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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): DECEMBER 5, 1996
DURA AUTOMOTIVE SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
333-06601 38-2961431
(Commission File Number) (I.R.S. Employer Identification No.)
4508 IDS CENTER, MINNEAPOLIS, MINNESOTA 55402
(Address of Principal Executive Offices) (Zip Code)
(612) 342-2311
(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
(Former Name or Former Address, if Changed Since Last Report)
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Item 2. Acquisition or Disposition of Assets
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Effective December 5, 1996, the Registrant, through its wholly-owned
subsidiary Dura Operating Corp. ("Dura"), acquired from Sparton Corporation
("Sparton") all of the issued and outstanding stock (the "Stock Acquisition") of
Sparton Engineered Products, Inc., KPI Group, a Michigan corporation ("KPI
Michigan"), and Sparton Engineered Products, Inc., KPI Group, an Indiana
corporation ("KPI Indiana"). Immediately upon the consummation of the Stock
Acquisition, KPI Michigan acquired certain assets of Sparton Engineered
Products, Inc., Lake Odessa Group, from Sparton (collectively with the Stock
Acquisition, the "Acquired Operations"). The aggregate purchase price paid to
Sparton consisted of $78.8 million, which was paid in cash as of December 5,
1996. Funding of the purchase price was obtained through a credit facility
between Dura and five financial institutions, comprised of Bank of America
Illinois, Bank of Nova Scotia, Comerica Bank, Chase Manhattan Bank, N.A. and
First Bank National Association.
The terms of the acquisition and the establishment of the purchase price
were arrived at as a result of arm's length negotiations between management of
the Registrant and management of Sparton. There are no material relationships
between the Registrant and Sparton, or any of their respective affiliates,
directors, officers or associates of any such directors or officers.
The Acquired Operations design and manufacture shifter systems, parking
brake mechanisms, brake pedals and underbody spare tire carriers for the North
American automotive industry. In connection with the acquisitions, KPI Indiana
was merged with and into KPI Michigan, whose name was changed at such time to
Dura Automotive Systems, Inc., Shifter Operations ("DASSO"). The Registrant
intends that DASSO will operate as a separate wholly owned subsidiary.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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(a) Financial Statements of Business Acquired
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At the time of this report, it is not practicable to provide the
required financial statements for the Acquired Operations. Such statements
will be filed as an amendment to this Form 8-K Report as soon as
practicable and not later than February 18, 1997.
(b) Pro Forma Financial Information
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At the time of this report, it is not practicable to provide the
required pro forma financial information for the transaction that is the
subject of this Report. Such information will be filed as an amendment to
this Form 8-K Report as soon as practicable and not later than February 18,
1997.
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(c) Exhibits
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2.1 Stock and Asset Purchase Agreement, dated October 3, 1996,
among Sparton Corporation, Sparton Engineered Products, Inc.,
Lake Odessa Group, and Dura Automotive Systems, Inc.*
4.1 Amended and Restated Multicurrency Credit Agreement, dated
December 5, 1996, among Dura Operating Corp., Kimanus
Vermogensverwaltung GmbH, the various financial institutions
parties thereto, Bank of America NT&SA, as agent, and BA
Securities, Inc., as the arranger.*
*The Registrant agrees to furnish supplementally to the Commission a copy of
any omitted schedule or exhibit to such agreement upon request by the
Commission.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
DURA AUTOMOTIVE SYSTEMS, INC.
DATE: DECEMBER 20, 1996 BY: /S/ DAVID R. BOVEE
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NAME: DAVID R. BOVEE
TITLE: VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER (PRINCIPAL
ACCOUNTING AND FINANCIAL OFFICER)
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STOCK AND ASSET PURCHASE AGREEMENT
AMONG
SPARTON CORPORATION,
AS SHAREHOLDER OF ITS
KPI GROUP OF SUBSIDIARIES,
SPARTON ENGINEERED PRODUCTS,
INC.--LAKE ODESSA GROUP
AND
DURA AUTOMOTIVE SYSTEMS, INC.
DATED OCTOBER 3, 1996
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TABLE OF CONTENTS
Page
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Article I--Purchase and Sale of Stock........................................ 1
1.1 Stock Purchase..................................................... 1
1.2 Asset Purchase; Assumption of Liabilities.......................... 1
1.3 Purchase Price..................................................... 4
1.4 Adjustment in Purchase Price....................................... 4
Article II--Lease of Leased Real Estate
2.1 Lease of Leased Real Estate........................................ 4
Article III--Closing
3.1 Closing............................................................ 5
3.2 Concurrent Closing................................................. 5
3.3 Release of Liens at Closing........................................ 5
Article IV--Conditions to Closing
4.1 Conditions to Buyer's Obligations.................................. 5
4.2 Conditions to Obligations of Sparton............................... 8
Article V--Covenants Prior to Closing
5.1 Operation of KPI Subsidiaries Since June 30, 1996.................. 9
5.2 Affirmative Covenants of Sparton................................... 9
5.3 Covenants of Buyer.................................................11
5.4 Title Insurance....................................................11
5.5 Surveys............................................................12
5.6 Closing of Lake Odessa Plant.......................................12
5.7 Negative Covenants of Lako and Sparton.............................12
5.8 Proxy; shareholders' Vote..........................................13
Article VI--Representations and Warranties Concerning Sparton
and the KPI Subsidiaries
6.1 Organization and Corporate Power...................................14
6.2 Authorization of Transactions......................................14
6.3 Capitalization.....................................................14
6.4 Subsidiaries.......................................................15
6.5 Absence of Conflicts...............................................15
6.6 Financial Statements...............................................15
6.7 Absence of Undisclosed Liabilities.................................16
6.8 Absence of Certain Developments....................................16
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6.9 Real Property...................................................... 18
6.10 Tangible Assets.................................................... 19
6.11 Title to Personal Property......................................... 19
6.12 Environmental Matters.............................................. 19
6.13 Accounts Receivable................................................ 22
6.14 Inventory.......................................................... 22
6.15 Taxes.............................................................. 22
6.16 Contracts and Commitments.......................................... 25
6.17 Intellectual Property Rights....................................... 27
6.18 Litigation; Proceedings............................................ 28
6.19 Brokerage.......................................................... 28
6.20 Governmental Licenses and Permits.................................. 28
6.21 Employees.......................................................... 29
6.22 Employee Benefit Plans............................................. 29
6.23 Insurance.......................................................... 30
6.24 Officers and Directors; Bank Accounts.............................. 31
6.25 Affiliate Transactions............................................. 31
6.26 Compliance with Laws............................................... 31
6.27 Disclosure......................................................... 31
6.28 Closing Date....................................................... 31
6.29 Product Warranties................................................. 32
6.30 Tooling Invoices................................................... 32
Article VII--Representations and Warranties of Buyer
7.1 Organization and Corporate Power................................... 32
7.2 Authorization...................................................... 32
7.3 No Violation....................................................... 32
7.4 Governmental Authorities and Consents.............................. 32
7.5 Brokerage.......................................................... 33
7.6 Litigation......................................................... 33
7.7 Buyer's Investment Representations................................. 33
7.8 Disclosure......................................................... 33
7.9 Closing Date....................................................... 33
Article VIII--Termination
8.1 Termination........................................................ 33
8.2 Effect of Termination.............................................. 34
Article IX--Additional Agreements
9.1 Survival........................................................... 34
9.2 Sparton's Guaranty; Buyer's Indemnification........................ 34
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9.3 General Indemnification............................................ 34
9.4 Investigation and Confidentiality.................................. 38
9.5 Expenses.......................................................... 38
9.6 Noncompete......................................................... 38
9.7 Tax Claims......................................................... 38
9.8 Sparton's Access to Records........................................ 42
9.9 Sparton Shares in Retirement Trusts................................ 42
9.10 Product Warranty Claims............................................ 43
9.11 Change of Corporate Name........................................... 43
9.12 Assignment of Kostecki Judgment.................................... 44
9.13 Environmental Matters.............................................. 44
9.14 Exclusivity........................................................ 46
Article X--Miscellaneous
10.1 Press Releases and Announcements................................... 46
10.2 Further Transfers.................................................. 46
10.3 Specific Performance............................................... 46
10.4 Amendment and Waiver............................................... 46
10.5 Notices............................................................ 46
10.6 Binding Agreement; Assignment...................................... 48
10.7 Severability....................................................... 48
10.8 Captions........................................................... 48
10.9 Entire Agreement................................................... 48
10.10 Counterparts....................................................... 48
10.11 Governing Law...................................................... 49
10.12 Parties in Interest................................................ 49
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EXHIBITS
A. List of KPI Subsidiaries
B. Opinion of Sparton's Counsel
C. Certificate of Officer of Sparton
D. Opinion of Buyer's Counsel
E. Certificate of Officer of Buyer
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LIST OF SCHEDULES
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6.5 Restrictions Schedule
6.7 Liability Schedule
6.8 Developments Schedule
6.9(a) Real Property Lease Schedule
6.9(b) Real Property Schedule
6.11 Encumbrances Schedule
6.12 Environmental Schedule
6.15 Taxes Schedule
6.16 Contracts Schedule
6.17 and Intellectual Property Rights Schedules
6.17(c) and Intellectual Property Rights Schedules
6.17(d) Intellectual Property Rights Schedules
6.18 Litigation Schedule
6.20 Licenses Schedule
6.22 Employee Benefit Plans Schedule
6.23 Insurance Schedule
6.24 Officers and Directors Schedule
6.25 Affiliate Transactions Schedule
9.2 Guarantied Obligations Schedule
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STOCK AND ASSET PURCHASE AGREEMENT
STOCK AND ASSET PURCHASE AGREEMENT dated as of October 3, 1996, among
SPARTON CORPORATION, an Ohio corporation ("Sparton"), SPARTON ENGINEERED
PRODUCTS, INC., LAKE ODESSA GROUP, a Michigan corporation ("Lako"), and DURA
AUTOMOTIVE SYSTEMS, INC., a Delaware corporation ("Buyer").
RECITALS
Sparton owns 100 percent of the issued and outstanding capital stock of
each of the corporations listed on Exhibit A attached hereto (collectively, the
"KPI Subsidiaries"), consisting of the number of shares of common stock set
opposite the name of each (together, "Common Stock"). Upon the terms and
conditions set forth in this Agreement, Buyer desires to acquire from Sparton,
and Sparton desires to sell to Buyer, all of the Common Stock.
Sparton also owns 100 percent of the outstanding capital stock of Lako.
Upon the terms and conditions set forth in this Agreement, Buyer desires to
acquire from Lako, and Lako and Sparton desire that Lako sell to Buyer, the
business and certain of the assets of Lako which are operating as a going
concern, subject to certain liabilities.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
1.1 Stock Purchase. Upon the terms and conditions set forth in this
Agreement, at the Closing (as defined in Article III), Buyer agrees to purchase
from Sparton and Sparton agrees to sell and transfer to Buyer all of the Common
Stock, free and clear of all liens, charges, security interests, claims,
pledges, taxes, options, warrants, rights, proxies, voting trusts, voting
agreements, and other encumbrances and restrictions ("Liens"). As provided in
Section 3.3, at the Closing the existing lien on the Common Stock shall be
released.
1.2 Asset Purchase; Assumption of Liabilities.
(a) Upon the terms and conditions set forth in this Agreement, at the
Closing (as defined in Article III), Buyer agrees to purchase from Lako,
and Lako agrees to sell, transfer, convey, and deliver to Buyer, all right,
title, and interest in and to the following assets of Lako (collectively,
the "Acquired Assets"), but excluding the "Excluded Assets" defined below:
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(i) all cash, cash equivalents, accounts receivable, and
notes receivable;
(ii) all inventories of raw materials and supplies,
purchased and service parts, work-in-process, finished goods,
tooling, and all other items of inventory;
(iii) the land, building, and improvements located at
3741 Weber Road, Gladwin, Michigan (the "Gladwin Plant"),
and all licenses, rights of way, permits, and appurtenances
thereon;
(iv) all machinery, equipment, furniture, fixtures,
vehicles, tooling, molds, dies, and other tangible personal
property located at or used in the operations of the Gladwin
Plant;
(v) all Lako agreements, contracts, and purchase
orders related to or connected with operations at the Gladwin
Plant, including those listed on attached Schedule 6.16;
(vi) all prepayments and deposits made with respect to
operations at the Gladwin Plant to the extent any will inure to
the benefit of Buyer after Closing.
(vii) any permits, licenses, or other rights obtained from
governments or government agencies, including those listed on
attached Schedule 6.20;
(viii) all books, records, files, documents, drawings,
specifications, and other written materials, including copies of
financial and accounting books and records;
(ix) all other property, including all Intellectual
Property, in which Lako has an interest and which is connected
with the operations at the Gladwin Plant.
(b) The following assets of Lako ("Excluded Assets") shall be
excluded from the sale to Buyer of the Acquired Assets:
(i) all insurance policies;
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(ii) charter documents, minute books, stock transfer
records, corporate seal;
(iii) the land, building, and improvements comprising
Lako's plant located in Lake Odessa, Michigan (the "Lake
Odessa Plant"), and a parcel of unimproved land in the vicinity
of Lake Odessa;
(iv) all machinery, equipment, furniture, fixtures,
vehicles, tooling, molds, dies, and inventories located at the
Lake Odessa Plant (which are not to be transferred to the KPI
Subsidiaries pursuant to Section 5.6), a list of which has been
furnished to Buyer, and all other tangible personal property
located at the Lake Odessa Plant.
(c) Subject to the terms and conditions of this Agreement, Buyer
agrees to assume the following obligations of Lako connected with the
operations of the Gladwin Plant ("Assumed Liabilities"):
(i) all current liabilities, except "Excluded
Liabilities," defined below, recorded on the books and records
of Lako as of the Closing Date to the extent such current
liabilities have been incurred in the Ordinary Course of
Business, consistent with past custom and practice;
(d) Buyer does not assume and is not liable for the following
liabilities and obligations of Lako ("Excluded Liabilities"):
(i) except for obligations and liabilities incurred in
the Ordinary Course of Business with respect to operations at
the Gladwin Plant (other than cash advances which are dealt
with in Section 1.4), obligations or liabilities due to corporations
affiliated with Lako, including obligations or liabilities to
Sparton for funds advanced to Lako prior to the Closing Date;
(ii) obligations or liabilities connected with the
operations of the Lake Odessa Plant;
(iii) any other obligations or liabilities which are not
"Assumed Liabilities".
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1.3 Purchase Price. The total purchase price for the Common Stock and the
Acquired Assets shall be Eighty Million Five Hundred Thousand Dollars
($80,500,000) (the "Purchase Price"), subject to adjustment as provided in
Section 1.4, payable in cash at the Closing in immediately available funds, plus
or minus any adjustments to the Purchase Price provided for in this Agreement.
The Purchase Price shall be allocated between the Common Stock and the Acquired
Assets as provided as mutually agreed upon by Buyer and Sparton.
1.4 Adjustment in Purchase Price. The purchase price shall be increased
dollar for dollar to the extent the sum of all cash advances by Sparton to the
KPI Subsidiaries and Lako exceeds the sum of all cash advances by the KPI
Subsidiaries and Lako to Sparton during the period beginning July 1, 1996, to
the Closing Date, or shall be decreased dollar for dollar to the extent the sum
of all cash advances by Sparton to the KPI Subsidiaries and Lako is less than
the sum of all cash advances by the KPI Subsidiaries and Lako to Sparton during
the same period. Such adjustment shall be determined and paid by Buyer to
Sparton or by Sparton to Buyer at the Closing. The purchase price will be
reduced to the extent that cash generated by the Gladwin Plant, or any other KPI
Subsidiary, was used to fund the operations of the Lake Odessa Plant since July
1, 1996, to the Closing Date. From time to time as reasonably requested by Buyer
following the date of this Agreement and as of and at the Closing, Sparton shall
furnish to Buyer a detailed accounting of all such cash advances and a
computation of the amount of such adjustment. If Buyer disputes the adjustment
calculated by Sparton as of Closing, then Deloitte & Touche shall determine the
amount of such adjustment and its determination shall be final and binding upon
Sparton and Buyer.
ARTICLE II
LEASE OF LEASED REAL ESTATE
2.1 Lease of Leased Real Estate. KPI has leased from John J. Smith and
wife a parcel of real estate in Grand Haven, Michigan, and from Lawson K. Smith
and John J. Smith and wife a parcel of real estate in White Cloud, Michigan (the
"Leased Real Estate"). At or before the Closing, Lako will purchase the Leased
Real Estate. By separate customary agreements consistent with the terms of this
Agreement and to be mutually agreed upon by Buyer and Lako, the Buyer and Lako
will enter into leases providing for the lease of the Leased Real Estate by
Buyer from Lako. John J. Smith and wife and Lawson K. Smith are collectively
referred to herein as the "Smiths." The lease agreements shall be "triple net"
leases and shall provide for an aggregate annual rental equal to One Hundred
Thirty-five Thousand Dollars ($135,000). The leases shall also provide for a
purchase option to be exercised at the end of their five-year terms upon payment
of an aggregate option price equal to Fifty Thousand Dollars ($50,000). The
purchase option shall provide that both parcels of Leased Real Estate must be
purchased if the purchase option is exercised. The parties shall negotiate the
definitive lease agreements in good faith.
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ARTICLE III
CLOSING
3.1 Closing. The closing of the purchase and sale of the Common Stock and
Acquired Assets and Buyer's lease of the Leased Real Estate (the "Closing") will
be held at the offices of Varnum, Riddering, Schmidt & Howlett, Grand Rapids,
Michigan, at 10 a.m. on a date which is no later than five (5) business days
following the date on which all the conditions set forth in Article IV hereof
have been fully satisfied or waived, or at such other place or on such other
date as may be mutually agreeable to the Buyer and Sparton. The date of closing
is referred to herein as the Closing Date. Subject to fulfillment of the
conditions set forth in this Agreement, at the Closing:
(a) Sparton will deliver stock certificates representing all the
shares of Common Stock, duly endorsed for transfer or accompanied by duly
executed stock powers, and Lako will deliver instruments of transfer and
conveyance of the Acquired Assets;
(b) Buyer will pay the Purchase Price as provided in Section 1.2
hereof, and deliver an instrument assuming the Assumed Liabilities;
3.2 Concurrent Closing. The closing of the purchase and sale of Common
Stock and Acquired Assets is conditioned upon the concurrent closing of the
lease of the Leased Real Estate and vice versa. The closing of each of the
transactions shall be effective simultaneously, and the closing of one shall not
be effective except upon the simultaneous closing of the others.
3.3 Release of Liens at Closing. At the Closing, Sparton agrees to use a
portion of the Purchase Price to obtain from lenders the release and discharge
of all security interests and liens then existing on the Common Stock, the
assets of the KPI Subsidiaries, and the Acquired Assets.
ARTICLE IV
CONDITIONS TO CLOSING
4.1 Conditions to Buyer's Obligations. The obligations of Buyer to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions on or before the Closing Date:
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(a) The representations and warranties of Sparton in Article VI
hereof will be true and correct in all material respects at and as of the
Closing Date as though then made.
(b) Sparton will have performed and complied in all material respects
with all of the covenants and agreements required to be performed by it
under this Agreement prior to the Closing.
(c) All third-party consents, waivers, and approvals which are
required for the sale and transfer of the Common Stock, the Acquired
Assets, and the consummation of the transactions contemplated hereby will
have been obtained upon terms reasonably satisfactory to Buyer, including
the waiver of any right to terminate any contracts to which any of the KPI
Subsidiaries or Lako is a party to or is bound. Consents to the assignment
of customer purchase orders are waived by Buyer and will not be required.
(d) All governmental filings, authorizations, and approvals which are
required for the sale and transfer of the Common Stock, the Acquired
Assets, and the consummation of the transactions contemplated hereby will
have been duly made and obtained on terms reasonably satisfactory to Buyer.
(e) No action or proceeding before any court or government body will
be pending or threatened wherein an unfavorable judgment, decree,
injunction, or order would prevent the performance of this Agreement or any
of the transactions contemplated hereby, or which might adversely affect
the right of Buyer to own, operate, or control the KPI Subsidiaries and the
Acquired Assets.
(f) All intercompany indebtedness reflected in the advance account
between Sparton and the KPI Subsidiaries shall have been satisfied at or
prior to the Closing Date.
(g) The shareholders of Sparton shall have authorized the sale of the
Common Stock and Acquired Assets to the Buyer upon the terms and conditions
of this Agreement, as required by the applicable provisions of the General
Corporation Law of the state of Ohio.
(h) Buyer will have received the opinion addressed to Buyer, dated
the Closing Date, of Varnum, Riddering, Schmidt & Howlett LLP, counsel for
Sparton, with respect to the matters set forth in Exhibit B attached hereto
and in form and substance reasonably satisfactory to Buyer and its counsel.
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(i) On or prior to the Closing Date, Sparton will have delivered, or
caused to be delivered, to Buyer all of the following:
(i) a certificate in the form set forth in Exhibit C
attached hereto, dated the Closing Date, stating that the
conditions specified in Sections 4.1(a) through (g) above,
inclusive, have been satisfied;
(ii) copies of all third-party and governmental
consents, approvals, and filings required in connection with the
consummation of the transactions contemplated herein;
(iii) certificates representing the Common Stock and
instruments of Lako's transfer and conveyance of the Acquired
Assets as required by Section 3.1(a);
(iv) the minute books, stock transfer records, and
corporate seals of the KPI Subsidiaries;
(v) resignations of the directors of the KPI
Subsidiaries, effective as of the Closing Date;
(vi) a good standing certificate for each of the
KPI Subsidiaries in their respective states of incorporation
and good standing certificates for each jurisdiction
in which each is required to be qualified to do business,
dated as of a date within ten (10) business days prior
to the Closing Date;
(vii) the articles of incorporation of each of the KPI
Subsidiaries certified by its state of incorporation and bylaws of
certified by its secretary;
(viii) the documents required by Sections 5.4 and 5.5
and, if required by Buyer's lenders, an estoppel letter from each
of the landlords of Leased Real Property and each other parcel
of real property leased by the KPI Subsidiaries or Lako, in form
and content reasonably satisfactory to Buyer and its lenders;
(ix) such other documents or instruments as Buyer
reasonably requests to effect the transactions contemplated
hereby.
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(j) The closing of Buyer's lease of the Leased Real Estate shall be
completed concurrently as contemplated by Section 3.2.
(k) The $100 million loan commitment issued to Buyer by Bank of
America, a copy of which has been furnished to Sparton, shall have been
funded at or before the Closing, or Buyer shall have obtained other
financing satisfactory to it needed to consummate the purchase of the
Common Stock and the Acquired Assets.
Any condition specified in this Section 4.1 may be waived in writing by
Buyer.
4.2 Conditions to the Obligations of Sparton. The respective obligations
of Sparton to consummate the transactions contemplated by this Agreement are
subject to the satisfaction of the following conditions on or before the Closing
Date:
(a) The representations and warranties of Buyer in Article VII hereof
will be true and correct in all material respects at and as of the Closing
Date.
(b) Buyer will have performed and complied in all material respects
with all of the covenants and agreements required to be performed by it
under this Agreement prior to the Closing.
(c) All governmental filings, authorizations, and approvals which are
required for the sale and transfer of the Common Stock and Acquired Assets
and the consummation of the transactions contemplated hereby will have been
duly made and obtained on terms reasonably satisfactory to Sparton.
(d) All intercompany indebtedness reflected in the advance account
between Sparton and the KPI Subsidiaries shall have been satisfied at or
prior to the Closing Date.
(e) The shareholders of Sparton shall have authorized the sale of the
Common Stock and Acquired Assets to the Buyer upon the terms and conditions
of this Agreement, as required by the applicable provisions of the General
Corporation Law of the state of Ohio.
(f) Sparton shall have received an opinion, dated the Closing Date,
of Kirkland & Ellis, counsel to Buyer, with respect to the matters set
forth in Exhibit D attached hereto, and in form and substance reasonably
satisfactory to Sparton and its counsel.
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(g) On or prior to the Closing Date, Buyer will have delivered to
Sparton all of the following:
(i) a certificate from Buyer in the form set forth in
Exhibit E attached hereto, dated the Closing Date, stating that
the preconditions specified in Sections 4.2(a) through (c) above
have been satisfied;
(ii) certified copies of the resolutions of Buyer's Board
of Directors approving the transactions contemplated by this
Agreement;
(iii) an instrument assuming the Assumed Liabilities;
(iv) such other documents or instruments as Sparton
may reasonably request to effect the transactions contemplated
hereby; and
(v) the Purchase Price.
(h) The closing of Buyer's lease of the Leased Real Estate shall be
completed concurrently as contemplated by Section 3.2
Any condition specified in this Section 4.2 may be waived in writing by
Sparton.
ARTICLE V
COVENANTS PRIOR TO CLOSING
5.1 Operation of KPI Subsidiaries Since June 30, 1996. Since June 30,
1996, neither Lako nor the KPI Subsidiaries have, without Buyer's written
consent, changed any officer's compensation, incentive arrangements, or other
benefits, except for customary annual increases in compensation.
5.2 Affirmative Covenants of Sparton. Prior to the Closing, Sparton
covenants and agrees as follows:
(a) Sparton will cause Lako and each of the KPI Subsidiaries to
conduct its business and maintain its properties in the ordinary course in
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accordance with past custom and practice, other than the winding down of
the affairs and relocation of jobs and assets of the plant at Lake Odessa,
Michigan.
(b) Sparton will, and will cause Lako and the KPI Subsidiaries to,
permit Buyer and its employees, agents, accounting and legal
representatives to have reasonable access at reasonable times and in a
manner so as not to interfere with the normal business operations of Lako
or the KPI Subsidiaries to their books, records, invoices, contracts,
leases, personnel, facilities, equipment, and other things reasonably
related to the business and assets of Lako and the KPI Subsidiaries.
(c) Promptly after Sparton acquires knowledge thereof, it will
inform Buyer in writing if any representation or warranty contained in
Article VI hereof was when made, or has subsequently become, untrue in any
material respect, or if any covenant of Sparton has been breached in any
material respect.
(d) Sparton will, and will cause Lako and the KPI Subsidiaries to,
cooperate with Buyer and use their reasonable best efforts to obtain all
governmental, third-party, or other consents and approvals necessary for
the consummation of the transactions contemplated hereby and to cause the
other conditions to Buyer's obligation to close to be satisfied;
(e) As requested by Buyer from time to time, Sparton will confer on a
regular and reasonably frequent basis with representatives of Buyer to
report on operational matters and the general status of ongoing operations;
(f) Sparton will maintain in effect until the Closing Date current
insurance policies providing coverage for the KPI Subsidiaries and the
Acquired Assets, or to replace such policies with coverage equal to or
greater than the coverage under the cancelled, terminated, or lapsed
policies; and
(g) Sparton will cause each of the KPI Subsidiaries and Lako to:
(i) use its best efforts to preserve intact its business
organization and goodwill, keep available the services of its
officers and employees as a group and maintain satisfactory
relationships with suppliers, distributors, customers, and others
having business relationships with it;
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(ii) not take any action which would render, or which
reasonably may be expected to render, any representation or
warranty made by Sparton in this Agreement untrue at, or prior
to, the Closing Date; and
(iii) notify Buyer of any emergency or other change in
the normal course of its business or in the operation of its
properties, or of any governmental or third-party complaints,
investigations, or hearings, if material to the operations or
financial condition of Lako and the KPI Subsidiaries as a whole,
or to Sparton's or Buyer's ability to consummate the transactions
contemplated by this Agreement.
(h) Sparton will, and will cause the KPI Subsidiaries and Lako to,
maintain the assets of the KPI Subsidiaries and the Acquired Assets in good
repair, order, and condition consistent with current needs, replace in
accordance with prudent practices its inoperable, worn out, or obsolete
assets with assets of good quality consistent with prudent practices and
current needs and, in the event of a casualty, loss, or damage to any of
such assets or properties prior to the Closing Date, whether or not the KPI
Subsidiaries or Acquired Assets are insured, either repair or replace such
damaged property or use the proceeds of such insurance in such other manner
as mutually agreed upon by Sparton and Buyer.
5.3 Covenants of Buyer. Prior to the Closing, Buyer will:
(a) Promptly (once it has knowledge thereof) inform Sparton in
writing of any material variances from the representations and warranties
contained in Article VII hereof or any material breach of any covenant
hereunder by Buyer; and
(b) Cooperate with Sparton and use its reasonable best efforts to
obtain all governmental, third-party, or other consents and approvals
necessary for the consummation of the transactions contemplated hereby and
to cause the other conditions to Sparton's obligation to close to be
satisfied.
5.4 Title Insurance. At Sparton's and Buyer's equal expense, Sparton
shall, with respect to real estate constituting the Gladwin Plant and to each
parcel of real estate owned by the KPI Subsidiaries at Closing, procure prior to
the Closing and furnish to Buyer an Owner's Policy of Title Insurance issued by
a title insurer satisfactory to the Buyer, insuring title to each such parcel to
be, respectively, in Lako or in the KPI Subsidiaries as of the
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Closing Date (subject only to the title exceptions described in Schedule
6.9(b)). The real estate constituting the Gladwin Plant and each parcel of real
estate owned by the KPI Subsidiaries at the Closing Date are also described in
Schedule 6.9(b).
5.5 Surveys. With respect to the Gladwin Plant and each parcel of real
property owned by the KPI Subsidiaries and as to which a title insurance policy
is to be procured pursuant to Section 5.4 above, at Buyer's request Sparton
shall furnish to Buyer, prior to the Closing, a survey of the real property,
prepared by a licensed surveyor, disclosing the location of all improvements,
easements, roadways, utility lines and other matters shown customarily on such
surveys, and showing access to public streets and roads (the "Survey"). The
Survey shall not disclose any encroachment from or onto the real property which
has not been cured or insured over prior to the Closing. The expense of such
surveys shall be borne equally by Buyer and Sparton.
5.6 Closing of Lake Odessa Plant. Prior to the Closing Date, Sparton will
cause Lako, at Sparton's expense, to:
(a) Discontinue operations at its plant in Lake Odessa, Michigan.
(b) Resource all customer jobs for which Lako has active purchase
orders, either to the Gladwin Plant or to other plants operated by the KPI
Subsidiaries, and terminate purchase orders for customer jobs which are not
resourced.
(c) Transfer and deliver to such plants all inventories, machinery,
equipment, and other assets (excluding real estate) owned by Lako which are
required to produce the customer jobs resourced to such plants.
Prior to the Closing, Sparton will offer to sell and transfer to Buyer
any of the machinery and equipment or other personal properties remaining
in the plant at Lake Odessa after the transfer of assets contemplated by
Section 5.6(b) has been completed. The cost of removing, transporting, and
reinstalling the machinery, equipment, or other properties purchased by
Buyer shall be borne by Buyer.
5.7 Negative Covenants of Lako and Sparton. Prior to the Closing, without
Buyer's prior written consent, Sparton shall cause Lako and the KPI Subsidiaries
not to, and Lako and the KPI Subsidiaries shall not, except as expressly
contemplated by this Agreement:
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(a) Terminate, modify, enter into any new, or amend any existing,
material contracts, agreements, commitments, or licenses to which Lako or
either of the KPI Subsidiaries is a party, except (i) in the ordinary
course of business consistent with past custom and practice (including, as
applicable, with respect to quantity and frequency) ("Ordinary Course of
Business"), and (ii) at arm's length with unaffiliated persons;
(b) Make any loans, enter into any transaction with any stockholders,
officers, directors, or affiliates of Sparton or the KPI Subsidiaries other
than intercompany transactions in the Ordinary Course of Business among
affiliates of Sparton and the KPI Subsidiaries, or make, other than in the
Ordinary Course of Business, or grant any increase in any employee's or
officer's compensation, or make or grant any increase in any employee
benefit plan, incentive arrangement or other benefit covering any of the
employees of Lako or the KPI Subsidiaries;
(c) Establish or, except in accordance with past practice, contribute
to any pension, retirement, profit sharing or stock bonus plan or
multiemployer plan covering the employees of Lako or the KPI Subsidiaries;
(d) Sell, transfer, contribute, distribute, or otherwise dispose of
any securities or assets of the KPI Subsidiaries or connected with the
Gladwin Plant, or agree to do any of the foregoing to any person, or
negotiate or have any discussions with any person with respect to any of
the foregoing, other than transactions in the Ordinary Course of Business
and except as contemplated by this Agreement.
5.8 PROXY; SHAREHOLDERS' VOTE. Promptly upon execution of this Agreement,
Sparton shall file with the Securities Exchange Commission a preliminary proxy
statement which shall include a statement to the effect that the Board of
Directors of Sparton unanimously recommends that the shareholders of Sparton
vote in favor of and adopt and approve this Agreement and the sale of the Common
Stock and the sale of the Acquired Assets pursuant to this Agreement, which
unanimous recommendation shall not be withdrawn. Sparton shall take all actions
necessary in accordance with applicable law to call and convene a meeting of the
shareholders of Sparton to consider, act upon, and vote upon the adoption and
approval of this Agreement, the sale of the Common Stock of the KPI
Subsidiaries, and the sale of the Acquired Assets. Sparton's shareholders'
meeting shall be held as promptly as practicable. Sparton shall ensure that the
shareholders' meeting is called, held, and conducted, and that all proxies
solicited in connection therewith are solicited in compliance with applicable
law.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
CONCERNING SPARTON AND THE KPI SUBSIDIARIES
As a material inducement to Buyer to enter into this Agreement, Sparton
represents and warrants to Buyer:
6.1 ORGANIZATION AND CORPORATE POWER. Lako and each of the KPI
Subsidiaries is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation and is qualified to do
business in every jurisdiction in which the nature of its business or its
ownership of property requires it to be qualified. Each has full corporate power
and authority and all licenses, permits, and authorizations necessary to own and
operate its properties and to carry on its business as now conducted. All such
authorizations and licenses are in full force and effect and shall remain in
full force and effect until the consummation of the transactions provided for in
this Agreement. The copies of the articles of incorporation and bylaws of each
which have been furnished to Buyer are correct and complete. The stock
certificate books and the stock record books of the KPI Subsidiaries are correct
and complete. None of the KPI Subsidiaries or Lako is in default under or in
violation of its respective articles of incorporation or bylaws.
6.2 AUTHORIZATION OF TRANSACTIONS. Sparton and Lako have full power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, subject to approval by Sparton's shareholders
as contemplated by Sections 4.1(g) and 4.2(e). This Agreement has been duly
executed and delivered by Sparton and Lako and constitutes the valid and binding
agreement of Sparton and Lako, enforceable in accordance with its terms, except
as enforceability hereof may be limited by bankruptcy or other laws affecting
creditors' rights generally and limitations on the availability of equitable
remedies.
