Exhibit 10.1
THIS BRIDGE FUNDING AGREEMENT (as amended, modified and supplemented
from time to time, this "Agreement") is entered into as of April 19, 1999 among
XXXXXX ELECTRONICS CORPORATION, a Delaware corporation ("BORROWER"), and XXXXXXX
SACHS CREDIT PARTNERS L.P. ("GS") and XXXXXXX XXXXX CAPITAL CORPORATION ("ML"
and, together with GS, the "LENDERS").
W I T N E S S E T H:
WHEREAS, Borrower has asked the Lenders to enter into this Agreement to
provide credit to Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1.
DEFINITIONS
1.1. Defined Terms
The following terms when used in this Agreement shall each have the
definition set forth below.
"AGREEMENT" is defined in the preamble to this Agreement.
"BORROWER" is defined in the preamble to this Agreement.
"BORROWING" means the borrowing of a Loan.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
a day on which commercial banks in New York, New York are required or permitted
by law to be closed.
"COMMITMENT" of a Lender means its commitment to make Loans in
an aggregate amount set forth opposite its name on Annex I hereto.
"INDEMNITEES" is defined in Section 9.3.
"INTEREST RATE" means, in respect of each day, the rate of
interest specified in Bloomberg's index for such day for the Fed H.15 A2/P2
non-financial CP 30-day discount rate [H15S030D] minus 5 basis points; provided
that if no such rate is specified for any date, the rate for such date shall be
the most recently available such rate.
"LENDER" is defined in the preamble to this Agreement.
"LOAN" is defined in Section 2.1.
"MAJORITY LENDERS" means the Lenders holding more than 50% of
the sum of the unborrowed Commitments and the outstanding Loans.
"MATURITY DATE" means the date 364 days after the date hereof.
"NOTICE OF BORROWING" is defined in Section 2.2.
"REVOLVING CREDIT AGREEMENT" means the Revolving Credit
Agreement (Multi-Year Facility), dated as of December 5, 1997, among Borrower,
the banks named therein and Bank of America National Trust and Savings
Association, as administrative agent, as at any time amended.
ARTICLE 2.
LOANS
2.1. Commitments.
Subject to the terms and conditions of this Agreement, each
Lender severally agrees to make up to five Loans to Borrower (each, a "LOAN" and
collectively, the "LOANS") from time to time from and including the date hereof
until the Business Day prior to the Maturity Date in an aggregate amount not to
exceed its Commitment.
2.2. Procedures for Borrowings.
To request a Borrowing of Loans, Borrower shall deliver to
each Lender a written notice (a "NOTICE OF BORROWING"). Each Notice of Borrowing
shall specify the Business Day on which Borrower requests that such Loans be
made and the amount of the Loans to be made. Notices of Borrowing shall be
received by each Lender not later than 3:00 p.m. New York time on the second
Business Day prior to the date of the proposed Borrowing. Borrower shall provide
to each Lender a list, with specimen signatures, of officers authorized to
request Loans. Each Lender is entitled to rely upon such list until it is
replaced by Borrower.
2.3. Disbursement of Loans.
Each Lender shall disburse to Borrower, no later than 1:00
p.m. New York time on the date of the proposed Borrowing as set forth in the
Notice of Borrowing, an amount in immediately available funds equal to such
Lender's pro rata share of the requested Borrowing (based on the proportion of
its Commitment to all the Lenders' Commitments); provided, however, that in no
event shall such amount exceed the unutilized amount of such Lender's Commitment
to make Loans.
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ARTICLE 3.
INTEREST AND PREPAYMENTS
3.1. Interest.
Borrower shall pay to the Lenders, quarterly in arrears, on
the last Business Day of each calendar quarter and on the Maturity Date,
interest on outstanding Loans at an interest rate per annum equal to the
Interest Rate for each day such Loans have been outstanding since the date
thereof or, if later, since the last date to which interest has been paid in
accordance herewith.
3.2. Voluntary Prepayments.
Borrower shall have the right to prepay the Loans in whole or
in part at any time and from time to time, subject to Borrower giving each
Lender written notice, which notice shall be irrevocable, of its intent to
prepay the Loans, at least one (1) Business Day prior to such prepayment, which
notice shall specify the amount of such prepayment. Each such prepayment shall
be accompanied by the payment of any accrued and unpaid interest on the
principal amount being prepaid.
