Exhibit 10.29
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement ("AGREEMENT) is entered into as of
February 18, 2003 by and among Celerity Group, Inc,, formerly Kinetics Holdings
Corporation, a Delaware corporation ("KHC'), Kinetics Group, Inc., a Delaware
Corporation ("KGI), Celerity Group, Inc., a California corporation formerly
known as Kinetics Fluid Systems, Inc., ("KFS") and Kinetics Systems, Inc. a
California corporation ("KSI" and together with KHC, KGI and KFS, the "KINETICS
ENTITIES"), DB Capital Investors L.P, ("DB"), Xxxxxxx Capital III L.P. ("CAPITAL
III"), Strategic Entrepreneur Fund III L.P., (together with Capital III,
"XXXXXXX"), Xxxxx X. Xxxxxxx and Xxxx Xxxx Xxxxxxx (collectively the "XXXXXXXX"
and together with Xxxxxxx, the "GUARANTORS" and together with DB and Xxxxxxx,
the "STOCKHOLDERS").
RECITALS
A. WHEREAS, the Kinetics Entities have requested that the Guarantors
guaranty certain obligations of the Kinetics Entities with respect to a surety
facility (the "SAFECO FACILITY") with SAFECO Insurance Companies ("SAFECO")
pursuant to the General Agreement of Indemnity for Contractors dated February
18, 2003 (the "GAI AGREEMENT").
B. WHEREAS, the Guarantors have agreed to provide the guaranty of the
Kinetics Entities' obligation to SAFECO (the "GUARANTY"), each in the amount set
forth on Annex 1 hereto under the terms of the GAI Agreement.
C. WHEREAS, the Kinetics Entities have requested that DB enter into
that certain Collateral Pledge Agreement and associated Letter of Credit with
SAFECO for the benefit of the Kinetics Entities, both dated February 18, 2003
(the "PLEDGE AGREEMENT" and together with the GAI Agreement, the "SAFECO
AGREEMENTS").
D. WHEREAS, DB has agreed to provide a letter of credit in the amount
set forth on Annex 1 hereto under the terms of the Pledge Agreement.
E. WHEREAS, the Guarantors have determined that the Guaranty is the
most advantageous means for the protection or enhancement of the value of
Guarantors' existing equity investment in KHC, and the Guarantors are providing
the Guaranty solely for such purpose.
F. WHEREAS, DB has determined that the Pledge Agreement is the most
advantageous means for the protection or enhancement of the value of DB's
existing equity investment in KHC, and DB executed the Pledge Agreement solely
for such purpose,
G. WHEREAS, the Stockholders have agreed that the amounts outstanding
under the Guaranty and the Pledge Agreement (collectively, the "SAFECO
OBLIGATIONS") shall be treated as several liabilities of the Stockholders.
H. WHEREAS, each of the Company and the Kinetics Entities has
determined that this Agreement, the Guaranty, the Pledge Agreement and the
transaction contemplated hereby and thereby are advisable and in its best
interests and the best interests of its stockholders.
I. WHEREAS, each of the Stockholders, on the one hand, and the Company
and the Kinetics Entities, on the other, have a preexisting personal or business
relationship.
J. WHEREAS, each of the Stockholders, the Company and the Kinetics
Entities, by reason of its own business and financial experience or that of its
advisors could reasonably be assumed to have the capacity to protect its own
interests in connection with the transactions contemplated by this Agreement.
K. WHEREAS, the Guarantors in consideration for the
NOW, THEREFORE, in consideration of the foregoing and the following
covenants and agreements the parties hereby agree as follows:
1. ISSUANCE OF GUARANTY. The Kinetics Entities hereby request
that the Guarantors issue the Guaranty in favor of SAFECO. The Guarantors will
guarantee the Kinetics Entities' obligations under the GAI Agreement in favor of
SAFECO pursuant to the foregoing request of the Kinetics Entities. The GAI
Agreement shall be in the form of Exhibit A attached hereto.
