EXHIBIT 10.38
CAPITAL CALL AGREEMENT
CAPITAL CALL AGREEMENT (as amended, supplemented or modified from
time to time, this "Agreement"), dated as of September 18, 2000, made by and
among ▇.▇. ▇▇▇▇▇▇ 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
Fourth Amendment, Consent and Waiver, dated as of September 18, 2000, to the
Credit Agreement (the "Fourth 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 Fourth 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.
"Category I Capital Call Amount" shall mean $5,000,000 less the
aggregate principal amount of all payments on outstanding Term Loans made
after the consummation of the ▇▇▇▇ Sale (but only to the extent that (i) such
payments shall not have been made with Net Sale Proceeds from the ▇▇▇▇ Sale
and (ii) such aggregate amount exceeds $156,615.78) made by the Borrower
prior to the occurrence of the Category I Capital Call Event; PROVIDED that
in no event shall the Category I Capital Call Amount be less than $0.
"Category I Capital Call Event" shall mean the occurrence of any
Event of Default under the Credit Agreement.
"Category II Capital Call Amount" shall mean that amount which is
required to be paid (after giving effect to all previous payments) in order
to satisfy in full both of the Borrower's federal and state income tax
obligations with respect to its fiscal year ending closest to October 31,
2000; PROVIDED that in no event shall the Category II Capital Call Amount be
(i) less than $0 or (ii) more than $2,500,000; and PROVIDED, FURTHER, that if
the Category II Capital Call Amount shall be payable in accordance with this
Agreement as a result of the occurrence of a Category II Capital Call Event
described in clause (ii) of the definition thereof (but prior to the
occurrence of a Category II Capital Call Event described in clause (i) of the
definition thereof), then the Category II Capital Call Amount shall be equal
to $2,500,000.
"Category II Capital Call Event" shall mean the earlier of (i) the
failure by the Borrower to make its estimated tax payments with respect to
its federal and state income tax obligations for its fiscal year ending
closest to October 31, 2000 and (ii) the occurrence of an Event of Default
under Section 10.05 of the Credit Agreement.
"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 (i) in the
case of a Category I Capital Call Event, 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
and, (ii) in the case of a Category II Capital Call Event, a fraction (x) the
numerator of which is the aggregate outstanding principal amount of all
Revolving Loans of such Bank at such time and (y) the denominator of which is
the aggregate outstanding principal amount of all Revolving 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 Category I Capital Call Event shall
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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 Category I Capital Call Amount (which
Investment, however, will be paid directly to the Administrative Agent for
application as provided in the last sentence of this Section 2(a)); PROVIDED
that to the extent such Category I 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 (it
being expressly understood and agreed (and the subordinated participation
agreement shall provide) that no payment or distribution of any kind or
character, whether in cash, property, securities or otherwise, shall be made
under any circumstances whatsoever with respect to any such subordinated
participation until the date on which (i) all Commitments and Letters of
Credit under the Credit Agreement shall have been terminated, (ii) all
Obligations (except those evidenced by the subordinated participations
purchased pursuant to this Section 2(a) or Section 2(b) below) shall have
been paid in full in cash in accordance with the requirements of the Credit
Agreement (or the other Credit Documents) or the Interest Rate Protection
Agreements, as the case may be and (iii) all Interest Rate Protection
Agreements shall have been terminated. The Borrower hereby acknowledges,
confirms and agrees that immediately upon receipt of the Category I Capital
Call Amount it shall apply such amounts as a mandatory repayment of Term
Loans in accordance with the provisions of Sections 4.02(f), (h) and (i) of
the Credit Agreement.
(b) The Contributor hereby absolutely, irrevocably and
unconditionally agrees that if any Category II 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 Category II Capital Call Amount; PROVIDED that
to the extent such Category II 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 Revolving 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 (it
being expressly understood and agreed (and the subordinated participation
agreement shall provide) that no payment or distribution of any kind or
character, whether in cash, property, securities or otherwise, shall be made
under any circumstances whatsoever with respect to any such subordinated
participation until the date on which (i) all Commitments and Letters of
Credit under the Credit Agreement shall have been terminated, (ii) all
Obligations (except those evidenced by the subordinated participations
purchased pursuant to Section 2(a) above or this Section 2(b)) shall have
been paid in full in cash in accordance with the requirements of the Credit
Agreement (or the other Credit Documents) or the Interest Rate Protection
Agreements, as the case may be and (iii) all Interest Rate Protection
Agreements shall
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have been terminated. The Borrower hereby acknowledges, confirms and agrees
that immediately upon receipt of the Category II Capital Call Amount it shall
promptly apply such amounts to satisfy its federal and state income tax
obligations with respect to its fiscal year ending closest to October 31,
2000.
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. All payments received by the Administrative Agent pursuant
to Section 2(a) above (other than pursuant to the proviso thereof) shall
automatically be deemed (as of the date of receipt by the Administrative
Agent of such respective payments) to be Investments by the Contributor in
the Borrower.
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;
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(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;
(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 unenforce-ability 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.
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8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. In order to induce
the Banks to enter into the Fourth 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.
(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.
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(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.
(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
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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.
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 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.
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 ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ 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
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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 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 ▇▇▇▇▇
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).
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(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.
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:
▇.▇. ▇▇▇▇▇▇ EQUITY INVESTORS I, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ By: J.F.L. Investors, L.L.C., its general partner
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ -----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Member
SPECIAL DEVICES, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President &
Chief Financial Officer
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent for the Banks
By: /s/ ▇▇▇▇▇ ▇. Le Fevre
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Name: ▇▇▇▇▇ ▇. Le Fevre
Title: Director