3.3. Mandatory Payments.
Borrower shall pay the outstanding Loans in full on the
Maturity Date. Borrower shall prepay the Loans from time to time with the net
proceeds received by Borrower from the transactions contemplated in that certain
engagement letter, dated April 19, 1999, among Borrower and the Lenders. Each
such prepayment shall be accompanied by the payment of any accrued and unpaid
interest on the principal amount being prepaid.
3.4. Payments; Calculations; Commitment Reductions.
Borrower shall make all payments owing by it to each Lender
hereunder in immediately available funds at the office of each Lender specified
on Annex I hereto prior to 1:00 p.m. New York time on the date such amounts are
due. All calculations of interest hereunder shall be made on the basis of the
actual number of days elapsed in the period for which such interest is payable
and a 365/366 day year (including the first day but excluding the last day). All
payments made by Borrower under Sections 3.2 and 3.3 hereof shall be distributed
among the Lenders pro rata, according to each such Lender's outstanding Loans.
Borrower may reduce the Commitments at any time and from time to time in whole
or in part; provided that such reduction shall be pro rata among the Lenders.
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ARTICLE 4.
CONDITIONS PRECEDENT
The obligation of the Lenders to make the Loans hereunder is
subject to the following conditions, and Borrower is deemed to certify that each
of the following conditions is true on each date on which a Notice of Borrowing
is sent to the Lenders: (a) to the best knowledge of Borrower, the
representations and warranties contained in Article 6 of this Agreement are true
and correct in all material respects on the date of such Notice of Borrowing,
and (b) to the best knowledge of Borrower, no Event of Default referred to in
Article 8 of this Agreement or event which with notice or lapse of time or both
would become such an Event of Default has occurred and is continuing except such
Events of Default or events as have been expressly waived by or on behalf of the
Lenders.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that, as of the date hereof,
each of the representations and warranties made by Borrower in Section 6 of the
Revolving Credit Agreement (other than the representations made in the first
sentence and the last sentence of Section 6.6 thereunder, each of which shall be
deemed to refer to the Company's December 31, 1998 financial statements), a copy
of which section is attached hereto as Schedule I, and all defined terms in the
Revolving Credit Agreement used in such sections, in each case as in effect on
the date hereof, are hereby incorporated by reference herein mutatis mutandis
(whether or not the Revolving Credit Agreement is terminated or any amount is
outstanding thereunder); provided that (x) the parenthetical in the first
sentence of Section 6.6 and (y) the second sentence of Section 6.6 shall not be
incorporated herein; and, further, provided that (i) all references to the
Administrative Agent and the Banks therein shall be deemed to be references to
the Lenders hereunder, (ii) all references to the Notes therein shall be deemed
to be references to the Loans hereunder, (iii) all references to the Agreement
therein shall be deemed to be references to this Agreement and (iv) the
references in Section 6.8 of the Revolving Credit Agreement shall be deemed to
refer to the Loans hereunder;.
ARTICLE 6.
COVENANTS
Borrower covenants and agrees that so long as the Lenders are
obligated to make the Loans hereunder and until repayment in full of the Loans
and all interest thereon, the covenants made by Borrower in Sections 7 and 8 of
the Revolving Credit Agreement (other than the covenants made in Sections 7.1
and 7.8 thereunder), a copy of which sections is attached hereto as Schedule II,
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and all defined terms in the Revolving Credit Agreement used in such sections,
in each case as in effect on the date hereof, are hereby incorporated by
reference herein mutatis mutandis (whether or not the Revolving Credit Agreement
is terminated or any amount is outstanding thereunder); provided that (i) all
references to the Administrative Agent and the Banks therein shall be deemed to
be references to the Lenders hereunder, (ii) all references to Availability
Period therein shall be deemed to mean to the period from the date hereof until
the Maturity Date hereunder, (iii) all references to the Majority Banks therein
shall be deemed to be references to the Majority Lenders, (iv) all references to
the Commitments therein shall be deemed to be references to the Commitments
hereunder and (v) all references to the Loans therein shall be deemed to be
references to the Loans hereunder. Borrower agrees to comply with such covenants
until the repayment in full of the Loans and all interest thereon.
