EXHIBIT 10.33
CAPITAL CALL AGREEMENT
CAPITAL CALL AGREEMENT (as amended, supplemented or modified from time to
time, this "Agreement"), dated as of January 26, 2000, made by and among X.X.
Xxxxxx Equity Investors I, L.P., a Delaware limited partnership (the
"Contributor"), Special Devices, Incorporated, a Delaware corporation (the
"Borrower"), and Bankers Trust Company, as Administrative Agent (the
"Administrative Agent") for the benefit of the various lenders (the "Banks")
from time to time party to the Credit Agreement referred to below. Except as
otherwise defined herein, all capitalized terms used herein and defined in the
Credit Agreement are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Administrative Agent have entered
into a Credit Agreement, dated as of December 15, 1998 (as amended, modified or
supplemented from time to time, the "Credit Agreement");
WHEREAS, on the date hereof, the Contributor owns a substantial economic
interest and voting interest in the Borrower's capital stock;
WHEREAS, it is a condition precedent to the effectiveness of the Second
Amendment, dated as of January 26, 2000, to the Credit Agreement (the "Second
Amendment") that the Contributor and the Borrower shall have executed and
delivered this Agreement; and
WHEREAS, the Contributor and the Borrower will obtain benefits as a result
of the effectiveness of the Second Amendment and, accordingly, desire to execute
and deliver this Agreement in order to satisfy the condition described in the
immediately preceding paragraph;
NOW, THEREFORE, it is agreed:
1. CERTAIN DEFINED TERMS. As used herein, the following terms shall have
the following meanings:
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement.
"Agreement" shall have the meaning provided in the first paragraph of this
Agreement.
"Banks" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Capital Call Amount" shall mean (i) in the case of a Capital Call Event of
the type described in clause (i) or (ii) of the definition thereof, $7,500,000,
and (ii) in the case of a Capital Call Event of the type described in clause
(iii) of the definition thereof, an amount equal to the lesser of (A) $7,500,000
and (B) that minimum amount necessary to repay outstanding Term Loans such that
the Leverage Ratio on the last day of the Test Period ending closest to January
31, 2001 would have been reduced to 5.00:1.00.
"Capital Call Event" shall mean the first to occur of (i) an Event of
Default under Section 10.01 of the Credit Agreement, (ii) an Event of Default
under Section 10.05 of the Credit Agreement, and (iii) the Leverage Ratio on the
last day of the Test Period ending closest to January 31, 2001 being greater
than 5.00:1.00; it being understood and agreed, however, that if the Leverage
Ratio on the last day of the Test Period ending closest to January 31, 2001 is
less than or equal to 5.00:1.00 (without giving effect to the contribution of
the Capital Call Amount), then a Capital Call Event shall not thereafter occur
and this Agreement shall be terminated in accordance with Section 15(i) hereof.
"Contributor" shall have the meaning provided in the first paragraph of
this Agreement.
"Credit Agreement" shall have the meaning provided in the first recital of
this Agreement.
"Investment" shall mean a cash equity capital contribution to the Borrower
by the Contributor.
"Proportionate Share" of each Bank at any time shall mean a fraction (x)
the numerator of which is the aggregate outstanding principal amount of all Term
Loans of such Bank at such time and (y) the denominator of which is the
aggregate outstanding principal amount of all Term Loans of all the Banks at
such time.
2. REQUIRED CONTRIBUTIONS TO THE BORROWER; ETC. (a) The Contributor hereby
absolutely, irrevocably and unconditionally agrees that if any Capital Call
Event shall have occurred, the Contributor will, as soon as practicable
thereafter, but in any event within 30 days thereafter, make an Investment in
the Borrower in an aggregate amount equal to the Capital Call Amount; PROVIDED
that to the extent such Capital Call Event arises because of an Event of Default
under Section 10.05 of the Credit Agreement or if any such Investment in the
Borrower cannot be made for any reason whatsoever, then (in either case) the
Contributor's Investment shall instead be made by means of the purchase by the
Contributor from each of the Banks of a subordinated participation in such
Banks' outstanding Term Loans, PRO RATA among the Banks based on their
respective Proportionate Shares at such time, with such participations to be
evidenced by a subordinated participation agreement in form and substance
reasonably satisfactory to the Administrative Agent.
(b) The Borrower hereby acknowledges, confirms and agrees that immediately
upon receipt of the Capital Call Amount it shall apply such amounts as a
mandatory repayment
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of Term Loans in accordance with the provisions of Sections 4.02(f), (h) and (i)
of the Credit Agreement.
