Exhibit 10.0
GP STRATEGIES CORPORATION
AND
NATIONAL PATENT DEVELOPMENT CORPORATION
NOTE AND WARRANT PURCHASE AGREEMENT
Dated August 8, 2003
TABLE OF CONTENTS
Page
I. The Exchange.............................................................1
1.1. Authorization of Notes and GP Warrants..........................1
1.2. Terms of the Exchange...........................................1
1.3. Closing.........................................................2
1.4. Issue of NPDC Warrants..........................................2
II. Conditions to Obligations of the Purchaser...............................3
2.1. Accuracy of Representations; Compliance with Conditions;
No Default...................................................3
2.2. GP Secretary's Certificate......................................3
2.3. GP Incumbency Certificate.......................................3
2.4. NPDC Secretary's Certificate....................................4
2.5. NPDC Incumbency Certificate.....................................4
2.6. MXL Secretary's Certificate.....................................4
2.7. MXL Incumbency Certificate......................................4
2.8. Opinions of Counsel.............................................4
2.9. Transaction Documents...........................................4
2.10. Legal Action....................................................4
2.11. No Governmental Action..........................................5
2.12. NYSE Listing....................................................5
2.13. Payment of Fees.................................................5
2.14. Bank Consent....................................................5
2.15. Title Insurance, Etc............................................5
2.16. No Material Adverse Change......................................5
III. Conditions to the Obligations of GP and NPDC.............................6
3.1. Accuracy of Representations and Compliance with Conditions......6
3.2. Legal Action....................................................6
3.3. No Governmental Action..........................................6
3.4. NYSE Listing....................................................6
3.5. Bank Consent....................................................6
IV. Representations and Warranties of GP.....................................6
4.1. Organization and Qualification..................................6
4.2. SEC Reports.....................................................7
4.3. Capitalization..................................................7
4.4. Litigation and Claims...........................................7
4.5. Authority to Sell; Enforceability; Valid Issuance...............7
4.6. No Conflicts....................................................8
4.7. No Registration Required........................................8
4.8. No Event of Default.............................................9
4.9. Title to Premises...............................................9
4.10. Environmental Matters...........................................9
4.11. GP Taxes...................................................... 10
4.12. Broker's or Finder's Commissions; Financial Advisory Fees......10
4.13. Solvency...................................................... 10
4.14. Permits....................................................... 10
4.15. Subsidiaries...................................................10
4.16. Disclosure.....................................................10
V. Representations and Warranties of NPDC..................................11
5.1. Organization and Qualification.................................11
5.2. Capitalization; MXL............................................11
5.3. Litigation and Claims..........................................11
5.4. Authority to Sell; Enforceability; Valid Issuance..............11
5.5. No Conflicts...................................................12
5.6. No Registration Required.......................................12
5.7. NPDC Taxes.....................................................13
5.8. Broker's or Finder's Commissions; Financial Advisory Fees......13
5.9. Disclosure.....................................................13
VI. Representations and Warranties of MXL...................................13
6.1. Organization and Qualification.................................13
6.2. Authority; Enforceability......................................13
6.3. No Conflicts...................................................14
6.4. Title to Premises..............................................14
6.5. Disclosure.....................................................14
VII. Representations and Warranties of the Purchasers........................15
7.1. Authority to Buy...............................................15
7.2. Non-Distributive Intent........................................15
7.3. Information and Experience.....................................15
7.4. Purchaser Status...............................................15
7.5. Broker's or Finder's Commissions; Financial Advisory Fees......15
VIII. Covenants and Agreements............................................15
8.1. Advice of Changes..........................................16
8.2. Furnish Future Information.................................16
8.3. Mortgage...................................................16
8.4. No Liability...............................................17
8.5. Transfer Restrictions......................................17
8.6. Bank Consent...............................................18
8.7. Title Insurance............................................18
8.8. NYSE Listing...............................................18
8.9. Warrant Purchase...........................................18
8.10. Spin-Off...................................................18
8.11. Subordination Agreement....................................18
IX. Agent...............................................................18
9.1. Appointment and Authority..................................18
9.2. Performance of Duties and Obligations......................22
9.3. Liquidation................................................23
9.4. Successor Agent............................................23
9.5. Fees and Expenses of Agent.................................23
9.6. Indemnification............................................23
X. Indemnification.....................................................24
10.1. General 24
10.2. Indemnity Procedures.......................................24
10.3. Exclusivity................................................26
XI. Termination.........................................................26
11.1. Termination................................................26
11.2. Effect of Termination......................................27
XII. Miscellaneous.......................................................27
12.1. Costs and Expenses.........................................27
12.2. Further Actions............................................27
12.3. Entire Understanding.......................................27
12.4. Amendments and Waivers.....................................27
12.5. Notices 27
12.6. No Waiver; Remedies Cumulative.............................29
12.7. Binding Effect.............................................29
12.8. No Third Party Beneficiaries...............................30
12.9. Separability...............................................30
12.10. Headings 30
12.11. Counterparts; Governing Law................................30
XIII. Definitions.........................................................30
LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Form of Note
Exhibit B - Form of GP Warrant
Exhibit C - Form of NPDC Warrant
Exhibit D - Form of Mortgage
Exhibit E - Form of GP Registration Rights Agreement
Exhibit F - Form of NPDC Registration Rights Agreement
Exhibit G - Form of Indemnity Agreement
Exhibit H - Form of Opinion of Andrea Kantor, Esq.
Exhibit I - Form of Opinion of Duane Morris LLP
Exhibit J - Form of Opinion of Counsel to NPDC
Exhibit K - Form of Subordination Agreement
Schedule 1.2 - Purchasers
Schedule 2.15 - Scheduled Encumbrances
Schedule 4.15 - GP Subsidiaries
Schedule 4.16 - Disclosure Documents
NOTE AND WARRANT Purchase Agreement
Agreement, dated August 8, 2003, among GP Strategies Corporation, a
Delaware corporation ("GP"), National Patent Development Corporation, a Delaware
corporation ("NPDC"), MXL Industries, Inc., a Delaware corporation ("MXL"), the
purchasers set forth on the signature pages hereto (the "Purchasers"), and
Gabelli Funds, LLC, as agent ("Agent").
The Purchasers desire to acquire the Notes, the GP Warrants, and, upon
the completion of the Spin-Off of NPDC by GP, the NPDC Warrants (each as defined
below), in exchange for cash as hereinafter provided, and GP and NPDC desire to
effect such exchange.
Certain capitalized terms used in this Agreement are defined in Article
XIII; references to a "Schedule" or an "Exhibit" are, unless otherwise
specified, to a Schedule or an Exhibit attached to this Agreement.
I. The Exchange
1.1. Authorization of Notes and GP Warrants.
(a) GP has authorized the issue and sale of $7,500,000 aggregate principal
amount of its 6% Conditional Subordinated Notes due 2008. Such 6%
Conditional Subordinated Notes due 2008 shall be substantially in the
form set forth in Exhibit A and are herein referred to individually as
a "Note" and collectively as the "Notes," which terms shall also
include any notes delivered in exchange or replacement therefor.
(b) GP has also authorized the issue and sale of 937,500 warrants, each
entitling the holder thereof to purchase (subject to adjustment as
provided therein) one share ("GP Warrant Shares") of GP Common Stock.
Such warrants shall be evidenced by warrant certificates substantially
in the form set forth in Exhibit B ("GP Warrant Certificates," which
term shall also include any warrant certificates delivered in exchange
or replacement therefor) and are herein referred to individually as a
"GP Warrant" and collectively as the "GP Warrants."
(c) NPDC has authorized the issue of up to the NPDC Warrant Amount of
warrants, each entitling the holder thereof to purchase (subject to
adjustment as provided therein) one share ("NPDC Warrant Shares") of
NPDC Common Stock. Such warrants shall be evidenced by warrant
certificates in the form set forth in Exhibit C ("NPDC Warrant
Certificates," which term shall also include any warrant certificates
delivered in exchange or replacement therefor) and are herein referred
to individually as an "NPDC Warrant" and collectively as the "NPDC
Warrants."
1.2. Terms of the Exchange. On the basis of the representations, warranties,
covenants, and agreements contained in this Agreement and subject to
the terms and conditions of this Agreement, at the Closing (as defined
below), GP shall issue and sell to each of the Purchasers, and each of
the Purchasers will purchase from GP, (a) a Note in the principal
amount specified opposite such Purchaser's name in Schedule 1.2 and (b)
a number of GP Warrants specified opposite such Purchaser's name in
Schedule 1.2, at a purchase price for such Note and GP Warrants
collectively equal to 100% of the principal amount of such Note. The
obligations of each Purchaser hereunder are several and not joint
obligations and no Purchaser shall have any obligation or liability to
any person for the performance or non-performance by any other
Purchaser hereunder.
1.3. Closing.
(a) The closing of the transactions contemplated by Section 1.2 (the
"Closing") shall take place at the offices of Duane Morris LLP, 380
Lexington Avenue, New York, New York, at 10:00 a.m. local time on the
second Business Day after the condition in Section 2.14 has been
satisfied (the "Closing Date"). The Closing may occur at such different
place, different time, or different date as GP, NPDC, the Purchasers,
and the Agent agree in writing.
(b) At the Closing, GP shall deliver to each Purchaser, against delivery by
such Purchaser to GP or its order, by wire transfer of immediately
available funds, of payment of the full purchase price for the Note and
GP Warrants to be purchased by such Purchaser:
(i) a Note in the principal amount to be purchased by such Purchaser, dated
the Closing Date, and registered in the name of such Purchaser; and
(ii) a GP Warrant Certificate representing the GP Warrants to be purchased
by such Purchaser, dated the Closing Date, and registered in the name
of such Purchaser.
(c) At the Closing, GP, NPDC, the Purchasers, and the Agent, as applicable,
shall deliver the following:
(i) A Mortgage, Security Agreement and Assignment of Leases (the
"Mortgage"), substantially in the form set forth in Exhibit D;
(ii) A GP Registration Rights Agreement (the "GP Registration Rights
Agreement"), substantially in the form set forth in Exhibit E;
(iii) An NPDC Registration Rights Agreement (the "NPDC Registration Rights
Agreement"), substantially in the form set forth in Exhibit F;
(iv) An Indemnity Agreement (the "Indemnity Agreement"), substantially in
the form set forth in Exhibit G; and
(v) Each certificate or other document required to be delivered by such
party pursuant to Article II or III.
