keegan & Company, Inc., acting on behalf of the Underwriters (as such
term is defined in the Lock-up Agreement), to the private sale of the shares of
Millennium Cell, Inc. owned by the Parent in a private sale to a Person who
agrees to the restrictions set forth in the Lock-up Agreement, together with a
written agreement signed by the Parent and addressed to Morgan Keegan & Company,
Inc. agreeing to engage Morgan Keegan & Company, Inc. to represent the seller in
connection with such sale.
"Mortgages": a mortgage on (i) Property owned by MXL and located in
Illinois and Pennsylvania (collectively the "MXL Property"), pursuant to each of
which the Agent shall be granted a first priority mortgage Lien for the ratable
benefit of the Lenders, to secure the guarantee of MXL under the Amended and
Restated Subsidiary Guaranty and Security Agreement each of which shall be in
form and substance satisfactory to the Agent and each of which may only be
recorded as provided in Section 2.13, (ii) Property owned by Parent and located
in Pawling, New York (the "Pawling Property"), pursuant to which the Agent shall
be granted a first priority mortgage Lien for the ratable benefit of the
Lenders, to secure the Parent Obligations, which Mortgage shall be in form and
substance satisfactory to the Agent and (iii) Property owned by Chestnut Hill
Reservoir Corp. and located in Connecticut (the "Reservoir Property"), pursuant
to which the Agent shall be granted a first priority mortgage Lien for the
ratable benefit of the Lenders, to secure the guarantee of Chestnut Hill
Reservoir Corp. under the Amended and Restated Subsidiary Guaranty and Security
Agreement, which Mortgage shall be in form and substance satisfactory to the
Agent.
"Multi-employer Plan": a Pension Plan which is a Multi-employer plan as
defined in Section 4001(a)(3) of ERISA.
"MXL": MXL Industries, Inc.
"MXL Property": as defined under "Mortgages."
"MXL Sale/Leaseback": any sale/leaseback transaction entered into by MXL
with respect to the MXL Property.
"Net Cash Proceeds": with respect to any Covered Event by any Credit Party,
the aggregate gross sales proceeds received by such Credit Party, in cash in
<PAGE>
connection with such Covered Event minus the sum of (i) sales and other
commissions and legal and other expenses incurred in connection with such
Covered Event and (ii) any taxes reasonably estimated to be payable by the
Credit Party in connection therewith in respect of the fiscal year of such
Covered Event.
"Notes": the Revolving Credit Notes and the Term Notes.
"Notice of Conversion": a notice substantially in the form of Exhibit D.
"Obligations": the Parent Obligations and the GP Canada Obligations
collectively.
"Original Agreement": as defined in the Recitals hereto.
"Other Taxes": as defined in Section 3.10(c).
"Operating Entity": any Person or any business or operating unit of a
Person which is, or could be, operated separate and apart from (i) the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"Original Agreement": shall have the meaning set forth in the recitals
hereto.
"Organizational Documents": as to any Person which is (i) a corporation,
the certificate or articles of incorporation and by-laws of such Person, (ii) a
limited liability company, the limited liability company agreement or similar
agreement of such Person, (iii) a partnership, the partnership agreement or
similar agreement of such Person, or (iv) any other form of entity or
organization, the organizational documents analogous to the foregoing.
"Outstandings": as of any date with respect to the Parent Facility and the
GP Canada Facility taken together, an amount equal to (a) with respect to any
Lender, the outstanding principal balance on such date of all the Loans of such
Lender plus the excess of (i) the aggregate sum of all payments by such Lender
after the Effective Date in participation of the Reimbursement Obligations over
(ii) all reimbursements of such Lender after the Effective Date in respect
thereof; and (b) with respect to the Issuing Bank, the excess of (i) the
aggregate sum of all drafts honored under all Letters of Credit after the
Effective Date, over (ii) all payments made after the Effective Date to the
Issuing Bank by the Borrowers and the Lenders in reimbursement thereof or
participation therein, as the case may be.
"Outstanding Percentage": as of any date and with respect to each Lender
and the Issuing Bank, as the case may be, a fraction the numerator of which is
the Outstandings of such Lender or the Issuing Bank, as applicable, on such
<PAGE>
date, and the denominator of which is the aggregate Outstandings of all Lenders
and the Issuing Bank on such date.
"Overadvance Amount": the "Overadvance Amount" shall equal the amount
advanced in excess of the Accounts Receivable Borrowing Base and the Marketable
Securities Borrowing Base which shall in no event exceed the lesser of (i)
$8,000,000 minus the aggregate Required Reduction Amounts with respect to all
Asset Sales on a cumulative basis for the period from the Closing Date through
the date of computation and (ii) the Maximum Overadvance Amount for the date of
computation.
"Parent Cash Collateral": as defined in Section 2.11(a).
"Parent Cash Collateral Account": as defined in Section 2.11(a).
"Parent Commitment": in respect of any Lender, such Lender's undertaking
during the applicable Commitment Period to make Revolving Credit Loans and
purchase participations in Letters of Credit, subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding
the Parent Commitment Amount of such Lender.
"Parent Commitment Amount": as of any date and with respect to any Lender,
the amount set forth adjacent to its name under the heading "Parent Commitment
Amount" in Exhibit A hereto on such date or, in the event that such Lender is
not listed in Exhibit A hereto, the "Parent Commitment Amount" which such Lender
shall have assumed from another Lender in accordance with Section 11.7 on or
prior to such date, in each case as the same may be adjusted from time to time
pursuant to Sections 2.4 and 11.7.
"Parent Commitment Fee": as defined in Section 3.2(a).
"Parent Commitment Percentage": as to any Lender in respect of such
Lender's Parent Commitment and its obligations with respect to Letters of
Credit, the percentage equal to such Lender's Parent Commitment Amount divided
by the Aggregate Parent Commitment Amount (or, if no Parent Commitments then
exist, the percentage equal to such Lender's Parent Commitment Amount on the
last day upon which Parent Commitments did exist divided by the Aggregate Parent
Commitment Amount on such day); provided, that, with respect to each Lender,
such Lender's Parent Commitment Percentage shall at all times equal such
Lender's GP Canada Commitment Percentage.
"Parent Commitment Period": means the period from the Effective Date
through the Parent Commitment Termination Date.
"Parent Commitment Termination Date": the earlier of the Business Day
immediately preceding the Parent Maturity Date or such other date upon which the
Commitments shall have been terminated in accordance herewith.
<PAGE>
"Parent Credit Exposure": with respect to any Lender as of any date, the
sum as of such date of (i) the outstanding principal balance of such Lender's
Revolving Credit Loans, plus (ii) an amount equal to such Lender's Letter of
Credit Exposure.
"Parent Facility": the credit facility described in Section 2.1.
"Parent Guarantor": Parent, as to the GP Canada Facility.
"Parent Guaranty": the Amended and Restated Parent Guaranty Agreement for
the GP Canada Facility by and between the Parent Guarantor and the Agent,
substantially in the form of Exhibit J hereto, as further amended, supplemented
or otherwise modified from time to time.
"Parent Maturity Date": June 15, 2001, or such earlier date on which the
Revolving Credit Notes shall become due and payable, whether by acceleration or
otherwise.
"Parent Obligations": all of the Indebtedness, liabilities and obligations
of Parent to the Lenders, the Issuing Bank and the Agent arising under the Loan
Documents, in each case whether fixed, contingent, now existing or hereafter
arising, created, assumed, incurred or acquired, direct or indirect, absolute or
contingent, whether or not currently contemplated, as such Indebtedness,
obligations and liabilities may be amended, increased, modified, renewed,
refinanced by the Agent and the Lenders, refunded or extended from time to time.
"Parent Outstandings": as of any date an amount equal to (a) with respect
to any Lender, the outstanding principal balance on such date of all the
Revolving Credit Loans of such Lender plus the excess of (i) the aggregate sum
of all payments by such Lender after the Effective Date in participation of the
Reimbursement Obligations over (ii) all reimbursements of such Lender after the
Effective Date in respect thereof; and (b) with respect to the Issuing Bank, the
excess of (i) the aggregate sum of all drafts honored under all Letters of
Credit after the Effective Date, over (ii) all payments made after the Effective
Date to the Issuing Bank by Parent and the Lenders in reimbursement thereof or
participation therein, as the case may be.
"Parent Outstanding Percentage": as of any date and with respect to each
Lender and the Issuing Bank, as the case may be, a fraction the numerator of
which is the Parent Outstandings of such Lender or the Issuing Bank, as
applicable, on such date, and the denominator of which is the aggregate Parent
Outstandings of all Lenders and the Issuing Bank on such date.
"Pawling Property": as defined under "Mortgages."
<PAGE>
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to the
functions thereof.
"Pension Plan": at any date of determination, any Employee Benefit Plan
(including a Multi-employer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of any Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Permitted Lien": a Lien permitted to exist under Section 8.2.
"Person": any individual, firm, partnership, limited liability company,
joint venture, corporation, association, business enterprise, joint stock
company, unincorporated association, trust, Governmental Authority or any other
entity, whether acting in an individual, fiduciary, or other capacity, and for
the purpose of the definition of "ERISA Affiliate", a trade or business.
"Physics": General Physics Corporation.
"Physics Computer System": a new computer system to be implemented by
Physics for the operation of its business; provided, that, the aggregate cost
for hardware, software, training, installation and all other items directly or
indirectly related to such computer system shall not exceed $2,000,000.
"PPSA": Personal Property Security Act of each province of Canada that has
adopted such act.
"Prohibited Transaction": a transaction which is prohibited under Section
4975 of the Code or Section 406 of ERISA and not exempt under Section 4975 of
the Code or Section 408 of ERISA.
"Prompt Compliance": to the extent that as at December 31, 2000 no Default
or Event of Default then exists and the Parent has maintained Minimum Excess
Availability as of September 30, 2000 and December 31, 2000.
"Property": all types of real, personal, tangible, intangible or mixed
property.
"Proposed Lender": as defined in Section 3.12.
"Rate Protection Lenders": collectively, the Lenders and any Affiliates of
the Lenders which from time to time enter or have entered into Interest Rate
Protection Arrangements with Parent.
<PAGE>
"Regulatory Change": (i) the introduction or phasing in of any law, rule or
regulation after the Relevant Date, (ii) the issuance or promulgation after the
Relevant Date of any directive, guideline or request from any Governmental
Authority (whether or not having the force of law), or (iii) any change after
the Relevant Date in the interpretation of any existing law, rule, regulation,
directive, guideline or request by any Governmental Authority charged with the
administration thereof. For purposes of this definition, the term "Relevant
Date" shall mean (i) in the case of each Lender listed on the signature pages
hereof, the Effective Date, or (ii) in the case of each other Lender, the
effective date of the Assignment and Acceptance Agreement or other document
pursuant to which it became a Lender.
"Reimbursement Agreement": as defined in Section 2.7(b).
"Reimbursement Obligation": the obligation of Parent to reimburse the
Issuing Bank for amounts drawn under a Letter of Credit.
"Remaining Interest Period": (i) in the event that any Borrower shall fail
for any reason to borrow a Revolving Credit Loan or Term Loan in respect of
which it shall have requested a Eurodollar Advance or convert an Advance to a
Eurodollar Advance after it shall have notified the Agent of its intent to do
so, a period equal to the Interest Period that such Borrower elected in respect
of such Eurodollar Advance; or (ii) in the event that a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that any
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date of such
prepayment or repayment to but excluding the last day of such Interest Period.
"Reportable Event": with respect to any Pension Plan, (i) any event set
forth in Sections 4043(c) (other than a Reportable Event as to which the 30 day
notice requirement is waived by the PBGC under applicable regulations), 4062(c)
or 4063(a) of ERISA or the regulations thereunder, (ii) an event requiring any
Borrower, any of its Subsidiaries or any ERISA Affiliate to provide security to
a Pension Plan under Section 401(a)(29) of the Code, or (iii) any failure to
make any payment required by Section 412(m) of the Code.
"Required Lenders": Lenders whose aggregate Credit Exposure constitute at
least 51% of the Aggregate Credit Exposure at such time; provided, however, that
if any Lender shall be a Defaulting Lender at such time then there shall be
excluded from the determination of Required Lenders at such time the aggregate
principal amount of Credit Exposure of such Lender at such time. For purposes of
the preceding sentence, the term "Credit Exposure" as applied to each Lender and
any Commitment shall mean (a) the sum of (i) the Parent Commitment Percentage of
<PAGE>
such Lender multiplied times the Aggregate Parent Commitment Amount; plus (ii)
the principal balance of outstanding Term Loans at such time of such Lender;
provided, that, with respect to the Parent Commitment, if Required Lenders is
being determined at any time after the Parent Commitment Termination Date,
"Credit Exposure" shall be determined by replacing the calculation provided for
the Parent Facility above by the principal balance of outstanding Revolving
Credit Loans of such Lender at such time, plus such Lender's Letter of Credit
Exposure; provided, further that if there are no outstanding Revolving Credit
Loans and there is no Letter of Credit Exposure at such time, then Required
Lenders shall be determined in accordance with "(a)(i)" on the last day prior to
the Parent Commitment Termination Date.
"Required Reduction Amount": with respect to Covered Events that do not
involve the sale of assets that were included in the Borrowing Base, 75% of the
Net Cash Proceeds and with respect to Covered Events that involve the sale of
assets that were included in the Borrowing Base, the amount equal to an amount
that when added to the amount of the reduction in the Borrowing Base (as a
result of the sold assets no longer being included in the Borrowing Base) equals
75% of the total Net Cash Proceeds (for the avoidance of doubt, the Required
Reduction Amount is determined in accordance with the following formula: x +
reduction in Borrowing Base = (.75)(Net Cash Proceeds)); provided, that, if same
would result in a negative number the Required Reduction Amount shall be deemed
zero.
"Reservoir Property": as defined under "Mortgages.
"Restricted Payment": as to any Person (i) any dividend or other
distribution, direct or indirect, on account of any shares of Capital Stock in
such Person now or hereafter outstanding (other than a dividend payable solely
in shares of such Capital Stock to the holders of such shares) and (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other
acquisition, direct or indirect, of any shares of any class of Capital Stock in
such Person now or hereafter outstanding.
"Revolving Credit Loan" and "Revolving Credit Loans": as defined in Section
2.1(a).
"Revolving Credit Note" and "Revolving Credit Notes": as defined in Section
2.1(b).
"SEC": the United States Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Solvent": with respect to any Person on a particular date, the condition
that on such date, (i) the fair value of the Property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person, (ii) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
<PAGE>
Person on its debts as they become absolute and matured, (iii) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(iv) such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's Property would
constitute an unreasonably small amount of capital. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become an actual
or matured liability after taking into account probable payments by co-obligors.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to the
Agent.
"Standby Letters of Credit": as defined in Section 2.7(a).
"Standard & Poor's": Standard & Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc., or any successor thereto.
"Subordinated Debt": the Hydro Med Subordinated Debt and all other
Indebtedness of a Credit Party which is subordinated to the Obligations on terms
and conditions at least as favorable to the Banks as are contained in the
Subordination Agreement or on other terms and conditions acceptable to the Agent
and the Required Lenders, provided that, notwithstanding the terms of the
Subordination Agreement, in order for such Indebtedness to be considered
"Subordinated Debt", the principal amount of such Indebtedness shall not be
payable until at least 180 days after the later of the Parent Commitment
Termination Date and the GP Canada Maturity Date, and no principal of or
interest on or other amounts in respect to such Indebtedness shall be payable at
any time after the occurrence and during the continuance of any Event of
Default.
"Subordination Agreement": the subordination agreements substantially in
the forms of Exhibits L-1, L-2 and L-3 hereto.
"Subsidiary": as to any Person, any corporation, association, partnership,
limited liability company, joint venture or other business entity of which such
Person or any Subsidiary of such Person, directly or indirectly, either (i) in
respect of a corporation, owns or controls more than 50% of the outstanding
Capital Stock having ordinary voting power to elect a majority of the Managing
Person, irrespective of whether a class or classes shall or might have voting
power by reason of the happening of any contingency, or (ii) in respect of an
association, partnership, limited liability company, joint venture or other
business entity, is entitled to share in more than 50% of the profits and
losses, however determined.
"Subsidiary Guarantor": with respect to the Parent Facility: MXL, Physics
and each present and future Material Subsidiary of Parent that is a Domestic
<PAGE>
Subsidiary; and with respect to the GP Canada Facility: MXL, Physics and each
present and future Material Subsidiary.
"Subsidiary Guaranty and Security Agreement": collectively the Amended and
Restated Subsidiary Guaranty and Security Agreements for the Parent Facility and
the GP Canada Facility, by and among each applicable Subsidiary Guarantor and
the Agent, substantially in the Form of Exhibit I hereto, as further amended,
supplemented or otherwise modified from time to time.
"Systems": General Physics Federal Systems, Inc.
"Taxes": as defined in Section 3.10(a).
"Tax on the Income": as defined in Section 3.10(a).
"Termination Event": with respect to any Pension Plan, (i) a Reportable
Event, (ii) the termination of a Pension Plan, or the filing of a notice of
intent to terminate a Pension Plan, or the treatment of a Pension Plan amendment
as a termination under Section 4041(c) of ERISA, (iii) the institution of
proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv) the
appointment of a trustee to administer any Pension Plan under Section 4042 of
ERISA.
"Term Loan" and "Term Loans": as defined in Section 2.2(a).
"Term Note" and "Term Notes": as defined in Section 2.2(b).
"Total Consolidated Liabilities": defined and determined in accordance with
GAAP.
"Trade Letters of Credit": as defined in Section 2.7(a).
"Type": with respect to any Loan, the character of such Loan as an ABR
Advance or a Eurodollar Advance, each of which constitutes a type of loan.
"Unfunded Pension Liabilities": with respect to any Pension Plan, at any
date of determination, the amount determined by taking the accumulated benefit
obligation, as disclosed in accordance with Statement of Accounting Standards
No. 87, "Employers' Accounting for Pensions", over the fair market value of
Pension Plan assets.
"United States": the United States of America (including the States thereof
and the District of Columbia).
"Unqualified Amount": as defined in Section 3.1(c).
"Unrecognized Retiree Welfare Liability": with respect to any Employee
Benefit Plan that provides post retirement benefits other than pension benefits,
<PAGE>
the amount of the transition obligation, as determined in accordance with
Statement of Financial Accounting Standards No. 106, "Employers' Accounting for
Post retirement Benefits Other Than Pensions," as of the most recent valuation
date, that has not been recognized as an expense in an income statement of any
Borrower and its Subsidiaries, provided that prior to the date such Statement is
applicable to a Borrower, such amount shall be based on an estimate made in good
faith of such transition obligation.
"Updated Borrowing Base Certificate": a Borrowing Base Certificate that (i)
is updated to include a current calculation of the Marketable Securities
Borrowing Base as of a date which is not more than one Business Day prior to the
preparation of such Updated Borrowing Base Certificate, (ii) includes the
calculation of the Accounts Receivable Borrowing Base contained in the most
recent Borrowing Base Certificate furnished pursuant to the terms of this
Agreement, (iii) reflects the Overadvance Amount as of a date which is not more
than one Business Day prior to the preparation of such Updated Borrowing Base
Certificate and (iv) contains a certification from an Authorized Signatory that
such Authorized Signatory knows of no material adverse change in the Accounts
Receivable Borrowing Base from that reflected in the most recent Borrowing Base
Certificate furnished pursuant to the terms of this Agreement.
"Upstream Dividends": as defined in Section 8.14.
"U.S. Person": a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under any laws of the
United States, or any estate or trust that is subject to United States federal
income taxation regardless of the source of its income.
1.2 Principles of Construction
(a) All terms defined in a Loan Document shall have the meanings given such
terms therein when used in the other Loan Documents or any certificate, opinion
or other document made or delivered pursuant thereto, unless otherwise defined
therein.
(b) As used in the Loan Documents and in any certificate, opinion or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP. If at
any time any change in GAAP would affect the computation of any financial ratio
or requirement set forth in this Agreement, the Agent, the Lenders and the
Borrowers shall negotiate in good faith to amend such ratio or requirement to
reflect such change in GAAP (subject to the approval of the Required Lenders),
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Borrowers shall provide to the Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
<PAGE>
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar
words when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and exhibit
references contained therein shall refer to Sections thereof or schedules or
exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular number
include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary, any
reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to the contrary, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
(h) References in any Loan Document to a fiscal period shall refer to that
fiscal period of Parent.
(i) The words "include" and "including", when used in each Loan Document,
shall mean that the same shall be included "without limitation", unless
otherwise expressly provided therein.
2. AMOUNT AND TERMS OF REVOLVING CREDIT LOANS AND LETTERS OF CREDIT
2.1 Revolving Credit Loans; Revolving Credit Notes
(a) Subject to the terms and conditions hereof, each Lender severally (and
not jointly) agrees to make revolving credit loans (each a "Revolving Credit
Loan" and, as the context may require, collectively with all other Revolving
Credit Loans of such Lender and with the Revolving Credit Loans of all other
Lenders, the "Revolving Credit Loans") to Parent from time to time during the
Parent Commitment Period, provided that immediately after giving effect thereto
(i) such Lender's Parent Credit Exposure would not exceed such Lender's Parent
Commitment Amount, and (ii) the Aggregate Parent Credit Exposure would not
exceed the lesser of the Borrowing Base and the Aggregate Parent Commitment
Amount. During the Parent Commitment Period, Parent may borrow, prepay in whole
or in part and reborrow under the Parent Commitment, all in accordance with the
terms and conditions of this Agreement. Subject to the provisions of Sections
2.3 and 3.3, at the option of Parent, Revolving Credit Loans may be made as one
or more (i) ABR Advances, (ii) Eurodollar Advances or (iii) any combination
thereof.
<PAGE>
(b) The Revolving Credit Loans made by each Lender shall be evidenced by a
promissory note of Parent, each of which shall amend and restate in its entirety
the Revolving Credit Note payable to such Lender and provided in connection with
the Original Agreement and each of which shall be substantially in the form of
Exhibit B-1 hereto, with appropriate insertions therein as to date and principal
amount (each, as indorsed or modified from time to time, a "Revolving Credit
Note" and, collectively with the Revolving Credit Notes of all other Lenders,
the "Revolving Credit Notes"), payable to the order of such Lender, dated the
Closing Date, and in the stated principal amount equal to such Lender's Parent
Commitment Amount. The outstanding principal balance of the Revolving Credit
Loans shall be due and payable on the Parent Maturity Date.
2.2 Term Loans; Term Notes
(a) Pursuant to the Original Agreement, each Lender severally (and not
jointly) made a term loan (each a "Term Loan" and, as the context may require,
collectively with all other Term Loans of all other Lenders, the "Term Loans")
to GP Canada and such Term Loans shall continue to be subject to all the terms
and conditions of this Agreement. Subject to the provisions of Sections 2.3 and
3.3, at the option of GP Canada, Term Loans may be made as one or more (i) ABR
Advances, (ii) Eurodollar Advances or (iii) any combination thereof. As of
August 1, 2000, the Term Loans had an aggregate outstanding principal balance of
$13,500,000.00.
(b) The Term Loans made by each Lender shall be evidenced by promissory
notes of GP Canada, which shall amend and restate in their entirety the Term
Note payable to such Lender and provided in connection with the Original
Agreement and each of which shall be substantially in the form of Exhibit B-2
hereto with appropriate insertions therein as to date and principal amount
(each, as indorsed or modified from time to time, a "Term Note" and,
collectively with the Term Notes of all other Lenders, the "Term Notes"),
payable to the order of such Lender, dated the Closing Date, and in the stated
principal amount equal to the unpaid principal amount of such Lender's GP Canada
Commitment Amount as of the Closing Date. Subject to Section 2.2(c), the
aggregate outstanding principal balance of the Term Loans are payable in twelve
(12) quarterly principal payments, the first eleven (11) of which shall be in
the amount of One Hundred Eighty Seven Thousand Five Hundred and 00/100 Dollars
($187,500.00) each, payable on the first day of each April, July, October and
January, commencing October 1, 2000, and the 12th and final installment due on
the GP Canada Maturity Date shall be in an amount equal to the then outstanding
principal balance and all accrued and unpaid interest.
(c) Notwithstanding anything contained in this Agreement, except for sums
due and owing upon an Event of Default, neither GP Canada nor the Parent shall
be required (individually or together) to repay or otherwise reduce more than
25% of the original aggregate principal amount of any Term Loan pursuant to this
<PAGE>
Agreement prior to the GP Canada Maturity Date (including amounts repaid prior
to the Closing Date and amounts required to be repaid under Section 2.2(b)), and
the maximum amount to be applied to the repayment of any Term Loan shall be 25%
of the original aggregate principal amount of such Term Loan less the aggregate
principal amount of such Term Loan otherwise repaid pursuant to this Agreement
(for purposes of this Section 2.2(c), with respect to any Lender's Term Loan,
"original aggregate principal amount of such Term Loan" shall mean such Lender's
original GP Canada Commitment Amount); provided, however, that (i) the foregoing
shall not limit or in any manner restrict the rights of the Agent and the
Lenders to demand payment in full of the Term Loans prior to the GP Canada
Maturity Date upon an Event of Default under this Agreement, (ii) in addition to
the maximum amount required to be paid by GP Canada pursuant to the foregoing
provisions, GP Canada may, at its option, make voluntary prepayments in
accordance with Section 2.5 of this Agreement, and (iii) GP Canada shall be
required, on the GP Canada Maturity Date, to pay all amounts that were not
applied to repay the Term Loans pursuant to the provisions of this subsection
2.2(c) together with the aggregate then unpaid principal balance and all accrued
and unpaid interest and other sums then due and owing to the Lenders.
2.3 Procedure for Borrowing
(a) Parent may borrow under the applicable Parent Commitment on any
Business Day during the applicable Commitment Period provided Parent shall
notify the Agent by the delivery of a Borrowing Request signed by Parent. The
Borrowing Request shall be sent by telecopy and shall be irrevocable (confirmed
promptly, and in any event within five Business Days, by the delivery to the
Agent of a Borrowing Request manually signed by such Borrower) no later than:
11:00 a.m., three Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Advances, or either 11:00 a.m., one Business Day prior to the
requested Borrowing Date, or 10:00 a.m. on the requested Borrowing Date in the
case of ABR Advances, specifying (A) the aggregate principal amount to be
borrowed under the applicable Commitment, (B) the requested Borrowing Date, (C)
whether such borrowing is to consist of one or more Eurodollar Advances, ABR
Advances, or a combination thereof, (D) if the borrowing is to consist of one or
more Eurodollar Advances, the length of the Interest Period for each such
Eurodollar Advance and (E) if all or any part of the applicable Revolving Credit
Loan will directly or indirectly be used by, or be for the benefit of, any
Subsidiary Guarantor, the name of such Subsidiary Guarantor. With respect to any
one Borrower, each (i) Eurodollar Advance to be made on a Borrowing Date, when
aggregated with all amounts to be converted to a Eurodollar Advance on such date
and having the same Interest Period as such first Eurodollar Advance, shall
equal no less than $500,000 or such amount plus a whole multiple of $100,000 in
excess thereof, and (ii) each ABR Advance made on each Borrowing Date shall
equal no less than $500,000 or such amount plus a whole multiple of $100,000 in
excess thereof or, if less, the Available Parent Commitment Amount in the case
of the Parent Facility.
<PAGE>
(b) Upon receipt of each Borrowing Request, the Agent shall promptly notify
each Lender thereof. Subject to its receipt of the notice referred to in the
preceding sentence, each Lender will make available to the Agent for the account
of the applicable Borrower at the office of the Agent set forth in Section 11.2
not later than 12:00 noon on the relevant Borrowing Date requested by such
Borrower, in funds immediately available to the Agent at such office, the amount
of its Parent Commitment Percentage of the requested Revolving Credit Loans. The
amounts so made available to the Agent on such Borrowing Date will then, subject
to the satisfaction of the terms and conditions of this Agreement, as determined
by the Agent, be made available on such date to the applicable Borrower by the
Agent at the office of the Agent specified in Section 11.2 by crediting an
account of such Borrower on the books of such office with the aggregate of said
amounts received by the Agent.