3. PAYMENTS. All payments required to be made pursuant to this Agreement
shall be made in Dollars and in immediately available funds, and shall be made
on the same basis as provided in Sections 4.03 and 4.04 of the Credit Agreement.
4. OBLIGATIONS INDEPENDENT. The obligations of the Contributor hereunder
are independent of the obligations of any Subsidiary Guarantor, the Borrower or
any other Person, and a separate action or actions maybe brought and prosecuted
against the Contributor whether or not an action is brought against any
Subsidiary Guarantor, the Borrower or any other Person and whether or not any
Subsidiary Guarantor, the Borrower or any other Person shall be joined in any
such action or actions. The Contributor waives, to the fullest extent permitted
by law, the benefit of statute of limitations affecting its liability hereunder
or the enforcement hereof.
5. CERTAIN WAIVERS BY THE CONTRIBUTOR. The Contributor hereby waives notice
of acceptance of this Agreement and notice of any liability to which it may
apply, and waives presentment, demand of payment, protest, notice of dishonor,
or nonpayment of any such liability, suit or taking of other action by the
Borrower, the Administrative Agent or any Bank against, and any other notice to,
the Contributor or any other Person liable thereon.
6. ACTIONS RELATING TO OBLIGATIONS UNDER CREDIT AGREEMENT. The
Administrative Agent or the Banks (or any of the Banks) may in accordance with
the terms of the Credit Agreement (except as shall be required by applicable
statute and cannot be waived) at any time and from time to time without the
consent of, or notice to, the Contributor, without incurring responsibility to
the Contributor, without impairing or releasing the obligations of the
Contributor hereunder, upon or without any terms or conditions and in whole or
in part:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, alter or increase any of the Obligations,
any security therefor, or any liability incurred directly or indirectly in
respect thereof;
(b) take and hold security for the payment of the Obligations and sell,
exchange, release, impair, surrender, realize upon or otherwise deal with in any
manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the Obligations or any liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and/or any offset thereagainst;
(c) exercise or refrain from exercising any rights against the Borrower,
any other Credit Party or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Obligations, any security therefor or
any liability (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof, and may subordinate the payment of all or any part
thereof to the payment of any liability (whether due or not) of the Borrower to
creditors of the Borrower other than the Secured Creditors;
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(e) except as otherwise expressly provided herein, apply any sums by
whomsoever paid or howsoever realized to any liability or liabilities of the
Borrower to the Administrative Agent or the Banks regardless of what liability
or liabilities of the Contributor or the Borrower remain unpaid;
(f) release or substitute any one or more endorsers, guarantors, Credit
Parties or other obligors;
(g) consent to or waive any breach of, or any act, omission or default
under, any of the Credit Documents or any of the instruments or agreements
referred to therein, or otherwise amend, modify or supplement any of the Credit
Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this Agreement which
may deprive the Contributor of any right to subrogation against the Borrower to
recover any payments made pursuant to this Agreement;
(i) pursue its rights and remedies under this Agreement and/or under any
guaranty of all or any part of the Obligations in whatever order, or
collectively, and the Administrative Agent and the Banks shall be entitled to
the Contributor's performance hereunder, notwithstanding any action taken (or
not taken) by the Administrative Agent and the Banks to enforce any of its
rights or remedies against the Contributor or any other Person, for all or any
part of the Obligations or any payment received under this Agreement or any
other such guaranty; and/or
(j) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of the
Contributor from its liabilities under this Agreement.
7. INVALIDITY, ETC., OF OBLIGATIONS. No invalidity, irregularity or
unenforceability of all or any of the Loans and/or any of the other Obligations
or of any security therefor shall affect, impair or be a defense to this
Agreement, and the obligations of the Contributor hereunder shall be absolute
and unconditional notwithstanding the occurrence of any event or the existence
of any circumstance, including, without limitation, any bankruptcy or insolvency
proceeding with respect to the Contributor, the Borrower or any of its
Subsidiaries or any event or circumstance which would constitute a legal or
equitable discharge, except payment in full in cash of all Obligations in
accordance with the Credit Agreement.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to induce the Banks
to enter into the Second Amendment, the Contributor makes the following
representations, warranties and agreements:
(i) The Contributor is a duly organized and validly existing limited
partnership in good standing under the laws of the State of Delaware and has the
power and authority to own its property and assets and to transact the business
in which it is engaged and presently proposes to engage.
