EXHIBIT 10.1
FUNDING AGREEMENT
This Funding Agreement ("Agreement") is entered into by and among Fleet
National Bank, Bank of America, N.A., Nextera Enterprises, Inc., a Delaware
corporation (the "Company") and Knowledge Enterprises, Inc., a Delaware
corporation ("KE"), effective as of September 27, 2002.
1. Credit Agreement. Fleet National Bank, as administrative agent (in such
capacity, the "Agent"), and Fleet National Bank and Bank of America, N.A., each
as lenders (in such capacity, the "Lenders"), have entered into an Amended and
Restated Credit Agreement dated as of March 29, 2002 (the "Credit Agreement")
with the Company and certain subsidiaries of the Company from time to time a
party thereto (the "Subsidiaries"). Capitalized terms used herein and not
defined herein shall have the meaning given to such terms in the Credit
Agreement.
2. Funds Requirement. The Company has an immediate need for approximately
Five Hundred Sixty Thousand Dollars ($560,000) in immediately available funds
(the "Funds") to meet current expenses. The Lenders are willing to allow KE to
lend such Funds to the Company pursuant to and as part of the Credit Agreement
on the terms and conditions set forth in this Agreement. The parties agree that
additional documentation will be entered into by the parties with respect to
such loan on or prior to October 11, 2002, which documentation shall incorporate
and be consistent with this Agreement. Notwithstanding the foregoing agreement
to enter into additional documentation, this Agreement is intended to be binding
and enforceable on its terms, and shall be so binding and enforceable even if
the additional documentation is not consummated.
3. Funds Flow. KE shall wire the Five Hundred Sixty Thousand Dollars
($560,000) directly to the Company (the "Additional Amount"); provided, however,
that the parties hereto agree and acknowledge that such direct transfer is being
done for administrative convenience purposes only and that such funds are being
lent to the Company pursuant to the Credit Agreement and shall be a "Term Loan"
as defined in the Credit Agreement. The Agent agrees to reflect the Additional
Amount as a Term Loan under the Credit Agreement and the parties hereto agree
and acknowledge that the Additional Amount is a Term Loan and entitled to all of
the protection and features of the Credit Agreement including, but not limited,
to being secured by the assets of the Company and certain of its Subsidiaries as
set forth in the Credit Agreement.
4. Repayment. Such Additional Amount shall be due and payable from the
Company on October 30, 2002 and shall bear interest at the same rate and under
the same terms as the interest under the terms of the Credit Agreement
applicable to Term Loans. The Company shall pay such amounts directly to KE;
provided, however that the parties hereto agree and acknowledge that such direct
payment is being done for administrative convenience purposes only and that such
repayment is pursuant to the terms of the Credit Agreement, as amended.
5. Order of Priority. The payment of any and all amounts due under the
Credit Agreement, as amended, shall be as follows: (a) First, the principal due
to the Agent on September 30, 2002 and the interest due to the Agent on October
1, 2002, shall be paid in full; (b) Second, the Additional Amount, plus
interest, due to KE on October 30, 2002 shall be paid in full; provided,
however, that to the extent that any portion of such amount remains unpaid on
October 31, 2002 (the "Deficiency"), then the payment of the principal due to
the Agent on October 31, 2002, and the payment of the interest due to the Agent
on November 1, 2002, shall take priority over the payment of the Deficiency; and
(c) Third, at such time as the principal due to the Agent on October 31, 2002
and the interest due to the Agent on November 1, 2002 have been paid in full,
then the payment of the Deficiency (including the continuing accrual of interest
on the Deficiency) shall have priority over any claim that the Agent and/or the
Lenders have with respect to the Credit Agreement.
6. Amendment of Credit Agreement. The Company, the Agent and the Lenders
shall amend the Credit Agreement to incorporate the following:
a. the limits on the amount of Term Loans and the Maximum Amount of
Term Credit shall be increased by an amount not less than the amount of the
Additional Amounts;
b. the payment of the Additional Amount, plus interest, on
October 30, 2002; and
c. other changes necessary to effectuate the terms of this
Agreement.
6. Fees and Expenses. The Company shall pay to the Agent, the Lenders and
KE all of their respective reasonable costs and expenses incurred by them in
connection with the drafting and negotiation of this Agreement and the further
documentation contemplated by this Agreement.
IN WITNESS WHEREOF the parties have executed and delivered this Agreement
as of the date first set forth above.
FLEET NATIONAL BANK FLEET NATIONAL BANK
as Administrative Agent as Lender
By: /s/ Xxxxxxx X. X'Xxxxx By: /s/ Xxxxxxx X. X'Xxxxx
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Title: Senior Vice President Title: Senior Vice President
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BANK OF AMERICA, N.A. KNOWLEDGE ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: s/ Xxxxx Xxxxxxxx
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Title: Managing Director Title: Secretary
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NEXTERA ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: CFO
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