(c) Unless the Agent shall have received prior notice from a Lender (by
telephone or otherwise, such notice to be promptly confirmed by telecopy or
other writing) that such Lender will not make available to the Agent such
Lender's applicable Commitment Percentage of the applicable Loans requested by
the applicable Borrower, the Agent may assume that such Lender has made such
share available to the Agent on the Borrowing Date in accordance with this
Section, provided that such Lender received notice of the requested Loans from
the Agent, and the Agent may, in reliance upon such assumption, make available
to the applicable Borrower on the Borrowing Date a corresponding amount. If and
to the extent such Lender shall not have so made its applicable Commitment
Percentage of such Loans available to the Agent, such Lender and the applicable
Borrower severally agree to pay to the Agent forthwith on demand such
corresponding amount (to the extent not previously paid by the other), together
with interest thereon for each day from the date such amount is made available
to the applicable Borrower to the date such amount is paid to the Agent, at a
rate per annum equal to, in the case of such Borrower, the applicable interest
rate set forth in Section 3.1 for ABR Advances, and, in the case of such Lender,
at a rate of interest per annum equal to the Federal Funds Rate for the first
three days after the due date of such payment until the date such payment is
received by the Agent and the Federal Funds Rate plus 2% thereafter. Such
payment by such Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Agent such corresponding
amount, such amount so paid shall constitute such Lender's Revolving Credit Loan
and/or Term Loan, as the case may be as part of the Revolving Credit Loans
and/or Term Loans, as the case may be, for purposes of this Agreement, which
such Loan shall be deemed to have been made by such Lender on the Borrowing Date
applicable to such Loans.
(d) If a Lender makes a new Revolving Credit Loan to Parent on a Borrowing
Date on which Parent is to repay a Revolving Credit Loan from such Lender, such
Lender shall apply the proceeds of such new Revolving Credit Loan to make such
repayment, and only the excess of the proceeds of such new Revolving Credit Loan
over the Revolving Credit Loan being repaid need be made available to the Agent.
<PAGE>
2.4 Termination or Reduction of Parent Commitments and GP Canada Credit
Exposure
(a) Voluntary Reductions. The Parent shall have the right, upon at least
three Business Days' prior written notice to the Agent, (i) at any time when the
Aggregate Parent Credit Exposure shall be zero or at any time the Parent elects
to pay or to prepay the Revolving Credit Loans in their entirety, to terminate
the Parent Commitments of all of the Lenders, and (ii) at any time and from time
to time when the Aggregate Parent Commitment Amount shall exceed the Aggregate
Parent Credit Exposure, to permanently reduce the Aggregate Parent Commitment
Amount by a sum not greater than the amount of such excess, provided, however,
that each such partial reduction shall be in the amount of $1,000,000 or such
amount plus a whole multiple of $500,000 in excess thereof.
(b) Mandatory Reductions Relating to Insurance. Subject to Section 2.2(c),
the Aggregate Parent Commitment Amount and the Aggregate GP Canada Credit
Exposure, as the case may be, shall be permanently reduced by the amounts, at
the times and to the extent required by Section 7.5(b).
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) In General. Each reduction of the Aggregate Parent Commitment Amount
and/or Aggregate GP Canada Credit Exposure, as the case may be, shall be made by
(i) in the case of the Parent Facility reducing each Lender's applicable
Commitment Amount by an amount equal to such Lender's applicable Commitment
Percentage of such reduction and (ii) in the case of the GP Canada Facility,
subject to Section 2.2(c), reducing each Lender's outstanding Term Loan by an
amount equal to such Lender's Commitment Percentage of such reduction.
Simultaneously with each reduction of the Aggregate Parent Commitment Amount
under this Section, Parent shall pay the Parent Commitment Fee accrued on the
amount by which the Aggregate Parent Commitment Amount has been reduced.
2.5 Prepayments of Loans; Overadvance Reductions; Additional Collateral
(a) Voluntary Prepayments. A Borrower may, at its option, prepay its Loans
without premium or penalty (but subject to Section 3.5), in full at any time or
in part from time to time by notifying the Agent in writing at least one
Business Day prior to the proposed prepayment date, in the case of Loans
consisting of ABR Advances and at least three Business Days prior to the
proposed prepayment date, in the case of Loans consisting of Eurodollar
Advances, specifying whether the Loans to be prepaid consist of ABR Advances,
<PAGE>
Eurodollar Advances, or a combination thereof, the Loan to be prepaid, the
amount to be prepaid and the date of prepayment. Each such notice shall be
irrevocable and the amount specified in each such notice shall be due and
payable on the date specified, together with accrued interest to the date of
such payment on the amount prepaid. Upon receipt of such notice, the Agent shall
promptly notify each Lender thereof. Each partial prepayment of Loans pursuant
to this subsection shall be in an aggregate principal amount of $500,000 or such
amount plus a whole multiple of $100,000 in excess thereof, or, if less, the
outstanding principal balance of the Revolving Credit Loans or Term Loans, as
the case may be. After giving effect to any partial prepayment with respect to
Eurodollar Advances which were made (whether as the result of a borrowing or a
conversion) to such Borrower on the same date and which had the same Interest
Period, the outstanding principal balance of such Eurodollar Advances shall
exceed (subject to Section 3.3) $500,000 or such amount plus a whole multiple of
$100,000 in excess thereof.
(b) Mandatory Prepayments of Revolving Credit Loans Relating to Termination
of the Commitments and Reductions of the Aggregate Commitment Amount. Upon the
termination of the Parent Commitments of all of the Lenders, Parent shall prepay
the outstanding principal balance of all Revolving Credit Loans and deposit into
the Parent Cash Collateral Account an amount which would cause the balance on
deposit in the Parent Cash Collateral Account to equal or exceed an amount equal
to the Letter of Credit Exposure of all Lenders. Upon each reduction of the
Aggregate Parent Commitment Amount, if the Aggregate Parent Credit Exposure
would exceed the Aggregate Parent Commitment Amount as so reduced, Parent shall
(unless the Aggregate Parent Credit Exposure would not exceed the Aggregate
Parent Commitment Amount as so reduced) either (A) prepay the applicable
Revolving Credit Loans, or (B) make a deposit into the Parent Cash Collateral
Account, or both, so that the Aggregate Parent Commitment Amount as so reduced
plus the balance on deposit in the Parent Cash Collateral Account would exceed
the Aggregate Parent Credit Exposure. To the extent any mandatory reduction of
the Aggregate GP Canada Credit Exposure is required pursuant to Section 2.4,
subject to Section 2.2(c), such reduction shall be effected pursuant to a
mandatory prepayment of the Term Loans in an amount equal to the amount of such
reduction.
(c) Mandatory Borrowing Base Prepayment of Revolving Loans; Contribution to
Parent Cash Collateral Account. If on any day prior to the Parent Maturity Date,
the Aggregate Parent Credit Exposure shall exceed the Borrowing Base as set
forth on the most recent Borrowing Base Certificate or Updated Borrowing Base
Certificate, as the case may be, Parent shall, within ten (10) days of such day
(but in no event later than the Parent Maturity Date), prepay the Revolving
Credit Loans in an amount equal to the lesser of such excess and the outstanding
principal balance of the Revolving Credit Loans, provided, however, that if
after giving effect to such prepayment the aggregate principal balance of
outstanding Revolving Credit Loans is zero and the Aggregate Parent Credit
Exposure still exceeds the Borrowing Base, Parent shall deposit as Parent Cash
Collateral (into the Parent Cash Collateral Account) an amount equal to such
<PAGE>
excess. Until such excess has been prepaid and such deposit, if required, has
been made, Parent shall not be entitled to borrow additional Revolving Credit
Loans or request the issuance of any Letter of Credit.
(d) Mandatory Prepayment and Overadvance Reduction from Covered Events.
(i) With respect to each Covered Event by any Credit Party other than GP
Canada, (A) as long as the Overadvance Amount is greater than zero, the Required
Reduction Amount shall within one Business Day of the consummation of such
Covered Event be applied to reduce the Overadvance Amount with a corresponding
reduction in the Available Parent Commitment Amount and to the extent that such
reduction in the Overadvance Amount results in the Aggregate Parent Credit
Exposure exceeding the Borrowing Base as set forth in an Updated Borrowing Base
Certificate (which Borrowing Base shall be recalculated to give effect to the
reduction in the Overadvance Amount as hereinabove provided and to give effect
to the removal from the calculation of such Borrowing Base the asset that was
the subject of such Covered Event to the extent such asset was included in the
calculation of such Borrowing Base), mandatory prepayment of the Parent Facility
shall be required as set forth in Section 2.5(c), (B) at any time the
Overadvance Amount is reduced to zero, the Required Reduction Amount shall
within one Business Day of the consummation of such Covered Event at the option
of Parent, be (i) deposited as Parent Cash Collateral in the Parent Cash
Collateral Account for all of the Parent Obligations (but in such event such
Parent Cash Collateral shall be excluded from the calculation of the Borrowing
Base), or (ii) subject to the limitations set forth in Section 2.2(c), applied
to reduce the outstanding balance of the Term Loans until the Term Loans shall
have been paid in full, at which time all remaining Required Reduction Amounts
shall be deposited as Parent Cash Collateral in the Parent Cash Collateral
Account for all of the Parent Obligations (but in such event such Parent Cash
Collateral shall be excluded from the calculation of the Borrowing Base), (C)
such Credit Party shall, within one Business Day of the consummation of each
such Covered Event, deliver to the Agent 100% of the non-cash consideration, if
any, with respect to each such Covered Event to be held as additional collateral
for the Obligations and (D) if at the time of such Covered Event a Default or
Event of Default has occurred and is continuing, 100% of all Net Cash Proceeds
for such Covered Event shall be applied as a mandatory prepayment of Revolving
Credit Loans (which sums required to be prepaid pursuant to this subsection
2.5(d)(i)(D) may be reborrowed in accordance with the provisions of this
Agreement at any time such Default or Event of Default is no longer continuing).
(ii) Intentionally Omitted.
(iii) On or before September 15, 2000 and in any event within one Business
Day of the receipt of the Life Insurance Proceeds by Parent, the greater of
$300,000 or 75% of the amount of such Life Insurance Proceeds shall be applied
by Parent to reduce the Overadvance Amount with a corresponding reduction in the
<PAGE>
Available Parent Commitment Amount and to the extent that such reduction in the
Overadvance Amount results in the Aggregate Parent Credit Exposure exceeding the
Borrowing Base as set forth in an Updated Borrowing Base Certificate (which
Borrowing Base shall be recalculated to give effect to the reduction in the
Overadvance Amount as hereinabove provided), mandatory prepayment of the Parent
Facility shall be required as set forth in Section 2.5(c).
(e) In General. Simultaneously with each prepayment of a Loan, the
applicable Borrower shall prepay all accrued interest on the amount prepaid
through the date of prepayment and any amount required pursuant to Section 3.10
hereto. Provided no Default or Event of Default shall have occurred, the Parent
may specify the Loan to which any voluntary prepayment shall be applied. Unless
otherwise specified by the applicable Borrower, each prepayment of Loans shall
first be applied to ABR Advances. If any prepayment or any other payment is made
in respect of any Eurodollar Advance, in whole or in part, prior to the last day
of the applicable Interest Period, each Borrower, as applicable, agrees to
indemnify the Lenders in accordance with Section 3.5. Prepayments of the Term
Loans may not be reborrowed, shall permanently reduce the amount thereof and
shall be applied to the last maturing installments of such Term Loans in inverse
order of their respective maturities.
2.6 Use of Proceeds
(a) Parent agrees that the proceeds of the Revolving Credit Loans or
Letters of Credit shall be used solely, directly or indirectly, to (i) pay all
of the Fees of Parent due hereunder, (ii) pay the reasonable out-of-pocket fees
and expenses incurred by Parent in connection with the Loan Documents and (iii)
for Parent and the Subsidiary Guarantors' working capital and general corporate
purposes not inconsistent with the provisions hereof. Notwithstanding anything
to the contrary contained in any Loan Document, Parent agrees that no part of
the proceeds of any Revolving Credit Loan or Letter of Credit will be used,
directly or indirectly, for a purpose which violates any law, including the
provisions of Regulations T, U or X of the Board of Governors of the Federal
Reserve System, as amended.
(b) GP Canada agrees that the proceeds of the Term Loans shall be used
solely, directly or indirectly, to (i) finance in part the Learning Technologies
Acquisition as it relates to assets located in Canada and to pay certain of the
fees and expenses in connection with such Learning Technologies Acquisition,
(ii) pay all of the Fees of GP Canada due hereunder, and (iii) pay the
reasonable out-of-pocket fees and expenses incurred by GP Canada in connection
with the Loan Documents. Notwithstanding anything to the contrary contained in
any Loan Document, GP Canada agrees that no part of the proceeds of any Term
Loan will be used, directly or indirectly, for a purpose which violates any law,
including the provisions of Regulations T, U or X of the Board of Governors of
the Federal Reserve System, as amended.
<PAGE>
2.7 Letter of Credit Sub-Facility
(a) Subject to the terms and conditions of this Agreement, the Issuing Bank
agrees, in reliance on the agreement of the other Lenders set forth in Section
2.8, to issue standby letters of credit (the "Standby Letters of Credit") or
commercial (trade) letters of credit (the "Trade Letters of Credit" and,
together with the Standby Letters of Credit, and the letters of credit currently
outstanding (the "Existing L/C's")and issued by the Issuing Bank for the account
of Parent or Physics described on Schedule 2.7 hereto, the "Letters of Credit")
denominated in Dollars during the Parent Commitment Period for the account of
Parent, provided that, immediately after the issuance of each Letter of Credit,
(i) the Letter of Credit Exposure of all Lenders (whether or not the conditions
for drawing under any Letter of Credit have or may be satisfied) would not
exceed the Letter of Credit Commitment Amount, and (ii) the Aggregate Parent
Credit Exposure would not exceed the lesser of the Borrowing Base (as reflected
in an Updated Borrowing Base Certificate) and the Aggregate Parent Commitment
Amount. Each Standby Letter of Credit shall have an expiration date which shall
be not later than the earlier of (i) 365 days after the date of issuance thereof
or (ii) sixty days before the Parent Maturity Date. Each Trade Letter of Credit
shall have an expiration date which shall be not later than the earlier of (i)
180 days after the date of issuance thereof (although any such Letter of Credit
shall be renewable for an additional 365 day period but in no event later than
the Parent Maturity Date) or (ii) sixty days before the Parent Maturity Date. No
Letter of Credit shall be issued if the Agent, or any Lender by notice to the
Agent no later than 1:00 p.m. one Business Day prior to the requested date of
issuance of such Letter of Credit, shall have determined that any condition set
forth in Sections 5 or 6 has not been satisfied.
(b) Each Letter of Credit shall be issued for the account of Parent in
support of an obligation of Parent or a Subsidiary (other than GP Canada) in
favor of a beneficiary who has requested the issuance of such Letter of Credit
as a condition to a transaction entered into in connection with the Parent, or
Subsidiary's ordinary course of business. Parent shall give the Agent a Letter
of Credit Request for the issuance of each Letter of Credit by 11:00 a.m., three
Business Days prior to the requested date of issuance. No Letter of Credit
Request shall be honored unless Parent shall have delivered to the Issuing Bank
(x) the Issuing Bank's standard Continuing Agreement for Letters of Credit (the
"Reimbursement Agreement") and (y) with respect to each Letter of Credit
Request, the Issuing Bank's standard Letter of Credit application, in each case
executed by an Authorized Signatory of Parent, and each Letter of Credit Request
shall also specify (i) the beneficiary of such Letter of Credit and the
obligations of Parent or of a Subsidiary Guarantor in respect of which such
Letter of Credit is to be issued, (ii) Parent' proposal as to the conditions
under which a drawing may be made under such Letter of Credit and the
documentation to be required in respect thereof, (iii) the maximum amount to be
available under such Letter of Credit, and (iv) the requested dates of issuance
and expiration. Upon receipt of such Letter of Credit Request from Parent, the
Agent shall promptly notify the Issuing Bank and each other Lender thereof. Each
Letter of Credit shall be in form and substance reasonably satisfactory to the
Issuing Bank, with such provisions with respect to the conditions under which a
<PAGE>
drawing may be made thereunder and the documentation required in respect of such
drawing as the Issuing Bank shall reasonably require. Each Letter of Credit
shall be used solely for the purposes described therein. The Issuing Bank shall,
on the proposed date of issuance and subject to the terms and conditions of the
Reimbursement Agreement and to the other terms and conditions of this Agreement,
issue the requested Letter of Credit.
(c) Each payment by the Issuing Bank of a draft drawn under a Letter of
Credit shall give rise to an obligation on the part of Parent to reimburse the
Issuing Bank immediately for the amount thereof.
(d) Notwithstanding anything to the contrary contained herein or in any
Reimbursement Agreement, to the extent that the terms of this Agreement shall be
inconsistent with the terms of such Reimbursement Agreement, the terms of this
Agreement shall govern.
(e) It is expressly agreed that as to the Existing L/C's, notwithstanding
the fact that some of such L/C's may have been issued for the account of Physics
and were executed in connection with the Existing Bank Debt, and notwithstanding
the fact that such Existing L/C's were issued in connection with the Existing
Bank Debt, for purposes of this Agreement, Parent shall be obligated for all
reimbursement and other obligations in connection therewith as if such Existing
L/C's were issued pursuant to this Agreement (provided, that, where Physics was
the account party with respect to such Existing L/C's, Physics shall nonetheless
remain obligated with Parent, on a joint and several basis, in connection
therefor). To the extent the Agent or the Issuing Bank determines that the
provisions of any documents executed in connection with the Existing Bank Debt
would be required to effect the intent of this subparagraph 2.7(e), such
documents and provisions (but only such documents and provisions) shall remain
in full force and effect as long as the Agent or the Issuing Bank deems
necessary to effect the provisions of this subparagraph 2.7(e).
2.8 Letter of Credit Participation and Funding Commitments
(a) Each Lender hereby unconditionally, irrevocably and severally (and not
jointly) for itself only and without any notice to or the taking of any action
by such Lender, takes an undivided participating interest in the obligations of
the Issuing Bank under and in connection with each Letter of Credit in an amount
equal to such Lender's Parent Commitment Percentage of the amount of such Letter
of Credit. Each Lender shall be liable to the Issuing Bank for its Parent
Commitment Percentage of the unreimbursed amount of any draft drawn and honored
under each Letter of Credit. Each Lender shall also be liable for an amount
equal to the product of its Parent Commitment Percentage and any amounts paid by
<PAGE>
Parent pursuant to Section 2.7(c) and 2.9 that are subsequently rescinded or
avoided, or must otherwise be restored or returned. Such liabilities shall be
unconditional and without regard to the occurrence of any Default or Event of
Default or the compliance by Parent or GP Canada with any of its obligations
under the Loan Documents.
(b) The Issuing Bank will promptly notify the Agent, and the Agent will
promptly notify each Lender (which notice shall be promptly confirmed in
writing) of the date and the amount of any draft presented under any Letter of
Credit with respect to which full reimbursement of payment is not made by Parent
as provided in Section 2.7(c), and forthwith upon receipt of such notice, such
Lender (other than the Issuing Bank in its capacity as a Lender) shall make
available to the Agent for the account of the Issuing Bank its Parent Commitment
Percentage of the amount of such unreimbursed draft at the office of the Agent
specified in Section 11.2, in lawful money of the United States and in
immediately available funds, before 4:00 p.m., on the day such notice was given
by the Agent, if the relevant notice was given by the Agent at or prior to 1:00
p.m., on such day, and before 12:00 noon, on the next Business Day, if the
relevant notice was given by the Agent after 1:00 p.m., on such day. The Agent
shall distribute the payments made by each such Lender (other than the Issuing
Bank in its capacity as a Lender) pursuant to the immediately preceding sentence
to the Issuing Bank promptly upon receipt thereof in like funds as received.
Each such Lender shall indemnify and hold harmless the Agent and the Issuing
Bank from and against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, costs and expenses (including
reasonable attorneys' fees and expenses and an administration fee of not less
than $100 payable to the Issuing Bank as the issuer of the relevant Letter of
Credit) resulting from any failure on the part of such Lender to provide, or
from any delay in providing, the Agent with such Lender's Commitment Percentage
of the amount of any payment made by the Issuing Bank under a Letter of Credit
in accordance with this subsection (b) (except in respect of losses, liabilities
or other obligations suffered by the Issuing Bank resulting from the gross
negligence or willful misconduct of the Issuing Bank). If a Lender does not make
available to the Agent when due such Lender's Parent Commitment Percentage of
any unreimbursed payment made by the Issuing Bank under a Letter of Credit
(other than payments made by the Issuing Bank by reason of its gross negligence
or willful misconduct), such Lender shall be required to pay interest to the
Agent for the account of the Issuing Bank on such Lender's Parent Commitment
Percentage of such payment at a rate of interest per annum equal to the Federal
Funds Rate for the first three days after the due date of such payment until the
date such payment is received by the Agent and the Federal Funds Rate plus 2%
thereafter. The Agent shall distribute such interest payments to the Issuing
Bank upon receipt thereof in like funds as received.
(c) Whenever the Agent is reimbursed by Parent, for the account of the
Issuing Bank, for any payment under a Letter of Credit and such payment relates
to an amount previously paid by a Lender in respect of its Parent Commitment
Percentage of the amount of such payment under such Letter of Credit, the Agent
(or the Issuing Bank, to the extent that the Agent has paid the same to the
<PAGE>
Issuing Bank) will pay over such payment to such Lender (i) before 4:00 p.m. on
the day such payment from Parent is received, if such payment is received at or
prior to 1:00 P.M. on such day, or (ii) before 12:00 noon on the next succeeding
Business Day, if such payment from Parent is received after 12:00 p.m. on such
day.
2.9 Absolute Obligation With Respect to Letter of Credit Payments
(a) The payment of drafts under any Letter of Credit shall be made in
accordance with the terms of such Letter of Credit and (i) the Uniform Customs
and Practice for Documentary Credits of the International Chamber of Commerce
No. 500, as adopted or amended from time to time, in the case of Trade Letters
of Credit and (ii) the International Standby Practices 1998 or most recent
revision thereof or successor thereto which shall be in effect from time to
time, in the case of Standby Letters of Credit. The Issuing Bank shall be
entitled to honor any drafts and accept any documents presented to it by the
beneficiary of such Letter of Credit in accordance with the terms of such Letter
of Credit and believed by the Issuing Bank in good faith to be genuine. The
Issuing Bank shall not have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing documents which may be presented to
it, but shall be responsible only to determine in accordance with customary
commercial practices that the documents which are required to be presented
before payment or acceptance of a draft under any Letter of Credit have been
delivered and that they comply on their face with the requirements of that
Letter of Credit.
(b) Parent's obligation to reimburse the Agent for the account of the
Issuing Bank in respect of a Letter of Credit for each payment under or in
respect of such Letter of Credit shall be absolute and unconditional under any
and all circumstances and irrespective of any set-off, counterclaim or defense
to payment which Parent may have or have had against the beneficiary of such
Letter of Credit, the Agent, the Issuing Bank, as issuer of such Letter of
Credit, any Lender or any other Person, including any defense based on the
failure of any drawing to conform to the terms of such Letter of Credit, its
lack of knowledge of the issuance of such Letter of Credit, any drawing document
proving to be forged, fraudulent or invalid, or the legality, validity,
regularity or enforceability of such Letter of Credit; provided, that, with
respect to any Letter of Credit, the foregoing shall not relieve the Issuing
Bank of any liability it may have to Parent for any actual damages sustained by
Parent arising from a wrongful payment under such Letter of Credit made as a
result of the Issuing Bank's gross negligence or willful misconduct.
(c) At any time when an Event of Default exists, upon demand made by the
Agent acting at the request of the Required Lenders, the Parent shall be
obligated forthwith to deposit in the Parent Cash Collateral Account an amount
in immediately available funds equal to the sum of (x) the aggregate undrawn
face amount of the outstanding Letters of Credit, (y) the aggregate amount of
<PAGE>
unpaid drafts drawn on all Letters of Credit, and (z) the aggregate unpaid
Reimbursement Obligations (after giving effect to any Revolving Credit Loans
made on such date to pay any such Reimbursement Obligations).
2.10 Payments
(a) Each payment, including each prepayment, of principal and interest on
the Loans, of the Parent Commitment Fee, the Amendment Fee, the Letter of Credit
Commissions and of all of the other fees to be paid to the Agent and the Lenders
in connection with this Agreement (the Parent Commitment Fee, the Letter of
Credit Commissions, the additional Letter of Credit fees and the Amendment Fee
and the Letter of Credit fronting fees referred to in Section 3.2(b), together
with all of such other fees, being sometimes hereinafter collectively referred
to as the "Fees") shall be made by the applicable Borrower prior to 12:00 noon
on the date such payment is due to the Agent for the account of the applicable
Lenders at the Agent's office specified in Section 11.2, in each case in lawful
money of the United States, in immediately available funds and without set-off
or counterclaim. As between a Borrower and the Lenders, any payment by a
Borrower to the Agent for the account of the Lenders shall be deemed to be
payment by such Borrower to the Lenders. The failure of a Borrower to make any
such payment by such time shall not constitute a Default, provided that such
payment is made on such due date, but any such payment made after 12:00 noon on
such due date shall be deemed to have been made on the next Business Day for the
purpose of calculating interest on amounts outstanding on the Loans. Subject to
Section 9.2(b), promptly upon receipt by the Agent of each payment, including
each prepayment, pursuant to this Section, the Agent shall remit such payment in
like funds as received as follows: (a) in the case of the Parent Facility, (i)
in the case of the Parent Commitment Fees and the Letter of Credit Commissions,
to each Lender according to its Parent Commitment Percentage, and (ii) in the
case of principal and interest on the Revolving Credit Loans, to each Lender pro
rata according to its Parent Outstanding Percentage of the amount of principal
or interest, as the case may be, which is then due and payable to the Lenders on
account of Revolving Credit Loans, (b) in the case of the GP Canada Facility, to
each Lender according to its GP Canada Outstanding Percentage of the amount of
principal or interest, as the case may be, which is due and payable to the
Lenders on account of Term Loans.
(b) If any payment hereunder, under the Notes or under any Reimbursement
Agreement shall be due and payable on a day which is not a Business Day, the due
date thereof (except as otherwise provided in the definition of Interest Period)
shall be extended to the next Business Day and (except with respect to payments
in respect of the Fees) interest shall be payable at the applicable rate
specified herein during such extension, provided, however that if such next
Business Day is after (i) the Parent Maturity Date in the case of payments in
connection with the Parent Facility, or (ii) the GP Canada Maturity Date in the
case of payments in connection with the GP Canada Facility, any such payment
shall be due on the immediately preceding Business Day. However, in the case of
the GP Canada Facility, if the immediately preceding Business Day is not at
<PAGE>
least five years and one day after the GP Canada Borrowing Date, the payment(s)
shall be due and payable on the next Business Day which is at least five years
and one day after the GP Canada Borrowing Date.
2.11 Cash Collateral Accounts
(a) At, or at any time before, the time Parent shall be required to make a
deposit into the "Parent Cash Collateral Account" defined below, the Agent shall
establish and maintain at its offices at 1185 Avenue of the Americas, New York,
New York in the name of the Parent but under the sole dominion and control of
the Agent, a separate cash collateral account designated as "GP Strategies
Corporation Cash Collateral Account" (collectively the "Parent Cash Collateral
Account"). Parent may from time to time make one or more deposits into the
Parent Cash Collateral Account. Parent hereby pledges to the Agent for its
benefit, the benefit of the Issuing Bank and the pro rata benefit of the
Lenders, a Lien on and security interest in the Parent Cash Collateral Account
and all sums at any time and from time to time on deposit therein (the Parent
Cash Collateral Account, together with all sums on deposit therein, being
sometimes hereinafter collectively referred to as the "Parent Cash Collateral"),
as first priority collateral security for the prompt payment in full when due,
whether at stated maturity, by acceleration or otherwise of all the Parent
Obligations. Parent agrees that at any time and from time to time at its
expense, it will promptly execute and deliver to the Agent any further
instruments and documents, and take any further actions, that may be necessary
or that the Agent may reasonably request, in order to perfect and protect any
first priority security interest granted or purported to be granted hereby or to
enable the Agent to exercise and enforce its rights and remedies hereunder with
respect to any Parent Cash Collateral. Parent agrees that it will not (i) sell
or otherwise dispose of any of the Parent Cash Collateral, or (ii) create or
permit to exist any Lien upon any of the Parent Cash Collateral, except for
Permitted Liens. Parent hereby authorizes the Agent, promptly after each drawing
under any Letter of Credit shall become due and payable and at any time any
other Parent Obligations shall be due and owing, to apply any and all cash on
deposit in the Parent Cash Collateral Account towards the reimbursement of the
Issuing Bank for all sums paid in respect of such drawing, and all other such
Parent Obligations which shall then be due and owing.
(b) The Agent shall establish and maintain at its offices at 1185 Avenue of
the Americas, New York, New York in the name of GP Canada but under the sole
dominion and control of the Agent, a separate cash collateral account designated
as "General Canada Physics Ltd. Cash Collateral Account" (collectively the "GP
Canada Cash Collateral Account"). GP Canada may from time to time, but shall in
no event be required to, make one or more deposits into the GP Canada Cash
Collateral Account. GP Canada hereby pledges to the Agent for its benefit, the
benefit of the Issuing Bank and the pro rata benefit of the Lenders, a Lien on
and security interest in the GP Canada Cash Collateral Account and all sums at
any time and from time to time on deposit therein (the GP Canada Cash Collateral
<PAGE>
Account, together with all sums on deposit therein, being sometimes hereinafter
collectively referred to as the "GP Canada Cash Collateral"), as first priority
collateral security for the prompt payment in full when due, whether at stated
maturity, by acceleration or otherwise of all the GP Canada Obligations. GP
Canada agrees that at any time and from time to time at its expense, it will
promptly execute and deliver to the Agent any further instruments and documents,
and take any further actions, that may be necessary or that the Agent may
reasonably request, in order to perfect and protect any first priority security
interest granted or purported to be granted hereby or to enable the Agent to
exercise and enforce its rights and remedies hereunder with respect to any GP
Canada Cash Collateral. GP Canada agrees that it will not (i) sell or otherwise
dispose of any of the GP Canada Cash Collateral, or (ii) create or permit to
exist any Lien upon any of the GP Canada Cash Collateral, except for Permitted
Liens. GP Canada hereby authorizes the Agent, at any time any GP Canada
Obligations shall be required to be paid, to apply any and all cash on deposit
in the GP Canada Cash Collateral Account towards all such GP Canada Obligations
which shall then be due and owing.
2.12 Defaulting Lender
(a) Notwithstanding anything to the contrary herein, in the event any
Lender (x) has refused (which refusal constitutes a breach by such Lender of its
obligations under this Agreement) to make available its portion of any Loan or
(y) notifies either the Agent or any Borrower that it does not intend to make
available its portion of any Loan (if the actual refusal would constitute a
breach by such Lender of its obligations under this Agreement) (each a "Lender
Default"), all rights and obligations hereunder of such Lender (a "Defaulting
Lender") as to which a Lender Default is in effect and of the other parties
hereto shall be modified to the extent of the express provisions of this Section
2.12 while such Lender Default remains in effect.
(b) Loans shall be incurred pro rata from Lenders (the "Non-Defaulting
Lenders") which are not Defaulting Lenders based on their respective Commitment
Percentages with respect to such Loans, and no Commitment Percentage of any
Lender or any pro rata share of any Loans required to be advanced by any Lender
shall be increased as a result of such Lender Default. Amounts received in
respect of principal of any type of Loans shall be applied to reduce the
applicable Loans of each Lender pro rata based on (i) with respect to the Parent
Facility, the Parent Outstanding Percentage at the time of such application and
(ii) with respect to the GP Canada Facility, subject to Section 2.2(c), the GP
Canada Outstanding Percentage at the time of such application; provided, that
such amount shall not be applied to any Loans of a Defaulting Lender at any time
when, and to the extent that, the aggregate amount of Loans of any
Non-Defaulting Lender exceeds such Non-Defaulting Lender's Commitment Percentage
of all Loans then outstanding.
(c) A Defaulting Lender shall not be entitled to give instructions to the
Agent or to approve, disapprove, consent to or vote on any matters relating to
this Agreement and the other Loan Documents. All amendments, waivers and other
<PAGE>
modifications of this Agreement and the other Loan Documents may be made without
regard to a Defaulting Lender and, for purposes of the definition of "Required
Lenders", a Defaulting Lender shall be deemed not to be a Lender and not to have
Loans outstanding.
(d) Other than as expressly set forth in this Section 2.12, the rights and
obligations of a Defaulting Lender (including, without limitation, the
obligation to indemnify the Agent) and the other parties hereto shall remain
unchanged. To the extent the Borrower incurs any costs directly related to a
repayment under Section 2.3(c), such Defaulting Lender shall reimburse such
Borrower for all such costs. Nothing in this Section 2.12 shall be deemed to
release any Defaulting Lender from its obligations under this Agreement and the
other Loan Documents, shall alter such obligations, shall operate as a waiver of
any default by such Defaulting Lender hereunder, or shall prejudice any rights
which any Borrower, the Agent or any Lender may have against any Defaulting
Lender as a result of any default of such Defaulting Lender hereunder.
(e) In the event a Defaulting Lender cures to the satisfaction of the Agent
the breach which caused a Lender to become a Defaulting Lender, such Defaulting
Lender shall no longer be a Defaulting Lender and shall be treated as a Lender
under this Agreement.
2.13 Recordation of Mortgages.
The Agent shall not record the Mortgage on the MXL Property unless the MXL
Sale/Leaseback is not consummated on or before October 15, 2000 on the terms set
forth in the Letter of Intent; provided, that, if the MXL Sale/Leaseback is not
so consummated on or before October 15, 2000, the Agent shall promptly after
such date record the Mortgage on the MXL Property and all costs and expenses
thereof or incurred by the Agent in connection therewith shall be borne by
Parent. The Mortgage on the Pawling Property and the Reservoir Property may be
recorded on or any time after the date on which the originals thereof are
furnished to the Agent and all costs and expenses thereof or incurred by the
Agent in connection therewith shall be borne by Parent.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1 Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section 3.1(b) and
3.1(c), prior to maturity, the Revolving Credit Loans and Term Loans shall bear
interest on the outstanding principal balance thereof at the applicable interest
rate or rates per annum set forth below:
<PAGE>
ADVANCES RATE
Each Parent ABR Advance Alternate Base Rate plus
the Applicable Margin.
Each GP Canada ABR Advance Alternate Base Rate plus 1.25%.
Each Parent Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus the
Applicable Margin.
Each GP Canada Eurodollar Eurodollar Rate for the
Advance applicable Interest Period plus 2.75%.
(b) Late Charges. Upon the occurrence and during the continuance of an
Event of Default, the unpaid principal balance of the Revolving Credit Loans and
Term Loans shall bear interest, payable on demand, at a rate per annum (whether
before or after the entry of a judgment thereon) equal to 2% plus the rate which
would otherwise be applicable under Section 3.1(a), and any overdue
Reimbursement Obligation, interest or other amount payable under the Loan
Documents shall bear interest, payable on demand, at a rate per annum (whether
before or after the entry of a judgment thereon) equal to the Alternate Base
Rate plus the Applicable Margin applicable to ABR Advances plus 2%.
(c) Highest Lawful Rate. At no time shall the interest rate payable on the
Loans of any Lender, together with the Fees and all other amounts payable under
the Loan Documents to such Lender, to the extent the same are construed to
constitute interest, exceed the Highest Lawful Rate applicable to such Lender.
If with respect to any Lender for any period during the term of this Agreement,
any amount paid to such Lender under the Loan Documents, to the extent the same
shall (but for the provisions of this Section) constitute or be deemed to
constitute interest, would exceed the maximum amount of interest permitted by
the Highest Lawful Rate applicable to such Lender during such period (such
amount being hereinafter referred to as an "Unqualified Amount"), then (i)
subject to Section 2.2(c), such Unqualified Amount shall be applied or shall be
deemed to have been applied as a prepayment of the Loans of such Lender, and
(ii) if in any subsequent period during the term of this Agreement, all amounts
payable under the Loan Documents to such Lender in respect of such period which
constitute or shall be deemed to constitute interest shall be less than the
maximum amount of interest permitted by the Highest Lawful Rate applicable to
such Lender during such period, then the applicable Borrower shall pay to such
Lender, as interest and not in repayment of principal, in respect of such period
an amount (each a "Compensatory Interest Payment") equal to the lesser of (x) a
sum which, when added to all such amounts, would equal the maximum amount of
interest permitted by the Highest Lawful Rate applicable to such Lender during
such period, and (y) an amount equal to the Unqualified Amount less all other
Compensatory Interest Payments made in respect thereof.
<PAGE>
(d) Interest Act Compliance. For purpose of the Interest Act (Canada), (i)
whenever any interest or fee under this Agreement is calculated using a rate
based on a year of 360 days or 365 days, as the case may be, the rate determined
pursuant to such calculation, when expressed as an annual rate, is equivalent to
(x) the applicable rate based on a year of 360 days or 365 days, as the case may
be, (y) multiplied by the actual number of days in the calendar year in which
the period for which such interest or fee is payable (or compounded) ends, and
(z) divided by 360 or 365, as the case may be, (ii) the principle of deemed
reinvestment of interest does not apply to any interest calculation under this
Agreement, and (iii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or yields.
(e) In General. Interest on ABR Advances and on Eurodollar Advances shall
be calculated on the basis of a 360-day year, in each case, for the actual
number of days elapsed. Except as otherwise provided in Section 3.1(b), interest
shall be payable in arrears on each Interest Payment Date and upon each payment
(including prepayment) of the Loans. Any change in the interest rate on the
Loans resulting from a change in the Alternate Base Rate or reserve requirements
shall become effective as of the opening of business on the day on which such
change shall become effective. The Agent shall, as soon as practicable, notify
each Borrower and the Lenders of the effective date and the amount of each such
change in the Fleet Rate, but any failure to so notify shall not in any manner
affect the obligation of Parent and GP Canada to pay interest on the Loans in
the amounts and on the dates required. Each determination of the Alternate Base
Rate or a Eurodollar Rate by the Agent pursuant to this Agreement shall be
conclusive and binding on all parties hereto absent manifest error. Each
Borrower acknowledges that to the extent interest payable on ABR Advances is
based on the Fleet Rate, such rate is only one of the bases for computing
interest on loans made by the Lenders, and by basing interest payable on ABR
Advances on the Fleet Rate, the Lenders have not committed to charge, and the
Borrowers have not in any way bargained for, interest based on a lower or the
lowest rate at which the Lenders may now or in the future make loans to other
borrowers.
(f) Further Adjustments to Applicable Margins and Applicable Percentages.
(i) If at the end of any fiscal quarter of Parent there is not Minimum
Excess Availability, the Applicable Margin for Parent ABR Advances and Parent
Eurodollar Advances and the Applicable Fee Percentage for the Parent Letter of
Credit Commissions for Standby Letters of Credit shall each immediately
increase, on a cumulative basis, by .25% from the rate that was theretofore in
effect, provided, that, if at the end of any subsequent fiscal quarter of Parent
there is Minimum Excess Availability, the Applicable Margin for Parent ABR
Advances and Parent Eurodollar Advances and the Applicable Fee Percentage for
Letter of Credit Commissions for Standby Letters of Credit shall each
immediately decrease to those initially provided in the table under the
definitions of "Applicable Fee Percentage" and "Applicable Margin", as the case
may be, subject to further increase (in the manner heretofore provided) at the
end of each fiscal quarter of Parent thereafter if there is not maintained
Minimum Excess Availability.
<PAGE>
(ii) To the extent that there is Prompt Compliance, the Applicable Margin
for Parent ABR Advances and Parent Eurodollar Advances and the Applicable Fee
Percentage for Letter of Credit Commissions for Standby Letters of Credit shall
each decrease by .25% from those initially set forth in the table under the
definitions of "Applicable Fee Percentage" and "Applicable Margin", which
Applicable Margins and Applicable Fee Percentage shall be maintained as long as
there remains Minimum Excess Availability (when and as required); provided,
that, if at any time Minimum Excess Availability is not so maintained, the
Applicable Margin for Parent ABR Advances and Parent Eurodollar Advances and the
Applicable Fee Percentage for Letter of Credit Commissions for Standby Letters
of Credit shall each be immediately increased to .25% above those initially set
forth in the table under the definitions of "Applicable Fee Percentage" and
"Applicable Margin", as the case may be, subject to further increase or
decrease, as the case may be, in the manner provided under Section 3.1(f)(i), at
the end of each fiscal quarter of Parent thereafter as a result of adjustments
due to the Minimum Excess Availability requirements set forth in subsection
3.1(f)(i).
3.2 Fees
(a) Parent Commitment Fee. Parent agrees to pay to the Agent, for the
account of the Lenders in accordance with each Lender's Parent Commitment
Percentage, a fee (the "Parent Commitment Fee"), during the Parent Commitment
Period, at a rate per annum equal to the Applicable Fee Percentage on the
average daily Adjusted Available Parent Commitment Amount. The Parent Commitment
Fee shall be payable quarterly in arrears on the last day of each March, June,
September and December of each year, commencing on the first such day following
the Effective Date, and ending on the date that the Parent Commitments shall
expire or otherwise terminate. The Parent Commitment Fee shall be calculated on
the basis of a 360 day year for the actual number of days elapsed.
(b) Letter of Credit Commissions; Fronting Fees and Additional Fees. Parent
agrees to pay to (i) the Agent, for the account of the Lenders in accordance
with each Lender's Parent Commitment Percentage, commissions (the "Letter of
Credit Commissions") with respect to the Letters of Credit for the period from
and including the date of issuance of each thereof to and including the
expiration date thereof, at a rate per annum equal to (x) with respect to
Standby Letters of Credit, the Applicable Fee Percentage applicable thereto in
effect on the date of issuance thereof, and (y) with respect to Trade Letters of
Credit the Applicable Fee Percentage applicable thereto (but in no event less
than $75) in effect on the date of issuance thereof, in each case on the average
daily maximum amount available under any contingency to be drawn under such
Letter of Credit, and (ii) to the Issuing Bank for its own account, (x) a Letter
of Credit fronting fee in an amount equal to the original face amount of each
Letter of Credit multiplied by one eighth of one percent (1/8%) per annum,
payable upon issuance of each such Letter of Credit, and (y) its standard fees
and charges customarily charged to customers similar to Parent with respect to
any Letter of Credit. The Letter of Credit Commissions shall be (A) calculated
<PAGE>
on the basis of a 360-day year for the actual number of days elapsed and (B)
payable quarterly in arrears on the last day of each March, June, September and
December of each year and on the Parent Maturity Date.
(c) Agent's Fees. The Borrowers, on a joint and several basis, agree to pay
to the Agent, for its own account, such other fees as have been agreed to in
writing by one or more Borrower and the Agent.
(d) Amendment Fee. Parent agrees to pay (or have paid) to the Agent, for
the account of the Lenders in accordance with each Lender's Parent Commitment
Percentage, a fee (the "Amendment Fee") equal to .25% of each Lender's Parent
Commitment Amount plus .25% of each Lender's Term Loan then outstanding on the
Closing Date.
3.3 Conversions
(a) A Borrower may elect from time to time to convert one or more of its
Eurodollar Advances to ABR Advances by giving the Agent at least one Business
Day's prior irrevocable notice of such election, specifying the Advance to be
converted, provided, that any such conversion of Eurodollar Advances shall only
be made on the last day of the Interest Period applicable thereto. In addition,
a Borrower may elect from time to time to convert its (i) ABR Advances to
Eurodollar Advances and (ii) Eurodollar Advances to new Eurodollar Advances by
selecting a new Interest Period therefor, in each case by giving the Agent at
least three Business Days' prior irrevocable notice of such election, in the
case of a conversion to Eurodollar Advances, specifying the amount to be so
converted and the initial Interest Period relating thereto, provided that any
such conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such conversion of Eurodollar Advances to new Eurodollar
Advances shall only be made on the last day of the Interest Period applicable to
the Eurodollar Advances which are to be converted to such new Eurodollar
Advances. Each such notice shall be irrevocable and shall be given by the
delivery by telecopy of a Notice of Conversion (confirmed promptly, and in any
event within five Business Days), by the delivery to the Agent of a Notice of
Conversion manually signed by the applicable Borrower. The Agent shall promptly
provide the applicable Lenders with notice of each such election. Advances may
be converted pursuant to this Section in whole or in part, provided that the
amount to be converted by a Borrower to each Eurodollar Advance, when aggregated
with any Eurodollar Advance to be made to such Borrower on such date in
accordance with Section 2.3 and having the same Interest Period as such first
Eurodollar Advance, shall equal no less than $1,000,000 or such amount plus a
whole multiple of $100,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the contrary, upon the
occurrence and during the continuance of a Default or an Event of Default, no
Borrower shall have any right to elect to convert any existing ABR Advance to a
<PAGE>
new Eurodollar Advance or to convert any existing Eurodollar Advance to a new
Eurodollar Advance. In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the Interest Period applicable to
such Eurodollar Advance.
(c) Each conversion shall be effected by each Lender by reflecting the Type
of Loan from the Advance being converted to the new ABR Advance or Eurodollar
Advance, as the case may be, (it being understood that any such conversion shall
not constitute a borrowing. Each conversion of an Advance does not reflect a
repayment of the converted Advance or an additional borrowing, but a
continuation of the original obligation in full force and effect.
3.4 Concerning Interest Periods
Notwithstanding any other provision of any Loan Document:
(a) If the applicable Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or 3.3, as the case may be, in connection with any
borrowing of new Loans or expiration of an Interest Period with respect to any
existing Eurodollar Advance, the amount of the Loans subject to such borrowing
or such existing Eurodollar Advance shall thereafter be a Eurodollar Advance for
one or more Interest Periods of one month until such time, if any, as a new
Eurodollar Advance shall have been elected pursuant to Section 3.3.
(b) No Interest Period selected in respect of the borrowing or conversion
of any Eurodollar Advance shall end after the Parent Maturity Date in the case
of the Parent Facility or the GP Canada Maturity Date in the case of the GP
Canada Facility.
(c) The Borrowers shall not be permitted to have more than twenty
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Borrowing Request shall
constitute the making of one Eurodollar Advance for the purpose of calculating
such limitation.
3.5 Indemnification for Loss
Notwithstanding anything contained herein to the contrary, if a Borrower
shall fail to borrow or convert on a Borrowing Date or Conversion Date after it
shall have given notice to do so in which it shall have requested a Eurodollar
Advance, or if a Eurodollar Advance shall be terminated for any reason prior to
the last day of the Interest Period applicable thereto, or if, while a
Eurodollar Advance is outstanding, any repayment or prepayment of such
Eurodollar Advance is made for any reason (including as a result of acceleration
or illegality) on a date which is prior to the last day of the Interest Period
applicable thereto, such Borrower agrees to indemnify each Lender against, and
to pay on demand directly to such Lender, any loss or expense suffered by such
Lender as a result of such failure to borrow or convert, termination, repayment
or prepayment, including an amount, if greater than zero, equal to:
<PAGE>
A x (B-C) x D
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal), applicable to such
Eurodollar Advances;
"C" equals the Eurodollar Rate (expressed as a decimal), in effect on or
about the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid, as the case may be, on or about such date, for
deposits in an amount equal approximately to such Lender's pro rata share of the
Affected Principal Amount with an Interest Period equal approximately to the
applicable Remaining Interest Period, as determined by such Lender;
"D" equals the number of days from and including the first day of the
applicable Remaining Interest Period to but excluding the last day of such
Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in connection
with such Eurodollar Advance, including in liquidating or employing deposits
acquired to fund or maintain the funding of its pro rata share of the Affected
Principal Amount, or redeploying funds prepaid or repaid, in amounts which
correspond to its pro rata share of the Affected Principal Amount. Each
determination by the Agent or a Lender pursuant to this Section shall be
conclusive and binding on each Borrower absent manifest error.
3.6 Capital Adequacy
If the amount of capital required or expected to be maintained by any
Lender or the Issuing Bank or any Person directly or indirectly owning or
controlling such Lender or the Issuing Bank (each a "Control Person"), shall be
affected by the occurrence of a Regulatory Change and such Lender or the Issuing
Bank shall have determined that such Regulatory Change shall have had or will
thereafter have the effect of reducing (i) the rate of return on such Lender's,
the Issuing Bank's or such Control Person's capital, or (ii) the asset value to
such Lender, the Issuing Bank or such Control Person of the Revolving Credit
Loans made or maintained by such Lender, or of the Reimbursement Obligations or
any participation therein, in any case to a level below that which such Lender,
the Issuing Bank or such Control Person could have achieved or would thereafter
be able to achieve but for such Regulatory Change (after taking into account
such Lender's, the Issuing Bank's or such Control Person's policies regarding
capital adequacy) by an amount deemed by such Lender or the Issuing Bank to be
material to such Lender, the Issuing Bank or Control Person, then, within ten
<PAGE>
days after demand by such Lender or the Issuing Bank, each Borrower shall pay to
such Lender, the Issuing Bank or such Control Person such additional amount or
amounts as shall be sufficient to compensate such Lender, the Issuing Bank or
such Control Person, as the case may be, for such reduction.
3.7 Reimbursement for Increased Costs
If any Lender, the Agent or the Issuing Bank shall determine that a
Regulatory Change:
(a) does or shall subject it to any Taxes of any kind whatsoever with
respect to any Eurodollar Advances or its obligations under this Agreement to
make Eurodollar Advances, or change the basis of taxation of payments to it of
principal, interest or any other amount payable hereunder in respect of its
Eurodollar Advances, or impose on the Agent, the Issuing Bank or such Lender any
other condition regarding the Letters of Credit including any Taxes required to
be withheld from any amounts payable under the Loan Documents (except for, in
each case, imposition of, or change in the rate of, Tax on the Income of such
Lender); or
(b) does or shall impose, modify or make applicable any reserve, special
deposit, compulsory loan, assessment, increased cost or similar requirement
against assets held by, or deposits of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender in
respect of its Eurodollar Advances which is not otherwise included in the
determination of a Eurodollar Rate, or against any Letters of Credit issued by
the Issuing Bank or participated in by any Lender; and the result of any of the
foregoing is to increase the cost to such Lender of making, renewing, converting
or maintaining its Eurodollar Advances or its commitment to make such Eurodollar
Advances, or to reduce any amount receivable hereunder in respect of its
Eurodollar Advances, or to increase the cost to the Issuing Bank of issuing or
maintaining the Letters of Credit or the cost to any Lender of participating
therein or the cost to the Agent or the Issuing Bank of performing its
respective functions hereunder with respect to the Letters of Credit, then, in
any such case, each Borrower shall pay such Lender, the Agent, or the Issuing
Bank, as the case may be, within ten days after demand therefor, such additional
amounts as is sufficient to compensate such Lender, the Issuing Bank or the
Agent, as the case may be, for such additional cost or reduction in such amount
receivable which such Lender, the Issuing Bank or the Agent, as the case may be,
deems to be material as determined by such Lender, the Issuing Bank or the
Agent, as the case may be; provided, however, that nothing in this Section shall
require the Borrowers to indemnify the Lenders, the Agent, or the Issuing Bank,
as the case may be, with respect to withholding Taxes for which the Borrowers
have no obligation under Section 3.10. No failure by any Lender or the Agent, or
the Issuing Bank to demand, and no delay in demanding, compensation for any
increased cost shall constitute a waiver of its right to demand such
compensation at any time. A statement setting forth the calculations of any
additional amounts payable pursuant to this Section submitted by a Lender, the
Agent or the Issuing Bank, as the case may be, to a Borrower shall be conclusive
absent manifest error.
<PAGE>
3.8 Illegality of Funding
Notwithstanding any other provision hereof, if any Lender shall reasonably
determine that any law, regulation, treaty or directive, or any change therein
or in the interpretation or application thereof, shall make it unlawful for such
Lender to make or maintain any Eurodollar Advance as contemplated by this
Agreement, such Lender shall promptly notify each Borrower and the Agent
thereof, and (i) the commitment of such Lender to make such Eurodollar Advances
or convert ABR Advances to Eurodollar Advances shall forthwith be suspended,
(ii) such Lender shall fund its portion of each requested Eurodollar Advance as
an ABR Advance and (iii) such Lender's Loans then outstanding as such Eurodollar
Advances, if any, shall be converted automatically to ABR Advances on the last
day of the then current Interest Period applicable thereto or at such earlier
time as may be required by law. If the commitment of any Lender with respect to
Eurodollar Advances is suspended pursuant to this Section and such Lender shall
have obtained actual knowledge that it is once again legal for such Lender to
make or maintain Eurodollar Advances, such Lender shall promptly notify the
Agent and each Borrower thereof and, upon receipt of such notice by each of the
Agent and each Borrower, such Lender's commitment to make or maintain Eurodollar
Advances shall be reinstated.
3.9 Substituted Interest Rate
In the event that (i) the Agent shall have determined (which determination
shall be conclusive and binding upon each Borrower) that by reason of
circumstances affecting the interbank eurodollar market either adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate applicable
pursuant to Section 3.1 or (ii) the Required Lenders shall have notified the
Agent that they have determined (which determination shall be conclusive and
binding on each Borrower) that the applicable Eurodollar Rate will not
adequately and fairly reflect the cost to such Lenders of maintaining or funding
loans bearing interest based on such Eurodollar Rate, with respect to any
portion of the Loans that a Borrower has requested be made as Eurodollar
Advances or Eurodollar Advances that will result from the requested conversion
of any portion of the Advances into or of Eurodollar Advances (each, an
"Affected Advance"), the Agent shall promptly notify each Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested
Borrowing Date or Conversion Date for such Affected Advances. If the Agent shall
give such notice, (a) any Affected Advances shall be made as ABR Advances, (b)
the Advances (or any portion thereof) that were to have been converted to
<PAGE>
Affected Advances shall be converted to ABR Advances and (c) any outstanding
Affected Advances shall be converted, on the last day of the then current
Interest Period with respect thereto, to ABR Advances. Until any notice under
clauses (i) or (ii), as the case may be, of this Section has been withdrawn by
the Agent (by notice to each Borrower promptly upon either (x) the Agent having
determined that such circumstances affecting the interbank eurodollar market no
longer exist and that adequate and reasonable means do exist for determining the
Eurodollar Rate pursuant to Section 3.1 or (y) the Agent having been notified by
such Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances, no further Eurodollar Advances shall be
required to be made by the Lenders, nor shall any Borrower have the right to
convert all or any portion of the Loans to or as Eurodollar Advances.