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(ii) The Contributor has the power and authority to execute, deliver and
perform the terms and provisions of this Agreement and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement. The Contributor has duly executed and delivered this Agreement, and
this Agreement constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms, except to the extent that the
enforceability hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
(iii) Neither the execution, delivery or performance by the Contributor of
this Agreement, nor compliance by it with the terms and provisions hereof, nor
the consummation of the transactions contemplated herein, (x) will contravene
any provision of any applicable law, statute, rule or regulation or any
applicable order, writ, injunction or decree of any court or governmental
instrumentality, (y) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Contributor pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other material agreement, contract or instrument to which the
Contributor is a party or by which it or any of its property or assets is bound
or to which it may be subject or (z) will violate any provision of any of the
organizational documents of the Contributor.
(iv) No order, consent, approval, license, authorization or validation of,
or filing, recording or registration with, or exemption by, any governmental or
public body or authority, or any subdivision thereof, is required to authorize,
or is required in connection with, (x) the execution, delivery and performance
of this Agreement or (y) the legality, validity, binding effect or
enforceability of this Agreement.
(v) There are no actions, suits or proceedings pending or, to the knowledge
of the Contributor, threatened (x) with respect to this Agreement or (y) that
could reasonably be expected to (I) materially and adversely effect the
business, operations, property, assets, liabilities or condition (financial or
otherwise) of the Contributor or (II) have a material adverse effect on the
rights or remedies of the Banks or the Administrative Agent hereunder or on the
ability of the Contributor to perform its obligations to the Banks or the
Administrative Agent hereunder.
(vi) The Contributor is in compliance with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except to the extent that any
non-compliance, either individually or in the aggregate, could not reasonably be
expected to (x) materially and adversely effect the business, operations,
property, assets, liabilities or condition (financial or otherwise) of the
Contributor or (y) have a material adverse effect on the rights or remedies of
the Banks or the Administrative Agent hereunder or on the ability of the
Contributor to perform its obligations to the Banks or the Administrative Agent
hereunder.
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(vii) The Contributor or the general partner thereof has the right to call
cash capital contributions from the partners of the Contributor in amounts, and
at times, sufficient to fund in a timely manner all obligations of the
Contributor under this Agreement.
9. MAINTAIN ABILITY TO FUND OBLIGATIONS. The Contributor and the general
partner thereof agrees to take all action as may be necessary so that, at all
times prior to the satisfaction and release of all obligations of the
Contributor under this Agreement pursuant to Section 15 hereof, the Contributor
and/or the general partner thereof shall have the right to call cash capital
contributions from the partners of the Contributor in amounts, and at times,
sufficient to fund in a timely manner all obligations of the Contributor under
this Agreement.
10. CAPITAL CALL EVENT OF DEFAULT. The following shall constitute a
"Capital Call Event of Default":
The Contributor shall commence a voluntary case concerning itself under
Title 11 of the United States Code entitled "Bankruptcy," as now or hereafter in
effect, or any successor thereto (the "Bankruptcy Code"); or an involuntary case
is commenced against the Contributor, and the petition is not controverted
within 10 days, or is not dismissed within 60 days, after commencement of the
case; or a custodian (as defined in the Bankruptcy Code) is appointed for, or
takes charge of, all or substantially all of the property of the Contributor, or
the Contributor commences any other proceeding under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or
liquidation or similar law of any jurisdiction whether now or hereafter in
effect relating to the Contributor, or there is commenced against the
Contributor any such proceeding which remains undismissed for a period of 60
days, or the Contributor is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered; or the
Contributor suffers any appointment of any custodian or the like for it or any
substantial part of its property to continue undischarged or unstayed for a
period of 60 days; or the Contributor makes a general assignment for the benefit
of creditors; or any partnership action is taken by the Contributor for the
purpose of effecting any of the foregoing.
11. WAIVERS OF FAILURES; DELAYS; ETC. No failure or delay on the part of
the Administrative Agent, any Bank, the Contributor, the Borrower or any
other Credit Party in exercising any right, power or privilege hereunder and
no course of dealing between the Contributor, the Administrative Agent, any
Bank, the Borrower or any other Credit Party shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights, powers and
remedies herein expressly provided are cumulative and not exclusive of any
rights, powers or remedies which the Administrative Agent or any Bank would
otherwise have. No notice to or demand on the Contributor in any case shall
entitle the Contributor to any other further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the
Administrative Agent or any Bank to any other or further action in any
circumstances without notice or demand.