6.3 CAPITALIZATION. The authorized and issued capital stock of the KPI
Subsidiaries is accurately described in Exhibit A. All of the issued shares
described therein are issued and outstanding and are owned of record by Sparton
in the number of shares set forth opposite their names, and at the Closing Date
will be free and clear of any security interests, claims, liens, pledges,
options, encumbrances, charges, voting trusts, proxies, or other arrangements or
restrictions whatsoever. All of the outstanding Common Stock has been duly
authorized by all necessary corporate action and is validly issued, fully paid,
and nonassessable. There are no outstanding or authorized stock appreciation
rights, phantom stock rights, or similar rights with respect to any of the KPI
Subsidiaries. There are no rights, subscriptions, warrants, options, conversion
rights or agreements of any kind outstanding to purchase or otherwise acquire
any shares of Common Stock or securities or obligations of
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any kind convertible into or exchangeable or exercisable for any shares of
Common Stock, except pursuant to this Agreement. No shares of the Common Stock
are reserved for any purpose.
6.4 SUBSIDIARIES. Neither of the KPI Subsidiaries has any subsidiaries.
6.5 ABSENCE OF CONFLICTS. The consummation of the transactions
contemplated hereby will not:
(a) Violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, or other restriction of any government,
governmental agency, regulatory body, or court to which Sparton, Lako, or
any of the KPI Subsidiaries is subject;
(b) Violate any provision of the articles of incorporation or bylaws
of Sparton, Lako, or any of the KPI Subsidiaries ;
(c) Conflict with, result in a breach of, constitute a default under,
or give any party the right to terminate any agreement, contract, lease,
license, instrument, or other arrangement to which Sparton, Lako, or any of
the KPI Subsidiaries is a party or by which any of them is bound or to
which any of their respective assets is subject; or
(d) Result in the imposition of any Liens upon any of the Acquired
Assets or any assets or the capital stock of any of the KPI Subsidiaries.
Except as set forth on Schedule 6.5 (the "Restrictions Schedule"), neither
Sparton, Lako, nor any KPI Subsidiary is required to give any notice, or obtain
the approval of any government or governmental agency in order for Lako to
transfer the Acquired Assets or for Sparton to transfer the Common Stock or
otherwise consummate the transactions contemplated by this Agreement.
6.6 FINANCIAL STATEMENTS. Sparton has furnished or prior to the Closing
Date will furnish Buyer with copies of the consolidated balance sheets and
statements of income and cash flow of Lako and the KPI Subsidiaries, unaudited
for the fiscal year ended June 30, 1995, and unaudited for the fiscal year ended
June 30, 1996, except for the KPI Subsidiaries, which are audited for the fiscal
year ended June 30, 1996. Each of the foregoing financial statements (including
the notes thereto) (the "Financial Statements") presents fairly the financial
condition and results of operations of Lako and the KPI Subsidiaries as of the
times and for the periods referred to therein, and has been prepared in
accordance with generally accepted accounting principles consistently applied
(except as noted therein). The balance
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sheet as of June 30, 1996, is referred to herein as the "Latest Balance Sheet,"
and June 30, 1996, as the "Balance Sheet Date."
6.7 ABSENCE OF UNDISCLOSED LIABILITIES. Neither Lako, with respect to the
Assumed Liabilities, nor either of the KPI Subsidiaries has any obligation or
liability in excess of $50,000 (whether accrued or unaccrued, whether absolute
or contingent, whether liquidated or unliquidated, whether known or unknown,
whether due or to become due) except:
(a) Obligations under contracts or commitments, other than breaches
thereof, described in Schedule 6.7 ("Liability Schedule"), or under
contracts and commitments which are not required to be disclosed thereon
due solely to the specific dollar thresholds and other requirements
contained in Schedule 6.7;
(b) Liabilities reflected on the Latest Balance Sheet;
(c) Liabilities which have arisen after the date of the Latest
Balance Sheet in the Ordinary Course of Business or otherwise in accordance
with the terms and conditions of this Agreement, none of which is a
liability for breach of contract, breach of warranty, tort, or
environmental liability; and
(d) Liabilities otherwise expressly disclosed in Schedule 6.7
attached hereto.
With respect to product warranty claims, Sparton's liability under this
Section 6.7 is limited as provided in Section 9.10.
6.8 ABSENCE OF CERTAIN DEVELOPMENTS. Except as set forth in Schedule 6.8
(the "Developments Schedule"), and except as expressly contemplated by this
Agreement, since June 30, 1996, neither Lako nor either of the KPI Subsidiaries
has:
(a) Redeemed or repurchased, directly or indirectly, any shares of
capital stock or declared, set aside, or paid any dividends or made any
other distributions with respect to any shares of its capital stock, except
as contemplated by Sections 4.1(f) and 4.2(d);
(b) Issued or sold any notes, bonds, or other debt securities or any
equity securities, securities convertible, exchangeable, or exercisable
into equity securities, or warrants, options, or other rights to acquire
equity securities;
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(c) Mortgaged, pledged, or subjected to any lien, charge, or any
other encumbrance, any portion of its properties or assets;
(d) Entered into, amended, or terminated any lease, license,
agreement, or commitment involving more than $500,000 in the aggregate,
other than in the Ordinary Course of Business;
(e) Made or granted any bonus or any wage, salary, or compensation
increase in excess of $10,000 per year to any director, officer, or
employee, or modified or terminated any Plan (as defined in Section 6.22),
other than in the usual and Ordinary Course of Business, including bonuses
paid or payable to employees for the fiscal year ended June 30, 1996, in an
aggregate of not more than $130,000 (including $24,000 to Mr. Gause);
(f) Made any capital expenditures or commitments therefor other
than capital expenditures in the Ordinary Course of Business, not exceeding
$500,000 in the aggregate.
(g) Suffered an adverse change to its business, assets, operations,
financial conditions, or operating results, or casualty loss or damage or
thefts of assets in excess of $50,000 (whether or not covered by insurance)
other than in the Ordinary Course of Business;
(h) Incurred or become subject to any liabilities, except liabilities
incurred in the Ordinary Course of Business;
(i) Discharged or satisfied any encumbrance or paid any obligation
or liability other than liabilities paid in the Ordinary Course of
Business, or prepaid any amount of indebtedness for borrowed money other
than adjustments of intercompany debt contemplated by this Agreement;
(j) Sold, leased, assigned, or transferred a portion of its tangible
assets, except in the Ordinary Course of Business, or cancelled without
fair consideration any debts or claims owing to or held by it; or
(k) Entered into any other material transaction or made any new
material investments, other than in the Ordinary Course of Business, or
materially changed any business practice.
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6.9 Real Property.
(a) Except as set forth in Schedule 6.9(a), neither Lako nor either
of the KPI Subsidiaries is a party to any real estate lease or sublease,
other than the leases of the Leased Real Estate.
(b) Schedule 6.9(b) attached hereto (the "Real Property Schedule")
lists and describes the Leased Real Estate, the Gladwin Plant, and all real
property which will be owned by the KPI Subsidiaries at the Closing Date.
With respect to each parcel of real property listed on Schedule 6.9(b) as
owned by Lako or the KPI Subsidiaries:
(i) except as disclosed on Schedule 6.9(b), each
owner has good and marketable title to the parcel of real
property owned by it, free and clear of all mortgages, pledges,
security interests, encumbrances, charges or other liens,
easements and other restrictions, other than easements,
covenants, and restrictions which do not materially or
unreasonably impair the current use or marketability of title of
the property subject thereto;
(ii) the legal description for the parcel contained in the
deed thereof describes such parcel fully and adequately and,
except as described in Schedule 6.9(b), the buildings and
improvements are located within the boundary lines of the
described parcels of land and are not in violation of applicable
zoning laws and ordinances;
(iii) all facilities have received all approvals of
governmental authorities (including licenses and permits)
required in connection with the ownership or operation thereof
and have been operated and maintained in accordance with
applicable laws, rules, and regulations;
(iv) there are no leases, subleases, licenses,
concessions, or other agreements, written or oral, granting to
any party the right of use or occupancy of any portion of the
parcels of real property, except for the leases of the Leased Real
Estate;
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(v) there are no outstanding options or rights of first
refusal to purchase any parcel of real property, or any portion
thereof or interest therein;
(vi) there are no parties (other than Lako or the KPI
Subsidiaries) in possession of any parcel of real property;
(vii) all facilities located on the parcel of real property
are supplied with utilities and other services necessary for the
operation of such facilities as currently operated by Lako or the
KPI Subsidiaries, including gas, electricity, water, telephone,
and sanitary sewer;
(viii) each parcel of real property abuts on and has direct
vehicular access to a public road or access to a public road via
a permanent, irrevocable, appurtenant easement benefiting the
parcel of real property.
The representations in subsections (iii), (vii), and (viii) shall also
apply to the Leased Real Estate.
(c) There are no pending or, to Sparton's knowledge, threatened
condemnation proceedings, litigation, or administrative actions relating to
real property owned or leased by Lako or the KPI Subsidiaries.
6.10 Tangible Assets. The Acquired Assets and assets owned or leased by
the KPI Subsidiaries include all buildings, machinery, equipment, and other
tangible assets that are sufficient for the conduct of their businesses as
presently conducted, and such assets are, subject to normal wear and tear, in
good operating condition and repair.
6.11 Title to Personal Property. As of the Closing Date, Lako, with
respect to the Gladwin Plant, and each of the KPI Subsidiaries will have good
title to, or a valid leasehold interest in, all personal property used in
connection with the operation of its business. All personal property owned by
them will be free and clear of all Liens, except (a) as set forth in Schedule
6.11 attached hereto (the "Encumbrances Schedule"), and (b) liens for Taxes not
yet due and payable or being contested in good faith by appropriate proceedings
and in respect of which adequate reserves have been established.
6.12 Environmental Matters. Except as set forth in Schedule 6.12
("Environmental Schedule"):
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(a) Lako (with respect to the Gladwin Plant) and each of the KPI
Subsidiaries has complied and is in compliance with all Environmental and
Safety Requirements (as defined in subsection (j) below).
(b) Lako (with respect to the Gladwin Plant) and each of the KPI
Subsidiaries has obtained and is in compliance with all permits, licenses,
and other authorizations that are required pursuant to Environmental and
Safety Requirements for the occupation of its facilities and the operation
of its business, a list of which is set forth on Schedule 6.12.
(c) Neither Lako nor either of the KPI Subsidiaries (nor any of their
respective predecessors) has received any written or oral notice, report,
or information regarding actual or alleged violations of Environmental and
Safety Requirements or any liabilities or potential liabilities (whether
accrued, absolute, contingent, unliquidated or otherwise), including any
investigatory, remedial, or corrective obligations relating to it or its
facilities arising under Environmental and Safety Requirements, the subject
of which has not been fully resolved or settled.
(d) None of the following exists at any property or facility owned or
operated by Lako or the KPI Subsidiaries: (i) underground storage tanks, or
(ii) landfills, surface impoundments, or disposal areas.
(e) None of the KPI Subsidiaries, Lako, or their respective
predecessors has treated, stored, disposed of, arranged for or permitted
the disposal of, transported, handled, or released any substance, including
without limitation any hazardous substance, or owned or operated any
property or facility (and no such property or facility is contaminated by
any such substance) in a manner that has given or would give rise to
liabilities, including any liability for response costs, corrective action
costs, personal injury, property damage, natural resources damages, or
attorney fees, pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the Solid
Waste Disposal Act, as amended ("SWDA"), or any other Environmental and
Safety Requirements.
(f) Neither this Agreement nor the consummation of the transaction
that is the subject of this Agreement will result in any obligations for
site investigation or cleanup, or notification to or consent of government
agencies, pursuant to any of the so-called "transaction-triggered" or
"responsible property transfer" Environmental and Safety Requirements.
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(g) Neither Lako (with respect to the Gladwin Plant) nor either of
the KPI Subsidiaries nor their respective predecessors or affiliates,
either expressly or by operation of law, has assumed or undertaken any
liability, including without limitation any corrective or remedial
obligations of any other person or entity relating to Environmental and
Safety Requirements.
(h) No Environmental Lien has attached to any of the Acquired Assets
or any property owned, leased, or operated by any of the KPI Subsidiaries.
(i) No facts, events, or conditions prior to Closing relating to the
past or present facilities, properties, or operations of the KPI
subsidiaries or any of their respective predecessors or affiliates will
prevent, hinder, or limit continued compliance with Environmental and
Safety Requirements in effect at the time of Closing, give rise to any
investigatory, remedial, or corrective obligations pursuant to
Environmental and Safety Requirements, or give rise to any other
liabilities (whether accrued, absolute, contingent, unliquidated, or
otherwise) pursuant to Environmental and Safety Requirements, including
without limitation any relating to onsite or offsite releases or threatened
releases of hazardous materials, substances or wastes, personal injury,
property damage, or natural resources damage.
(j) As used in this Agreement, the following terms shall have the
following respective meanings:
(i) "Environmental and Safety Requirements" shall
mean all federal, state, and local statutes, regulations,
ordinances, and similar provisions having the force or effect of
law, all judicial and administrative orders and determinations,
all contractual obligations, and all common law concerning
public health and safety, worker health and safety, and pollution
or protection of the environment in effect at or prior to the
Closing Date, including without limitation all those relating to
the presence, use, production, generation, handling, transport,
treatment, storage, disposal, distribution, labeling, testing,
processing, discharge, release, threatened release, control, or
cleanup of any hazardous or otherwise regulated materials,
substances, or wastes, chemical substances or mixtures,
pesticides, pollutants, contaminants, toxic chemicals, petroleum
products or byproducts, asbestos, polychlorinated biphenyls,
noise, or radiation,
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(ii) "Environmental Lien" shall mean a lien, either
recorded or unrecorded, in favor of any governmental entity
relating to any liability of Lako or either of the KPI Subsidiaries
arising under Environmental and Safety Requirements.
6.13 Accounts Receivable. Except as provided by Section 4.2(d), all of the
accounts receivable of Lako (of the kind to be included in the Acquired Assets)
and of the KPI Subsidiaries reflected on the Latest Balance Sheet and to be
reflected on their books and records as of the Closing Date have been collected
or will be collectible (net of the allowance for doubtful accounts and for
customary credits and allowances in the ordinary course consistent with past
practice) in the Ordinary Course of Business after the Closing Date at the
aggregate net amount recorded therefor on the books and records of Lako or the
KPI Subsidiaries as of the Closing Date. As of the Closing Date, no person or
entity will have any lien on such receivables or any part thereof.
At the Balance Sheet Date there were, and at the Closing Date Sparton
anticipates there will be, claims by Lako and the KPI Subsidiaries against
customers or others, and other receivables owed to them, relating to
transactions prior to the Closing Date which are not recorded or which are
underrecorded on their books and records at the Closing Date ("Unbooked and
Underbooked Receivables"). If, after the Closing Date, any Unbooked or
Underbooked Receivables are collected by the KPI Subsidiaries or the Buyer, the
Threshold Loss Amount stated in Section 9.3(b) shall be increased dollar for
dollar by the amount collected in excess of the amount recorded at the Closing
Date.
6.14 Inventory. The inventories of the KPI Subsidiaries reflected on the
Latest Balance Sheet Date on the Closing Date will be, stated at the lower of
original cost or market value in accordance with generally accepted accounting
principles consistently applied. The inventories reflected on the Latest Balance
Sheet, net of reserves applicable thereto, have been or will be utilized in the
Ordinary Course of Business.
6.15 Taxes.
(a) Sparton has timely filed consolidated income Tax Returns for
itself and members of the Affiliated Group of which Sparton is the common
parent (the "Sparton Affiliated Group"), including Lako and the KPI
Subsidiaries, required to be filed under the Internal Revenue Code of 1986,
as amended ("Code"). All material federal income Taxes due and payable by
the Sparton Affiliated Group with respect to each taxable period during
which Lako and either of the KPI Subsidiaries was a member of the Sparton
Affiliated Group have been paid. The KPI Subsidiaries have timely filed all
Tax Returns required to be filed by them. Each such Tax Return has been
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prepared in compliance with all applicable laws and regulations, and all
such Tax Returns are true and accurate in all respects. All Taxes due and
payable by Lako and the KPI Subsidiaries have been paid, and all such Taxes
accrued but not yet due as of June 30, 1996, are accrued on the Latest
Balance Sheet. Since June 30, 1996, neither Lako nor either of the KPI
Subsidiaries has incurred any liability for Taxes other than in the
Ordinary Course of Business.
The following Section 6.15(b) relates to the Michigan SBT returns and
income Tax Returns required to be filed by the KPI Subsidiaries.
(b) Except as set forth in Schedule 6.15 (the "Taxes Schedule"):
(i) neither Lako nor either of the KPI Subsidiaries has
waived any statute of limitations in respect of Taxes or
requested or been granted an extension of the time for filing any
Tax Return which has not yet been filed;
(ii) there is no action, suit, taxing authority proceeding
or audit now in progress, pending or, to Sparton's knowledge,
threatened against Lako or either of the KPI Subsidiaries with
respect to their Tax Returns;
(iii) there is no unresolved claim by a taxing authority
that Lako or either of the KPI Subsidiaries may be subject to
Taxes in a jurisdiction where Tax Returns are not filed;
(iv) neither Lako nor either of the KPI Subsidiaries is
a party to or bound by any Tax allocation or Tax sharing
agreement or has any current or potential contractual obligation
to indemnify any other person with respect to Taxes;
(v) no deficiency or proposed adjustment which has
not been settled or otherwise resolved for (A) any amount of
Tax has been proposed, asserted, or assessed by any taxing
authority against Lako or either of the KPI Subsidiaries, or (B)
any material amount of federal income Tax has been proposed,
asserted, or assessed against the Sparton Affiliated Group with
respect to any taxable period during which Lako or either of the
KPI Subsidiaries was a member of such Affiliated Group;
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(vi) neither Lako nor either of the KPI Subsidiaries will be required
(A) as a result of a change in method of accounting for a taxable period
ending on or prior to the Closing Date, to include any adjustment in
taxable income for any taxable period (or portion thereof) ending after the
Closing Date, (B) as a result of any "closing agreement" as described in
Code Section 7121 (or any corresponding provision of state, local, or
foreign law), to include any item of income in, or exclude any item of
deduction from, taxable income for any period (or portion thereof) ending
after the Closing Date, or (C) as a result of any deferred intercompany
gain described in Treasury Regulations Section 1.1502-13 (or any
corresponding or similar provision of state, local, or foreign law), to
include any item of income in taxable income for any period (or portion
thereof) ending after the Closing Date; and
(vii) since January 1, 1987, neither Lako nor either of
the KPI Subsidiaries has been a member of an Affiliated Group
other than Sparton Affiliated Group.
(c) The Buyer will not be required to deduct and withhold any
amount pursuant to Section 1445(a) of the Code upon the transfer of the
Common Stock to the Buyer.
(d) Schedule 6.15 contains a list of states, territories, and
jurisdictions (whether foreign or domestic) in which each of the KPI
Subsidiaries is required to file Tax Returns relating to its income Taxes.
(e) As used in this Agreement, the following terms shall have the
following meanings:
(i) "Affiliated Group" means an affiliated group as
defined in Section 1504 of the Code (or any analogous
combined, consolidated, or unitary group defined under state,
local or foreign income Tax law).
(ii) "Tax" or "Taxes means any federal, state,
provincial, local, foreign, or other income, gross receipts, ad
valorem, franchise, profits, single business, sales or use,
transfer, registration, excise, utility, environmental,
communications, real or personal property, capital stock,
license, payroll, wage or other withholding, employment, social
security, severance, stamp, occupation, alternative, or add-on
minimum, estimated, or other Taxes of any kind whatsoever
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(including, without limitation, deficiencies, penalties, additions
to Tax, and interest attributable thereto), whether disputed or
not.
(iii) "Tax Return" means any return, information
report, or filing with respect to Taxes, including any schedules
attached thereto and including any amendment thereof.
(iv) "Treasury Regulations" means the United States
Treasury Regulations promulgated under the Code, and any
reference to any particular Treasury Regulation section shall be
interpreted to include any final or temporary revision of or
successor to that section regardless of how numbered or
classified.
6.16 CONTRACTS AND COMMITMENTS.
(a) Except as specifically contemplated by this Agreement and
except as set forth or referred to in Schedule 6.16 (the "Contracts
Schedule"), neither Lako nor either of the KPI Subsidiaries is a party to
nor bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with
any labor union;
(ii) contract for the employment of any officer,
individual employee, or other person, or any severance
termination agreements (other than at-will employment
agreements with its employees);
(iii) agreement under which Lako or either of the KPI
Subsidiaries has incurred, assumed, or guarantied any
indebtedness for borrowed money or any capitalized lease
obligation, or created or suffered to exist a security interest,
pledge, or other lien on any of its assets;
(iv) contract which prohibits it from freely engaging
in business anywhere in the world;
(v) agreement pursuant to which Lako or either of the
KPI Subsidiaries subcontracts work to third parties;
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(vi) other agreement material to it whether or not
entered into in the Ordinary Course of Business.
(vii) license or royalty agreements;
(viii) lease or agreement under which it is lessee of, or
holds or operates, any personal property owned by any other
party calling for payments in excess of $100,000 annually;
(ix) except for customer purchase orders, contract or
group of related contracts with the same party for the purchase
of supplies, products, or other personal property, or for the
receipt of services which either calls for performance over a
period of more than six (6) months or involves a sum of more
than $100,000, provided that the list of such contracts in this
Section 6.16(a)(ix) shall be delivered to Buyer after the date
hereof but prior to the date of Closing;
(x) take or pay contracts; or
(xi) contracts or agreements with any officers,
stockholder, or affiliate of Sparton, Lako, or the KPI
Subsidiaries.
(b) With respect to each agreement and contract required to be
disclosed on Schedule 6.16:
(i) such agreement or contract is legal, valid, binding,
and enforceable in accordance with its terms, and is in full force
and effect;
(ii) neither Lako nor either of the KPI Subsidiaries is
in breach or default of any such contract or agreement to which
it is a party and no event has occurred which with notice or lapse
of time would constitute a breach or default; or
(iii) to the best of Sparton's knowledge, no third party
is in breach or default of any such contract or agreement, and no
event has occurred which with notice or lapse of time would
constitute a breach or default by such third party.
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(c) Sparton, Lako, or the KPI Subsidiaries have provided Buyer with
a true and correct copy of all written contracts which are referred to on
Schedule 6.16, together with all amendments thereto.
6.17 INTELLECTUAL PROPERTY RIGHTS.
(a) "Intellectual Property Rights" shall mean all of the following
items owned by, issued to, or licensed to each of Lako and the KPI
Subsidiaries, along with all income, royalties, and payments due or payable
at the Closing or thereafter; patents, patent applications, patent
disclosures and inventions (whether or not patentable and whether or not
reduced to practice) and any reissues, continuations, continuations in
part, revisions, extensions, or reexamintions thereof, trademarks, service
marks, logos, trade names, (but not corporate names), together with all
goodwill associated therewith, copyrights and copyrightable works, Internet
domain names, and all registrations, applications, and renewals of any of
the foregoing; trade secrets and confidential business information;
computer software; and any other intellectual property rights, including
without limitation those listed on Schedule 6.17 (the "Intellectual
Property Rights Schedule"). "Intellectual Property Rights" expressly do not
include the right or license to use the name "Sparton" in any trade name or
otherwise, or to use any other intellectual property rights owned by or
licensed to Sparton. The right of use of the name "Sparton" by the KPI
Subsidiaries shall terminate as of the Closing Date. The right to use the
name "Sparton" is not included in the Acquired Assets.
(b) The Intellectual Property Rights comprise all of the intellectual
property rights necessary for the operation of the business of Lako and
each of the KPI Subsidiaries as currently conducted or as currently
proposed to be conducted.
(c) Except as set forth in Schedule 6.17(c):
(i) as a group, Lako and the KPI Subsidiaries own
and at the Closing will own all right, title, and interest in and to,
or have a valid and enforceable license to use, the Intellectual
Property Rights, and no written claim by any third party
contesting the validity, enforceability, use, or ownership of any
of the Intellectual Property Rights has been made to an officer
or director of Lako or any of the KPI Subsidiaries;
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(ii) neither Lako nor either of the KPI Subsidiaries has received
any written notice of, nor, to the knowledge of their respective
directors and officers, is aware of any facts which indicate the
likelihood of, any infringement or misappropriation by or conflict
with any third party with respect to the Intellectual Property Rights.
All of the Intellectual Property Rights are or will be owned by, or
properly assigned or licensed to, Lako or the KPI Subsidiaries at the time of
the Closing, as set forth in the Intellectual Property Rights Schedule. Except
as set forth in the Intellectual Property Rights Schedule, the transactions
contemplated by this Agreement will have no material adverse effect on the
right, title, and interest in and to the Intellectual Property Rights or the
validity and enforceability thereof. Lako and the KPI Subsidiaries have taken
all necessary and desirable action to maintain and protect the Intellectual
Property Rights and will continue to maintain and protect the Intellectual
Property Rights prior to the Closing so as to not materially adversely affect
the validity or enforceability of the Intellectual Property Rights. To the best
knowledge of Lako and the KPI Subsidiaries, the owners of any Intellectual
Property Rights licensed to them have taken all necessary and desirable action
to maintain and protect the Intellectual Property Rights subject to such
licenses.
6.18 LITIGATION; PROCEEDINGS. Except as set forth on Schedule 6.18 (the
"Litigation Schedule"), there are no actions, suits, proceedings, orders, or
investigations pending or, to the best of Sparton's knowledge, threatened
against Lako or either of the KPI Subsidiaries before any federal, state,
municipal, or other governmental department, commission, board, bureau, agency,
or instrumentality, domestic or foreign, and neither Lako nor the KPI
Subsidiaries is subject to any judicial orders, judgments, or decrees.
6.19 BROKERAGE. Except for claims under Sparton's agreement with Slusser
Associates, Inc., there are no claims for brokerage commissions, finder's fees,
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement made by or on behalf of Sparton,
Lako, or the KPI Subsidiaries.
6.20 GOVERNMENTAL LICENSES AND PERMITS. Schedule 6.20 (the "Licenses
Schedule") sets forth permits, licenses, approvals, and other authorizations of
federal, state, and local governments, or other similar rights (collectively,
the "Government Licenses") owned by Lako or the KPI Subsidiaries or used in the
conduct of their respective businesses. Except as indicated on Schedule 6.20,
Lako and each of the KPI Subsidiaries owns or possesses all right, title, and
interest in and to all of the government licenses which are necessary to conduct
its business as presently constituted. No loss or expiration of any
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government license is pending or, to Sparton's knowledge, threatened, other than
expiration in accordance with the terms thereof.
6.21 EMPLOYEES. To Sparton's and Lako's knowledge, no key executive
employee and no group of employees of Lako or either of the KPI Subsidiaries has
any plans to terminate employment. Lako and each of the KPI Subsidiaries has
complied in all material respects with all applicable laws relating to the
employment of personnel and labor, including provisions thereof relating to
wages, hours, equal opportunity, collective bargaining, and the payment of
social security and other taxes.
Lako and each of the KPI Subsidiaries has complied with the requirements of
the Workers Adjustment and Retraining Notification Act (WARN) and all similar
state laws, and the closing of Lako's plant at Lake Odessa, Michigan, will not
result in any obligation to any of the KPI Subsidiaries under WARN or similar
state law.
6.22 EMPLOYEE BENEFIT PLANS.
(a) Schedule 6.22 (the "Employee Benefit Plans Schedule") contains
an accurate and complete list of all Plans, as defined below, maintained by
Lako or each of the KPI Subsidiaries. For purposes of this Agreement, the
term "Plans" shall mean:
(i) employee benefit plans as defined in the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"); and
(ii) fringe benefit plans, policies, programs, and
arrangements, including without limitation stock bonus, deferred
compensation, pension, severance, bonus, vacation, incentive,
and health and welfare plans.
Except as set forth on Schedule 6.22, neither Lako nor either of the KPI
Subsidiaries has any obligation to contribute to any "multiemployer pension
plan," as such term is defined in Section 3(37) of ERISA, or with respect
to any employee benefit plan of the type described in Sections 4063 and
4064 of ERISA or in Section 413(c) of the Code.
(b) Neither Lako nor either of the KPI Subsidiaries contributes to
any Plan which provides health, life insurance, accident, or other
"welfare-
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type" benefits to current or future retirees, their spouses or dependents,
other than in accordance with applicable federal or state continuation
coverage law.
(c) Each Plan and all related trusts, insurance contracts and funds
have been maintained, funded, and administered in compliance in all
respects with all applicable laws and regulations, including but not
limited to ERISA and the Code.
(d) Each Plan that is intended to be qualified under Section 401(a)
of the Code, and each trust (if any) forming a part thereof, has received a
favorable determination letter from the Internal Revenue Service ("IRS") as
to the qualification under the Code of such Plan and the tax-exempt status
of such related trust, and nothing has occurred since the date of such
determination letter that could adversely affect the qualification of such
Plan or the tax-exempt status of such related trust.
(e) With respect to each Plan, Sparton has provided Buyer with true,
complete and correct copies, to the extent applicable, of:
(i) all documents pursuant to which the Plans are maintained,
funded, and administered;
(ii) the June 30, 1995, annual report (Form 5500 series) filed
with the IRS;
(iii)the June 30, 1995, financial statements;
(iv) all governmental rulings, determinations, and opinions (and
pending requests for governmental rulings, determinations, and
opinions); and
(f) None of the KPI Subsidiaries nor any member of the controlled
group of companies (within the meaning of Section 414 of the Code), which
includes the KPI Subsidiaries, has incurred any liability to the PBGC
(other than PBGC premiums) or otherwise under Title IV of ERISA, and no
event exists which would reasonably be expected to result in any such
liability.
6.23 Insurance. Schedule 6.23 attached hereto (the "Insurance Schedule")
sets forth the following information with respect to each insurance policy
insuring the properties, business, or assets of Lako and each of the KPI
Subsidiaries:
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(a) The name of the insurer, the name of the policyholder, and the
name of each covered insured;
(b) The scope, period, and amount of coverage; and
(c) A description of any retroactive premium adjustments or other
loss-sharing arrangements.
6.24 Officers and Directors; Bank Accounts. Schedule 6.24 attached hereto
(the "Officers and Directors Schedule") lists all officers and directors of each
of the KPI Subsidiaries and all of the bank accounts of Lako and the KPI
Subsidiaries (designating each authorized signatory).
6.25 Affiliate Transactions. Except for the sale of the Leased Real
Property by the Smiths to Lako and except as disclosed on Schedule 6.25 attached
hereto (the "Affiliate Transactions Schedule"), no officer or director of
Sparton or Lako or any of the KPI Subsidiaries, or any person related by blood
or marriage to any such person or any entity in which any such person owns any
beneficial interest (collectively, the "insiders"), is a party to any agreement,
contract, commitment, or transaction with Lako or either of the KPI Subsidiaries
or has any interest in any property, real or personal or mixed, tangible or
intangible, used in or pertaining to the business of Lako or any of the KPI
Subsidiaries.
6.26 Compliance with Laws. Lako and each of the KPI Subsidiaries and its
officers, directors, agents, and employees have complied in all material
respects with all applicable laws and regulations of federal, state, and local
governments and all agencies thereof (other than Environmental and Safety
Requirements which are covered by Section 6.12) which affect their business, and
no claims have been filed against any of them alleging a violation of any such
laws or regulations.
6.27 Disclosure. Neither this Agreement, nor any of the schedules,
attachments, or exhibits hereto prepared by Sparton, contain any untrue
statement of a material fact with respect to Lako or the KPI Subsidiaries, or
omit a material fact necessary to make the statement contained herein or
therein, in light of the circumstances in which they were made, misleading.
6.28 Closing Date. All of the representations and warranties contained in
this Article VI and elsewhere in this Agreement and all information delivered to
Buyer in any schedule, attachment or exhibit hereto are true and correct on the
date of this Agreement and will be true and correct on the Closing Date, except
to the extent that Sparton has otherwise advised Buyer in writing prior to the
Closing.
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6.29 Product Warranties. Lako and the KPI Subsidiaries have not made any
warranties with respect to the products manufactured and/or sold by them other
than those warranties expressly made in the literature accompanying such
products, the purchase orders for such products, and warranties implied by law.
6.30 Tooling Invoices. All invoices issued by the KPI Subsidiaries prior
to June 30, 1996, to customers for tooling costs correctly reflect the amount
owed for such tooling.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
As a material inducement to Sparton to enter into this Agreement, Buyer
hereby represents and warrants to Sparton that:
7.1 Organization and Corporate Power. Buyer is a corporation duly
organized, validly existing, and in good standing under the laws of the state of
Delaware, with full corporate power and authority to enter into this Agreement.
7.2 Authorization. The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all requisite corporate action on the part of
Buyer, and no other corporate proceedings on its part are necessary to authorize
the execution, delivery, or performance of this Agreement. This Agreement
constitutes a valid and binding obligation of Buyer, enforceable in accordance
with its terms, except as enforceability hereof may be limited by bankruptcy or
other laws affecting creditor's rights generally and limitations on the
availability of equitable remedies.
7.3 No Violation. Buyer is not subject to or obligated under its articles
of incorporation, its bylaws, any applicable law, or rule or regulation of any
governmental authority, or any agreement or instrument, or any license,
franchise, or permit, or subject to any order, writ, injunction, or decree,
which would be breached or violated by its execution, delivery, or performance
of this Agreement.
7.4 Governmental Authorities and Consents. Except for its filing under
the Hart-Scott-Rodino Act, Buyer is not required to submit any notice, report or
other filing with any governmental authority in connection with the execution or
delivery by it of this Agreement or the consummation of the transactions
contemplated hereby or thereby. No consent, approval, or authorization of any
governmental or regulatory authority or any other party or person is required to
be obtained by Buyer in connection with its execution, delivery, and performance
of this Agreement or the transactions contemplated hereby or thereby.
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7.5 Brokerage. There are no claims for brokerage commissions, finders'
fees, or similar compensation in connection with the transactions contemplated
by this Agreement based on any arrangement or agreement made by or on behalf of
Buyer.
7.6 Litigation. There are no actions, suits, proceedings, orders, or
investigations pending or, to the best of Buyer's knowledge, threatened against
Buyer before any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
which would adversely affect Buyer's performance under this Agreement or the
consummation of the transactions contemplated hereby.
7.7 Buyer's Investment Representations. Buyer represents that it is
acquiring the Common Stock purchased hereunder with the present intention of
holding such securities for investment purposes and that it has no intention of
selling such securities in a public distribution in violation of federal or
state securities laws; provided that nothing contained herein will prevent Buyer
from transferring such securities pursuant to:
(a) Public offerings registered under the Securities Act of 1933, as
amended;
(b) Rule 144 of the Securities and Exchange Commission (or any
similar rule then in force) if such rule is available; or
(c) Any other legally available means of transfer.
7.8 Disclosure. Neither this Agreement, nor any of the schedules,
attachments, or exhibits hereto prepared by Buyer, contain any untrue statement
of a material fact with respect to the Buyer or, omit a material fact necessary
to make the statements contained herein or therein, in light of the
circumstances in which they were made, misleading.
7.9 Closing Date. All of the representations and warranties contained in
this Article VII and elsewhere in this Agreement, and all information delivered
to Sparton in any schedule, attachment or exhibit hereto are true and correct in
all material respects on the date of this Agreement and will be true and correct
in all material respects on the Closing Date, except to the extent that Buyer
has advised Sparton otherwise in writing prior to the Closing.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
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(a) By mutual written consent of Buyer and Sparton; or
(b) By either Buyer or Sparton if the Closing has not occurred on or
prior to December 31, 1996, provided that neither Buyer nor Sparton will be
entitled to terminate this Agreement pursuant to this Section 8.1(b) if
such person's willful breach of this Agreement has prevented satisfaction
of the conditions or the consummation of the transactions contemplated
hereby at or prior to such time.
8.2 Effect of Termination. If this Agreement is terminated as provided
above, this Agreement will forthwith become void and there will be no liability
on the part of any party hereto to any other party hereto, except for the
obligations of the parties hereto in Sections 9.4, 9.5, and 10.1, and except
that nothing herein will relieve any party from any breach of this Agreement
prior to such termination.
ARTICLE IX
ADDITIONAL AGREEMENTS
9.1 Survival. Subject to the limitations set forth in Section 9.3 below,
all representations, warranties, covenants, and agreements set forth in this
Agreement or in any writing delivered in connection with this Agreement will
survive the Closing Date and the consummation of the transactions contemplated
hereby.
9.2 Sparton's Guaranty; Buyer's Indemnification. Schedule 9.2 sets forth
the obligations of any of the KPI Subsidiaries which are guarantied by Sparton
("Guarantied Obligations"). Buyer agrees to indemnify Sparton and hold it
harmless against any loss, liability, damage, or expense (including reasonable
legal fees and costs) which Sparton may suffer, sustain, or become subject to by
reason of any claim, suit, action, or liability brought or asserted against
Sparton for payment of all or any part of the Guarantied Obligations. The
provisions in Section 9.3(d) relating to the defense of the claim by Buyer, as
the Indemnifying Party, and the rights of Sparton, as the Indemnified Party,
shall apply to claims, suits, actions, and liabilities brought or asserted
against Sparton relating to Guarantied Obligations.
9.3 General Indemnification.
(a) Subject to the limitations set forth in (b) below, Sparton agrees
to indemnify Buyer, its officers, directors, and stockholders (the "Buyer
Parties") and hold them harmless against any loss, liability, deficiency,
damage, or expense (including reasonable legal expenses and costs) which
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Buyer Parties may suffer, sustain or become subject to, as a result of (i)
the breach of any representation or warranty made by Sparton in Article VI
of this Agreement, provided that, for purposes of determining whether a
breach of any representation or warranty set forth in Section 6.12 of this
Agreement has occurred, such representation and warranty shall be read
without any exception for disclosed matters, and, in particular, any
reference to the matters set forth on Schedule 6.12 shall be disregarded
and ignored, (ii) the breach of any other representation, warranty,
covenant, or agreement made by Sparton in this Agreement, and (iii) the
Excluded Liabilities.
(b) The indemnification provided for by Sparton in Section 9.3(a)(i)
above is subject to the following limitations:
(i) Sparton will be liable to Buyer Parties only if
Buyer gives Sparton written notice thereof within twelve (12)
months after the Closing Date; except for claims arising from
breaches of the representations and warranties; (A) set forth in
Section 6.12 as to which claims must be made within forty-two
(42) months after the Closing Date; (B) set forth in Sections 6.7,
6.18, and 6.22 as to which claims must be made within twenty-four
(24) months after the Closing Date; (C) set forth in
Section 6.15 as to which claims must be made prior to the
expiration of the applicable statute of limitation with respect
thereto; and (D) set forth in Sections 6.1, 6.2, 6.3, 6.5 and 6.19
as to which claims may be made at any time.
(ii) except for those matters set forth in Sections 6.15
and 6.18, Sparton will not be liable to Buyer Parties for any such
loss, liability, damage, or expense unless the aggregate amount
of all such losses, liabilities, damages, and expenses relating to
all such breaches exceeds $1,000,000 (the "Threshold Loss
Amount") and, in the event that the aggregate amount of all such
losses, liabilities, damages, and expenses exceeds the Threshold
Loss Amount, Sparton shall be liable only for the excess over
the Threshold Loss Amount and, in any event, Sparton's liability
for such losses, liabilities, damages, and expenses shall not
exceed $15 million (except that the limitation on Sparton's
liability to Buyer with respect to losses, liabilities, damages, and
expenses resulting from a breach of Sections 6.1, 6.2, 6.3, 6.5,
and 6.19 shall not exceed the Purchase Price and shall not be
subject to the condition of the Threshold Loss Amount). The
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Threshold Loss Amount shall be increased dollar for dollar, both
as provided in Section 6.13, and, if after the Closing Date, any
liability recorded on the books and records of a KPI Subsidiary
at the Closing Date or included in the Acquired Assets is
satisfied for an amount less than the recorded amount.
(iii) If Sparton becomes liable to Buyer after the
aggregate amount of losses ($1,000,000) set forth in
subparagraph (ii) is exceeded, Sparton nevertheless shall not be
liable for any losses, liabilities, damages, or expenses the Buyer
Parties may suffer, sustain, or become subject to, if such losses,
liabilities, damages, or expenses resulting from a claim with
respect to any particular breach are less than $10,000; provided
that (A) if the losses, liabilities, damages, or expenses related to
such claim equals or exceeds $10,000, Sparton shall be liable for
the entire amount of the losses, liabilities, damages, or expenses
related thereto, and (B) for purposes of this provision, any claim
or series of claims arising out of or relating to the same, similar,
or related facts, circumstances, occurrences, transactions, or
conditions shall constitute one claim with respect to any
particular breach.
(iv) Sparton's agreement to indemnify Buyer against
losses, liabilities, deficiencies, damages, or expenses arising
from customer product liability claims shall be governed by and
limited as provided in Section 9.10.
(c) Buyer agrees to indemnity Sparton and hold it harmless against
any loss, liability, damage, or expense (including reasonable legal
expenses and costs) which Sparton may suffer, sustain, or become subject
to, as the result of a breach of any representation, warranty, covenant, or
agreement by Buyer contained in this Agreement; provided, however, that
Buyer will not be liable to Sparton for any such loss, liability,
deficiency, damage, or expense relating to breaches of Buyer's
representations and warranties contained in Article VII hereof unless the
aggregate amount of such losses, liabilities, deficiencies, damages, or
expenses resulting to Sparton from all breaches or claims exceeds
$1,000,000, and in the event that the aggregate amount of all such losses,
liabilities, damages, and expenses exceeds $1,000,000, Buyer shall be
liable only for the excess over $1,000,000; provided further, that Buyer
will not be liable for any loss, liability, deficiency, damage, or expense
relating to breaches of Buyer's representations and warranties contained in
Article VII
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(except Sections 7.1, 7.2, and 7.3) hereof unless written notice of such
breach is given by Sparton to Buyer within two (2) years of the Closing
Date.
(d) If a party hereto seeks indemnification under this Section 9.3 or
Section 9.10, such party (the "Indemnified Party") shall give written
notice to the other party (the "Indemnifying Party") of the facts and
circumstances giving rise to the claim. If any suit, action, claim,
liability, or obligation shall be brought or asserted by any third party
which, if adversely determined, would entitle the Indemnified Party to
indemnity pursuant to this Section 9.3 or Section 9.10, the Indemnified
Party shall promptly notify the Indemnifying Party of the same in writing,
specifying in detail the basis of such claim and the facts pertaining
thereto and the Indemnifying Party, if it so elects, shall assume and
control the defense thereof (and shall consult with the Indemnified Party
with respect thereto),including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of expense. If the
Indemnifying Party elects to assume and control the defense, the
Indemnified Party shall have the right to employ counsel separate from
counsel employed by the Indemnifying Party in any such action and to
participate in the defense thereof, but the fees and expenses of such
counsel employed by the Indemnified Party shall be at the expense of the
Indemnified party unless the Indemnifying Party has failed to assume the
defense or employ counsel reasonably acceptable to the Indemnified Party.
The Indemnifying Party shall not be liable for any settlement of any such
action or proceeding effected without the written consent of the
Indemnifying Party, provided that, if there shall be a final judgment for
the plaintiff in any such action, the Indemnifying Party agrees to
indemnify and hold harmless the Indemnified Party from and against any loss
or liability by reason of such judgment.
(e) The foregoing indemnification provisions are in addition to, and
not in derogation of, any statutory or common law remedy any party may have
for misrepresentation, breach of warranty, or breach of covenant.
9.4 Investigation and Confidentiality.
(a) Prior to the Closing Date, Buyer may make or cause to be made
such investigation of the business and properties of the KPI Subsidiaries
and the Acquired Assets as it deems necessary or advisable to familiarize
itself therewith. Sparton agrees to permit Buyer, its representatives and
representatives of the financial institutions which are considering
participation in the financing of this transaction to (i) have full access
to the premises, books, and records of Lako and the KPI Subsidiaries at
reasonable hours, (ii)
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visit and inspect any of their properties, and (iii) discuss their affairs,
finances, and accounts with the directors, officers, key employees, key
customers, key suppliers, and independent accountants.
(b) If the transactions contemplated by this Agreement are not
consummated, Buyer will not disclose or use at any time any information and
materials obtained during its investigation, and Buyer and its
representatives will return to Sparton originals of and destroy copies of
all memoranda, notes, plans, records, documentation, and other materials
obtained in connection with the transactions contemplated by this Agreement
no matter where such material is located and no matter what form the
material may be in, which Buyer may then possess or have under its control.
In the event of the breach of any of the provisions of this Section 9.4,
Sparton may apply to any court of law or equity of competent jurisdiction
for specific performance and/or injunctive or other relief (without the
posting of bond or other security) in order to enforce or prevent any
violations of the provisions hereof.
9.5 Expenses. Except as otherwise provided herein, Buyer will pay all of
its, and Sparton will pay all of its, expenses (including fees and expenses of
legal counsel, investment bankers, brokers, or other representatives and
consultants, and appraisal fees and expenses) incurred in connection with the
negotiation of this Agreement, the performance of its obligations hereunder, and
the consummation of the transactions contemplated hereby.
9.6 Noncompete. Sparton and Lako agree that for a period of four (4)
years after the Closing Date, (a) they will not, directly or indirectly, engage
in any business which is the same or substantially similar to the business now
conducted at the Gladwin Plant or by any of the KPI Subsidiaries, provided that
Sparton may purchase up to an aggregate of 5 percent of the outstanding voting
securities of any entity whose securities are listed on a national securities
exchange or traded in the NASDAQ national market system, (b) it will not induce
or attempt to induce any employee at the Gladwin Plant or of the KPI
Subsidiaries to accept employment by Sparton or one of its affiliated
corporations, (c) induce or attempt to induce any customer or supplier of Buyer
as owner of the Acquired Assets or any of the KPI Subsidiaries to cease doing
business with any of them, or otherwise to interfere with the business
relationship between any of the customers and suppliers of the KPI Subsidiaries
or the Gladwin Plant, or (d) disclose to any third party any confidential or
proprietary information about the businesses or operations of the KPI
Subsidiaries.
9.7 Tax Matters.
(a) Tax Claims. Sparton is responsible for payment of all federal
and state income Taxes and state of Michigan SBT taxes owed for all periods
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through June 30, 1996, and shall indemnify Buyer for any such Income Taxes
which are not accrued on the Latest Balance Sheet, and for any income Taxes
with respect to any consolidated Tax Return for any period ending on or
prior to the Closing Date, subject to Buyer's obligation to indemnify
Sparton for certain of such income Taxes and state of Michigan SBT taxes as
set forth in Section 9.7(c). Buyer agrees that Sparton shall have the right
and authority in its own name and in the name of the KPI Subsidiaries both
to defend claims by any taxing authorities for additional Taxes with
respect to such taxable periods, and to pursue claims for refunds of Taxes
paid or payable with respect to such fiscal years. With respect to claims
for refunds, Sparton shall retain all amounts collected in pursuit of such
claims. Sparton shall also have the right to settle claims by taxing
authorities for additional Taxes, and to settle its claims for refunds,
upon such terms and conditions as it shall see fit in its discretion,
provided that, Sparton shall not, without Buyer's consent, agree to any
settlement with respect to any Tax if such settlement could adversely
affect the past, present, or future Tax liability of Buyer, any of its
affiliates or, upon the Closing, any of the KPI Subsidiaries. Sparton shall
be responsible for all costs and expenses incurred in connection with the
defense of or in pursuit of such Tax claims, including legal fees and
expenses, litigation costs, and the cost of filing amended Tax Returns.
Buyer agrees to cause the KPI Subsidiaries, their officers, agents, and
employees to cooperate with and assist Sparton, as reasonably requested, in
Sparton's defense of or pursuit of such Tax claims.
(b) Section 338(h)(10) Elections.
(i) Sparton agrees, if so directed by Buyer, to join
with Buyer in making an election under Code
Section 338(h)(10) with respect to the sale and purchase of any
of the KPI Subsidiaries and to make any analogous elections
under applicable state law provisions (including such state
elections, the "Section 338(h)(10) Elections"). Sparton and
Buyer shall jointly prepare Internal Revenue Service
Form 8023-A, and such other forms and schedules as are
necessary or required to make the Section 338(h)(10) Elections,
and each covenants and agrees with the other that it shall
execute such forms and schedules and shall take all such other
acts as are necessary to make or perfect such Section 338(h)(10)
Elections. Sparton shall pay all Taxes payable by reason of such
Section 338(h)(10) Elections, subject to Buyer's obligation to
reimburse Sparton for any net increase in Taxes, other than
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income Taxes, incurred by Sparton as a result of such Section
338(h)(10) Election.
(ii) With respect to the Acquired Assets and each KPI
Subsidiary for which a Section 338(h)(10) Election is made
pursuant to Section 9.7(a)(i) hereof, Buyer and Sparton shall
allocate the portion of the Purchase Price (including the amount
of liabilities) among the Acquired Assets and the assets of each
KPI Subsidiary as set forth on the Allocation Schedule attached
hereto, and such Allocation Schedule shall be used by the parties
and their affiliates in preparing (A) all Tax Returns, and (B)
Form 8023-A (and such other forms and schedules required to
make the Section 338(h)(10) Elections) for Sparton and the
Buyer. All allocations made pursuant to this Section 9.7(b)(ii)
shall be binding upon the parties, their affiliates, and upon each
of their successors and assigns, and the parties shall report the
transactions contemplated by this Agreement in accordance with
such allocations for all Tax purposes.
(iii) Buyer agrees to indemnify and hold Sparton
harmless from and against any and all Taxes, other than income
Taxes, paid by Sparton or any affiliated entity as a result of the
Section 338(h)(10) Elections or the sale of the Acquired Assets,
to the extent such Taxes would not have been incurred had such
Elections or sale not been made, including, without limitation,
real estate transfer taxes, vehicle transfer taxes, and recapture of
Michigan Single Business Tax capital acquisition deductions,
but excluding taxes paid by Sparton on the gains resulting from
such Elections and from the sale of the Acquired Assets, but
only to the extent of the net excess of such Taxes over the
amount of such Taxes that would have been incurred had such
Elections or sale not been made.
(c) Short Tax Year
(i) Sparton and Buyer acknowledge that Sparton will
prepare and file consolidated Tax Returns for the period July 1,
1996, through the Closing Date and include each of the KPI
Subsidiaries in such Tax Returns and shall report all items with
respect to the KPI Subsidiaries consistent with past practice.
Sparton and Buyer agree that Sparton shall be liable for payment
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of all Taxes to which such Tax Returns relate for the period
covered by such Tax Returns, provided that, Buyer shall be
responsible for, and shall reimburse Sparton within ten (10)
business days after request therefor, for the amount by which
Sparton's liability (excluding the effect of any tax credits or tax
loss carryforwards) for Taxes attributable to the taxable income
of the KPI Subsidiaries for the period July 1, 1996, through the
Closing Date (including income Taxes attributable to the gains
resulting from the transactions contemplated by this Agreement)
exceeds the liability that Sparton would have incurred for
income Taxes attributable to the gains resulting from the
transactions contemplated by this Agreement if such
transactions had been consummated on July 1, 1996.
(ii) Sparton shall prepare all state of Michigan SBT
Tax Returns required to be filed with respect to any of the KPI
Subsidiaries for the period beginning July 1, 1996, and ending
on the Closing Date in accordance with past practice, and shall
submit such Tax Returns to Buyer at least fifteen (15) days prior
to the due date for filing such Tax Returns for Buyer's approval,
which approval shall not be unreasonably withheld. Buyer shall
cooperate as reasonably requested in assisting Sparton in the
preparation of such state of Michigan SBT Tax Returns.
Sparton shall pay all state of Michigan SBT taxes due with
respect to any of the KPI Subsidiaries for the period beginning
on July 1, 1996, and ending on the Closing Date, and Buyer
shall be responsible for, and shall reimburse Sparton within ten
(10) days after request therefor, for the amount of such SBT
taxes to the extent such SBT taxes are not attributable to any
Section 338(h)(10) Elections, provided that, Buyer shall
reimburse Sparton for such SBT taxes to the extent such state of
Michigan SBT taxes are incurred as the result of the recapture
of capital acquisition deductions attributable to any
Section 338(h)(10) Elections.
(d) Taxes of Other Persons. Sparton agrees to, and hereby does,
indemnify and hold harmless Buyer from and against any liability of each
KPI Subsidiary for Taxes of any person other than such KPI Subsidiary (i)
under Treasury Regulations Section 1.1502-6 (or any successor provision or
any similar provision of state, local, or foreign law), (ii) as a
transferee or successor, (iii) by contract, or (iv) otherwise.
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(e) Cooperation on Tax Matters. Buyer, Sparton, and each KPI
Subsidiary shall cooperate fully, as and to the extent reasonably
requested by the other party, in connection with the filing of Tax
Returns pursuant to this Section 9.7 and any audit, litigation, or
other proceeding with respect to Taxes. Such cooperation shall include
the retention and (upon the other party's request) the provision of
records and information which are reasonably relevant to any such audit,
litigation, or other proceeding and making employees available on
a mutually convenient basis to provide additional information and
explanation of any material provided hereunder. Buyer, Sparton, and
the KPI Subsidiaries agree (i) to retain all books and records with
respect to Tax matters and pertinent to the KPI Subsidiaries relating
to any taxable period beginning before the Closing Date until the
expiration of the statute of limitations (and, to the extent notified
by Buyer or Sparton, any extensions thereof) of the respective taxable
periods, and to abide by all record retention agreements entered into
with any taxing authority, and (ii) to give the other party reasonable
written notice prior to transferring, destroying, or discarding any
such books and records and, if the other party so requests, the KPI
Subsidiaries or Sparton, as the case may be, shall allow the other party
to take possession of such books and records. Buyer and Sparton further
agree, upon request, to use their best efforts to obtain any certificate or
other document from any governmental authority or any other person as may
be necessary to mitigate, reduce, or eliminate any Tax that could be
imposed (including, but not limited to, with respect to the transactions
contemplated hereby).
(f) Tax Sharing Agreements. All Tax sharing agreements or similar
agreements with respect to or involving any KPI Subsidiary shall be
terminated as of the Closing Date and, after the Closing Date, no KPI
Subsidiary shall be bound thereby or have any liability thereunder.
9.8 SPARTON'S ACCESS TO RECORDS. After the Closing, Buyer will, and will
cause the KPI Subsidiaries and their respective successors and assigns to,
permit Sparton, its employees, agents, accounting and legal representatives, to
have reasonable access at reasonable times in a manner so as not to interfere
with the normal business operations of the KPI Subsidiaries, to their books and
records for periods prior to the Closing Date as required by Sparton for the
prosecution of the claims referred to in Section 9.7 and for all other proper
purposes.
9.9 SPARTON SHARES IN RETIREMENT TRUSTS. Certain profit sharing
retirement trusts, maintained by Lako and the KPI Subsidiaries for the benefit
of their employees, own shares of common stock of Sparton among the assets of
the plan. Following the Closing,
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Buyer agrees to use its best efforts to cause the trustees of such trusts,
should they decide to sell any of the Sparton common stock, to offer the same
for sale to Sparton at the then current market price.
9.10 PRODUCT WARRANTY AND LIABILITY CLAIMS. This Section 9.10 applies to
products, assemblies, and components of assemblies which are (a) produced by the
Gladwin Plant or by a KPI Subsidiary prior to the Closing Date, and (b) which
either have been designed by the customer or with respect to which the customer
has approved or retained the right to approve the design thereof. Such products,
assemblies, and components, collectively, are referred to in this Section 9.10
as "Products." This Section 9.10 applies notwithstanding any warranty,
representation, covenant, agreement, understanding, or indemnification made by
Sparton in this Agreement or otherwise.
If, after the date of this Agreement, a customer claims that a KPI
Subsidiary has breached a warranty to the customer with respect to a Product or
otherwise is liable to reimburse the customer for damages, losses, or expenses
incurred or to be incurred by the customer in connection with a recall, repair,
or replacement program involving a Product, Sparton's liability to Buyer under
this Agreement shall be limited to and shall not exceed the reasonable cost to
repair or replace such Product, provided, however, that in the event the
customer makes claim for damages, losses, or expenses in excess of the
reasonable cost to repair or replace such Product, Sparton shall either (i)
agree to reimburse Buyer's payment of an amount necessary to settle the claim of
the customer, or (ii) assume defense of and liability for such customer claims,
in which event the "basket" provisions set forth in Section 9.3(b)(ii) shall not
apply to such excess and shall pay all such claims.
If, after the date of this Agreement, a person claims (a "Product Liability
Claim") that a KPI Subsidiary or the Buyer as owner of the Acquired Assets is
liable for injuries or death caused by a Product, Sparton shall be liable with
respect to such claim only to the extent such claim is covered by insurance
maintained by Sparton and Sparton shall pay any deductible payable under such
insurance. Any such product liability in excess of Sparton's insurance coverage+
shall be the responsibility of Buyer.
The provisions of Section 9.3(d) shall apply to Sparton's indemnification
rights and responsibilities under this Section 9.10.
As of the date of this Agreement, neither Sparton, Lako, nor any KPI
Subsidiary has received notice from a customer seeking reimbursement for
damages, losses, or expenses of the kind covered by this Section 9.10.
9.11 CHANGE OF CORPORATE NAME. Promptly following the Closing, Buyer will
cause the charters of each of the KPI Subsidiaries to be amended to change the
corporate
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name of each to a name which does not include "Sparton" or any other name which
is confusingly similar to "Sparton."
9.12 ASSIGNMENT OF KOSTECKI JUDGMENT AND KPI V CLAYTON DEWINDT. Sparton
Engineered Products, Inc.--KPI Group has assigned, or prior to the Closing will
assign, to Sparton a judgment in its favor in the amount of $206,000 entered in
the Michigan Circuit Court for the County of Ottawa, Case No. 91-15782-CB,
entitled Sparton Engineered Products, Inc.--KPI Group v Stanley V. Kostecki, et
al.
Sparton shall have the right and obligation at its expense to conduct in
the name of Sparton Engineered Products, Inc.--KPI Group, as plaintiff, its
pending case against Clayton deWindt et al., defendant. Sparton shall bear all
expenses, including legal fees and expenses, shall have the right to collect and
retain any settlement or judgment in plaintiff's favor obtained in such case,
and shall be liable for any judgment or settlement amount in favor of defendant
in such case.
9.13 ENVIRONMENTAL MATTERS.
(a) In addition to any and all other indemnities Sparton has provided
to Buyer, Sparton shall be responsible for, indemnify, and hold harmless
the Buyer Parties from and against, any loss, liability, damage,
obligation, or expense (including reasonable legal and consultant fees and
costs, and any damages or expenses associated with any investigation,
abatement, remediation, corrective action, personal injury, or natural
resource damage) related to (i) the underground storage tanks located at
the Gladwin Plant, and (ii) any asbestos-containing materials ("ACM") at
the White Cloud facility. Such indemnification shall not be subject to the
limitations set forth in Section 9.3(b) of this Agreement.
(b) To the extent not completed prior to the Closing, Sparton shall,
at Sparton's sole cost and expense, conduct the following actions to remove
the underground storage tanks at the Gladwin Plant through Clayton
Environmental or another nationally Qualified Underground Storage Tank
Consultant (as defined in Michigan Statute Section 324.21542) reasonably
satisfactory to Buyer:
(i) within thirty (30) days after the Closing Date,
submit all necessary notifications to governmental agencies in
order to obtain the required approvals to remove the tanks;
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(ii) within sixty (60) days after receiving all approvals
requested pursuant to subsection (b)(i), remove and properly
dispose of the tanks and sample for the presence of a release
where contamination is most likely to be present;
(iii) promptly conduct such remedial actions and other
actions required by the Michigan Fire Marshal and the Michigan
Department of Environmental Quality ("DEQ") or any other
governmental agency, fill and regrade the areas, and return the
areas around the tanks to their prior condition;
(iv) promptly upon the completion of all field work,
prepare and submit to DEQ a closure report documenting in
reasonable detail the actions taken to address the tanks and
remediate any releases;
(v) within sixty (60) days after the submission of the
closure report, provide Buyer with DEQ confirmation of receipt
of such report and a letter from DEQ or a Qualified
Underground Storage Tank Consultant indicating that no further
action is required in connection with the tanks.
(c) All actions of Sparton required by or relating to subsection
9.13(b) of this Agreement shall be conducted in compliance with all
applicable Environmental and Safety Requirements and in a manner that does
not unreasonably interfere with Buyer's operations at the Gladwin Plant or
the White Cloud facility. All such actions shall be subject to Buyer's
approval, provided that such approval shall not be unreasonably withheld.
Sparton shall, at its expense, promptly restore to its prior condition any
property that is altered or damaged as a result of such actions. Sparton
shall, at its expense, promptly and properly dispose of all soil,
groundwater, decontamination water, samples, waste, ACM, or other material
generated in connection with such actions. Sparton shall keep Buyer
reasonably apprised of material facts and events related to the removal of
the tank or the ACM. In particular, Sparton shall: (i) provide Buyer with
reasonable advance notice regarding any meetings between Sparton and DEQ or
any other governmental agency and allow Buyer to attend, at Buyer's
expense, such meetings; (ii) provide Buyer with copies of letters and
notices it receives from DEQ or any other governmental agency; and (iii)
provide Buyer with copies of any material submittals to DEQ or any other
governmental agency, including reports, analytical data, letters, or other
documents.
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9.14 EXCLUSIVITY. Sparton, on behalf of itself and its affiliated
entities, agrees that neither it nor any of its representatives, directors,
officers, agents, or affiliates will entertain or discuss a possible sale or
other disposition of the Common Stock, the Acquired Assets, or the capital stock
of Lako, or the assets of the KPI Subsidiaries (other than inventory in the
Ordinary Course of Business) or any interest therein with any other party, or
provide any information to any other party in connection therewith.
ARTICLE X
MISCELLANEOUS
10.1 PRESS RELEASES AND ANNOUNCEMENTS. No press releases related to this
Agreement or the transactions contemplated herein, or other announcements to the
employees, customers, or suppliers of Sparton, Lako, or the KPI Subsidiaries
will be issued without the mutual approval of all parties hereto, except any
public disclosure which any party in good faith believes is required by law or
regulation.
10.2 FURTHER TRANSFERS. Sparton and Lako will execute and deliver such
further instruments of conveyance and transfer and take such additional action
as Buyer may reasonably request to effect, consummate, confirm, or evidence the
transfer to Buyer of the Common Stock and the Acquired Assets and any other
transactions contemplated hereby.
10.3 SPECIFIC PERFORMANCE. Sparton acknowledges that, in the event of a
breach by Sparton of this Agreement, money damages may be inadequate and Buyer
may have no adequate remedy at law. Accordingly, Sparton agrees that Buyer shall
have the right, in addition to any other rights and remedies existing in its
favor, to enforce its rights and the obligations of Sparton and Lako, not only
by an action or actions for damages, but also by an action or actions for
specific performance, injunctive, and/or other equitable relief.
10.4 AMENDMENT AND WAIVER. This Agreement may be amended and any
provision of this Agreement may be waived, provided that any such amendment or
waiver will be binding upon a party only if such amendment or waiver is set
forth in a writing executed by Buyer, Lako, and Sparton. No course of dealing
between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend, or discharge any part of this Agreement or
any rights or obligations of any party under or by reason of this Agreement.
10.5 NOTICES. All notices, demands, and other communications given or
delivered under this Agreement will be in writing and will be deemed to have
been given when personally delivered, mailed by first class mail, return receipt
requested, or delivered by express courier service or facsimile transmissions.
Notices, demands, and communications
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to the parties will, unless another address is specified in writing, be sent to
the address indicated below:
To Sparton or Lako: Sparton Corporation
2400 East Ganson Street
Jackson, Michigan 49202
Attention: Chairman
Fax: 517-787-1822
With copies to: Mr. R. Jan Appel
Vice President and General Counsel
Sparton Corporation
2400 East Ganson Street
Jackson, Michigan 49202
Fax: 517-787-1822
and Varnum, Riddering, Schmidt & Howlett LLP
P.O. Box 352
Grand Rapids, Michigan 49501-0352
Attention: Mr. James N. DeBoer
Fax: 616-336-7000
To Buyer: Dura Automotive Systems, Inc.
2791 Research Drive
Rochester Hills, Michigan 48309-3579
Attention: David R. Bovee
Fax: 810-299-7501
With a copy to: Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Jeffrey C. Hammes
Fax: 312-861-2200
and to: Dura Automotive Systems, Inc.
4508 IDS Center
Minneapolis, Minnesota 55402
Attention: Scott D. Rued, Vice President
Fax: 612-332-2021
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10.6 Binding Agreement; Assignment.
(a) This Agreement and all of the provisions hereof will be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests, or obligations hereunder may be assigned by Sparton or
Lako without the prior written consent of Buyer or by Buyer (except as
provided in (b) or (c) below) without the prior written consent of Sparton.
(b) Buyer may (at any time prior to the Closing), at its sole
discretion, assign, in whole or in part, its rights and obligations
pursuant to this Agreement to one or more of its wholly owned subsidiaries;
provided that, in the event of any such assignment, Buyer will guaranty the
obligations of any such assignee under this Agreement (such guaranty to be
in form and substance reasonably satisfactory to Sparton).
(c) Buyer may assign its rights under this Agreement for collateral
security purposes to the lenders providing financing for the transactions
contemplated hereby and all extensions, renewals, replacements,
refinancings, and refundings thereof, in whole or in part.
10.7 Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
10.8 Captions. The captions used in this Agreement are for convenience of
reference only and do not constitute a part of this Agreement and will not be
deemed to limit, characterize, or in any way affect any provision of this
Agreement, and all provisions of this Agreement will be enforced and construed
as if no caption had been used in this Agreement.
10.9 Entire Agreement. This Agreement and the documents referred to
herein contain the entire agreement between the parties and supersede any prior
understandings, agreements, or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any way.
10.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which taken
together will constitute one and the same instrument.
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10.11 Governing Law. All questions concerning the construction, validity,
and interpretation of this Agreement and the Exhibits and Schedules hereto and
the performance of the obligations imposed by the transactions contemplated
hereby shall be governed by and construed in accordance with the domestic laws
of the state of Michigan, except that wherever applicable the Ohio General
Corporation Law shall govern issues relating to Sparton's corporate power and
authority.
10.12 Parties in Interest. Nothing in this Agreement, express or implied,
is intended to confer on any person other than the parties and their respective
successors and assigns any rights or remedies under or by virtue of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SPARTON CORPORATION DURA AUTOMOTIVE SYSTEMS, INC.
By /s/ John J. Smith By /s/ David R. Bovee
----------------------- -------------------------
John J. Smith David R. Bovee
Its Chairman Its Vice President and
Chief Financial Officer
SPARTON ENGINEERED PRODUCTS, INC.,
LAKE ODESSA GROUP
By /s/ John J. Smith
--------------------------------
John J. Smith
Its President
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EXHIBIT A
LIST OF KPI SUBSIDIARIES
Authorized Shares Outstanding Shares of
Name of Common Stock Common Stock
---- --------------- ---------------------
Sparton Engineered Products, Inc.
KPI Group, a Michigan corporation 5,000 1,050
Sparton Engineered Products, Inc.,
KPI Group, an Indiana corporation 1,000 10
<PAGE>
EXHIBIT B
---------
FORM OF OPINION OF SPARTON'S COUNSEL
1. Sparton, Lako, and the KPI Subsidiaries are validly existing and in
good standing under the laws of their respective jurisdictions of incorporation.
2. Lako and the KPI Subsidiaries have the necessary corporate power and
authority to own their respective properties and to conduct their respective
businesses in the manner and in the locations presently owned and conducted.
3. The Stock and Asset Purchase Agreement is a valid and binding
obligation of Sparton and Lako, enforceable in accordance with its terms.
4. The execution and delivery by Sparton and Lako of the Stock and Asset
Purchase Agreement, the Sale of the Common Stock and the Acquired Assets, and
the fulfillment of and the compliance with the respective terms thereof by
Sparton, do not result in a breach of, or default under, or result in any
violation of, or give any third party the right to accelerate any obligation
under, or result in the creation of any lien upon any of the capital stock or
assets of the KPI Subsidiaries, pursuant to (a) the articles of incorporation or
bylaws of Sparton or the KPI Subsidiaries, or (b) any order, judgment, or decree
to which they are subject, and which has been identified to us by them.
The execution and delivery by Sparton and Lako of the Stock and Asset
Purchase Agreement, the sale of the Common Stock and the Acquired Assets, and
the fulfillment of and the compliance with the terms thereof by Sparton do not
violate any provision of statutory law to which Sparton or Lako is subject which
are generally applicable to transactions of the nature contemplated by the Stock
and Asset Purchase Agreement.
5. The Schedule of KPI Subsidiaries attached to this opinion correctly sets
forth the number of shares of each class of the authorized capital stock of each
of the KPI Subsidiaries and the number of outstanding shares of each such class.
All of the outstanding shares of capital stock of each of the KPI Subsidiaries
have been duly authorized, validly issued, and are fully paid and nonassessable.
All outstanding shares are owned by Sparton free and clear of any lien,
mortgage, security interest, charge, or encumbrance.
6. There are no securities issued by the KPI Subsidiaries convertible into
or exchangeable or exercisable for shares of their capital stock. There are no
outstanding options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, any of the capital stock of the KPI
Subsidiaries, or any shares of stock or securities convertible into or
exchangeable or exercisable for any such capital stock. There
<PAGE>
are no obligations (contingent or otherwise) of the KPI Subsidiaries to
repurchase, exchange, or otherwise acquire or retire any of their capital stock
or any shares of stock or securities convertible into or exchangeable or
exercisable for any such capital stock.
7. The certificates and instruments delivered by Sparton to Buyer are
sufficient to convey to Buyer all of Sparton's right, title, and interest in the
outstanding Common Stock of the KPI Subsidiaries. The instruments of conveyance
delivered by Lako to Buyer are sufficient to convey to Buyer all Lako's right,
title, and interest in the Acquired Assets.
8. We confirm to you that there are no actions or proceedings against the
KPI Subsidiaries pending before any court, government agency or arbitrator,
except as disclosed in Schedule 6.18 of the Stock and Asset Purchase Agreement.
9. Except as set forth on Exhibit A attached to this opinion, no
declaration to, filing with, or approval of any government or regulatory
authority is required in connection with the execution of the Stock and Asset
Purchase Agreement by Sparton or Lako or by their consummation of the
transactions contemplated thereby.
-----------------------------
Opinion to cover Michigan law and federal law.
ABA Legal Opinion Accord to apply, except the opinion will address Michigan and
federal securities law with respect to the transaction being exempt from
registration under such laws.
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EXHIBIT C
---------
CERTIFICATE OF SPARTON CORPORATION
Sparton Corporation, an Ohio corporation ("Sparton"), is a party to a Stock
and Asset Purchase Agreement dated as of _______________, 1996, with Dura
Automotive Systems, Inc. ("Buyer") (the "Stock and Asset Purchase Agreement").
This Certificate is being delivered to Buyer to satisfy the conditions to the
Closing set forth in Section 4.1 (i)(i) of the Stock and Asset Purchase
Agreement.
Sparton hereby certifies that the conditions specified in subsections (a)
through (g) of Section 4.1 of the Stock and Asset Purchase Agreement have been
satisfied.
This Certificate is executed on _________________, 1996.
SPARTON CORPORATION
By
------------------------
Its
<PAGE>
EXHIBIT D
---------
FORM OF OPINION OF BUYER'S COUNSEL
1. Buyer is a corporation validly existing and in good standing under the
laws of the state of Delaware.
2. Buyer has all necessary corporate power and authority to enter into
the Stock and Asset Purchase Agreement and perform its obligations thereunder.
3. The Stock and Asset Purchase Agreement has been duly authorized,
executed, and delivered by Buyer, and such agreement is a valid and binding
obligation of Buyer, enforceable in accordance with its terms.
4. To our knowledge, Buyer is not subject to or obligated under its
certificate of incorporation, its bylaws, or any applicable law or rule or
regulation of any governmental authority applicable to transactions similar to
those transactions contemplated by the Stock and Asset Purchase Agreement, or
subject to any order, writ, injunction, or decree which would be breached or
violated by its execution, delivery, or performance of the Stock Purchase
Agreement.
5. To our knowledge, Buyer is not required to submit any notice, report,
or other filing with any governmental authority in connection with the execution
or delivery by it of the Stock and Asset Purchase Agreement or the consummation
of the transactions contemplated thereby, except as set forth on Exhibit A
attached to this opinion. To our knowledge, no consent, approval, or
authorization of any governmental or regulatory authority or any other party or
person is required to be obtained by Buyer in connection with its execution,
delivery, and performance of the Stock and Asset Purchase Agreement or the
transactions contemplated thereby, except as set forth on Exhibit A.
6. To our knowledge, there are no actions, suits, proceedings, orders, or
investigations pending or threatened against Buyer at law or in equity, or
before or by any federal, state, municipal, or other governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
which would adversely affect Buyer's performance under the Stock and Asset
Purchase Agreement or the consummation of the transactions contemplated thereby.
<PAGE>
EXHIBIT E
---------
CERTIFICATE OF BUYER
Dura Automotive Systems, Inc. a Delaware corporation ("Buyer") is a party
to a Stock and Asset Purchase Agreement dated _________, 1996, with Sparton
Corporation ("Sparton") and Sparton Engineered Products, Inc.--Lake Odessa
Group. This Section 4.2(g)(i) of the Stock and Asset Purchase Agreement.
Buyer hereby certifies that the conditions specified in subsections (a)
through (c) of Section 4.2 of the Stock and Asset Purchase Agreement have been
satisfied.
This Certificate is executed on __________, 1996.
DURA AUTOMOTIVE SYSTEMS, INC.
BY
---------------------------
Its
<PAGE>
U.S. $150,000,000
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF DECEMBER 5, 1996
AMONG
DURA OPERATING CORP.
AS THE U.S. BORROWER,
KIMANUS VERMOGENSVERWALTUNG GMBH,
AS THE GERMAN BORROWER
AND
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
AS THE LENDERS,
AND
BANK OF AMERICA NT & SA,
AS AGENT FOR THE LENDERS
AND
BA SECURITIES, INC.,
AS THE ARRANGER
<PAGE>
TABLE OF CONTENTS
<TABLE>
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PAGE
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.............................................. 2
SECTION 1.1. Defined Terms.......................................................... 2
SECTION 1.2. Use of Defined Terms................................................... 19
SECTION 1.3. Cross-References....................................................... 20
SECTION 1.4. Accounting and Financial Determinations................................ 20
ARTICLE II COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES, NOTES AND LETTERS OF CREDIT.. 20
SECTION 2.1. Commitments............................................................ 20
SECTION 2.1.1. U.S. Revolving Loan Commitment.................................. 21
SECTION 2.1.2. German Revolving Commitment..................................... 21
SECTION 2.1.3. Letter of Credit Terms.......................................... 21
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans................. 22
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit..... 22
SECTION 2.2. Reduction of Commitment Amount......................................... 23
SECTION 2.3. Borrowing Procedure and Funding Maintenance............................ 23
SECTION 2.4. Continuation and Conversion Elections.................................. 23
SECTION 2.5. Funding................................................................ 24
SECTION 2.6. Utilization of Revolving Loan Commitments in Offshore Currencies....... 24
SECTION 2.7. Issuance Procedures.................................................... 26
SECTION 2.7.1. Other Lenders' Participation.................................... 26
SECTION 2.7.2. Disbursements................................................... 27
SECTION 2.7.3. Reimbursement................................................... 27
SECTION 2.7.4. Deemed Disbursements............................................ 27
SECTION 2.7.5. Nature of Reimbursement Obligations............................. 28
SECTION 2.8. Notes.................................................................. 29
SECTION 2.9. Recordkeeping.......................................................... 29
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES.................................. 29
SECTION 3.1. Repayments and Prepayments............................................. 29
SECTION 3.2. Interest Provisions.................................................... 30
SECTION 3.2.1. Rates........................................................... 30
SECTION 3.2.2. Default Rates................................................... 31
SECTION 3.2.3. Payment Dates................................................... 31
SECTION 3.3. Fees................................................................... 31
SECTION 3.3.1. Facility Fee.................................................... 31
SECTION 3.3.2. Agent's Fee..................................................... 32
</TABLE>
<PAGE>
SECTION 3.3.3. Letter of Credit Fee.............................. 32
SECTION 3.3.4. Upfront Fees...................................... 32
SECTION 3.3.5. Arrangement Fee................................... 33
ARTICLE IV CERTAIN OFFSHORE RATE AND OTHER PROVISIONS..................... 33
SECTION 4.1. Offshore Rate Lending Unlawful........................... 33
SECTION 4.2. Deposits Unavailable..................................... 33
SECTION 4.3. Increased Offshore Rate Loan Costs, etc.................. 34
SECTION 4.4. Funding Losses........................................... 34
SECTION 4.5. Increased Capital Costs.................................. 35
SECTION 4.6. Taxes.................................................... 35
SECTION 4.7. Payments, Computations, etc.............................. 37
SECTION 4.8. Sharing of Payments...................................... 38
SECTION 4.9. Setoff................................................... 38
SECTION 4.10. Use of Proceeds and Benefits of Credit Extensions....... 39
ARTICLE V CONDITIONS TO CREDIT EXTENSIONS................................. 39
SECTION 5.1. Initial Credit Extensions to U.S. Borrower............... 39
SECTION 5.1.1. Resolutions, etc.................................. 39
SECTION 5.1.2. Delivery of Notes................................. 39
SECTION 5.1.3. Guaranties; Subsidiary Security Agreements........ 39
SECTION 5.1.4. Pledge Agreements................................. 40
SECTION 5.1.5. Security Agreement................................ 40
SECTION 5.1.6. Mortgages, Etc.................................... 40
SECTION 5.1.7. Insurance......................................... 40
SECTION 5.1.8. Consummation of KPI Transactions.................. 40
SECTION 5.1.9. Closing Date Certificate.......................... 40
SECTION 5.1.10. Solvency, etc.................................... 41
SECTION 5.1.11. Environmental Due Diligence...................... 41
SECTION 5.1.12. Opinions of Counsel.............................. 41
SECTION 5.1.13. Closing Fees, Expenses, etc...................... 41
SECTION 5.1.14. Landlord's Agreements............................ 41
SECTION 5.2. Initial Credit Extensions to German Borrower............. 42
SECTION 5.2.1. Counterpart Agreement............................. 42
SECTION 5.2.2. Resolutions, etc.................................. 42
SECTION 5.2.3. Delivery of Notes................................. 42
SECTION 5.2.4. Pledge Agreements................................. 42
SECTION 5.2.5. Insurance......................................... 43
SECTION 5.2.6. Guaranties........................................ 43
SECTION 5.2.7. Consummation of German Acquisition................ 43
SECTION 5.2.8. Closing Date Certificate.......................... 43
SECTION 5.2.9. Solvency, etc..................................... 43
SECTION 5.2.10. Environmental Due Diligence...................... 43
SECTION 5.2.11. Opinions of Counsel.............................. 44
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 5.2.12. Other Conditions................................. 44
SECTION 5.3. All Credit Extensions.................................... 44
SECTION 5.3.1. Compliance with Warranties, No Default etc........ 44
SECTION 5.3.2. Credit Extension Request, etc..................... 44
SECTION 5.3.3. Satisfactory Legal Form........................... 45
SECTION 6.1. Organization, etc........................................ 45
SECTION 6.2. Due Authorization, Non-Contravention, etc................ 46
SECTION 6.3. Government Approval, Regulation, etc..................... 46
SECTION 6.4. Validity, etc............................................ 46
SECTION 6.5. Financial Information.................................... 47
SECTION 6.6. No Material Adverse Change, etc.......................... 47
SECTION 6.7. Subsidiaries............................................. 47
SECTION 6.8. Ownership of Properties.................................. 48
SECTION 6.9. Taxes.................................................... 48
SECTION 6.10. Pension and Welfare Plans............................... 48
SECTION 6.11. Environmental Warranties................................ 49
SECTION 6.12. Regulations G, T, U and X............................... 50
SECTION 6.13. Accuracy of Information................................. 50
ARTICLE VII COVENANTS..................................................... 51
SECTION 7.1. Affirmative Covenants.................................... 51
SECTION 7.1.1. Financial Information, Reports, Notices, etc...... 51
SECTION 7.1.2. Compliance with Laws, etc......................... 53
SECTION 7.1.3. Maintenance of Properties......................... 53
SECTION 7.1.4. Insurance......................................... 53
SECTION 7.1.5. Books and Records................................. 55
SECTION 7.1.6. Environmental Covenant............................ 55
SECTION 7.2. Negative Covenants....................................... 56
SECTION 7.2.1. Business Activities............................... 56
SECTION 7.2.2. Indebtedness...................................... 56
SECTION 7.2.3. Liens............................................. 57
SECTION 7.2.4. Financial Condition............................... 57
SECTION 7.2.5. Investments....................................... 58
SECTION 7.2.6. Restricted Payments, etc.......................... 59
SECTION 7.2.7. Rental Obligations................................ 60
SECTION 7.2.8. Take or Pay Contracts............................. 60
SECTION 7.2.9. Consolidation, Merger, etc........................ 60
SECTION 7.2.10. Asset Dispositions, etc.......................... 60
SECTION 7.2.11. Intentionally Omitted............................ 61
SECTION 7.2.12. Restriction on Fundamental Changes............... 61
SECTION 7.2.13. Fiscal Year...................................... 61
SECTION 7.2.14. Subsidiaries..................................... 61
SECTION 7.2.15. Transactions with Affiliates..................... 61
SECTION 7.2.16. Negative Pledges, Restrictive Agreements, etc.... 62
</TABLE>
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<TABLE>
<CAPTION>
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ARTICLE VIII EVENTS OF DEFAULT.................................................. 62
SECTION 8.1. Listing of Events of Default................................... 62
SECTION 8.1.1. Non-Payment of Obligations.............................. 62
SECTION 8.1.2. Breach of Warranty...................................... 62
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.... 63
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations...... 63
SECTION 8.1.5. Default on Other Indebtedness........................... 63
SECTION 8.1.6. Judgments............................................... 63
SECTION 8.1.7. Pension Plans........................................... 63
SECTION 8.1.8. Change in Control....................................... 64
SECTION 8.1.9. Bankruptcy, Insolvency, etc............................. 64
SECTION 8.1.10. Impairment of Security, etc............................ 64
SECTION 8.1.11. Default in Other Agreements............................ 65
SECTION 8.1.12. Injunction............................................. 65
SECTION 8.2. Action if Bankruptcy........................................... 65
SECTION 8.3. Action if Other Event of Default............................... 65
ARTICLE IX THE AGENT............................................................ 65
SECTION 9.1. Appointment and Authorization.................................. 65
SECTION 9.2. Delegation of Duties........................................... 66
SECTION 9.3. Liability of Agent............................................. 66
SECTION 9.4. Reliance by Agent.............................................. 66
SECTION 9.5. Notice of Default.............................................. 67
SECTION 9.6. Credit Decision................................................ 68
SECTION 9.7. Indemnification................................................ 68
SECTION 9.8. Agent in Individual Capacity................................... 69
SECTION 9.9. Successor Agent................................................ 69
SECTION 9.10. Collateral Matters............................................ 70
ARTICLE X MISCELLANEOUS PROVISIONS.............................................. 71
SECTION 10.1. Waivers, Amendments, etc...................................... 71
SECTION 10.2. Notices....................................................... 72
SECTION 10.3. Payment of Costs and Expenses................................. 72
SECTION 10.4. Indemnification............................................... 73
SECTION 10.5. Survival...................................................... 74
SECTION 10.6. Severability.................................................. 74
SECTION 10.7. Headings...................................................... 74
SECTION 10.8. Execution in Counterparts, Effectiveness, etc................. 74
SECTION 10.9. Governing Law: Entire Agreement............................... 74
SECTION 10.10. Successors and Assigns....................................... 75
SECTION 10.11. Assignments and Participations............................... 75
SECTION 10.12. Other Transactions........................................... 78
SECTION 10.13. Execution on Behalf of Corporation........................... 78
SECTION 10.14. Provisions relating to German Borrower....................... 79
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
SECTION 10.15. Forum Selection and Consent to Jurisdiction........... 79
SECTION 10.16. Waiver of Jury Trial.................................. 80
</TABLE>
<PAGE>
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
THIS AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT, dated as of
December 5, 1996, among DURA OPERATING CORP. (formerly known as Dura Automotive
Systems, Inc.), a Delaware corporation (the "U.S. Borrower"), KIMANUS
VERMOGENSVERWALTUNG GmbH, a limited liability company (the "German Borrower")
the various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), BANK OF AMERICA NT & SA ("BofA"), as agent (the
"Agent") for the Lenders and BA SECURITIES, INC., as the Arranger (the
"Arranger") amends and restates that certain Credit Agreement dated as of August
31, 1994 among the U.S. Borrower, the lenders thereunder, the co-agents
thereunder and Agent (formerly Continental Bank), as amended, modified and
supplemented to the date hereof (the "Original Credit Agreement").
W I T N E S S E T H
WHEREAS, the U.S. Borrower, the Agent, the co-agents thereunder, and
certain lenders were party to the Original Loan Agreement;
WHEREAS, the U.S. Borrower intends to acquire the stock and assets of
certain entities from Sparton Corporation and Lako (as hereinafter defined)
pursuant to the KPI Purchase Agreement (as hereinafter defined);
WHEREAS, the U.S. Borrower has formed a Subsidiary, the German
Borrower, to consummate the German Acquisition (as hereinafter defined);
WHEREAS, to finance the KPI Transaction and the German Acquisition,
the U.S. Borrower has requested that the Original Credit Agreement be amended
and restated to provide for, among other things, an increase in the Revolving
Loan Commitments, the addition of the German Borrower as a Borrower, Loans and
Letters of Credit in currencies other than Dollars and different pricing of the
Loans;
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions set forth herein (including Article V) to amend and restate the
Original Credit Agreement as provided herein; and to make such Loans to the
Borrowers and to issue (or participate in) Letters of Credit for the account of
the Borrowers;
NOW, THEREFORE, the parties hereto agree as follows:
<PAGE>
SECTION 1.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms.
-------------
The following terms when used in this Agreement, including the
preamble and recitals, shall, except where the context otherwise requires, have
the following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). For purposes hereof, "control" means the power to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise. Without limiting the foregoing, (i) a Person
shall be deemed to be "controlled by" any other Person if such other Person
possesses, directly or indirectly, power to vote 5% or more of the equity of
such Person (on a fully diluted basis) having ordinary voting power for the
election of directors, managing general partners or managers of such Person and
(ii) a Person shall be deemed to "control" any other Person if such Person
possesses, directly or indirectly, the power to vote 5% or more of the equity of
such other Person (on a fully diluted basis) having ordinary voting power for
the election of directors, managing general partners or managers of such other
Person.
"Agent" is defined in the Preamble and includes each other Person
appointed as the successor Agent pursuant to Section 9.9.
"Agent-Related Persons" means BofA and any successor agent arising
under Section 9.9, together with Affiliates of BofA or any such successor agent,
and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agreed Alternative Currency" is defined in Section 2.6(e).
"Agreement" means this Amended and Restated Multicurrency Credit
Agreement as amended, supplemented or otherwise modified from time to time.
"Alternate Reference Rate" means, on any date, a fluctuating rate per
annum (rounded upward, if necessary, to the nearest 1/100 of 1%) equal to the
greater of (a) the Reference Rate in effect on such date, and (b) the Federal
Funds Rate in effect on such date plus 1/2 of 1%.
Changes in the rate of interest on any Loans maintained as Reference
Rate Loans will take effect simultaneously with each change in the Alternate
Reference Rate. The Agent will give prompt notice to the Borrowers and the
Lenders of changes in the Alternate Reference Rate.
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<PAGE>
"Applicable Currency" means, as to any particular payment or Loan,
Dollars or if such payment or Loan is denominated or payable in a currency other
than Dollars, then the Offshore Currency in which it is denominated or is
payable.
"Applicable Margin" means, at any time, with respect to the unpaid
principal amount of each Offshore Rate Loan, the applicable percentage set forth
below in the column entitled "Applicable Margin for Offshore Rate Loans"
opposite the Leverage Ratio in effect at such time.
<TABLE>
<CAPTION>
Leverage Ratio Applicable Margin For Offshore Rate Loans
<S> <C>
Less than 0.40: 1.0 0.30%
Equal to or greater than 0.40: 1.0 but 0.40%
less than 0.50: 1.0
Equal to or greater than 0.50: 1.0 0.50%
</TABLE>
The initial Applicable Margin for Offshore Rate Loans shall be 0.50%,
which shall remain in effect until the delivery of a Compliance Certificate with
respect to the Fourth Fiscal Quarter 1996. Upon the delivery of such Compliance
Certificate, and thereafter, the Applicable Margin shall be based on the
Leverage Ratio in effect as set forth in the Compliance Certificate most
recently delivered by the U.S. Borrower to the Agent. Changes in the Applicable
Margin resulting from a change in the Leverage Ratio shall become effective upon
delivery by the U.S. Borrower to the Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the U.S. Borrower shall fail to
deliver a Compliance Certificate within 45 days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1, the Applicable
Margin from and including the 46th day after the end of such Fiscal Quarter to
but not including the date the U.S. Borrower delivers to the Agent a Compliance
Certificate shall conclusively be presumed to equal the highest Applicable
Margin.
"Arranger" is defined in the preamble.
"Asset Disposition" means the disposition whether by sale, lease,
transfer, loss, damage, destruction, condemnation or otherwise of any of the
assets of either Borrower or any of its respective Subsidiaries other than
dispositions permitted under Section 7.2.10.
"Assignment and Acceptance Agreement" is defined in clause (a)(ii) of
Section 10.11.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel; provided, that with respect
to any particular matter related to the negotiation and documentation of the
transaction contemplated by this Agreement or any amendment or
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<PAGE>
modification hereof, Attorney Costs will be limited to either the fees and
disbursements of any external counsel or the fees and disbursements of internal
counsel.
"Authorized Officer" means, with respect to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agent
and the Lenders pursuant to Section 5.1.1.
"BofA" means Bank of America National Trust and Savings Association, a
national banking association.
"BAI" means Bank of America Illinois, an Illinois banking corporation.
"Banking Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in Chicago, Illinois, San Francisco, California or New
York, New York are authorized or required by law to close and (i) with respect
to disbursements and payments in Dollars with respect to Offshore Rate Loans, a
day on which dealings are carried on in the applicable offshore Dollar interbank
market, (ii) with respect to any disbursements and payments in any Offshore
Currency Loan, a day on which dealings in the relevant Offshore Currency are
carried on in the applicable offshore foreign exchange interbank market in which
disbursement of or payment in such Offshore Currency will be made or received
hereunder and (iii) with respect to any calculations pertaining to any Offshore
Currency Loan, a day on which commercial banks are open for foreign exchange
business in London, England.
"Borrowers" shall mean the U.S. Borrower and, upon execution of the
Counterpart Agreement referred to in Section 5.2.1 and satisfaction of the other
conditions set forth in Section 5.2, the German Borrower, collectively, and
"Borrower" shall mean either the U.S. Borrower or the German Borrower, as
approprate.
"Borrowing" means the Loans of the same type and, in the case of
Offshore Rate Loans, having the same Interest Period, made by all Lenders on the
same Banking Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly
completed and executed by an Authorized Officer of a Borrower, substantially in
the form of Exhibit B-1 hereto.
"Capitalization" means, at any time, the sum of the Debt of Dura and
its Subsidiaries at such time on a consolidated basis, plus the total
shareholder's equity of Dura and its Subsidiaries on a consolidated basis,
determined in accordance with GAAP.
"Capitalized Lease Liabilities" means all monetary obligations of any
Person and its Subsidiaries under any leasing or similar arrangement which, in
accordance with GAAP, would be classified as capitalized leases, and, for
purposes of this Agreement and each other Loan Document, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
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<PAGE>
"Cash Equivalent Investment" means (a) marketable direct obligations
issued or unconditionally guarantied by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof; (b) commercial paper maturing no more than 270 days from the date
issued and having a rating of at least A-1 from Standard & Poor's Corporation or
at least P-1 from Moody's Investors Services, Inc.; (c) certificates of deposit
or bankers' acceptances maturing within one year from the date of issuance
thereof issued by, or overnight reverse repurchase agreements from, any Lender
or any other commercial bank organized under the laws of the United States of
America or any state thereof or the District of Columbia having combined capital
and surplus of not less than $500,000,000 and not subject to setoff rights in
favor of such bank; and (d) investments with foreign governmental entities which
are members of the OECD (as hereafter defined) or foreign banks organized under
the laws of countries which are members of the OECD, similar to the investments
set forth in clause (a), (b) and (c) above, so long as such foreign bank has
combined capital and surplus of a Dollar Equivalent of no less than
$500,000,000.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means any of the following events:
(a) The failure of Onex U.S. Investments, Inc. and J2R Corporation and
its stockholders to own, directly, at least 15% of the issued and outstanding
shares of capital stock of Dura, on a fully diluted basis, or the failure of
Onex U.S. Investments, Inc. and J2R Corporation to be able to elect a majority
of the members of the board of directors of Dura (either directly or through
proxy), or the failure of J2R Corporation and its stockholders to own, directly,
at least 2% of the issued and outstanding shares of capital stock of Dura, on a
fully diluted basis;
(b) The failure of Dura at any time to own, directly and free and
clear of all Liens, 100% of the issued and outstanding shares of capital stock
of MC, on a fully diluted basis (provided, that the merger of MC into Dura or
the U.S. Borrower shall not constitute a Change in Control);
(c) The failure of MC (or, upon the merger of MC into Dura or the
Borrower, Dura) at any time to own, directly and free and clear of all Liens
(other than the Liens of the Agent), 100% of the issued and outstanding shares
of capital stock of the U.S. Borrower, on a fully diluted basis;
(d) The failure of Sankey A. Johnson or his family members (or any
trust arrangement established for estate planning purposes for the benefit of
such family members), or Scott Rued or his family members (or any trust
arrangement established for estate planning purposes for the benefit of such
family members), in the aggregate, at any time to own, directly, at
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<PAGE>
least 51% of the issued and outstanding shares of capital stock of J2R
Corporation, on a fully diluted basis;
(e) The failure of the U.S. Borrower to own 100% of the equity
interests in KPI Michigan; or
(f) the failure of the U.S. Borrower to own 100% of the equity
interests in the German Borrower.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment Termination Event" means (a) the occurrence of any Default
described in clauses (a) through (d) of Section 8.1.9; or (b) the occurrence and
continuance of any other Event of Default and either (i) the declaration of the
Loans to be due and payable pursuant to Section 8.3, or (ii) in the absence of
such declaration, the giving of notice by the Agent, acting at the direction of
the Required Lenders, to the Borrowers that the Revolving Loan Commitments have
been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by the chief financial Authorized Officer of the U.S. Borrower,
substantially in the form of Exhibit C hereto.
"Computation Date" has the meaning specified in Section 2.6.(a).
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise is similarly contractually
contingently liable upon any indebtedness, obligation or any other liability of
any other Person (other than by endorsements of instruments in the course of
collection), including any agreement, undertaking or arrangement to (a) invest
in, support or supply funds to any other Person, (b) assure any creditor of any
other Person against loss, or (c) guaranty the payment of dividends or other
distributions upon the shares of any other Person. The amount of any Contingent
Liability shall be deemed to be the maximum amount of the liability guaranteed
thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion duly completed and executed by an Authorized Officer of a Borrower,
substantially in the form of Exhibit D hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the U.S.
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001(b)(1) of ERISA.
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<PAGE>
"Counterpart Agreement" means the Counterpart Agreement to be executed
and delivered by the German Borrower pursuant to Section 5.2.1, in form and
substance reasonably satisfactory to Agent.
"Credit Extension" means, as the context may require, (a) the making
of a Loan by a Lender; or (b) the issuance of any Letter of Credit by an Issuer.
"Debt" of any Person means, without duplication, (a) all obligations
of such Person for borrowed money and all obligations of such Person evidenced
by bonds, debentures, notes or other similar instruments; (b) all obligations of
such Person as lessee under leases which have been or should be, in accordance
with GAAP, recorded as Capitalized Lease Liabilities; (c) whether or not so
included as liabilities in accordance with GAAP, all obligations of such Person
to pay the deferred purchase price of property or services if such obligations
are secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title retention
agreements), whether or not such obligations shall have been assumed by such
Person or is limited in recourse; and (d) all Contingent Liabilities of such
Person in respect of any of the foregoing. For all purposes of this Agreement,
the Debt of any Person shall include the Debt of any partnership or joint
venture in which such Person is a general partner or a joint venturer (except to
the extent that the express terms of the relevant partnership or joint venture
agreement and applicable law provide that liabilities incurred in connection
therewith are without recourse to such Person).
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Deutschemarks" and the symbol "DM" mean lawful money of the Federal
Republic of Germany.
"Disbursement" means any payment made under a Letter of Credit by the
Issuer to the beneficiary (or its assignee or transferee) of such Letter of
Credit.
"Disbursement Date" is defined in Section 2.7.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I.
"Dollar" and the sign "$" mean lawful money of the United States.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as to any
amount denominated in an Offshore Currency, the equivalent amount in Dollars as
determined by the Agent at such time on the basis of the Spot Rate for the
purchase of Dollars with such Offshore Currency on the most recent Computation
Date provided for in Section 2.6.(a).
"Domestic Office" means, with respect to any Lender, the office of
such Lender designated as such below its signature hereto or designated in an
Assignment and Acceptance Agreement, or such other office of a Lender within the
United States as may be designated from time to time by notice from such Lender
to each other Person party hereto.
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"Domestic Subsidiary" means each Subsidiary of the U.S. Borrower that
is incorporated or organized in the United States or any state thereof.
"Dura" means Dura Automotive Systems, Inc., a Delaware corporation.
"Dura Guaranty" means the guaranty executed and delivered by Dura
pursuant to Section 5.13, substantially in the form of Exhibit E-2, as amended,
supplemented or otherwise modified from time to time.
"Dura Pledge Agreement" means the pledge agreement executed and
delivered by Dura pursuant to Section 5.1.4, substantially in the form of
Exhibit F-4, as amended, supplemented or otherwise modified from time to time.
"EBITA" means, for any period, without duplication, the sum of (a)
Net Income for such period; (b) the amount of income taxes deducted in
determining Net Income for such period; (c) the amount of Interest Expense
deducted in determining Net Income for such period; and (d) the amount of
amortization deducted in determining Net Income for such period; provided, that
the amount of any tax benefits included in determining Net Income for such
period shall be deducted from EBITA for such period.
"Effective Date" means the date this Agreement becomes effective with
respect to each Borrower pursuant to Section 10.8.
"Eligible Assignee" means (i) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the Organization of Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States, and (iii) a Person that is primarily engaged in the business of
commercial banking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of
a Person of which a Lender is a Subsidiary, or (C) a Person of which a Lender is
a Subsidiary.
"Environmental Laws" means CERCLA, the Resource Conservation and
Recovery Act of 1987, the Toxic Substances Control Act and all federal, state,
local and applicable foreign statutes, laws, ordinances, codes, rules and
regulations (including consent decrees and administrative orders), relating to
the regulation, conservation and protection of the environment and effects
thereof on public health and safety, including the health and safety of
employees.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Eurocurrency Reserve Percentage" means for any day for any Interest
Period the maximum reserve percentage (expressed as a decimal, rounded upward to
the nearest 1/100th of 1%) in effect on such day (whether or not applicable to
any Lender) under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" under Regulation D
of the Federal Reserve Board) having a term comparable to such Interest Period.
"Event of Default" is defined in Section 8.1.
"Federal Funds Rate" means, for any day, the rate per annum set forth
in the weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day (or, if such day is not a Banking Day, for
the Banking Day preceding such day) opposite the caption "Federal Funds
(Effective)". If on any day upon which the Federal Funds Rate is to be
determined the rate for such day (or, if such day is not a Banking Day, for the
Banking Day preceding such day) is not yet published in H.15(519), the rate for
such day, for purposes of such determination, will be the rate set forth in the
daily statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor, the "Composite
3:30 p.m. Quotation") for such day (or, if such day is not a Banking Day, for
the Banking Day preceding such day) under the caption "Federal Funds Effective
Rate". If on any day upon which the Federal Funds Rate is to be determined the
rate for such day (or, if such day is not a Banking Day, for the Banking Day
preceding such day) is not yet published in either H.15(519) or the Composite
3:30 p.m. Quotations, the rate for such day, for purposes of such determination,
will be the arithmetic mean as determined by the Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York
time) on that day (or, if such day is not a Banking Day, on the Banking Day
preceding such day) by each of three (3) leading brokers of recognized standing
of Federal funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any entity succeeding to any of its principal functions.
"Fee Letter" means that certain confidential letter, dated as of
November 13, 1996, to the U.S. Borrower from the Agent and the Arranger
regarding certain fees to be paid in connection with this Agreement.
"Fiscal Quarter" means any of the four consecutive 13 week periods of
a Fiscal Year, the first of which periods commences on the first day of such
Fiscal Year and the last of which periods ends on the last day of such Fiscal
Year; provided, that with respect to a Fiscal Year ending on the Sunday nearest
December 31 of a calendar year consisting of 366 days, the first Fiscal Quarter
of such Fiscal Year shall be a 14 week period; references to the "First,"
"Second," Third" or "Fourth" Fiscal Quarter followed by a number corresponding
to any calendar year (e.g., the "Third Fiscal Quarter 1996") refers to the
first, second, third or fourth Fiscal Quarter, as the case may be, of the Fiscal
Year ending on the Sunday nearest December 31 occurring during such calendar
year.
"Fiscal Year" means any period of 52 consecutive weeks ending on the
Sunday nearest December 31; provided, that with respect to a Fiscal Year
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ending on the Sunday nearest December 31 of a calendar year consisting of 366
days, the first Fiscal Quarter of such Fiscal Year shall be 14 week period;
references to the "First," "Second," Third" or Fourth" Fiscal Quarter followed
by a number corresponding to any calendar year (e.g., the "Third Fiscal Quarter
1996") refers to the first, second, third or fourth Fiscal Quarter, as the case
may be, of the Fiscal Year ending on the Sunday nearest December 31 occurring
during such calendar year.
"Fiscal Year" means any period of 52 consecutive weeks ending on the
Sunday nearest December 31, provided, that with respect to a Fiscal Year ending
on the Sunday nearest December 31 of a calendar year consisting of 366 days,
Fiscal Year means the period of 53 consecutive weeks ending on the Sunday
nearest December 31; references to a Fiscal Year with a number corresponding to
any calendar year (e.g., the "1996 Fiscal Year") refer to the Fiscal Year ending
on the Sunday nearest December 31 occurring during such calendar Year.
"FX Trading Office" means the Foreign Exchange Trading Center,
Chicago, Illinois, of BofA, or such other of BofA's offices which engage in
trading in foreign currency as BofA may designate from time to time.
"GAAP" is defined in Section 1.4.
"German Acquisition" means the acquisition by the German Borrower of
the shares and partnership interests in Klaus X. and Piet J. Vorbruggen GmbH.
Vofa Production Centers Vorbruggen GmbH & Co. KG, Vofa Seilzug Beteiligungs
GmbH. Vofa Seilzug GmbH & Co. Vertriebs - KG and Vofa S. A.
"German Borrower" means Kimanus Vermogensverwaltung GmbH.
"German Letter of Credit Outstandings" means on any date, an amount
equal to the sum of (a) the then aggregate amount which is undrawn and available
under all issued and outstanding German Letters of Credit; and (b) the then
aggregate amount of all unpaid and outstanding Reimbursement Obligations with
respect to German Letters of Credit.
"German Letters of Credit" is defined in Section 2.1.2.
delivered by the German Borrower pursuant to Section 5.2.4 , in form and
substance reasonably satisfactory to Agent, as amended, supplemented or modified
from time to time.
"German Revolving Loan Commitment" is defined in Section 2.1.2.
"German Revolving Loan Commitment Amount" means on any day,
$30,000,000.
"German Revolving Loans" is defined in Section 2.1.2.
"Guaranties" mean the Subsidiary Guaranties and the Dura Guaranty and
the MC Guaranty.
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"Hazardous Material" means (a) any "hazardous substance", as defined
by CERCLA; (b) any "hazardous waste", as defined by the Resource Conservation
and Recovery Act, as amended; (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance (including any petroleum
product) within the meaning of any Environmental Laws; (d) any radioactive
material, including any source, special nuclear or by-product material as
defined at 42 U.S.C. (S)2011 et seq., as amended or hereafter amended; and (e)
asbestos in any form or condition which is or could become friable.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Impermissible Qualification" means, with respect to the opinion or
certification of any independent public accountant as to any financial statement
of Dura, any qualification or exception to such opinion or certification (a)
which is of a "going concern" or similar nature; (b) which relates to the
limited scope of examination of matters materially relevant to such financial
statement; or (c) which relates to the treatment or classification of any item
in such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause the
Borrowers to be in default of any of its obligations under Section 7.2.4.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (b) all
obligations, contingent or otherwise, relative to the face amount of all letters
of credit, whether or not drawn, and banker's acceptances issued for the account
of such Person; (c) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities; (d) net liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of property or
services if such obligations are secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such obligations shall have
been assumed by such Person or is limited in recourse; and (f) all Contingent
Liabilities of such Person in respect of any of the foregoing. For all purposes
of this Agreement, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture in which such Person is a general partner or
a joint venturer (except to the extent that the express terms of the relevant
partnership or joint venture agreement and applicable law provide that
liabilities incurred in connection therewith are without recourse to such
Person).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
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"Interest Coverage Ratio" means, for any period, the ratio of (a)
EBITA for such period; to (b) Interest Expense for such period.
"Interest Expense" means for any period, the aggregate consolidated
interest expense, net of interest income, of Dura and its Subsidiaries for such
period, on a consolidated basis, as determined in accordance with GAAP,
including, without duplication, (i) fees paid or owed pursuant to Sections 3.3.1
and 3.3.2 for such period, (ii) amounts paid (net of amounts received) under
Hedging Obligations for such period, (iii) the portion of any payments made in
respect of Capitalized Lease Liabilities of Dura and its Subsidiaries allocable
to interest expense for such period, and (iv) letter of credit fees paid or owed
pursuant to Section 3.3.3 for such period.
"Interest Period" means with respect to any Offshore Rate Loan, the
period commencing on the Banking Day the Loan is disbursed or continued or on
the Conversion Date on which a Loan is converted to an Offshore Rate Loan and
ending on (but excluding) the date one, two, three or six months thereafter, as
selected by a Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation;
provided, that:
(i) if any Interest Period pertaining to an Offshore Rate Loan
would otherwise end on a day which is not a Banking Day, that Interest
Period shall be extended to the next succeeding Banking Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end
on the immediately preceding Banking Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that begins on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period shall end
on the last Banking Day of the calendar month at the end of such
Interest Period; and
(iii) no Interest Period for any Revolving Loan shall extend
beyond December 31, 2001.
"Investment" means, with respect to any Person, (a) any loan, advance
or deposit made by such Person to any other Person (excluding commission,
travel, petty cash and similar advances to officers and employees made in the
ordinary course of business); (b) any Contingent Liability of such Person
incurred in connection with loans, advances or deposits described in clause (a);
and (c) any ownership or similar interest held by such Person in any other
Person. The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (without
adjustment by reason of the financial condition of such other Person) and, if
made by the transfer or exchange of property other than cash, the amount of any
such Investment shall be the fair market value of such property at the time of
such transfer or exchange.
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"Issuance Request" means an issuance request duly completed and
executed by the chief executive, accounting or financial Authorized Officer of a
Borrower, substantially in the form of Exhibit B-2 hereto.
"Issuer" means BAI, or any Affiliate of BAI, in its capacity as issuer
of the Letters of Credit.
"KPI Indiana" means Sparton Engineered Products, Inc., KPI Group, an
Indiana corporation.
"KPI Michigan" means Sparton Engineered Products, Inc., KPI Group, a
Michigan corporation, as successor corporation of the merger of KPI Indiana with
and into KPI Michigan, and whose name is to be changed to Dura Automotive
Systems, Inc., Shifter Operations immediately following the merger.
"KPI Purchase Agreement" means that certain Stock and Asset Purchase
Agreement among Sparton Corporation, Lako, and Dura dated October 3, 1996, as
amended, modified and supplemented in accordance with the terms hereof and
thereof to the date hereof.
"KPI Transaction" means the acquisition by U.S. Borrower of the stock
of KPI Michigan and KPI Indiana, the merger of KPI Indiana and KPI Michigan with
KPI Michigan being the surviving entity and the acquisition by KPI Michigan of
certain assets and liabilities of Lako.
"Lako" means Sparton Engineered Products, Inc., Lake Odessa Group, a
Michigan corporation.
"Lenders" is defined in the preamble, and shall include the Issuer and
any financial institution that becomes a Lender pursuant to the terms of Section
10.11.
"Letter of Credit Outstandings" means on any date, an amount equal to
the sum of the U.S. Letter of Credit Outstandings and the German Letter of
Credit Outstandings.
"Letters of Credit" means the U.S. Letters of Credit and the German
Letters of Credit.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of (a) the aggregate principal amount of Debt of Dura and its Subsidiaries
on a consolidated basis outstanding on the last day of such Fiscal Quarter; to
(b) the total Capitalization of Dura and its Subsidiaries on a consolidated
basis on such date.
"LIBOR" means (i) with respect to Offshore Rate Loans denominated in
Dollars, the rate of interest per annum determined by the Agent to be the rate
of interest per annum (rounded upward to the nearest 1/16th of 1%) notified to
the Agent by the Reference Bank as the rate of interest at which Dollar deposits
and in the approximate amount of the Loan to be made or continued as, or
converted into, an Offshore Rate Loan and having a maturity comparable to such
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Interest Period would be offered by BofA's Grand Cayman Branch, Grand Cayman
B.W.I. (or such other office as may be designated by BofA) to major banks in the
offshore interbank market upon request of such banks at approximately 11:00 a.m.
(Chicago time) on the second Banking Day prior to the commencement of such
Interest Period, and (ii) with respect to Offshore Rate Loans denominated in a
currency other than Dollars, the rate of interest per annum determined by the
Agent to be the rate of interest per annum (rounded upward to the nearest 1/16th
of 1%) notified to the Agent by the Reference Bank as the rate of interest at
which deposits in the relevant currency and in the approximate amount of the
amount of the Loan to be made or continued as, or converted into, an Offshore
Rate Loan and having a maturity comparable to such Interest Period would be
offered by the Reference Bank to major banks in the London interbank market at
their request at or about 11:00 a.m. (London time) on the second Banking Day
prior to the commencement of such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" means a Revolving Loan of any type.
"Loan Documents" means this Agreement, the Notes, the Pledge
Agreement, the Dura Pledge Agreement, the MC Pledge Agreement, the Guaranties,
the Fee Letter, the Mortgages, the Security Agreement, the Subsidiary Security
Agreements and all other instruments, documents and agreements executed by or on
behalf of any Obligor in connection with the Loans and other financing
transactions relating to this Agreement, all as amended, supplemented or
modified from time to time.
"Material Adverse Effect" means (a) a material adverse effect upon the
business, operations, properties, assets or condition (financial or otherwise)
of Dura and its Subsidiaries taken as a whole or (b) the material impairment of
the ability of any Obligor to perform its obligations under any Loan Document to
which it is a party or of the Agent or any Lender to enforce or collect any of
the Obligations.
"MC" means MC Holding Corp., a Delaware corporation.
"MC Guaranty" means the Amended and Restated Guaranty executed and
delivered by MC pursuant to Section 5.1.3, substantially in the form of Exhibit
E-1, as amended, supplemented or otherwise modified from time to time.
"MC Pledge Agreement Reaffirmation" means the pledge agreement
reaffirmation executed and delivered by MC pursuant to Section 5.1.4,
substantially in the form of Exhibit F-1, as amended, supplemented or otherwise
modified from time to time.
"Mortgage" means each of the mortgages, deeds of trust, leasehold
mortgages, leasehold deeds of trust, collateral assignment of leases or other
real estate security documents
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executed and delivered pursuant to Section 5.1.6, as each may be amended,
supplemented or otherwise modified from time to time.
"Net Income" means, for any period, the aggregate of all amounts
(including all amounts in respect of any extraordinary gain or loss) which, in
accordance with GAAP, would be included as net income on the consolidated
statements of income of Dura and its Subsidiaries for such period.
"Net Worth" means, at any time, the sum of all amounts which, in
accordance with GAAP would be included under shareholders' equity of Dura plus
(to the extent not included in shareholders' equity) preferred stock on the
consolidated balance sheet of Dura at such time.
"Note" means a Revolving Note.
"Notice of Conversion/Continuation" means a notice given by a Borrower
to Agent pursuant to Section 2.4, in substantially the form of Exhibit D.
"Obligations" means all obligations, liabilities and indebtedness of
every nature of a Borrower from time to time owed to the Agent or any Lender
under the Loan Documents including the principal amount of all debts, claims and
indebtedness, accrued and unpaid interest and all Hedging Obligations, fees,
costs and expenses, whether primary, secondary, direct, contingent, fixed or
otherwise, heretofore, now and/or from time to time hereafter owing, due or
payable whether before or after the filing of a proceeding under the Bankruptcy
Code by or against such Borrower.
"Obligor" means each Borrower and any other Person (other than the
Agent, the Arranger or any Lender) obligated under any Loan Document.
"Offshore Currency" means, at any time, any Deutschemarks and any
Agreed Alternative Currency.
"Offshore Currency Loan" means any Offshore Rate Loan denominated in
an Offshore Currency.
"Offshore Currency Loan Sublimit" means, as to all Offshore Currencies
in the aggregate, $50,000,000.
"Offshore Lending Office" means, with respect to each Lender, the
office of such Lender designated as such in the signature pages hereto or
designated in an Assignment and Acceptance Agreement, or such other office of
such Lender as such Lender may from time to time specify to the Borrowers and
the Agent.
"Offshore Rate" means, for each Interest Period in respect of Offshore
Rate Loans comprising part of the same Borrowing, an interest rate per annum
(rounded upward to the nearest 1/16th of 1%) determined pursuant to the
following formula:
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Offshore Rate = LIBOR
--------------------------------------
1.00 - Eurocurrency Reserve Percentage
The Offshore Rate shall be adjusted automatically as of the effective
date of any change in the Eurocurrency Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Organic Document" means with respect to any Obligor, its certificate
of incorporation, its by-laws or other organizational document and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of its authorized shares of capital stock.
"Overnight Rate" means, for any day, the rate of interest per annum at
which overnight deposits in the Applicable Currency in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by BofA's London branch to major banks in the London or
other applicable Offshore interbank market.
"Participant" is defined in Section 10.11(d).
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
U.S. Borrower or any corporation, trade or business that is, along with the U.S.
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, with respect to any Lender, the percentage set
forth opposite its signature hereto, as such percentage may be adjusted from
time to time pursuant to an Assignment and Acceptance Agreement.
"Person" means any natural person, corporation, partnership, limited
liability company, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Quarterly Payment Date" means the last day of each March, June,
September, and December.
"Reference Bank" shall mean BofA.
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"Reference Rate" means, at any time, the rate of interest in effect
for such day as publicly announced from time to time by BofA in San Francisco,
California as its "reference rate"; such rate set by BofA is based upon various
factors including BofA's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in the
Reference Rate shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Reference Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Reference Rate.
"Reimbursement Obligation" is defined in Section 2.7.3.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means, at any time, Lenders holding at least 60% of
the sum of then aggregate outstanding principal amount of the Revolving Loan
Commitments (or, if the Revolving Loan Commitments have been terminated, the
aggregate outstanding principal amount of the Revolving Loans and Letter of
Credit Outstandings).
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of a
governmental authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Revolving Loans" means the U.S. Revolving Loans and the German
Revolving Loans and "Revolving Loan" means, as the context may require, either a
U.S. Revolving Loan or a German Revolving Loan.
"Revolving Loan Commitment" means, with respect to any Lender, such
Lender's obligation to make Revolving Loans and participate in Letters of Credit
pursuant to Sections 2.1.1 and 2.1.2.
"Revolving Loan Commitment Amount" means, (i) $150,000,000 from the
date hereof through December 31, 1999, and (ii) $125,000,000 thereafter;
provided that in the event that the conditions set forth in Section 5.2 hereof
are not satisfied on or before the 90th day following the date hereof, such
amount shall be $120,000,000 at all times thereafter. In each case, such amount
shall be adjusted in the event that it is permanently reduced from time to time
pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (a)
December 31, 2001; (b) the date on which the Revolving Loan Commitment Amount is
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terminated in full or reduced to zero pursuant to Section 2.2; and (c) the date
on which any Commitment Termination Event occurs.
"Revolving Note" means a promissory note of a Borrower payable to a
Lender, in the form of Exhibit G-1 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of such Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Security Agreement" means the Amended and Restated Security Agreement
executed and delivered by the U.S. Borrower pursuant to Section 5.1.5,
substantially in the form of Exhibit H-1 hereto, as amended, supplemented or
otherwise modified from time to time.
"Spot Rate" for a currency means the rate quoted by BofA as the spot
rate for the purchase by BofA of such currency with another currency through its
FX Trading Office at approximately 10:00 a.m. (Chicago time) on the date two (2)
Banking Days prior to the date as of which the foreign exchange computation is
made.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.7.
"Stated Maturity Date" means December 31, 2001.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which more than 50% of the
total voting power of shares of stock (or equivalent ownership or controlling
interest) entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof is at the time owned
or controlled, directly or indirectly, by that Person or one or more of the
other Subsidiaries of that Person or a combination thereof.
"Subsidiary Guarantors" means each of KPI Michigan and any other
Domestic Subsidiary now or hereafter existing which executes a Subsidiary
Guaranty.
"Subsidiary Guaranty" means each Subsidiary Guaranty executed and
delivered pursuant to Section 5.1.3, substantially in the form of Exhibit I
hereto, as amended, supplemented or otherwise modified from time to time.
"Subsidiary Security Agreements" means the Security Agreements
executed and delivered by KPI Michigan purusant to Section 5.1.3, substantially
in the form of Exhibit H-2 hereto and each other security ageement executed and
delivered by each Domestic Subsidiary of the U.S. Borrower from time to time
hereafter, as amended, supplemented or otherwise modified from time to time.
"Taxes" is defined in Section 4.6.
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"Transferee" is defined in clause (e) of Section 10.11.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of Illinois.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"U.S. Borrower" means Dura Operating Corp., a Delaware corporation.
"U.S. Guaranty" means, the U.S. Guaranty executed and delivered
pursuant to Section 5.2.6, substantially in the form of Exhibit E-3 hereto, as
amended, supplemented or modified from time to time.
"U.S. Letter of Credit Outstanding" means, on any date, an amount
equal to the sum of (a) the then aggregate amount which is undrawn and available
under all issued and outstanding U.S. Letters of Credit; and (b) the then
aggregate amount of all unpaid and outstanding Reimbursement Obligations with
respect to U.S. Letters of Credit.
"U.S. Letters of Credit" is defined in Section 2.1.1.
"U.S. Pledge Agreements" means the pledge agreements and
reaffirmations thereof executed and delivered by the U.S. Borrower substantially
in the form of Exhibit F-2 and F-3, as amended, supplemented or otherwise
modified from time to time.
"U.S. Revolving Loan Commitment" is defined in Section 2.1.1.
"U.S. Revolving Loans" is defined in Section 2.1.1.
"VOFA Group" means those Subsidiaries of the German Borrower acquired
pursuant to the German Acquisition.
"Welfare Plan" means a "welfare plan", as such term is defined in
Section 3(1) of ERISA.
SECTION 1.2. Use of Defined Terms.
Unless otherwise defined or the context otherwise requires, terms for
which meanings are provided in this Agreement shall have such meanings when used
in each Loan Document, Borrowing Request, Issuance Request, Continuation/
Conversion Notice, Compliance Certificate, notice or other communication
delivered from time to time in connection with this Agreement or any other Loan
Document. The terms "herein," "hereof," "hereto," "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, paragraph or provision of this Agreement or such other Loan
Document. The terms "including" and "include" mean including without limiting
the generality of any description preceding such
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term, and, for purposes of this Agreement and each other Loan Document, the
parties hereto agree that the rule of ejusdem generis shall not be applicable to
limit a general statement, which is followed by a referable to and enumeration
of specific matters, to matters similar to the matters specifically mentioned.
SECTION 1.3. Cross-References.
Unless otherwise specified, references in this Agreement and in each
other Loan Document to any Article or Section are references to such Article or
Section of this Agreement or such other Loan Document, as the case may be, and,
unless otherwise specified, references in any Article, Section or definition to
any clause are references to such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or in any
other Loan Document shall be interpreted, all accounting determinations and
computations hereunder or under any other Loan Document shall be made, and all
financial statements required to be delivered hereunder or under any other Loan
Document shall be prepared, in accordance with those generally accepted
accounting principles ("GAAP") applied in the preparation of the financial
statements referred to in Section 6.5. If any changes in accounting principles
from those used in the preparation of the financial statements referred to in
Section 6.5 hereafter occur as a result of the promulgation of rules,
regulations, pronouncements, or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) and result in a change in the method
of calculation of financial covenants, standards, or terms found in this
Agreement, the Borrowers, the Agent and the Required Lenders agree to enter into
negotiations to amend such financial covenants, standards or terms so as to
equitably reflect such changes with the desired result that the evaluations of
Dura's and its Subsidiaries' financial condition shall be the same after such
changes as if such changes had not been made; provided, however, that until the
parties hereto have reached a definitive agreement on such amendments, Dura's
and its Subsidiaries' financial condition shall continue to be evaluated on the
same principles as those used in the preparation of the financial statements
referred to in Section 6.5 prior to such change in accounting principles.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments.
On the terms and subject to the conditions of this Agreement
(including Article V),
(a) each Lender severally agrees to make Loans pursuant to the
Revolving Loan Commitments described in this Section 2.1; and
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(b) the Issuer severally agrees that it will issue Letters of Credit
pursuant to Section 2.1.3, and each other Lender severally agrees that it will
purchase participation interests in such Letters of Credit pursuant to Section
2.1.1, Section 2.1.2 and Section 2.7.1.
SECTION 2.1.1. U.S. Revolving Loan Commitment.
From time to time on any Banking Day occurring prior to the Revolving
Loan Commitment Termination Date, each Lender will (i) make Loans (relative to
such Lender, its "U.S. Revolving Loans") to the U.S. Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing of U.S. Revolving
Loans requested by the U.S. Borrower to be made on such day and (ii) participate
in letters of credit issued by the Issuer (the "U.S. Letters of Credit") for the
account of the U.S. Borrower equal to such Lender's Percentage of the aggregate
face amount of such U.S. Letters of Credit requested to be issued by the U.S.
Borrower on such day. The Commitment of each Lender described in this Section
2.1.1 is herein referred to as its "U.S. Revolving Loan Commitment". On the
terms and subject to the conditions hereof, the U.S. Borrower may from time to
time borrow, prepay and reborrow U.S. Revolving Loans.
SECTION 2.1.2. German Revolving Commitment.
From time to time on any Banking Day occurring prior to the Revolving
Loan Commitment Termination Date, each Lender will (i) make Loans (relative to
such Lender, its "German Revolving Loans") to the German Borrower equal to such
Lender's Percentage of the aggregate amount of the Borrowing of German Revolving
Loans requested by the German Borrower to be made on such day and (ii)
participate in letters of credit issued by the Issuer (the "German Letters of
Credit") for the account of the German Borrower equal to such Lender's
Percentage of the aggregate face amount of such German Letters of Credit
requested to be issued by the German Borrower on such day. The commitment of
each Lender described in this Section 2.1.2 is herein referred to as its "German
Revolving Loan Commitment." On the terms and subject to the conditions hereof,
the German Borrower may from time to time borrow, prepay and reborrow German
Revolving Loans.
SECTION 2.1.3. Letter of Credit Terms.
From time to time on any Banking Day prior to the Revolving Loan
Commitment Termination Date, the Issuer will
(a) issue one or more Letters of Credit for the account of a Borrower
in Stated Amounts and in the Applicable Currency requested by such Borrower on
such day; or
(b) extend the Stated Expiry Date of an existing Letter of Credit
previously issued hereunder to a date not later than the earlier of (i) the
Revolving Loan Commitment Termination Date and (ii) one year from the date of
such extension.
The form of each Letter of Credit shall be reasonably acceptable to the Issuer.
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SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans.
No Lender shall be permitted or required to make
(a) any German Revolving Loan, if after giving effect thereto, the
aggregate outstanding principal Dollar Equivalent amount of all German Revolving
Loans at such time
(i) of all Lenders, together with the aggregate principal Dollar
Equivalent amount of all German Letter of Credit Outstandings at such time,
would exceed the German Revolving Commitment Amount, or
(ii) of such Lender, together with such Lender's Percentage of the
aggregate principal Dollar Equivalent of all German Letter of Credit
Outstandings at such time, would exceed such Lender's Percentage of the
German Revolving Loan Commitment Amount;
(b) any Revolving Loan if, after giving effect thereto, the aggregate
outstanding principal Dollar Equivalent amount of all Revolving Loans at such
time
(i) of all Lenders, together with the aggregate principal Dollar
Equivalent amount of all Letter of Credit Outstandings at such time, would
exceed the Revolving Loan Commitment Amount, or
(ii) of such Lender, together with such Lender's Percentage of the
aggregate principal Dollar Equivalent amount of all Letter of Credit
Outstandings at such time, would exceed such Lender's Percentage of the
Revolving Loan Commitment Amount; or
(c) any Offshore Currency Loans if, after giving effect thereto, the
aggregate outstanding principal Dollar Equivalent amount of such Offshore
Currency Loans at such time, together with the aggregate Dollar Equivalent of
all Letters of Credit denominated in an Offshore Currency, would exceed the
Offshore Currency Loan Sublimit.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit.
The Issuer shall not be permitted or required to issue (a) any German
Letter of Credit if, after giving effect thereto, the Dollar Equivalent of all
German Letter of Credit Outstandings would exceed $5,000,000, (b) any German
Letter of Credit if, after giving effect thereto, the sum of all German Letter
of Credit Outstandings plus the aggregate principal amount of all German
Revolving Loans then outstanding would exceed the German Revolving Loan
Commitment Amount, (c) any U.S. Letter of Credit if, after giving effect
thereto, the Dollar Equivalent of all U.S. Letter of Credit Outstandings would
exceed $20,000,000, and (b) any U.S. Letter of Credit if, after giving effect
thereto, the sum of all Letter of Credit Outstandings plus the aggregate
principal amount of all Revolving Loans then outstanding would exceed the
Revolving Loan Commitment Amount.
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SECTION 2.2. Reduction of Commitment Amount.
The U.S. Borrower may, from time to time on any Banking Day,
voluntarily reduce the amount of the Revolving Loan Commitment Amount; provided,
however, that the Revolving Loan Commitment Amount shall not be reduced to an
amount below the Letter of Credit Outstandings and any such reductions shall
require at least two Banking Days' prior written notice to the Agent and be
permanent, and any partial reduction of such Revolving Loan Commitment Amount
shall be in a minimum amount of $5,000,000 and in an integral multiple of
$1,000,000.
SECTION 2.3. Borrowing Procedure and Funding Maintenance.
Each Borrower may from time to time irrevocably, subject to Section
2.6(b) or circumstances arising under Article IV request pursuant to a Borrowing
Request that a Borrowing be made in a minimum Dollar Equivalent amount of
$500,000 and in an integral Dollar Equivalent multiple of $250,000. If the
request is for a Reference Rate Loan, such Borrowing Request shall be delivered
to the Agent on or before 11:00 a.m. (Chicago time) on the Banking Day such
Reference Rate Loan is requested to be made. If the request is for an Offshore
Rate Loan to be made in Dollars, such Borrowing Request shall be delivered to
the Agent on or before 11:00 a.m. (Chicago time) at least two (2) Banking Days
in advance. If the request is for an Offshore Rate Loan to be made in an
Offshore Currency such Borrowing Request shall be delivered to the Agent on or
before 12:00 noon (Chicago time) at least four (4) Banking Days in advance. No
Borrowing Request shall be delivered more than five (5) Banking Days in advance.
On the terms and subject to the conditions of this Agreement, each Borrowing
shall be comprised of the type of Loans, in Dollars or an Offshore Currency, and
shall be made on the Banking Day, specified in such Borrowing Request. The
Dollar Equivalent amount of any Borrowing in an Offshore Currency will be
determined by the Agent on the Computation Date therefor in accordance with
Section 2.6.(a). On or before 12:00 noon (Chicago, Illinois time) on such
Banking Day each Lender shall deposit with the Agent same day funds in the
Applicable Currency in an amount equal to such Lender's Percentage of the
requested Borrowing if such Borrowing is to be made in Dollars, and by such time
as the Agent may specify if such Borrowing is to be made in an Offshore
Currency. Such deposit will be made to an account which the Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Agent shall make such funds available to the respective
Borrower by wire transfer to the accounts such Borrower shall have specified in
its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections.
The Borrower may from time to time irrevocably, subject to the
provisions of Section 2.6(c) and the circumstances arising under Article IV,
elect pursuant to a Continuation/Conversion Notice that all, or any portion, of
any Loans be, in the case of Reference Rate Loans, converted into Offshore Rate
Loans or, in the case of Offshore Rate Loans, converted into Reference Rate
Loans or continued as Offshore Rate Loans; provided, however, that (i) in the
absence of delivery of a Continuation/Conversion Notice with respect to such
Offshore Rate Loans
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at least (x) two (2) Banking Days before the last day of the then current
Interest Period with respect thereto if such Offshore Rate Loan is made in
Dollars or (y) four (4) Banking Days before the last day of the then current
Interest Period with respect thereto if such Offshore Rate Loan is made in an
Offshore Currency such Offshore Rate Loans shall, on such last day,
automatically convert to Reference Rate Loans, (ii) if a portion of such Loan is
converted or continued, the minimum Dollar Equivalent amount of such portion
shall be $500,000 and in an integral multiple of $250,000, (iii) each such
conversion or continuation shall be pro rated among the applicable outstanding
Loans of all Lenders, and (iv) no portion of the outstanding principal amount of
any Loans may be continued as, or be converted into, Offshore Rate Loans when
any Default has occurred and is continuing. If the election is for a Reference
Rate Loan to be converted into an Offshore Rate Loan or to continue an Offshore
Rate Loan in Dollars, such Continuation/Conversion Notice shall be delivered to
the Agent on or before 11:00 a.m. (Chicago time) at least (a) two (2) Banking
Days in advance. If the request is for an Offshore Rate Loan in an Offshore
Currency to be continued as an Offshore Rate Loan in an Offshore Currency, such
Continuation/Conversion Notice shall be delivered to the Agent on or before
12:00 noon (Chicago time) at least four (4) Banking Days in advance. If the
request is for an Offshore Rate Loan made in Dollars to be converted to a
Reference Rate Loan, such Continuation/Conversion Notice shall be delivered to
the Agent on or before 11:00 a.m. (Chicago time) on the Banking Day such
conversion is to occur. No Continuation/Conversion Notice shall be delivered
more than five (5) Banking Days in advance.
SECTION 2.5. Funding.
Each Lender may, if it so elects, fulfill its obligation to make,
continue or convert Offshore Rate Loans hereunder by causing one of its foreign
branches or Affiliates (or an international banking facility created by such
Lender) to make or maintain such Offshore Rate Loan; provided, however, that
such Offshore Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the obligation of the Borrower to repay such Offshore
Rate Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility; and provided, further, that
such Lender shall cause such foreign branch, Affiliate or international banking
facility to make the representations and agreements and to furnish the
information statements required of Transferees under clause (h) of Section 10.11
hereof. In addition, the Borrower hereby consents and agrees that, for purposes
of any determination to be made for purposes of Sections 4.1, 4.2, 4.3 or 4.4,
it shall be conclusively assumed that each Lender elected to fund all Offshore
Rate Loans by purchasing the Applicable Currency deposits in its Offshore
Lending Office's interbank eurodollar market.
SECTION 2.6. Utilization of Revolving Loan Commitments in Offshore
Currencies.
(a) The Agent will determine the Dollar Equivalent amount with respect
to any (i) Borrowing comprised of Offshore Currency Loans as of the date of
Borrowing specified in the Borrowing Request, (ii) outstanding Offshore Currency
Loans as of the last Banking Day of each month, and (iii) outstanding Offshore
Currency Loans as of any
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redenomination date pursuant to this Section 2.6 or Section 4.2 (each such date
under clauses (i) through (iii) a "Computation Date").
(b) In the case of a proposed Borrowing comprised of Offshore Currency
Loans, the Lenders shall be under no obligation to make Offshore Currency Loans
in the requested Offshore Currency as part of such Borrowing if the Agent has
received notice from any of the Banks by 5:00 p.m. (Chicago time) four (4)
Banking Days prior to the day of such Borrowing that such Lender cannot provide
Loans in the requested Offshore Currency, in which event the Agent will give
notice to such Borrower no later than 10:00 a.m. (Chicago time) on the third
Banking Day prior to the requested date of such Borrowing that the Borrowing in
the requested Offshore Currency is not then available, and notice thereof also
will be given promptly by the Agent to the Other Lenders. If the Agent shall
have so notified such Borrower that any such Borrowing in a requested Offshore
Currency is not then available, such Borrower may, by notice to the Agent not
later than 5:00 p.m. (Chicago time) three (3) Banking Days prior to the
requested date of such Borrowing, withdraw the Borrowing Request relating to
such requested Borrowing. If such Borrower does so withdraw such Borrowing
Request, the Borrowing requested therein shall not occur and the Agent will
promptly so notify each Lender. If such Borrower does not so withdraw such
Borrowing, the Agent will promptly so notify each Lender and such Borrowing
Request shall be deemed to be a Borrowing Request that requests a Borrowing
comprised of Reference Rate Loans in an aggregate amount equal to the amount of
the originally requested Borrowing as expressed in Dollars in the Borrowing
Request; and in such notice by the Agent to each Lender the Agent will state
such aggregate amount of such Borrowing in Dollars and such Lender's Percentage
thereof.
(c) In the case of a proposed continuation of Offshore Currency Loans
for an additional Interest Period pursuant to Section 2.4, the Lenders shall be
under no obligation to continue such Offshore Currency Loans if the Agent has
received notice from any of the Lenders by 5:00 p.m. (Chicago time) four (4)
Banking Days prior to the day of such continuation that such Lender cannot
continue to provide Loans in the relevant Offshore Currency, in which event the
Agent will give notice to such Borrower not later than 10:00 a.m. (Chicago time)
on the third Banking Day prior to the requested date of such continuation that
the continuation of such Offshore Currency Loans in the relevant Offshore
Currency is not then available, and notice thereof also will be given promptly
by the Agent to the Lenders. If the Agent shall have so notified such Borrower
that any such continuation of Offshore Currency Loans is not then available, any
Notice of Continuation/Conversion with respect thereto shall be deemed withdrawn
and such Offshore Currency Loans shall be redenominated into Reference Rate
Loans in Dollars with effect from the last day of the Interest Period with
respect to any such Offshore Currency Loans. The Agent will promptly notify
such Borrower and the Lenders of any such redenomination and in such notice by
the Agent to each Lender the Agent will state the aggregate Dollar Equivalent
amount of the redenominated Offshore Currency Loans as of the Computation Date
with respect thereto and such Lender's Percentage thereof.
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(d) Notwithstanding anything herein to the contrary, during the
existence of an Event of Default, upon the request of the Required Lenders, all
or any part of any outstanding Offshore Currency Loans shall be redenominated
and converted into Reference Rate Loans in Dollars on the last day of the
Interest Period with respect to any such Offshore Currency Loans. The Agent
will promptly notify Borrowers of any such redenomination and conversion
request.
(e) A Borrower shall be entitled to request that Loans hereunder also
be permitted to be made in any other lawful currency constituting a eurocurrency
(other than Dollars and Deutschemarks), in addition to the eurocurrencies
specified in the definition of "Offshore Currency" herein, that in the opinion
of all the Lenders is at such time freely traded in the Offshore interbank
foreign exchange markets and is freely transferable and freely convertible into
Dollars (an "Agreed Alternative Currency"). A Borrower shall deliver to the
Agent any request for designation of an Agreed Alternative Currency in
accordance with this Section 2.6.(e), to be received by the Agent not later than
10:00 a.m. (Chicago time) at least seven (7) Banking Days in advance of the date
of any Borrowing hereunder proposed to be made in such Agreed Alternative
Currency. Upon receipt of any such request the Agent will promptly notify the
Lenders thereof. Each Lender may grant or accept such request in its sole
discretion. The Agent will promptly notify such Borrower of the acceptance or
rejection of any such request.
SECTION 2.7. Letter of Credit Issuance Procedures.
Each Borrower may, from time to time irrevocably request pursuant to
an Issuance Request, on not less than three (3) Banking Days' notice, that the
Issuer issue, or extend the Stated Expiry Date of, as the case may be, a Letter
of Credit. Upon receipt of an Issuance Request, the Agent shall promptly notify
the Issuer and each Lender thereof. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
of (i) the Revolving Loan Commitment Termination Date and (ii) one year from the
date of issuance, as such date may be extended pursuant to this Section 2.7 and
Section 2.1.3(b).
SECTION 2.7.1. Other Lenders' Participation.
Upon the issuance of each Letter of Credit issued by the Issuer
pursuant hereto, and without further action, each Lender shall be deemed to have
irrevocably purchased, to the extent of its Percentage, a participation interest
in such Letter of Credit (including the Contingent Liability and any
Reimbursement Obligation with respect thereto) as provided in Section 2.1.1 and
Section 2.1.2, and such Lender shall, to the extent of its Percentage, be
responsible for reimbursing promptly (and in any event within one Banking Day)
the Issuer for Reimbursement Obligations which have not been reimbursed by the
applicable Borrower in accordance with Section 2.7.2 and Section 2.7.3. Upon
such reimbursement by Lenders of the Issuer, the applicable Borrower shall be
obligated to reimburse the Lenders. In addition, such Lender shall, to the
extent of its Percentage, be entitled to receive a ratable portion of the letter
of credit fees payable pursuant to Section 3.3 with respect to each Letter of
Credit and of interest payable pursuant to Section 3.2.
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SECTION 2.7.2. Disbursements.
The Issuer will notify the applicable Borrower and the Agent promptly
of the presentment for payment of any Letter of Credit issued by the Issuer,
together with notice of the date (the "Disbursement Date") such payment shall be
made. Prior to 11:00 a.m., Chicago, Illinois time, on the first Banking Day
following the Disbursement Date, such Borrower will reimburse the Agent, for the
account of the Issuer, or if the Lenders have reimbursed the Agent, such
Borrower will reimburse the Lenders, for all amounts which the Issuer has
disbursed under such Letter of Credit, together with interest thereon at the
rate per annum then applicable to Reference Rate Loans.
SECTION 2.7.3. Reimbursement.
The obligation (a "Reimbursement Obligation") of a Borrower under
Section 2.7.2 to reimburse the Issuer with respect to each Disbursement
(including interest thereon), and, upon the failure of a Borrower to reimburse
the Issuer, each Lender's obligation under Section 2.7.1 to reimburse the
Issuer, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which such
Borrower or such Lender, as the case may be, may have or have had against the
Issuer or any Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such
Letter of Credit; provided, however, that after paying in full its reimbursement
obligation hereunder, nothing herein shall adversely affect the right of such
Borrower or such Lender, as the case may be, to commence any proceeding against
the Issuer for any wrongful Disbursement made by the Issuer under a Letter of
Credit as a result of acts or omissions constituting gross negligence or willful
misconduct on the part of the Issuer.
SECTION 2.7.4. Deemed Disbursements.
Upon the occurrence and during the continuation of any Default of the
type described in Section 8.1.9 or, with notice from the Agent at the direction
of the Required Lenders, upon the occurrence and during the continuation of any
Event of Default
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn and
available under all Letters of Credit issued and outstanding for the account of
Borrowers shall, without demand upon or notice to the Borrowers, be deemed to
have been paid or disbursed by the Issuer under such Letters of Credit
(notwithstanding that such amount may not in fact have been so paid or
disbursed); and
(b) upon notification by the Agent to the respective Borrower of its
obligations under this Section, such Borrower shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so paid or disbursed by
such Issuer on such Borrower's behalf.
Any amounts so payable by a Borrower pursuant to this Section shall be applied
to such Borrower's Revolving Loans, or if no Revolving Loans are then
outstanding with respect to such
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Borrower, deposited in cash with the Agent and held as collateral security for
the Obligations of such Borrower in connection with the Letters of Credit issued
by the Issuer on such Borrower's behalf. Monies held by the Agent pursuant to
this Section shall be invested in Cash Equivalent Investments, and the proceeds
of such investments shall be reinvested in Cash Equivalent Investments at the
Agent's discretion. All earnings thereon will be applied to such Borrower's
Revolving Loans, or if no Revolving Loans are then outstanding, deposited in
cash with the Agent and held as collateral security for the Obligations of such
Borrower in connection with the Letters of Credit issued by the Issuer on such
Borrower's behalf. The Agent will not be responsible or liable for any loss
resulting from the investment performance of any investment or reinvestment of
monies held by it in Cash Equivalent Investments or from the sale or liquidation
of any Cash Equivalent Investments, other than loss directly resulting from the
Agent's gross negligence or willful misconduct. At such time when all Events of
Default shall have been cured or waived, the Agent shall return to the
respective Borrower all amounts then on deposit with the Agent pursuant to this
Section.
SECTION 2.7.5. Nature of Reimbursement Obligations.
Each Borrower and, to the extent set forth in Section 2.7.1, each
Lender shall assume all risks of the acts, omissions or misuse of any Letter of
Credit by the beneficiary thereof. The Issuer (except to the extent of its own
gross negligence or willful misconduct) shall not be responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any Letter of Credit or any document submitted by any party in
connection with the application for and issuance of a Letter of Credit, even if
it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or ineffective for
any reason;
(c) failure of the beneficiary to comply fully with conditions
required to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise; or
(e) any loss or delay in the transmission or otherwise of any document
or draft required in order to make a Disbursement under a Letter of Credit.
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SECTION 2.8. Notes.
Each Lender's Loans under a Revolving Loan Commitment shall be
evidenced by a Note payable to the order of such Lender in a maximum principal
amount equal to such Lender's Percentage of the original applicable Revolving
Loan Commitment Amount.
SECTION 2.9. Recordkeeping.
Each Lender shall record in its records, or at its option on the
schedule attached to its applicable Note, the date and amount of each Loan
evidenced by such Note, each repayment or conversion thereof and, in the case of
each Offshore Rate Loan, the dates on which each Interest Period for such Loan
shall begin and end. The aggregate unpaid principal amount so recorded shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on such
Note. The failure to so record any such amount or any error in so recording any
such amount shall not, however, limit or otherwise affect the obligations of
either Borrower hereunder or under any Note to repay the principal amount of the
Loans evidenced by such Note together with all interest accruing thereon.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments.
Each Borrower shall repay in full the unpaid principal amount of each
Loan made to or on behalf of such Borrower upon the Stated Maturity Date
therefor. Prior thereto, either Borrower
(a) may, from time to time on any Banking Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; provided, however, that
(i) any such prepayment shall be made pro rata among Loans of the
same type and, if applicable, having the same Interest Period, of all
Lenders;
(ii) subject to Section 4.4, any such prepayment of any Offshore
Rate Loan may be made on any day;
(iii) all voluntary prepayments of Reference Rate Loans shall
require written notice to Agent by no later than 12:00 noon (Chicago time)
on the date of such repayment, and all voluntary prepayments of Offshore
Rate Loans shall require written notice to Agent by 12:00 noon (Chicago
time) at least two (2) Banking Days' prior to the date of such prepayment;
and
(iv) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $500,000 and in an integral multiple of
$250,000, or the balance then outstanding;
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(b) shall, on any date that the sum of the aggregate outstanding
principal Dollar Equivalent amount of all Revolving Loans and Letter of Credit
Outstandings, after giving effect to all payments made on such date, exceeds the
Revolving Loan Commitment Amount, make a mandatory prepayment of all Revolving
Loans equal to such excess; and in the event that the sum of the aggregate
outstanding principal Dollar Equivalent amount of all German Revolving Loans and
German Letter of Credit Outstandings, after giving effect to all payments made
on such date, exceeds the German Revolving Loan Commitment, German Borrower
shall, on such date, make a mandatory prepayment of all German Revolving Loans
equal to such excess;
(c) shall, immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, repay all Loans,
unless, pursuant to Section 8.3, only a portion of all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. Subject to
Section 2.2, no prepayment of principal of any Revolving Loans shall cause a
reduction in the Revolving Loan Commitment Amount and no prepayment of principal
of any German Revolving Loans shall cause a reduction in the German Revolving
Loan Commitment. All payments and prepayments of Loans shall be made by
Borrowers in the Applicable Currency for such Loans.
SECTION 3.2. Interest Provisions.
Interest on the outstanding principal amount of Loans shall accrue and
be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates.
Pursuant to an appropriately delivered Borrowing Request or Continua-
tion/Conversion Notice, each Borrower may elect that Loans comprising a
Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Reference Rate
Loan, equal to the Alternate Reference Rate from time to time in effect; and
(b) on that portion maintained as an Offshore Rate Loan, during each
Interest Period applicable thereto, equal to the sum of the Offshore Rate for
such Interest Period plus the Applicable Margin.
All Offshore Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Offshore Rate Loan.
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SECTION 3.2.2. Default Rates.
Upon notice from the Agent, at the direction of the Required Lenders,
of the occurrence of an Event of Default and during the continuance thereof, the
interest rates on Loans then in effect shall be increased by increasing the
Applicable Margin by 200 basis points.
SECTION 3.2.3. Payment Dates.
Interest accrued on each Loan shall be payable by the Borrower on
behalf of whom such Loan is made, without duplication:
(a) on the Stated Maturity Date;
(b) on the date of any prepayment of such Loan;
(c) with respect to Reference Rate Loans, on each Quarterly Payment
Date occurring after the Effective Date with respect to such Borrower;
(d) with respect to Offshore Rate Loans, on the last day of each
applicable Interest Period (and if such Interest Period shall exceed three
months, on the 90th day of such Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of which is
accelerated pursuant to Section 8.2 or Section 8.3, immediately upon such
acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document, or with respect to Reimbursement
Obligations, after the date such amount is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise) shall be payable upon
demand.
SECTION 3.3. Fees.
The Borrowers agree to pay the fees set forth in this Section 3.3.
All such fees shall be nonrefundable.
SECTION 3.3.1. Facility Fee.
The U.S. Borrower agrees to pay to the Agent for the pro rata account
of each Lender, for the period (including any portion thereof when any of its
Revolving Loan Commitments are suspended by reason of the Borrower's inability
to satisfy any condition of Article V) commencing on the date of the initial
Credit Extension and continuing through the Revolving Loan Commitment
Termination Date, a facility fee at the applicable rate set forth below per
annum of the Revolving Loan Commitment Amount. Such facility fees shall be
payable by the U.S. Borrower in arrears on each Quarterly Payment Date,
commencing with the first such day following the Effective Date with respect to
the U.S. Borrower, and on the Revolving Loan Commitment Termination Date. The
applicable rate shall be 0.25% until the delivery of a
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Compliance Certificate with respect to the Fourth Fiscal Quarter 1996. Upon the
delivery of such Compliance Certificate and thereafter, the applicable rate
shall be based on the Leverage Ratio in effect as set forth in the Compliance
Certificate delivered by the U.S. Borrower to the Agent as set forth below:
<TABLE>
<CAPTION>
Leverage Ratio Applicable Rate
---------------- ---------------
<S> <C>
Less than 0.40:1.0 0.20%
Equal to or greater than 0.40:1.0 but 0.225%
less than 0.50:1.0
Equal to or greater than 0.50:1.0 0.25%
</TABLE>
Changes to the applicable rates set forth above shall become effective upon
delivery by the U.S. Borrower to the Agent of a new Compliance Certificate
pursuant to clause (c) of Section 7.1.1. If the U.S. Borrower shall fail to
deliver a Compliance Certificate within 45 days after the end of any Fiscal
Quarter as required pursuant to clause (c) of Section 7.1.1, the applicable rate
for the facility fee from and including the 46th day after the end of such
Fiscal Quarter to but not including the date the U.S. Borrower delivers to the
Agent a Compliance Certificate shall conclusively be presumed to equal the
highest applicable rate set forth above.
SECTION 3.3.2. Agent's Fee.
The U.S. Borrower agrees to pay to the Agent, for its own account,
fees in the amounts and on the dates set forth in the Fee Letter, less the
amount of any agency fee previously paid by the U.S. Borrower under the Original
Credit Agreement with respect to periods covered by this Agreement.
SECTION 3.3.3. Letter of Credit Fee.
The U.S. Borrower agrees to pay to the Agent, for the pro rata account
of each Lender, a letter of credit fee in an amount equal to the then Applicable
Margin for Offshore Rate Loans, per annum times the Stated Amount of each
outstanding U.S. Letter of Credit, such fee being payable quarterly in arrears
on each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date. The U.S. Borrower further agrees to pay to the Issuer on the date of
issuance or extension of each U.S. Letter of Credit an issuance fee in the
amount of 1/8 of 1% of the Stated Amount of such U.S. Letter of Credit.
SECTION 3.3.4. Upfront Fees.
The U.S. Borrower agrees to pay to the Agent, for the pro rata account
of each Lender an upfront fee in the aggregate amount of $150,000, which fee
shall be fully earned and is payable on the Effective Date hereof with respect
to the U.S. Borrower.
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SECTION 3.3.5. Arrangement Fee.
The U.S. Borrower agrees to pay to the Arranger, for its own account,
the arranging fees as set forth in the Fee Letter.
ARTICLE IV
CERTAIN OFFSHORE RATE AND OTHER PROVISIONS
SECTION 4.1. Offshore Rate Lending Unlawful.
If any Lender shall determine (which determination shall, upon notice
thereof to the Borrowers and the Lenders, be conclusive and binding on the
Borrowers) that the introduction of or any change in or in the interpretation of
any law (including any governmental rule, regulation or order) makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, an Offshore Rate Loan (including Offshore Rate Loans in
any Applicable Currency), the obligations of all Lenders to make, continue,
maintain or convert any such Loans shall, upon such determination, forthwith be
suspended until such Lender shall notify the Agent that the circumstances
causing such suspension no longer exist, and all Offshore Rate Loans shall
automatically convert into Reference Rate Loans at the end of the then current
Interest Periods with respect thereto or sooner, if required by such law or
assertion.
SECTION 4.2. Deposits Unavailable.
If any Lender shall have determined that
(a) deposits in the Applicable Currency, the relevant amount and for
the relevant Interest Period are not available to such Lender in its relevant
market; or
(b) by reason of circumstances affecting such Lender's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to Offshore Rate Loans,
then, upon notice from such Lender to the Agent, the Borrowers and the other
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, Offshore Rate Loans
in such Applicable Currency shall forthwith be suspended until such Lender shall
notify the Agent, the Borrower and the other Lenders that the circumstances
causing such suspension no longer exist and all Offshore Rate Loans shall
automatically convert into Reference Rate Loans at the end of the then current
Interest Periods.
SECTION 4.3. Increased Offshore Rate Loan Costs, etc.
Each Borrower agrees to reimburse each Lender for any increase in the
cost to such Lender of, or any reduction in the amount of any sum receivable by
such Lender in respect of, making, continuing or maintaining (or of its
obligation to make, continue or maintain) any Loans
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to such Borrower as, or of converting (or of its obligation to convert) any such
Loans into, Offshore Rate Loans that arise in connection with any change in, or
the introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law, rule, regulation, directive, guideline, treaty, decision
or request (whether or not having the force of law) of any court, central bank,
regulator or other governmental authority, to the extent not reflected in the
definition of Offshore Rate. Such Lender shall promptly notify the Agent and the
Borrowers in writing of the occurrence of any such event, such notice to state,
in reasonable detail, the reasons therefor and the additional amount required
fully to compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable by the applicable Borrower directly to such
Lender within five days of its receipt of such notice, and such notice shall, in
the absence of manifest error, be conclusive and binding on such Borrower.
SECTION 4.4. Funding Losses.
In the event any Lender shall incur any loss or expense (including any
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to make, continue or maintain
any portion of the principal amount of any Loan as, or to convert any portion of
the principal amount of any Loan into, an Offshore Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal amount
of any Offshore Rate Loans on a date other than the scheduled last day of the
Interest Period applicable thereto, whether pursuant to Section 3.1 or
otherwise;
(b) any Loans not being made as Offshore Rate Loans in accordance with
the Borrowing Request therefor, except pursuant to Section 2.6, Section 4.1,
Section 4.2 or as a result of a default by the Agent or any Lender hereunder; or
(c) any Loans not being continued as, or converted into, Offshore Rate
Loans in accordance with the Continuation/Conversion Notice therefor, except
pursuant to Section 2.6, Section 4.1, Section 4.2 or as a result of a default by
the Agent or any Lender hereunder;
then, upon the written notice by such Lender to the Borrowers (with a copy to
the Agent), the applicable Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense;
provided, that such Borrower shall not be required to reimburse a Lender for
such loss or expense arising as a result of the gross negligence or willful
misconduct of such Lender. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrowers. Solely for purposes of calculating
amounts payable by the applicable Borrower to the Lenders under this Section 4.4
and under Section 4.3, each Offshore Rate Loan made by a Lender (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the LIBOR used in determining the Offshore Rate
for such Offshore Rate Loan by a matching deposit or other borrowing in the
interbank eurocurrency market for a comparable amount, in the Applicable
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Currency and for a comparable period, whether or not such Offshore Rate Loan is
in fact so funded.
SECTION 4.5. Increased Capital Costs.
If any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law, rule, regulation,
directive, treaty, guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital or reserves required or
expected to be maintained by any Lender or any Person controlling such Lender,
and such Lender determines that the rate of return on its or such controlling
Person's capital as a consequence of its Revolving Loan Commitment or the Loans
made by or the U.S. Letters of Credit issued or participated in by such Lender
is reduced to a level below that which such Lender or such controlling Person
could have achieved but for the occurrence of any such circumstance, then, in
any such case upon notice from time to time by such Lender to the Borrowers, the
applicable Borrower shall immediately pay directly to such Lender additional
amounts sufficient to compensate such Lender or such controlling Person for such
reduction in rate of return. A statement of such Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. In determining such amount, such Lender may use any method of
averaging and attribution that it shall deem applicable.
SECTION 4.6. Taxes.
(a) All payments by the Borrowers of principal of, and interest on,
the Loans and all other amounts payable hereunder (including in respect of fees
and Reimbursement Obligations) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by net income or receipts of the Agent or any
Lender by any jurisdiction with respect to which the Agent or such Lender is
subject to tax without regard to the transactions contemplated hereby (such non-
excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrowers hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower with respect to whom the Taxes have arisen will
(i) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation reasonably satisfactory to the Agent evidencing such payment
to such authority; and
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(iii) pay to the Agent for the account of the Lenders such additional
amount or amounts as is necessary to ensure that the net amount actually
received by each Lender will equal the full amount such Lender would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Agent or any Lender
with respect to any payment received by the Agent or such Lender hereunder, and
such Taxes are then due and payable in accordance with applicable law, the Agent
or such Lender shall pay such Taxes and the Borrower with respect to whom the
Taxes have arisen will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such Person would have received
had no such Taxes been asserted.
If either Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Agent, for the account of the
respective Lenders, the required receipts or other required documentary
evidence, such Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by such Borrower.
(b) Each Lender hereby severally (but not jointly) represents that,
under applicable law and treaties in effect as of the date of the initial Credit
Extension, no United States federal taxes will be required to be withheld by the
Agent or the Borrowers with respect to any payments to be made to such Lender in
respect of U.S. Revolving Loans made in Dollars pursuant to this Agreement and
each Lender which itself is not incorporated under the laws of the United States
or a state thereof or which is lending from an Offshore Lending Office that is
not incorporated under the laws of the United States or a state thereof agrees
severally (but not jointly) that, prior to the date of the initial Borrowing, it
will deliver to the U.S. Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying in each case that such Lender is
entitled to receive payments with respect to U.S. Revolving Loans made in U.S.
Dollars under this Agreement and the Notes payable to it, without deduction or
withholding of any United States federal income taxes. Each Lender which
delivers to the U.S. Borrower and the Agent a Form 1001 or 4224, or successor
applicable form, pursuant to the immediately preceding sentence, further
undertakes to deliver to the U.S. Borrower and the Agent two further copies of
said Form 1001 or 4224, or successor applicable form, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the U.S. Borrower,
and such extensions or renewals thereof as may reasonably be requested by the
U.S. Borrower, certifying that such Lender is entitled to receive payments with
respect to U.S. Revolving Loans made in U.S. Dollars under this Agreement
without deduction or withholding of any United States federal income taxes,
unless in any such case any change in law, rule, regulation, treaty or
directive, or in the interpretation or application thereof, has occurred prior
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to the date on which any such delivery would otherwise be required which renders
all such forms inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it and on or prior to
the date occurring six months after the last day of the Interest Period during
which such change in law, rule, regulation, treaty or directive, or in the
interpretation or application thereof, shall occur, such Lender advises the U.S.
Borrower that it is not capable of receiving payments with respect to U.S.
Revolving Loans made in U.S. Dollars without any deduction or withholding of
United States federal income tax. Notwithstanding any provision of clause (a)
of Section 4.6 to the contrary, the U.S. Borrower shall have no obligation to
pay any Taxes (except to the extent required by law) pursuant to clause (a) of
Section 4.6, or to pay any amount to the Agent or any Lender pursuant to clause
(a) of Section 4.6, to the extent that such amount results from (i) the failure
of any Lender to comply with its obligations pursuant to this clause (b) of
Section 4.6 or Section 2.5 or the failure of a Transferee to make the
representations set forth in clause (h) of Section 10.11 or to perform the acts
set forth in such clause (h) or (ii) any representation or warranty made or
deemed to be made by any Lender pursuant to this clause (b) of Section 4.6 or
Section 2.5 or by a Transferee pursuant to clause (e) of Section 10.11 proving
to have been incorrect, false or misleading in any material respect when so made
or deemed to be made.
(c) If a Borrower pays or becomes obligated to pay to the Agent or any
Lender any additional amounts pursuant to clause (a) of Section 4.6, the Agent
or such Lender shall, if requested by such Borrower, designate a different
office or transfer its rights, benefits and obligations under any Loan hereunder
to an Affiliate if such designation or transfer would not be unreasonably
burdensome to such Lender, would reduce or eliminate such additional amounts and
would not, in the reasonable judgment of the Agent or such Lender, cause the
Agent or such Lender to incur any additional costs or expenditures not
reimbursed by such Borrower or suffer a material economic disadvantage.
(d) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
SECTION 4.7. Payments, Computations, etc.
Unless otherwise expressly provided, all payments by the Borrowers
pursuant to this Agreement, the Notes, each U.S. Letter of Credit or any other
Loan Document shall be made by the applicable Borrower to the Agent for the pro
rata account of the Lenders entitled to receive such payment. All such payments
required to be made to the Agent shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, Chicago, Illinois time, on the date
due, in same day or immediately available funds to such account as the Agent
shall specify from time to time by notice to the Borrowers. Funds received
after that time shall be deemed to have been received by the Agent on the next
succeeding Banking Day. The Agent shall promptly remit in same day funds to
each Lender its share, if any, of such payments received by the Agent for the
account of such Lender in the currency in which such payment was received. All
interest and fees shall be computed on the basis of the actual number of days
including the first day but excluding the last day) occurring during the period
for which such interest or fee is payable over a year
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comprised of 360 days. Whenever any payment to be made shall otherwise be due on
a day which is not a Banking Day, such payment shall (except as otherwise
required by clause (c) of the definition of the term "Interest Period" with
respect to Offshore Rate Loans) be made on the next succeeding Banking Day and
such extension of time shall be included in computing interest and fees, if any,
in connection with such payment.
SECTION 4.8. Sharing of Payments.
If any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of setoff or otherwise) on account of any
Loan or Reimbursement Obligation (other than pursuant to the terms of Sections
4.3, 4.4 and 4.5) in excess of its pro rata share of payments then or therewith
obtained by all Lenders, such Lender shall purchase from the other Lenders such
participations in Credit Extensions made by them as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the applicable Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section to share in the benefits
of any recovery on such secured claim.
SECTION 4.9. Setoff.
Each Lender shall, upon the occurrence and continuance of any Default
described in clauses (a) through (d) of Section 8.1.9 or, with the consent of
the Required Lenders, upon the occurrence and continuance of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due), any and all balances,
credits, deposits, accounts or moneys of either Borrower then or thereafter
maintained with such Lender; provided, however, that any such appropriation and
application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the applicable Borrower and the Agent after any such
setoff and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
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SECTION 4.10. Use of Proceeds and Benefits of Credit Extensions.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extensions to U.S. Borrower.
------------------------------------------
The obligations of the Lenders to fund the initial Credit Extensions
to the U.S. Borrower shall be subject to the prior or concurrent satisfaction of
each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc.
The Agent shall have received from the U.S. Borrower and each other
Obligor (other than the German Borrower and its Subsidiaries) a certificate,
dated the date of the initial Credit Extensions, of its Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this Agreement,
the Notes and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Agreement, the Notes and each other Loan Document
executed by it; and
(c) the accuracy and completeness of its Organic Documents;
upon which certificate each Lender may conclusively rely.
SECTION 5.1.2. Delivery of Notes.
The Agent shall have received, for the account of each Lender, the
Notes duly executed and delivered by the U.S. Borrower.
SECTION 5.1.3. Guaranties; Subsidiary Security Agreements.
The Agent shall have received the Subsidiary Guaranty and the
Subsidiary Security Agreements duly executed and delivered by the Subsidiary
Guarantors, the MC Guaranty duly executed and delivered by MC and the Dura
Guaranty duly executed and delivered by Dura.
SECTION 5.1.4. Pledge Agreements.
The Agent shall have received the MC Pledge Agreement Reaffirmation
duly executed and delivered by MC, the Dura Pledge Agreement duly executed and
delivered by Dura and the U.S. Pledge Agreement with respect to the stock of KPI
Michigan duly executed and delivered by the U.S. Borrower. The Agent shall
retain possession of the certificates, evidencing
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all of the issued and outstanding shares of capital stock or its equivalent
pledged pursuant to the MC Pledge Agreement, the Dura Pledge Agreement and the
U.S. Pledge Agreement with respect to the stock of KPI Michigan, in each case
accompanied by undated stock powers or its equivalent, duly executed in blank.
SECTION 5.1.5. Security Agreement.
The Agent shall have received the Security Agreement duly executed and
delivered by the U.S. Borrower. The Agent shall also have received satisfactory
evidence that the Agent has a valid and perfected first priority security
interest in the property of the U.S. Borrower subject to the Security Agreement,
subject only to the Liens permitted under Section 7.2.3.
SECTION 5.1.6. Mortgages, Etc.
The Agent shall have received amendments to the existing Mortgages
covering certain of the real property owned or leased by the U.S. Borrower and
disclosed in Item 5.1.6 of the Disclosure Schedule as the Agent may reasonably
require, together with (a) title insurance date-down endorsements and surveys as
reasonably required by the Agent; and (b) evidence that counterparts of the
amendments to the Mortgages have been recorded in all places to the extent
necessary or desirable in the reasonable judgment of the Agent, to create a
valid and enforceable first priority lien (subject only to the Liens permitted
under Section 7.2.3).
SECTION 5.1.7. Insurance.
The Agent shall have received policies of insurance required to be
maintained under this Agreement and the other Loan Documents together with
endorsements satisfactory to the Agent naming the Agent as loss payee and naming
the Agent and the Lenders as additional insureds under such policies.
SECTION 5.1.8. Consummation of KPI Transactions.
The KPI Transactions shall have been consummated in accordance with
the terms of the KPI Purchase Agreement and the Agreement and Plan of Merger
between KPI Michigan and KPI Indiana and applicable law.
SECTION 5.1.9. Closing Date Certificate.
The Agent shall have received, for its benefit and the benefit of each
Lender, the Closing Date Certificate in substantially the form of Exhibit J
hereto, dated the date of the initial Credit Extension to the U.S. Borrower and
duly executed and delivered by an Authorized Officer of the U.S. Borrower, in
which such Closing Date Certificate the U.S. Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties in all material respects made as of such
date under this Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct in all material respects. All
documents and agreements required to be appended to the Closing Date
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Certificate shall be in form and substance reasonably satisfactory to the Agent
and the Required Lenders.
SECTION 5.1.10. Solvency, etc.
The Agent shall have received, for its benefit and the benefit of each
Lender, a solvency certificate of the U.S. Borrower signed by the chief
accounting, financial or other executive Authorized Officer of the U.S.
Borrower, dated the date of the initial Credit Extensions, in the form of
Exhibit K-1 hereto.
SECTION 5.1.11. Environmental Due Diligence.
The Agent shall have completed its environmental due diligence review
of the operations and facilities of the KPI Indiana and KPI Michigan and the
results of such review shall be reasonably satisfactory to the Agent.
SECTION 5.1.12. Opinions of Counsel.
The Agent shall have received opinions, dated the date of the initial
Credit Extensions to the U.S. Borrower and addressed to the Agent and all
Lenders, from
(a) Kirkland & Ellis, counsel to the Obligors, substantially in the
form of Exhibit L hereto; and
(b) Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., counsel to
the Agent, substantially in the form of Exhibit M hereto.
SECTION 5.1.13. Closing Fees, Expenses, etc.
The Agent shall have received for its own account, or for the account
of each Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to this Agreement and the Fee Letter.
SECTION 5.1.14. Landlord's Agreements.
The Agent shall have received Landlord's Agreements in form and
substance satisfactory to Agent with respect to the leased locations of KPI
Michigan.
SECTION 5.2. Initial Credit Extensions to German Borrower.
The obligations of the Lenders to fund the initial Credit Extensions
to the German Borrower shall be subject to the prior or concurrent satisfaction
of each of the conditions precedent set forth in this Section 5.2.
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SECTION 5.2.1. Counterpart Agreement.
The Agent shall have received a Counterpart Agreement duly executed
and delivered by the German Borrower.
SECTION 5.2.2. Resolutions, etc.
The Agent shall have received from the German Borrower and each
Subsidiary of the German Borrower, to the extent it is an Obligor hereunder, a
certificate, dated the date of the initial Credit Extensions to the German
Borrower, of its Secretary as to
(a) resolutions of its board of directors then in full force and
effect authorizing the execution, delivery and performance of this Agreement,
the Notes and each other Loan Document to be executed by it;
(b) the incumbency and signatures of those of its officers authorized
to act with respect to this Agreement, the Notes and each other Loan Document
executed by it; and
(c) the accuracy and completeness of its Organic Documents;
upon which certificate each Lender may conclusively rely.
SECTION 5.2.3. Delivery of Notes.
The Agent shall have received, for the account of each Lender, the
Notes duly executed and delivered by the German Borrower.
SECTION 5.2.4. Pledge Agreements.
The Agent shall have received the U.S. Pledge Agreement duly executed
and delivered by the U.S. Borrower pursuant to which the U.S. Borrower pledges
65% of outstanding capital shares of the German Borrower and, to the extent
permitted by applicable law, the German Pledge Agreement pursuant to which the
German Borrower pledges the outstanding capital shares of the VOFA Group. The
Agent shall retain possession of the certificates, evidencing all of the issued
and outstanding shares of capital stock pledged pursuant to the U.S. Pledge
Agreement and the German Pledge Agreement, in each case accompanied by undated
stock powers or its equivalent duly executed in blank.
SECTION 5.2.5. Insurance.
The Agent shall have received policies of insurance with respect to
the German Borrower required to be maintained under this Agreement and the other
Loan Documents together with endorsements reasonably satisfactory to the Agent.
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SECTION 5.2.6. Guaranties.
The Agent shall have received the U.S. Guaranty and the guaranty of
each material company in the VOFA Group to the extent permitted under applicable
law, duly executed and delivered by such company.
SECTION 5.2.7. Consummation of German Acquisition.
The German Acquisition shall have been consummated on terms and
conditions and pursuant to documents, instruments and agreements reasonably
satisfactory to Agent.
SECTION 5.2.8. Closing Date Certificate.
The Agent shall have received, for its benefit and the benefit of each
Lender, the Closing Date Certificate in substantially the form of Exhibit J
hereto, dated the date of the initial Credit Extension to the German Borrower
and duly executed and delivered by an Authorized Officer of the German Borrower,
in which such Closing Date Certificate the German Borrower shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties in all material respects made as of such
date under this Agreement, and, at the time such certificate is delivered, such
statements shall in fact be true and correct in all material respects. All
documents and agreements required to be appended to the Closing Date Certificate
shall be in form and substance reasonably satisfactory to the Agent.
SECTION 5.2.9. Solvency, etc.
The Agent shall have received, for its benefit and the benefit of each
Lender, a solvency certificate of the German Borrower signed by the chief
accounting, financial or other executive Authorized Officer of the German
Borrower, dated the date of the initial Credit Extensions to the German
Borrower, in form and substance reasonably satisfactory to Agent.
SECTION 5.2.10. Environmental Due Diligence.
The Agent shall have completed its environmental due diligence review
of the operations and facilities of the German Borrower and the results of such
review shall be reasonably satisfactory to the Agent.
SECTION 5.2.11. Opinions of Counsel.
The Agent shall have received opinions, dated the date of the initial
Credit Extensions to the German Borrower and addressed to the Agent and all
Lenders, in form and substance reasonably satisfactory to the Agent.
SECTION 5.2.12. Other Conditions.
The German Borrower and its Subsidiaries shall have delivered such
other documents, instruments and agreements as the Agent shall reasonably
require, in form and
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substance reasonably satisfactory to the Agent, as shall be necessary to
effectuate the terms of this Agreement.
SECTION 5.3. All Credit Extensions.
The obligation of each Lender to make any Credit Extension on the
occasion of any Borrowing (including the initial Credit Extensions) shall be
subject to the satisfaction of each of the conditions precedent set forth in
this Section 5.3.
SECTION 5.3.1. Compliance with Warranties, No Default etc.
Both before and after giving effect to any Credit Extension the
following statements shall be true and correct
(a) the representations and warranties set forth in this Agreement
(including Article VI) and the other Loan Documents shall be true and correct in
all material respects with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects as of such
earlier date);
(b) the sum of the aggregate outstanding principal Dollar Equivalent
at such time of all (x) Revolving Loans and (y) Letter of Credit Outstandings
does not exceed Revolving Loan Commitment Amount;
(c) with respect to Credit Extensions to the German Borrower, the sum
of the aggregate outstanding principal Dollar Equivalent of all (x) German
Revolving Loans and (y) German Letter of Credit Outstandings, at such time, does
not exceed the German Revolving Loan Commitment Amount; and
(d) no Default shall have then occurred and be continuing.
SECTION 5.3.2. Credit Extension Request, etc.
The Agent shall have received a Borrowing Request if Loans are being
requested, or an Issuance Request, if a U.S. Letter of Credit is being
requested. Each of the delivery of a Borrowing Request or Issuance Request and
the acceptance by the applicable Borrower of the proceeds of such Credit
Extension shall constitute a representation and warranty by such Borrower that
on the date of such Credit Extension (both immediately before and after giving
effect to such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.3.1 are true and correct.
SECTION 5.3.3. Satisfactory Legal Form.
All documents executed or submitted pursuant hereto by or on behalf of
the Borrowers or any of their Subsidiaries or any other Obligors shall be
reasonably satisfactory in form and substance to the Agent and its counsel; the
Agent and its counsel shall have received all
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information, approvals, opinions, documents or instruments as the Agent or its
counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Agent to enter into this
Agreement and to make Credit Extensions hereunder, the Borrowers represent and
warrant unto the Lenders and the Agent as set forth in this Article VI (after
giving effect to the consummation of the KPI Transactions and, to the extent
such representations and warranties relate to the German Borrower and its
Subsidiaries, after giving effect to the German Acquisition; provided, that
pursuant to Section 10.14, the representations and warranties with respect to
the German Borrower shall not be effective until the German Borrower and its
Subsidiaries satisfies the conditions set forth in Section 5.2, and at such time
the German Borrower may update the Disclosure Schedule to the extent necessary
to make such representations true and correct in all material respects.
SECTION 6.1. Organization, etc.
The U.S. Borrower and each of its Domestic Subsidiaries is a
corporation validly organized and existing and in good standing under the laws
of the State of its incorporation, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its business requires such qualification, except where the failure to qualify
could not reasonably be expected to have a Material Adverse Effect, and has full
power and authority and holds all requisite governmental licenses, permits and
other approvals to enter into and perform its Obligations under this Agreement,
the Notes and each other Loan Document to which it is a party and to own and
hold under lease its property and to conduct its business (except for those
licenses, permits or other approvals the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect) and the German
Borrower, each of its Subsidiaries and each foreign Subsidiary of the U.S.
Borrower is an entity as set forth on Item 6.1 of the Disclosure Schedule, is
validly organized and existing under the laws of its country of formation, is
duly qualified to do business and is in good standing in each jurisdiction where
the nature of its business requires such qualification, except where the failure
to so qualify could not reasonably be expected to have a Material Adverse
Effect, and has full power and authority and holds all requisite governmental
licenses, permits and other approvals to enter into and perform its Obligations
under this Agreement, the Notes and each other Loan Document to which it is a
party and to own and hold under lease its property and to conduct its business
(except for those licenses, permits or other approval the failure of which to
obtain could not reasonably be expected to have a Material Adverse Effect).
SECTION 6.2. Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by each Borrower of this
Agreement, and the Notes and each other Loan Document executed or to be executed
by it, and the execution, delivery and performance by each other Obligor of each
Loan Document executed or to be
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executed by it are within such Borrower's and each such Obligor's corporate or
other powers, have been duly authorized by all necessary corporate or other
appropriate action, and do not
(a) contravene the Borrower's or any such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting such Borrower or any
such Obligor which could not reasonably be expected to result in a Material
Adverse Effect; or
(c) result in, or require the creation or imposition of, any Lien on
either of the Borrower's or any Obligor's properties (except as contemplated
hereunder).
SECTION 6.3. Government Approval, Regulation, etc.
Except as set forth in Item 6.3 of the Disclosure Schedule, no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required (which
has not already been obtained or where the failure to obtain could not
reasonably be expected to have a Material Adverse Effect) for the due execution,
delivery or performance by either Borrower or any other Obligor of this
Agreement, the Notes or any other Loan Document to which it is a party, except
for the filing of UCC financing statements the filing of collateral assignments
with respect to Intellectual Property and recording of the amendments to
Mortgages. Neither Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 6.4. Validity, etc.
This Agreement constitutes, and each other Loan Document executed by
any Obligor will, on the due execution and delivery thereof, constitute, the
legal, valid and binding obligations of such Obligor enforceable in accordance
with their respective terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by principles of equity).
SECTION 6.5. Financial Information.
Dura's annual audited report for the 1995 Fiscal Year and all balance
sheets, all statements of operations, shareholders' equity and cash flow, and
all other financial information of each of Dura, the Borrowers, and their
Subsidiaries which have been or shall hereafter be furnished pursuant to Section
7.1.1 have been or will be prepared in accordance with GAAP consistently applied
(except as expressly provided herein), and do or will present fairly in all
material respects the consolidated financial condition of the corporations
covered thereby as at the dates thereof and the results of their operations for
the periods then ended, except that quarterly
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financial statements need not include footnote disclosure and may be subject to
ordinary year-end adjustment.
SECTION 6.6. No Material Adverse Change, etc.
Since December 31, 1995 there has been no material adverse change in
the financial condition, results of operations, assets, business or properties
of Dura and its Subsidiaries taken as a whole; as of the date of the initial
Credit Extension to the U.S. Borrower, to the extent such representation and
warranty relates to the U.S. Borrower and its Domestic Subsidiaries, and as of
the date of the initial Credit Extension to the German Borrower, to the extent
such representation and warranty relates to the German Borrower and its
Subsidiaries, except as disclosed in Item 6.6 of the Disclosure Schedule, there
is no pending or, to the knowledge of either Borrower or Dura, threatened
litigation, arbitration, action, governmental investigation or proceeding or
labor controversy affecting Dura or any Subsidiary of Dura, or any of their
respective properties, businesses, assets or revenues, which could reasonably be
expected to have a Material Adverse Effect; and as of the date of the initial
Credit Extension to the U.S. Borrower, to the extent such representation and
warranty relates to the U.S. Borrower and its Domestic Subsidiaries, and as of
the date of the initial Credit Extension to the German Borrower, to the extent
such representation and warranty relates to the German Borrower and its
Subsidiaries, no materially adverse development has occurred in any such
litigation, arbitration, action, governmental investigation or proceeding or
labor controversy disclosed in such Item 6.6 of the Disclosure Schedule which
could reasonably be expected to have a Material Adverse Effect.
SECTION 6.7. Subsidiaries.
As of the date of the initial Credit Extension to the U.S. Borrower,
the U.S. Borrower has no Subsidiaries, except those Subsidiaries which are
identified in Item 6.7 of the Disclosure Schedule and the German Borrower will
have, as of the date of the Initial Credit Extension to the German Borrower, no
Subsidiaries, except those Subsidiaries which are identified on Item 6.7 of the
Disclosure Schedule.
SECTION 6.8. Ownership of Properties.
Each Borrower and each of its respective Subsidiaries owns good and
marketable fee title or leasehold interest (as the case may be) to all of its
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever (including patents, trademarks, trade names, service marks and
copyrights), free and clear of all Liens or claims (including infringement
claims with respect to patents, trademarks, copyrights and the like) (except as
permitted pursuant to Section 7.2.3 or as otherwise consented to by the Required
Lenders) used in the operation of its business.
SECTION 6.9. Taxes.
Except as disclosed on Item 6.9 of the Disclosure Schedule, Dura, each
Borrower and each of their respective Subsidiaries has filed all tax returns and
reports required by law to
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have been filed by it and has paid all taxes and governmental charges thereby
shown to be owing, except any such taxes or charges which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
SECTION 6.10. Pension and Welfare Plans.
(a) During the twelve consecutive month period prior to the date of
the initial Credit Extension to the U.S. Borrower and prior to the date of any
other Credit Extension hereunder, no formal steps have been taken to terminate
any Pension Plan other than in a standard termination under Section 4041(b) of
ERISA, and no contribution failure has occurred with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA. No condition
exists or event or transaction has occurred with respect to any Pension Plan
which (i) could result in the incurrence by a Borrower or any Subsidiary of any
liability, fine or penalty, other than the liability to make contributions when
due in the ordinary course and to pay premiums to the PBGC or any similar
applicable foreign entity or individuals or (ii) could result in the incurrence
by a member of such Borrower's Controlled Group (other than such Borrower and
its Subsidiaries) of any material liability, fine or penalty other than
conditions, events or transactions which could not reasonably be expected to
result in the incurrence by such Borrower or any Subsidiary of any material
liability.
(b) Except for liabilities arising under the terms and conditions, as
in effect on the date of the initial Credit Extensions to the U.S. Borrower,
with respect to the U.S. Borrower and its Domestic Subsidiaries and to the
German Borrower with respect to the German Borrower and its Subsidiaries, of the
Plans disclosed in Item 6.10 of the Disclosure Schedule, neither Borrower nor
any Subsidiary has any contingent liability with respect to any post-retirement
benefit under a Welfare Plan or similar applicable foreign plan, other than (i)
liability for continuation coverage described in Part 6 of Title I of ERISA or
(ii) a modification of, or addition to, the retiree benefit obligations
disclosed at Item 6.10 of the Disclosure Schedule which when taken together with
any other addition or modification since the initial Credit Extensions to the
U.S. Borrower, with respect to the U.S. Borrower and its Domestic Subsidiaries
and to the German Borrower with respect to the German Borrower and its
Subsidiaries, does not materially increase such Borrower's and its Subsidiaries
annual cost of providing such benefits.
(c) All statistics provided to the Agent or any Lender relating to the
funded status of the Pension Plans or to post-retirement benefit expenses and
liabilities are based on actuarial assumptions that are reasonable individually
and in the aggregate.
SECTION 6.11. Environmental Warranties.
Except as set forth in Item 6.11 of the Disclosure Schedule:
(a) all facilities and property (including underlying groundwater)
owned or leased by a Borrower or any of its Subsidiaries have been, and continue
to be, owned or
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leased by such Borrower and its Subsidiaries in compliance with all
Environmental Laws (except for such noncompliance which could not reasonably be
expected to have a Material Adverse Effect);
(b) As of the date hereof, there are no pending or, to the best of
Dura's or either Borrower's knowledge, threatened claims, complaints, notices or
requests for information received by a Borrower or any of its Subsidiaries with
respect to any alleged violation of any Environmental Law or potential liability
under Environmental Law which could reasonably be expected to have a Material
Adverse Effect;
(c) there are or have been no Releases of, or conditions of
contamination by, Hazardous Materials at, on or under any property now or, to
the best knowledge of either Borrower, previously owned or leased by a Borrower
or any of its Subsidiaries that have, or could reasonably be expected to have, a
Material Adverse Effect;
(d) each Borrower and its Subsidiaries have been issued and are in
compliance with all permits, certificates, approvals, licenses and other
authorizations relating to environmental matters and necessary for their
businesses except where the failure to obtain or comply with such authorization
could not reasonably be expected to have a Material Adverse Effect;
(e) no property owned as of the date of the initial Credit Extension
or previously owned or leased by a Borrower or any of its Subsidiaries is listed
or proposed for listing in a federal or state official publication on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
state or foreign list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or, to the best
knowledge of either Borrower, previously owned or leased by a Borrower or any of
its Subsidiaries that have, or could reasonably be expected to have, a Material
Adverse Effect;
(g) neither Borrower nor any Subsidiary of a Borrower has directly
transported or directly arranged for the transportation of any Hazardous
Material to any location which is listed or, to the best knowledge of either
Borrower, proposed for listing on the National Priorities List pursuant to
CERCLA, on the CERCLIS or on any similar state or foreign list or which is, to
the best knowledge of either Borrower, the subject of federal, foreign, state or
local enforcement actions or other investigations which could reasonably be
expected to lead to claims against either Borrower or such Subsidiary thereof
for any remedial work, damage to natural resources or personal injury, including
claims under CERCLA, which have, or could reasonably be expected to have, a
Material Adverse Effect;
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property now or previously owned or leased by a Borrower or any
Subsidiary of a Borrower that have, or could reasonably be expected to have, a
Material Adverse Effect; and
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(i) no conditions exist at, on or under any property now or, to the
best knowledge of either Borrower, previously owned or leased by a Borrower
which, with the passage of time, or the giving of notice or both, could
reasonably be expected to give rise to liability under any Environmental Law
which could reasonably be expected to have a Material Adverse Effect, and no
generation, manufacture, storage, treatment, transportation or disposal of
Hazardous Material has occurred or is occurring on or from any property owned by
either Borrower which generation, manufacture, storage, treatment,
transportation or disposal has, or could reasonably be expected to have, a
Material Adverse Effect.
SECTION 6.12. Regulations G, T, U and X.
Neither Borrower is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock, and no proceeds of any
Credit Extensions will be used for a purpose which violates, or would be
inconsistent with, Federal Reserve Board Regulation G, T, U or X. Terms for
which meanings are provided in Federal Reserve Board Regulation G, T, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 6.13. Accuracy of Information.
To the best knowledge of Dura and each Borrower, all factual
information heretofore or contemporaneously furnished by or on behalf of a
Borrower in writing to the Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby (including the
Disclosure Schedule) is, and all other such factual information hereafter
furnished in connection with this Agreement or any other Loan Document by or on
behalf of a Borrower or any other Obligor to the Agent or any Lender will be,
true and accurate in all material respects on the date as of which such
information is dated or certified and as of the date of execution and delivery
of this Agreement by the Agent and each Lender, and such information, to the
best knowledge of Dura and each Borrower, is not, or shall not be, as the case
may be, incomplete by omitting to state any material fact necessary to make such
information not misleading. All projections prepared by or on behalf of either
Borrower or any other Obligor contained in any documents or materials furnished
to the Agent or any Lender have been prepared in good faith and represent Dura's
and such Borrower's or such Obligor's best estimates as of the date of
preparation of reasonably expected future performance, but actual results may
differ and such differences may be material.
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants.
Each Borrower agrees with the Agent and each Lender that, until all
Revolving Loan Commitments have terminated and all Obligations have been paid
and performed in full, each Borrower will perform or caused to be performed the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc.
The U.S. Borrower will furnish, or will cause to be furnished, to each
Lender and the Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 45 days after the end
of the first three Fiscal Quarters of each Fiscal Year of the U.S. Borrower, a
consolidated and consolidating balance sheet of Dura and its Subsidiaries as of
the end of such Fiscal Quarter and consolidated and consolidating statements of
earnings and consolidated and consolidating statements of cash flow of Dura and
its Subsidiaries for such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal Quarter,
certified by the chief accounting, financial or executive Authorized Officer of
Dura;
(b) as soon as available and in any event within 90 days after the end
of each Fiscal Year of Dura, a copy of the annual audited report for such Fiscal
Year for Dura and its Subsidiaries, including therein a consolidated balance
sheet of Dura and its Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and consolidated statements of cash flow of
the Borrower and its Subsidiaries for such Fiscal Year, in each case certified
(without any Impermissible Qualification) by Arthur Andersen & Co. or other
independent public accountants reasonably acceptable to the Agent, together with
(x) a certificate from such accountants containing a statement to the effect
that, in making the audit necessary for the signing of such annual report by
such accountants, they are aware that the Agent and the Lenders are relying on
such annual report and audit and that they have not become aware of any Default
or Event of Default that has occurred and is continuing, or, if they have become
aware of such Default or Event of Default, describing such Default or Event of
Default and (y) unaudited consolidating balance sheets, statements of earnings
and statements of cash flow of Dura and its Subsidiaries for such Fiscal Year,
prepared on a consistent basis;
(c) as soon as available and in any event within 45 days after the end
of each Fiscal Quarter, Compliance Certificates, executed by the chief financial
Authorized Officer of the U.S. Borrower;
(d) as soon as possible and in any event within five (5) Banking Days
after Dura's, either Borrower's or any Subsidiary's knowledge of the occurrence
of a Default, a
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statement of an Authorized Officer of the applicable Borrower setting forth
details of such Default and the action which such Borrower has taken and
proposes to take with respect thereto;
(e) as soon as possible and in any event within five (5) Banking Days
after Dura's, either Borrower's or any Subsidiary's knowledge of (x) the
occurrence of any material adverse development with respect to any litigation,
action, proceeding, or labor controversy disclosed in Item 6.6 of the Disclosure
Schedule or (y) the commencement of any litigation, arbitration, action,
governmental investigation or proceeding or labor controversy of the type and
materiality disclosed in Item 6.6 of the Disclosure Schedule, notice thereof
and, to the extent the Agent reasonably requests, copies of such documentation
relating thereto;
(f) promptly after the sending or filing thereof, copies of all
reports and registration statements which Dura or any of its Subsidiaries files
with the Securities and Exchange Commission or any national securities exchange;
(g) promptly upon becoming aware of the institution of any steps by
the U.S. Borrower or any other Person to terminate any Pension Plan, or the
failure to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(f) of ERISA, or the taking
of any action with respect to a Pension Plan which could result in the
requirement that such Borrower furnish a bond or other security to the PBGC or
such Pension Plan, or the occurrence of any event with respect to any Pension
Plan which could result in the incurrence by a Borrower of any material
liability, fine or penalty, or any material increase in the contingent liability
of a Borrower (including the incurrence of any liability described in clause (b)
of Section 6.10) with respect to any post-retirement Welfare Plan benefit,
notice thereof and copies of all documentation relating thereto;
(h) promptly upon receipt thereof, copies of all detailed financial
and management reports submitted to Dura or either Borrower by the independent
public accountants referred to in clause (b) of this Section 7.1.1 in connection
with each audit made by such accountants of the books of either Borrower or any
of their respective Subsidiaries;
(i) promptly when available and in any event within thirty (30)
Banking Days after the last day of each Fiscal Year of each Borrower, a budget
for the next three succeeding Fiscal Years, which budget shall be prepared on a
month by month basis for the next succeeding Fiscal Year and on an annual basis
for the next two succeeding Fiscal Years in a manner and form permitting easy
comparison to financial statements delivered pursuant to clause (a) above, and
shall contain a projected, consolidated balance sheet and statement of cash flow
and consolidated and consolidating statement of earnings of Dura and its
Subsidiaries for such succeeding Fiscal Years, prepared in reasonable detail by
the chief accounting, financial or executive Authorized Officer of the U.S.
Borrower; and
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(j) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as the Agent
or any Lender through the Agent may from time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc.
Each Borrower will, and will cause each of its Subsidiaries to, comply
with all applicable laws, rules, regulations and orders (except for such
noncompliance which could not reasonably be expected to have a Material Adverse
Effect) such compliance to include:
(a) the maintenance and preservation of its corporate or other
organizational form of existence and qualification as a foreign entity in all
jurisdictions in which such qualification is necessary; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property except
to the extent being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION 7.1.3. Maintenance of Properties.
Each Borrower will, and will cause each of its Subsidiaries to,
maintain, preserve, protect and keep its properties in good repair, working
order and condition, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times unless such Borrower reasonably determines in
good faith that the continued maintenance of any of its properties is no longer
economically desirable.
SECTION 7.1.4. Insurance.
(a) Each Borrower shall maintain, and shall cause each of its
Subsidiaries to maintain:
(i) physical damage insurance on all real and personal
property (including inventory) on an all-risk basis (including loss in transit,
earthquake, if available, and flood insurance), repair and replacement cost of
all such property and consequential loss coverage for business interruption and
extra expenses;
(ii) public liability insurance (including products and
completed operations liability coverage) in an aggregate amount of not less than
$3,000,000; and
(iii) such other additional insurance coverage in such amounts
and with respect to such risks as the Agent may reasonably request from time to
time which is customary for businesses similar to that of such Borrower and its
Subsidiaries.
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(b) All such insurance shall be provided by insurers having an A.M.
Best policyholders rating of not less than A-, or such other insurers as the
Agent may approve in writing.
(c) All premiums on insurance policies required under this Section
shall be paid when due and payable by their terms by the applicable Borrower or
Subsidiary. All insurance policies with respect to the U.S. Borrower and its
Domestic Subsidiaries shall contain loss payable clauses in the form submitted
to the Borrower by the Agent or in other form and substance reasonably
satisfactory to the Agent, naming the Agent as loss payee, for the benefit of
the Agent and the Lenders (except the insurance policies referred to in clause
(a)(ii) above), and the Lenders and the Agent as additional insured parties, as
their interest may appear, and providing that
(i) all proceeds thereunder which relate to losses or damages
sustained in respect of any item thereunder shall be payable to the Agent for
the benefit of the Agent and the Lenders, as their interest may appear, and
(ii) such insurance shall not be affected by any unintentional
act or negligence on the part of the U.S. Borrower or other owner of the policy
or the property described in such policy.
All such insurance policies shall provide that the insurer shall, simultaneously
with the delivery to either Borrower or such Subsidiary of any notice under such
policy, deliver to the Agent a copy of such notice. All such insurance policies
and loss payable clauses shall provide that they may not be cancelled, amended
or terminated unless the Agent is given at least the same number of days' notice
that the insurance company which issued such policies is required to give such
Borrower or any Subsidiary, but in no event less than 10 day's prior written
notice of cancellation or termination for the non-payment of insurance premiums
and 30 day's prior written notice for any other cancellation or termination. So
long as no Default has occurred and is continuing, proceeds of such insurance
for all losses equal to or less than $500,000 per occurrence shall be paid
directly to such Borrower to repair, replace, restore or substitute such damaged
property. Proceeds for all losses in excess of $500,000 per occurrence, at the
request of the Agent, shall be paid directly to the Agent for its benefit and
the benefit of the Lenders; provided, that if no Default has occurred and is
continuing, the Agent shall remit to such Borrower all or a portion of such
proceeds to permit such Borrower to repair, replace, restore or substitute such
damaged property, if the Agent has received written evidence reasonably
satisfactory to the Agent to the effect that (i) such proceeds are necessary and
in an amount sufficient to pay all costs of repair, replacement, restoration or
substitution of such damaged property and (ii) the damaged property can be
repaired, replaced, restored or substituted prior to the termination of the
Revolving Loan Commitments to an economical unit of substantially the same
character and value as such property was prior to such damage. Unless remitted
to a Borrower hereunder, proceeds received by the Agent shall be applied to the
Obligations as provided in Section 13 of the Security Agreement.
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<PAGE>
(d) Neither Borrower will, nor will it permit any of its Subsidiaries
to, use any of its or their inventory, or permit the inventory to be used,
unlawfully or in any manner inconsistent with the terms of any insurance
coverage.
(e) At all times, with respect to each of Borrowers' and their
Subsidiaries real properties which are located in any area which has been
identified as having special flood hazard by the Federal Emergency Management
Agency or otherwise pursuant to the National Flood Insurance Reform Act of 1994,
insurance against flood, for a term of not less than the term of this Agreement
and in such amount as Agent shall reasonably require.
Each Borrower shall retain all the incidents of ownership of the
insurance maintained pursuant to this Section and shall not borrow upon or
otherwise impair its right to receive the proceeds of such insurance.
SECTION 7.1.5. Books and Records.
Dura and each Borrower will, and will cause each of its Subsidiaries
to, keep books and records which accurately reflect in all material respects its
business affairs and transactions and permit the Agent, any Lender or any of
their representatives, at reasonable times and intervals, upon reasonable
notice, to visit all of each Borrower's and its Subsidiaries' offices, to
discuss its financial matters with such Borrower's and such Subsidiaries'
officers and independent public accountant (and each Borrower hereby authorizes
such independent public accountant to discuss such Borrower's or such
Subsidiaries' financial matters with the Agent, any Lender or their
representatives whether or not any representative of such Borrower or such
Subsidiary is available to be present) and to examine (and, at the expense of
such Borrower, photocopy extracts from) any of its books or other corporate
records; provided, that neither Borrower shall be liable for any expenses
incurred by the Agent or any Lender under this Section.
SECTION 7.1.6. Environmental Covenant.
Each Borrower will, and will cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties and handle
all Hazardous Materials in compliance with all Environmental Laws (except for
such noncompliance which could not reasonably be expected to have a Material
Adverse Effect), and keep all necessary permits, approvals, certificates,
licenses and other authorizations relating to environmental matters in effect,
except for such of the foregoing, the failure to obtain or maintain which could
not reasonably be expected to have a Material Adverse Effect;
(b) promptly notify the Agent and provide copies upon receipt of all
written claims, complaints, notices or inquiries relating to the condition of
its facilities and properties or compliance with Environmental Laws which could
reasonably be expected to have a Material Adverse Effect, and shall promptly
resolve any non-compliance with Environmental Laws, through remediation or
otherwise and keep its property free of any Lien imposed by any Environmental
Law, except as permitted under Section 7.2.3; and
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<PAGE>
(c) provide such information and certifications which the Agent may
reasonably request from time to time to evidence compliance with this Section
7.1.6.
SECTION 7.2. Negative Covenants.
Each Borrower agrees with the Agent and each Lender that, until all
Commitments have terminated and all Loans and Letter of Credit Outstandings have
been paid and performed in full, each Borrower will perform the obligations set
forth in this Section 7.2.
SECTION 7.2.1. Business Activities.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, engage in any business activity, except those currently
conducted by Dura and Borrowers or any of their respective Subsidiaries and such
other activities that are reasonably related thereto or extensions thereof.
SECTION 7.2.2. Indebtedness.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist or otherwise become or
be liable in respect of any Indebtedness, other than, without duplication, the
following:
(a) Indebtedness in respect of the Credit Extensions and other
Obligations (including Hedging Obligations in respect of such Credit
Extensions);
(b) Indebtedness existing as of the initial Credit Extension to each
Borrower with respect to Dura, each such Borrower and its Subsidiaries, as
identified in Item 7.2.2(b) of the Disclosure Schedule;
(c) Indebtedness which is incurred by Dura, a Borrower or any of its
respective Subsidiaries to a vendor of any assets or assumed by a Borrower or
any of its Subsidiaries from a vendor to finance its acquisition of such assets;
(d) Indebtedness in respect of Capitalized Lease Liabilities; and
(e) other unsecured Indebtedness of Dura, a Borrower or any of its
Subsidiaries not to exceed $10,000,000 in aggregate principal amount at any time
outstanding.
SECTION 7.2.3. Liens.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets, whether now owned or hereafter acquired,
except:
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(a) Liens securing payment of the Obligations, granted pursuant to any
Loan Document;
(b) Liens existing as of the initial Credit Extension to each
Borrower, with respect to each Borrower and its Subsidiaries, as disclosed in
Item 7.2.3(b) of the Disclosure Schedule;
(c) Liens granted to secure payment of Indebtedness of the type
permitted and described in clause (c) of Section 7.2.2 and covering only those
assets acquired with the proceeds of such Indebtedness;
(d) Liens arising pursuant to Capitalized Lease Liabilities permitted
under clause (d) of Section 7.2.2;
(e) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;
(f) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books;
(g) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds; and
(h) Easements, rights-of-way, restrictions, and other similar charges
or encumbrances with respect to real property not interfering in any material
respect with the ordinary conduct of the business of such Borrower or any of its
Subsidiaries (including those described on any title commitment delivered to the
Agent pursuant to Section 5.1.6 with respect to any of the owned or leased
property).
SECTION 7.2.4. Financial Condition.
(a) The Interest Coverage Ratio for any period set forth below, shall
not be less than the ratio set forth opposite such period:
<TABLE>
<CAPTION>
PERIOD RATIO
===================================================
<S> <C>
For the Fiscal Quarter Period ending on 2.5:1.00
the last day of the First Fiscal
Quarter 1997
===================================================
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
===================================================
<S> <C>
For the two Fiscal Quarter period 2.5:1.00
ending on the last day of the Second
Fiscal Quarter 1997
===================================================
For the three Fiscal Quarter period 2.5:1.00
ending on the last day of the Third
Fiscal Quarter 1997
===================================================
For the four Fiscal Quarter period 2.75:1.00
ending on the last day of each of the
Fourth Fiscal Quarter 1997 and the
first Three Fiscal Quarters during
Fiscal Year 1998
===================================================
For the four Fiscal Quarter period 3.0:1.00
ending on the last day of each Fiscal
Quarter thereafter
===================================================
</TABLE>
(b) The Leverage Ratio shall not, as of the end of each Fiscal Quarter
during the periods set forth below be greater than the ratio set forth opposite
such period:
<TABLE>
<CAPTION>
PERIOD RATIO
======================================================
<S> <C>
From the date hereof to, but not 0.60:1.0
including, the last day of the Fourth
Fiscal Quarter 1997
======================================================
From the last day of the Fourth Fiscal 0.55:1.0
Quarter 1997 to, but not including,
the last day of the Fourth Fiscal
Quarter 1998
======================================================
At all times thereafter 0.50:1.0
======================================================
</TABLE>
SECTION 7.2.5. Investments.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, make, incur, assume or suffer to exist any Investment in any
other Person, except:
(a) Investments existing on the Effective Date with respect to such
Borrower and identified in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments by Dura and the U.S. Borrower as of the Effective Date
with respect to the U.S. Borrower (or by the German Borrower as of the date of
the Counterpart Agreement, in the case of the German Borrower) in any of its
Subsidiaries, or by any such Subsidiary in any of its Subsidiaries;
(d) Sales of inventory on account in the ordinary course of business;
(e) Investments by a Borrower or any of its Subsidiaries in tooling so
long as the amount by which such Investments exceed the amount of the
contractual obligations to
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reimburse such Borrower and its Subsidiaries for such tooling is not greater
than $5,000,000 at any time;
(f) Investments by Dura or a Borrower or another Obligor for the
acquisition of the stock or assets of any Person, to the extent the purchase
price (including any assumed liabilities) for any such acquisition does not
exceed $75,000,000 or otherwise result in an Event of Default;
(g) other Investments in an aggregate amount at any one time not to
exceed 10% of Net Worth at the time of such investment; and
(h) the KPI Transaction and the German Acquisition.
SECTION 7.2.6. Restricted Payments, etc.
On and at all times after the Effective Date:
(a) the U.S. Borrower will not declare, pay or make any dividend or
distribution (in cash, property or obligations) on any shares of any class of
capital stock (now or hereafter outstanding) of the U.S. Borrower or on any
warrants, options or other rights with respect to any shares of any class of
capital stock (now or hereafter outstanding) of the U.S. Borrower (other than
dividends or distributions payable in its common stock or warrants to purchase
its common stock or splitups or reclassifications of its stock into additional
or other shares of its common stock) or apply, or permit any of its Subsidiaries
to apply, any of its funds, property or assets to the purchase, redemption,
sinking fund or other retirement of, or agree or permit any of its Subsidiaries
to purchase or redeem, any shares of any class of capital stock (now or
hereafter outstanding) of the U.S. Borrower, or warrants, options or other
rights with respect to any shares of any class of capital stock (now or
hereafter outstanding) of the U.S. Borrower; provided that the U.S. Borrower may
(i) pay dividends to or on behalf of MC or Dura under a tax sharing arrangement
reasonably acceptable to the Agent so long as such tax sharing arrangement is
based on the method prescribed in Treas. Reg. (S) 1.1502-33(d)(2)(ii) and on the
method prescribed in Treas. Reg. (S) 1.1552-1(a)(2) (and using 100% percent as
the percentage described in Treas. Reg. (S) 1.1502-33(d)(2)(ii)(b)), (ii) pay
dividends to or on behalf of MC in the amount of MC's and Dura's franchise taxes
and audit fees incurred in the ordinary course of MC's and Dura's business,
(iii) pay to Dura amounts necessary to pay ordinary operating expenses incurred
by Dura and (iv) pay dividends to or on behalf of MC or Dura to repurchase the
capital stock of Dura owned by members of management whose employment has been
terminated so long as the aggregate amount of such repurchases in any Fiscal
Year does not exceed $500,000 and no Event of Default then exists or would be
caused thereby.
(b) neither Borrower will, nor will it permit any Subsidiary to, make
any deposit for any of the foregoing purposes.
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SECTION 7.2.7. Rental Obligations.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, enter into at any time any arrangement which involves the
leasing by Dura, either Borrower or any of its Subsidiaries from any lessor of
any real or personal property (other than those which would create a Capitalized
Lease Liability), except arrangements which, together with all other such
arrangements which shall then be in effect, will not require the payment of an
aggregate amount of rentals by Dura, the Borrowers and its Subsidiaries on a
consolidated basis in any period set forth below to exceed the amount set forth
opposite such period:
==============================================================================
| PERIOD | AMOUNT |
|------------------------------------------------------------|---------------|
| 1996 Fiscal Year and each Fiscal Year thereafter | $5,000,000 |
| | |
==============================================================================
SECTION 7.2.8. Take or Pay Contracts.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, enter into or be a party to any arrangement for the purchase of
materials, supplies, other property or services if such arrangement by its
express terms requires that payment be made by such Borrower or such Subsidiary
regardless of whether such materials, supplies, other property or services are
delivered or furnished to it.
SECTION 7.2.9. Consolidation, Merger, etc.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, liquidate or dissolve, consolidate with, or merge into or with,
any other corporation, or purchase or otherwise acquire all or substantially all
of the assets of any Person (or of any division thereof) except with respect to
Investments permitted pursuant to Sections 7.2.5(f), 7.2.5(g) and 7.2.5(h), and
any such Subsidiary may liquidate or dissolve voluntarily into, and may merge
with and into, a Borrower or any other Subsidiary and MC may merge with and into
the U.S. Borrower or Dura.
SECTION 7.2.10. Asset Dispositions, etc.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, sell, transfer, lease, contribute or otherwise convey, or grant
options, warrants or other rights with respect to, all or any substantial part
of its assets (including accounts receivable and capital stock of Subsidiaries)
to any Person, except (a) bona fide sales of inventory to customers for fair
value in the ordinary course of business, (b) dispositions of obsolete equipment
not used in its business, (c) dispositions of equipment for fair value in the
ordinary course of business to the extent the proceeds of such disposition are
used to acquire replacement equipment within 120 days of such disposition, and
(d) additional dispositions of property so long as the aggregate proceeds from
such additional dispositions in any Fiscal Year does not exceed 10% of the
aggregate value of the assets of Dura, the Borrowers and their Subsidiaries as
of the first day of such Fiscal Year and no Event of Default then exists or
would otherwise be caused thereby.
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SECTION 7.2.11. Intentionally Omitted.
SECTION 7.2.12. Restriction on Fundamental Changes.
None of Dura, nor either Borrower nor any of its respective
Subsidiaries will: (a) amend, modify or waive any term or provision of its
Organizational Documents which would materially adversely affect Dura's, such
Borrower's or any Subsidiary's ability to perform its obligations under the Loan
Documents; (b) liquidate, wind-up or dissolve itself (or suffer any liquidation
or dissolution); or (c) acquire by purchase or otherwise all or any substantial
part of the business or assets of, or stock or other evidence of beneficial
ownership of, any Person except as permitted by Section 7.2.9.
SECTION 7.2.13. Fiscal Year.
None of Dura, nor either Borrower nor any of its respective
Subsidiaries shall change its Fiscal Year; provided, that KPI Michigan shall
change its Fiscal Year to coincide with Dura's Fiscal Year.
SECTION 7.2.14. Subsidiaries.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, establish, create or acquire any new Subsidiary unless (i) if
such Subsidiary is a Domestic Subsidiary of the U.S. Borrower which, at any time
has assets having a fair value constituting 5% or more of the total assets of
Dura and its Subsidiaries on a consolidated basis at fair value, or 5% or more
of the total revenues of Dura and its Subsidiaries on a consolidated basis, such
Subsidiary executes a guaranty of the Obligations of the Borrowers and executes
a Security Agreement granting a security interest in substantially all of its
assets or (ii) if such subsidiary is a Subsidiary of the German Borrower which,
at any time has assets having a fair value constituting 5% or more of the total
assets of Dura and its Subsidiaries on a consolidated basis, or 5% or more of
the total revenues of Dura and its Subsidiaries on a consolidated basis at fair
value, such Subsidiary executes a guaranty of the Obligations of the German
Borrower, to the extent permitted by applicable law.
SECTION 7.2.15. Transactions with Affiliates.
None of Dura, nor either Borrower will, nor will it permit any of its
Subsidiaries to, enter into, or cause, suffer or permit to exist any arrangement
or contract with any of its Affiliates unless such arrangement or contract is
fair and equitable to Dura, such Borrower or such Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of Dura, such Borrower or such Subsidiary with a Person
which is not one of its Affiliates, except as provided in the following
sentence. Neither Borrower shall pay any management or similar fees to Hidden
Creek Industries or any Affiliate in excess of $2,000,000 in any Fiscal Year.
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SECTION 7.2.16. Negative Pledges, Restrictive Agreements, etc.
Except as otherwise permitted by this Agreement, none of Dura, either
Borrower, nor any of their Subsidiaries will enter into any agreement (excluding
this Agreement, any other Loan Document, any agreement governing any
Indebtedness permitted by clause (c) or (d) of Section 7.2.2 as to the assets
financed with the proceeds of such Indebtedness or, with respect to clause (a)
below, the agreements disclosed in Item 7.2.16(a) of the Disclosure Schedule)
prohibiting
(a) the creation or assumption of any Lien upon its properties,
revenues or assets, whether now owned or hereafter acquired, or the ability of
Dura, either Borrower or any other Obligor to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of any Subsidiary to make any payments, directly or
indirectly, to a Borrower by way of dividends, advances, repayments of loans or
advances, reimbursements of management and other intercompany charges, expenses
and accruals or other returns on investments, or any other agreement or
arrangement which restricts the ability of any such Subsidiary to make any
payment, directly or indirectly, to a Borrower.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default.
Each of the following events or occurrences described in this Section
8.1 shall constitute an "Event of Default".
SECTION 8.1.1. Non-Payment of Obligations.
Either Borrower shall default in the payment when due of any principal
in respect of its Loans; or either Borrower shall default in the payment when
due of any interest, fees or other of its Obligations payable under the Loan
Documents and such default shall continue unremedied for five consecutive days.
SECTION 8.1.2. Breach of Warranty.
Any representation or warranty of a Borrower or any other Obligor made
or deemed to be made hereunder or in any other Loan Document executed by it or
any other writing or certificate furnished by or on behalf of such Borrower or
any other Obligor to the Agent or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
in any material respect.
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SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of
any of its obligations under Section 7.1.1(a), (b) or (c) or Section 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations.
Any Obligor shall default in the due performance and observance of any
other agreement contained herein or in any other Loan Document executed by it,
and such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrowers by the Agent or the Required
Lenders.
SECTION 8.1.5. Default on Other Indebtedness.
A default shall occur in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than Indebtedness described in Section 8.1.1) of a Borrower
or any of its Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $1,000,000 or a default shall occur in the performance
or observance of any obligation or condition with respect to such Indebtedness
if the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause or declare such Indebtedness to
become due and payable or required to be prepaid, redeemed, purchased or
defeased, or an offer to purchase or defease such Indebtedness shall be required
to be made, prior to its expressed maturity.
SECTION 8.1.6. Judgments.
Any one judgment or order for the payment of money in excess of
$1,000,000 or any judgments or orders in the aggregate in excess of $2,000,000
shall be rendered against a Borrower or any of its Subsidiaries or any Obligor
and such judgment or judgments shall not have been vacated, discharged or stayed
or bonded pending appeal within 30 days after the entry thereof; provided, that
if such Borrower's, Subsidiary's or Obligor's insurer shall have admitted
liability for such judgment, judgments or orders, such occurrence shall not
constitute an Event of Default unless such judgment, judgments or orders result
in a judgment lien attaching to such Borrower's, Subsidiary's or Obligor's
properties, which lien is not discharged within 30 days after the occurrence
thereof.
SECTION 8.1.7. Pension Plans.
Any of the following events shall occur with respect to any Pension
Plan
(a) the institution of any steps by a Borrower, any member of its
Controlled Group or any other Person to terminate or withdraw from a Pension
Plan or similar foreign plan if, as a result of such termination or withdrawal,
a Borrower or any of its Subsidiaries
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would be required to make a contribution to such Pension Plan, or would be
liable to such Pension Plan or similar foreign plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension Plan or
similar foreign plan sufficient to give rise to a Lien under Section 302(f) of
ERISA, or any other Lien, and such failure continues for a period of 30 days
(provided, that such contribution failure shall immediately constitute an Event
of Default as soon as such Lien arises).
SECTION 8.1.8. Change in Control.
Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc.
A Borrower or any Obligor shall
(a) generally fail to pay, or admit in writing its inability or
unwillingness to pay, debts as they become due or become insolvent;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver, sequestrator
or other custodian or for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall not be discharged
within 45 days;
(d) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect thereof; or, if any such case or proceeding is not
commenced by a Borrower or any Obligor, such case or proceeding shall be
consented to or acquiesced in by such Borrower or such Obligor or shall result
in the entry of an order for relief or shall remain for 45 days undismissed; or
(e) take any corporate action authorizing, or in furtherance of, any
of the foregoing.
SECTION 8.1.10. Impairment of Security, etc.
Any Loan Document, or any Lien granted thereunder, shall (except in
accordance with its terms), in whole or in part, terminate, cease to be
effective or cease to be the legally valid, binding and enforceable obligation
of any Obligor party thereto; either Borrower, any other Obligor or any other
Person shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability and, with respect to any such other
Person, the Agent has determined such contest to be material.
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SECTION 8.1.11. Default in Other Agreements.
Breach or default of any Obligor under agreement not evidencing
Indebtedness if the effect of such breach or default could reasonably be
expected to have a Material Adverse Effect.
SECTION 8.1.12. Injunction.
Any Obligor is enjoined, restrained or in any way prevented by the
order of any court or any administrative or regulatory agency from conducting
all or any part of its business which could reasonably be expected to have a
Material Adverse Effect and such order continues for more than 30 days.
SECTION 8.2. Action if Bankruptcy.
If any Event of Default described in clauses (a) through (d) of
Section 8.1.9 shall occur and continue, the Revolving Loan Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION 8.3. Action if Other Event of Default.
If any Event of Default (other than any Event of Default described in
clauses (a) through (e) of Section 8.1.9) shall occur and continue for any
reason, whether voluntary or involuntary, and be continuing, the Agent, upon the
direction of the Required Lenders, shall by notice to the Borrowers declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Revolving Loan Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Revolving Loan Commitments shall
terminate.
ARTICLE IX
THE AGENT
SECTION 9.1. Appointment and Authorization
Each Lender hereby irrevocably appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such duties
as are expressly delegated to it by the terms of this Agreement or any other
Loan Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
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responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
SECTION 9.2. Delegation of Duties
The Agent may execute any of its duties under this Agreement or any
other Loan Document by or through agents, employees or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agent or attorney-in-fact that it selects with reasonable care.
SECTION 9.3. Liability of Agent
None of the Agent-Related Persons shall (i) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Loan Document (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Lenders
for any recital, statement, representation or warranty made by any Obligor or
Affiliate of either Borrower, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Loan Document, or
for the value of any Collateral or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of a Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of a Borrower, any other Obligor or the Borrowers' Affiliates.
SECTION 9.4. Reliance by Agent
(a) The Agent shall be entitled to rely, and shall be fully protected
in relying, upon any writing, resolution, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrowers),
independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
or any other Loan Document in accordance with a request or consent of the
Required Lenders and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Lenders.
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(b) For purposes of determining compliance with the conditions
specified in Sections 5.1 and 5.2, each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted or to be satisfied
with each document or other matter either sent by the Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lender.
(c) Unless the Agent shall have been notified by telephone, confirmed
in writing by any Lender by 10:45 a.m., Chicago time, on the day of a Credit
Extension that such Lender will not make available the amount which would
constitute its Percentage of such Credit Extension on the date specified
therefor, the Agent may assume that such Lender has made such amount available
to the Agent and, in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. If such amount is made available by
such Lender to the Agent on a date after the date of such Credit Extension, such
Lender shall pay to the Agent on demand interest on such amount at the Federal
Funds Rate, if such Credit Extension was made in Dollars, or at the Overnight
Rate if such Credit Extension was made in an Offshore Currency, for the number
of days from the date of such Credit Extension to the date on which such amount
becomes immediately available to the Agent, together with such other
compensatory amounts as may be required to be paid by such Lender to the Agent
pursuant to the Rules for Interbank Compensation of the council on International
Banking or the Clearinghouse Compensation Committee, as the case may be, as in
effect from time to time. A statement of the Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive, in the
absence of manifest error. If such amount is not in fact made available to the
Agent by such Lender on the same Banking Day as the date of such Credit
Extension, the Agent shall be entitled to recover such amount, with interest
thereon at the rate per annum then applicable to the Loans comprising such
Credit Extension, on demand, from the applicable Borrower.
SECTION 9.5. Notice of Default
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to defaults
in the payment of principal, interest and fees required to be paid to the Agent
for the account of the Lenders, unless the Agent shall have received written
notice from a Lender or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
give notice thereof to the Lenders. The Agent shall take such action with
respect to such Default or Event of Default as shall be requested by the
Required Lenders in accordance with Article VIII; provided, however, that unless
and until the Agent shall have received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable or
in the best interest of the Lenders, other than accelerating the Obligations or
terminating the Revolving Loan Commitment.
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SECTION 9.6. Credit Decision
Each Lender expressly acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it and that no act by the
Agent hereinafter taken, including any review of the affairs of a Borrower or
any other Obligor shall be deemed to constitute any representation or warranty
by the Agent to any Lender. Each Lender represents to the Agent that it has,
independently and without reliance upon the Agent and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and
other condition and creditworthiness of the Borrowers and each other Obligor,
and all applicable bank regulatory laws relating to the transactions
contemplated thereby, and made its own decision to enter into this Agreement and
extend credit to the Borrowers hereunder. Each Lender also represents that it
will, independently and without reliance upon the Agent and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers and the other Obligors. Except for notices,
reports and other documents expressly herein required to be furnished to the
Lenders by the Agent, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrowers and the other Obligors which may come into the
possession of any of the Agent-Related Persons.
SECTION 9.7. Indemnification
Whether or not the transactions contemplated hereby shall be
consummated, the Lenders shall indemnify upon demand the Agent-Related Persons
(to the extent not reimbursed by or on behalf of the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably, in accordance with
each such Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses and disbursements of any kind whatsoever which may at any time
(including at any time following the repayment of the Loans and the termination
or resignation of the related Agent) be imposed on, incurred by or asserted
against any such Person any way relating to or arising out of this Agreement or
any document contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
any such Person under or in connection with any of the foregoing; provided,
however, that no Lender shall be liable for the payment to the Agent-Related
Persons of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from such Persons' gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender shall reimburse the Agent upon demand
for its ratable share (in accordance with each such Lender's Percentage) of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any
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other Loan Document, or any document contemplated by or referred to herein to
the extent that the Agent is not reimbursed for such expenses by or on behalf of
the Borrowers. Without limiting the generality of the foregoing, if the Internal
Revenue Service or any other governmental authority of the United States or
other jurisdiction asserts a claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any Lender (because the appropriate
form was not delivered, was not properly executed, or because such Lender failed
to notify the Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Lender shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and interest,
and including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses (including
Attorney Costs). The obligation of the Lenders in this Section shall survive the
payment of all Obligations hereunder.
SECTION 9.8. Agent in Individual Capacity
BofA and its Affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory or other business with
any Obligor and its Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, BofA or its Affiliates may receive information
regarding the Borrowers or their Affiliates (including information that may be
subject to confidentiality obligations in favor of the Borrowers or their
Affiliates) and acknowledge that neither BofA nor its Affiliates shall be under
any obligation to provide such information to them. With respect to its Loans,
BofA shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent, and the terms
"Lender" and "Lenders" shall include BofA in its individual capacity.
SECTION 9.9. Successor Agent
The Agent may resign as Agent upon 30 days' notice to the Borrowers
and Lenders. If the Agent shall resign as Agent under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders which successor agent shall, if no Event of Default then exists, be
subject to the approval of the Borrowers (which consent shall not be
unreasonably withheld), or if no Event of Default exists, without the consent of
the Borrowers. If no successor agent is appointed prior to the effective date of
the resignation of the Agent, the Agent may appoint a successor agent from among
the Lenders. Upon the acceptance of its appointment as successor agent
hereunder, such successor agent shall succeed to all the rights, powers and
duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article IX and Sections 10.3 and 10.4 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Lender with the largest Percentage at such time
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(or if more than one Lender has the largest Percentage at such time, all of the
Lenders with the largest Percentages) shall perform all of the duties of the
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.
SECTION 9.10. Collateral Matters
(a) The Agent is authorized on behalf of all the Lenders, without the
necessity of any notice to or further consent from the Lenders, from time to
time to take any action with respect to any Collateral or the Collateral
Documents which may be necessary to perfect and maintain a perfected security
interest in and Liens upon the Collateral granted pursuant to the Loan
Documents.
(b) The Lenders irrevocably authorize the Agent, at its option and in
its discretion, to release any Lien granted to or held by the Agent upon any
Collateral (i) upon termination of the Revolving Loan Commitments and payment in
full of all Loans and all other Obligations payable under this Agreement and
under any other Loan Document; (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting property in which an Obligor owned no interest at
the time the Lien was granted or at any time thereafter; (iv) constituting
property leased to an Obligor under a lease which has expired or been terminated
in a transaction permitted under this Agreement or is about to expire and which
has not been, and is not intended by such Obligor to be, renewed or extended;
(v) consisting of an instrument evidencing Indebtedness or other debt
instrument, if the indebtedness evidenced thereby has been paid in full; or (vi)
if approved, authorized or ratified in writing by the Required Lenders or all
the Lenders, as the case may be, as provided in Section 10.1(b). Upon request by
the Agent at any time, the Lenders will confirm in writing the Agent's authority
to release particular types or items of Collateral pursuant to this Section
9.10(b).
(c) Each Lender agrees with and in favor of each other (which
agreement shall not be for the benefit of the Borrowers or any other Obligor)
that either Borrower's obligation to such Lender under this Agreement and the
other Loan Documents is not and shall not be secured by any real property
collateral now or hereafter acquired by such Borrower or any of its Subsidiaries
other than the real property described in the Mortgages.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc.
The provisions of this Agreement and of each other Loan Document may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by the Borrowers and the
Required Lenders; provided, however, that no such amendment, modification or
waiver shall:
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(a) modify any requirement hereunder that any particular action be
taken by all the Lenders or by the Required Lenders unless consented to by each
Lender;
(b) modify this Section 10.1, change the definition of "Required
Lenders", increase any Revolving Loan Commitment Amount or the Percentage of any
Lender, reduce any fees described in Article III, release collateral security
(including any guaranty) with an aggregate fair market value in excess of
$5,000,000 in any one transaction or series of related transactions (other than
with respect to releases of collateral in connection with dispositions permitted
pursuant to Section 7.2.10 for which no consent is required), or permit any
disposition of assets having a value in excess of the amount of asset
dispositions permitted pursuant to Section 7.2.10 in any one transaction or
series of related transactions or extend the Revolving Loan Commitment
Termination Date unless consented to by each Lender;
(c) extend the Stated Maturity Date on any Loan (or reduce the
principal amount of or rate of interest on any Loan) or modify the payment date
or amount of any required interest payment (it being understood and agreed,
however, that any modification of the application of prepayments required
pursuant to Section 3.1 (or any other similar provision of any Loan Document) or
a vote to rescind any acceleration made pursuant to Section 8.2 and Section 8.3
of amounts owing with respect to the Loans and other Obligations shall only
require the vote of the Required Lenders), unless consented to by each Lender;
(d) affect adversely the interests, rights or obligations of the Agent
as the Agent unless consented to by the Agent; provided, however, that nothing
in this subparagraph shall be deemed to alter the voting requirements of the
Required Lenders; or
(e) modify any provision of Section 2.7, the fees to be paid pursuant
to Section 3.3, or the provisions of any Letter of Credit, unless consented to
by the Issuer.
No failure or delay on the part of the Agent or any Lender in exercising any
power or right under this Agreement or any other Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such power or
right preclude any other or further exercise thereof or the exercise of any
other power or right. No notice to or demand on a Borrower in any case shall
entitle it to any notice or demand in similar or other circumstances. No waiver
or approval by the Agent or any Lender shall, except as may be otherwise stated
in such waiver or approval, be applicable to subsequent transactions. No waiver
or approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
SECTION 10.2. Notices.
All notices and other communications provided to any party hereto
under this Agreement or any other Loan Document shall be in writing or by
facsimile and addressed, delivered or transmitted to such party at its address
or facsimile number set forth below its signature hereto or set forth in an
Assignment and Acceptance Agreement or at such other address or facsimile number
as may be designated by such party in a notice to the other Persons party
hereto. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed
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and sent by pre-paid courier service, shall be deemed given when received; any
notice, if delivered by hand, shall be deemed given when delivered, and if
transmitted by facsimile, shall be deemed given when transmitted.
SECTION 10.3. Payment of Costs and Expenses.
The Borrowers shall, whether or not the transactions contemplated
hereby shall be consummated:
(a) pay or reimburse BofA (in its capacity as Agent) within five (5)
Banking Days after demand for all reasonable costs and expenses incurred by BofA
(in its capacity as Agent) in connection with the development, preparation,
negotiation, delivery, closing, on-going administration and execution of, and
any amendment, supplement, waiver or modification to (in each case, whether or
not consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby, including the reasonable Attorney
Costs incurred by BofA (in its capacity as Agent) with respect thereto;
(b) pay or reimburse each Lender and the Agent within five (5) Banking
Days after demand for all reasonable costs and expenses incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies during the existence of an Event of Default (including in
connection with any "workout" or restructuring regarding the Loans, and
including in any insolvency proceeding or appellate proceeding) under this
Agreement, any other Loan Document, and any such other documents, including
reasonable Attorney Costs, incurred by the Agent and any Lender; and
(c) pay or reimburse BofA (in its capacity as Agent) within five (5)
Banking Days after demand for all appraisal (including the allocated cost of
internal appraisal services), audit, environmental inspection and review
(including the allocated cost of such internal services), search and filing
costs, fees and expenses, incurred or sustained by BofA (in its capacity as
Agent) in connection with the matters referred to under subsections (a) and (b)
of this Section 10.3.
SECTION 10.4. Indemnification.
In consideration of the execution and delivery of this Agreement by
the Agent and each Lender and the extension of the Revolving Loan Commitments,
each Borrower hereby indemnifies, exonerates and holds the Agent, the Arranger,
each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements, whether incurred in connection with actions between or among the
parties hereto or the parties hereto and third parties (collectively, the
"Indemnified
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Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in part,
directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and any other
Loan Document by any of the Indemnified Parties (including any action brought by
or on behalf of a Borrower as the result of any determination by the Required
Lenders pursuant to Article V not to fund any Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by a Borrower or any of its Subsidiaries of
all or any portion of the stock or assets of any Person, whether or not the
Agent or any Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to the
protection of the environment or the Release by a Borrower or any of its
Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real property
owned or operated by a Borrower or any Subsidiary thereof of any Hazardous
Material (including any losses, liabilities, damages, injuries, costs, expenses
or claims asserted or arising under any Environmental Law), regardless of
whether caused by, or within the control of, such Borrower or such Subsidiary;
and
(f) any violation by a Borrower or any of its Subsidiaries of any
Environmental Laws;
except to the extent any such Indemnified Liabilities arise for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct. Each Borrower, its successors and assigns,
hereby waive, release and agree not to make any claim or bring any cost recovery
action against, the Agent or any Lender under CERCLA or any state or foreign
equivalent, or any similar law now existing or hereafter enacted. It is
expressly understood and agreed that to the extent that any of such Persons is
strictly liable under any Environmental Laws, each Borrower's obligation to such
Person under this indemnity shall likewise be without regard to fault on the
part of such Borrower with respect to the violation or condition which results
in liability of such Person. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, each Borrower hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
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SECTION 10.5. Survival.
The obligations of the Borrowers under Sections 4.3, 4.4, 4.5, 4.6,
10.3 and 10.4, and the obligations of the Lenders under Section 9.1, shall in
each case survive any termination of this Agreement, the payment in full of all
Obligations and the termination or expiration of all Revolving Loan Commitments
and Letters of Credit. The representations and warranties made by each Borrower
and each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability.
Any provision of this Agreement or any other Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Agreement
or such Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 10.7. Headings.
The various headings of this Agreement and of each other Loan Document
are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or any provisions
hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc.
This Agreement may be executed by the parties hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement. This Agreement shall
become effective with respect to the U.S. Borrower when counterparts hereof
executed on behalf of the U.S. Borrower, the Agent and each Lender and with
respect to the German Borrower when a counterpart agreement is executed by the
German Borrower and the conditions set forth in Section 5.2 have been satisfied.
SECTION 10.9. Governing Law: Entire Agreement.
THIS AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF ILLINOIS. This Agreement and the other Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, including without limitation the
Original Credit Agreement, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that:
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(a) neither Borrower may assign or transfer its rights or obligations
hereunder without the prior written consent of the Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders are
subject to Section 10.11.
SECTION 10.11. Assignments and Participations.
------------------------------
(a) Any Lender may, with the written consent of the Borrowers and the
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided, that no written consent of
a Borrower or the Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Assignee that is an Affiliate of such
Lender or to any other Lender) (each an "Assignee") all, or any ratable part of
all, of the Loans, the Revolving Loan Commitments and the other rights and
obligations of such Lender hereunder, in a minimum amount of Five Million
Dollars ($5,000,000); provided, however, that the Borrowers and the Agent may
continue to deal solely and directly with such Lender in connection with the
interest so assigned to an Assignee until (i) written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, shall have been given to the Borrowers and the Agent by
such Lender and the Assignee; (ii) such Lender and its Assignee shall have
delivered to the Borrowers and the Agent an Assignment and Acceptance Agreement
in the form of Exhibit N ("Assignment and Acceptance Agreement") together with
any Note or Notes subject to such assignment and (iii) the assignor Lender or
Assignee has paid to the Agent a processing fee in the amount of Three Thousand
Dollars ($3,000).
(b) From and after the date that the Agent notifies the assignor
Lender that it has received (and provided its consent and the Borrowers have
consented (to the extent necessary herein) with respect to) an executed
Assignment and Acceptance and payment of the above-referenced processing fee,
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance Agreement, shall have the rights and obligations of a
Lender under the Loan Documents, and (ii) the assignor Lender shall, to the
extent that rights and obligations hereunder and under the other Loan Documents
have been assigned by it pursuant to such Assignment and Acceptance Agreement,
relinquish its rights and be released from its obligations under the Loan
Documents.
(c) Within five (5) Banking Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance Agreement and
payment of the processing fee (and provided, that it consents to such assignment
pursuant to Section 10.11(a)), the Borrowers shall execute and deliver to the
Agent, new Notes evidencing such Assignee's assigned Loans and Revolving Loan
Commitment and, if the assignor Lender has retained a portion of its Loans and
its Revolving Loan Commitment, replacement Notes in the principal amount of the
Revolving Loans retained by the assignor Lender (such Notes to be in exchange
for, but not in payment of, the Notes held by such Lender). Immediately upon
each
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Assignee's making its processing fee payment under the Assignment and Acceptance
Agreement, this Agreement, shall be deemed to be amended to the extent, but only
to the extent, necessary to reflect the addition of the Assignee and the
resulting adjustment of the Revolving Loan Commitments arising therefrom. The
Revolving Loan Commitment allocated to each Assignee shall reduce such Revolving
Loan Commitments of the assigning Lender pro tanto.
(d) Any Lender may at any time sell to one or more commercial banks or
other Persons not Affiliates of either Borrower (a "Participant") participating
interests in any Loans, the Revolving Loan Commitment of that Lender and the
other interests of that Lender (the "originating Lender") hereunder and under
the other Loan Documents; provided, however, that (i) the originating Lender's
obligations under this Agreement shall remain unchanged, (ii) the originating
Lender shall remain solely responsible for the performance of such obligations,
(iii) the Borrowers and the Agent shall continue to deal solely and directly
with the originating Lender in connection with the originating Lender's rights
and obligations under this Agreement and the other Loan Documents, and (iv) no
Lender shall transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would require unanimous consent of the
Lenders as described in the first proviso to Section 10.1. In the case of any
such participation, the Participant shall be entitled to the benefit of Sections
4.3, 4.4, 4.5, 4.6 and 10.4 as though it were also a Lender hereunder, but shall
not have any other rights under this Agreement, or any of the other Loan
Documents, and all amounts payable by the Borrowers hereunder shall be
determined as if such Lender had not sold such participation; except that, if
amounts outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement.
(e) Each Lender agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information provided by
the Borrowers and provided to it by or on behalf of Dura, MC, either the
Borrower or any Subsidiary of Dura, or by the Agent on Dura's, MC's, a
Borrower's or Subsidiary's behalf, in connection with this Agreement or any
other Loan Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement; except to the extent such information (i) was or
becomes generally available to the public other than as a result of a disclosure
by such Lender, or (ii) was or becomes available on a non-confidential basis
from a source other than Dura, MC, the Borrowers or any Subsidiary, provided,
that such source is not bound by a confidentiality agreement with the applicable
Borrower known to the Lender; provided further, however, that any Lender may
disclose such information (A) at the request or pursuant to any requirement of
any governmental authority to which such Lender is subject or in connection with
an
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examination of such Lender by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Lender or their respective Affiliates may be party, (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document, and (F) to such Lender's independent auditors and other
professional advisors; provided, that with respect to disclosures required by
clauses (B), (C) or (D) above, Agent and any Lender will give prior notice to
the applicable Borrower of any such required disclosure, unless such notice is
prohibited by the terms of such required disclosure, as determined by Agent or
such Lender. Notwithstanding the foregoing, each Borrower authorizes each Lender
to disclose to any bona fide Participant or Assignee (each, a "Transferee") and
to any prospective Transferee, such financial and other information in such
Lender's possession concerning such Borrower or its Subsidiaries which has been
delivered to Agent or the Lenders pursuant to this Agreement or which has been
delivered to the Agent or the Lenders by such Borrower in connection with the
Lenders' credit evaluation of such Borrower prior to entering into this
Agreement; provided, that, unless otherwise agreed by such Borrower, such
Transferee agrees in writing to such Lender to keep such information
confidential to the same extent required of the Lenders hereunder.
(f) Notwithstanding any other provision contained in this Agreement or
any other Loan Document to the contrary, any Lender may assign all or any
portion of the Loans or Notes held by it to any Federal Reserve Bank or the
United States Treasury as collateral security pursuant to Regulation A of the
Federal Reserve Board and any Operating Circular issued by such Federal Reserve
Bank, provided, that any payment in respect of such assigned Loans or Notes made
by a Borrower to or for the account of the assigning or pledging Lender in
accordance with the terms of this Agreement shall satisfy such Borrower's
obligations hereunder in respect to such assigned Loans or Notes to the extent
of such payment. No such assignment shall release the assigning Lender from its
obligations hereunder.
(g) BofA may assign its obligations as an Issuer to an Affiliate of
BofA without the prior written consent of any party hereto. In connection with
such assignment, each of the parties hereto agrees to execute such documents as
are reasonably requested by such Affiliate of BofA to effectuate such
assignment.
(h) If, pursuant to this subsection, any interest in this Agreement or
any Note is transferred to any Transferee which is organized under the laws of
any jurisdiction other than the United States or any state thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Lender (for
the benefit of the transferor Lender, the Agent and the Borrowers) that, under
applicable law and treaties as then in effect, no taxes will be required to be
withheld by the Agent, the Borrowers or the transferor Lender with respect to
any payments to be made to such Transferee in respect of the U.S. Revolving
Loans made in Dollars, (ii) to furnish to the transferor Lender, the Agent and
the Borrowers either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 (wherein such Transferee claims
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entitlement to complete exemption from U.S. federal withholding tax on all
interest payments with respect to the U.S. Revolving Loans hereunder), and (iii)
to agree (for the benefit of the transferor Lender, the Agent and the Borrowers)
to provide the transferor Lender, the Agent and the Borrowers a new Form 4224 or
Form 1001 upon the obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(i) The Agent shall maintain at the address of its Domestic Office set
forth on the signature page hereto a copy of each Assignment and Acceptance
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Revolving Loan Commitments of,
and principal amount of the Revolving Loans owing to, each Lender from time to
time and participations in Letters of Credit (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
SECTION 10.12. Other Transactions.
------------------
Nothing contained herein shall preclude the Agent or any other Lender
from engaging in any transaction, in addition to those contemplated by this
Agreement or any other Loan Document, with either Borrower or any of its
Affiliates in which such Borrower or such Affiliate is not restricted hereby
from engaging with any other Person.
SECTION 10.13. Execution on Behalf of Corporation.
----------------------------------
Any signature by any Authorized Officer on this Agreement, any Loan
Document and any other instrument and certificate executed or to be executed
pursuant to or in connection with this Agreement or such other Loan Documents,
instruments or certificates is provided only in such Authorized Officer's
capacity as a corporate officer, and not in any way in such Authorized Officer's
personal capacity.
SECTION 10.14. Provisions relating to German Borrower.
--------------------------------------
In the event that the conditions set forth in Section 5.2 are not
satisfied on or before the 90th day following the date hereof, the German
Revolving Loan Commitment shall be null and void all references and provisions
relating to the German Borrower and the German Revolving Loan Commitment shall
be of no force or effect and this Agreement shall be read as if such provisions
were removed from the Agreement. In addition, until the conditions set forth in
Section 5.2 are satisfied, all references and provisions in this Agreement
relating to the German Borrower and its Subsidiaries shall be of no force or
effect.
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SECTION 10.15. Forum Selection and Consent to Jurisdiction.
-------------------------------------------
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE AGENT, THE ARRANGER, THE LENDERS OR EITHER BORROWER SHALL BE BROUGHT AND
MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER,
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH
BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT A BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.16. Waiver of Jury Trial.
--------------------
THE AGENT, THE ARRANGER, THE LENDERS AND EACH BORROWER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE AGENT, THE LENDERS OR EACH BORROWER. EACH BORROWER ACKNOWLEDGES
AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS
PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT
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IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
DURA OPERATING CORP.
By /s/ David R. Bovee
----------------------------------------------
Its Vice President and Chief Financial Officer
----------------------------------------------
Address: 2791 Research Drive
Rochester Hills, Michigan 48308
Facsimile No.: (810) 362-8377
Attention: David Bovee
with a copy to: Hidden Creek Industries
4508 IDS Center
Minneapolis, Minnesota 55402
Facsimile No.: (612) 332-2012
Attention: Robert R. Hibbs
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By /s/ R. Guy Stapleton
----------------------------------------------
Managing Director
Its
----------------------------------------------
Address: 231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 987-1276
Attention: R. Guy Stapleton
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PERCENTAGE LENDERS
- ---------- -------
Revolving Loans: 22.6668% BANK OF AMERICA ILLINOIS,
as a Lender and the Issuer
By: /S/ R. Guy Stapleton
-----------------------------------
Title: Managing Director
--------------------------------
Domestic
Office: 231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 987-1276
Attention: R. Guy Stapleton
Offshore Lending
Office: 231 South LaSalle Street
Chicago, Illinois 60697
Facsimile No.: (312) 987-1276
Attention: R. Guy Stapleton
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PERCENTAGE LENDERS
- ---------- -------
Revolving Loans: 19.3333% THE BANK OF NOVA SCOTIA,
as a Lender
By: /S/ J.R. TRIMBLE
----------------------------------
Title: SENIOR RELATIONSHIP MANAGER
----------------------------------
Domestic
Office: One Liberty Plaza
26th Floor
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Mr. James R. Trimble
Offshore Lending
Office: One Liberty Plaza
26th Floor
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Mr. James R. Trimble
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PERCENTAGE LENDERS
- ---------- -------
Revolving Loans: 19.3333% COMERICA BANK,
as a Lender
By: /s/ David B. Marvin
------------------------------------
Title: Vice President
------------------------------------
Domestic
Office: Metropolitan Loan
Department C
P.O. Box 75000
Detroit, Michigan 48275
Mail Code 3241
Facsimile No.: (313) 222-5759
Attention: David B. Marvin
Offshore Lending
Office: 100 Renaissance Center
9th Floor
Detroit, Michigan 48275
Facsimile No.: (313) 222-5759
Attention: David B. Marvin
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PERCENTAGE LENDERS
- ---------- -------
Revolving Loans: 19.3333% THE CHASE MANHATTAN BANK,
as a Lender
By: /s/ Andris G. Kalnins
------------------------------------------
Title: Vice President
---------------------------------------
Domestic
Office: 4 Chase Metrotech Center
Brooklyn, New York 11245
Facsimile No.: (718) 242-6815
Attention: Roxan Phillips
Offshore Lending
Office: 4 Chase Metrotech Center
Brooklyn, New York 11245
Facsimile No.: (718) 242-6815
Attention: Roxan Phillips
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PERCENTAGE LENDER
- ---------- ------
Revolving Loans: 19.3333% FIRST BANK NATIONAL ASSOCIATION,
as a Lender
By: /S/ Mark R. McDonald
----------------------------------------------
Title: Vice President
------------------------------------------
Domestic
Office: First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
Facsimile No.: (612) 973-0882
Attention: Mark R. McDonald
Offshore Lending
Office: First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402
Facsimile No.: (612) 973-0882
Attention: Mark R. McDonald
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EXHIBITS
B-1 Borrowing Request
B-2 Issuance Request
C Compliance Certificate
D Continuation/Conversion Notice
E-1 MC Guaranty
E-2 Dura Guaranty
E-3 U.S Guaranty
F-1 MC Pledge Agreement Reaffirmation
F-2 U.S Pledge Agreement Reaffirmation (Mexico)
F-3 U.S Pledge Agreement (other Subsidiaries)
F-4 Dura Pledge Agreement
G-1 Revolving Note
H-1 Security Agreement
H-2 Subsidiary Security Agreement
I Subsidiary Guaranty
J Closing Certificate
K-1 U.S Solvency Certificate
L Kirkland & Ellis Opinion
M Goldberg, Kohn, Bell, Black, Rosenbloom &
Moritz, Ltd. Opinion
N Assignment and Acceptance Agreement
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SCHEDULE I
DISCLOSURE SCHEDULES
--------------------
5.1.6 Description of Real Estate
6.1 Foreign Subsidiaries
6.3 Government Approvals
6.6 Litigation
6.7 Subsidiaries
6.9 Taxes
6.10 ERISA
6.11 Environmental
7.2.2(b) Indebtedness
7.2.3(b) Permitted Liens
7.2.5(a) Investments
7.2.16 Restrictive Agreements