3.10 Taxes
(a) Payments to be Free and Clear. Except as otherwise expressly required
by applicable law, all payments by each Credit Party under the Loan Documents to
or for the account of the Agent, the Issuing Bank or any Lender (each, an
"Indemnified Tax Person") shall be made free and clear of, and without any
deduction or withholding for or on account of, any and all present or future
income, stamp or other taxes, levies, imposts, duties, fees, assessments,
deductions, withholdings, or other charges of whatever nature, now or hereafter
imposed, levied, collected, withheld, or assessed by any jurisdiction, or by any
department, agency, state, province or other political subdivision thereof or
therein (collectively, "Taxes"), excluding as to any Indemnified Tax Person, (i)
a Tax on the Income imposed on such Indemnified Tax Person and (ii) any
interest, fees, additions to tax or penalties for late payment thereof (each
such nonexcluded Tax, an "Indemnified Tax"). For purposes hereof, "Tax on the
Income" shall mean, as to any Person, a Tax imposed by one of the following
jurisdictions or by any political subdivision or taxing authority thereof: (i)
the United States, (ii) Canada, (iii) the jurisdiction in which such Person is
organized, (iv) the jurisdiction in which such Person's principal office or
lending offices are located; which Tax is an income tax or franchise tax imposed
on all or part of the net income or net profits of such Person or which Tax
represents interest, fees, or penalties for late payment of such an income tax
or franchise tax.
(b) Grossing Up of Payments. If any Credit Party or any other Person is
required by any law, rule, regulation, order, directive, treaty or guideline to
make any deduction or withholding (which deduction or withholding would
constitute an Indemnified Tax) from any amount required to be paid by any Credit
Party to or on behalf of an Indemnified Tax Person under any Loan Document, then
(i) such Credit Party shall pay such Indemnified Tax before the date on which
penalties attach thereto, such payment to be made for its own account (if the
liability to pay is imposed on such Credit Party) or on behalf of and in the
name of such Indemnified Tax Person (if the liability is imposed on such
Indemnified Tax Person), and (ii) the sum payable to such Indemnified Tax Person
shall be increased as may be necessary so that after making all required
deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section) such Indemnified Tax Person receives
an amount equal to the sum it would have received had no such deductions or
withholdings been made; provided, however, that no such additional amount shall
<PAGE>
be payable if any such Taxes are required to be paid by reason only of the
payees having some connection with a Canadian taxing jurisdiction, other than
the receipt of the payments to be made under this Agreement and the holding and
disposition of the Term Notes issued pursuant to this Agreement. Notwithstanding
the foregoing, as to the Parent Facility only, no additional amount shall be
required to be paid to any Indemnified Tax Person under clause (ii) of the
preceding sentence except to the extent that the requirement to deduct or
withhold or the amount thereof is attributable to (i) the introduction after the
Effective Date of any law, rule or regulation requiring any Person to withhold
or deduct any amount from any payment under the Loan Documents in respect of an
Indemnified Tax or (ii) any increase after the Effective Date in the rate of any
such withholding or deduction.
(c) Other Taxes. Each Credit Party agrees, to pay any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or any amendment, supplement or modification of, or
any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents (collectively, the "Other Taxes").
(d) Evidence of Payment. Within 30 days after the reasonable request
therefor by the Agent in connection with any payment of Indemnified Taxes or
Other Taxes, each Credit Party will furnish to the Agent the original or a
certified copy of an official receipt from the jurisdiction to which payment is
made evidencing payment thereof or, if unavailable, a certificate from a
Financial Officer that states that such payment has been made and that sets
forth the date and amount of such payment.
(e) U.S. Tax Certificates. Each Indemnified Tax Person that is organized
under the laws of any jurisdiction other than the United States or any political
subdivision thereof that is exempt from United States federal withholding tax,
or that is subject to such tax at a reduced rate under an applicable treaty,
with respect to payments under the Loan Documents shall deliver to the Agent for
transmission to each Borrower, on or prior to the Effective Date (in the case of
each Indemnified Tax Person listed on the signature pages hereof) or on the
effective date of the Assignment and Acceptance Agreement or other document
pursuant to which it becomes an Indemnified Tax Person (in the case of each
other Indemnified Tax Person), and at such other times as may be required by
applicable law, Internal Revenue Form 4224 or Form 1001 or any other
certificates or documents required under United States law to establish
entitlement to such exemption or reduced rate. In addition, each Indemnified Tax
Person shall deliver the forms described above promptly upon the obsolescence or
invalidity of any form previously delivered by such Indemnified Tax Person. No
Credit Party shall be required to pay any additional amount to any such
Indemnified Tax Person under subsection (b) above if such Indemnified Tax Person
shall have failed to satisfy the requirements of the two immediately preceding
<PAGE>
sentences; provided that if such Indemnified Tax Person shall have satisfied
such requirements on the Effective Date (in the case of each Indemnified Tax
Person listed on the signature pages hereof) or on the effective date of the
Assignment and Acceptance Agreement or other document pursuant to which it
became an Indemnified Tax Person (in the case of each other Indemnified Tax
Person), nothing in this subsection shall relieve any Credit Party of its
obligation to pay any additional amounts pursuant to subsection (b) to the
extent that, as a result of any change in applicable law or treaty, such
Indemnified Tax Person is no longer properly entitled to deliver certificates,
documents or other evidence at a subsequent date establishing the fact that such
Indemnified Tax Person is entitled to such exemption or reduced rate.
(f) In the event that an Indemnified Tax Person is entitled to receive a
refund of or credit for or remission or repayment of taxes withheld or paid
pursuant to this Section 3.10 ("Tax Credit"), which credit or refund is
identifiable by such Indemnified Tax Person as being a result of taxes withheld
in connection with sums payable hereunder or under any other Loan Document, such
Indemnified Tax Person shall use reasonable efforts to obtain the Tax Credit,
and upon receipt of such Tax Credit shall promptly notify the Agent and the
Borrowers and shall remit to the Borrowers the amount of such Tax Credit
(without interest) allocable to payments made hereunder or under the other Loan
Documents.
3.11 Option to Fund
Each Lender has indicated that, if a Borrower requests a Eurodollar
Advance, such Lender may wish to purchase one or more deposits in order to fund
or maintain its funding of its Commitment Percentage of such Eurodollar Advance
during the Interest Period with respect thereto; it being understood that the
provisions of this Agreement relating to such funding are included only for the
purpose of determining the rate of interest to be paid in respect of such
Eurodollar Advance and any amounts owing under Sections 3.5 and 3.7. Each Lender
shall be entitled to fund and maintain its funding of all or any part of each
Eurodollar Advance in any manner it sees fit, but all such determinations
hereunder shall be made as if each Lender had actually funded and maintained its
Commitment Percentage of each Eurodollar Advance during the applicable Interest
Period through the purchase of deposits in the London interbank market in an
amount equal to its Commitment Percentage of such Eurodollar Advance having a
maturity corresponding to such Interest Period. Any Lender may fund its
Commitment Percentage of each Eurodollar Advance from or for the account of any
branch or office of such Lender as such Lender may choose from time to time.
3.12 Replacement of Lenders
Notwithstanding the foregoing, if (i) any Lender shall request compensation
pursuant to Section 3.6 or a Borrower shall be required to pay any additional
amounts pursuant to Section 3.10 in respect of any Lender in an aggregate amount
in excess of $50,000, (ii) any Lender shall give any notice to a Borrower or the
Agent pursuant to Section 3.7, (iii) any Lender shall on two or more occasions
give a notice to the Borrowers or the Agent pursuant to Section 3.8, or (iv) any
<PAGE>
Lender shall be an uncured Defaulting Lender on two or more occasions; then, in
each such case, provided that no Default or Event of Default shall then exist
and be continuing, during the 90 day period after the receipt of such request or
notice, such Borrower may require that such Lender transfer all of its right,
title and interest under this Agreement and each of such Lender's Notes to any
lender identified by such Borrower (a "Proposed Lender") if such Proposed Lender
agrees to assume all of the obligations of such Lender for consideration equal
to the outstanding principal amount of such Lender's Loans and all unreimbursed
sums paid by such Lender under Section 2.8(b), together with interest thereon to
the date of such transfer and all other amounts payable under the Loan Documents
to such Lender on or prior to the date of such transfer (including any fees
accrued hereunder and any amounts which would be payable under Section 3.5 as if
all of such Lender's Loans were being prepaid in full on such date). Subject to
the execution and delivery of new Notes, an instrument of assignment and
assumption, and such other documents as such Lender may reasonably require, such
Proposed Lender shall be a "Lender" for all purposes hereunder. Without
prejudice to the survival of any other agreement of the Borrowers hereunder, the
agreements of the Borrowers contained in Sections 3.5, 3.6, 11.5, 11.8 and 11.10
(without duplication of any payments made to such Lender by one or both of the
Borrowers or the Proposed Lender) shall survive for the benefit of any Lender
replaced under this Section with respect to the time prior to such replacement.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Loans and the Issuing Bank to issue the Letters of Credit and
the Lenders to participate therein, each Borrower makes the following
representations and warranties to the Agent, the Issuing Bank and each Lender:
4.1 Subsidiaries; Capitalization
As of the Effective Date, GP Canada has no Subsidiaries and the Parent has
only the Subsidiaries set forth on, and the authorized, issued and outstanding
Capital Stock of the Parent and each such Subsidiary is as set forth on,
Schedule 4.1. As of the Effective Date, GP Canada is a wholly-owned Subsidiary
of Physics and except as set forth on Schedule 4.1, the shares of, or
partnership or other interests in, each Subsidiary of the Borrowers are owned
beneficially and of record by a Borrower or another Subsidiary of a Borrower,
are free and clear of all Liens and are duly authorized, validly issued, fully
paid and nonassessable. As of the Effective Date, except as set forth on
Schedule 4.1, (i) no Credit Party nor any of the Foreign Subsidiaries has issued
any securities convertible into, or options or warrants for, any common or
preferred equity securities thereof, (ii) there are no agreements, voting trusts
or understandings binding upon any Borrower or any of its Subsidiaries with
respect to the voting securities of any Borrower or any of its Subsidiaries or
affecting in any manner the sale, pledge, assignment or other disposition
thereof, including any right of first refusal, option, redemption, call or other
<PAGE>
right with respect thereto, whether similar or dissimilar to any of the
foregoing, and (iii) all of the outstanding Capital Stock of each Credit Party
or Foreign Subsidiary is owned by a Borrower or another Credit Party.
4.2 Existence and Power
Each Borrower, each Credit Party and each of the Foreign Subsidiaries is
duly incorporated, organized or formed and validly existing in good standing
under the laws of the jurisdiction of its incorporation or formation, has all
requisite power and authority to own its Property and to carry on its business
as now conducted, and is in good standing and authorized to do business in each
jurisdiction in which the nature of the business conducted therein or the
Property owned by it therein makes such qualification necessary, except where
such failure to qualify could not reasonably be expected to have a Material
Adverse Effect.
4.3 Authority and Execution
Each Borrower, each Credit Party and each of the Foreign Subsidiaries has
full legal power and authority to enter into, execute, deliver and perform the
terms of the Loan Documents to which it is a party all of which have been duly
authorized by all proper and necessary corporate, partnership or other
applicable action and is in full compliance with its Organizational Documents.
4.4 Binding Agreement
The Loan Documents (other than the Notes) constitute, and the Notes, when
issued and delivered pursuant hereto for value received, will constitute, the
valid and legally binding obligations of each Credit Party and each Foreign
Subsidiary, in each case, to the extent it is a party thereto, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws now or hereafter affecting the enforcement of creditors' rights generally
and except that the remedy of specific performance and other equitable remedies
are subject to judicial discretion.
4.5 Litigation
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of any Borrower, any other Credit Party or any of
the Foreign Subsidiaries) pending or, to the knowledge of any Borrower,
threatened against any Borrower, any other Credit Party or any of the Foreign
Subsidiaries or maintained by any Borrower, any other Credit Party or any of the
Foreign Subsidiaries or which may affect the Property of any Borrower, or any
other Credit Party or any of the Foreign Subsidiaries or any of their respective
Properties or rights, which (i) could reasonably be expected to have a Material
<PAGE>
Adverse Effect, (ii) call into question the validity or enforceability of, or
otherwise seek to invalidate, any Loan Document, or (iii) might, individually or
in the aggregate, materially and adversely affect any of the transactions
contemplated by any Loan Document.
4.6 Required Consents
Except for information filings required to be made in the ordinary course
of business which are not a condition to the performance by any Borrower or any
of its Subsidiaries under the Loan Documents to which it is a party, no consent,
authorization or approval of, filing with, notice to, or exemption by,
stockholders or holders of any other equity interest, any Governmental Authority
or any other Person is required to authorize, or is required in connection with
the execution, delivery or performance of the Loan Documents to which such
Borrower or any of its Subsidiaries is a party or is required as a condition to
the validity or enforceability of the Loan Documents to which any of the same is
a party. Each Borrower, prior to each borrowing by it hereunder, has obtained
all necessary approvals and consents of, and has filed or caused to be filed all
reports, applications, documents, instruments and information required to be
filed pursuant to all applicable laws, rules, regulations and requests of, all
Governmental Authorities in connection with such borrowing.
4.7 Absence of Defaults; No Conflicting Agreements
(a) No Borrower, no other Credit Party nor any of the Foreign Subsidiaries
is in default under any mortgage, indenture, contract or agreement to which it
is a party or by which it or any of its Property is bound, the effect of which
default could reasonably be expected to have a Material Adverse Effect. The
execution, delivery or carrying out of the terms of the Loan Documents will not
constitute a default under, or result in the creation or imposition of, or
obligation to create, any Lien upon any Property of any Borrower, any other
Credit Party or any of the Foreign Subsidiaries or result in a breach of or
require the mandatory repayment of or other acceleration of payment under or
pursuant to the terms of any such mortgage, indenture, contract or agreement.
(b) No Borrower nor any of its Subsidiaries is in default with respect to
any judgment, order, writ, injunction, decree or decision of any Governmental
Authority which default could reasonably be expected to have a Material Adverse
Effect.
4.8 Compliance with Applicable Laws
Each Borrower, each other Credit Party and each of the Foreign Subsidiaries
is complying in all material respects with all statutes, regulations, rules and
orders of all Governmental Authorities which are applicable to such Borrower
such other Credit Party or such Foreign Subsidiary, a violation of which could
reasonably be expected to have a Material Adverse Effect.
<PAGE>
4.9 Taxes
Each Borrower, each other Credit Party, and each of the Foreign
Subsidiaries has filed or caused to be filed all tax returns required to be
filed and has paid, or has made adequate provision for the payment of, all taxes
shown to be due and payable on said returns or in any assessments made against
it (other than those being contested as required under Section 7.4) which would
be material to such Borrower, such other Credit Party or such Foreign
Subsidiaries, and no tax Liens have been filed with respect thereto. The
charges, accruals and reserves on the books of each Borrower, each other Credit
Party and each of the Subsidiaries with respect to all taxes are, to the best
knowledge of each Borrower, adequate for the payment of such taxes, and no
Borrower knows of any unpaid assessment which is due and payable against any
Borrower, any other Credit Party or any of the Foreign Subsidiaries or any
claims being asserted which could reasonably be expected to have a Material
Adverse Effect, except such thereof as are being contested as required under
Section 7.4, and for which adequate reserves have been set aside in accordance
with GAAP.
4.10 Governmental Regulations
No Borrower, no other Credit Party, no Foreign Subsidiary nor any Person
controlled by, controlling, or under common control with, any Borrower or any of
its Subsidiaries, is subject to regulation under the Public Utility Holding
Company Act of 1935, as amended, the Federal Power Act, as amended, or the
Investment Company Act of 1940, as amended, or is subject to any statute or
regulation which prohibits or restricts the incurrence of Indebtedness,
including statutes or regulations relative to common or contract carriers or to
the sale of electricity, gas, steam, water, telephone, telegraph or other public
utility services.
4.11 Federal Reserve Regulations; Use of Loan Proceeds
No Borrower, no other Credit Party and nor any of the Foreign Subsidiaries
is engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of purchasing or carrying any Margin Stock.
After giving effect to the making of each Revolving Credit Loan and the issuance
of each Letter of Credit, Margin Stock will constitute less than 25% of the
assets (as determined by any reasonable method) of each Borrower and its
Subsidiaries.
4.12 Plans
(a) Each Employee Benefit Plan is in compliance with ERISA and the Code,
where applicable, in all material respects, except where non-compliance could
not reasonably be expected to have a Material Adverse Effect. As of the
Effective Date, (i) the amount of all Unfunded Pension Liabilities under the
Pension Plans, excluding any plan which is a Multi-employer Plan, does not
exceed $250,000, and (ii) the amount of the aggregate Unrecognized Retiree
<PAGE>
Welfare Liability under all applicable Employee Benefit Plans does not exceed
$250,000. Each Borrower and each of its Subsidiaries and ERISA Affiliates has
complied with the requirements of Section 515 of ERISA with respect to each
Pension Plan which is a Multi-employer Plan, except where non-compliance could
not reasonably be expected to have a Material Adverse Effect. As of the
Effective Date, no Borrower nor its Subsidiaries or ERISA Affiliates have any
liability under Section 4201 or 4204 of ERISA (including the obligation to
satisfy secondary liability as a result of purchaser default) and the aggregate
potential annual withdrawal liability payments, as determined in accordance with
Title IV of ERISA, of the Borrowers and their Subsidiaries and ERISA Affiliates
with respect to all Pension Plans which are Multi-employer Plans is
approximately $250,000. Each Borrower and its Subsidiaries and ERISA Affiliates
have, as of the Effective Date, made all contributions or payments to or under
each such Pension Plan required by law or the terms of such Pension Plan or any
contract or agreement with respect thereto, except where non-compliance could
not reasonably be expected to have a Material Adverse Effect. No material
liability to the PBGC has been, or is expected by any Borrower, any of its
Subsidiaries or any ERISA Affiliate to be, incurred by any Borrower, any such
Subsidiary or any ERISA Affiliate, except where non-compliance could not
reasonably be expected to have a Material Adverse Effect. Liability, as referred
to in this Section includes any joint and several liability. Each Employee
Benefit Plan which is a group health plan within the meaning of Section
5000(b)(1) of the Code is in material compliance with the continuation of health
care coverage requirements of Section 4980B of the Code, except where
non-compliance could not reasonably be expected to have a Material Adverse
Effect.
(b) All contributions required under applicable law have been made in
respect of all pension plans of GP Canada and each such pension plan is fully
funded on an ongoing and termination basis.
4.13 Financial Statements
The Parent heretofore delivered to the Agent and the Lenders copies of the
(i) audited Consolidated and unaudited Consolidating Balance Sheets of Parent as
of December 31, 1999 and the related Consolidated and Consolidating Statements
of Operations, Stockholder's Equity and Cash Flows for the fiscal years then
ended and (ii) the unaudited Consolidated and Consolidating Balance Sheets of
Parent as of March 31, 2000, and the related Consolidated and Consolidating
Statements of Operations, Stockholder's Equity and Cash Flows for the fiscal
quarters then ended (with the related notes and schedules, the "Financial
Statements"). The Financial Statements fairly present the Consolidated and
Consolidating financial condition and results of the operations of Parent and
its Subsidiaries as of the dates and for the periods indicated therein (subject,
in the case of such unaudited statements, to normal year-end adjustments) and
have been prepared in conformity with GAAP. Except as reflected in the Financial
Statements or in the notes thereto, neither Parent nor any of its Subsidiaries
has any obligation or liability of any kind (whether fixed, accrued, Contingent,
<PAGE>
unmatured or otherwise) which, in accordance with GAAP, should have been shown
on the Financial Statements and was not. Since the date of the Financial
Statements, Parent and each of its Subsidiaries has conducted its business only
in the ordinary course and there has been no Material Adverse Change.
4.14 Property
Each Borrower and each of the other Credit Parties and each Foreign
Subsidiary has good and marketable title to, or a valid leasehold interest in,
all of its real Property, and is the owner of, or has a valid lease of, all
personal property, in each case which is material to the Borrowers and their
Subsidiaries, taken as a whole, subject to no Liens, except Permitted Liens. All
leases of Property to any Borrower, any Credit Party or any of the Foreign
Subsidiaries are in full force and effect, such Borrower, such Credit Party or
such Foreign Subsidiary, as the case may be, enjoys quiet and undisturbed
possession under all leases of real property and no Borrower, any other Credit
Party nor any of the Foreign Subsidiaries is in default beyond any applicable
grace period of any provision thereof, the effect of which could reasonably be
expected to have a Material Adverse Effect.
4.15 Authorizations
Each Borrower, each Credit Party and each Foreign Subsidiary possesses or
has the right to use all franchises, licenses and other rights as are material
and necessary for the conduct of its business, and with respect to which it is
in compliance, with no known conflict with the valid rights of others which
could reasonably be expected to have a Material Adverse Effect. No event has
occurred which permits or, to the best knowledge of each Borrower, after notice
or the lapse of time or both, or any other condition, could reasonably be
expected to permit, the revocation or termination of any such franchise, license
or other right which revocation or termination could reasonably be expected to
have a Material Adverse Effect.
4.16 Environmental Matters
Except as set forth in Schedule 4.16, no Borrower, no other Credit Party
nor any of the Foreign Subsidiaries (i) has received written notice or otherwise
learned of any claim, demand, action, event, condition, report or investigation
indicating or concerning any potential or actual liability which individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect,
arising in connection with (A) any non-compliance with or violation of the
requirements of any applicable federal, state, provincial or local environmental
health or safety statute or regulation, or (B) the release or threatened release
of any toxic or hazardous waste, substance or constituent, or other substance
into the environment, (ii) to the best knowledge of each Borrower, has any
threatened or actual liability in connection with the release or threatened
<PAGE>
release of any toxic or hazardous waste, substance or constituent, or other
substance into the environment which individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect, (iii) has received
notice of any federal, state or provincial investigation evaluating whether any
remedial action is needed to respond to a release or threatened release of any
toxic or hazardous waste, substance or constituent or other substance into the
environment for which any Borrower any other Credit Party or any of the Foreign
Subsidiaries is or would be liable, which liability could reasonably be expected
to have a Material Adverse Effect, or (iv) has received notice that any
Borrower, any other Credit Party or any of the Foreign Subsidiaries is or may be
liable to any Person under the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9601 et seq., or
any analogous state or foreign law, which liability could reasonably be expected
to have a Material Adverse Effect. Each Borrower, each other Credit Party, each
of the Foreign Subsidiaries is in compliance with the financial responsibility
requirements of federal and state environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265, subpart H, and any
analogous state or foreign law, except in those cases in which the failure so to
comply would not reasonably be expected to have a Material Adverse Effect.
4.17 Solvency
Immediately after giving effect to the transactions contemplated by the
Loan Documents, Parent is and will be Solvent and the Borrowers together with
the other Credit Parties and each of the Foreign Subsidiaries on a consolidated
basis is and will be Solvent.
4.18 Absence of Certain Restrictions
No indenture, certificate of designation for preferred stock, agreement or
instrument to which any Borrower, any other Credit Party or any of the Foreign
Subsidiaries is a party (other than this Agreement), prohibits or limits in any
way, directly or indirectly the ability of any Credit Party or Foreign
Subsidiary to make Restricted Payments or repay any Indebtedness to such
Borrower or to another Subsidiary of such Borrower.
4.19 No Misrepresentation
No representation or warranty contained in any Loan Document and no
certificate or report from time to time furnished by any Borrower or any of its
Subsidiaries in connection with the transactions contemplated thereby, contains
or will contain a misstatement of material fact or omits or will omit to state a
material fact required to be stated in order to make the statements therein
contained not misleading in the light of the circumstances under which made,
provided that any projections or pro-forma financial information contained
therein are based upon good faith estimates and assumptions believed by the
Parent to be reasonable at the time made, it being recognized by the Agent, the
<PAGE>
Issuing Bank and the Lenders that such projections as to future events are not
to be viewed as facts, and that actual results during the period or periods
covered thereby may differ from the projected results.
4.20 Intangible Assets.
The only registered patents, registered trademarks, registered service
marks, registered trade names, or registered copyrights, or rights with respect
to the foregoing or any pending applications therefor of any Credit Party or any
Foreign Subsidiary are (i) the registered trade name "GP General Physics
Corporation" owned by Physics, (ii) two registered trademarks owned by MXL that
are not used in the ongoing business operations of any Credit Party or Foreign
Subsidiary, (iii) registered trademarks owned by certain of the Credit Parties
or Foreign Subsidiaries that relate solely to businesses being terminated, which
trademarks are not used in the ongoing business operations of any Credit Party
or Foreign Subsidiary and (iv) the registered trade name "GP" appearing inside
an oval. Except for the registered trade name "GP General Physics Corporation"
and the registered trade name "GP" appearing inside an oval, no registered
patent, registered trademark, registered service mark, registered trade name, or
registered copyright, or rights with respect to the foregoing are necessary to
conduct the business of any Credit Party or Foreign Subsidiary as now conducted
or as proposed to be conducted.
4.21 Material Subsidiaries; Systems Merger.
Each Material Subsidiary is either a Credit Party or a Foreign Subsidiary
and is listed on Schedule 4.21 hereto. Prior to the date hereof, Systems was
merged with and into Physics.
5. CONDITIONS TO EFFECTIVENESS OF AMENDMENT AND RESTATEMENT TO ORIGINAL
AGREEMENT
The conditions precedent fulfilled in connection with the obligation of
each Lender to extend credit under the Original Agreement are set forth in
Section 5 of the Original Agreement and Parent, GP Canada, the Agent and each of
the Lenders has copies of the documents referred to such Section 5. In addition
to the conditions precedent set forth in Section 6, the effectiveness of this
Agreement as an amendment and restatement of the Original Agreement, and the
obligation of each Lender to make Loans or the Issuing Bank to issue Letters of
Credit in connection herewith and the Lenders to participate therein, shall be
subject to the fulfillment of the following conditions precedent:
5.1 Evidence of Action
The Agent shall have received a certificate, dated the Closing Date, of the
Secretary or Assistant Secretary or other analogous counterpart of each Credit
Party (i) attaching a true and complete copy of the resolutions of its Managing
Person and of all documents evidencing all necessary corporate, partnership or
<PAGE>
similar action (in form and substance satisfactory to the Agent) taken by it to
authorize the Loan Documents to which it is a party and the transactions
contemplated thereby, (ii) attaching a true and complete copy of its
Organizational Documents (or a certificate of an authorized officer that the
Organizational Documents have not changed from those provided in connection with
the Original Agreement, (iii) setting forth the incumbency of its officer or
officers or other analogous counterpart who may sign the Loan Documents,
including therein a signature specimen of such officer or officers and (iv)
attaching a certificate of good standing of the appropriate Governmental
Authority of the jurisdiction of its formation and of each other jurisdiction in
which it is qualified to do business, except, in the case of such other
jurisdiction, when the failure to be in good standing in such jurisdiction would
not have a Material Adverse Effect.
5.2 This Agreement
The Agent shall have received counterparts of this Agreement signed by each
of the parties hereto (or receipt by the Agent from a party hereto of a telecopy
signature page signed by such party which shall have agreed to promptly provide
the Agent with originally executed counterparts hereof).
5.3 Notes; Letter of Credit Documents
(i) The Agent shall have received the Revolving Credit Notes, duly executed
by an Authorized Signatory of Parent and the Term Notes, duly executed by an
Authorized Signatory of GP Canada and (ii) the Agent and the Issuing Bank shall
have received a Reimbursement Agreement, each duly executed by an Authorized
Signatory of Parent.
5.4 Absence of Litigation
There shall be no injunction, writ, preliminary restraining order or other
order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for in the Loan Documents and no action or
proceeding by or before any Governmental Authority has been commenced and is
pending or, to the knowledge of any Borrower, threatened, seeking to prevent or
delay the transactions contemplated by the Loan Documents or challenging any
other terms and provisions hereof or thereof or seeking any damages in
connection therewith, and the Agent shall have received a certificate, in all
respects satisfactory to the Agent, of an executive officer of Parent to the
foregoing effects.