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12. BENEFIT OF AGREEMENT. This Agreement shall be binding upon the
Contributor and the Borrower, and their successors and assigns (including,
without limitation, any executors or administrators) and shall inure to the
benefit of the Administrative Agent and the Banks and their successors and
assigns. The Contributor and the Borrower acknowledges and agrees that this
Agreement is made for the benefit of the Administrative Agent and the Banks and
that the Administrative Agent and/or the Banks may enforce all of the
obligations of the Contributor and the Borrower hereunder directly against them.
Neither the Contributor nor the Borrower may assign any of its rights or
obligations hereunder without the consent of the Required Banks.
13. AMENDMENTS; WAIVERS. Neither this Agreement nor any provision hereof
may be changed, modified, amended or waived except with the written consent of
the Contributor, the Borrower and the Administrative Agent (acting with the
consent of the Required Banks).
14. NOTICES. All notices and other communication hereunder shall be made at
the addresses, in the manner and with the effect provided in Section 13.03 of
the Credit Agreement, provided that, for this purpose, the address of the
Contributor shall be the address specified opposite its signature below.
15. TERMINATION OF AGREEMENT. This Agreement shall terminate and be of no
further force and effect (except to the extent any party's obligations, if any,
arising prior to such time hereunder have not theretofore been fulfilled) upon
the earlier of (i) the date on which the Administrative Agent gives written
notice to the Contributor and the Borrower that their obligations under this
Agreement have been fulfilled or terminated and (ii) the date occurring prior to
a Capital Call Event on which the aggregate outstanding principal amount of all
Term Loans is less than $40,000,000.
16. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE CONTRIBUTOR, THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE BANKS HEREUNDER SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX WHICH ARE LOCATED IN THE CITY OF
NEW YORK AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE
CONTRIBUTOR AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH OF THE CONTRIBUTOR
AND THE BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH
COURTS LACK JURISDICTION OVER SUCH PERSON, AND AGREES NOT TO PLEAD OR CLAIM, IN
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT BROUGHT IN ANY OF
THE AFORESAID
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COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH PERSON. EACH OF THE
CONTRIBUTOR AND THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF XXXXX THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH PERSON, AT ITS ADDRESS FOR NOTICES
PURSUANT TO SECTION 13.03 OF THE CREDIT AGREEMENT OR AS SET FORTH OPPOSITE ITS
SIGNATURE BELOW, AS THE CASE MAY BE, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. EACH OF THE CONTRIBUTOR AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, ANY BANK OR THE HOLDER OF
ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE CONTRIBUTOR OR THE BORROWER
IN ANY OTHER JURISDICTION.
(c) EACH OF THE CONTRIBUTOR AND THE BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (B) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM. EACH CONTRIBUTOR AND THE BORROWER FURTHER IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY COURT OR JURISDICTION,
INCLUDING, WITHOUT LIMITATION, THOSE REFERRED TO IN CLAUSE (B) ABOVE, IN RESPECT
OF ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT.
17. COSTS OF ENFORCEMENT; INDEMNITY. (a) The Contributor hereby agrees to
pay all out-of-pocket costs and expenses of the Administrative Agent and each
Bank in connection with the enforcement of this Agreement and the Contributor
hereby agrees to pay all out-of-pocket costs and expenses of the Administrative
Agent in connection with any amendment, waiver or consent relating hereto
(including, without limitation, in each case, the reasonable fees and
disbursements of counsel employed by the Administrative Agent and each Bank, as
the case may be).
(b) The Contributor hereby agrees to indemnify and hold the Administrative
Agent and each Bank free and harmless from and against all loss, cost, damage,
and expense, by reason of the inaccuracy costs, which it shall at any time have
actually sustained by reason of the inaccuracy or breach of any of the foregoing
representations, warranties and covenants.
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18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Contributor, the
Borrower and the Administrative Agent.
19. HEADINGS DESCRIPTIVE. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed and delivered as of the date first above written.
Address:
000 Xxxx Xxxxxx X.X. XXXXXX EQUITY INVESTORS I, L.P.
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: J.F.L. Investors, L.L.C.,
Telephone: (000) 000-0000 its general partner
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx By:____________________________
Name:
Title:
SPECIAL DEVICES, INCORPORATED
By:____________________________
Name:
Title:
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent for the Banks
By: ___________________________________
Name:
Title:
