EXHIBIT 10.1
as of November 14, 2001
Nextera Enterprises, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Re: Forbearance Agreement ("Agreement")
Gentlemen:
Reference is made to the Credit Agreement dated December 30, 1999
("Credit Agreement"), as amended by a Fourth Amendment to Credit Agreement dated
as of March 30, 2001 ("Fourth Amendment") and all promissory notes, mortgages,
guaranties, agreements, documents and instruments entered into by Nextera
Enterprises, Inc. ("Borrower") and any other person or obligor pursuant thereto
with or for the benefit of Fleet National Bank, as agent ("Agent") for itself
and the other lenders (collectively "Lender"). Except as otherwise defined
herein, capitalized terms used herein shall have the meanings given them in the
Credit Agreement.
WHEREAS, Borrower is engaged in the business of providing relationship
management consulting services and related businesses;
WHEREAS, Guarantor has a close business relationship with Borrower and
would directly benefit and gain from any accommodation made by Lender to
Borrower;
WHEREAS, Lender has extended certain credit facilities to Borrower and,
as collateral security therefor, Borrower has granted to Lender liens on and
security interests in all or substantially all of its real and personal property
(collectively, the "Credit Security");
WHEREAS, Guarantor has unconditionally and fully guarantied the full and
timely payment and performance of all of Borrower's obligations to Lender;
WHEREAS, Borrower has suffered financial distress and has defaulted with
respect to certain of its obligations to Lender;
WHEREAS, Borrower has requested that Lender defer collection of certain
obligations owing by Borrower to Lender and to otherwise not enforce certain of
its rights and remedies against Borrower for a certain period of time under
certain terms and conditions, and Guarantor has joined in Borrower's request;
and
WHEREAS, Lender is willing to defer collection of certain obligations
payable by Borrower, but only on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, based on these premises, and in consideration of the
mutual promises contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower, Guarantor
and Lender hereby agree as follows:
1. Specified Events of Defaults. Borrower expressly acknowledges and
agrees that certain Default and/or Events of Default have occurred and are
continuing under the Credit Agreement, as amended by the Fourth Amendment, and
that as a consequence, all Credit Obligations are now due and payable in full.
Such Events of Default (and additional anticipated Events of Default) are as
follows: (i) Borrower's failure to comply with the "Consolidated Pro Forma Debt
to Consolidated Pro Forma EBITDA" and "Consolidated Pro Forma EBITDA minus
Capital Expenditures to Consolidated Pro Forma Interest Expense" covenants set
forth in Sections 6.5.1 and 6.5.2 of the Credit Agreement for the periods ending
September 30, 2000, December 31, 2000, March 31, 2001, June 30, 2001 and
September 30, 2001; and (ii) Borrower's failure to comply with the "Fixed Charge
Coverage Ratio," "Cash Interest Coverage Ratio" and "Minimum Consolidated
EBITDA" covenants set forth in Sections 17 (a), (b) and (c) of the Fourth
Amendment for the periods ending August 31, 2001 and September 30, 2001; and
(iii) Borrower's anticipated failure to comply with the covenants described in
the foregoing clause (ii) with respect to the periods ending October 31, 2001,
November 30, 2001 and December 31, 2001 (the Defaults and/or Events of Default
listed in clauses (i), (ii) and (iii) above are referred to herein as the
"Specified Events of Default"). The Specified Events of Default for the period
through March 31, 2001 have been waived by Lender pursuant to the Fourth
Amendment. The Specified Events of Default for all periods ending June 30, 2001
through and including December 31, 2001, are hereby waived but such waiver is
effective only through January 2, 2002, with Lender reserving all rights and
remedies with respect to the same thereafter. Except for the foregoing Specified
Events of Default, Borrower represents and warrants that as of the date hereof,
no other Default and/or Event of Default exists or has occurred under the Credit
Documents. Borrower acknowledges and agrees that (a) Lender has reserved all of
its rights and remedies with respect to the occurrence of the Specified Events
of Default, and has not waived any of its rights and remedies with respect to
the occurrence of the Specified Events of Default, except on the terms of and
subject to the conditions of this Agreement, and (b) notwithstanding the waivers
set forth herein, there shall continue through the Forbearance Period all
restrictions and prohibitions on the Borrower and its properties (including,
without limitation and by way of example only, restrictions on the sale of
assets outside the ordinary course) that would be applicable if there existed
during such Period one or more non-waived Events of Default.
2. Forbearance. Only if there shall occur no Default or Event of Default
(other than the Specified Events of Default), and on the terms and conditions
hereof, for a period commencing on the date hereof and continuing to the
Forbearance Termination Date (as defined below) ("Forbearance Period"), the
Lender shall defer the commencement of any enforcement action to recover the
Credit Obligations. The Forbearance Termination Date shall mean the earlier of
(i) January 2, 2002; and (ii) the date on which any Default or Event of Default
(other than Specified Events of Default) occurs under this Agreement or the
Credit Documents. Upon the Forbearance Termination Date, all of the Credit
Obligations shall be immediately paid by Borrower indefeasibly in full in cash
or cash equivalents without notice or demand. Without limiting in any way the
rights and remedies of Lender hereunder, upon the Forbearance Termination Date,
if the Credit Obligations have not been indefeasibly paid in full in cash or
other immediately available funds, Lender may, at its option, and without notice
to Borrower, exercise any or all of Lender's rights and remedies under this
Agreement, the Credit Documents and/or applicable law.