5.5 Approvals and Consents
All approvals and consents of all Persons required to be obtained in
connection with the consummation of the transactions contemplated by the Loan
Documents shall have been obtained and shall be in full force and effect, and
all required notices have been given and all required waiting periods shall have
<PAGE>
expired and the Agent shall have received a certificate, in all respects
satisfactory to the Agent, of an executive officer of each Borrower to the
foregoing effects.
5.6 Absence of Material Adverse Change
Excluding changes relating solely and directly to the IT Adjustment, no
material adverse change in the business, assets, liabilities, financial
condition or results of operations of the Parent or GP Canada has occurred since
the filing with the SEC of Parent's Form 10-Q for the fiscal quarter ending
March 31, 2000 and the Agent shall have received a certificate, in all respects
satisfactory to the Agent, of an executive officer of the Parent to the
foregoing effect.
5.7 Financial Officer's Certificate
The Agent shall have received a certificate of a Financial Officer of each
Borrower, dated the Closing Date, in all respects satisfactory to the Agent
certifying that with respect to all extensions of credit outstanding as of the
Closing Date, to the best knowledge of each such Financial Officer, Parent is
and will be Solvent and the Borrowers together with each Credit Party and each
Foreign Subsidiary is Solvent.
5.8 Intentionally Omitted
5.9 Opinion of Counsel to the Borrowers and their Subsidiaries
The Agent shall have received (A) opinions of (i) Morgan, Lewis & Bockius
LLP, special New York counsel to the Parent and the domestic Credit Parties, and
(ii) Goodman Phillips & Vineberg, counsel to GP Canada. Each opinion shall be
addressed to the Agent and the Lenders, (shall permit Special Counsel to rely
thereon), and shall be dated the Closing Date, and shall be substantially in the
forms of Exhibits F-1 and F-3 hereto (it is acknowledged that no further opinion
of Parent's UK counsel shall be required). It is understood that such opinions
are being delivered to the Agent and the Lenders upon the direction of the
Borrowers and their Subsidiaries and that the Agent and the Lenders may and will
rely on such opinions.
5.10 Previous Information
All of the information provided by or on behalf of any and/or all of the
Borrowers or any of their Subsidiaries the Agent and/or the Lenders prior to
their commitment to extend credit to the Borrowers (the "Pre-Commitment
Information") shall be true and correct in all material aspects; and no
development or change shall have occurred, and no additional information shall
have come to the attention of the Agent or any Lender, that (i) has resulted in
or could reasonably be expected to result in a material change in, or material
deviation from, the Pre-Commitment Information or (ii) has had or could
reasonably be expected to have a Material Adverse Effect.
<PAGE>
5.11 Borrower Security Agreement; Subordination Agreement; Parent Guaranty;
Subsidiary Guaranty and Security Agreement and Related Matters
(a) The Agent shall have received an Amended and Restated Borrower Security
Agreement substantially in the form of Exhibit H-1 hereto, duly executed, by an
Authorized Signatory of Parent and dated the Closing Date and a Hypothec
substantially in the form of Exhibit H-2 hereto, duly executed, by an Authorized
Signatory of GP Canada together with (i) executed notices required by the
Borrower Security Agreement to comply with the Federal Assignment of Claims Act
and the Financial Administration Act (Canada) and relevant provincial
legislation to the extent not heretofore provided, (ii) one or more share
certificates (or a "control agreement" in form and substance satisfactory to the
Agent with respect thereto), representing (x) all of the issued and outstanding
Capital Stock of each Subsidiary Guarantor and all of the issued and outstanding
Capital Stock owned by either Borrower in respect of (A) Hydro Med Sciences,
Inc. and (B) any and every other Person (unless the applicable share certificate
is already in the possession of the Administrative Agent or a "control"
agreement satisfactory to the Agent has theretofore been fully executed and
delivered to the Agent with respect to such shares) and (y) 65% of all the
issued and outstanding Capital Stock owned by either Borrower in respect of GP
Canada, GP (UK) and each Foreign Subsidiary that is a Material Subsidiary
(unless the applicable share certificate is already in the possession of the
Administrative Agent with respect to such shares), together, in each case, with
an undated stock power, executed in blank by an Authorized Signatory of the
owner of such Capital Stock, in respect of each such certificate, (iii) such UCC
Financing Statements (or other comparable documents with respect to Collateral
located outside of the United States), executed by each Borrower where required,
as shall be reasonably requested by the Agent in order to perfect the security
interest in any collateral security granted under its Borrower Security
Agreement, (iv) a Federal Reserve Form U-1 in form and substance satisfactory to
the Agent executed by each pledgor of Capital Stock, (v) each Intercompany
Demand Note payable to Parent, duly executed by the applicable Foreign
Subsidiary and duly endorsed in blank by Parent to the Agent, the originals of
each of the Intercompany Demand Documents and assignments of financing
statements (or other similar mechanism required to perfect security interests
under applicable law) from Parent to the Agent and (vi) such other documents as
the Agent may require in connection with the perfection of its security
interests therein.
(b) (i) Each Credit Party shall have executed a subordination agreement in
favor of the Agent in substantially the form of Exhibit L-1 hereto providing for
the subordination of all obligations to the other Credit Parties to the
Obligations (the "Subordination Agreement"), (ii) Parent and Physics shall have
executed a subordination agreement in favor of the Agent in substantially the
form of Exhibit L-2 hereto relating to the 6% Subordinated Debentures Due 2004
dated as of August 31, 1994 issued by Physics (including non-payment of such
obligations at all times) to the Parent Obligations and (iii) SGLG, Inc. and
<PAGE>
Physics shall have executed a Subordination Agreement in favor of the Agent in
substantially the form of Exhibit L-3 hereto providing for the subordination of
Physics obligations to SGLG, Inc. (including non-payment of such obligations at
all times, except payments of $50,000 in each three-month period may be made in
certain circumstances set forth therein) to the Obligations.
(c) The Agent shall have received an Amended and Restated Subsidiary
Guaranty and Security Agreement substantially in the form of Exhibit I hereto,
duly executed by an Authorized Signatory of each Subsidiary Guarantor together
with (i) executed notices required by the Subsidiary Guaranty and Security
Agreement to comply with the Federal Assignment of Claims Act and the Financial
Administration Act (Canada) and relevant provincial legislation to the extent
not heretofore provided, (ii) one or more share certificates (or a "control
agreement" in form and substance satisfactory to the Agent with respect
thereto), representing (x) all of the issued and outstanding Capital Stock owned
by any and/or each Subsidiary of Parent in respect of (A) Hydro Med Sciences,
Inc. and (B) any and every other Person (unless the applicable share certificate
is already in the possession of the Administrative Agent or a "control"
agreement satisfactory to the Agent has theretofore been fully executed and
delivered to the Agent with respect to such shares) and (y) 65% of all the
issued and outstanding Capital Stock owned by any and/or each Subsidiary of
Parent in respect of GP Canada, GP (UK) and each Foreign Subsidiary that is a
Material Subsidiary (unless the applicable share certificate is already in the
possession of the Administrative Agent with respect to such shares), together,
in each case, with an undated stock power, executed in blank by an Authorized
Signatory of the owner of such Capital Stock, in respect of each such
certificate, (iii) such UCC Financing Statements, executed by each Subsidiary
Guarantor where required, as shall be reasonably requested by the Agent in order
to perfect the security interest in any collateral security granted under the
Subsidiary Guaranty and Security Agreement, (iv) each Intercompany Demand Note
payable to a Subsidiary, duly executed by the applicable Foreign Subsidiary and
duly endorsed in blank by such Subsidiary to the Agent, the originals of each of
the Intercompany Demand Documents and assignments of financing statements (or
other similar mechanism required to perfect security interests under applicable
law) from the applicable Subsidiary to the Agent and (v) a Federal Reserve Form
U-1 in form and substance satisfactory to the Agent executed by each pledgor of
Capital Stock and (vi) such other documents as the Agent may require in
connection with the perfection of its security interests therein.
(d) The Agent shall have received a Parent Guaranty, duly executed by an
Authorized Signatory of the Parent.
(e) The Agent shall have received each original promissory note endorsed to
the Agent with respect to all extensions of credit made pursuant to Section
8.5(m).
5.12 Search Reports and Related Documents
The Agent shall have received (i) UCC, tax and judgment lien search reports
and other search reports in all respects satisfactory to the Agent with respect
to each applicable public office where Liens are or may be filed disclosing that
<PAGE>
there are no Liens of record in such official's office covering any Property of
any Borrower or any of the Material Subsidiaries or showing any Borrower or
Material Subsidiary as debtor thereunder (other than Permitted Liens) and (ii) a
certificate of each Borrower signed by an Authorized Signatory thereof, dated
the first Borrowing Date, certifying that, upon the making of Loans and the
issuance of Letters of Credit on the first Borrowing Date, there will exist no
Liens on any Property of any Borrower or any Material Subsidiary other than
Permitted Liens.
5.13 Intentionally Omitted
5.14 Borrowing Base Certificate
The Agent shall have received the initial Borrowing Base Certificate dated
the Closing Date and the Aggregate Parent Credit Exposure shall not exceed the
Borrowing Base as reflected in such Borrowing Base Certificate; provided, that,
the information set forth in such Borrowing Base Certificate with respect to
Eligible Securities Collateral shall be based on the fair market value of the
applicable Eligible Securities Collateral as at a date that is not more than
three Business Days prior to the Closing Date.
5.15 Property, Public Liability and Other Insurance
The Agent shall have received (A) copies of, or certificates of the brokers
with respect to, each policy of insurance owned by a Borrower or a Subsidiary
Guarantor in form and substance satisfactory to the Agent, naming the Agent, in
its capacity as such, as additional insured and loss payee as its interests may
appear; and (B) evidence of each Borrower's and Subsidiary Guarantor's liability
insurance policies, each together with the endorsements required by Section 7.5.
5.16 Fees
All fees payable to the Agent, the Issuing Bank and the Lenders on the
first Borrowing Date shall have been paid.
5.17 Fees and Expenses of Special Counsel
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.18 Morgan Keegan Consent
The Agent shall have received a copy of the original executed Morgan Keegan
Consent.
<PAGE>
6. CONDITIONS OF LENDING - ALL LOANS AND LETTERS OF CREDIT
The obligation of each Lender to make any Loan or the Issuing Bank to issue
any Letter of Credit on a Borrowing Date and each Lender to participate therein
is subject to the satisfaction of the following conditions precedent as of the
date of such Loan or the issuance of such Letter of Credit, as the case may be:
6.1 Compliance
On each Borrowing Date and after giving effect to the Loans to be made and
the Letters of Credit to be issued thereon (i) there shall exist no Default or
Event of Default, (ii) the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as though such
representations and warranties had been made on such Borrowing Date, except to
the extent such representations and warranties specifically relate to an earlier
date, in which case such representations and warranties shall have been true and
correct on and as of such earlier date, and (iii) each Credit Party and each
Foreign Subsidiary shall be in compliance with all of the terms, covenants and
conditions of the Loan Documents to which it is a party. Each borrowing by a
Borrower and each request by the Parent for the issuance of a Letter of Credit
shall constitute a certification by each Borrower as of such Borrowing Date that
each of the foregoing matters is true and correct in all respects.
6.2 Borrowing Request; Letter of Credit Request; Compliance with Borrowing Base
With respect to the Revolving Credit Loans to be made, and the Letters of
Credit to be issued, (i) on each Borrowing Date, the Agent shall have received,
(a) in the case of Revolving Credit Loans, a Borrowing Request, (b) in the case
of Letters of Credit, a Letter of Credit Request and an application with respect
to the Letter of Credit requested and (c) in each case, an Updated Borrowing
Base Certificate, in each case duly executed by an Authorized Signatory of the
applicable Borrower and (ii) after giving effect to the Revolving Credit Loan(s)
to be made and/or the Letter(s) of Credit to be issued, the Aggregate Parent
Credit Exposure shall not exceed the Borrowing Base as reflected in such Updated
Borrowing Base Certificate.
6.3 Certain Documents
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Agent or any Lender on or before the applicable
Borrowing Date shall have been so executed and delivered on or before such
Borrowing Date.
6.4 Other Documents
Each of the Agent, the Issuing Bank and the Lenders shall have received
such other documents, each in form and substance reasonably satisfactory to it,
<PAGE>
as it shall reasonably require in connection with the making of the Loans and
the issuance of the Letters of Credit on such Borrowing Date.
7. AFFIRMATIVE COVENANTS
Each Borrower agrees that, so long as this Agreement is in effect, any Loan
or Reimbursement Obligation (contingent or otherwise) in respect of any Letter
of Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender, the Issuing Bank or the Agent, the Parent shall:
7.1 Financial Statements and Information
Maintain, and cause each of its Subsidiaries to maintain, a standard system
of accounting in accordance with GAAP, and furnish or cause to be furnished to
the Agent and each Lender:
(a) As soon as available, but in any event within 105 days after the end of
each fiscal year, a copy of the Parent's Consolidated and Consolidating Balance
Sheets as at the end of such fiscal year, together with the related Consolidated
and Consolidating Statements of Operations and Stockholders' Equity and
Consolidated Cash Flows as of and through the end of such fiscal year, setting
forth in each case in comparative form the figures for the preceding fiscal
year. The Consolidated Balance Sheets and Consolidated Statements of Operations,
Stockholders' Equity and Cash Flows (as well as like separate consolidated
Balance Sheets and Consolidated Statements of Operations, Stockholders' Equity
and Cash Flows of Physics) shall be audited and certified without qualification
by the Accountants, which certification shall (i) state that the examination by
such Accountants in connection with such Consolidated financial statements has
been made in accordance with generally accepted auditing standards and,
accordingly, included such tests of the accounting records and such other
auditing procedures as were considered necessary in the circumstances, and (ii)
include the opinion of such Accountants that such Consolidated financial
statements have been prepared in accordance with GAAP in a manner consistent
with prior fiscal periods, except as otherwise specified in such opinion. The
Consolidating Balance Sheets and Consolidating Statements of Operations,
Stockholders' Equity and Cash Flows shall be certified by a Financial Officer of
Parent, as being complete and correct in all material respects and as presenting
fairly the Consolidating financial condition and the Consolidating results of
operations of the Parent and its Subsidiaries. Notwithstanding any of the
foregoing, Parent may satisfy its obligation to furnish Consolidated Balance
Sheets and Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows by furnishing copies of the Parent's annual report on Form 10-K in respect
of such fiscal year, together with the financial statements required to be
attached thereto, provided Parent is required to file such annual report on Form
10-K with the SEC and such filing is actually made.
<PAGE>
(b) As soon as available, but in any event within 50 days after the end of
each of the first three fiscal quarters of each fiscal year, a copy of the
Consolidated and Consolidating Balance Sheets of the Parent and its Consolidated
Subsidiaries as at the end of each such quarterly period, together with the
related Consolidated and Consolidating Statements of Operations and Consolidated
Statement of Cash Flows for such period and for the elapsed portion of the
fiscal year through such date, setting forth in each case in comparative form
the figures for the corresponding periods of the preceding fiscal year,
certified by a Financial Officer of Parent, as being complete and correct in all
material respects and as presenting fairly the Consolidated and Consolidating
financial condition and the Consolidated and Consolidating results of operations
of the Parent and its Subsidiaries. Notwithstanding any of the foregoing, the
Parent may satisfy its obligation to furnish quarterly Consolidated Balance
Sheets and Consolidated Statement of Operations and Cash Flows by furnishing
copies of the Parent's quarterly report on Form 10-Q in respect of such fiscal
quarter, together with the financial statements required to be attached thereto,
provided Parent is required to file such quarterly report on Form 10-Q with the
SEC and such filing is actually made.
(c) Within 50 days after the end of each of the first three fiscal quarters
(105 days after the end of the last fiscal quarter), a Compliance Certificate,
certified by a Financial Officer of Parent.
(d) As soon as available, but not later than 30 days after the last day of
each fiscal year, budgets for each Borrower and its Subsidiaries for the coming
fiscal year, in form and substance reasonably satisfactory to the Agent.
(e) Monthly, and not later than the 25th day following the last day of each
month, (i) with respect to each Borrower and its Subsidiaries, separate accounts
receivable aging reports for Parent, Physics, GP Canada, GP (UK) and MXL as of
the last day of the immediately preceding month, in form and substance
reasonably satisfactory to the Agent, (ii) a certification as to the outstanding
principal balance of each Intercompany Demand Note as of the last day of the
immediately preceding month, (iii) a Borrowing Base Certificate together with
statements of accounts payable as of the last day of the immediately preceding
month, (iv) a report in a format satisfactory to the Agent comparing the actual
results of Physics, GP Canada, GP (UK) and MXL, each separately, against its
respective projections, both for the immediately preceding month and for the
year to date and (v) separate internally prepared financial statements of
Physics, GP Canada, GP (UK) and MXL.
(f) Not less than one and not more than three days prior to each Borrowing
Date, an Updated Borrowing Base Certificate.
(g) Not less than one and not more than three days prior to each Covered
Event, an Updated Borrowing Base Certificate giving effect to the transactions
contemplated by such Covered Event.
<PAGE>
(h) Within 25 days of the last day of each fiscal quarter, a report in a
format satisfactory to the Agent comparing Parent's actual results against its
projections (on a consolidated and consolidating basis), both for such
immediately preceding fiscal quarter and for the year to date.
(i) Such other information as the Agent or any Lender may reasonably
request from time to time.
7.2 Certificates; Other Information
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of any Borrower or any
of its Subsidiaries in an aggregate amount in excess of $500,000 is declared or
shall become due and payable prior to its stated maturity, or is called and not
paid when due, (ii) a default shall have occurred under any note (other than the
Notes), certificate, security or other evidence of Indebtedness in an aggregate
amount in excess of $500,000, or the holder or obligee of any note (other than
the Notes), certificate, security or other evidence of Indebtedness, with
respect to any other Indebtedness of any Borrower or any of its Subsidiaries has
the right to declare Indebtedness in an aggregate amount in excess of $500,000
due and payable prior to its stated maturity, (iii) there shall occur and be
continuing a Default or an Event of Default or (iv) a Change in Management
should occur;
(b) Prompt written notice of: (i) any citation, summons, subpoena, order to
show cause or other document naming any Borrower or any of its Subsidiaries a
party to any proceeding before any Governmental Authority which could reasonably
be expected to have a Material Adverse Effect or which calls into question the
validity or enforceability of any of the Loan Documents, and include with such
notice a copy of such citation, summons, subpoena, order to show cause or other
document, and (ii)(A) any lapse or other termination of any material license,
permit, franchise or other authorization issued to any Borrower or any of its
Subsidiaries by any Person or Governmental Authority, and (B) any refusal by any
Person or Governmental Authority to renew or extend any such material license,
permit, franchise or other authorization, which lapse, termination, refusal or
dispute could reasonably be expected to have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all (i) registration
statements, regular, periodic or special reports, schedules and other material
which any Borrower or any of its Subsidiaries may now or hereafter be required
to file with or deliver to any securities exchange or the SEC, and (ii) material
news releases and annual reports relating to any Borrower or any of its
Subsidiaries;
<PAGE>
(d) Prompt written notice in the event that any Borrower, any of its
Subsidiaries or any ERISA Affiliate knows, or has reason to know, that (i) any
Termination Event with respect to a Pension Plan has occurred or will occur,
(ii) any condition exists with respect to a Pension Plan which presents a
material risk of termination of the Pension Plan, imposition of an excise tax,
requirement to provide security to the Pension Plan or other liability on any
Borrower, any of its Subsidiaries or any ERISA Affiliate, (iii) any Borrower,
any of its Subsidiaries or any ERISA Affiliate has applied for a waiver of the
minimum funding standard under Section 412 of the Code with respect to a Pension
Plan, (iv) the aggregate amount of the Unfunded Pension Liabilities under all
Pension Plans is in excess of $1,000,000, (v) the aggregate amount of
Unrecognized Retiree Welfare Liability under all applicable Employee Benefit
Plans is in excess of $1,000,000, (vi) any Borrower, any of its Subsidiaries or
any ERISA Affiliate has engaged in a Prohibited Transaction with respect to an
Employee Benefit Plan, (vii) the imposition of any tax under Section 4980B(a) of
the Code or (viii) the assessment of a civil penalty under Section 502(c) of
ERISA, together with a certificate of a Financial Officer of the applicable
Borrower setting forth the details of such event and the action which such
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto, together with a copy of all notices and filings with respect thereto,
in each case, which the happening of such event could reasonably be expected to
have a Material Adverse Effect.
(e) Prompt written notice in the event that any Borrower, any of its
Subsidiaries or any ERISA Affiliate shall receive a demand letter from the PBGC
notifying any Borrower, such Subsidiary or such ERISA Affiliate of any final
decision finding liability and the date by which such liability must be paid,
together with a copy of such letter and a certificate of a Financial Officer of
such Borrower setting forth the action which such Borrower, such Subsidiary or
such ERISA Affiliate proposes to take with respect thereto.
(f) Promptly upon the same becoming available, and in any event by the date
such amendment is adopted, a copy of any Pension Plan amendment that any
Borrower, any of its Subsidiaries or any ERISA Affiliate proposes to adopt which
would require the posting of security under Section 401(a)(29) of the Code,
together with a certificate of a Financial Officer of such Borrower setting
forth the reasons for the adoption of such amendment and the action which such
Borrower, such Subsidiary or such ERISA Affiliate proposes to take with respect
thereto.
(g) As soon as possible and in any event by the tenth day after any
required installment or other payment under Section 412 of the Code owed to a
Pension Plan shall have become due and owing and remain unpaid a copy of the
notice of failure to make required contributions provided to the PBGC by any
Borrower, any of its Subsidiaries or any ERISA Affiliate under Section 412(n) of
the Code, together with a certificate of a Financial Officer setting forth the
action which such Borrower, such Subsidiary or such ERISA Affiliate proposes to
take with respect thereto.
<PAGE>
(h) Promptly upon the same becoming available, and in any event by 15th day
of each month, (i) a listing of all Government Receivables created since the
last such report provided and (ii) a duly executed Confirmatory Assignment of
Contract and Notice of Assignment of Accounts Receivable as Security,
substantially in the form of Exhibit A and Exhibit B, respectively, to the
Subsidiary Guaranty and Security Agreement and the Borrower Security Agreement.
(i) Prompt written notice of any change in the budgets furnished pursuant
to Section 7.1(d) with respect to any fiscal year subsequent to fiscal year
2000.
(j) Promptly after completed, consolidated projections prepared, as revised
from time to time, with respect to the Credit Parties; provided, that, if
consolidating projections are prepared with respect to any Credit Party (which
preparation shall be in the sole discretion of the Credit Parties), then such
projections shall also be furnished to the Agent promptly after completed.
(k) Such other information as the Agent or any Lender shall reasonably
request from time to time.
7.3 Legal Existence
Except as may otherwise be permitted by Sections 8.3 and 8.4, maintain, and
cause each Credit Party and each of its Foreign Subsidiaries to maintain, its
corporate, partnership or analogous existence, as the case may be, in good
standing in the jurisdiction of its incorporation or formation and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect.
7.4 Taxes
Pay and discharge when due, and cause each Credit Party and each of its
Foreign Subsidiaries so to do, all Taxes upon or with respect to the Parent, any
Credit Party and any Foreign Subsidiary and all Taxes upon the income, profits
and Property of the Parent, any Credit Party and any Foreign Subsidiary, which
if unpaid, could reasonably be expected to have a Material Adverse Effect or
become a Lien on Property of the Parent, any Credit Party and any Foreign
Subsidiary (other than a Lien described in Section 8.2(i)), unless and to the
extent only that such Taxes shall be contested in good faith and by appropriate
proceedings diligently conducted by the Parent, the Credit Party or the Foreign
Subsidiary and provided that any such contested Tax shall not constitute, or
create, a Lien on any Property of the Parent, any Credit Party and any Foreign
Subsidiary senior to the Liens, if any, granted to the Agent and the Lenders by
the Collateral Documents on such Property, and, provided further, that the
Parent, the applicable Credit Party and the applicable Foreign Subsidiary shall
give the Agent prompt notice of such contest and that such reserve or other
appropriate provision as shall be required by the Accountants in accordance with
GAAP shall have been made therefor.
<PAGE>
7.5 Insurance
(a) Insurance. Maintain, and cause each Credit Party and each of the
Foreign Subsidiaries to maintain, insurance with financially sound insurance
carriers on such of its Property, against at least such risks, and in at least
such amounts, as are usually insured against by similar businesses, including
public liability (bodily injury and property damage), fidelity, business
interruption, and workers' compensation with deductibles which are customary for
companies engaged in similar businesses, and which, in the case of property
insurance, shall be (i) in amounts sufficient to prevent any Borrower or such
Subsidiary from becoming a co-insurer, and (ii) against all risks; and file with
the Agent within ten days after request therefor a detailed list of such
insurance then in effect, stating the names of the carriers thereof, the policy
numbers, the insureds thereunder, the amounts of insurance, dates of expiration
thereof, and the Property and risks covered thereby, together with a certificate
of the Financial Officer (or such other officer as shall be acceptable to the
Agent) of such Borrower certifying that in the opinion of such officer such
insurance is adequate in nature and amount, complies with the obligations of the
Borrowers under this Section, and is in full force and effect.
(b) Insurance Covering Collateral. Promptly upon request therefor, deliver
or cause to be delivered to the Agent originals or duplicate originals of all
such policies of insurance covering the Collateral. All such insurance policies
in respect of property insurance and business interruption insurance shall
contain a standard loss payable clause and shall be endorsed to provide that, in
respect of the interests of the Agent, the Issuing Bank and the Lenders: (i) the
Agent shall be an additional insured, (ii) 30 days' prior written notice of any
cancellation, reduction of amounts payable, or any changes and amendments shall
be given to the Agent, and (iii) the Agent shall have the right, but not the
obligation, to pay any premiums due or to acquire other such insurance upon the
failure of a Borrower or such Subsidiary to pay the same or to so insure. All
property insurance policies shall name the Agent as sole loss payee in respect
of each claim relating to the Collateral and resulting in a payment under any
such insurance policy exceeding $1,000,000. Provided that no Default or Event of
Default shall exist, the Agent agrees, promptly upon its receipt thereof, to pay
over to the Parent, the applicable Credit Party or the applicable Foreign
Subsidiary that owns the applicable Property the proceeds of such payment to
enable the Parent, the applicable Credit Party or the applicable Foreign
Subsidiary to repair, restore or replace the Property subject to such claim. To
the extent that such the Parent, the Credit Party or the Foreign Subsidiary
fails to repair, restore or replace such Property subject to a claim, subject to
Section 2.2(c), an amount equal to such proceeds shall be immediately applied as
a permanent reduction of the Aggregate Parent Commitment Amount and/or Aggregate
GP Canada Credit Exposure, as the case may be, pursuant to Section 2.4(b). If a
Default or Event of Default shall then exist, the Agent shall (i) hold the
proceeds of such payment as Collateral until such Default or Event of Default
shall no longer exist and then pay over the same to such Borrower or Credit
Party to enable such Borrower or Credit Party to repair, restore or replace or
cause to be repaired, restored or replaced the Property subject to the claim
<PAGE>
which resulted in such payment or (ii) hold such proceeds as Collateral and
apply the same to the obligations of the Parent or Credit Party under the Loan
Documents in such order, in such amounts and at such times as the Agent, with
the consent of Required Lenders, shall decide.
(c) Concurrent Insurance. No Borrower nor any of its Subsidiaries shall
take out separate insurance concurrent in form or contributing in the event of
loss with that required to be maintained pursuant to subsection (b) above unless
the Agent has approved the carrier and the form and content of the insurance
policy, including naming the Agent as an additional insured and sole loss payee
thereunder.