2. EXECUTION OF PLEDGE AGREEMENT. The Kinetics Entities hereby
request that DB pledge collateral in favor of SAFECO. DB will pledge as
collateral in favor of SAFECO a letter of credit subject to the terms of the
Pledge Agreement pursuant to the foregoing request of the Kinetics Entities. The
Pledge Agreement shall be in the form of Exhibit B attached hereto.
3. FEE. Kinetics Entities will pay each Stockholder by wire
transfer of immediately available funds, a fee equal to 14% per annum of the
amount of the outstanding SAFECO Obligations (which amount is set forth opposite
such Stockholder's name on Annex 1) by such Stockholder pursuant to the SAFECO
Facility (the "FEES"). Fees accrued shall be payable in full, without
duplication, by March 31, 2004 for the period commencing on the date hereof and
up to and including December 31, 2003, and by the 10th business day of each
April, July, October, and January thereafter for each quarter thereafter (or
portion thereof) that any of the SAFECO Obligations remain outstanding. The Fees
are being delivered to the Stockholders in recognition of the additional
financial risk associated with the Stockholders' investment in KHC as a result
of the SAFECO Agreements and not as compensation or a payment for any services
rendered or otherwise in connection with the pursuit by Stockholder of a trade
or business. If at any time any Stockholder's obligation under the SAFECO
Agreements is terminated in full or in part, fees shall continue to accrue only
with respect the amount of such Stockholder's remaining commitment under the
SAFECO Agreements.
4. NOTICE OF DEMAND FROM SAFECO. Any of the undersigned who
receives a demand for payment from SAFECO under the SAFECO Agreements shall
promptly provide
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notice of such demand to each of the other parties hereto as provided for in
Section 13 hereto. Notwithstanding the party or parties to whom SAFECO makes a
demand, the Kinetics Entities will have the primary obligation to make payment
to SAFECO for any amounts demanded by SAFECO under the SAFECO Agreements. The
parties will use commercially reasonable efforts to communicate and cooperate on
the making of any payments (for the purposes of this Agreement, a draw made on a
letter of credit pursuant to the Pledge Agreement shall be deemed to be the
equivalent of a payment) to SAFECO under the SAFECO Agreements and any party
hereto making a payment shall promptly provide the other parties hereto with
evidence of such payment. In the event the Kinetics Entities do not make the
payment to SAFECO under the SAFECO Agreements, the Stockholders agree to make
payments directly to SAFECO in accordance to such Stockholder's pro-rata
percentage as set forth on Annex 1 ("PRO-RATA PERCENTAGE").
5. REIMBURSEMENT AND INTEREST. (a) Reimbursement Payments. In
addition to the Fees, KHC and the other Kinetics Entities jointly and severally
hereby agree to pay to the Stockholders, or cause to be paid to Stockholders,
with interest as provided in Section 5(c), a sum equal to each amount paid by
such Stockholder to SAFECO under the SAFECO Agreements, which payment shall
become due and payable (i) immediately upon the earlier of demand of such
Stockholder and (ii) automatically five (5) days after the payment by such
Stockholder to SAFECO (the "PAYMENT DUE DATE"). All amounts under this Section
5(a) shall be paid in U.S. Dollars without set-off, claim or counterclaim in
funds immediately available to Stockholder. The obligations of Kinetics Entities
hereunder to reimburse the Stockholders shall be absolute, irrevocable and
unconditional and shall be performed strictly in accordance with the terms
hereof, irrespective of any lack of validity or enforceability of the SAFECO
Facility or any related agreement or any other event or circumstance.