1.4. Issue of NPDC Warrants. On the basis of the representations,
warranties, covenants, and agreements contained in this Agreement and subject to
the terms and conditions of this Agreement, and in consideration of the
contemplated contribution of assets by GP to NPDC in connection with the
Spin-Off, NPDC,
effective as of the Spin-Off Date, will issue, to each holder (a "GP Warrant
Holder") of record of GP Warrants outstanding on the NPDC Warrant Record Date, a
number of NPDC Warrants equal to the greatest whole number of NPDC Warrants
equal to or less than the NPDC Warrant Amount multiplied by a fraction, the
numerator of which is the number of GP Warrants held by such GP Warrant Holder
on the NPDC Warrant Record Date and the denominator of which is 937,500. On or
as soon as practicable after the Spin-Off Date but in no event later than the
fifth Business Day after such date, NPDC shall deliver to each GP Warrant Holder
an NPDC Warrant Certificate representing the NPDC Warrants to which such GP
Warrant Holder is entitled pursuant to this Section 1.4.
II. Conditions to Obligations of the Purchaser
The obligations of each of the Purchasers at the Closing are subject,
at the option of the Purchasers, to the following conditions:
2.1. Accuracy of Representations; Compliance with Conditions; No Default.
All representations and warranties of GP, NPDC, or MXL contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing as though such representations and warranties were then made in
exactly the same language by GP, NPDC, or MXL and regardless of knowledge or
lack thereof on the part of GP, NPDC, or MXL or changes beyond its control and
without giving effect to any supplement or notice given pursuant to Section 8.1
hereof; as of the Closing, GP, NPDC, and MXL shall have performed and complied
with all covenants and agreements and satisfied all conditions required by this
Agreement to be performed and complied with by either of them at or before such
time; no condition or event has occurred or is continuing or will result from
execution and delivery of this Agreement or the other Transaction Documents
which constitutes an Event of Default or would constitute an Event of Default
but for the requirement that notice be given or time elapse or both; and the
Purchasers shall have received certificates executed by the chief executive
officer and the chief financial officer of each of GP, NPDC, and MXL, dated the
Closing Date, to that effect.
2.2. GP Secretary's Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of GP which shall certify that attached thereto are true and complete
copies of (a) the Certificate of Incorporation of GP, as amended to such date,
(b) the By-laws of GP as in effect on such date, and (c) the resolutions of the
Board of Directors of GP evidencing approval of this Agreement, the Notes, the
GP Warrants, the GP Registration Rights Agreement, the Mortgage, and the
Indemnity Agreement and the matters and transactions contemplated hereby and
thereby.
2.3. GP Incumbency Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of GP which shall certify the names of the officers of GP authorized
to sign this Agreement, the Notes, the GP Warrants, the GP Registration Rights
Agreement, and the Mortgage, and any other documents or certificates to be
delivered pursuant to this Agreement by GP, together with the true signatures of
such officers. The Purchasers and Agent may conclusively rely on such
certificate until the Agent shall receive a further certificate of the Secretary
or an Assistant Secretary of GP canceling or amending the prior certificate and
submitting the signatures of the officers named in such further certificate.
2.4. NPDC Secretary's Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of NPDC which shall certify that attached thereto are true and
complete copies of (a) the Certificate of Incorporation of NPDC, as amended to
such date, (b) the By-laws of NPDC as in effect on such date, and (c) the
resolutions of the Board of Directors of NPDC evidencing approval of this
Agreement, the NPDC Warrants, the NPDC Registration Rights Agreement, and the
Indemnity Agreement and the matters and transactions contemplated hereby and
thereby.
2.5. NPDC Incumbency Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of NPDC which shall certify the names of the officers of NPDC
authorized to sign this Agreement, the NPDC Warrants, and the NPDC Registration
Rights Agreement, and any other documents or certificates to be delivered
pursuant to this Agreement by NPDC, together with the true signatures of such
officers. The Purchasers and Agent may conclusively rely on such certificate
until the Agent shall receive a further certificate of the Secretary or an
Assistant Secretary of NPDC canceling or amending the prior certificate and
submitting the signatures of the officers named in such further certificate.
2.6. MXL Secretary's Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of MXL which shall certify that attached thereto are true and complete
copies of (a) the Certificate of Incorporation of MXL, as amended to such date,
(b) the By-laws of MXL as in effect on such date, and (c) the resolutions of the
Board of Directors of MXL evidencing approval of this Agreement and the matters
and transactions contemplated hereby.
2.7. MXL Incumbency Certificate. The Purchasers and Agent shall have
received on the Closing Date a certificate of the Secretary or an Assistant
Secretary of MXL which shall certify the names of the officers of MXL authorized
to sign this Agreement, and any other documents or certificates to be delivered
pursuant to this Agreement by MXL, together with the true signatures of such
officers. The Purchasers and Agent may conclusively rely on such certificate
until the Agent shall receive a further certificate of the Secretary or an
Assistant Secretary of MXL canceling or amending the prior certificate and
submitting the signatures of the officers named in such further certificate.
2.8. Opinions of Counsel. The Purchasers shall have received on the Closing
Date the opinions of Andrea Kantor, Esq., and Duane Morris LLP, each counsel to
GP, NPDC, and MXL, dated as of such date, substantially in the forms set forth
in Exhibits H and I, respectively.
2.9. Transaction Documents. The Transaction Documents other than the NPDC
Warrants shall have been duly authorized, executed, and delivered by GP, NPDC,
and MXL, as applicable, at or prior to the Closing and at the Closing shall be
in full force and effect.
2.10. Legal Action. There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto or which, individually or in the
aggregate, has, had, or could reasonably be expected to have a Material Adverse
Effect on GP, NPDC, or MXL.
2.11. No Governmental Action. There shall not have been any action taken,
or any law, rule, regulation, order, or decree proposed, promulgated, enacted,
entered, enforced, or deemed applicable to the transactions contemplated by this
Agreement by any federal, state, local, or other governmental authority or by
any court or other tribunal, including the entry of a preliminary or permanent
injunction, which makes any of the transactions contemplated by this Agreement
illegal or prohibits, restricts, or delays consummation of any of the
transactions contemplated by this Agreement or which, individually or in the
aggregate, has, had, or could reasonably be expected to have a Material Adverse
Effect on GP, NPDC, or MXL.
2.12. NYSE Listing. The New York Stock Exchange shall, at or prior to the
Closing, have listed or approved the listing on official notice of issuance of
the GP Warrant Shares.
2.13. Payment of Fees. GP shall have paid the costs and expenses identified
in Section 12.1 as to which the Purchasers give GP notice prior to the Closing.
2.14. Bank Consent. GP shall have obtained at or prior to the Closing the
consent to the transactions contemplated by this Agreement of GP's bank lenders
(the "Banks"), including the release of the Banks' existing lien (the "Existing
Lien") on the Premises (as defined in the Mortgage).
2.15. Title Insurance, Etc. GP, at its expense, shall have obtained and
delivered to the Purchasers (a) a preliminary title report and a mortgagee's
title insurance policy (the "Title Policy") issued by a reputable national title
insurance company (the "Title Company") and (b) Uniform Commercial Code,
litigation, bankruptcy, and judgment searches showing no liens, judgments,
financing statements, or other security interests of record affecting the
Premises except those matters described in Schedule 2.15, the Existing Lien
(which shall be subject to the condition set forth in Section 2.14), liens
securing the Notes, and such other matters as may be approved in writing by the
Purchasers. The Title Policy shall be in form and content reasonably
satisfactory to the Purchasers; shall insure that the Mortgage is a valid first
lien against the Premises, subject to only the matters set forth in Schedule
2.15 and such other exceptions as may have been approved in writing by
Purchasers, and that GP has good and marketable fee simple title to the
Premises; shall contain such endorsements and affirmative insurance as the
Purchasers may reasonably require; and shall afford the broadest coverage that
is customarily afforded by the Title Company to mortgagees of similar property
located in the New York.
2.16. No Material Adverse Change. Since the date of this Agreement, no
event shall have occurred which individually or in the aggregate, has, had, or
could reasonably be expected to have a Material Adverse Effect on GP, NPDC, or
MXL.
III. Conditions to the Obligations of GP and NPDC
The obligations of GP and NPDC under this Agreement are subject, at the
option of GP and NPDC, to the following conditions:
3.1. Accuracy of Representations and Compliance with Conditions. All
representations and warranties of the Purchasers contained in this Agreement
shall be accurate when made and, in addition, shall be accurate as of the
Closing as though such representations and warranties were then made in exactly
the same language by the Purchasers and regardless of knowledge or lack thereof
on the part of the Purchasers or changes beyond their control; as of the Closing
the Purchasers shall have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and complied
with by any of them at or before such time by this Agreement; and GP and NPDC
shall have received a certificate or certificates of the Purchasers, dated the
Closing Date, to that effect.
3.2. Legal Action. There shall not have been instituted or threatened any
legal proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transactions contemplated by this Agreement, or to obtain
substantial damages with respect thereto. 3.3. No Governmental Action. There
shall not have been any action taken, or any law, rule, regulation, order, or
decree proposed, promulgated, enacted, entered, enforced, or deemed applicable
to the transactions contemplated by this Agreement by any federal, state, local,
or other governmental authority or by any court or other tribunal, including the
entry of a preliminary or permanent injunction, which makes any of the
transactions contemplated by this Agreement illegal or prohibits, restricts, or
delays consummation of any of the transactions contemplated by this Agreement.
3.4. NYSE Listing. The New York Stock Exchange shall, at or prior to the
Closing, have listed or approved the listing on official notice of issuance of
the GP Warrant Shares.
3.5. Bank Consent. GP shall have obtained at or prior to the Closing the
consent to the transactions contemplated by this Agreement of the Banks,
including the release of the Existing Lien.
IV. Representations and Warranties of GP
GP represents and warrants to the Purchasers as follows:
4.1. Organization and Qualification. GP is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with all requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is engaged. GP is
duly qualified to transact the business in which it is engaged and is in good
standing as a foreign corporation in every jurisdiction in which its ownership,
leasing, licensing, or use of property or assets or the conduct of its business
makes such qualification necessary, except as would not be reasonably likely to
have a Material Adverse Effect on GP.
4.2. SEC Reports. GP has delivered to the Purchasers true and correct
copies of its Annual Report on Form 10-K for the year ended December 31, 2002
(the "Form 10-K"), Quarterly Report on Form 10-Q for the quarter ended March 31,
2003, all Current Reports on Form 8-K filed with the SEC since the filing of the
Form 10-K, and its Proxy Statement dated June 10, 2002 (collectively, the "SEC
Reports"). None of the SEC Reports when filed with the SEC contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein not misleading.
From the date of the last SEC Report to the Closing Date, no event has occurred
which individually or in the aggregate, has, had, or could reasonably be
expected to have a Material Adverse Effect on GP.