7.6 Performance of Obligations
Pay and discharge when due, and cause each Credit Party and each of the
Foreign Subsidiaries so to do, all lawful Indebtedness, obligations and claims
for labor, materials and supplies or otherwise which, if unpaid, could
reasonably be expected to (i) have a Material Adverse Effect, or (ii) become a
Lien upon Property of any Borrower, any Credit Party, or any of the Foreign
Subsidiaries other than a Permitted Lien, unless and to the extent only that the
validity of such Indebtedness, obligation or claim shall be contested in good
faith and by appropriate proceedings diligently conducted and that any such
contested Indebtedness, obligations or claims shall not constitute, or create, a
Lien on any Property of a Borrower, any Credit Party, or any of the Foreign
Subsidiaries senior to the Lien, if any, granted to the Agent under the
Collateral Documents on such Property, and provided that the Parent, Credit
Party or Foreign Subsidiary shall give the Agent prompt notice of any such
contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
7.7 Condition of Property
At all times, maintain, protect and keep in good repair, working order and
condition (ordinary wear and tear excepted), and cause each of the Credit
Parties and Foreign Subsidiaries so to do, all Property necessary to the
operation of any Credit Party's or such Foreign Subsidiary's business.
7.8 Observance of Legal Requirements
Observe and comply in all respects, and cause each of its Subsidiaries so
to do, with all laws, ordinances, orders, judgments, rules, regulations,
certifications, franchises, permits, licenses, directions and requirements of
all Governmental Authorities, which now or at any time hereafter may be
applicable to it, a violation of which could reasonably be expected to have a
Material Adverse Effect, except such thereof as shall be contested in good faith
and by appropriate proceedings diligently conducted by it, provided that the
Borrowers shall give the Agent prompt notice of such contest and that such
<PAGE>
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
7.9 Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice, at the Lenders'
expense (unless an Event of Default has occurred and is continuing in which case
it shall be at the Borrowers' expense) permit representatives of the Agent and
each Lender to visit the offices of each Borrower, each other Credit Party and
each Foreign Subsidiary, to examine the books and records thereof and
Accountants' reports relating thereto, and to make copies or extracts therefrom,
to discuss the affairs of each Borrower, each other Credit Party and each
Foreign Subsidiary with the respective officers thereof, and to examine and
inspect the Property of each Borrower, each other Credit Party and each Foreign
Subsidiary and to meet and discuss the affairs of each Borrower, each other
Credit Party and each Foreign Subsidiary with the Accountants.
7.10 Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in full force and
effect, all material licenses, franchises, permits, licenses, authorizations and
other rights as are necessary for the conduct of its business.
7.11 Financial Covenants
(a) Fixed Charge Coverage Ratio. With respect to the fiscal quarters ending
on the dates set forth below, maintain a Fixed Charged Coverage Ratio in a
proportion not less than that set forth below opposite each such fiscal quarter:
Fiscal Quarter Ratio
June 30, 2000 > 1.15 to 1.00
-
September 30, 2000 > 1.40 to 1.00
-
December 31, 2000 > 1.65 to 1.00
-
March 31, 2001
and each fiscal quarter thereafter > 1.75 to 1.00
-
(b) Leverage Ratio. Maintain as of the last day of each fiscal quarter set
forth below, a Leverage Ratio in a proportion not greater than the ratios set
forth below opposite each such fiscal quarter (for purposes of the June 30, 2000
calculation, it shall be assumed that all Subordinated Debt that is outstanding
as at the Closing Date was outstanding as at June 30, 2000)
<PAGE>
Fiscal Quarter Ratio
June 30, 2000 5.50 to 1.00*
September 30, 2000 6.15 to 1.00
December 31, 2000 5.50 to 1.00
March 31, 2001
and each fiscal quarter thereafter 5.00 to 1.00
(c) Minimum Consolidated Net Worth. Maintain at all times as of the last
day of each fiscal quarter, Consolidated Net Worth in an amount not less than
the greater of (A) the Minimum Net Worth Amount for such fiscal quarter and (B)
the sum of the Beginning Net Worth Amount, plus (i) for each fiscal quarter
commencing with the fiscal quarter ending September 30, 2000, 80% of the
Parents' Consolidated net income (if positive) for all such fiscal quarters on a
cumulative basis, plus (ii) 80% of the Net Cash Proceeds (on a cumulative basis)
resulting from any equity issuance by Parent or any of its Subsidiaries, and
then minus (iii) the aggregate amount of the IT Adjustment occurring after June
30, 2000.
(d) Minimum Consolidated EBITDA. Maintain as of the last day of each fiscal
quarter set forth below, Consolidated EBITDA for such fiscal quarter of not less
than the amount set forth below opposite each such fiscal quarter:
Fiscal Quarter Amount
June 30, 2000 $2,895,300
September 30, 2000 $3,563,200
December 31, 2000 $4,258,300
March 31, 2001
and each fiscal quarter thereafter $4,500,000
7.12 Additional Subsidiaries
Not allow any Subsidiary to be acquired or established by any Credit Party
after the Closing Date without the prior written consent of the Agent and the
Required Lenders and to the extent such consent is furnished, the Borrowers
shall:
(i) On or prior to each date hereafter upon which a Person shall have
become a Material Subsidiary of the Parent, (a) deliver such certificates, stock
powers and other documents as would be required by Section 5.11(a)(ii) and/or
Section 5.11(c)(ii) as if such Material Subsidiary were a Material Subsidiary as
of the first Borrowing Date or as otherwise may be required hereby and/or by the
Borrower Security Agreement and/or by the Subsidiary Guaranty and Security
Agreement and such other documents as the Agent shall request; provided, that,
to the extent such new Material Subsidiary is not a Subsidiary of a Credit
Party, the owner of the Capital Stock of such new Material Subsidiary shall
execute all documentation reasonably requested by the Agent in order to effect
the pledge to the Agent, for the ratable benefit of the Lenders, of (A) 100% of
the issued and outstanding Capital Stock of such new Material Subsidiary to the
<PAGE>
extent it is a Domestic Subsidiary and (B) 65% of the issued and outstanding
Capital Stock of such new Material Subsidiary to the extent it is a Foreign
Subsidiary (b) cause each such Material Subsidiary that is a Domestic Subsidiary
to become a party to the Subsidiary Guaranty and Security Agreement and provide
and execute all documents requested by the Agent to perfect a Lien in Collateral
granted thereunder (to the extent such Material Subsidiary owns Property of the
type described as Collateral in such Subsidiary Guaranty and Security Agreement)
and (c) cause each such Material Subsidiary that is not a Domestic Subsidiary to
execute an Intercompany Demand Note to the order of Parent or a Subsidiary of
Parent and Parent, or its Subsidiary, as the case may be, shall endorse such
note in blank and deliver same, together with any related Intercompany Demand
Loan Documents, to the Agent (for the ratable benefit of the Lenders), together
with all of the other documents necessary to perfect the Agent's first Lien
therein.
(ii) On or prior to each date hereafter upon which two or more Subsidiaries
(which are not individually Material Subsidiaries) hold 15% or more of the
Consolidated assets of the Parent or account for more than 15% of the
Consolidated EBIDTA, as shown on the most recently delivered financial
statements of the Parent and its Subsidiaries (a) deliver such certificates,
stock powers and other documents as would be required by Section 5.11(a)(ii)
and/or Section 5.11(c)(ii) as if one or more such Subsidiaries were a Material
Subsidiary as of the first Borrowing Date or as otherwise may be required hereby
and/or by the Borrower Security Agreement and/or by the Subsidiary Guaranty and
Security Agreement and such other documents as the Agent shall request, (b)
cause one or more of such Subsidiaries that is a Domestic Subsidiary to become a
party to the Subsidiary Guaranty and Security Agreement and provide and execute
all documents requested by the Agent to perfect a Lien in Collateral granted
thereunder (to the extent such Material Subsidiary owns Property of the type
described as Collateral in such Subsidiary Guaranty and Security Agreement) and
(c) cause one or more of such Subsidiaries that is not a Domestic Subsidiary to
execute an Intercompany Demand Note to the order of Parent or a Subsidiary of
Parent and Parent, or its Subsidiary, as the case may be, shall endorse such
note in blank and deliver same, together with any related Intercompany Demand
Loan Documents, to the Agent (for the ratable benefit of the Lenders), together
with all of the other documents necessary to perfect the Agent's first Lien
therein so that, after the delivery of the documents and other items required
under sub-sections (i), (ii) and (iii), not more than 15% of the Consolidated
assets of the Parent is held by, and not more than 15% of the Consolidated
EBITDA is attributable to any two or more Subsidiaries which are not Material
Subsidiaries.
7.13 Hydro Med Issues
Ensure that Parent at all times owns Capital Stock in Hydro Med Sciences,
Inc. that either (A) constitutes not less than 51% of the issued and outstanding
stock of Hydro Med Sciences, Inc. or (B) has an aggregate fair market value of
not less than $17,500,000.
7.14 Mortgages
On or before September 15, 2000 ensure that each Mortgage is duly executed
by each applicable mortgagor and such other documents related thereto that the
Agent shall reasonably request and furnish the originals thereof to the Agent on
or before such date which Mortgages shall be recorded only in accordance with
the provisions of Section 2.13 hereof.
7.15 In-House Counsel Opinion
On or before September 30, 2000, the Agent shall have received the opinion
of Andrea Kantor, Esq., in-house counsel to Parent and its Subsidiaries (other
than Physics and its Subsidiaries), addressed to the Agent and the Lenders, (and
permitting Special Counsel to rely thereon), and dated the Closing Date, which
opinion shall be substantially in the form of Exhibit F-2 hereto. It is
understood that such opinion is being delivered to the Agent and the Lenders
upon the direction of the Borrowers and their Subsidiaries and that the Agent
and the Lenders may and will rely on such opinion.
7.16 Title Reports; Appraisals
The Borrowers shall take all reasonable action requested by the Agent and
cooperate fully with the Agent in order to enable the Agent to procure (i) a
title report from a title company reasonably satisfactory to the Agent with
respect to each property covered by a Mortgage (other than the Reservoir
Property) and (ii) an appraisal of each Property that is to be subject to a
Mortgage.
7.17 Morgan Keegan Consent
The Borrowers shall use their best efforts to cause the original executed
Morgan Keegan Consent to be delivered to the Agent on or before September 8,
2000.
8. NEGATIVE COVENANTS
Each Borrower agrees that, so long as this Agreement is in effect, any Loan
or Reimbursement Obligation (contingent or otherwise) in respect of any Letter
of Credit remains outstanding and unpaid, or any other amount is owing under any
Loan Document to any Lender, the Issuing Bank or the Agent, no Borrower shall,
directly or indirectly:
8.1 Indebtedness
Create, incur, assume or suffer to exist any liability for Indebtedness, or
permit any other Credit Party or any Foreign Subsidiary so to do, except:
(a) Indebtedness of the Borrowers to the Lenders and the Agent under this
Agreement and the Loan Documents;
<PAGE>
(b) Current liabilities incurred in the ordinary course of business not
incurred through (i) the borrowing of money, or (ii) the obtaining of credit
except for credit on an open account basis customarily extended and in fact
extended in connection with purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental charges or
levies and claims for labor; materials and supplies to the extent that payment
therefor shall not at the time be required to be made;
(d) Indebtedness in respect of judgments or awards that do not constitute
an Event of Default under Section 9.1(j);
(e) Performance or other guaranties given by any Borrower in respect of
Indebtedness of the other Borrowers that is otherwise permitted pursuant to this
Section 8.1 and in respect of other obligations of the other Borrowers permitted
under this Agreement;
(f) Intercompany Indebtedness;
(g) Other unsecured Indebtedness in an aggregate principal amount not in
excess of $500,000 at any one time outstanding;
(h) Indebtedness in respect of deferred liabilities other than for deferred
taxes and other than for borrowed money, including without limitation, deferred
compensation, provided that the aggregate amount of such Indebtedness of the
Credit Parties incurred on or after the date hereof shall not exceed $1,000,000
at any one time outstanding;
(i) Indebtedness in respect of deferred taxes;
(j) Indebtedness secured by the security interests referred to in
subsection 8.2(viii) hereof and Capitalized Lease Obligations, in each case
incurred only if, after giving effect thereto, the limit on Capital Expenditures
set forth in Section 8.7 hereof would not be breached;
(k) Subordinated Debt;
(l) Indebtedness existing on the date hereof as set forth on Schedule 8.1
hereto and other Indebtedness described in Schedule 8.1 hereto;
(m) (i) Contingent Obligations set forth on Schedule 8.1 hereto and
renewals, extensions or replacements of Contingent Obligations set forth on
Schedule 8.1 hereto in respect of obligations in amounts not exceeding the
amount guaranteed under the Contingent Obligation set forth in Schedule 8.1;
(ii) other Contingent Obligations if (A) at the time of entering into any such
<PAGE>
Contingent Obligation the Borrowers shall be in compliance with all of the terms
and conditions of this Agreement and (B) the aggregate amount outstanding of all
Contingent Obligations entered into pursuant to this subsection 8.1(m)(ii)
(whether guarantees of payment or performance) shall at no time exceed
$1,000,000. For the purposes hereof, if more than one Borrower and/or Material
Subsidiary shall have a Contingent Obligation of the same obligations of another
Person, the amount of only one of such Contingent Obligation shall be counted
for purposes of this Section 8.1(m)(ii), and (iii) Contingent Obligations in
respect of the Indebtedness described in Section 8.1(n); and
8.2 Liens
Create, incur, assume or suffer to exist any Lien upon any of its Property,
whether now owned or hereafter acquired, or permit any other Credit Party or any
Foreign Subsidiary so to do, except
(i) Liens for Taxes in the ordinary course of business which are not
delinquent or which are being contested in accordance with Section 7.4, provided
that enforcement of such Liens is stayed pending such contest,
(ii) Liens in connection with workers' compensation, unemployment insurance
or other social security obligations (but not ERISA),
(iii) deposits or pledges to secure bids, tenders, contracts (other than
contracts for the payment of money), leases, statutory obligations, surety and
appeal bonds and other obligations of like nature arising in the ordinary course
of business,
(iv) zoning ordinances, easements, rights of way, minor defects,
irregularities, and other similar restrictions affecting real Property which do
not adversely affect the value of such real Property or the financial condition
of any Borrower or any Subsidiary or impair its use for the operation of the
business of any Borrower or any Subsidiary,
(v) Liens arising by operation of law such as mechanics', materialmen's,
carriers', warehousemen's liens incurred in the ordinary course of business
which are not delinquent by more than 90 days or which are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
pending such contest,
(vi) Liens arising out of judgments or decrees which are being contested in
accordance with Section 7.6, provided that enforcement of such Liens is stayed
pending such contest,
(vii) Liens in favor of the Agent and the Lenders under the Loan Documents
and Liens in connection with the Intercompany Demand Loan Documents,
<PAGE>
(viii) Liens securing obligations incurred in connection with the Physics
Computer System and Liens under other capital leases and Liens on Property
(including, in the event such Property constitutes capital stock of a newly
acquired Subsidiary, Liens on the Property of such Subsidiary) acquired by a
Borrower or a Material Subsidiary after the Effective Date within the terms of
this Agreement and either existing on such Property when acquired, or created
contemporaneously with such acquisition to secure the payment or financing of
the purchase price thereof, provided that (w) such Liens attach only to the
Property so purchased or acquired, (x) the Indebtedness secured by such Liens is
permitted by Section 8.1(j), (y) the Indebtedness secured or covered by any such
Lien shall not exceed the lesser of the cost or fair market value of the
Property acquired and shall not be renewed or extended or prepaid from the
proceeds of any borrowing by a Borrower and (z) the aggregate amount of all
Indebtedness secured by Liens of the type permitted by this subsection
8.2(viii), excluding Liens granted for the Physics Computer System, on a
Consolidated basis shall not at any time exceed $700,000 at any one time
outstanding in the aggregate with respect to all the Credit Parties taken as a
whole,
(ix) Liens on Margin Stock to the extent that a prohibition on such Liens
would result in the Agent and the Lenders being deemed to be "indirectly
secured" by Margin Stock under Regulation U of the Board of Governors of the
Federal Reserve System, as amended, taking into account the value of Margin
Stock owned by the applicable Borrower and its Subsidiaries and any other
relevant facts and circumstances,
(x) Liens on Property of any Credit Party or Foreign Subsidiary existing on
the Effective Date as set forth on Schedule 8.2, but not any increases in the
amounts secured thereby or extensions thereof to additional Property,
(xi) Liens on Property of any Credit Party or Foreign Subsidiary acquired
prior to the Effective Date provided that such Liens are limited to the Property
so acquired and were not created in contemplation of such acquisition,
(xii) any interest or title of a lessor in assets being leased by any of
the Borrowers or any Material Subsidiary under an operating lease,
(xiii) Intentionally Omitted,
(xiv) the right reserved to or vested in any Governmental Authority by any
statutory provision, or by the terms of any lease, license, franchise, grant or
permit of such Person, to terminate any such lease, license, franchise, grant or
permit or to require annual or other payments as a condition to the continuance
thereof,
(xv) any Lien resulting from security given to a public utility or
Governmental Authority when required by such utility or such Governmental
Authority in connection with the operation of the business of any Borrower, and
<PAGE>
(xvi) the reservations, limitations, provisos and conditions, if any, expressed
in any original grants of real property from Her Majesty the Queen in the Right
of the Province of Ontario.
8.3 Merger, Consolidations and Acquisitions
Consolidate with, be acquired by, amalgamate with, merge or wind up into or
with any Person, make any Acquisition or enter into any binding agreement to do
any of the foregoing which is not contingent on obtaining the consent of the
Required Lenders, or permit any Credit Party or Foreign Subsidiary so to do,
except:
(a) Capital Expenditures permitted by Section 8.7;
(b) provided that (i) the Agent shall have received ten days' prior written
notice thereof and (ii) immediately before and after giving effect thereto no
Default or Event of Default shall exist, any direct or indirect wholly-owned
Subsidiary of a Borrower may merge or consolidate with such Borrower or any
other direct or indirect wholly-owned Subsidiary of such Borrower, provided that
in the event of a merger or amalgamation of such Borrower and such wholly-owned
Subsidiary, such Borrower shall be the survivor;
(c) mergers or amalgamations involving a Borrower or a Subsidiary Guarantor
as long as such Borrower or such Subsidiary Guarantor is the surviving entity;
and
(d) Investments permitted by Section 8.5.
8.4 Dispositions
Make any Disposition, or permit any other Credit Party or any Foreign
Subsidiary so to do, except:
(a) Dispositions by Parent and/or any other Credit Party or Foreign
Subsidiary other than GP Canada of any Investments (other than marketable
securities) permitted under Section 8.5(a); provided, that, 100% of the proceeds
thereof are applied in accordance with Section 2.5(d) hereof and, provided,
further within ten Business Days prior to each such Disposition, the Agent and
the Lenders shall have received a certificate in respect thereto signed by an
Authorized Signatory of Parent identifying the Property to be sold or otherwise
disposed of and stating the total consideration to be paid in respect of such
Disposition, together with estimates of items to be deducted therefrom in
arriving at the Net Cash Proceeds and if at the time of such Disposition the
Overadvance Amount is greater than zero and/or such Investment(s) was included
in the Borrowing Base as reflected in the most recent Borrowing Base
Certificate, an Updated Borrowing Base Certificate demonstrating compliance with
the Borrowing Base after giving effect to the applicable Disposition;
<PAGE>
(b) Dispositions of Property which, in the reasonable opinion of the
applicable Borrower, Credit Party or Foreign Subsidiary, is obsolete or no
longer useful in the conduct of its business;
(c) Dispositions by Parent and/or any other Credit Party or Foreign
Subsidiary other than GP Canada of marketable securities by the Parent;
provided, that, Parent shall apply 100% of the Net Cash Proceeds thereof within
one Business Day of the receipt thereof in accordance with the terms of Section
2.5(d) hereof and, provided, further that within ten Business Days prior to each
such Disposition, the Agent and the Lenders shall have received a certificate in
respect thereto signed by an Authorized Signatory of Parent identifying the
Property to be sold or otherwise disposed of and stating the total consideration
to be paid in respect of such Disposition, together with estimates of items to
be deducted therefrom in arriving at the Net Cash Proceeds and if at the time of
such Disposition the Overadvance Amount is greater than zero and/or any of such
marketable securities were included in the Borrowing Base as reflected in the
most recent Borrowing Base Certificate, an Updated Borrowing Base Certificate
demonstrating compliance with the Borrowing Base after giving effect to the
applicable Disposition;
(d) The MXL Sale/Leaseback and other Dispositions by Parent and/or any
other Credit Party or Foreign Subsidiary other than GP Canada as to which the
following conditions have been satisfied:
(i) no Default or Event of Default shall exist immediately before or after
giving effect thereto,
(ii) the total consideration received or to be received therefor by the
Parent, any Credit Party or any of the Foreign Subsidiaries shall be payable in
cash, or if there should be non-cash consideration, such non-cash consideration
shall not exceed $500,000 (as determined on or before the closing thereof) and
such total consideration received or to be received therefor shall not be less
than the fair market value thereof as reasonably determined by the Managing
Person of the Parent, such Credit Party or such Foreign Subsidiary,
(iii) Parent shall apply the Net Cash Proceeds thereof within one Business
Day of the receipt thereof as required and provided by Section 2.5(d), and
(iv) within ten Business Days prior to each such Disposition, the Agent and
the Lenders shall have received a certificate in respect thereto signed by an
Authorized Signatory of each Borrower identifying the Property to be sold or
otherwise disposed of and stating (x) that immediately before or after giving
effect thereto, no Default or Event of Default shall exist, (y) that the
consideration received or to be received by the Parent or such Subsidiary for
such Property has been determined by the Managing Person thereof to be not less
than the fair market value of such Property and (z) the total consideration to
be paid in respect of such Disposition, together with estimates of items to be
deducted therefrom in arriving at the Net Cash Proceeds; and
<PAGE>
(e) Dispositions by GP Canada as long as each of the following conditions
shall have been satisfied prior to such Disposition being consummated:
(i) GP Canada shall have delivered to the Agent and each Lender, not less
than fifteen (15) days prior to the date upon which such Disposition is to be
consummated, a Disposition Proposal; and
(ii) on or before the date that is ten (10) days after receipt of such
Disposition Proposal the Agent shall have provided written notice to GP Canada
that such Disposition Proposal is satisfactory.
IT IS EXPRESSLY AGREED THAT, FOR PURPOSES OF THIS SECTION 8.4(e), ANY
DETERMINATION BY THE AGENT AND/OR THE REQUIRED LENDERS AS TO WHETHER A
DISPOSITION PROPOSAL IS SATISFACTORY SHALL BE IN THE SOLE AND ABSOLUTE
DISCRETION OF THE AGENT AND THE REQUIRED LENDERS, AS THE CASE MAY BE.
Furthermore, if the Agent does not provide written notice to GP Canada within
such ten (10) day period that a Disposition Proposal is satisfactory, it shall
be deemed that such Disposition Proposal is not satisfactory. To the extent that
the Agent does provide written notice to GP Canada that a Disposition Proposal
is satisfactory, GP Canada may consummate such Disposition and if consummated
shall apply the Net Cash Proceeds thereof in the manner set forth in such
Disposition Proposal.
8.5 Investments, Loans, Etc.
At any time, directly or indirectly, purchase or otherwise hold, own,
acquire or invest in the Capital Stock of, evidence of indebtedness or other
obligation or security issued by, any other Person, or make any loan or advance
to, or enter into any arrangement for the purpose of providing funds or credit
to, or make any Acquisition, or become a partner or joint venturer in any
partnership or joint venture, or enter into any Interest Rate Protection
Arrangement, or make any other investment (whether in cash or other Property) in
any other Person, or make any commitment or otherwise to agree to do any of the
foregoing (all of which are sometimes referred to herein as "Investments"), or
permit any of its Subsidiaries so to do, except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the Effective Date as set forth on Schedule
8.5;
(c) normal business banking accounts and short-term certificates of deposit
and time deposits in, or issued by, federally insured institutions in amounts
not exceeding the limits of such insurance;
<PAGE>
(d) Investments in Interest Rate Protection Arrangements (where used for
hedging purposes) covering a notional principal amount not in excess of the
Aggregate Commitment Amount;
(e) Intentionally Omitted;
(f) loans and extensions of credit to employees of a Credit Party or
Foreign Subsidiary that are not officers of a Credit Party not in excess of
$250,000 in the aggregate at any one time outstanding;
(g) Investments by any Borrower or any Subsidiary in Intercompany
Indebtedness permitted under Section 8.1;
(h) Investments in the form of a subordinated note not in excess of
$5,000,000 payable to Parent in connection with the Disposition of Five Star;
(i) Investments in Eligible Securities Collateral by Parent and/or its
Subsidiaries (and in that regard, each Borrower represents that Schedule 8.5
contains a list of all Eligible Securities Collateral and other marketable
securities owned by Parent and/or its Subsidiaries as of the Closing Date);
(j) Investments of the Borrowers described on Schedule 8.1;
(k) Investments by Parent in GP(UK);
(l) Intentionally Omitted; and
(m) loans to Persons solely for such Person to exercise stock options
he/she has with respect to Parent's Capital Stock under Parent's stock option
plan (such loans are referred to herein individually as an "Option Loan" and
collectively as the "Option Loans"); provided, that, no such Option Loan shall
be permitted unless (i) there is no reduction in Parent's net assets as a result
of such Option Loan and no Credit Party makes or is obligated to make any
distribution, advance or payment of cash in connection with such Option Loan,
(ii) such Option Loan is evidenced by a promissory note payable by such employee
to the order of Parent in the face amount of such Option Loan, such promissory
note is endorsed to the Agent, the Agent is given possession of the original of
such note and the Agent is granted a first priority perfected security interest
in such note for the ratable benefit of the Lenders and the Issuing Bank, (iii)
the making of such Option Loan does not violate any statute, regulation, rule or
order of any Governmental Authority and (iv) the amount of such Option Loan,
when added to the aggregate principal balance of all other Option Loans then
outstanding, does not exceed $7,500,000.
<PAGE>
8.6 Restricted Payments.
Declare or pay any Restricted Payments payable in cash or otherwise, apply
any of its Property thereto or set apart any sum therefor, or permit any of its
Subsidiaries to do so, except:
(i) Parent may declare and pay any dividend payable solely in shares of its
common stock and
(ii) any Subsidiary may declare and pay dividends to its immediate parent.
8.7 Capital Expenditures; Operating Leases.
(a) Make any Capital Expenditures, or incur any obligation to make Capital
Expenditures, or permit any other Credit Party or any Foreign Subsidiary so to
do, other than in connection with the Physics Computer System and other Capital
Expenditures and obligations in connection therewith in an aggregate
Consolidated amount in excess of $3,500,000 in any fiscal year. Capital
Expenditures shall be calculated on a noncumulative basis so that amounts not
expended in a fiscal year may not be carried over and expended in any subsequent
fiscal year.
(b) Expend, or permit any other Credit Party or any Foreign Subsidiary to
expend, for the lease, rental or hire of real or personal property pursuant to
any rental agreement therefor, other than in connection with Capital Lease
Obligations and, excluding amounts paid in connection with the Physics Computer
System, an aggregate Consolidated amount in excess of $14,000,000 in any fiscal
year, provided that, in the event the MXL Sale/Leaseback shall be consummated,
such amount shall not exceed $15,000,000 in any fiscal year.
8.8 Business and Name Changes
(i) Materially change the nature of the business of any Borrower or its
Subsidiaries as conducted on the Effective Date, or alter or modify its
structure or status, or change its fiscal year from that in effect on the
Effective Date, or permit any of the Credit Parties or Foreign Subsidiaries so
to do, or
(ii) Change the name or chief executive office of any Borrower, any other
Credit Party or any Foreign Subsidiary unless the Agent shall have received (1)
30 days' notice prior to a change in name or chief executive office of any such
Person and (2) such documents as the Agent may request to continue the
perfection of any Liens on the Property of such Borrower, any such other Credit
Party or such Foreign Subsidiary whose name or chief executive office is to be
changed.
<PAGE>
8.9 ERISA
Cause any Pension Plan to have a Funded Current Liability Percentage of
less than 60%, or increase benefits, or permit any of its Subsidiaries so to do,
under any Employee Benefit Plan or establish or contribute to any new Employee
Benefit Plan except to the extent that the same could not reasonably be expected
to result in a Material Adverse Effect.
8.10 Prepayments of Indebtedness
Prepay or obligate itself to prepay, in whole or in part, any Indebtedness
(other than the Indebtedness under the Loan Documents), or permit any other
Credit Party or any Foreign Subsidiary so to do other than payments to another
Credit Party provided no Default or Event of Default exists before and after
giving effect to any such prepayment.
8.11 Amendments, Etc. of Certain Agreements
Subject to Section 8.8(ii) in respect of GP Canada, enter into or agree to
any amendment, modification or waiver of any term or condition of its
Organizational Documents in any way which could reasonably be expected to have a
Material Adverse Effect, or permit any of its Subsidiaries so to do.
8.12 Transactions with Affiliates
Become a party to any transaction with an Affiliate (other than a Credit
Party or a Foreign Subsidiary), or permit any Credit Party or any of the Foreign
Subsidiaries so to do, unless the Parent's, the applicable Credit Party's or
applicable Foreign Subsidiary's Managing Person shall have determined that the
terms and conditions relating thereto are as favorable to the Parent, GP Canada,
such Credit Party, or such Foreign Subsidiary as those which would be obtainable
at the time in a comparable arms-length transaction with a Person other than an
Affiliate.
8.13 Issuance of Additional Capital Stock
Issue any additional Capital Stock, or permit any Credit Party or any
Foreign Subsidiary so to do, except that Parent may issue additional Capital
Stock (i) in connection with the payment of any dividend and (ii) as long as (x)
no Default or Event of Default exists before and after giving effect to any such
issuance of Capital Stock and (y) Parent applies 100% of the Net Cash Proceeds
thereof within one Business Day of the receipt thereof in accordance with the
terms of Section 2.5(d) hereof.
<PAGE>
8.14 Limitation on Upstream Dividends by Subsidiaries
Permit or cause any of its Subsidiaries to enter into or agree, or
otherwise be or become subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person pursuant to the terms of which (i)
such Subsidiary is or would be prohibited from declaring or paying any cash
dividends on any class of its Capital Stock owned directly or indirectly by a
Borrower or any of the other Subsidiaries or from making any other distribution
on account of any class of any such Capital Stock (herein referred to as
"Upstream Dividends"), or (ii) the declaration or payment of Upstream Dividends
by a Subsidiary to a Borrower or another Subsidiary, on an annual or cumulative
basis, is or would be otherwise limited or restricted.
8.15 Limitation on Negative Pledges
Enter into any agreement, other than (i) this Agreement and (ii) purchase
money mortgages or capital leases permitted by this Agreement (in which cases,
any prohibition or limitation shall only be effective against the assets
financed thereby), or permit any of its Subsidiaries so to do, which prohibits
or limits the ability of any Borrower or any Subsidiary to create, incur, assume
or suffer to exist any Lien upon any of its Property or revenues, whether now
owned or hereafter acquired.
8.16 Margin Stock
Allow any part of the proceeds any Loan to be utilized (i) for the purpose
of "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or (ii)
for any purpose which violates, or which would be inconsistent with, the
provisions of the Regulations of such Board of Governors.
8.17 IT Adjustment Issues
Allow the IT Adjustment to exceed $36,000,000 with respect to all reserves,
charges, asset write-offs, closure costs, ongoing operating losses and other
costs and expenses relating to the IT Business in the aggregate, or during the
twelve month period from March 31, 2000 through and including March 31, 2001,
allow more than $8,500,000 of the $36,000,000 maximum IT Adjustment to be in
cash (the fact that some portion of the IT Adjustment is permitted to be a cash
expense, however, shall not be deemed a waiver or amendment of any other term,
provision or covenant that may be breached as a result of such expense).
8.18 Hydro Med Subordinated Debt Documents
Enter into any amendment, modification or waiver of any of the documents,
instruments or agreements executed pursuant to or in connection with the Hydro
<PAGE>
Med Subordinated Debt to the extent any such amendment, modification or waiver
is or could be viewed as adverse to the interests of the Agent, the Issuing Bank
or any Lender.
8.19 Intangible Assets
Obtain any patent, trademark, service mark, trade name, or copyright, or
rights with respect to the foregoing, or permit any other Credit Party or any of
the Foreign Subsidiaries so to do, unless contemporaneously therewith the
applicable Borrower, Credit Party and/or Foreign Subsidiary, as the case may be,
takes all action and executes all documents reasonably required to grant the
Agent, for the ratable benefit of the Lenders, a first Lien on the applicable
patent, trademark, service mark, trade name, or copyright, or rights with
respect to the foregoing.
8.20 Hydro Med Issues
With respect to Hydro Med Sciences, Inc., allow or permit to exist (i) any
indebtedness for borrowed money, excluding trade payables and purchase money
indebtedness incurred in connection with Capital Lease Obligations in an
aggregate amount not in excess of $500,000 or (ii) any Lien on any of its assets
(other than Liens securing the Capital Lease Obligations permitted by (i)
above).
9. DEFAULT
9.1. Events of Default
The following shall each constitute an "Event of Default" hereunder:
(a) The (i) failure of any Borrower to make any payment of principal on any
Note, or any reimbursement payment hereunder or under any Reimbursement
Agreement, when due and payable, or (ii) failure of Parent to make any deposit
into the Parent Cash Collateral Account when required hereby, or (iii) failure
of GP Canada to make any deposit into the GP Canada Cash Collateral Account when
required hereby; or
(b) The failure of any Borrower to make any payment of interest, Fees,
expenses or other amounts payable under any Loan Document (or otherwise to the
Agent with respect to the loan facilities established hereunder) within five
Business Days of the date when due and payable; or
(c) The failure of any Borrower to observe or perform any covenant or
agreement contained in Sections 2.5, 2.6, 7.1, 7.3, 7.11, 7.12 or Section 8; or
(d) The failure of any Credit Party to observe or perform any other term,
covenant, or agreement contained in any Loan Document and such failure shall
<PAGE>
have continued unremedied for a period of 30 days after such Credit Party shall
have obtained knowledge thereof; or
(e) Any representation or warranty made by any Credit Party (or by an
officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(f) Liabilities and/or other obligations of any Borrower (other than its
obligations hereunder), any of its Foreign Subsidiaries or any other Credit
Party, whether as principal, guarantor, surety or other obligor, for the payment
of any Indebtedness or operating leases in an aggregate amount in excess of
$500,000 (or the foreign currency equivalent) (i) shall become or shall be
declared to be due and payable prior to the expressed maturity thereof, or (ii)
shall not be paid when due or within any grace period for the payment thereof,
(iii) any holder of any such obligation shall have the right to declare such
obligation due and payable prior to the expressed maturity thereof or (iv) as a
consequence of the occurrence or continuation of any event or condition, any
Borrower, any of its Foreign Subsidiaries or any other Credit Party, has become
obligated to purchase or repay any Indebtedness before its regularly scheduled
maturity date; or
(g) Any license, franchise, permit, right, approval or agreement of any
Borrower, any of its Foreign Subsidiaries or any other Credit Party, is not
renewed, or is suspended, revoked or terminated and the non-renewal, suspension,
revocation or termination thereof has a Material Adverse Effect; or
(h) Any Borrower, any of its Foreign Subsidiaries or any other Credit
Party, shall (i) suspend or discontinue its business, (ii) make an assignment
for the benefit of creditors, (iii) generally not be paying its debts as such
debts become due, (iv) admit in writing its inability to pay its debts as they
become due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent
(however such insolvency shall be evidenced), (vii) file any petition or answer
or institute any proceeding seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief,
including any plan of compromise or arrangement or other corporate proceeding
involving or affecting its creditors, under any present or future statute, law
or regulation of any jurisdiction, (viii) petition or apply to any tribunal for
any receiver, custodian or any trustee or other similar official for it or any
substantial part of its Property, (ix) be the subject of any such proceeding
filed against it which remains undismissed for a period of 60 days, (x) file any
answer admitting or not contesting the material allegations of any such petition
filed against it or any order, judgment or decree approving such petition in any
such proceeding, (xi) seek, approve, consent to, or acquiesce in any such
proceeding, or in the appointment of any trustee, receiver, sequestrator,
custodian, liquidator, or fiscal agent for it, or any substantial part of its
Property, or an order is entered appointing any such trustee, receiver,
<PAGE>
custodian, liquidator or fiscal agent and such order remains in effect for 60
days, or (xii) take any formal action for the purpose of effecting any of the
foregoing or looking to the liquidation or dissolution of such Borrower, such
Foreign Subsidiary or such other Credit Party; or
(i) An order for relief is entered under the bankruptcy or insolvency laws
of any jurisdiction or any other decree or order is entered by a court having
jurisdiction (i) adjudging any Borrower, any of its Foreign Subsidiaries or any
other Credit Party, bankrupt or insolvent, (ii) approving as properly filed a
petition seeking reorganization, liquidation, arrangement, adjustment or
composition of or in respect of any Borrower, any of its Foreign Subsidiaries or
any other Credit Party, under the bankruptcy or insolvency laws of any
jurisdiction, (iii) appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) of any Borrower, any of its
Foreign Subsidiaries or any other Credit Party, or of any substantial part of
the Property of any thereof, or (iv) ordering the winding up or liquidation of
the affairs of any Borrower, any of its Foreign Subsidiaries or any other Credit
Party, and any such decree or order continues unstayed and in effect for a
period of 60 days; or
(j) Judgments or decrees against any Borrower, any of its Foreign
Subsidiaries or any other Credit Party, aggregating in excess of $500,000 (or
the foreign currency equivalent) shall remain unpaid, unstayed on appeal,
undischarged, unbonded or undismissed for a period of 60 days; or
(k) Any Loan Document shall cease, for any reason, to be in full force and
effect, or any Credit Party shall so assert in writing or shall disavow any of
its obligations under any Loan Document, or any "Event of Default" shall have
occurred under, and as such term is defined in, any Loan Document; or
(l) The occurrence of a Change in Management; or
(m) (i) Any Termination Event shall occur; (ii) any Accumulated Funding
Deficiency, whether waived, shall exist with respect to any Pension Plan; (iii)
any Person shall engage in any Prohibited Transaction involving any Employee
Benefit Plan; (iv) any Borrower, any of its Subsidiaries or any ERISA Affiliate
shall fail to pay when due an amount which is payable by it to the PBGC or to a
Pension Plan under Title IV of ERISA; (v) the imposition of any tax under
Section 4980B(a) of the Code; (vi) the assessment of a civil penalty with
respect to any Employee Benefit Plan under Section 502(c) of ERISA; or (vii) any
other event or condition shall occur or exist with respect to an Employee
Benefit Plan which in the case of clauses (i) through (vii) would, individually
or in the aggregate, have a Material Adverse Effect.
9.2 Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (i) if such event is an Event of Default
<PAGE>
specified in clause (h) or (i) above, the Parent Commitments of all of the
Lenders and the GP Canada Commitments of the Lenders shall immediately and
automatically terminate and the Revolving Credit Loans, the Term Loans, all
accrued and unpaid interest thereon and all other amounts owing under the Loan
Documents shall immediately become due and payable, and the Agent may, and, upon
the direction of the Required Lenders shall, exercise any and all remedies and
other rights provided in the Loan Documents, and (ii) if such event is any other
Event of Default, any or all of the following actions may be taken: (A) with the
consent of the Required Lenders, the Agent may, and upon the direction of the
Required Lenders shall, by notice to the Borrowers, declare the Parent
Commitments of all of the Lenders and the GP Canada Commitments of the Lenders
terminated forthwith, whereupon such Commitments shall immediately terminate,
and (B) with the consent of the Required Lenders, the Agent may, and upon the
direction of the Required Lenders shall, by notice of default to the Borrowers,
declare the Revolving Credit Loans, the Term Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents to be due
and payable forthwith, whereupon the same shall immediately become due and
payable, and the Agent may, and upon the direction of the Required Lenders
shall, exercise any and all remedies and other rights provided in the Loan
Documents. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. Each
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that the Commitments of all the Lenders shall have been
terminated or the Revolving Credit Loans, the Term Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents shall have
been declared due and payable pursuant to the provisions of this Section, any
funds received by the Agent and the Lenders from or on behalf of any Borrower
shall be applied by the Agent and the Lenders in liquidation of the Loans of
such Borrower and the other obligations of such Borrower under the Loan
Documents in the following manner and order: (i) first, to the payment of
interest on, and then the principal portion of, any Loans which the Agent may
have advanced on behalf of any Lender for which the Agent has not then been
reimbursed by such Lender or such Borrower; (ii) second, to the payment of any
fees or expenses due the Agent from one or both Borrowers, (iii) third, to
reimburse the Agent and the Lenders for any expenses (to the extent not paid
pursuant to clause (ii) above) due from such Borrower pursuant to the provisions
of Section 11.5; (iv) fourth, to the payment of accrued Fees and all other fees,
expenses and amounts due under the Loan Documents (to the extent not paid
pursuant to clause (ii) above) (other than principal and interest on the Loans
and amounts payable in connection with Interest Rate Protection Arrangements
with a Rate Protection Lender), (v) fifth, to the payment, (x) in the case of
<PAGE>
interest received from or on behalf of Parent or on account of the Parent
Facility, pro rata according to the Parent Outstanding Percentage of each
Lender, of interest due on the Revolving Credit Loans of each Lender and (y) in
the case of interest received from or on behalf of GP Canada or on account of
the GP Canada Facility, pro rata according to the GP Canada Outstanding
Percentage of each Lender, of interest due on the Term Loans of each Lender;
provided, that, to the extent a payment is not directly from a Borrower, such
payment shall be applied, in the sole discretion of the Required Lenders against
Obligations of one or both Borrowers as determined by such Required Lenders;
(vi) sixth, to the payment pro rata (x) in the case of principal received from
or on behalf of Parent or on account of the Parent Facility (the "Parent
Principal Allocation") and/or in the case of amounts received on account of
Interest Rate Protection Arrangements with a Rate Protection Lender, pro rata
according to the principal on the then outstanding Revolving Credit Loans and
the amount then owed in connection with such Interest Rate Protection
Arrangement(s); and, if more than one such Interest Rate Protection Arrangement
then exists, pro rata among all such Interest Rate Protection Arrangements and
as to the amount allocated to the Parent Principal Allocation, pro rata
according to the Parent Outstanding Percentage of each Lender, of principal on
the Revolving Credit Loans and (y) in the case of principal received from or on
behalf of GP Canada or on account of the GP Canada Facility, pro rata according
to the GP Canada Outstanding Percentage of each Lender, of principal outstanding
on the Term Loans of such Lender; provided, that, if the Agent determines that a
payment is not directly from a Borrower, such payment shall be applied, in the
sole discretion of the Required Lenders, against Obligations of one or both
Borrowers as determined by such Required Lenders; and (vii) seventh, to the
payment of any other amounts owing to the Agent, the Issuing Bank and the
Lenders under any Loan Document.
10. THE AGENT
10.1 Appointment
Each of the Issuing Bank and each Lender hereby irrevocably designates and
appoints Fleet as the Agent of the Issuing Bank and such Lender under the Loan
Documents and each of the Issuing Bank and each Lender hereby irrevocably
authorizes the Agent to take such action on its behalf under the provisions of
the Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Agent by the terms of the Loan Documents, together
with such other powers as are reasonably incidental thereto. The duties of the
Agent shall be mechanical and administrative in nature, and, notwithstanding any
provision to the contrary elsewhere in any Loan Document, the Agent shall not
have any duties or responsibilities other than those expressly set forth
therein, or any fiduciary relationship with, or fiduciary duty to, the Issuing
Bank or any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into the Loan Documents or
otherwise exist against the Agent.
10.2 Delegation of Duties
The Agent may execute any of its duties under the Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to rely upon, and
<PAGE>
shall be fully protected in, and shall not be under any liability for, relying
upon, the advice of counsel concerning all matters pertaining to such duties.
10.3 Exculpatory Provisions
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Loan Documents (except for its or such Person's own gross negligence or
willful misconduct), or (ii) responsible in any manner to the Issuing Bank or
any of the Lenders for any recitals, statements, representations or warranties
made by any Borrower or any other Credit Party or any officer thereof contained
in the Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, the Loan Documents or for the value, validity, effectiveness, genuineness,
perfection, enforceability or sufficiency of any of the Loan Documents or for
any failure of any Borrower or any other Credit Party or any other Person to
perform its obligations thereunder. The Agent shall not be under any obligation
to the Issuing Bank or any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, the Loan Documents, or to inspect the Property, books or records of any
Borrower or any other Credit Party . The Issuing Bank and the Lenders
acknowledge that the Agent shall not be under any duty to take any discretionary
action permitted under the Loan Documents unless the Agent shall be instructed
in writing to do so by the Issuing Bank and Required Lenders and such
instructions shall be binding on the Issuing Bank and all Lenders and all
holders of the Notes; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or is contrary to
law or any provision of the Loan Documents. The Agent shall not be under any
liability or responsibility whatsoever, as Agent, to any Borrower, or any other
Credit Party or any other Person as a consequence of any failure or delay in
performance, or any breach, by the Issuing Bank or any Lender of any of its
obligations under any of the Loan Documents.
10.4 Reliance by Agent
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
opinion, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by a proper Person or Persons
and upon advice and statements of legal counsel (including counsel to any
Borrower or any other Credit Party), independent accountants and other experts
selected by the Agent. The Agent may treat the Issuing Bank or each Lender, as
the case may be, or the Person designated in the last notice filed with it under
this Section, as the holder of all of the interests of the Issuing Bank or such
Lender, as the case may be, in its Loans, in its Notes, the Letters of Credit
<PAGE>
and the Reimbursement Obligations, as applicable, until written notice of
transfer, signed by the Issuing Bank or such Lender (or the Person designated in
the last notice filed with the Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the Agent,
shall have been filed with the Agent. The Agent shall not be under any duty to
examine or pass upon the validity, effectiveness, enforceability or genuineness
of the Loan Documents or any instrument, document or communication furnished
pursuant thereto or in connection therewith, and the Agent shall be entitled to
assume that the same are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be. The Agent shall be fully
justified in failing or refusing to take any action under the Loan Documents
unless it shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under the Loan Documents in accordance
with a request or direction of the Required Lenders, and such request or
direction and any action taken or failure to act pursuant thereto shall be
binding upon the Issuing Bank, all the Lenders and all future holders of the
Notes and the Reimbursement Obligations.
10.5 Notice of Default
The Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default unless the Agent has received written notice
thereof from the Issuing Bank, a Lender or a Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Issuing Bank, the Lenders and a Borrower. The Agent shall take such action
with respect to such Default or Event of Default as shall be directed by the
Required Lenders, provided, however, that unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem to be in the best interests of the Lenders.
10.6 Non-Reliance on Agent and Other Lenders
Each of the Issuing Bank and each Lender expressly acknowledges that
neither the Agent nor any of its respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Agent hereinafter, including any review
of the affairs of any Borrower or any other Credit Party, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each of
the Issuing Bank and each Lender represents to the Agent that it has,
independently and without reliance upon the Agent, the Issuing Bank or any
Lender, and based on such documents and information as it has deemed appropriate
made its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of each Borrower
and each other Credit Party and the value and Lien status of any collateral
security and made its own decision to enter into this Agreement. Each of the
<PAGE>
Issuing Bank and each Lender also represents that it will, independently and
without reliance upon the Agent, the Issuing Bank or any Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, evaluations and decisions in taking or
not taking action under any Loan Document, and to make such investigation as it
deems necessary to inform itself as to the business, operations, Property,
financial and other condition and creditworthiness of each Borrower and each
other Credit Party and the value and Lien status of any collateral security.
Except for notices, reports and other documents expressly required to be
furnished to the Issuing Bank and/or the Lenders by the Agent hereunder, the
Agent shall not have any duty or responsibility to provide the Issuing Bank or
any Lender with any credit or other information concerning the business,
operations, Property, financial and other condition or creditworthiness of any
Borrower and any other Credit Party which at any time may come into the
possession of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7 Indemnification
Each Lender agrees to indemnify and hold harmless the Agent in its capacity
as such (to the extent not promptly reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to its
Aggregate Commitment Percentage or, in the event any Loans shall be outstanding,
its Outstanding Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever including any amounts paid to
the Lenders (through the Agent) by a Borrower or any other Credit Party pursuant
to the terms of the Loan Documents, that are subsequently rescinded or avoided,
or must otherwise be restored or returned, which may at any time (including at
any time following the payment of the Revolving Credit Loans and Revolving
Credit Notes) be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of the Loan Documents or any other documents
contemplated by or referred to therein or the transactions contemplated thereby
or any action taken or omitted to be taken by the Agent under or in connection
with any of the foregoing; provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements to the
extent resulting from the finally adjudicated gross negligence or willful
misconduct of the Agent. Without limitation of the foregoing, each Lender agrees
to reimburse the Agent promptly upon demand for its pro rata share of any unpaid
costs and expenses (including reasonable fees and expenses of counsel) payable
by a Borrower under Section 11.5 to the extent that the Agent has not been paid
such fees or has not been reimbursed for such costs and expenses, by such
Borrower. The failure of any Lender to reimburse the Agent promptly upon demand
for its pro rata share of any amount required to be paid by the Lenders to the
Agent as provided in this Section shall not relieve any other Lender of its
obligation hereunder to reimburse the Agent for its pro rata share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent for such other Lender's pro rata share of such amount.
The agreements in this Section shall survive the termination of the Commitments
<PAGE>
of all of the Lenders and the payment of all amounts payable under the Loan
Documents.
10.8 Agent in Its Individual Capacity
Fleet and its affiliates may make secured or unsecured loans to, accept
deposits from, issue letters of credit for the account of, act as trustee under
indentures of, and generally engage in any kind of business with, either
Borrower or any other Credit Party as though Fleet were not Agent hereunder and
Fleet did not arrange the transactions contemplated hereby. With respect to the
Commitments made or renewed by Fleet and the Notes issued to, and the
Reimbursement Obligations owing to, Fleet, Fleet shall have the same rights and
powers under the Loan Documents as any Lender and may exercise the same as
though it were not the Agent, and the terms "Lender" and "Lenders" shall in each
case include Fleet.
10.9 Successor Agent
If at any time the Agent deems it advisable, in its sole discretion, it may
submit to the Issuing Bank, each of the Lenders and the Parent a written notice
of its resignation as Agent under the Loan Documents, such resignation to be
effective upon the earlier of (i) the written acceptance of the duties of the
Agent under the Loan Documents by a successor Agent and (ii) on the 30th day
after the date of such notice. Upon any such resignation, the Required Lenders
shall have the right to appoint from among the Lenders which is a commercial
bank a successor Agent. If no successor Agent shall have been so appointed by
the Required Lenders and accepted such appointment in writing within 30 days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Issuing Bank and the Lenders, appoint a successor
Agent, which successor Agent shall be a commercial bank organized under the laws
of the United States or any State thereof and having a combined capital,
surplus, and undivided profits of at least $250,000,000 and which shall be
reasonably acceptable to the Parent. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent's rights, powers, privileges and
duties as Agent under the Loan Documents shall be terminated. Each Borrower, the
other Credit Parties, the Issuing Bank and the Lenders shall execute such
documents as shall be necessary to effect such appointment. After any retiring
Agent's resignation as Agent, the provisions of the Loan Documents shall inure
to its benefit as to any actions taken or omitted to be taken by it, and any
amounts owing to it, while it was Agent under the Loan Documents. If at any time
there shall not be a duly appointed and acting Agent, each Borrower agrees to
make each payment due under the Loan Documents directly to the Issuing Bank and
the Lenders entitled thereto during such time.
<PAGE>
11. OTHER PROVISIONS
11.1 Amendments and Waivers
Notwithstanding anything to the contrary contained in any Loan Document,
with the written consent of the Required Lenders, the Agent and the appropriate
parties to the Loan Documents (other than the Issuing Bank and the Lenders) may,
from time to time, enter into written amendments, supplements or modifications
thereof and, with the consent of the Required Lenders, the Agent on behalf of
the Issuing Bank and the Lenders, may execute and deliver to any such parties a
written instrument waiving or consenting to the departure from, on such terms
and conditions as the Agent may specify in such instrument, any of the
requirements of the Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such amendment, supplement,
modification, waiver or consent shall:
(a) without the consent of all of the Lenders (i) increase the Parent
Commitment Amount of any Lender, (ii) extend the Parent Commitment Period, (iii)
reduce the rate or amount, or extend the time of payment, of the Parent
Commitment Fee or the Letter of Credit Commissions, (iv) reduce the rate or
amount of, or extend the time of payment of, interest on any Revolving Credit
Loan or any Revolving Credit Note or Reimbursement Obligation, (v) reduce the
amount, or extend the time of payment of any installment or other payment of
principal on any Revolving Credit Loan or any Revolving Credit Note or
Reimbursement Obligation, (vi) decrease or forgive the principal amount of any
Revolving Credit Loan or any Revolving Credit Note or Reimbursement Obligation,
or (vii) consent to any assignment or delegation by Parent of any of its rights
or obligations under any Loan Document;
(b) without the consent of all of the Lenders (i) increase the GP Canada
Commitment Amount of any Lender, (ii) reduce the rate or amount, or extend the
time of payment of, interest on any Term Loan or any Term Note, (iii) reduce the
amount, or extend the time of payment of any installment or other payment of
principal on any Term Loan or any Term Note, (iv) decrease or forgive the
principal amount of any Term Loan or any Term Note, or (v) consent to any
assignment or delegation by GP Canada of any of its rights or obligations under
any Loan Document;
(c) without the consent of all the Lenders (i) change the provisions of
Section 3.5, 3.6, 3.7, 3.9, 3.10, 9.1(a), this Section 11.1 or Section 11.7(a),
(ii) change the definition of "Required Lenders", or any provision of this
Agreement requiring the consent or approval of all Lenders (iii) change the
several nature of the Lenders' obligations, (iv) change any provision governing
the sharing of payments and liabilities among the Lenders, (v) release all or
substantially all of the obligations of any Credit Party under any Loan
Document, (other than in connection with (A) a Disposition permitted under
Section 8.4, or (B) any release specifically provided for in the Collateral
Documents), or (vi) release any substantial portion of the Collateral or any
security interest therein (other than in connection with (A) a Disposition
<PAGE>
permitted under Section 8.4, (B) a dissolution permitted by Section 7.3, or (C)
any release specifically provided for in the Collateral Documents);
(d) without the written consent of the Issuing Bank, amend, modify or waive
any provision of Sections 2.7, 2.8, 2.9 or 3.2(b)(ii) or otherwise change any of
the rights or obligations of the Issuing Bank under any Loan Document; and
(e) without the written consent of the Agent, amend, modify or waive any
provision of Section 10 or otherwise change any of the rights or obligations of
the Agent under any Loan Document.
Any such amendment, supplement, modification, waiver or consent shall apply
equally to the Agent, the Issuing Bank and each of the Lenders and shall be
binding upon the parties to the applicable Loan Document, the Lenders, the
Issuing Bank the Agent and all future holders of the Notes and the Reimbursement
Obligations. In the case of any waiver, the parties to the applicable Loan
Document, the Issuing Bank, the Lenders and the Agent shall be restored to their
former position and rights hereunder and under the outstanding Notes and other
Loan Documents to the extent provided for in such waiver, and any Default or
Event of Default waived shall not extend to any subsequent or other Default or
Event of Default, or impair any right consequent thereon. Notwithstanding
anything to the contrary contained in any Loan Document, the Agent may, at any
time and from time to time without the consent of any one or more of the
Lenders, release any Collateral or any security interest therein in connection
with (A) any disposition of such Collateral permitted by Section 8.4, (B) any
dissolution permitted by Section 7.3, or (C) any release specifically provided
for in the Collateral Documents.