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3. Fourth Amendment; Financial Tests. During the Forbearance Period,
Borrower shall continue to be subject to all of the terms, conditions and
covenants outlined in the Fourth Amendment, including, without limitation, the
"Fixed Charge Coverage," "Cash Interest Coverage" and "Minimum Consolidated
EBITA" tests set forth in Sections 17(a), (b) and (c) of the Fourth Amendment.
However, the "Capital Expenditures" test set forth in Section 17(d) shall be
deleted and replaced with the following financial test:
"17(d) Capital Expenditures. Borrower shall not make or incur Capital
Expenditures in excess of $300,000 from and after July 1, 2001 through
December 31, 2001."
4. Disposition of Assets. Notwithstanding Section 6.11.7 of the Credit
Agreement and/or any provision of any Financing Document, Borrower shall not
sell or otherwise dispose of assets outside the ordinary course of business
(unless the entire gross proceeds thereof are used to permanently retire Credit
Obligations owed to Lender in the inverse order of maturity). Notwithstanding
anything contained in this Section 4, Lender has delivered its conditional
consent to the proposed Asset Purchase Agreement by and between Nextera Business
Performance Solutions Group, Inc. and Navint Consulting, LLC (the "TSG Sale") by
separate letter agreement dated as of October 31, 2001, which letter agreement
is not hereby rescinded or otherwise modified (provided, however, that the
parties' execution hereof shall be deemed to satisfy the condition set forth at
Section 2(b)(ii) thereof and the Lender's approval of the disposition of the TSG
Sale proceeds on the terms described in the schedule delivered by Borrower to
Lender on November 9, 2001).
5. Conditions Precedent. Notwithstanding any other provisions of this
Agreement or any of the other Credit Documents, and without affecting in any
manner the rights of Lender under the other Sections of this Agreement, this
Agreement shall not be effective as to Lender unless and until each of the
following conditions has been and continues to be satisfied:
(a) Payment of Fees. Payment of $30,000.00 in cash or other
immediately available funds in satisfaction of all outstanding fees and
expenses (including, without limitation, attorneys' fees and expenses);
(b) Leasehold. Borrower shall deliver to Lender an original
fully executed (by all lessee(s) and lessor(s)) collateral assignment of
lease and landlord's acknowledgment and consent with respect to
Borrower's Boston, Massachusetts facility, in form and substance
previously delivered to Lender;
(c) Documentation. Lender shall have received, in form and
substance satisfactory to Lender and its counsel, a duly executed copy
of this Agreement, together with such additional documents, instruments
and certificates as Lender and its counsel shall require in connection
therewith from time to time, all in form and substance satisfactory to
Lender and its counsel;
(d) Independent Consultant. Borrower shall have delivered to the
Lender a final form of engagement letter between Borrower and Resolution
Capital Corporation ("RCC"), in form and substance satisfactory to
Lender (including a clarification that RCC
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will also continue to assist with and monitor the implementation of the
Business Plan referred to below).
6. Conditions Subsequent. In addition to the foregoing, Obligor hereby
agrees that it shall satisfy all of the conditions set forth in this Section 6.
A failure to satisfy any of the conditions contained in this Section 6 on or
before the dates set forth below shall immediately constitute an Event of
Default under this Agreement:
(a) Cash Management Arrangements. Immediately upon Agent's request,
Borrower and its Subsidiaries shall enter into cash management arrangements
acceptable to Agent and Lender, and at Agent and Lender's direction Borrower
shall provide that the proceeds of all receivables and other Credit Security
(other than proceeds arising from any Foreign Subsidiary that would result in a
deemed repatriation of foreign earnings under the Internal Revenue Code of 1986,
including the "deemed dividend" provisions of Section 956) shall be paid into a
"concentration account" maintained with the Agent.
(b) Junior Participation Agreement. On or before November 30, 2001,
Borrower shall deliver to Lender a Junior Participation Agreement, in form and
substance satisfactory to all parties;
(c) Letters of Credit. If Xxxxx & Company and EOP Limited Operating
Partnership extend the maturity dates of their respective Letters of Credit, in
the aggregate amount of $1,460,000, to May 15, 2002, then the Letter of Credit
Issuer shall extend such Letters of Credit accordingly, without requiring cash
collateral therefor; provided, however, that if such extension does not occur on
or before December 1, 2001, then on that date the Borrower shall deliver
$1,460,000 in immediately available funds to the Letter of Credit Issuer to
secure Borrower's reimbursement obligations with respect to those Letters of
Credit or make other arrangements with respect to the same satisfactory to the
Lenders in their discretion.