4.3. Capitalization. The authorized capital stock of GP consists of
25,000,000 shares of GP Common Stock and 2,800,000 shares of GP Class B Stock,
of which as of the date of this Agreement 16,159,702 shares of GP Common Stock
and 1,200,000 shares of GP Class B Stock are outstanding. Each of such
outstanding shares of GP Common Stock and GP Class B Stock is validly
authorized, validly issued, fully paid, and nonassessable, and has not been
issued and is not owned or held in violation of any preemptive right of
stockholders. Other than as contemplated by this Agreement and the other
Transaction Documents and as disclosed in the SEC Reports, there is no
commitment, plan, or arrangement to issue, and no outstanding option, warrant,
or other right calling for the issuance of, any share of capital stock of GP or
any security or other instrument convertible into, exercisable for, or
exchangeable for capital stock of GP. Other than as disclosed in the SEC
Reports, there is outstanding no security or other instrument convertible into
or exchangeable for capital stock of GP.
4.4. Litigation and Claims. Except as disclosed in the SEC Reports, there
is no litigation, arbitration, claim, governmental or other proceeding (formal
or informal), or investigation pending or, to the knowledge of GP, threatened,
with respect to GP or any GP Subsidiary (as defined below) which has, had, or is
reasonably likely to have a Material Adverse Effect on GP.
4.5. Authority to Sell; Enforceability; Valid Issuance. GP has all
requisite power and authority to execute, deliver, and perform this Agreement
and the other Transaction Documents to be executed, delivered, and performed by
it. All necessary corporate proceedings of GP have been duly taken to authorize
the execution, delivery, and performance by GP of this Agreement and the other
Transaction Documents to be executed, delivered, and performed by it. Each of
this Agreement and the other Transaction Documents to be executed, delivered,
and performed by GP has been duly authorized by GP and this Agreement has been,
and at the Closing the other Transaction Documents to be executed, delivered,
and performed by GP will be, duly executed and delivered by GP. Each of this
Agreement and the other Transaction Documents to be executed, delivered, and
performed by GP constitutes or will constitute the legal, valid, and binding
obligation of GP and is or will be enforceable as to GP in accordance with its
terms, except (a) as limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, or other laws of general application
affecting enforcement of creditors' rights, (b) for general principles of equity
that restrict the availability of equitable remedies, and (c) to the extent that
the enforceability of the indemnification provisions of Section 2.10 of the GP
Registration Rights Agreement may be limited by applicable laws. All GP Warrant
Shares have been reserved for issuance and, when issued and delivered on
exercise of the GP Warrants and payment therefor in accordance with the GP
Warrants or in accordance with the Notes, will be validly authorized, validly
issued, fully paid, and nonassessable and will not have been issued in violation
of any preemptive right of stockholders. Each Purchaser or other Person
receiving GP Warrant Shares upon exercise of GP Warrants in accordance with
their terms will receive good title to such shares, free and clear of all liens,
security interests, pledges, charges, encumbrances, stockholders' agreements,
and voting trusts, other than (x) those imposed by the Purchaser or other Person
receiving the same, (y) restrictions on transfer under applicable securities
laws, and (z) as provided in the GP Warrant Certificate or Note, as applicable.
4.6. No Conflicts. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by GP for the execution, delivery, or performance by GP of this
Agreement or the other Transaction Documents to be executed, delivered, and
performed by GP, except for the filing of a Form D under the Securities Act and
as may be required under state securities laws. No consent of any party to any
contract, agreement, instrument, lease, or license (collectively, "Contracts")
to which GP or any GP Subsidiary is a party, or to which it or any of its
businesses, properties, or assets are subject, is required for the execution,
delivery, or performance of this Agreement or the other Transaction Documents to
be executed, delivered, and performed by GP, other than the consent and release
of the Banks as referred to in Section 3.5; and, if such consent is obtained,
the execution, delivery, and performance by GP of this Agreement and the other
Transaction Documents to be executed, delivered, and performed by GP will not
violate, result in a breach of, conflict with, or (with or without the giving of
notice or the passage of time or both) entitle any party to terminate or call a
default under, entitle any party to rights and privileges that such party was
not receiving or entitled to receive immediately before this Agreement was
executed under, or create any obligation on the part of GP or any GP Subsidiary
that it was not paying or obligated to pay immediately before this Agreement was
executed under, any term of any such Contract, or result in the creation of any
lien (except as set forth in the Mortgage) on any of GP's or any GP Subsidiary's
properties or assets, or violate or result in a breach of any term of the
certificate of incorporation (or other charter document) or by-laws of GP or any
GP Subsidiary, or violate, result in a breach of, or conflict with any law,
rule, regulation, order, judgment, or decree binding on GP or any GP Subsidiary
or to which it or any of its businesses, properties, or assets are subject, in
each case except as would not be reasonably likely to have a Material Adverse
Effect on GP.
4.7. No Registration Required. Assuming the continuing accuracy of the
representations and warranties of the Purchasers contained in Article VII
hereof, the offer, sale and issuance of (a) the Notes, (b) the GP Warrants, and
(c) upon exercise of the GP Warrants in accordance with their terms, the GP
Warrant Shares will be exempt from the registration requirements of the
Securities Act.
4.8. No Event of Default. There exists no event of default under the terms
and provisions of any instrument, agreement, or contract pertaining to any
indebtedness of GP, including Senior Indebtedness (as defined in the Note), and
to GP's knowledge there exists no event or condition which, with due notice or
lapse of time or both, would constitute such an event of default.
4.9. Title to Premises. GP has on the date hereof, and, if the Contemplated
Conveyance has not taken place, will have at the Closing, an indefeasible estate
in fee simple in the portion of the Premises which constitutes real property and
GP owns on the date hereof, and, if the Contemplated Conveyance has not taken
place, will own at the Closing, good title to the portion of the Premises which
constitutes personal property, in each case and to GP's knowledge, subject only
to the encumbrances set forth on Schedule 2.15, the Existing Lien, liens
securing the Notes, and such other matters as may be approved in writing by the
Purchasers. No person has asserted a claim against GP or, to GP's knowledge, has
threatened to assert a claim against GP or the Premises that would, if such
claim were upheld, result in an encumbrance to the Premises (other than an
encumbrance set forth on Schedule 2.15, the Existing Lien, liens securing the
Notes, or such other matters as may be approved in writing by the Purchasers)
which would materially adversely affect the value, use or enjoyment of the
Premises, and there are no facts known to GP that would allow such a claim to be
successfully asserted. Subject to obtaining the consent and release of the Banks
as referred to in Section 3.5, (a) GP has on the date hereof, and, if the
Contemplated Conveyance has not taken place, will have at the Closing, good
right, full power, and lawful authority to convey and mortgage to the Agent and
grant to the Agent a security interest in the same, in the manner and form set
forth in the Mortgage; (b) subject to the Permitted Encumbrances and other Liens
(as such terms are defined in the Mortgage) permitted pursuant to the Mortgage,
the Mortgage will, at the time of its delivery to Agent, and thereafter be a
valid and enforceable and, upon recordation, perfected first mortgage lien on
the Premises; and (c) GP shall and will warrant and forever defend the title to
the Premises unto Agent against the claims of all Persons whomsoever.
4.10. Environmental Matters. To the knowledge of GP, except as set forth in
the Environmental Report, (a) there are no Hazardous Materials or underground
storage tanks in, on, or under the Premises, except those that are both (i) in
compliance with Environmental Laws and with permits issued pursuant thereto (if
such permits are required), if any, and (ii) in amounts not in excess of that
necessary to operate the Premises; (b) there are no past, present, or threatened
Releases of Hazardous Materials in violation of any Environmental Law and which
would require remediation by a governmental authority in, on, under, or from the
Premises; (c) there is no threat of any Release of Hazardous Materials migrating
to the Premises ; (d) there is no past or present non-compliance with
Environmental Laws, or with permits issued pursuant thereto, in connection with
the Premises; (e) GP does not know of, and has not received, any written or oral
notice or other communication from any Person (including but not limited to a
governmental entity) relating to Hazardous Materials in, on, under, or from the
Premises; and (f) GP has truthfully and fully provided to the Purchasers, in
writing, any and all information relating to environmental conditions in, on,
under, or from the Premises known to GP or contained in GP's files and records,
including but not limited to any reports relating to Hazardous Materials in, on,
under, or migrating to or from the Premises and/or to the environmental
condition of the Premises.
4.11. GP Taxes. GP has filed all federal, state, local, and foreign tax
returns, informational returns, and excise tax returns which are required to
have been filed by it, and there have been paid all taxes shown to be due and
payable on such returns and all other material taxes and assessments payable by
it, unless any such tax or assessment is being diligently contested in good
faith and GP has adequately reserved against such tax or assessment on its books
and financial statements in accordance with GAAP, in each case except as would
not be reasonably likely to have a Material Adverse Effect on GP. No material
tax liens have been filed and no material claims are being asserted with respect
to any such taxes as of the date hereof. No material tax assessment against GP
has been proposed and all of its tax liabilities are adequately provided for on
its books and financial statements in accordance with GAAP.
4.12. Broker's or Finder's Commissions; Financial Advisory Fees. No
broker's or finder's fee or commission or financial advisory or similar fees
will be payable by GP or any of its affiliates with respect to the issuance and
sale of the Notes, the GP Warrants, or the NPDC Warrants or otherwise in
connection with the transactions contemplated by the Transaction Documents.
4.13. Solvency. GP is and shall be Solvent both before and after giving
effect to the transactions contemplated by this Agreement and the other
Transaction Documents to be effected on or prior to the Closing Date.
4.14. Permits. GP has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being conducted by
it, the lack of which, individually or in the aggregate, has, had, or could
reasonably be expected to have a Material Adverse Effect on GP.
4.15. Subsidiaries. The only subsidiaries of GP which are significant, as
defined in Regulation S-X promulgated by the SEC, are those subsidiaries listed
on Schedule 4.15 (the "GP Subsidiaries").
4.16. Disclosure. None of the factual information concerning GP and the GP
Subsidiaries set forth in the SEC Reports or delivered pursuant to this
Agreement, the other Transaction Documents, or the other documents set forth on
Schedule 4.16 contains as of its date, certification, or delivery any untrue
statement of a material fact, and all such factual information (taken as a
whole) does not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
V. Representations and Warranties of NPDC
NPDC represents and warrants to the Purchasers as follows:
5.1. Organization and Qualification. NPDC is, and on the Spin-Off Date will
be, a corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware, with all requisite power and authority to
own, lease, license, and use its properties and assets and to carry on the
business in which it is engaged. NPDC is, and on the Spin-Off Date will be, duly
qualified to transact the business in which it is engaged and is or will be in
good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its business makes such qualification necessary, except as would not be
reasonably likely to have a Material Adverse Effect on NPDC
5.2. Capitalization; MXL. Immediately after the Spin-Off, NPDC Common Stock
will constitute the only shares of capital stock of NPDC outstanding. On the
Spin-Off Date, each of such outstanding shares of NPDC Common Stock will be
validly authorized, validly issued, fully paid, and nonassessable, and will not
have been issued and will not be owned or held in violation of any preemptive
right of stockholders. Other than as contemplated by this Agreement and the
other Transaction Documents, the Spin-Off, and options contemplated to be issued
to employees of NPDC, there is no commitment, plan, or arrangement to issue, and
no outstanding option, warrant, or other right calling for the issuance of, any
share of capital stock of NPDC or any security or other instrument convertible
into, exercisable for, or exchangeable for capital stock of NPDC. On the
Spin-Off Date, there will be outstanding no security or other instrument
convertible into or exchangeable for capital stock of NPDC. At the time of the
Contemplated Conveyance (as defined below), MXL will be a wholly-owned
subsidiary of NPDC.