11.2 Notices
All notices, requests and demands to or upon the respective parties to the
Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail, first- class postage prepaid, or, in the
case of notice by telecopy, when sent, addressed as follows in the case of
Parent, GP Canada, the Agent or the Issuing Bank, and as set forth in Schedule
11.2 in the case of each Lender, or addressed to such other addresses as to
which the Agent may be hereafter notified by the respective parties thereto or
any future holders of the Revolving Credit Notes:
Parent or GP Canada:
c/o GP Strategies Corporation
9 West 57th Street
Suite 4170
New York, New York 10019
Attention: Scott Greenberg, CFO
Telephone: (212) 230-9529
Telecopy: (212) 230-9500
with a copy to:
Patricia F. Brennan, Esq.
Morgan, Lewis & Bockius, LLP
101 Park Avenue
New York, New York
Telephone: (212) 309-6814
Telecopy: (212) 309-6273
The Agent or the Issuing Bank:
Fleet Bank, National Association
1185 Avenue of the Americas
New York, New York 10036
Attention: Vincent Pitts
Telephone: (860) 986-3783
Telecopy: (860) 986-7624
with copies to:
Fleet Financial Group, Inc.
1 Federal Street
Boston, MA 02211
Attention: John Mann cla
Telephone: (617) 346-0429
Telecopy: (617) 346-5833
and
Richard M. Skoller, Esq.
Emmet, Marvin & Martin, LLP
120 Broadway
New York, New York 10271
Telephone: (212) 238-3041
Telecopy: (212) 238-3100
<PAGE>
except that any notice, request or demand by a Borrower to or upon the Agent,
the Issuing Bank or the Lenders pursuant to Sections 2.3, 2.7 or 3.3 shall not
be effective until received. Any party to a Loan Document may rely on signatures
of the parties thereto which are transmitted by telecopy or other electronic
means as fully as if originally signed.
11.3 No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Agent, the Issuing Bank or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties and Certain Obligations
(a) All representations and warranties made under the Loan Documents and in
any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
(b) The obligations of the Borrowers under Sections 3.5, 3.6, 3.7, 3.8,
3.9, 3.10, 11.5 and 11.8 shall survive the termination of the Commitments of all
of the Lenders, the Letter of Credit Commitment, and the payment of the
Revolving Credit Loans, the Reimbursement Obligations, the Term Loans and all
other amounts payable under the Loan Documents.
11.5 Expenses
Each Borrower agrees, promptly upon presentation of a statement or invoice
therefor, and whether any Revolving Credit Loan is made or any Letter of Credit
is issued (i) to pay or reimburse Fleet (in its capacity as Agent and arranger)
for all its respective out-of-pocket costs and expenses reasonably incurred in
connection with the development, preparation, execution and syndication of, the
Loan Documents and any amendment, supplement or modification thereto (whether or
not executed or effective), any documents prepared in connection therewith and
the consummation of the transactions contemplated thereby, including the
reasonable fees and disbursements of Special Counsel, (ii) to pay or reimburse
each of the Issuing Bank, the Agent and the Lenders for all of its reasonable
out-of-pocket costs and expenses, including reasonable fees and disbursements of
counsel, incurred in connection with (A) any Default or Event of Default and any
enforcement or collection proceedings resulting therefrom or in connection with
the negotiation of any restructuring or "work-out" (whether consummated or not)
<PAGE>
of the obligations of any Credit Party under any of the Loan Documents and (B)
the enforcement of this Section and (iii) to pay, indemnify, and hold each of
the Issuing Bank, the Lenders, and the Agent harmless from and against, any and
all recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other similar taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, the Loan Documents and any such other
documents, and (iv) to pay, indemnify and hold each of the Issuing Bank, the
Lenders and the Agent and each of its officers, directors and employees harmless
from and against any and all other liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including reasonable counsel fees and
disbursements) with respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Revolving Credit Loans and the Letters
of Credit and the enforcement and performance of the provisions of any
subordination agreement involving the Agent and the Lenders (all the foregoing,
collectively, the "Indemnified Liabilities") and, if and to the extent that the
foregoing indemnity may be unenforceable for any reason, each Borrower agrees to
make the maximum payment not prohibited under applicable law; provided, however,
that the Borrowers shall have no obligation to pay Indemnified Liabilities to
the Agent, the Issuing Bank or any Lender arising from the finally adjudicated
gross negligence or willful misconduct of the Agent, the Issuing Bank or such
Lender or claims between one indemnified party and another indemnified party.
The agreements in this Section shall survive the termination of the Commitments
of all of the Lenders, the Letter of Credit Commitment and the payment of all
amounts payable under the Loan Documents.
11.6 Lending Offices
(a) Each Lender shall have the right at any time and from time to time to
transfer its Loans and Reimbursement Obligations to a different office, provided
that such Lender shall promptly notify the Agent and each Borrower of any such
change of office. Such office shall thereupon become such Lender's lending
office, provided, however, that no Lender shall be entitled to receive any
greater amount under Sections 3.5, 3.7 and 3.10, as a result of a transfer of
any such Loans and Reimbursement Obligations to a different office of such
Lender than it would be entitled to immediately prior thereto unless such claim
would have arisen even if such transfer had not occurred.
(b) Each Lender agrees that, upon the occurrence of any event giving rise
to any increased cost or indemnity under Sections 3.5, 3.7 and 3.10 with respect
to such Lender, it will, if requested by a Borrower, use reasonable efforts to
designate another lending office for any Loans and Reimbursement Obligations
affected by such event, provided that such designation is made on such terms
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section shall affect
<PAGE>
or postpone any of the obligations of any Borrower or the right of any Lender
provided in Sections 3.5, 3.6, 3.7 and 3.10.
11.7 Successors and Assigns
(a) This Agreement, the Notes and the other Loan Documents to which any
Borrower is a party shall be binding upon and inure to the benefit of such
Borrower, the Lenders, the Agent, the Issuing Bank all future holders of the
Notes and Reimbursement Obligations and their respective successors and assigns.
No Borrower shall delegate any obligation or duty under any Loan Document
without the prior written consent of the Agent, the Issuing Bank and each
Lender.
(b) Subject to Section 11.7(e), any Lender may at any time assign all or
any portion of its rights under any Loan Document to any Federal Reserve Bank.
(c) In addition to its rights under Section 11.7(b), each Lender shall have
the right to sell, assign, transfer or negotiate (each an "Assignment") all or a
portion of its Loans, its Commitment and its Notes, to any subsidiary or
Affiliate of such Lender, to any other Lender, or to any other bank, insurance
company, financial institution, pension fund, mutual fund or other similar fund,
provided that (i) each such Assignment shall be of a constant, and not a
varying, percentage of all of the assignor Lender's rights and obligations under
the Loan Documents, (ii) the Commitment Amount of the Commitment assigned shall
be not less than $5,000,000 or the full Commitment Amount of such assignor
Lender's Commitment, (iii) unless the assignee is another Lender or a subsidiary
or Affiliate of any Lender, or unless at the time of such Assignment an Event of
Default shall exist, Parent shall have consented thereto in writing (which
consent shall not be unreasonably withheld), and (iv) the assignor Lender and
such assignee shall deliver to the Agent three copies of an Assignment and
Acceptance Agreement executed by each of them, along with an assignment fee in
the sum of $3,500 for the account of the Agent. Upon receipt of such number of
executed copies of each such Assignment and Acceptance Agreement together with
the assignment fee therefor and Parent's consent to such Assignment, if
required, the Agent shall record the same and execute not less than two copies
of such Assignment and Acceptance Agreement in the appropriate place, deliver
one such copy to the assignor and one such copy to the assignee, and deliver one
photocopy thereof, as executed, to Parent. From and after the Assignment
Effective Date specified in, and as defined in, such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and shall for all
purposes of this Agreement and the other Loan Documents be deemed a "Lender"
and, to the extent provided in such Assignment and Acceptance Agreement, the
assignor Lender thereunder shall be released from its obligations under this
Agreement and the other Loan Documents. Each Borrower agrees that, if requested,
in connection with each such Assignment, it shall at its own cost and expense
execute and deliver (1) to the Agent or such assignee a Revolving Credit Note in
a maximum principal amount equal to the Parent Commitment Amount of the
Commitment assumed by such assignee, (2) to the Agent or such assignor Lender,
in the event that such assignor Lender shall not have assigned all of its Parent
Commitment, a Revolving Credit Note in a maximum principal amount equal to the
<PAGE>
Commitment Amount of the Commitment retained by such assignor, in each case
either in escrow pending the delivery of, or against receipt of, such assignor
Lender's existing Revolving Credit Note, (3) to the Agent or such assignee a
Term Note in a principal amount equal to the GP Canada Credit Exposure assumed
by such assignee, and (4) to the Agent or such assignor Lender, in the event
that such assignor Lender shall not have assigned all of its GP Canada Credit
Exposure, a Term Note in a principal amount equal to the GP Canada Credit
Exposure retained by such assignor, in each case either in escrow pending the
delivery of, or against receipt of, such assignor Lender's existing Revolving
Credit Note. The Agent shall be entitled to rely upon the representations and
warranties made by the assignee under each Assignment and Acceptance Agreement.
(d) In addition to the participations provided for in Section 11.11, each
Lender may grant participations in all or any part of its Loans, its Notes and
its Commitments to one or more banks, insurance companies, pension funds, mutual
funds or other financial institutions, provided that (i) such Lender's
obligations under this Agreement and the other Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
to this Agreement and the other Loan Documents for the performance of such
obligations, (iii) the applicable Borrower, the Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents, (iv) the granting of such participation does not
require that any additional loss, cost or expense be borne by any Borrower at
any time, and (v) the voting rights of any holder of any participation shall be
limited to decisions that in accordance with Section 11.1 require the consent of
all of the Lenders.
(e) No Lender shall, as between and among the Borrowers, the Agent, the
Issuing Bank and such Lender, be relieved of any of its obligations under the
Loan Documents as a result of any assignment of or granting of participations
in, all or any part of its Loans, its Commitment and its Note, except that a
Lender shall be relieved of its obligations to the extent of any such Assignment
of all or any part of its Loans, its Commitments or its Notes pursuant to
Section 11.7(c).
11.8 Indemnity
Each Borrower agrees, to defend, protect, indemnify, and hold harmless the
Agent, the Issuing Bank and each and all of the Lenders, each of their
respective Affiliates and each of the respective officers, directors, employees
and agents of each of the foregoing (each an "Indemnified Person" and,
collectively, the "Indemnified Persons") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including the fees and disbursements of counsel to such Indemnified Persons) in
connection with any investigative, administrative or judicial proceeding,
whether direct, indirect or consequential and whether based on any federal,
<PAGE>
state or provincial laws or other statutory regulations, including securities
and commercial laws and regulations, under common law or at equitable cause, or
on contract or otherwise, including any liabilities and costs under
environmental laws, Federal, state, provincial or local health or safety laws,
regulations, or common law principles, arising from or in connection with the
past, present or future operations of any Borrower, any other Credit Party, or
their respective predecessors in interest, or the past, present or future
environmental condition of the Property of any Borrower or any of their
Subsidiaries, the presence of asbestos-containing materials at any such
Property, or the release or threatened release of any Hazardous Substance (as
defined under applicable environmental law) into the environment from any such
Property) in any manner relating to or arising out of the Loan Documents, any
commitment letter or fee letter executed and delivered by any Borrower or any of
its Subsidiaries, the Issuing Bank and/or the Agent, the capitalization of any
Borrower or any of its Subsidiaries, the Commitments, the Letter of Credit
Commitment, the making of, issuance of, management of and participation in the
Loans or the Letters of Credit, or the use or intended use of the Letters of
Credit and the proceeds of the Loans hereunder, provided that no Borrower shall
have any obligation under this Section to an Indemnified Person with respect to
any of the foregoing to the extent found in a final judgment of a court having
jurisdiction to have resulted primarily out of the gross negligence or willful
misconduct of such Indemnified Person or arising solely from claims between one
such Indemnified Person and another such Indemnified Person. The indemnity set
forth herein shall be in addition to any other obligations or liabilities of
either or both Borrowers to each Indemnified Person under the Loan Documents or
at common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Commitments of all of the Lenders, the Letter
of Credit Commitment and the payment of all Indebtedness of the Credit Parties
under the Loan Documents.
11.9 Limitation of Liability
No claim may be made by any Borrower, any other Credit Party, any of its
Subsidiaries, any Lender or other Person against the Agent, any Lender, or any
directors, officers, employees, or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by any Loan Document, or any act, omission or event
occurring in connection therewith, and each of each Borrower, its Subsidiaries,
such other Credit Party, any such Lender or other Person hereby waives, releases
and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
11.10 Counterparts
Each Loan Document (other than the Notes) may be executed by one or more of
the parties thereto on any number of separate counterparts and all of said
<PAGE>
counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document or to any document evidencing, and
of any an amendment, modification, consent or waiver to or of any Loan Document
transmitted by telecopy shall be deemed to be an originally executed
counterpart. A set of the copies of the Loan Documents signed by all the parties
thereto shall be deposited with each of the Borrowers, the Issuing Bank, the
Agent and the Lenders. Any party to a Loan Document may rely upon the signatures
of any other party thereto which are transmitted by telecopy or other electronic
means to the same extent as if originally signed.
11.11 Adjustments; Set-off
(a) If any Lender (a "Benefited Parent Lender"), shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of its Revolving Credit Loans, its Revolving Credit
Notes or the Reimbursement Obligations in excess of its Parent Outstanding
Percentage of payments then due and payable on account of the Revolving Credit
Loans, the Revolving Credit Notes and the Reimbursement Obligations received by
all the Lenders, then such Benefited Parent Lender shall forthwith purchase,
without recourse, for cash, from the other Lenders such participations in their
Revolving Credit Loans and Revolving Credit Notes as shall be necessary to cause
such Benefited Parent Lender to share such excess payment with each of them
according to their Parent Outstanding Percentages, provided, however, that if
all or any portion of such excess payment is thereafter recovered from such
Benefited Parent Lender, such purchase from such other Lenders shall be
rescinded, and each such other Lender shall repay to such Benefited Parent
Lender the purchase price to the extent of such recovery, together with an
amount equal to such other Lender's pro rata share (according to the proportion
of (i) the amount of such other Lender's required repayment to (ii) the total
amount so recovered from such Benefited Parent Lender) of any interest or other
amount paid or payable by such Benefited Parent Lender in respect of the total
amount so recovered. Each Borrower agrees that such Benefited Parent Lender so
purchasing a participation from such other Lenders pursuant to this subsection
(a) may exercise such rights to payment (including the right of set-off) with
respect to such participation as fully as such Benefited Parent Lender were the
direct creditor of such Parent in the amount of such participation.
(b) If any Lender (a "Benefited GP Canada Lender"), shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of its Term Loans, or its Term Notes in excess
of its GP Canada Outstanding Percentage of payments then due and payable on
account of the Term Loans or the Term Notes received by all the Lenders, then
such Benefited GP Canada Lender shall forthwith purchase, without recourse, for
cash, from the other Lenders such participations in their Term Loans and GP
<PAGE>
Canada Revolving Credit Notes as shall be necessary to cause such Benefited GP
Canada Lender to share such excess payment with each of them according to their
GP Canada Outstanding Percentages, provided, however, that if all or any portion
of such excess payment is thereafter recovered from such Benefited GP Canada
Lender, such purchase from such other Lenders shall be rescinded, and each such
other Lender shall repay to such Benefited GP Canada Lender the purchase price
to the extent of such recovery, together with an amount equal to such other
Lender's pro rata share (according to the proportion of (i) the amount of such
other Lender's required repayment to (ii) the total amount so recovered from
such Benefited GP Canada Lender) of any interest or other amount paid or payable
by such Benefited GP Canada Lender in respect of the total amount so recovered.
Each Borrower agrees that such Benefited GP Canada Lender so purchasing a
participation from such other Lenders pursuant to this subsection (a) may
exercise such rights to payment (including the right of set-off) with respect to
such participation as fully as such Benefited GP Canada Lender were the direct
creditor of GP Canada in the amount of such participation.
(c) In addition to any rights and remedies of the Issuing Bank and the
Lenders provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with the Loan Documents, or
at any time upon the occurrence and during the continuance of an Event of
Default, under Sections 9.1(a) or (b), each of the Issuing Bank and the Lenders
shall have the right, without prior notice to any Borrower or any other Credit
Party, any such notice being expressly waived by each Borrower and each other
Credit Party to the extent not prohibited by applicable law, to set-off and
apply against any indebtedness, whether matured or unmatured, of any Borrower or
such other Credit Party, as the case may be, to the Issuing Bank or such Lender,
as the case may be, any amount owing from the Issuing Bank or such Lender, as
the case may be, to any Borrower or such other Credit Party, as the case may be,
at, or at any time after, the happening of any of the above- mentioned events.
To the extent not prohibited by applicable law, the aforesaid right of set-off
may be exercised by the Issuing Bank or such Lender, as the case may be, against
any Borrower or such other Credit Party, as the case may be, or against any
trustee in bankruptcy, custodian, debtor in possession, assignee for the benefit
of creditors, receiver, or execution, judgment or attachment creditor of any
Borrower or such other Credit Party, as the case may be, or against anyone else
claiming through or against any Borrower or such other Credit Party, as the case
may be, or such trustee in bankruptcy, custodian, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have
been exercised by the Issuing Bank or such Lender, as the case may be, prior to
the making, filing or issuance, or service upon the Issuing Bank or such Lender,
as the case may be, of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each of the
Issuing Bank and the Lenders agrees promptly to notify a Borrower and the Agent
after any such set-off and application made by the Issuing Bank or such Lender,
as the case may be, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
<PAGE>
11.12 Construction
Each party to a Loan Document represents that it has been represented by
counsel in connection with the Loan Documents and the transactions contemplated
thereby and that the principle that agreements are to be construed against the
party drafting the same shall be inapplicable.
11.13 Governing Law
The Loan Documents and the rights and obligations of the parties thereunder
shall be governed by, and construed and interpreted in accordance with, the
internal laws of the State of New York, without regard to principles of conflict
of laws, but including Section 5-1401 of the General Obligations Law.
11.14 Headings Descriptive
Section headings have been inserted in the Loan Documents for convenience
only and shall not be construed to be a part thereof.
11.15 Severability
Every provision of the Loan Documents is intended to be severable, and if
any term or provision thereof shall be invalid, illegal or unenforceable for any
reason, the validity, legality and enforceability of the remaining provisions
thereof shall not be affected or impaired thereby, and any invalidity,
illegality or unenforceability in any jurisdiction shall not affect the
validity, legality or enforceability of any such term or provision in any other
jurisdiction.
11.16 Integration
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Agent and the Borrowers with respect to
certain fees, the Loan Documents embody the entire agreement and understanding
among each Borrower, the Agent, the Issuing Bank and the Lenders with respect to
the subject matter thereof and supersede all prior agreements and understandings
among each Borrower, the Agent, the Issuing Bank and the Lenders with respect to
the subject matter thereof.
11.17 Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
<PAGE>
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Credit Party hereby agrees that a final judgment in any such suit, action
or proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
11.18 Service of Process
Each party to a Loan Document hereby irrevocably consents to the service of
process in any suit, action or proceeding by sending the same by first class
mail, return receipt requested or by overnight courier service, to the address
of such party set forth in Section 11.2 of the applicable Loan Document executed
by such party. Each party to a Loan Document hereby agrees that any such service
(i) shall be deemed in every respect effective service of process upon it in any
such suit, action, or proceeding, and (ii) shall to the fullest extent
enforceable by law, be taken and held to be valid personal service upon and
personal delivery to it.
11.19 No Limitation on Service or Suit
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Agent, the Issuing Bank or any
Lender to serve process in any manner permitted by law or limit the right of the
Agent, the Issuing Bank or any Lender to bring proceedings against any Credit
Party in the courts of any jurisdiction or jurisdictions in which such Credit
Party may be served.
11.20 WAIVER OF TRIAL BY JURY
EACH OF THE AGENT, THE ISSUING BANK, THE LENDERS AND EACH BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE ISSUING BANK,
THE AGENT, OR THE LENDERS, OR COUNSEL TO THE ISSUING BANK, THE AGENT OR THE
LENDERS, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ISSUING BANK, THE
AGENT OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE
THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. EACH BORROWER ACKNOWLEDGES THAT
THE ISSUING BANK, THE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
<PAGE>
11.21 Treatment of Certain Information
Each of the Issuing Bank and Lenders understands that some of the
information furnished to it pursuant to this Loan Agreement may be received by
it prior to the time that such information shall have been made public, and each
of the Issuing Bank and Lenders hereby agree that it will keep, and will direct
its officers and employees to keep, all the information provided to it pursuant
to this Loan Agreement confidential prior to its becoming public (through
publication other than as a result of action by Issuing Bank and one of the
Lenders in violation of this Section 11.21) subject, however, to (i) disclosure
to officers, directors, employees, representatives, agents, auditors,
consultants, advisors, lawyers and affiliates of the Issuing Bank or such
Lender, in the ordinary course of business, (ii) disclosure to such officers,
directors, employees, agents and representatives of a prospective assignee or
participant as need to know such information in connection with the evaluation
of a possible participation in the Commitments hereunder (who will be informed
of the confidential nature of the material); (iii) the obligations of the
Issuing Bank and Lenders or a participant under applicable law, or pursuant to
subpoenas or other legal process, to make information available to governmental
agencies and examiners or to others and the right of the Issuing Bank and
Lenders to use such information in proceedings to enforce their rights and
remedies hereunder or under any other Loan Document or in any proceeding against
the Issuing Bank and lenders in connection with this Loan Agreement or under any
other Loan Document or the transactions contemplated hereunder; (iv) disclosure
to the extent such information (A) becomes publicly available other than as a
result of a breach of this Loan Agreement or (B) becomes available to the
Issuing Bank or Lender or a participant on a non-confidential basis, not in
breach of any agreement or other obligation to the Parent, from a source other
than the Parent; (v) disclosure to the extent the Parent shall have consented to
such disclosure in writing; or (vi) the Issuing Bank or each Lender or
participant's right to make information available (A) to any corporation
controlled by the Issuing Bank or Lender or participant or under common control
with the Issuing Bank or Lender or participant in connection with the sale of a
participation by such Lender or participant to such other corporation provided
such transferee agrees to be bound by confidentiality or (B) in accordance with
Section 11.21.
11.22 Judgment Currency
(a) If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due to a Lender in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties agree, to
the fullest extent that they may effectively do so, that the rate of exchange
used shall be that at which, in accordance with normal banking procedures, such
Lender could purchase the Original Currency with the Other Currency on the
Business Day preceding the day on which final judgment is given or, if permitted
by applicable law, on the day on which the judgment is paid or satisfied.
<PAGE>
(b) The obligations of the Borrowers in respect of any sum due in the
Original Currency from it to a Lender under any of the Loan Documents shall,
notwithstanding any judgment in any Other Currency, be discharged only to the
extent that on the Business Day following receipt by the Lender of any sum
adjudged to be so due in the Other Currency, the Lender may, in accordance with
normal banking procedures, purchase the Original Currency with such Other
Currency. If the amount of the Original Currency so purchased is less than the
sum originally due to the Lender in the Original Currency, the applicable
Borrower agrees, as a separate obligation and notwithstanding the judgment, to
indemnify the Lender, against any loss, and, if the amount of the Original
Currency so purchased exceeds the sum originally due to the Lender in the
Original Currency, the Lender shall remit such excess to such Borrower.
11.23 Pledge to Federal Reserve
Any Bank may at any time pledge all or any portion of its rights under the
Loan Documents including any portion of any Note payable to it to any of the
twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341. No such pledge or enforcement thereof shall
release any such Bank from its obligations under any of the Loan Documents.
11.24 Lost Notes
Upon receipt of an affidavit of an officer of any Bank as to the loss,
theft, destruction or mutilation of any Note or any other security document
which is not of public record, and, in the case of any such loss, theft,
destruction or mutilation, upon surrender and cancellation of such Note or other
Collateral Document, the applicable Borrower will issue, in lieu thereof, a
replacement Note or other Collateral Document in the same principal amount
thereof and otherwise of like tenor.
11.25 Interest Adjustment
All agreements between the Credit Parties and the Agent and the Lenders are
hereby expressly limited so that in no contingency or event whatsoever, whether
by reason of acceleration of maturity of the indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to the Lenders for the use
or the forbearance of the indebtedness evidenced by the Notes exceed the maximum
permissible under applicable law. As used herein, the term "applicable law"
shall mean the law in effect as of the date hereof provided, however, that in
the event there is a change in the law which results in a higher permissible
rate of interest, then the Loan Documents shall be governed by such new law as
of its effective date. In this regard, it is expressly agreed that it is the
intent of the Credit Parties, the Agent and the Lenders in the execution,
delivery and acceptance of this Agreement to contract in strict compliance with
the laws of the State of New York from time to time in effect. If, under or from
any circumstances whatsoever, fulfillment of any provision hereof or of any of
the Loan Documents at the time of performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by applicable
law, then the obligation to be fulfilled shall automatically be reduced to the
<PAGE>
limits of such validity, and if under or from any circumstances whatsoever the
Lenders should ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied to
the reduction of the principal balance evidenced by a Note (in such manner as
the Lenders may determine in their sole discretion) and not to the payment of
interest; provided that, subject to Section 2.2(c) hereof, with respect to the
GP Canada Obligations, same shall be applied, or shall be deemed to have been
applied as a prepayment of the Term Loans of such Lender. This provision shall
control every other provision of all agreements between the Credit Parties and
the Agent and the Lenders.
11.26 No Set-off or Counterclaim; Loan Documents in Full Effect
Each Borrower hereby acknowledges, confirms and declares that (i) all sums
owing to the Agent and/or the Lenders in connection with the Loan Documents are
owed without offset, deduction, counterclaim or defense of any kind or nature to
the payment thereof and (ii) the Loan Documents and the Liens and security
interests created thereby are valid, subsisting and, to each Borrower's
knowledge, perfected liens and security interests.
11.27 Obligations Unimpaired; Amendment and Restatement
(a) GP Canada hereby acknowledges, confirms and declares that its Borrower
Security Agreement remains in full force and effect and is unimpaired by the
transactions contemplated by this Agreement and the Liens created thereunder
remain first priority perfected Liens, unimpaired and undischarged.
(b) This Agreement amends and restates the Original Agreement and all
indebtedness, liabilities, Obligations, Liens and security interests arising or
created under the Loan Documents continue in full force and effect (except as
expressly heretofore modified and/or modified and/or amended and restated in
connection with the transactions contemplated by this Agreement), unimpaired and
undischarged. This Agreement is a replacement, consolidation, amendment and
restatement of the Original Agreement and IS NOT A NOVATION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
GP STRATEGIES CORPORATION
By:
Name: Scott N. Greenberg
Title: Vice President and
Chief Financial Officer
GENERAL PHYSICS CANADA LTD.
By:
Name: Scott N. Greenberg
Title: Vice President and
Chief Financial Officer
<PAGE>
FLEET BANK, NATIONAL ASSOCIATION,
Individually, as Issuing Bank and as Agent
By:
Name: Vincent Pitts
Title: Vice President
KEYBANK, NATIONAL ASSOCIATION
By:
Name: Brendan Sachtjen
Title: Senior Vice President
MELLON BANK, N.A.
By:
Name: Gary Best
Title: Vice President
<PAGE>
SUMMIT BANK
By:
Name: Kevin Behan
Title: Vice President
THE DIME SAVINGS BANK
OF NEW YORK, FSB
By:
Name: Michael T. Brolly
Title: Vice President