(d) Additional Leasehold Documents. On or before November 30, 2001,
Borrower shall deliver to Lender the following original fully executed items in
form and substance previously delivered to Borrower: (i) Board Vote with respect
to leasehold documents; and (ii) Memorandum of Lease.
(e) Warrants. On or before November 30, 2001, Borrower shall deliver
to Lender the warrants described in Section 11 of the Fourth Amendment, in form
and substance satisfactory to all parties.
(f) Business Plan. On or before November 30, 2001 Borrower shall
deliver to Lender a strategic and financial plan through calendar year 2002
("Business Plan"), including as to the sale, refinancing and/or wind-down of
each of Borrower's business units (which shall include without limitation
contingency plans assuming the sale, and no sale, of the Sibson business,
specified expense reductions, a timeline for implementation of all plan events,
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bonus schedule detail and business plan for payment, and other information
reasonably requested by Lender).
7. Acknowledgment of Credit Obligations. Borrower and Guarantor hereby
reaffirm and ratify all of the representations, warranties, promises,
agreements, covenants and Credit Obligations to Lender under or in respect of
the Credit Documents as amended hereby and acknowledge that they are
unconditionally liable for the punctual and full payment of all Credit
Obligations, including, without limitation, all charges, fees, expenses and
costs (including attorneys' fees and expenses) under the Credit Documents, as
amended hereby, and that they have no defenses, counterclaims or setoffs with
respect to full, complete and timely payment and performance of all Credit
Obligations under the Credit Documents. Borrower further confirms and agrees to
its obligation to pay to Lender all fees and costs which have been incurred by
Lender in connection with the negotiation and preparation of this Agreement and
all other documents and agreements prepared in connection with this Agreement
including, without limitation, all reasonable attorney's fees and disbursements.
8. Confirmation of Liens. Borrower and Guarantor each acknowledges,
confirms and agrees that the Credit Documents, as amended hereby, are effective
to grant to Lender duly perfected, valid and enforceable first priority security
interests and liens in the Credit Security described therein, except for liens
permitted under the Credit Agreement, and that the locations for such Credit
Security specified in the Credit Agreement have not changed. Borrower and
Guarantor further each acknowledges and agrees that all Credit Obligations of
Borrowers and Guarantor are and shall be secured by the Credit Security.
9. No Waiver of Rights; Tolling of Statutes of Limitation. No failure to
exercise nor any delay in exercising, on the part of Lender, any right, remedy,
power or privilege under the Credit Documents shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power, or
privilege operate as a waiver of any further or complete exercise thereof. No
waiver shall be effective unless in writing. No waiver or condonation of any
breach on one occasion shall be deemed a waiver or condonation on any other
occasion. In addition, Borrower and Lender hereby agree that, during the
pendency of this Agreement, all statutes of limitation and similar laws, rules
and equitable theories with respect to the time in which Lender may bring any
claim or action against Borrower shall be tolled and that the passage of such
time shall not otherwise operate to the detriment of Lender with respect to such
rights.
10. Submission to Jurisdiction; Waiver of Trial by Jury. For purposes of
any action or proceeding involving this Agreement or the other Credit Documents
or any other agreement or document referred to therein, Borrower hereby submits
to the jurisdiction of all federal and state courts located in the Commonwealth
of Massachusetts and consents that any order, process, notice of motion or other
application to or by any of said courts or a judge thereof may be served within
or without such court's jurisdiction by registered mail or by personal service,
provided a reasonable time for appearance is allowed (but not less than the time
otherwise afforded by any law or rule), and hereby waives any right to contest
the appropriateness of any action brought within such jurisdiction based on lack
of personal jurisdiction, improper venue or forum non conveniens. LENDER AND
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER
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OR RELATING TO THIS AGREEMENT OR ANY OF THE CREDIT DOCUMENTS OR ANY OTHER
AGREEMENT OR DOCUMENT REFERRED TO HEREIN OR THEREIN, AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
11.Miscellaneous. Except as set forth herein, the Borrower confirms that
the Credit Documents remain in full force and effect without amendment or
modification of any kind. The execution and delivery of this Agreement by Lender
shall not be construed as a waiver by Lender of any Event of Default under the
Credit Documents. This Agreement shall be deemed to be a Credit Document and,
together with the other Credit Documents, constitute the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior dealings, correspondence, conversations or communications between the
parties with respect to the subject matter hereof. Time is of the essence of
each aspect of this Agreement. This Agreement is executed by each of the
undersigned as an instrument under seal and is governed by the laws of the
Commonwealth of Massachusetts (without regard to conflicts of laws principles).
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Very Truly Yours,
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. X'Xxxxx
---------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
AGREED:
NEXTERA ENTERPRISES, INC.
CE ACQUISITION CORP.
ERG ACQUISITION CORP.
NEONEXT LLC
NEXTERA INTERACTIVE, INC.
SCANADA, INC.
SIBSON & COMPANY, LLC
SIBSON INTERNATIONAL, LLC
SIBSON AP LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
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