5.3. Litigation and Claims. Except as disclosed in the SEC Reports, there
is no litigation, arbitration, claim, governmental or other proceeding (formal
or informal), or investigation pending or, to the knowledge of NPDC, threatened,
with respect to NPDC or any NPDC Subsidiary, which individually or in the
aggregate, has, had, or could reasonably be expected to have a Material Adverse
Effect on NPDC.
5.4. Authority to Sell; Enforceability; Valid Issuance. NPDC has all
requisite power and authority to execute, deliver, and perform this Agreement
and the other Transaction Documents to be executed, delivered, and performed by
it. All necessary corporate proceedings of NPDC have been or prior to the
Spin-Off Date will have been duly taken to authorize the execution, delivery,
and performance by NPDC of this Agreement and the other Transaction Documents to
be executed, delivered, and performed by it. Each of this Agreement and the
other Transaction Documents to be executed, delivered, and performed by NPDC has
been or prior to the Spin-Off Date will have been duly authorized by NPDC and
this Agreement has been, and at the Closing or the Spin-Off Date the other
Transaction Documents to then be executed, delivered, and performed by NPDC will
be, duly executed and delivered by NPDC. Each of this Agreement and the other
Transaction Documents to be executed, delivered, and performed by NPDC
constitutes or will constitute the legal, valid, and binding obligation of NPDC
and is or will be enforceable as to NPDC in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, (b) for general principles of equity that
restrict the availability of equitable remedies, and (c) to the extent that the
enforceability of the indemnification provisions of Section 2.10 of the NPDC
Registration Rights Agreement may be limited by applicable laws. On the Spin-Off
Date, all NPDC Warrant Shares will have been reserved for issuance and, when
issued and delivered on exercise of the NPDC Warrants and payment therefor in
accordance with the NPDC Warrants, will be validly authorized, validly issued,
fully paid, and nonassessable and will not have been issued in violation of any
preemptive right of stockholders. Each Purchaser or other Person receiving NPDC
Warrant Shares upon exercise of GP Warrants in accordance with their terms will
receive good title to such shares, free and clear of all liens, security
interests, pledges, charges, encumbrances, stockholders' agreements, and voting
trusts, other than (x) those imposed by the Purchaser or other Person receiving
the same, (y) restrictions on transfer under applicable securities laws, and (z)
as provided in the NPDC Warrant Certificate.
5.5. No Conflicts. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by NPDC for the execution, delivery, or performance by NPDC of this
Agreement or the other Transaction Documents to be executed, delivered, and
performed by NPDC, except as may be required under federal or state securities
laws, pursuant to the rules of such securities exchange or market on which the
NPDC Warrant Shares may be listed or quoted, and for filings of such amendment
to NPDC's certificate of incorporation as may be necessary to authorize the NPDC
Warrant Shares. No consent of any party to any contract, agreement, instrument,
lease, or license (collectively, "NPDC Contracts") to which NPDC or any NPDC
Subsidiary is a party, or to which it or any of its businesses, properties, or
assets are subject, is required for the execution, delivery, or performance of
this Agreement or the other Transaction Documents to be executed, delivered, and
performed by NPDC; and the execution, delivery, and performance by NPDC of this
Agreement and the other Transaction Documents to be executed, delivered, and
performed by NPDC will not violate, result in a breach of, conflict with, or
(with or without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under, entitle any party to rights and
privileges that such party was not receiving or entitled to receive immediately
before this Agreement was executed under, or create any obligation on the part
of NPDC or any NPDC Subsidiary that it was not paying or obligated to pay
immediately before this Agreement was executed under, any term of any such NPDC
Contract, or result in the creation of any lien (except as set forth in the
Mortgage) on any of NPDC's or any NPDC Subsidiary's properties of assets, or
violate or result in a breach of any term of the certificate of incorporation
(or other charter document) or by-laws of NPDC or NPDC Subsidiary, or violate,
result in a breach of, or conflict with any law, rule, regulation, order,
judgment, or decree binding on NPDC or any NPDC Subsidiary or to which it or any
of its businesses, properties, or assets are subject, in each case except as
would not be reasonably likely to have a Material Adverse Effect on NPDC.
5.6. No Registration Required. Assuming the continuing accuracy of the
representations and warranties of the Purchasers contained in Article VII
hereof, the offer, sale and issuance of the NPDC Warrants and, upon exercise of
the NPDC Warrants in accordance with their terms, the NPDC Warrant Shares will
be exempt from the registration requirements of the Securities Act.
5.7. NPDC Taxes. NPDC has filed all federal, state, local, and foreign tax
returns, informational returns, and excise tax returns which are required to
have been filed by it, and there have been paid all taxes shown to be due and
payable on such returns and all other material taxes and assessments payable by
it, unless any such tax or assessment is being diligently contested in good
faith and NPDC has adequately reserved against such tax or assessment on its
books and financial statements in accordance with GAAP, in each case except as
would not be reasonably likely to have a Material Adverse Effect on NPDC. No
material tax liens have been filed and no material claims are being asserted
with respect to any such taxes as of the date hereof. No material tax assessment
against NPDC has been proposed and all of its tax liabilities are adequately
provided for on its books and financial statements in accordance with GAAP.
5.8. Broker's or Finder's Commissions; Financial Advisory Fees. No broker's
or finder's fee or commission or financial advisory or similar fees will be
payable by NPDC or any of its affiliates with respect to the issuance and sale
of the Notes, the GP Warrants, or the NPDC Warrants or otherwise in connection
with the transactions contemplated by the Transaction Documents.
5.9. Disclosure. None of the factual information concerning NPDC and the
NPDC Subsidiaries set forth in the SEC Reports or delivered pursuant to this
Agreement, the other Transaction Documents, or the other documents set forth on
Schedule 4.16 contains as of its date, certification, or delivery any untrue
statement of a material fact, and all such factual information (taken as a
whole) does not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
VI. Representations and Warranties of MXL
MXL represents and warrants to the Purchasers as follows:
6.1. Organization and Qualification. MXL is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware,
with all requisite power and authority to own, lease, license, and use its
properties and assets and to carry on the business in which it is engaged. MXL
is duly qualified to transact the business in which it is engaged and is or will
be in good standing as a foreign corporation in every jurisdiction in which its
ownership, leasing, licensing, or use of property or assets or the conduct of
its business makes such qualification necessary, except as would not be
reasonably likely to have a Material Adverse Effect on MXL.
6.2. Authority; Enforceability. MXL has all requisite power and authority
to execute, deliver, and perform this Agreement. All necessary corporate
proceedings of MXL have been or prior to the Contemplated Conveyance will have
been duly taken to authorize the execution, delivery, and performance by MXL of
this Agreement. This Agreement has been duly authorized, executed, and delivered
by MXL. This Agreement constitutes the legal, valid, and binding obligation of
MXL and is enforceable as to MXL in accordance with its terms, except (a) as
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights, and (b) for general principles of equity that
restrict the availability of equitable remedies.
6.3. No Conflicts. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any federal,
state, local, or other governmental authority or any court or other tribunal is
required by MXL for the execution, delivery, or performance by MXL of this
Agreement. No consent of any party to any contract, agreement, instrument,
lease, or license (collectively, "MXL Contracts") to which MXL or any MXL
Subsidiary is a party, or to which it or any of its businesses, properties, or
assets are subject, is required for the execution, delivery, or performance of
this Agreement; and the execution, delivery, and performance by MXL of this
Agreement will not violate, result in a breach of, conflict with, or (with or
without the giving of notice or the passage of time or both) entitle any party
to terminate or call a default under, entitle any party to rights and privileges
that such party was not receiving or entitled to receive immediately before this
Agreement was executed under, or create any obligation on the part of MXL or any
MXL Subsidiary that it was not paying or obligated to pay immediately before
this Agreement was executed under, any term of any such MXL Contract, or result
in the creation of any lien (except as set forth in the Mortgage) on any of
MXL's or any MXL Subsidiary's properties of assets, or violate or result in a
breach of any term of the certificate of incorporation (or other charter
document) or by-laws of MXL or MXL Subsidiary, or violate, result in a breach
of, or conflict with any law, rule, regulation, order, judgment, or decree
binding on MXL or any MXL Subsidiary or to which it or any of its businesses,
properties, or assets are subject, in each case except as would not be
reasonably likely to have a Material Adverse Effect on MXL.
6.4. Title to Premises. After the Contemplated Conveyance, MXL will have an
indefeasible estate in fee simple in the portion of the Premises which
constitutes real property and MXL will own good title to the portion of the
Premises which constitutes personal property, in each case and to MXL's
knowledge, subject only to the encumbrances set forth on Schedule 2.15, the
Existing Lien (if the Contemplated Conveyance occurs prior to the release of the
Existing Lien), liens securing the Notes, and such other matters as may be
approved in writing by the Purchasers.
6.5. Disclosure. None of the factual information concerning MXL and the MXL
Subsidiaries set forth in the SEC Reports or delivered pursuant to this
Agreement, the other Transaction Documents, or the other documents set forth on
Schedule 4.16 contains as of its date, certification, or delivery any untrue
statement of a material fact, and all such factual information (taken as a
whole) does not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading.
VII. Representations and Warranties of the Purchasers
Each Purchaser, severally and not jointly, represents and warrants to the
other parties hereto as follows:
7.1. Authority to Buy. Such Purchaser has all requisite power and authority
to execute, deliver, and perform this Agreement. All necessary proceedings of
such Purchaser have been duly taken to authorize the execution, delivery, and
performance of this Agreement by such Purchaser. This Agreement has been duly
executed and delivered by such Purchaser, is the legal, valid, and binding
obligation of such Purchaser, and is enforceable as to such Purchaser in
accordance with its terms.
7.2. Non-Distributive Intent. Such Purchaser is acquiring the Securities to
be acquired by it for its own account (and not for the account of others) for
investment and not with a view to the distribution thereof in violation of the
Securities Act. The Purchaser understands that it may not sell or otherwise
dispose of the Securities in the absence of either a registration statement
under the Securities Act or an exemption from the registration provisions of the
Securities Act.