ARTICLE 7.
EVENTS OF DEFAULT
7.1. Events of Default.
Sections 9.1(a) through (l), inclusive, of the Revolving
Credit Agreement, a copy of which section is attached hereto as Schedule III,
and all defined terms in the Revolving Credit Agreement used in such sections,
in each case as in effect on the date hereof, is hereby incorporated by
reference herein mutatis mutandis (whether or not the Revolving Credit Agreement
is terminated or any amount is outstanding thereunder) and each such section
shall be deemed an "Event of Default" hereunder; provided that (i) all
references to the Administrative Agent and the Banks therein shall be deemed to
be references to the Lenders hereunder, (ii) all references to the Loans therein
shall be deemed to be references to the Loans hereunder and (iii) all references
to the Agreement therein shall be deemed to be references to this Agreement.
7.2. Remedies.
(a) Automatically upon the occurrence of an Event of Default
under Section 9.1(d) of the Revolving Credit Agreement, as incorporated in
Section 7.1 hereunder, the Commitments shall immediately terminate, and all
Loans and other liabilities and obligations under this Agreement shall, without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, be forthwith due and payable, if not herein otherwise then due
and payable, together with all costs and expenses (including break and funding
costs and other costs in connection with the relending, reborrowing, funding or
other employing of funds) incurred by the Lenders as a result thereof, anything
herein or in any agreement, contract, indenture, document or instrument
contained to the contrary notwithstanding; and (b) at any time after the
occurrence of an Event of Default other than under such section described in the
immediately previous clause, and in each and every such case, unless such Event
of Default shall have been remedied by Borrower to the satisfaction of the
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Majority Lenders or waived in writing by the Majority Lenders (except in the
case of an Event of Default under Section 9.1(a) of the Revolving Credit
Agreement, as incorporated in Section 7.1 hereunder, the waiver of which shall
require the consent of all the Lenders), the Lenders may immediately terminate
the Commitments, whereupon the same shall be cancelled and reduced to zero and
any Notice of Borrowing given on or after the date of such notice of
cancellation shall cease to have effect and all Loans and accrued interest
thereon and all other liabilities and obligations outstanding under this
Agreement shall, thereupon, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, be forthwith due and
payable, if not otherwise then due and payable. Thereafter, any Lender or the
Lenders may immediately, and without expiration of any period of grace, enforce
payment of all liabilities and obligations of Borrower under this Agreement.
ARTICLE 8.
FURTHER AGREEMENT
Borrower hereby agrees to permit the Loans hereunder to, at
the option of the Lenders, convert to notes at any time after the 90th day after
the date hereof and prior to the Maturity Date, such notes to be in form and
substance mutually acceptable to Borrower and the Lenders.
ARTICLE 9.
MISCELLANEOUS
9.1. GOVERNING LAW.
THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT
AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE
GOVERNED BY THE INTERNAL LAWS AND DECISIONS OF THE STATE OF NEW YORK.
9.2. Termination.
Borrower may terminate the obligations of the Lenders to make
the Loans hereunder at any time by giving the Lenders at least one (1) Business
Day prior written notice and by paying in full any outstanding Loans and all
accrued and unpaid interest thereon on the date of such termination. Any such
notice of termination shall be irrevocable.
9.3. Indemnification.
Borrower agrees to indemnify the Lenders and their respective
directors, officers, agents, partners and employees (collectively, the
"INDEMNITEES") from and hold each of them harmless against any and all losses,
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liabilities, claims, damages or expenses reasonably incurred by any of them
arising out of or by reason of any investigation by governmental or judicial
authorities or being made a party to any litigation or other similar proceeding
related to any use made or proposed to be made by Borrower of the proceeds of
any Loan for the acquisition of any other Person including, without limitation,
the reasonable fees and disbursements of counsel (including allocated costs for
in-house legal services) incurred in connection with any such investigation,
litigation or other proceeding; provided, however, that Borrower shall have no
obligation to indemnify or pay for the costs and expenses of more than one
counsel for the Indemnitees, unless any Indemnitee shall in good faith
reasonably determine that there is a conflict of interest that causes it to be
reasonably necessary for any Indemnitees to be represented by other counsel.
Counsel chosen to represent any Indemnitee pursuant to the previous sentence
shall be reasonably satisfactory to Borrower. The obligations of Borrower under
this Section 9.3 shall survive the termination of this Agreement.
9.4. Notices.
Except as otherwise provided herein, all notices and
correspondences hereunder shall be in writing and sent by certified or
registered mail, return receipt requested, or by overnight delivery service,
with all charges prepaid, if to any of the Lenders, then to its address for
notices set forth on Annex I or such other address as such Lender may notify the
other parties hereto from time to time, or by facsimile transmission, promptly
confirmed in writing sent by first class mail, to the appropriate telecopier
number set forth on Annex I or to such other number as any Lender may notify the
other parties hereto from time to time, and if to Borrower, then to Borrower at
the following address or facsimile number, as applicable, or to such other
number as Borrower may notify the other parties hereto from time to time:
If to Borrower:
Xxxxxx Electronics Corporation
Mail Station A-148
000 Xxxxx Xxxxxxxxx Xxxx.
X.X. Xxx 000
Xx Xxxxxxx, Xxxxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx, Assistant Treasurer
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
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All such notices and correspondence shall be deemed given (i) if sent by
certified or registered mail, three Business Days after being delivered to the
United States Postal Service, (ii) if sent by overnight delivery service, when
received at the above stated addresses or when delivery is refused, and (iii) if
sent by telex or facsimile transmission, when receipt of such transmission is
acknowledged.
9.5. Assignments and Participations.
(a) Borrower Assignment. Borrower shall not assign this
Agreement, or any rights or obligations hereunder, without the prior written
consent of all of the Lenders.
(b) Lender Assignments. No Lender shall assign this Agreement,
or any rights or obligations hereunder, without the prior written consent of
Borrower, such consent not to be unreasonably withheld; provided, however, that
neither GS nor ML shall need Borrower's consent in connection with assignments
to (i) any wholly-owned domestic subsidiary of such Lender or (ii) the other
Lender if, in connection with such assignments, such assigning Lender causes its
assignee to certify in writing its acceptance of the obligations under this
Agreement, such writing to be in form and substance satisfactory to Borrower.
Each Lender may assign all or a portion of its rights and obligations under this
Agreement; provided that no such assignment shall be for less than $10,000,000,
unless it constitutes the sum of the entire remaining Commitment and the
outstanding Loans of the assigning Lender. Upon any assignment by the Lenders,
at the option of Borrower, Borrower and the Lenders agree to make appropriate
modifications to this Agreement relating to the creation of an administrative
agent.
9.6. Amendments.
No amendment of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by (i) the Majority
Lenders and (ii) Borrower.
9.7. Expenses.
Borrower and each Lender shall pay all of its own expenses
incurred in connection with the preparation and consummation of this Agreement.
9.8. Counterparts and Effectiveness.
This Agreement and any waiver or amendment hereto may be
executed in any number of counterparts and by the different parties hereto in
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. This Agreement shall become effective on the date on which all of
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the parties hereto shall have executed and delivered a copy hereof (whether the
same or different copies).
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their proper and duly authorized
officers as of the date set forth above.
BORROWER:
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxx X. XxXxxxxx
--------------------------------
Name: Xxxx X. XxXxxxxx
Title: Corporate Vice President
and Treasurer
LENDERS:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:/s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
XXXXXXX XXXXX CAPITAL CORPORATION
By: /s/ Xxxxxxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
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ANNEX I
LENDERS AND COMMITMENT AMOUNTS
Name and Address of Lender
Xxxxxxx Sachs Credit Partners L.P. $250,000,000
Attention:
Tel:
Fax No.: (212)
Account for payments:
Xxxxxxx Xxxxx Capital Corporation $250,000,000
Attention:
Tel:
Fax No.:
Account for payments:
Total Commitments: $500,000,000
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