(b) Reimbursement of Stockholder by other Stockholders. In the
event that a Stockholder has not been reimbursed by the Kinetics Entities for
amounts owing under Section 5(a) above by the Payment Due Date and if,
notwithstanding Section 4 above, such Stockholder has paid to SAFECO an amount
in excess of such Stockholder's Pro-Rata Percentage, in furtherance of
Stockholder's right of contribution, such Stockholder ("INITIAL STOCKHOLDER")
may make a demand on any Stockholder who has not paid its Pro-Rata Percentage (a
"CONTRIBUTING STOCKHOLDER") which demand shall state the total amount demanded
by SAFECO, the amount paid by the Initial Stockholder, the amount required to be
paid by each Contributing Stockholder and wire transfer instructions for such
payment to the Initial Stockholder (with a copy to KHC). Within five (5) days of
receipt of such notice, each Contributing Stockholder shall make a payment to
the Initial Stockholder in immediately available funds in the amount required to
be paid by such Contributing Stockholder to the Initial Stockholder in respect
to such demand, less any amounts previously paid by such Contributing
Stockholder to SAFECO pursuant to such demand.
(c) Interest. All sums payable to Stockholder under Sections
5(a) and 5(b) shall bear interest, from the date the payment is made under the
SAFECO Agreements until such sums are paid in full at a rate of 15% per annum,
or if lower, the maximum rate permitted by law (computed for the actual number
of days elapsed, based on a 365/366 day year). Interest
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accruing pursuant to this Section 5(c) shall be due and payable on demand and on
the date the respective sum is paid. It is not the intention of the Stockholders
to violate any applicable usury or interest rate laws. None of the Stockholders
agree to, or intend to contract for, charge, collect, take, reserve or receive
(collectively, "charge or collect") any amount in the nature of interest or in
the nature of a fee, penalty or other charge which would in any way or event
cause any Stockholder to charge or collect more than the maximum such
Stockholder would be permitted to charge or collect by any applicable federal or
state law. Any such excess interest or unauthorized fee shall, notwithstanding
anything stated to the contrary in this Agreement, be applied first to reduce
the amount owed, if any, and then any excess amounts will be refunded.
6. TERMINATION OF EMPLOYMENT OF XXXXXXX. If, at any time prior
to the later of (a) April 1, 2004 and (b) the initial payment of the Fees, Xxxxx
X. Xxxxxxx involuntarily leaves his position of Chief Executive Officer of KHC
or KGI (a "TERMINATION"), then within five (5) days of such Termination KHC will
pay any accrued Fees owed to the Shimmons under Section 3 of this Agreement and
pay subsequently accrued Fees by the 10th business day of each April, July,
October, and January for each quarter thereafter (or portion thereof) that any
of the SAFECO Obligations remain outstanding. All amounts under this Section 6
shall be paid in U.S. Dollars without set-off, claim or counterclaim in funds
immediately available to the Xxxxxxxx.
7. SUBROGATION. Upon making any payment under Section 5 of
this Agreement, the party making payment shall be subrogated to the rights of
the Stockholders against SAFECO with respect to the SAFECO Agreements.
8. ADDITIONAL FEES. Kinetics Entities hereby agrees to pay
each Stockholder immediately upon demand for all reasonable charges and expenses
paid or incurred by it in connection with the preservation and enforcement of
its rights hereunder and collection of amounts due to it hereunder, including
without limitation, the reasonable fees and disbursements of its legal counsel.
The prevailing Stockholder in any action to enforce Section 5(b) will be
entitled to collect the reasonable fees and disbursements of its legal counsel.
9. TAXES. All payments by the Kinetics Entities under this
Agreement will be made free and clear of and without deduction for any present
or future taxes.
10. ENTIRE AGREEMENT. This Agreement, together with the SAFECO
Agreements, contains the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior arrangements and
understandings (whether written or oral) with respect thereto.
11. REINSTATEMENT. Notwithstanding anything to the contrary
herein, this Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any amount received by any Stockholder pursuant to
this Agreement is rescinded or otherwise must be restored or returned by such
Stockholder upon or in connection with the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Kinetics Entity or otherwise, all as though
such payment had not been made.
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12. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
13. NOTICES. Notices to the parties will be made in accordance
with the terms of the notice provision in Section 6.4 of the Second Amended and
Restated Shareholders Agreement dated December 4, 2002 (the "SHAREHOLDERS
AGREEMENT").
14. GOVERNING LAW AND DISPUTES. This Agreement will be
governed by the substantive laws of New York, without regard to principles
relating to conflicts of law. Each party agrees to abide by the submission of
jurisdiction provisions in Sections 6.7(a)-(d) of the Shareholders Agreement.
15. ASSIGNMENT. No party may assign its rights or obligations
hereunder without the express written consent of the other parties hereto.
Provided, however, that an assignment of this Agreement by any Stockholder to an
affiliate or successor entity that assumes the obligations of such Stockholder
under the SAFECO Agreement to which such Stockholder is a party shall not be
deemed an assignment under this Section 15. Any attempted assignment will be
void. Subject to the foregoing, this Agreement will benefit and bind the
successors and assigns of the parties. No party will be a third party
beneficiary of this Agreement.
16. WAIVERS. Each Kinetics Entity waives each of the
following: (a) any rights with respect to, or defenses to, its obligations to
the Stockholders hereunder that are or may become available to it as a guarantor
or surety with respect to any obligations of any other Kinetics Entity
(including, if applicable, by reason of Sections 2787-2855, inclusive, of the
California Civil Code), and (b) any rights with respect to, or defenses to, its
obligations to the Stockholders hereunder that may be available by reason of any
election of remedies by any Stockholder (including any such election that in any
manner impairs, destroys or extinguishes such Kinetics Entity's subrogation
rights, rights to proceed against any other person or entity for reimbursement,
or any other rights to proceed against any other person or entity or security).
17. TERMINATION OF FUTURE OBLIGATIONS. (a) If at any time, DB
delivers to each other party to this Agreement written notice, pursuant to
Section 13 of this Agreement, that DB desires to terminate its obligations under
the Pledge Agreement with respect to any future Bonds (as such term is defined
in the GAI Agreement) (the "TERMINATION NOTICE"), then KHC or KGI shall, within
five business days following the date of such Termination Notice: (i) deliver to
SAFECO a written notice pursuant to the Termination section of the GAI
Agreement, stating the effective date of termination of the liability of KHC and
KGI for future Bonds, with such effective date being not more than 30 days
following the date of the notice so delivered (the "SAFECO NOTICE") and (ii)
send a copy of the SAFECO Notice to each party to this Agreement.
(b) If any Guarantor delivers notice to SAFECO pursuant to the
Termination section of the GAI Agreement, then such Guarantor shall concurrently
send a copy of such notice to each party to this Agreement.
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18. NO AGENCY. The parties hereto are independent contractors.
This Agreement will not be construed as creating an agency, partnership or any
other form of legal association (other than as expressly set forth herein)
between the parties.
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IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
as of the date first written above and duly authorized officers of each party
have executed this Agreement at the location indicated below.
CELERITY GROUP, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxx
------------------------
Name: XXXX XXXXXXX
Its: SECRETARY
KINETICS GROUP, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxx
------------------------
Name: XXXX XXXXXXX
Its: VICE PRESIDENT & SECRETARY
KINETIC SYSTEMS, INC., a California corporation
By: /s/ Xxxx Xxxxxxx
------------------------
Name: XXXX XXXXXXX
Its: VICE PRESIDENT & SECRETARY
CELERITY GROUP, INC., a California corporation
By: /s/ Xxxx Xxxxxxx
------------------------
Name: XXXX XXXXXXX
Its: VICE PRESIDENT & SECRETARY
[SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT]
DB CAPITAL INVESTORS L.P.
By: DB Capital Partners, L.P., its General Partner
By: DB Capital Partners, Inc., its General Partner
By: /s/ Xxxxx Xxxxxx
---------------------
Name: XXXXX XXXXXX
Its: MANAGING DIRECTOR
[SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT]
XXXXXXX CAPITAL III L.P.
By: Xxxxxxx Brothers III LLC, its general partner
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Its: Managing Member
STRATEGIC ENTREPRENEUR FUND III L.P.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Its: General Partner
[SIGNATURE PAGE TO REIMBURSEMENT AGREEMENT]
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXXX XXXX XXXXXXX
/s/ Xxxx Xxxx Xxxxxxx
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Xxxx Xxxx Xxxxxxx
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