7.3. Information and Experience. Purchaser acknowledges receipt of the SEC
Reports. Purchaser has made such inquiry concerning GP and NPDC and their
business and personnel as such Purchaser deemed necessary and appropriate in
connection with its investment in GP and NPDC contemplated hereby. The officers
of GP and NPDC have made available to such Purchaser any and all written
information which it has requested and have answered to such Purchaser's
satisfaction all inquiries made by such Purchaser. Such Purchaser has sufficient
knowledge and experience in investing in companies similar to GP and NPDC so as
to be able to evaluate the risks and merits of its investments in GP and NPDC
and is able financially to bear the risks thereof.
7.4. Purchaser Status. Such Purchaser is an accredited investor within the
definition set forth in Rule 501(a) under the Securities Act and an investment
company registered under the Investment Company Act of 1940, as amended.
7.5. Broker's or Finder's Commissions; Financial Advisory Fees. No broker's
or finder's fee or commission or financial advisory or similar fees will be
payable by any of the Purchasers with respect to the issuance and sale of the
Notes, the GP Warrants, or the NPDC Warrants or otherwise in connection with the
transactions contemplated by the Transaction Documents. Each Purchaser agrees to
indemnify GP and NPDC and hold each of them harmless against any loss, cost,
claim or liability (including reasonable attorneys' fees and reasonable
disbursements for the investigation and defense of claims) arising out of or
relating to any such actual or alleged broker's or finder's fee or commission.
VIII. Covenants and Agreements
The parties covenant and agree as follows:
8.1. Advice of Changes. Until the Closing or the termination of this
Agreement, each of GP, NPDC, and MXL will immediately advise the Purchasers in a
detailed written notice of any fact or occurrence or any pending or threatened
occurrence of which any of them obtains knowledge and which (if existing and
known at the date of the execution of this Agreement) would have been required
to be set forth or disclosed in or pursuant to this Agreement, which (if
existing and known at any time prior to or at the Closing) would make the
performance by any party of a covenant contained in this Agreement impossible or
make such performance materially more difficult than in the absence of such fact
or occurrence, or which (if existing and known at the time of the Closing) would
cause a condition to any party's obligations under this Agreement not to be
fully satisfied. Any such notice or disclosure shall be given no effect in
satisfying any of the conditions of Section 2.1 hereof.
8.2. Furnish Future Information. After the Closing, GP shall deliver to the
holders of the Notes and the GP Warrants, for so long as such Persons own any
Notes or GP Warrants, promptly upon their becoming available, copies of all
financial statements, reports, notices, and proxy statements sent by it to its
stockholders, all regular and periodic reports filed by it with any securities
exchange or with the SEC, and all material press releases. After the Spin-Off
Date, NPDC shall deliver to the holders of the NPDC Warrants, for so long as
such Persons own any NPDC Warrants, promptly upon their becoming available,
copies of all financial statements, reports, notices, and proxy statements sent
by it to its stockholders, all regular and periodic reports filed by it with any
securities exchange or with the SEC, and all material press releases.
8.3. Mortgage.
(a) Each Purchaser and other Security Holder acknowledges and agrees that,
in contemplation of the Spin-Off, GP shall have the right to convey the Premises
to MXL, which at the time of such conveyance will be a wholly-owned subsidiary
of NPDC (such conveyance is referred to herein as the "Contemplated
Conveyance"). GP will give prompt notice to the Agent of the occurrence of the
Contemplated Conveyance. Whether or not the Spin-Off or the Contemplated
Conveyance has occurred, any extension of, or increase in the principal amount
of, interest rate on, or other charges on, the Notes or any other amendment,
extension, waiver, or modification to the Notes or other Transaction Documents
which increases the obligations secured by the Mortgage must be agreed upon in
writing by each of GP, the Agent, and MXL to be effective.
(b) In connection with the Contemplated Conveyance, and subject to Section
39 of the Mortgage, MXL will, at the sole cost of MXL, (i) execute such
documents and take such other actions as may be necessary to assume the Mortgage
and all of the obligations and liabilities of GP arising thereunder, provided,
however, that it is expressly understood and agreed that such assumption will be
made subject to the provisions of Section 8.4 hereof and (ii) deliver or cause
to be delivered an endorsement to the Title Policy or a side letter from the
Title Company (in either case, provided that the same is available at nominal
cost), in form reasonably acceptable to the Agent, insuring to the Agent that
(A) MXL is the fee owner of the Premises and (B) the Mortgage, as assumed by
MXL, is a valid and subsisting first priority lien against the Premises subject
only to the Permitted Encumbrances.
(c) Each Security Holder which holds any Notes agrees that, if GP or MXL
shall tender full payment of the outstanding principal amount of the Notes,
together with all interest and other sums due thereunder, as contemplated by
Section 17(a) of the Mortgage, such Security Holder will promptly surrender to
the tenderor and endorse (without recourse) all Notes held by such Security
Holder as contemplated by such Section 17(a).
8.4. No Liability. Each Purchaser and other Security Holder acknowledges
and agrees that, notwithstanding anything to the contrary contained in this
Agreement or in any of the other Transaction Documents, except as provided
otherwise in this Section 8.4, (a) neither MXL nor any MXL Related Party (other
than GP) shall have any personal liability for (i) the payment of any sum of
money which is or may be payable by GP hereunder or under any Note, the
Mortgage, the GP Warrants, or the GP Registration Rights Agreement, including,
but not limited to, the repayment of the Notes, or (ii) the performance or
discharge of any covenants, obligations, or undertakings of GP hereunder or
under any Note, the Mortgage, the GP Warrants, or the GP Registration Rights
Agreement, and no monetary or deficiency judgment shall be sought or enforced
against MXL or any MXL Related Party (other than GP) with respect thereto,
notwithstanding any conveyance or transfer of the Premises to MXL or any
assumption of the Mortgage by MXL, and (b) neither MXL nor any MXL Related Party
(other than NPDC) shall have any personal liability for (i) the payment of any
sum of money which is or may be payable by NPDC hereunder or under the NPDC
Warrants or the NPDC Registration Rights Agreement, or (ii) the performance or
discharge of any covenants, obligations, or undertakings of NPDC hereunder or
under the NPDC Warrants or the NPDC Registration Rights Agreement, and no
monetary or deficiency judgment shall be sought or enforced against MXL or any
MXL Related Party (other than NPDC) with respect thereto, notwithstanding any
conveyance or transfer of the Premises to MXL or any assumption of the Mortgage
by MXL; provided, however, that a judgment may be sought against MXL or any MXL
Related Party to enforce the rights of the Agent in, to, or against the
Premises, and the Agent shall have full recourse to and the right to proceed
against the Premises. Nothing contained herein shall impair the validity of GP's
obligations under the Notes or in any way affect or impair the lien of the
Mortgage, or the right of the Agent to enforce any and all rights and remedies
under and by virtue of the Notes, this Agreement, or any other Transaction
Document, including, without limitation, naming MXL as a party defendant in any
foreclosure action, or limit the Agent from pursuing or seeking to enforce the
rights of the Agent against any third parties, including any guarantor,
indemnitor, or surety under any guaranty or indemnity delivered in connection
with this Agreement, the Notes, or any other Transaction Document or otherwise
in connection with the Notes.
8.5. Transfer Restrictions. Each Purchaser and other Security Holder
acknowledges and agrees that the Securities are subject to restrictions on
transfer as set forth in the Notes, GP Warrants, GP Registration Rights
Agreement, NPDC Warrants, and NPDC Registration Rights Agreement.
8.6. Bank Consent. GP shall use its commercially reasonable efforts to
obtain at or prior to the Closing the Banks' consent to the transactions
contemplated by this Agreement, including the release of the Existing Lien.
8.7. Title Insurance. GP shall use its commercially reasonable efforts to
purchase, at or prior to the Closing, the Title Policy in accordance with
Section 2.15.
8.8. NYSE Listing. GP shall use its commercially reasonable efforts to
cause The New York Stock Exchange, at or prior to the Closing, to have listed or
approved the listing on official notice of issuance of the GP Warrant Shares.
8.9. Warrant Purchase. If any party shall terminate this Agreement pursuant
to Section 11.1(e) and the condition set forth in Section 2.14 shall not have
been satisfied on or prior to the date notice of termination is given, each of
the Purchasers shall have the right, by giving notice to GP not more than ten
days after the date notice of termination is given, to elect to purchase the
number of GP Warrants specified opposite such Purchaser's name in Schedule 1.2,
at a purchase price for each such GP Warrant equal to $4.213, and not to
purchase the Notes. Any Purchaser exercising such right shall also be entitled
to receive NPDC Warrants under the circumstances and in the manner set forth in
Section 1.4. If any Purchaser exercises such right, the parties agree to modify,
as promptly as practical, this Agreement (including, without limitation, the
corresponding terms and conditions with respect to closing deliveries, payments,
covenants, and indemnities), the GP Warrants, the NPDC Warrants, the GP
Registration Rights Agreement, the NPDC Registration Rights Agreement, and the
Indemnity Agreement to the extent necessary to effectuate such transaction.
8.10. Spin-Off. GP shall not consummate the Spin-Off unless, on the
Spin-Off Date, the Agent shall have received the opinion of counsel to NPDC,
dated as of such date, substantially in the form set forth in Exhibit J.
8.11. Subordination Agreement. If any person holding or proposing to
provide Senior Indebtedness so requests, each Security Holder which holds any
Notes shall (and authorizes the Agent on such Security Holder's behalf to) at
GP's expense enter into a subordination agreement (a "Subordination Agreement")
contemplated by Section 7(d) of the Notes, confirming and supplementing the
provisions of Section 7 of the Notes, and containing such terms as are
customarily included in such a subordination agreement and are reasonably
satisfactory to the Agent, in such form as may be reasonably requested by such
person. Without limiting the generality of the foregoing, each Security Holder
which holds any Notes shall (and authorizes and directs the Agent on such
Security Holder's behalf to) at GP's expense enter into a Subordination
Agreement substantially in the form set forth in Exhibit K.
IX. Agent
9.1. Appointment and Authority.
(a) Each Purchaser and each Security Holder hereby appoints the Agent as
its agent, to act on its behalf, with respect to this Agreement and the other
Transaction Documents. Agent hereby accept such appointment and hereby agrees
that all actions taken by it in connection with this Agreement and the other
Transaction Documents shall be taken on behalf of and for the benefit of the
Purchasers or the Security Holders, as applicable. Each Purchaser and each
Security Holder hereby irrevocably authorizes the Agent to take such action on
its behalf and to exercise such powers under this Agreement and the other
Transaction Documents as are specifically delegated to the Agent by the terms
hereof or thereof, together with such other powers as are reasonably incidental
thereto. Without limiting the foregoing, the Agent shall have full and
irrevocable authority on behalf of each Purchaser and each Security Holder,
without notice or prior consent, to:
(i) accept and give notices and other communications relating to this
Agreement or the other Transaction Documents;
(ii) waive any ministerial provision of this Agreement or the other
Transaction Documents;
(iii) modify or amend this Agreement or the other Transaction Documents for
ministerial purposes;
(iv) administer the debt evidenced by the Notes on a day-to-day basis;
(v) execute any instrument or document that the Agent may determine is
necessary or desirable in the exercise of his authority under this
Article IX, including, but not limited to, any easement, restrictive
covenant, reciprocal easement agreement, or other similar document,
provided, however, that, the Agent shall not, without the consent of
holders of a majority of the outstanding principal amount of the Notes,
execute any such instrument or document if such execution will result
in an adverse affect on the Premises;
(vi) execute in the name of and on behalf of each and every holder of the
Notes any and all (A) assignments, releases, substitute instruments,
and other documents necessary or appropriate to carry out the intent of
Section 27 of the Mortgage concerning defeasance of the Mortgage and
(B) supplemental or substitute mortgages, supplemental or substitute
notes, and other documents necessary or appropriate to carry out the
intent of Section 38 of the Mortgage concerning splitting of the
Mortgage and the loan secured thereby; and, if necessary or appropriate
in connection therewith, the holders shall deliver their respective
Notes to the Agent for surrender or amendment in connection therewith;
and
(vii) execute in the name of and on behalf of each and every holder of the
Notes a Subordination Agreement and, upon the execution of a
Subordination Agreement, the Agent shall have all of the authority,
rights, responsibilities, duties, and obligations hereunder with
respect to such Subordination Agreement as the Agent has with respect
to the Notes.
(b) The Agent shall also have full and irrevocable authority on behalf
of the Purchasers and the Security Holders:
(i) prior to the Closing, with the prior consent of Purchasers which,
pursuant to Schedule 1.2, are to purchase a majority of the principal
amount of the Notes, to waive any condition to closing or other
provision of, to modify, or to amend this Agreement, other than
modifications or amendments to the purchase price to be paid by the
Purchasers or to the principal amount of Notes to be bought by any
Purchaser;
(ii) following the Closing, with the prior consent of the holders of a
majority of the outstanding principal amount of Notes, to waive any
provision of, to modify, or to amend this Agreement, or deal with the
other parties to this Agreement, settle any dispute relating to the
terms of this Agreement or act in connection with all matters arising
out of, based upon, or in connection with this Agreement and the
transactions contemplated hereby;
(iii) with the prior consent of the holders of a majority of the outstanding
principal amount of Notes, to waive any provision of, to modify, or to
amend the Notes, the Mortgage, or, to the extent relating thereto, this
Agreement, or deal with the other parties to the Notes, the Mortgage,
or, to the extent relating thereto, this Agreement, settle any dispute
relating to the terms of the Notes, the Mortgage, or, to the extent
relating thereto, this Agreement or act in connection with all matters
arising out of, based upon, or in connection with such agreements and
the transactions contemplated thereby, provided, however, that no such
amendment or waiver shall, unless signed by the holder or purchaser of
any Note affected thereby, (A) reduce the principal of or rate of
interest on any Note or any fees thereunder or (B) postpone the date
fixed for any payment of principal of or interest on any Note;
(iv) with the prior consent of the holders of a majority of the outstanding
GP Warrants, to waive any provision of, to modify, or to amend the GP
Warrants or, to the extent relating thereto, this Agreement; or deal
with the other parties to the GP Warrants or, to the extent relating
thereto, this Agreement, settle any dispute relating to the terms of
the GP Warrants or, to the extent relating thereto, this Agreement, or
act in connection with all matters arising out of, based upon, or in
connection with such agreements and the transactions contemplated
thereby;
(v) with the prior consent of the Majority Holders (as defined in the GP
Registration Rights Agreement), to waive any provision of, to modify,
or to amend the GP Registration Rights Agreement or, to the extent
relating thereto, this Agreement; or deal with the other parties to the
GP Registration Rights Agreement or, to the extent relating thereto,
this Agreement, settle any dispute relating to the terms of the GP
Registration Rights Agreement or, to the extent relating thereto, this
Agreement, or act in connection with all matters arising out of, based
upon, or in connection with such agreements and the transactions
contemplated thereby;
(vi) with the prior consent of the holders of a majority of the outstanding
NPDC Warrants, to waive any provision of, to modify, or to amend the
NPDC Warrants or, to the extent relating thereto, this Agreement; or
deal with the other parties to the NPDC Warrants or, to the extent
relating thereto, this Agreement, settle any dispute relating to the
terms of the NPDC Warrants or, to the extent relating thereto, this
Agreement, or act in connection with all matters arising out of, based
upon, or in connection with such agreements and the transactions
contemplated thereby; and
(vii) with the prior consent of the Majority Holders (as defined in the NPDC
Registration Rights Agreement), to waive any provision of, to modify,
or to amend the NPDC Registration Rights Agreement or, to the extent
relating thereto, this Agreement; or deal with the other parties to the
NPDC Registration Rights Agreement or, to the extent relating thereto,
this Agreement, settle any dispute relating to the terms of the NPDC
Registration Rights Agreement or, to the extent relating thereto, this
Agreement, or act in connection with all matters arising out of, based
upon, or in connection with such agreements and the transactions
contemplated thereby.
(c) The Agent agrees that, upon receipt of written notice to act
executed by (i) Purchasers which, pursuant to Schedule 1.2, are to purchase a
majority of the principal amount of the Notes (if prior to the Closing) or the
holders of a majority of the outstanding principal amount of the Notes (if
following the Closing), with respect to this Agreement; (ii) holders of a
majority of the outstanding principal amount of the Notes, with respect to the
Notes or the Mortgage; (iii) holders of a majority of the outstanding GP
Warrants, with respect to the GP Warrants; (iv) holders of a majority of the
outstanding NPDC Warrants, with respect to the NPDC Warrants; (v) Majority
Holders (as defined in the GP Registration Rights Agreement) with respect to the
GP Registration Rights Agreement; and (vi) Majority Holders (as defined in the
NPDC Registration Rights Agreement) with respect to the NPDC Registration Rights
Agreement, Agent shall take any and all actions as so directed by such Persons.
(d) Notwithstanding anything to the contrary contained herein, the
Agent shall not, without the prior consent of holders of a majority of the
outstanding principal amount of the Notes:
(i) send out any notice of default under the Mortgage to the Mortgagor (as
defined in the Mortgage);
(ii) amend, restate, or otherwise modify, in any material respect, the
Mortgage or any of the other Debt Documents (as defined in the
Mortgage) to which the Agent is a party;
(iii) release the Premises from the lien of the Mortgage (other than in
connection with Section 26 of the Mortgage) or release any other
collateral securing the Obligations; or
(iv) release any obligor under the Notes or Debt Documents.
(e) After the Agent obtains knowledge of an event of default under and
as defined in the Mortgage, the Agent shall not exercise any remedies available
to the Agent under the Mortgage or otherwise available at law or in equity
without the prior consent of holders of a majority of the outstanding principal
amount of the Notes; provided, however, that, immediately following the Agent
obtaining knowledge of such an event of default, the Agent shall notify such
holders of such event of default and shall consult with such holders with
respect to the action to be taken and remedies to be exercised by the Agent in
connection with such event of default. If, within 20 days after the Agent
obtains knowledge of the occurrence of such an event of default, holders of a
majority of the outstanding principal amount of the Notes have not agreed upon
the action to be taken and remedies to be exercised by the Agent in connection
with such event of default, the Agent shall commence to foreclose the Mortgage
and shall diligently prosecute such foreclosure in accordance with the terms
thereof.
9.2. Performance of Duties and Obligations. In performing its functions
and duties hereunder on behalf of the Security Holders, the Agent shall exercise
the same care and skill as it would exercise in dealing with securities held for
its own account. Neither the Agent nor any of its directors, officers,
employees, or other agents shall be liable for any action taken or omitted to be
taken by it or them under or in connection with this Agreement or the other
Transaction Documents, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Agent (a) may
consult with legal counsel and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith and in
accordance with the advice of such experts; (b) makes no representation or
warranty to any Security Holder as to, and shall not be responsible to any
Security Holder for, any recital, statement, representation, or warranty made in
or in connection with this Agreement or the other Transaction Documents or in
any written or oral statement (including a financial or other such statement),
instrument, or other document delivered in connection herewith or therewith or
furnished to any Security Holder by or on behalf of GP, NPDC, or MXL; (c) shall
have no duty to ascertain or inquire into GP's, NPDC's, or MXL's performance or
observance of any of the covenants or conditions contained herein or to inspect
any of the property (including the books and records) of GP, NPDC, or MXL or to
inquire into the existence or possible existence of any Event of Default; (d)
shall not be responsible to any Security Holder for the due execution, legality,
validity, enforceability, effectiveness, genuineness, sufficiency,
collectability, or value of this Agreement or the other Transaction Documents or
any instrument or document executed or issued pursuant hereto or in connection
herewith, except to the extent that such may be dependent on the due
authorization and execution by the Agent itself; (e) except as expressly
provided herein in respect of information and data furnished to the Agent for
distribution to the Security Holder, shall have no duty or responsibility,
either initially or on a continuing basis, to provide to any Security Holder any
information with respect to GP, NPDC, or MXL, whether coming into its possession
before the date hereof or at any time or times thereafter; and (f) shall incur
no liability under or in respect of this Agreement or the other Transaction
Documents for, and shall be entitled to rely and act upon, any notice, consent,
certificate or other instrument or writing (which may be by e-mail, facsimile
(telecopier), telegram, cable, or other electronic means) believed by it to be
genuine and correct and to have been signed or sent by the proper party or
parties.
9.3. Liquidation. After any acceleration of any of amounts due and
owing under the Notes, all monies or other assets received by the Agent, as
repayments of any of the Notes, proceeds of exercise of the security interest
provided by the Mortgage, or otherwise, shall be applied first to the Agent for
any Agent fees and expenses then due and payable under this Agreement until such
fees and expenses are paid in full, and then to the holders of the Notes for
their percentage shares of all principal, interest, and other amounts then due
and payable from GP until such principal, interest, and other amounts are paid
in full.
9.4. Successor Agent. The Agent may resign at any time by giving 30
days written notice thereof to the Security Holders, GP, NPDC, and MXL. Upon any
such resignation, the Security Holders, with prior written notice to GP, NPDC,
and MXL, shall have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed, and shall have accepted such appointment,
within 30 days after such notice of resignation, then the retiring Agent may
(but shall not be required to) appoint a successor Agent, upon notice to the
Security Holders, GP, NPDC, and MXL. Upon the acceptance by a successor Agent of
its appointment as Agent hereunder, such successor Agent shall thereupon succeed
to and become vested with all the properties, rights, powers, privileges and
duties of the former Agent in its capacity as such, without further act, deed or
conveyance. Upon the effective date of resignation of a retiring Agent, such
Agent shall be discharged from its duties under this Agreement or the
Transaction Documents, but the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted by it while it was Agent under this
Agreement.
9.5. Fees and Expenses of Agent. GP shall pay to the Agent from time to
time such reasonable fee for its services as agent as GP and the Agent shall
agree in writing. GP shall reimburse the Agent promptly upon request for all
reasonable disbursements, advances, and expenses incurred or made by or on
behalf of it in addition to the fee for its services. Such expenses may include
the reasonable compensation, disbursements, and expenses of the Agent's agents,
counsel, and other persons not regularly in its employ.
9.6. Indemnification.
(a) The Security Holders and GP, jointly and severally, shall indemnify
the Agent from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by, or asserted against the Agent in such capacity in any way relating to or
arising out of this Agreement or the other Transaction Documents or any action
taken or omitted to be taken by the Agent in such capacity hereunder or under
the other Transaction Documents; provided, that neither any of the Security
Holders nor GP shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the Agent's gross negligence or willful misconduct.
Without limiting the generality of the foregoing, each of the Security Holders
and GP agrees to reimburse the Agent, promptly on demand, for any out-of-pocket
expenses (including counsel fees and disbursements) incurred by the Agent in
connection with the preparation, execution, administration, or enforcement of,
or the preservation of any rights under, this Agreement or the other Transaction
Documents.
(b) Without limiting Section 9.6(a), as among GP and the Security
Holders:
(i) GP shall be solely liable for, and shall reimburse the Security Holders
for, and indemnify and hold the Security Holders harmless from and
against, any claim by the Agent for the fees and expenses of the Agent
for which GP is responsible under Section 9.5.
(ii) The Security Holders shall be solely liable for, and shall reimburse GP
for, and indemnify and hold GP harmless from and against, any claim by
the Agent under Section 9.6(a) resulting from any action taken or
omitted to be taken at the direction of the Security Holders, or any of
them (except for the fees and expenses provided in Section 9.5), or any
dispute among the Security Holders. The liability of the Security
Holders under this Section 9.6(b)(ii) shall be joint and several and
shall be allocated among the Security Holders on a pro rata basis based
upon the outstanding principal amounts of the Notes.
(iii) In any circumstance not provided for in Section 9.6(b)(i) or (ii), GP,
on the one hand, and the Security Holders, on the other, shall
contribute to the liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, and disbursements for which
any of them may be liable under Section 9.6(a) based on all relevant
equitable considerations, including the relative fault of GP and the
Security Holders in the aggregate in connection with the facts which
resulted in such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, and disbursements.
X. Indemnification
10.1. General. Each of GP, NPDC, and MXL (the "indemnifying party")
shall indemnify and hold harmless each Purchaser and its affiliates, officers,
directors, trustees, stockholders, employees, agents, and representatives (each,
an "indemnified party") from and against any and all liabilities, claims,
demands, actions, suits, losses, damages, costs, and expenses (including,
without limitation, reasonable attorneys' fees, and any and all expenses
whatsoever incurred in investigating, preparing, or defending against any
litigation, commenced or threatened, or any claim whatsoever, any and all
amounts paid in settlement of any claim or litigation, and any of the foregoing
arising out of or relating to the enforcement of this Article X) (collectively,
"Damages"), based upon or arising out of a breach of any covenant, agreement,
representation, or warranty made by the indemnifying party in this Agreement or
the other Transaction Documents.
10.2. Indemnity Procedures.
(a) An indemnified party seeking indemnification under this Agreement
in respect of, arising out of, or involving a claim or demand made by any person
or governmental authority against the indemnified party based upon or arising
out of a breach of any covenant, agreement, representation, or warranty made by
the indemnifying party in this Agreement or the other Transaction Documents (a
"Third Party Claim") shall notify the indemnifying party in writing of the Third
Party Claim within 10 days after receipt by the indemnified party of written
notice of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided under this Agreement,
except to the extent the indemnifying party shall have been prejudiced by such
failure. Thereafter, the indemnified party shall deliver to the indemnifying
party, promptly after the indemnified party's receipt thereof, copies of all
notices and documents (including court papers) received by the indemnified party
relating to the Third Party Claim.
(b) The indemnifying party shall have the right, within 30 days after
being so notified, to assume the defense of such Third Party Claim with counsel
reasonably satisfactory to the indemnified party. In any such proceeding the
defense of which the indemnifying party shall have so assumed, the indemnified
party shall have the right to participate therein and retain its own counsel at
its own expense unless (i) the indemnified party and the indemnifying party
shall have mutually agreed to the retention of such counsel, (ii) the
indemnified party shall have reasonably concluded on the basis of an opinion of
its counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party,
or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party, and
representation of both parties by the same counsel would be inappropriate in the
opinion of the indemnified party's counsel due to actual or potential differing
interests between them; in any such case, one such separate counsel may be
retained by all indemnified parties as a group at the indemnifying party's
expense. To the extent that the settlement of such a Third Party Claim, the
defense of which has been assumed by the indemnifying party, involves the
payment of money only, the indemnifying party shall have the right, in
consultation with the indemnified party, to settle those aspects dealing only
with the payment of money, provided that the indemnifying party pays such money
and such settlement includes a general release from the other parties to such
Third Party Claim in favor of the indemnified party. In connection with any such
defense or settlement, the indemnifying party shall not enter into a consent
decree involving injunctive or non-monetary relief or consent to an injunction
without the indemnified party's prior written consent, which consent shall not
be unreasonably withheld.
(c) The indemnified party at the indemnifying party's expense shall
cooperate in all reasonable respects with the indemnifying party in connection
with any Third Party Claims and the defense or compromise thereof. Such
cooperation shall include at the indemnifying party's expense the retention and
(upon the indemnifying party's request) the provision to the indemnifying party
of records and information reasonably relevant to the Third Party Claim which
are not confidential, making employees available on a mutually convenient basis
to provide additional information, and explanation of any material provided
under this Agreement. If the indemnifying party shall have assumed the defense
of a Third Party Claim, the indemnified party shall not admit any liability with
respect to, or settle, compromise, or discharge, the Third Party Claim, without
the indemnifying party's prior written consent, which consent shall not be
unreasonably withheld; provided, that admissions of facts which a party may
reasonably be required to make shall not be deemed to be admissions of
liability.
10.3. Exclusivity. The indemnification provided by this Article X shall
be the sole remedy (other than termination of this Agreement pursuant to Article
XI or declaring an Event of Default) for any matters relating to Third Party
Claims; provided, that this Section 10.3 shall not prohibit injunctive relief if
available under applicable law.
XI. Termination
11.1. Termination. This Agreement may be terminated at any time prior
to any Closing:
(a) by mutual written consent executed by GP, NPDC, MXL, and the
Purchasers;
(b) by GP, by notice given to the Purchasers in writing, without
liability to GP, NPDC, or MXL on account of such termination (providing GP,
NPDC, and MXL are not otherwise in default or in breach of this Agreement), if
(i) any of the conditions to GP and NPDC's obligations under this Agreement
shall not have been satisfied or waived in writing by GP and NPDC prior to the
Closing or (ii) the Purchasers shall have failed to perform in any material
respect their covenants or agreements contained herein required to be performed
prior to the Closing, or shall have breached any of their representations or
warranties contained herein, in each instance in a material respect (and
provided that GP and NPDC shall afford the Purchasers at least 15 Business Days
notice of and opportunity to cure such breach), unless such failure is
attributable to the breach by GP or NPDC of any of its obligations to consummate
the transactions contemplated hereby or of any of its other obligations
hereunder;
(c) by the Purchasers, acting jointly, by notice given to GP, NPDC, and
MXL in writing, without liability to the Purchasers on account of such
termination (providing the Purchasers are not otherwise in default or in breach
of this Agreement), if (i) any of the conditions to the Purchasers' obligations
under this Agreement shall not have been satisfied or waived in writing by the
Purchasers prior to the Closing or (ii) GP, NPDC, or MXL shall have failed to
perform in any material respect its covenants or agreements contained herein
required to be performed prior to the Closing, or shall have breached any of its
representations or warranties contained herein, in each instance in a material
respect (and provided that the Purchasers shall afford GP, NPDC, and MXL at
least 15 Business Days notice of and opportunity to cure such breach), unless
such failure is attributable to the breach by the Purchasers of any of their
obligations to consummate the transactions contemplated hereby or of any of
their other obligations hereunder;
(d) by any of GP, NPDC, or the Purchasers, by notice given to the other
parties in writing, without liability, if the transactions contemplated hereby
shall violate any non-appealable final order, decree, or judgment of any
governmental authority having competent jurisdiction or if there shall be a
statute, rule, or regulation that makes the transactions contemplated hereby
illegal or otherwise prohibited provided that the party seeking to terminate
this Agreement under this Section 11.1(d) shall have used reasonable commercial
efforts to avoid the issuance of any such order, decree, or judgment; or
(e) by any of GP, NPDC, or the Purchasers, by notice given to the other
parties in writing, without liability, if the Closing shall not occur on or
prior to the date which falls 60 days following the date of this Agreement.
11.2. Effect of Termination. Upon any termination of this Agreement
pursuant to Section 11.1 this Agreement shall become wholly void and of no
further force or effect (except Section 8.9, this Section 11.2, and Article XII)
and none of the parties shall have any liability or obligation to the others
arising out of this Agreement except for any liability arising from a party's
breach of this Agreement prior to such termination.
XII. Miscellaneous
12.1. Costs and Expenses. GP agrees to pay on demand all costs and
expenses of the Purchasers in connection with the preparation, execution and
delivery of this Agreement and the other Transaction Documents, and the other
instruments and documents to be delivered hereunder (including the reasonable
fees and out-of-pocket expenses of Paul, Hastings, Janofsky & Walker LLP,
counsel for the Purchasers, with respect thereto), in an amount not to exceed
$100,000.
12.2. Further Actions. At any time and from time to time, each party
agrees, at its expense, to take such actions and to execute and deliver such
documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
12.3. Entire Understanding. This Agreement and the Exhibits and
Schedules hereto set forth the entire understanding of the parties with respect
to the subject matter hereof and supersede all existing agreements among them
concerning such subject matter.
12.4. Amendments and Waivers. Any provisions of this Agreement may be
modified, amended, or waived if, but only if, such modification, amendment or
waiver is in writing and is signed by GP, NPDC, MXL, and each of the Purchasers
or, subject to Section 9.1, the Agent; provided that the Agent shall be required
to consent to any modification, amendment, or waiver of the rights or duties of
the Agent; and provided, further, that, after the Spin-Off Date, the signature
of GP, NPDC, or MXL on such modification, amendment, or waiver shall only be
required if such modification, amendment, or waiver adversely affects GP, NPDC,
or MXL, respectively; and provided, further, that the signature of GP, NPDC, or
MXL on the modification, amendment, or waiver of Article IX shall only be
required if such modification, amendment, or waiver adversely affects GP, NPDC,
or MXL, respectively.
12.5. Notices. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be given by Federal Express,
Express Mail, or similar overnight delivery or courier service, or delivered (in
person or by telecopy, telex, or similar telecommunications equipment) against
receipt to the party to whom it is to be given,
(a) if to GP:
GP Strategies Corporation
777 Westchester Avenue
White Plains, NY 10604
Attn: General Counsel
Facsimile No. (914) 249-9745
.........with a copy to
Robert J. Hasday, Esquire
Duane Morris LLP
380 Lexington Avenue
New York, NY 10168
Facsimile No. (212) 692-1020
(b) if to NPDC:
c/o GP Strategies Corporation
777 Westchester Avenue
White Plains, NY 10604
Attn: General Counsel
Facsimile No. (914) 249-9745
.........with a copy to
Robert J. Hasday, Esquire
Duane Morris LLP
380 Lexington Avenue
New York, NY 10168
Facsimile No. (212) 692-1020
(c) if to MXL:
c/o GP Strategies Corporation
777 Westchester Avenue
White Plains, NY 10604
Attn: General Counsel
Facsimile No. (914) 249-9745
.........with a copy to
Robert J. Hasday, Esquire
Duane Morris LLP
380 Lexington Avenue
New York, NY 10168
Facsimile No. (212) 692-1020
(d) if to any Purchaser:
to the address set forth for such Purchaser on the
signature pages hereto, with a copy to the Agent
(except to the extent such notice may be given by
notice to the Agent).
(e) if to the Agent:
Gabelli Funds, LLC
One Corporate Center
Rye, New York 10580
Attn: Bruce N. Alpert
Facsimile No. (914) 921-5118
.........with a copy to
Gabelli Funds, LLC
One Corporate Center
Rye, New York 10580
Attn: James E. McKee
Facsimile No. (914) 921-5384
or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 12.5. Any notice shall be deemed
given at the time of receipt thereof.
12.6. No Waiver; Remedies Cumulative. Any waiver by any party of a
breach of any term of this Agreement shall not operate as or be construed to be
a waiver of any other breach of that term or of any breach of any other term of
this Agreement. The failure of a party or the Agent to insist upon strict
adherence to any term of this Agreement on one or more occasions will not be
considered a waiver or deprive that party or the Agent of the right thereafter
to insist upon strict adherence to that term or any other term of this
Agreement. The rights, powers, and remedies of the Agent or any Purchaser or
Security Holder provided in this Agreement and the other Transaction Documents
are cumulative and not exclusive of any right, power, or remedy provided by law
or equity.
12.7. Binding Effect. No party may sell, assign, transfer, or otherwise
convey any of its rights or delegate any of its duties under this Agreement,
except as hereinafter provided, and this Agreement shall be binding upon and
inure to the benefit of the parties hereto and the respective permitted
successors, assigns, and personal representatives of the parties. Any attempted
sale, assignment, transfer, conveyance, or delegation in violation of this
Section 12.7 shall be void. The provisions of this Agreement shall inure to the
benefit of each indemnified party and its successors and assigns (if not a
natural person) and his assigns, heirs, and personal representatives (if a
natural person).
12.8. No Third Party Beneficiaries. This Agreement does not create, and
shall not be construed as creating, any rights enforceable by any person not a
party to this Agreement (except as provided in Article IX, Section 12.7, and the
other Transaction Documents).
12.9. Separability. If any provision of this Agreement is invalid,
illegal, or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall
nevertheless remain applicable to all other persons and circumstances.
12.10. Headings. The headings in this Agreement are solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
12.11. Counterparts; Governing Law. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to conflict of laws.
XIII. Definitions
"Business Day" means any day which is not a Saturday or Sunday and is
not a day on which banking institutions are generally authorized or obligated to
close in the City of New York, New York.
"Environmental Law" means any present federal, state, and local laws,
statutes, ordinances, rules, regulations, standards, policies, and other
government directives or requirements, as well as common law, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act and the Resource Conservation and Recovery Act, that apply to GP or the
Premises and relate to Hazardous Materials.
"Event of Default" shall have the meaning set forth in the Notes.
"Environmental Report" means the written report of VERTEX Engineering
Services, Inc., dated July 30, 2001, resulting from the environmental site
assessments of the Premises delivered to Purchasers, together with the related
reliance letter dated July 24, 2003.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America, applied on a consistent basis both
as to classification of items and amounts.
"GP Class B Stock" means the Class B Capital Stock, par value $.01 per
share, of GP.
"GP Common Stock" means the Common Stock, par value $.01 per share, of
GP.
"Hazardous Materials" shall mean petroleum and petroleum products and
compounds containing them, including gasoline, diesel fuel, and oil; explosives,
flammable materials; radioactive materials; polychlorinated biphenyls ("PCBs")
and compounds containing them; lead and lead-based paint; asbestos or
asbestos-containing materials in any form that is or could become friable;
underground or above-ground storage tanks, whether empty or containing any
substance; any substance the presence of which on the Premises is prohibited by
any federal, state, or local authority; any substance that requires special
handling; and any other material or substance now or in the future defined as a
"hazardous substance," "hazardous material," "hazardous waste," "toxic
substance," "toxic pollutant," "contaminant," or "pollutant" within the meaning
of any Environmental Law.
"Material Adverse Effect" means
(a) with respect to GP, any change or changes or effect or
effects that individually or in the aggregate are materially adverse to
(i) the assets, business, operations, income, prospects, or condition
(financial or otherwise) of GP and the GP Subsidiaries, taken as a
whole, or (ii) the ability of GP to fulfill its obligations under this
Agreement or any of the other Transaction Documents;
(b) with respect to NPDC in relation to the period prior to
the Spin-Off Date, any change or changes or effect or effects that
individually or in the aggregate are materially adverse to (i) the
assets, business, operations, income, prospects, or condition
(financial or otherwise) of GP and the GP Subsidiaries, taken as a
whole, or (ii) the ability of NPDC to fulfill its obligations under
this Agreement or any of the other Transaction Documents;
(c) with respect to NPDC in relation to the period after the
Spin-Off Date, any change or changes or effect or effects that
individually or in the aggregate are materially adverse to (i) the
assets, business, operations, income, prospects, or condition
(financial or otherwise) of NPDC and the NPDC Subsidiaries, taken as a
whole, or (ii) the ability of NPDC to fulfill its obligations under
this Agreement or any of the other Transaction Documents;
(d) with respect to MXL in relation to the period prior to the
Spin-Off Date, any change or changes or effect or effects that
individually or in the aggregate are materially adverse to (i) the
assets, business, operations, income, prospects, or condition
(financial or otherwise) of GP and the GP Subsidiaries, taken as a
whole, or (ii) the ability of MXL to fulfill its obligations under this
Agreement; and
(e) with respect to MXL in relation to the period after the
Spin-Off Date means any change or changes or effect or effects that
individually or in the aggregate are materially adverse to (i) the
assets, business, operations, income, prospects, or condition
(financial or otherwise) of MXL and the MXL Subsidiaries, taken as a
whole, or (ii) the ability of MXL to fulfill its obligations under this
Agreement.
"MXL Related Party" mean any direct or indirect shareholder, employee,
officer, director, agent, or representative of MXL.
"MXL Subsidiaries" means the GP Subsidiaries contemplated to be
transferred to MXL in connection with the Spin-Off.
"NPDC Common Stock" means the Class A Common Stock, par value $.01 per
share, of NPDC.
"NPDC Subsidiaries" means MXL and the other GP Subsidiaries
contemplated to be transferred to NPDC in connection with the Spin-Off.
"NPDC Warrant Amount" means a number equal to 8% of the number of
shares of NPDC Common Stock outstanding upon completion of the Spin-Off.
"NPDC Warrant Record Date" shall mean the date selected by GP for
determining the holders of record of GP Warrants entitled to receive NPDC
Warrants in accordance with Section 1.4, which date shall not be more than five
Business Days prior to the Spin-Off Date.
"Original Issue Date" of any Note shall have the meaning set forth in
such Note.
"Person" means any individual, partnership, limited liability company,
corporation, joint venture, trust, association, or other entity, domestic or
foreign, and his, her, or its respective heirs, executors, administrators, legal
representatives, successors, and assigns where the context of this Agreement so
permits.
"Related Agreements" means the Mortgage, the GP Registration Rights
Agreement, the NPDC Registration Rights Agreement, and the Indemnity Agreement.
"Release" of any Hazardous Materials includes but is not limited to any
release, deposit, discharge, emission, leaking, spilling, seeping, migrating,
injecting, pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Notes, the GP Warrants, the NPDC Warrants, and,
on exercise of the GP Warrants or NPDC Warrants in accordance with their terms,
the GP Warrant Shares or NPDC Warrant Shares, respectively.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Security Holder" means a holder of any Securities.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities (including contingent liabilities) of such
Person, (b) 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 liabilities of
such Person on its debts as they become absolute and mature, (c) 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 (d) 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 assets
would constitute unreasonably small capital. For such purposes, any contingent
liability (including guaranties, pending litigation, pension plan liabilities,
and claims for federal, state, local, and foreign taxes, if any) is valued at
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.
"Spin-Off" means the contemplated spin-off of NPDC by GP, as generally
described in GP's press release dated July 11, 2002.
"Spin-Off Date" means the date on which the distribution of the shares
of NPDC to the stockholders of GP pursuant to the Spin-Off is effective.
"Transaction Documents" means this Agreement, the Related Agreements,
the Notes, the GP Warrants, and the NPDC Warrants.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
GP STRATEGIES CORPORATION
By
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Name:
Title:
NATIONAL PATENT DEVELOPMENT CORPORATION
By
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Name:
Title:
MXL INDUSTRIES, INC.
By
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Name:
Title:
Purchasers
THE GABELLI SMALL CAP GROWTH FUND
By
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Name:
Title:
THE GABELLI CONVERTIBLE SECURITIES AND INCOME FUND INC.
By
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Name:
Title:
THE GABELLI EQUITY INCOME FUND
By
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Name:
Title:
THE GABELLI ABC FUND
By
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Name:
Title:
Agent
GABELLI FUNDS, LLC
By
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Name:
Title: