<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarterly Period Ended January 31, 1998
----------------
OR
[_] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Transition Period From
____________________ to _________________
Commission File Number 1-13683
----------------------------------------------------------
Delco remy International, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 35-1909253
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2902 Enterprise Drive, Anderson, Indiana 46013
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(765) 778-6499
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Not Applicable
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since last
report)
Indicate whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to the filing
requirements for the past 90 days.
Yes X No ___
---
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date:
<TABLE>
<CAPTION>
Number of common shares outstanding
Class as of March 11, 1998
----- --------------------
<S> <C>
Common Stock - Class A 16,673,016
Common Stock - Class B 7,733,674
</TABLE>
<PAGE>
PART I. FINANCIAL INFORMATION
FINANCIAL STATEMENTS
--------------------
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
DELCO REMY INTERNATIONAL, INC.
UNAUDITED
<TABLE>
<CAPTION>
Three-Month Period Six-Month Period
Ended January 31 Ended January 31
-----------------------------------------------------
1998 1997 1998 1997
-----------------------------------------------------
(in thousands of dollars, except per share amounts)
<S> <C> <C> <C> <C>
Net sales $193,259 $ 162,224 $ 402,279 $ 331,990
Cost of goods sold 154,061 130,670 324,938 262,042
--------- ----------- ----------- -----------
Gross profit 39,198 31,554 77,341 69,948
Selling, engineering, and administrative expenses 21,230 19,734 42,166 43,069
--------- ----------- ----------- -----------
Operating income 17,968 11,820 35,175 26,879
Interest expense 10,129 9,324 20,650 18,715
--------- ----------- ----------- -----------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion 7,839 2,496 14,525 8,164
Minority interest in income of subsidiaries 482 108 1,021 245
Income taxes 3,020 1,066 5,695 3,347
Deemed dividend on preferred stock conversion 1,639 - 1,639 -
Preferred dividend requirement of subsidiary 234 411 645 826
--------- ----------- ----------- -----------
Income from continuing operations 2,464 911 5,525 3,746
Discontinued operations:
Loss from operations of discontinued businesses
(less applicable tax benefit) - 113 - 326
Extraordinary items
Write - off of debt issuance costs (less applicable tax benefit) 1,803 - 1,803 2,351
--------- ----------- ----------- -----------
Net income $ 661 $ 798 $ 3,722 $ 1,069
========= =========== =========== ===========
BASIC EARNINGS PER COMMON SHARE:
Income from continuing operations $ 0.13 $ 0.06 $ 0.33 $ 0.25
Discontinued operations $ - $ (0.01) $ - $ (0.02)
Extraordinary items $ (0.10) $ - $ (0.11) $ (0.16)
Net income $ 0.04 $ 0.05 $ 0.22 $ 0.07
DILUTED EARNINGS PER COMMON SHARE:
Income from continuing operations $ 0.12 $ 0.05 $ 0.29 $ 0.22
Discontinued operations $ - $ (0.01) $ - $ (0.02)
Extraordinary items $ (0.09) $ - $ (0.09) $ (0.14)
Net income $ 0.03 $ 0.05 $ 0.19 $ 0.06
</TABLE>
See notes to condensed consolidated financial statements
2
<PAGE>
Condensed Consolidated Balance Sheets
Delco Remy International, Inc.
Unaudited
<TABLE>
<CAPTION>
January 31, July 31,
1998 1997
=================================
(in thousands of dollars)
<S> <C> <C>
ASSETS
------
Current Assets:
Cash and cash equivalents $ 4,400 $ 10,050
Trade accounts receivable, net 126,321 110,184
Other receivables 7,213 10,487
Inventories 195,493 164,417
Deferred income taxes 20,421 21,474
Other current assets 8,638 7,532
------------- -------------
Total current assets 362,486 324,144
Property and equipment 177,014 147,222
Less accumulated depreciation 33,810 26,858
------------- -------------
143,204 120,364
Deferred financing costs 15,364 8,803
Goodwill (less accumulated amortization) 109,308 86,612
Net assets held for disposal 25,188 25,279
Investment in affiliate 5,720 3,119
Other assets 6,233 2,248
------------- -------------
Total assets $ 667,503 $ 570,569
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
----------------------------------------------
Current Liabilities:
Account payable $ 97,293 $ 88,578
Accrued restructuring charges 34,756 37,377
Liabilities related to discontinued operations 1,970 3,324
Other liabilities and accrued expenses 45,030 40,317
Current portion of long-term debt 559 507
------------- -------------
Total current liabilities 179,608 170,103
Long-term debt 355,706 363,261
Other noncurrent liabilities 30,437 22,899
Redeemable exchangeable preferred stock of subsidiary - 16,071
Minority interest in subsidiaries 9,152 8,032
Stockholders' equity (deficit):
Common Stock:
Class A shares 167 88
Class B shares 77 65
Paid-in capital 106,022 6,677
Retained earnings (deficit) (8,452) (12,174)
Cumulative translation adjustment (3,198) (1,752)
Stock purchase plan (2,016) (2,701)
------------- -------------
Total stockholders' equity (deficit) 92,600 (9,797)
------------- -------------
Total liabilities and stockholders' equity (deficit) $ 667,503 $ 570,569
============= =============
</TABLE>
See notes to condensed consolidated financial statements
3
<PAGE>
Condensed Consolidated Statements of Cash Flows
Delco Remy International, Inc.
Unaudited
<TABLE>
<CAPTION>
Six-Month Period
Ended January 31
--------------------------------
1998 1997
================================
(in thousands of dollars)
<S> <C> <C>
Operating activities:
Net income $ 3,722 $ 1,069
Extraordinary items 1,803 2,351
Adjustments to reconcile net income to net cash used in operating activities:
Depreciation and amortization 10,727 10,839
Deferred income taxes 2,021 (832)
Non-cash interest expense 1,658 3,805
Minority interest in subsidiaries 1,021 245
Preferred dividend requirement of subsidiary 645 826
Deemed dividend on preferred stock conversion 1,639 -
Changes in operating assets and liabilities, net of acquisitions:
Accounts receivable (10,345) (10,459)
Inventories (20,777) (10,415)
Accounts payable 5,932 (11,400)
Other current assets and liabilities (40) (3,951)
Accrued restructuring charges (2,621) (907)
Other non-current assets and liabilities, net (5,169) 10,488
------------- ------------
Net cash used in operating activities (9,784) (8,341)
INVESTING ACTIVITIES:
Acquisitions, net of cash acquired (52,040) -
Purchase of property and equipment (11,809) (24,053)
Investment in affiliates (2,601) -
------------- ------------
Net cash used in investing activities (66,450) (24,053)
------------- ------------
FINANCING ACTIVITIES:
Proceeds from issuances of long-term debt 145,000 140,000
Payments on long-term debt (147,257) (112,669)
Other financing activities 809 3,764
Proceeds from initial public offering of common stock 73,478 -
------------- ------------
Net cash provided by financing activities 72,030 31,095
Effect of exchange rate changes on cash (1,446) 1,005
------------- ------------
Net decrease in cash and cash equivalents (5,650) (294)
Cash and cash equivalents at beginning of period 10,050 3,406
------------- ------------
Cash and cash equivalents at end of period $ 4,400 $ 3,112
============= ============
</TABLE>
See notes to condensed consolidated financial statements
4
<PAGE>
DELCO REMY INTERNATIONAL, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
(IN THOUSANDS OF DOLLARS)
1. BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulations S-X. Accordingly, they do not include all of the information and
footnotes required by generally accepted accounting principles for complete
financial statements. In the opinion of management, all adjustments (consisting
of normal recurring accruals) considered necessary for a fair presentation have
been included. Operating results for the three- and six-month periods ended
January 31, 1998 are not necessarily indicative of the results that may be
expected for the full fiscal year. The balance sheet at July 31, 1997 has been
derived from the audited financial statements at that date but does not include
all of the information and footnotes required by generally accepted accounting
principles for complete financial statements. For further information, refer to
the consolidated financial statements and footnotes thereto for the year ended
July 31, 1997.
2. INVENTORIES
Inventories consist of the following:
<TABLE>
<CAPTION>
---------------------------------------------------------------
JANUARY JULY 31,
31, 1998 1997
---------------------------------------------------------------
<S> <C> <C>
Raw material $ 82,962 $ 84,583
Work-in-process 37,753 20,168
Finished Goods 74,778 59,666
-------- --------
Total $195,493 $164,417
---------------------------------------------------------------
</TABLE>
3. OFFERINGS
On December 22, 1997 the Company issued 4,000,000 shares of Class A Common Stock
in an initial public offering at $12.00 per share. Also, on January 16, 1998
the Company issued an additional 600,000 shares of Class A Common Stock at
$12.00 per share as a result of the Underwriters' exercise of their over-
allotment option. In addition, on December 22, 1997, the Company issued $145,000
of Senior Notes Due 2007 (the Senior Notes). Net proceeds to the Company from
such Offerings, after deduction of associated expenses, were approximately
$192,700.
On January 29, 1998, the Company consummated the exchange of its unregistered 10
5/8% Senior Subordinated Notes Due 2006 with registered debt having the same
terms. There was no cash impact from this exchange.
5
<PAGE>
4. ACQUISITION
On December 22, 1997, the Company acquired all of the capital stock of
Ballantrae for $52,800, including assumed debt, the working capital adjustment
and fees and expenses. Ballantrae operates through two subsidiaries: Tractech, a
leading producer of traction control systems for heavy duty original equipment
manufacturers and the aftermarket; and Kraftube, Inc., a tubing assembly
business which sells products to compressor manufacturers for commercial air
conditioners and refrigeration equipment. The Company exchanged shares of its
Common Stock with a value of approximately $22,000 for the equity of Ballantrae
and repaid approximately $29,700 of Ballantrae's debt in cash. The acquisition
was treated as a purchase for accounting purposes and resulted in goodwill of
$23,275 which is being amortized over 35 years.
The unaudited pro forma consolidated results of operations for the six months
ended January 31, 1998 and 1997, assuming the acquisition had been consummated
on the first day of each period, are as follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
SIX MONTHS ENDED SIX MONTHS ENDED
JANUARY 31, 1998 JANUARY 31, 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Revenues $417,187 $381,292
Income from continuing operations 37,599 33,127
Net income 4,460 3,458
- -------------------------------------------------------------------------------
</TABLE>
The pro forma consolidated financial information does not purport to present
what the Company's consolidated results of operations would actually have been
if the acquisition had occurred on the first day of the periods presented and
is not intended to project future results of operations.
5. RECAPITALIZATION
In connection with the above-mentioned Offerings and Acquisition, the Company
completed several related transactions to restructure its outstanding debt and
preferred stock (the Recapitalization). Significant components of the
Recapitalization, together with the applicable accounting effects were as
follows:
. The payment of the World Note: The early extinguishment of the World
Note resulted in a write-off of the unamortized debt issuance costs
of $1,803, net of income taxes, which was accounted for as an
extraordinary loss.
. The payment in full of the GM Acquisition Note.
. The exchange of the Junior Subordinated Notes for 2,358,490 shares of
Class A Common Stock.
. The conversion of the outstanding shares of 8% preferred stock of a
subsidiary into an 8% subordinated debenture of a subsidiary. This
transaction resulted in deemed dividend on preferred stock conversion
of $1,639 as shown on the face of the Condensed Consolidated Statement
of Operations.
. The payment in full of $11,800 principal amount of subordinated notes
payable to certain former stockholders of acquired subsidiaries.
. The amendment of the senior credit facility in connection with the
consummation of the Offerings.
. Payment of certain of the Ballantrae debt assumed in the Acquisition.
6
<PAGE>
6. SHARE AND PER SHARE INFORMATION
On November 20, 1997, the Company authorized a 16.8-to-one stock split which
occurred on December 19, 1997. All share and per share amounts have been
adjusted to reflect this split. The basic and diluted earnings per share is
determined using the numerator and denominator calculated as follows:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
THREE-MONTH PERIOD SIX-MONTH PERIOD
ENDED JANUARY 31, ENDED JANUARY 31,
- -----------------------------------------------------------------------------------------------------------
1998 1997 1998 1997
-----------------------------------------------------
<S> <C> <C> <C> <C>
NUMERATOR:
Income from continuing operations $ 2,464 $ 911 $ 5,525 $ 3,746
Loss from operations of discontinued businesses - 113 - 326
Extraordinary items 1,803 - 1,803 2,351
-----------------------------------------------------
Numerator for basic and diluted earnings per share $ 661 $ 798 $ 3,722 $ 1,069
DENOMINATOR:
Denominator for basic earnings per share (weighted 18,878 15,142 17,000 15,155
average shares)
Effect of dilutive securities:
Warrants 1,677 1,677 1,677 1,677
Employee stock options 7 - 4 -
Stock purchase plan 523 540 523 535
-----------------------------------------------------
Denominator for diluted earnings per share
(weighted average shares and assumed conversions) 21,085 17,359 19,204 17,367
- -----------------------------------------------------------------------------------------------------------
</TABLE>
7. SUBSEQUENT EVENTS
On March 05, 1998 the Company announced the acquisition of Atlantic Reman
Limited of Canada which is a Ford Authorized Remanufacturer for the Maritimes
Province. It remanufactures and distributes engines, starters, alternators and
water pumps to Ford dealers as well as General Motors and Chrysler dealers.
Also, the Company has entered into a definitive agreement to acquire a Lucas
Varity remanufacturing operation in England. This remanufacturing operation was
a division of Lucas Varity plc, the leading supplier of remanufactured starters
and alternators to the U. K. independent aftermarket.
8. FINANCIAL INFORMATION FOR SUBSIDIARY GUARANTORS AND NON-GUARANTOR
SUBSIDIARIES
The Company conducts a significant portion of its business through subsidiaries.
The Senior Notes and the Senior Subordinated Notes are fully and unconditionally
guaranteed, jointly and severally, by certain direct and indirect subsidiaries
(the Subsidiary Guarantors). Certain of the Company's subsidiaries do not
guarantee the Senior Notes or the Senior Subordinated Notes (the Non-Guarantor
Subsidiaries). The claims of creditors of Non-Guarantor Subsidiaries have
priority over the rights of the Company to receive dividends or distributions
from such subsidiaries.
7
<PAGE>
Presented below is condensed consolidating financial information for the
Company, the Subsidiary Guarantors and the Non-Guarantor Subsidiaries at January
31, 1998 and July 31, 1997 and for the three and six-month periods ended January
31, 1998 and 1997.
The equity method has been used by the Company with respect to investments in
subsidiaries. The equity method has been used by Subsidiary Guarantors with
respect to investments in Non-Guarantor Subsidiaries. Separate financial
statements for Subsidiary Guarantors are not presented based on management's
determination that they do not provide additional information that is material
to investors.
The following table sets forth the Guarantor and direct Non-Guarantor
Subsidiaries:
- --------------------------------------------------------------------------------
GUARANTOR SUBSIDIARIES NON-GUARANTOR SUBSIDIARIES
- --------------------------------------------------------------------------------
Delco Remy America, Inc. Autovill RT Ltd.
Remy International, Inc. Power Investments Canada Ltd.
Reman Holdings, Inc. Remy UK Limited
Nabco, Inc. Delco Remy International (Europe) GmbH
The A & B Group, Inc. Remy India Holdings, Inc.
A & B Enterprises, Inc. Remy Mauritius Ltd.
Dalex, Inc. Remy Korea Holdings, Inc.
A & B Cores, Inc. 681287 Alberta Ltd.
R & L Tool Company, Inc. Publitech, Inc.
MCA, Inc. of Mississippi World Wide Automotive Distributors, Inc.
Power Investments, Inc. Autovill Holdings, Inc.
Franklin Power Products, Inc. Tractech (Ireland) Ltd.
International Fuel Systems, Inc. Kraftube, Inc.
Marine Drive Systems, Inc.
Marine Corporation of America
Powrbilt Products, Inc.
World Wide Automotive, Inc.
Ballantrae Corporation
Tractech Inc.
- --------------------------------------------------------------------------------
8
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JANUARY 31, 1998
( IN THOUSANDS OF DOLLARS )
<TABLE>
<CAPTION>
DELCO REMY
INTERNATIONAL
INC. NON-
(PARENT SUBSIDIARY GUARANTOR
COMPANY ONLY ) GUARANTORS SUBSIDIARIES
-------------------------------------------
<S> <C> <C> <C>
NET SALES $ - $ 199,596 $ 28,128
Cost of goods sold - 164,692 23,834
-------------------------------------------
Gross profit - 34,904 4,294
Selling, engineering, & administrative expenses 654 18,430 2,597
-------------------------------------------
Operating income (654) 16,552 2,070
Interest expense 5,760 4,285 84
-------------------------------------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion (6,414) 12,267 1,986
Minority interest in income of subsidiary - 436 46
Equity in earnings of subsidiary 4,604 - -
Income taxes (2,471) 4,725 765
Deemed dividend on preferred stock conversion - - -
Preferred dividend requirement of subsidiary - - -
-------------------------------------------
Income from continuing operations 661 7,106 1,174
Extraordinary item:
Write-off of debt issuance costs
(less applicable income tax benefit) - 1,803 -
-------------------------------------------
Net income $ 661 $ 5,303 $ 1,174
===========================================
<CAPTION>
ELIMINATIONS CONSOLIDATED
-------------------------------
<S> <C> <C>
NET SALES $ (34,465)(a) $ 193,259
Cost of goods sold (34,465)(a) 154,061
------------ ----- -------------
Gross profit - 39,198
Selling, engineering, & administrative expenses - 21,681
--------------------------------
Operating income - 17,968
Interest expense - 10,129
--------------------------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion - 7,839
Minority interest in income of subsidiary - 482
Equity in earnings of subsidiary (4,604)(b) -
Income taxes - 3,020
Deemed dividend on preferred stock conversion 1,639 (c) 1,639
Preferred dividend requirement of subsidiary 234 (c) 234
--------------------------------
Income from continuing operations (6,477) 2,464
Extraordinary item:
Write-off of debt issuance costs
(less applicable income tax benefit) - 1,803
--------------------------------
Net income $ (6,477) $ 661
================================
</TABLE>
______________________________
(a) Elimination of intercompany sales and cost of sales.
(b) Elimination of equity in net income (loss) from consolidated subsidiaries.
(c) Recording of preferred dividend requirement of subsidiary and deemed
dividend on preferred stock conversion
9
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JANUARY 31, 1998
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Delco Remy
International
Inc. Non-
(Parent Subsidiary Guarantor
Company Only Guarantors Subsidiaries Eliminations Consolidated
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $ - $ 413,240 $ 53,940 ($64,901)(a) $ 402,279
Cost of goods sold - 344,177 45,662 (64,901)(a) 324,938
-------------------------------------------------------------------
Gross profit - 69,063 8,278 - 77,341
Selling, engineering, & administrative expenses 1,514 35,935 4,717 - 42,166
-------------------------------------------------------------------
Operating income (1,514) 33,128 3,561 - 35,175
Interest expense 10,568 9,992 90 - 20,650
-------------------------------------------------------------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion (12,082) 23,136 3,471 - 14,525
Minority interest in income of subsidiary - 944 77 - 1,021
Equity in earnings of subsidiary 11,066 - - (11,066)(b) -
Income taxes (4,738) 9,072 1,361 - 5,695
Deemed dividend on preferred stock conversion - - - 1,639 (c) 1,639
Preferred dividend requirement of subsidiary - - - 645 (c) 645
-------------------------------------------------------------------
Income from continuing operations 3,722 13,120 2,033 (13,350) $ 5,525
Extraordinary item:
Write-off of debt issuance costs
(less applicable income tax benefit) - 1,803 - - 1,803
------------------------------------------------------------------
Net income $ 3,722 $ 11,317 $ 2,033 $(13,350) $ 3,722
===================================================================
</TABLE>
________________
(a) Elimination of intercompany sales and cost of sales.
(b) Elimination of equity in net income (loss) from consolidated subsidiaries.
(c) Recording of preferred dividend requirement of subsidiary and deemed
dividend on preferred stock conversion
10
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED JANUARY 31, 1997
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
DELCO REMY
INTERNATIONAL
INC. NON-
(PARENT SUBSIDIARY GUARANTOR
COMPANY ONLY) GUARANTORS SUBSIDIARIES ELIMINATIONS
---------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ - $ 167,361 $ 15,110 $ (20,247) (a)
Cost of goods sold - 139,110 11,807 (20,247) (a)
--------------------------------------------------------------
Gross profit - 28,251 3,303 -
Selling, engineering, & administrative expenses 801 16,537 2,396 -
-------------------------------------------------------------
Operating income (801) 11,714 907 -
Interest expense 4,698 4,598 28 -
-------------------------------------------------------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion (5,499) 7,116 879 -
Minority interest in income of subsidiary - 108 - -
Equity in earnings of subsidiary 3,949 - - (3,949) (b)
Income taxes (benefit) (2,348) 3,039 375 -
Preferred dividend requirement of subsidiary - - - 411 (c)
--------------------------------------------------------------
Income from continuing operations 798 3,969 504 (4,360)
Discontinued operations:
Loss from operations of discontinued businesses
(less applicable income tax benefit) - 113 - -
--------------------------------------------------------------
Net income $ 798 $ 3,856 $ 504 $ (4,360)
==============================================================
<CAPTION>
CONSOLIDATED
------------
<S> <C>
Net sales $ 162,224
Cost of goods sold 130,670
------------
Gross profit 31,554
Selling, engineering, & administrative expenses
Operating income 19,734
------------
Interest expense 11,820
------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion 2,496
Minority interest in income of subsidiary 108
Equity in earnings of subsidiary -
Income taxes (benefit) 1,066
Preferred dividend requirement of subsidiary 411
------------
Income from continuing operations 911
Discontinued operations:
Loss from operations of discontinued businesses
(less applicable income tax benefit) 113
------------
Net income $ 798
============
</TABLE>
_______________
(a) Elimination of intercompany sales and cost of sales.
(b) Elimination of equity in net income (loss) from consolidated subsidiaries.
(c) Recording of preferred dividend requirement of subsidiary.
11
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
FOR THE SIX MONTHS ENDED JANUARY 31, 1997
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Delco Remy
International
Inc. Non-
(Parent Subsidiary Guarantor
Company Only) Guarantors Subsidiaries Eliminations Consolidated
-------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $ - $ 340,353 $ 29,100 $ (37,463)(a) $ 331,990
Cost of goods sold - 277,021 22,484 (37,463)(a) 262,042
------------------------------------------------------------------
Gross profit - 63,332 6,616 - 69,948
Selling, engineering, & administrative expenses 1,475 36,929 4,665 - 43,069
------------------------------------------------------------------
Operating income (1,475) 26,403 1,951 - 26,879
Interest expense 9,388 9,254 73 - 18,715
------------------------------------------------------------------
Income from continuing operations before income taxes,
preferred dividend requirements of subsidiary, minority
interest and deemed dividend on preferred stock conversion (10,863) 17,149 1,878 - 8,164
Minority interest in income of subsidiary - 245 - - 245
Equity in earnings of subsidiary 7,730 - - (7,730)(b) -
Income taxes (benefit) (4,454) 7,031 770 - 3,347
Preferred dividend requirement of subsidiary - - - 826 (c) 826
------------------------------------------------------------------
Income from continuing operations 1,321 9,873 1,108 (8,556) 3,746
Discontinued operations:
Loss from operations of discontinued businesses
(less applicable income tax benefit) 326 - - 326
Extraordinary item:
Write-off of debt issuance costs
(less applicable income tax benefit) 252 2,099 - - 2,351
------------------------------------------------------------------
Net income $ 1,069 $ 7,448 $ 1,108 $ (8,556) $ 1,069
==================================================================
</TABLE>
_____________
(a) Elimination of intercompany sales and cost of sales.
(b) Elimination of equity in net income (loss) from consolidated subsidiaries.
(c) Recording of preferred dividend requirement of subsidiary.
12
<PAGE>
DELCO REMY INTERNATIONAL INC.
CONDENSED CONSOLIDATING BALANCE SHEET
JANUARY 31, 1998
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
Delco Remy
International
Inc. Non-
(Parent Subsidiary Guarantor
Company Only) Guarantors Subsidiaries Eliminations Consolidated
---------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Assets:
Current Assets:
Cash and cash equivalents $ - $ 1,001 $ 3,399 $ - $ 4,400
Trade accounts receivable - 113,518 12,803 - 126,321
Affiliate accounts receivable, net 128,294 53,306 12,823 (194,423) (a) -
Other receivables - 5,280 1,933 - 7,213
Inventories - 169,718 25,775 - 195,493
Deferred income taxes 4,315 16,106 - - 20,421
Other current assets - 7,822 816 - 8,638
---------------------------------------------------------------------------------
Total current assets 132,609 366,751 57,549 (194,423) 362,486
Property and equipment 20 151,642 25,352 - 177,014
Less accumulated depreciation (13) (31,665) (2,132) - (33,810)
---------------------------------------------------------------------------------
7 119,977 23,220 - 143,204
Deferred financing costs 13,221 2,106 37 - 15,364
Goodwill, net - 86,449 22,859 - 109,308
Net assets held for disposal - 25,188 - - 25,188
Investment in affiliates 233,237 - - (227,517) (b)(c) 5,720
Other assets 8,244 (3,947) 1,936 - 6,233
---------------------------------------------------------------------------------
Total Assets $ 387,318 $ 596,524 $ 105,601 $ (421,940) $ 667,503
=================================================================================
Liabilities and shareholders' equity:
Current Liabilities:
Accounts payable 195 90,972 6,126 - 97,293
Affiliate accounts payable - 174,144 20,279 (194,423) (a) -
Accrued restructuring charges - 34,756 - - 34,756
Liabilities related to discontinued operations - 1,970 - - 1,970
Other liabilities and accrued expenses (4,304) 45,065 4,269 - 45,030
Current portion of long-term debt - 514 45 - 559
---------------------------------------------------------------------------------
Total current liabilities (4,109) 347,421 30,719 (194,423) 179,608
Long-term debt, less current portion 285,000 70,073 633 - 355,706
Other non-current liabilities 10,629 17,327 2,481 - 30,437
Minority interest in subsidiary - 7,423 1,729 - 9,152
Shareholders' equity (deficit):
Common stock:
Class A Shares 167 - - - 167
Class B Shares 77 - - - 77
Paid-in capital 106,022 - - - 106,022
Subsidiary investment - 141,744 65,847 (207,591) (b) -
Retained earnings (deficit) (8,452) 12,536 7,390 (19,926) (c) (8,452)
Cumulative translation adjustment - - (3,198) - (3,198)
Stock purchase plan (2,016) - - - (2,016)
---------------------------------------------------------------------------------
Total shareholders' equity (deficit) 95,798 154,280 70,039 (227,517) 92,600
---------------------------------------------------------------------------------
Total liabilities and shareholders' equity
(deficit) $ 387,318 $ 596,524 $ 105,601 $ (421,940) $ 667,503
=================================================================================
</TABLE>
____________________
(a) Eliminations of intercompany receivables and payables
(b) Elimination of investments in subsidiaries
(c) Elimination of investments in subsidiaries' earnings
13
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATING BALANCE SHEET
31-JUL-97
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
DELCO REMY
INTERNATIONAL
INC. NON-
(PARENT SUBSIDIARY GUARANTOR
COMPANY ONLY) GUARANTORS SUBSIDIARIES ELIMINATIONS
--------------------------------------------------------------
<S> <C> <C> <C> <C>
Assets:
Current Assets:
Cash and cash equivalents $ - $ 1,504 $ 8,546 $ -
Trade accounts receivable - 99,745 10,439 -
Affiliate accounts receivable, net - 33,409 2 (33,411) (a)
Other receivables - 9,605 882 -
Inventories - 145,035 19,382 -
Deferred income taxes 4,315 17,159 - -
Other current assets - 7,052 480 -
--------------------------------------------------------------
Total current assets 4,315 313,509 39,731 (33,411)
Property and equipment 20 133,769 13,433 -
Less accumulated depreciation (13) (22,353) (4,492) -
--------------------------------------------------------------
7 111,416 8,941 -
Deferred financing costs 5,148 3,655 - -
Goodwill, net - 76,437 10,175 -
Net assets held for disposal - 25,279 - -
Investment in affiliates 171,614 - - (168,495) (b)(c)
Other assets 1,953 (1,463) 1,758 -
--------------------------------------------------------------
Total Assets $ 183,037 $528,833 $ 60,605 $(201,906)
==============================================================
Liabilities and shareholders' equity:
Current Liabilities:
Accounts payable 195 82,585 5,798 -
Affiliate accounts payable 15,684 6,152 11,575 (33,411) (a)
Accrued restructuring charges - 37,377 - -
Liabilities related to discontinued operations - 3,324 - -
Other liabilities and accrued expenses (9,815) 44,141 5,991 -
Current portion of long-term debt - 506 1 -
--------------------------------------------------------------
Total current liabilities 6,064 174,085 23,365 (33,411)
Long-term debt, less current portion 173,511 189,669 81 -
Other non-current liabilities 11,507 11,336 56 -
Redeemable convertible preferred stock - 16,071 - -
Minority interest in subsidiary - 6,504 1,528 -
Shareholders' equity (deficit):
Common stock:
Class A Shares 88 - - -
Class B Shares 65 - - -
Paid-in capital 6,677 - - -
Subsidiary investment - 127,665 31,970 (159,635) (b)
Retained earnings (deficit) (12,174) 3,503 5,357 (8,860) (c)
Cumulative translation adjustment - - (1,752) -
Stock purchase plan (2,701) - - -
--------------------------------------------------------------
Total shareholders' equity (deficit) (8,045) 131,168 35,575 (168,495)
--------------------------------------------------------------
Total liabilities and shareholders' equity (deficit) $ 183,037 $528,833 $ 60,605 $(201,906)
==============================================================
<CAPTION>
CONSOLIDATED
------------
<S> <C>
Assets:
Current Assets:
Cash and cash equivalents $ 10,050
Trade accounts receivable 110,184
Affiliate accounts receivable, net -
Other receivables 10,487
Inventories 164,417
Deferred income taxes 21,474
Other current assets 7,532
------------
Total current assets 324,144
Property and equipment 147,222
Less accumulated depreciation (26,858)
------------
120,364
Deferred financing costs 8,803
Goodwill, net 86,612
Net assets held for disposal 25,279
Investment in affiliates 3,119
Other assets 2,248
------------
Total Assets $ 570,569
============
Liabilities and shareholders' equity:
Current Liabilities:
Accounts payable 88,578
Affiliate accounts payable -
Accrued restructuring charges 37,377
Liabilities related to discontinued operations 3,324
Other liabilities and accrued expenses 40,317
Current portion of long-term debt 507
------------
Total current liabilities 170,103
Long-term debt, less current portion 363,261
Other non-current liabilities 22,899
Redeemable convertible preferred stock 16,071
Minority interest in subsidiary 8,032
Shareholders' equity (deficit):
Common stock:
Class A Shares 88
Class B Shares 65
Paid-in capital 6,677
Subsidiary investment -
Retained earnings (deficit) (12,174)
Cumulative translation adjustment (1,752)
Stock purchase plan (2,701)
------------
Total shareholders' equity (deficit) (9,797)
------------
Total liabilities and shareholders' equity (deficit) $ 570,569
============
</TABLE>
___________________
(a) Eliminations of intercompany receivables and payables
(b) Elimination of investments in subsidiarires
(c) Elimination of investments in subsidiaries' earnings
14
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JANUARY 31, 1998
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
DELCO REMY
INTERNATIONAL
INC. NON-
(PARENT SUBSIDIARY GUARANTOR
COMPANY ONLY) GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
---------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $3,722 $11,317 $2,033 ($13,350) $3,722
Extraordinary item - 1,803 - - 1,803
Adjustments to reconcile net income to net
cash provided by (used in) operating activities:
Depreciation and amortization 72 9,934 721 - 10,727
Equity in earnings of subsidiary (11,066) - - 11,066 (a) -
Deferred income taxes (4,467) 6,869 (381) - 2,021
Non-cash interest expense 1,396 262 - - 1,658
Minority interest in subsidiary - 944 77 - 1,021
Preferred dividend requirement of
subsidiary - - - 645 (b) 645
Deemed dividend on preferred
stock conversion - - 1,639 (b) 1,639
Changes in operating assets and
liabilities, net of acquisitions:
Accounts receivable - (10,458) 113 - (10,345)
Inventories - (17,894) (2,883) - (20,777)
Accounts payable - 6,861 (929) - 5,932
Intercompany accounts (143,978) 148,095 (4,117) - -
Other current assets and liabilities 5,511 (2,363) (3,188) - (40)
Accrued restructuring - (2,621) - - (2,621)
Other non-current assets and
liabilities, net (6,727) (6,337) 7,895 - (5,169)
---------------------------------------------------------------------
Net cash (used by) provided by operating activities (155,537) 146,412 (659) - (9,784)
---------------------------------------------------------------------
INVESTING ACTIVITIES:
Acquisition, net of cash acquired (52,040) - - - (52,040)
Purchase of proerty and equipment - (8,215) (3,594) - (11,809)
Investment in affiliates (2,601) - - - (2,601)
---------------------------------------------------------------------
Net cash (used in) provided by investing activities (54,641) (8,215) (3,594) - - (66,450)
---------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds from issurance of long term debt 145,000 - - - 145,000
Payments on long-term debt (8,300) (138,957) - - (147,257)
Other financing activities 257 552 809
Proceeds from initial public offering 73,478 - - - 73,478
---------------------------------------------------------------------
Net cash provided by (used in) financing activities 210,178 (138,700) 552 - 72,030
---------------------------------------------------------------------
Effect of exhange rate changes on cash - - (1,446) - (1,446)
---------------------------------------------------------------------
Net (decrease) in cash and cash equivalents - (503) (5,147) - (5,650)
=====================================================================
-
Cash and cash equivalents at beginning of year - 1,504 8,546 - 10,050
-
---------------------------------------------------------------------
Cash and cash equivalents at end of year $ - $ 1,001 $ 3,399 $ - $ 4,400
=====================================================================
</TABLE>
______________
(a) Elimination of equity in earnings of subsidiary.
(b) Recording of preferred dividend requirement of subsidiary and deemed
dividend on preferred stock conversion
15
<PAGE>
DELCO REMY INTERNATIONAL, INC.
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE SIX MONTHS ENDED JANUARY 31, 1997
(IN THOUSANDS OF DOLLARS)
<TABLE>
<CAPTION>
DELCO REMY
INTERNATIONAL
INC. NON-
(PARENT SUBSIDIARY GUARANTOR
COMPANY ONLY) GUARANTORS SUBSIDIARIES ELIMINATIONS CONSOLIDATED
-----------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES:
Net income $ 1,069 $ 7,448 $ 1,108 $ (8,556) $ 1,069
Extraordinary item 252 2,099 - - 2,351
Adjustments to reconcile net income to net
cash provided by (used in) operating activities:
Depreciation and amortization - 10,590 249 - 10,839
Equity in earnings of subsidiary (7,730) - - 7,730 (a) -
Deferred income taxes 7,222 (7,257) (797) - (832)
Non-cash interest expense 1,537 2,268 - - 3,805
Minority interest in subsidiary - 245 - - 245
Preferred dividend requirement of
subsidiary - - - 826 (b) 826
Changes in operating assets and
liabilities, net of acquisitions:
Accounts receivable - (9,536) (923) - (10,459)
Inventories - (9,685) (730) - (10,415)
Accounts payable (2) (11,081) (317) - (11,400)
Intercompany accounts (108,204) 102,484 5,720 - -
Other current assets and liabilities (11,299) 5,492 1,856 - (3,951)
Accrued restructuring - (907) - - (907)
Other non-current assets and
liabilities, net (8,189) 23,265 (4,588) - 10,488
-----------------------------------------------------------------------
Net cash (used by) provided by operating activities (125,344) 115,425 1,578 - - (8,341)
-----------------------------------------------------------------------
INVESTING ACTIVITIES:
Purchasing of proerty and equipment - (21,564) (2,489) - (24,053)
-----------------------------------------------------------------------
Net cash (used in) provided by investing activities - (21,564) (2,489) - (24,053)
-----------------------------------------------------------------------
FINANCING ACTIVITIES:
Proceeds from issurance of long term debt 140,000 - - - 140,000
Payments on long term debt (16,000) (96,669) - - (112,669)
Other financing activities 1,272 2,492 3,764
-----------------------------------------------------------------------
Net cash provided by (used in) financing activities 125,272 (94,177) - - 31,095
-----------------------------------------------------------------------
Effect of exhange rate changes on cash - - 1,005 - 1,005
-----------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalent (72) (316) 94 - (294)
-----------------------------------------------------------------------
Cash and cash equivalents at beginning of year 68 1,434 1,904 - 3,406
-----------------------------------------------------------------------
Cash and cash equivalents at end of year $ (4) $ 1,118 $ 1,998 $ - $ 3,112
=======================================================================
</TABLE>
________
(a) Elimination of equity in earnings of subsidiary.
(b) Recording of preferred dividend requirement of subsidiary.
16
<PAGE>
ITEM 2.
MANAGEMENTS DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITIONS AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS:
The following table sets forth certain financial statement data expressed
in thousands of dollars and as percent of sales.
<TABLE>
<CAPTION>
THREE MONTHS ENDED JANUARY 31
-------------------------------------------------
1998 1997
----------------------- -----------------------
(THOUSANDS OF DOLLARS) AMOUNT % AMOUNT %
======================= =======================
<S> <C> <C> <C> <C>
Net sales $ 193,259 100.0% $ 162,224 100.0%
Cost of sales 154,061 79.7% 130,670 80.5%
----------------------- -----------------------
Gross profit 39,198 20.3% 31,554 19.5%
Selling, engineering, and administrative 21,230 11.0% 19,734 12.2%
Restructuring charges - - - -
----------------------- -----------------------
Operating income 17,968 9.3% 11,820 7.3%
Interest expense 10,129 5.2% 9,324 5.7%
Provision for income taxes 3,020 1.6% 1,066 0.7%
Minority interest 482 0.2% 108 0.1%
Non-recurring deemed dividend on preferred
stock conversion 1,639 0.8% - -
Preferred dividend requirement of subsidiary 234 0.1% 411 0.3%
Discontinued operations:
Loss from operations of discontinued
business less income taxes - - 113 0.1%
Loss on disposal of PMF business - - - -
Write-off of debt issuance costs net of tax 1,803 0.9% - -
----------------------- -----------------------
Net income $ 661 0.3% $ 798 0.5%
======================= =======================
ADJUSTED NET INCOME
- -------------------
Net income $ 661 $ 798
Non-recurring charges:
Non-recurring deemed dividend on
preferred stock conersion * 1,639 -
Loss from discontinued operations - 113
Extraordinary items 1,803 -
---------- ----------
Adjusted net income 4,103 911
ADJUSTED EARNINGS PER SHARE
- ---------------------------
Adjusted net income $ 0.16 $ 0.03
Adjusted weighted shares outstanding ** 26,087 26,087
<CAPTION>
SIX MONTHS ENDED JANUARY 31
--------------------------------------------------
1998 1997
----------------------- -----------------------
(THOUSANDS OF DOLLARS) AMOUNT % AMOUNT %
======================= =======================
<S> <C> <C> <C> <C>
Net sales $ 402,279 100.0% $ 331,990 100.0%
Cost of sales 324,938 80.8% 262,042 78.9%
----------------------- -----------------------
Gross profit 77,341 19.2% 69,948 21.1%
Selling, engineering, and administrative 42,166 10.5% 43,069 13.0%
Restructuring charges - - - -
----------------------- -----------------------
Operating income 35,175 8.7% 26,879 8.1%
Interest expense 20,650 5.1% 18,715 5.6%
Provision for income taxes 5,695 1.4% 3,347 1.0%
Minority interest 1,021 0.3% 245 -
Non-recurring deemed dividend on preferred
stock conversion 1,639 0.4% - -
Preferred dividend requirement of subsidiary 645 0.2% 826 0.2%
Discontinued operations:
Loss from operations of discontinued
business less income taxes - - 326 0.1%
Loss on disposal of PMF business - - - -
Write-off of debt issuance costs net of tax 1,803 0.4% 2,351 0.7%
----------------------- -----------------------
Net income $ 3,722 0.9% $ 1,069 0.3%
======================= =======================
ADJUSTED NET INCOME
- -------------------
Net income $ 3,722 $ 1,069
Non-recurring charges:
Non-recurring deemed dividend on
preferred stock conersion * 1,639 -
Loss from discontinued operations - 326
Extraordinary items 1,803 2,351
------------- ------------
Adjusted net income 7,164 3,746
ADJUSTED EARNINGS PER SHARE
- ---------------------------
Adjusted net income 0.27 $ 0.14
Adjusted weighted shares outstanding ** 26,087 26,087
</TABLE>
*Non-recurring, non-cash charge resulting from the offerings.
**Adjusted weighted shares outstanding assumes exercise of warrants and all
shares outstanding for all periods.
17
<PAGE>
THREE MONTHS ENDED JANUARY 31, 1998 COMPARED TO THREE MONTHS ENDED JANUARY 31,
1997
Net Sales Net sales were $193.3 for the three months ended January 31,
1998, an increase of $31.1, or 19.2%, from $162.2 for the comparable period of
1997. The increase resulted from the inclusion of World Wide Automotive, and
Ballantrae's net sales of $19.0. Additionally a strong market for Heavy Duty
OEM electrical products as well as Automotive OEM demand from General Motors
contributed to the net sales increase.
Gross Profit Gross Profit was $39.2 for the three months ended January
31, 1998, an increase of $7.6, or 24.1%, from $31.6 for the comparable period of
1997. The increase was attributable to the inclusion of World Wide Automotive,
which was purchased in May, 1997 and Ballantrae, purchased in December, 1997.
If World Wide and Ballantrae had not been included, the Gross Profit percent
would have been 20.3%, or about a 0.8% percent increase from 19.5% for the
comparable period in 1997. The primary cause for this increase was strong OEM
volume as well as cost reductions in the focus factories. These gains were
partially offset by the startup costs for the two new focus factories and the
reclassification of certain costs included in SE&A in the prior year but
charged to cost of sales in fiscal 1998.
Selling, Engineering and Administrative Expenses Selling, engineering,
and administrative ("SE&A") expenses were $21.2 for the three months ended
January 31, 1998, an increase of $1.4, or 7.1%, from $19.8 for the comparable
period of 1997. As a percentage of net sales, SE&A expenses decreased to 11.2%
for the three months ended January 31, 1998 from 12.2% for the comparable period
of 1997. SE&A expense increase is the addition of World Wide and Ballantrae
offset by the reclassification of certain SE&A expenses to cost of sales as
noted above.
Operating Income Operating income was $18.0 for the three months ended
January 31, 1998, an increase of $6.2 from $11.8 for the comparable period of
1997. As a percentage of net sales, operating income increased to 9.3% for the
three months ended January 31, 1998 from 7.3% for the comparable period of 1997.
The increase in operating income is the result of the inclusion of World Wide
Automotive and Ballantrae in the current period. Operating income as a percent
of sales excluding World Wide and Ballantrae was 9.2% for the three months ended
January 31, 1998 versus 7.3% in the comparable period of 1997. The increase was
due to the additional volume and cost improvements as discussed above.
Interest Expense Interest expense for the three months ended January 31,
1998 was $10.2, an increase of $0.9, or 9.7%, compared to $9.3 for the
comparable period of 1997. The increase was primarily due to the additional debt
to finance the acquisition of World Wide and Ballantrae partially reduced by the
cash raised from the 4.6 million shares issued in the initial public offering
and the lower rates provided by the issuance of the 8 5/8% Senior Notes for
$145.0.
Income Taxes Income taxes for the three months ended January 31, 1998
of $3.0 and were $1.1 for the same period of 1997. The Company's effective tax
rate varies between 39% to 40%, based on income levels and other factors
involving the states and countries in which the company does business.
18
<PAGE>
Non-recurring Deemed Dividend of Preferred Stock Conversion. In December
1997, a deemed dividend of subsidiary arose from the exchange of the redeemable
exchangeable preferred stock of subsidiary for the excess of the fair value of
the 8% Subordinated Debenture over the carrying value of the redeemable
exchangeable preferred stock of subsidiary resulting in a non-recurring charge
of $1.6 for the three month period ending January 31, 1998.
Loss from Discontinued Operations While there was no loss from
discontinued operations in 1998, the Company did incur such a loss of $0.1 for
the three months ended January 31, 1997 relating to the Company's Powder Metal
Forge Business (PMF).
Write Off of Debt Issuance Cost. In December 1997, certain debt was
retired with the proceeds from the senior notes and initial public offering.
Unamortized issuance costs, net of income taxes, of $1.8 relating to the retired
debt was written off in the three month period ended January 31, 1998.
Net Income Net income was $0.7 for the three months ended January 31,
1998, a decrease of $0.1, from the $0.8 reported for the comparable period of
1997. The decrease in net income was principally the result of the inclusion of
one time non-recurring expenses, write-off of debt issuance costs and deemed
dividend on preferred stock conversion, resulting from the refinancing
activities. Net income before non-recurring expenses was $4.1 an increase of
$3.2 over the comparable period of 1997.
SIX MONTHS ENDED JANUARY 31, 1998 COMPARED TO SIX MONTHS ENDED JANUARY 31, 1997
Net Sales Net sales were $402.3 for the six months ended January 31,
1998, an increase of $70.3, or 21.2%, from $332.0 for the same period of 1997.
The increase resulted from the inclusion of World Wide Automotive and
Ballantrae's net sales of $36.5. The remainder of the increase resulted from
strong demand in the Heavy Duty OEM market and increased GM volume compared to
1997.
Gross Profit Gross Profit was $77.3 for the six months ended January 31,
1998, an increase of $7.4, or 10.6%, from $69.9 for the six months ended January
31, 1997. As a percentage of net sales, gross profit decreased 1.9% for the six
months ended January 31, 1998 from 21.1% for the comparable period of 1997.
This decrease was primarily attributable to a change in aftermarket sales volume
from higher margin heavy duty to lower margin light duty product lines, in
addition to reclassification of certain expenses from SE&A to overhead and the
startup costs associated with the three new focus factories. Gross profit as a
percent of net sales improved as a result of lower costs in the new focus
factories.
19
<PAGE>
Selling, Engineering and Administrative Expenses SE&A expenses were $42.1
for the six months ended January 31, 1998, a decrease of $0.9, or 2.1%, from
$43.0 for the comparable period of 1997. As a percentage of net sales, SE&A
expenses decreased to 10.5% for the six months ended January 31, 1998 from 13.0%
for the comparable period of 1997. The reduction in expenses occurred
principally from the reclassification of certain expenses to overhead offset by
the inclusion of World Wide and Ballantrae in the current period.
Operating Income Operating income was $35.2 for the six months ended
January 31, 1998, an increase of $8.3, or 30.9%, from $26.9 for the comparable
period of 1997. The increase in operating income is the result of the inclusion
of World Wide and Ballantrae in the current period. Operating income as a
percent of sales excluding World Wide and Ballantrae was 8.5% for the six months
ended January 31, 1997, versus 8.1% in the comparable period of 1997. The
increase reflects the changes noted above.
Interest Expense Interest expense for the six months ended January 31,
1998 was $20.7, an increase of $2.0, or 10.7%, compared to $18.7 for the
comparable period of 1997. The increase was primarily due to; the additional
debt incurred to finance the acquisition of World Wide and Ballantrae. The
additional debt was partially offset by the refinancing activities.
Income Taxes Income taxes for the six months ended January 31, 1998 of
$5.8, and $3.4 for the comparable period of 1997, represent effective tax rates
of 40.0% and 41.5%, respectively.
Non-recurring Deemed Dividend of Preferred Stock Conversion. In December
1997, a deemed dividend of subsidiary arose from the exchange of the redeemable
exchangeable preferred stock of subsidiary for the excess of the fair value of
the 8% Subordinated Debenture over the carrying value of the redeemable
exchangeable preferred stock of subsidiary resulting in a non-recurring charge
of $1.6 for the six month period ending January 31, 1998.
Loss from Discontinued Operations While there was no loss from
discontinued operations in 1998. The Company did incur such a loss of $0.3 for
the same period of 1997. The loss relates to the Company's Powder Metal Forge
("PMF") business.
Write Off of Debt Issuance Cost. In December 1997, certain debt was
retired out of the proceeds from the senior notes and initial public offering.
Unamortized issuance costs, net of income taxes, of $1.8 relating to the retired
debt was written off in the six month period ended January 31, 1998. In August
1996, certain debt was retired out of the proceeds from the Senior Subordinated
Debt. Unamortized issuance costs, net of income taxes, of $2.4 relating to the
retired debt was written off in the six month period ended January 31, 1997.
Net Income Net income was $3.7 for the six months ended January 31, 1998,
an increase of $2.6, from $1.1 for the comparable period of 1997. Net income
before non-recurring charges was $7.1 for the six months ended January 31, 1998.
This is an increase of $3.3 over the same period of 1997.
20
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity needs include required debt service, working
capital needs and the funding of capital expenditures. The Company anticipates
lower working capital requirements from a reduction in the inventory that was
increased to provide for the relocation to the focus factories as well as the
shut down of the Meridian, Mississippi OEM operations.
Interest payments under the Company's indebtedness will result in
significant liquidity requirements for the Company.
Cash interest expense for the six months ended January 31, 1998 and the six
months ended January 31, 1997 was $19.0 and $14.9, respectively. Non-cash
interest accrued during the six months ended January 31, 1998 and the six months
ended January 31,1997 was $1.7 and $3.8, respectively, or 8.2% and 20.3%,
respectively, of total interest expense. The Company has no significant
requirements for principal payments until the year 2006.
The Company's capital expenditures were $11.8 for the six months ended
January 31, 1998 and $24.1 for the six months ended January 31, 1997. The
Company has budgeted capital expenditures of approximately $13.5 for the
remainder of fiscal year 1998. Planned capital expenditures consist primarily
of production equipment for the Company's new focus plants. Cost reduction
programs account for a significant portion of planned capital expenditures and
include upgrades in machinery technology, new quality standards and
environmental compliance.
The Company's principal sources of cash to fund its liquidity needs will be
net cash from operating activities and borrowings under the Senior Credit
Facility. The Senior Credit Facility provides $180.0 of revolving loans. As of
January 31, 1998 there were $34.6 in borrowings outstanding under the Senior
Credit Facility.
The Company's initial public offering of 4.6 million shares of Class A
Common Stock in December 1997 and January 1998 generated net proceeds of $51.3.
The Company also issued 8 5/8% Senior Subordinated Notes with net proceeds of
$141.4 in December 1997. These proceeds were used to pay off debt with higher
interest rates and less favorable terms. On January 31, 1998 the debt to total
capitalization of the Company was 77.8% as compared to 93.2% on January 31,
1997.
The Company believes that cash generated from operations, together with the
amounts available under the Senior Credit Facility, will be adequate to meet its
debt service requirements, capital expenditures and working capital needs for
the foreseeable future, although no assurance can be given in this regard. The
Company's future operating performance and ability to service, extend, or
refinance its indebtedness will be subject to future economic conditions and to
financial, business and other factors that are beyond the Company's control.
21
<PAGE>
SEASONALITY
The Company's business is moderately seasonal, as its major OEM customers
historically have one- to two-week summer shutdowns of operations during the
fourth fiscal quarter. In addition, the Company typically has shut down its own
operations for one week each July, depending on backlog, scheduled maintenance
and inventory buffers, as well as an additional week during the December
holidays. Consequently, the Company's second and fourth quarter results reflect
the effects of these shutdowns.
YEAR 2000
The Company has developed a plan to modify the existing information
technology to recognize the year 2000 and have begun converting our critical
data processing systems. We currently expect the project to be substantially
complete by early calendar year 1999. This estimate includes internal costs,
but excludes the cost to upgrade and replace systems in the normal course of
business. The Company does not expect this project to have a material effect on
operations.
EFFECTS OF INFLATION
The Company believes that the relatively moderate inflation over the last
few years has not had a significant impact on the Company's revenues or
profitability and that it has been able to offset the effects of inflation by
increasing prices or by realizing improvements in operating efficiency. The
Company has provisions in many of its contracts which provide for the pass
through of fluctuations in the price of certain raw materials, such as copper
and aluminum.
FOREIGN SALES
Approximately 20.0% of the Company's net sales is derived from sales made
to customers in foreign countries. Because of these foreign sales, the
Company's business is subject to the risks of doing business abroad, including
currency exchange rate fluctuations, limits on repatriation of funds, compliance
with foreign laws and other economic and political uncertainties.
22
<PAGE>
PART II. OTHER INFORMATION
----------------------------
Item 1. LEGAL PROCEEDINGS.
- ------- ------------------
None
ITEM 2. CHANGES IN SECURITIES.
- ------- ----------------------
None
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
- ------- --------------------------------
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
- ------- ----------------------------------------------------
None
ITEM 5. OTHER INFORMATION.
- ------- ------------------
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
- ------- ---------------------------------
(a) Reports on Form 8-K. The Company has not filed any reports on
---------------------
Form 8-K during the quarterly period ended January 31, 1998.
(b) Exhibit 2.1. Restated Certificate of Incorporation of Delco
------------
Remy International, Inc.
(c) Exhibit 2.2. Bylaws of Delco Remy International, Inc.
------------
(d) Exhibit 4.1. Delco Remy International, Inc. 8-5/8% Senior Notes
------------
Due 2007 - Indenture
(e) Exhibit 10.1. Delco Remy International, Inc. $145,000,000 8-5/8%
-------------
Senior Notes Due 2007 - Underwriting Agreement
(f) Exhibit 10.2. 4,000,000 Shares Delco Remy International, Inc.
-------------
Class A Common Stock ($.01 Par Value) - Underwriting Agreement
23
<PAGE>
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.
DELCO REMY INTERNATIONAL, INC.
------------------------------
(Registrant)
/s/ David L. Harbert
Date: March 11, 1998 By: _______________________________
David L. Harbert
Executive Vice President and
Chief Financial Officer
/s/ David E. Stoll
Date: March 11, 1998 By: _______________________________
David E. Stoll
Vice President and Controller
Chief Accounting Officer
24
<PAGE>
Exhibit 2.1
-----------
RESTATED CERTIFICATE OF INCORPORATION
OF
DELCO REMY INTERNATIONAL, INC.
1. Name. The name of the Corporation is Delco Remy International, Inc.
----
2. Registered Office and Agent. The address of the Corporation's
---------------------------
registered office in the State of Delaware is 1013 Centre Road in the City of
Wilmington, County of New Castle. The name of the Company's registered agent at
such address is Corporation Service Company.
3. Purpose. The purposes for which the Corporation is formed are to engage
-------
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware and to possess and exercise all of the
powers and privileges granted by such law and any other law of Delaware.
4. Authorized Capital. The aggregate number of shares of stock which the
------------------
Corporation shall have authority to issue is 67,000,000 shares, divided into two
(2) classes consisting of 49,400,000 shares of Class A Common Stock, par value
$.01 per share ("Class A Common Stock"), and 17,600,000 shares of Class B Common
Stock, par value $.01 per share ("Class B Common Stock") (Class A Common Stock
and Class B Common Stock together, "Common Stock").
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class.
Except as otherwise provided herein, all shares of
Class A Common Stock and Class B Common Stock will be
identical and will entitle the holders thereof to the same
rights and privileges.
a. Dividends. Holders of Common Stock will be entitled
---------
to receive such dividends as may be declared by the Board of
Directors, provided that if dividends are declared that are
--------
payable in shares of Class A Common Stock or Class B Common
Stock, dividends will be declared that are payable at the
same rate on each class of Common Stock and the dividends
payable in shares of Class A Common Stock will be payable to
holders of Class A Common Stock and the dividends payable in
shares of Class B Common Stock will be payable to holders of
Class B Common Stock.
1
<PAGE>
b. Distribution of Assets. In the event of the
----------------------
voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, holders of Common Stock will be
entitled to receive all of the assets of the Corporation
available for distribution to its stockholders.
c. Voting Rights. Except as otherwise required by law,
-------------
the holders of Class A Common Stock shall have the general
right to vote for all purposes, including the election of
directors, and shall be entitled to one vote for each share
thereof held. Except as otherwise required by law, the
holders of Class B Common Stock shall have no voting rights.
d. Merger, etc. In connection with any merger,
-----------
consolidation, or recapitalization in which holders of Class
A Common Stock generally receive, or are given the
opportunity to receive, consideration for their shares (a)
all holders of Class B Common Stock shall be given the
opportunity to receive the same form of consideration for
their shares as is received by holders of Class A Common
Stock and (ii) holders of Class B Common Stock shall be
entitled to receive the same amount of consideration per
share as received by holders of Class A Common Stock.
e. Conversion. Each record holder of Class A Common
----------
Stock will be entitled to convert any or all of such
holder's Class A Common Stock into the same number of shares
of Class B Common Stock (but only to the extent that such
record holder of Class A Common Stock shall be deemed to be
required to convert such Class A Common Stock into Class B
Common Stock pursuant to applicable law), and each record
holder of Class B Common Stock will be entitled to convert
any or all of the shares of such holder's Class B Common
Stock into the same number of shares of Class A Common
Stock; provided, however, that at the time of conversion of
-------- -------
shares of Class B Common Stock into shares of Class A Common
Stock such holder would be permitted, pursuant to applicable
law, to hold the total number of shares of Class A Common
Stock that such holder would hold after giving effect to
such conversion.
Each conversion of shares of one class of Common Stock
into shares of another class of Common Stock will be
effected by the surrender of the certificate or certificates
representing the shares to be converted at the principal
office of the Corporation at any time during normal business
hours, together with a written notice by the holder of such
shares stating the number of shares that any such holder
desires to convert into the other class of Common Stock.
Such conversion will be deemed to have been effected as of
2
<PAGE>
the close of business on the date on which such certificate
or certificates have been surrendered and such notice has
been received by the Corporation, and at such time the
rights of any such holder with respect to the converted
class of Common Stock will cease and the person or persons
in whose name or names the certificate or certificates for
shares of the other class of Common Stock are to be issued
upon such conversion will be deemed to have become the
holder or holders of record of the shares of such other
class of Common Stock represented thereby.
Promptly after such surrender and the receipt by the
Corporation of the written notice from the holder
hereinbefore referred to, the Corporation will issue and
deliver in accordance with the surrendering holder's
instructions the certificate or certificates for the other
class of Common Stock issuable upon such conversion and a
certificate representing any shares of Common Stock that
were represented by the certificate or certificates
delivered to the Corporation in connection with such
conversion but which were not converted. The issuance of
certificates for the other class of Common Stock upon
conversion will be made without charge to the holder or
holders of such shares for any issuance tax (except stock
transfer taxes) in respect thereof or other cost incurred by
the Corporation in connection with such conversion.
f. Transfers. The Corporation will not close its books
---------
against the transfer of any share of Common Stock, or of any
share of Common Stock issued or issuable upon conversion of
shares of the other class of Common Stock, in any manner
that would interfere with the timely conversion of such
shares of Common Stock.
g. Subdivision and Combinations of Shares. If the
--------------------------------------
Corporation in any manner subdivides or combines the
outstanding shares of any class of Common Stock, the
outstanding shares of the other class of Common Stock will
be proportionately subdivided or combined.
5. Written Consent. Any action permitted to be taken at an annual or
---------------
special meeting of stockholders may be taken by written consent in lieu of a
meeting if and only if every stockholder entitled to vote on such matter
consents in writing to the taking of such action.
6. Bylaws. The board of directors of the Corporation is authorized to
------
adopt, amend or repeal the bylaws of the Corporation, except as otherwise
specifically provided therein.
3
<PAGE>
7. Elections of Directors. Elections of directors need not be by written
----------------------
ballot unless the bylaws of the Corporation shall so provide.
8. Business Combinations with Interested Stockholders. The Corporation
--------------------------------------------------
elects not to be governed by section 203 of the Delaware General Corporation Law
("DGCL") immediately upon filing of this certificate pursuant to DGCL section
203(b)(3).
9. Right to Amend. The Corporation reserves the right to amend any
--------------
provision contained in this Certificate as the same may from time to time be in
effect in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders or others hereunder are subject to such reservation.
10. Limitation on Liability. The directors of the Corporation shall be
-----------------------
entitled to the benefits of all limitations on the liability of directors
generally that are now or hereafter become available under the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
no director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. Any repeal or
modification of this Section 9 shall be prospective only, and shall not affect,
to the detriment of any director, any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or modification.
4
<PAGE>
EXHIBIT 2.2
BYLAWS
OF
DELCO REMY INTERNATIONAL, INC.
__________________________________
ARTICLE I
STOCKHOLDERS
------------
1.1 MEETINGS.
--------
1.1.1 PLACE. Meetings of the stockholders shall be held at such place as
-----
may be designated by the board of directors.
1.1.2 ANNUAL MEETING. An annual meeting of the stockholders for the
--------------
election of directors and for other business shall be held on such date and at
such time as may be fixed by the board of directors.
1.1.3 NOMINATIONS FOR ELECTION OF DIRECTORS. Nominations for election to
-------------------------------------
the board of directors may be made by the board of directors or by any
stockholder of any outstanding class of stock entitled to vote for the election
of directors, provided that such a nomination by a stockholder may be made at an
--------
annual meeting only if written notice of the stockholder's intention to make
such nomination is delivered or mailed to the chairman of the board of directors
not less than 60 days nor more than 90 days prior to the annual meeting at which
such nomination is to occur. Such stockholder's notice shall set forth (i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected and including information as to the purpose of such
nomination); (ii) as to the stockholder giving the notice (A) the name and
address, as they appear on the Corporation's books, of such stockholder, (B) the
class and number of shares of the Corporation which are beneficially owned by
such stockholder and also that are owned of record by such stockholder and (C)
as to the beneficial owner, if any, on whose behalf the nomination is made, (1)
the name and address of such person and (2) the class and number of shares of
the Corporation that are beneficially owned by such person. At the request of
the board of directors, any person nominated by the board of directors for
election as a director shall furnish to the secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
1.1.4 NOTICE OF STOCKHOLDER BUSINESS. At any annual meeting of the
------------------------------
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) pursuant to the Corporation's notice of meeting, (ii) by
or at the direction of the board of directors or (iii) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of the notice
provided for in this bylaw, who shall be entitled to vote at such annual meeting
and who
<PAGE>
properly brings such business before the annual meeting in compliance with this
bylaw. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
-------- -------
the event that the date of the meeting is changed by more than 30 days from such
anniversary date, notice by the stockholder to be timely must be received no
later than the close of business on the 10th day following the earlier of the
day on which notice of the date of the meeting was mailed or public disclosure
was made. A stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and address,
as they appear on the Corporation's books, of the stockholder proposing such
business, and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (iii) the class and number of shares of the
Corporation that are owned beneficially and of record by such stockholder of
record and by the beneficial owner, if any, on whose behalf the proposal is made
and (iv) any material interest of such stockholder of record and the beneficial
owner, if any, on whose behalf the proposal is made in such business.
Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted at an annual meeting of the stockholders except in accordance with the
procedures set forth in this bylaw. The chairman of the meeting shall, if the
facts warrant, determine and declare to the annual meeting that business was not
properly brought before the meeting in accordance with the procedures prescribed
in this bylaw, and if the chairman should so determine, shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted. Notwithstanding the foregoing provisions of this bylaw, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this bylaw.
1.1.5 SPECIAL MEETINGS. Special meetings of the stockholders may be called
----------------
at any time by the board of directors or the holders of a majority of the
outstanding shares of stock of the Corporation entitled to vote at the meeting.
1.1.6 QUORUM. The presence, in person or by proxy, of the holders of a
------
majority of the outstanding shares of stock of the Corporation entitled to vote
on a particular matter shall constitute a quorum for the purpose of considering
such matter.
1.1.7 VOTING RIGHTS. Except as otherwise provided herein, in the
-------------
certificate of incorporation of the Corporation or by law, every stockholder
shall have the right at every meeting of stockholders to one vote for every
share standing in the name of such stockholder on the books of the Corporation
which is entitled to vote at such meeting. Every stockholder may vote either in
person or by proxy.
1.1.8 WRITTEN CONSENT. Any action permitted to be taken at an annual or
---------------
special meeting of stockholders may be taken by written consent in lieu of a
meeting if and only if every stockholder entitled to vote on such matter
consents in writing to the taking of such action.
2
<PAGE>
ARTICLE II
DIRECTORS
---------
2.1 NUMBER AND TERM. The board of directors shall have authority to (i)
---------------
determine the number of directors to constitute the board and (ii) fix the terms
of office of the directors.
2.2 VACANCIES. The board of directors shall have authority to fill vacancies
---------
in the board of directors. The person elected shall hold office until the next
annual meeting of stockholders when the vacancy shall be filled as usual.
2.3 MEETINGS.
--------
2.3.1 PLACE. Meetings of the board of directors shall be held at such
-----
place as may be designated by the board or in the notice of the meeting.
2.3.2 REGULAR MEETINGS. Regular meetings of the board of directors shall
----------------
be held at such times as the board of directors may designate. Notice of regular
meetings need not be given.
2.3.3 SPECIAL MEETINGS. Special meetings of the board of directors may be
----------------
called by direction of the chairman of the board or by two of the directors in
office on three days' notice to each director, either personally or by mail,
telegram or facsimile transmission.
2.3.4 QUORUM. A majority of all the directors in office shall constitute a
------
quorum for the transaction of business at any meeting.
2.3.5 VOTING. Except as otherwise provided herein, in the certificate of
------
incorporation or by law, the vote of a majority of the directors present at any
meeting at which a quorum is present shall constitute the act of the board of
directors.
2.3.6 COMMITTEES. The board of directors may, by resolution adopted by a
----------
majority of the whole board, designate one or more committees, each committee to
consist of one or more directors and such alternate members (also directors) as
may be designated by the board. Unless otherwise provided herein, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
such member or members constitute a quorum, may unanimously appoint another
director to act at the meeting in the place of any such absent or disqualified
member. Except as otherwise provided herein, in the Certificate of
Incorporation of the Corporation or by law, any such committee shall have and
may exercise the powers of the full board of directors to the extent provided in
the resolution of the board directing the committee.
3
<PAGE>
ARTICLE III
OFFICERS
--------
3.1 ELECTION. At its first meeting after each annual meeting of the
--------
stockholders, the board of directors shall elect a chairman, president,
treasurer, secretary and such other officers as it deems advisable.
3.2 AUTHORITY, DUTIES AND COMPENSATION. The officers shall have such
----------------------------------
authority, perform such duties and serve for such compensation as may be
determined by resolution of the board of directors. Except as otherwise
provided by board resolution, (i) the chairman shall be the chief executive
officer of the Company, shall have general supervision over the business and
operations of the Company, may perform any act and execute any instrument for
the conduct of such business and operations and shall preside at all meetings of
the board and stockholders, (ii) the other officers shall have the duties
customarily related to their respective offices, and (iii) the president shall
in the absence of the chairman have the authority and perform the duties of the
chairman.
ARTICLE IV
INDEMNIFICATION
---------------
4.1 RIGHT TO INDEMNIFICATION. The Corporation shall indemnify any person who
------------------------
was or is party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (a "proceeding"), by reason of the fact that such person is or
was a director or officer of the Corporation or a constituent corporation
absorbed in a consolidation or merger, or is or was serving at the request of
the Corporation or a constituent corporation absorbed in a consolidation or
merger, as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or is or was a director or officer of the
Corporation serving at its request as an administrator, trustee or other
fiduciary of one or more of the employee benefit plans of the Corporation or
other enterprise, against expenses (including attorneys' fees), liability and
loss actually and reasonably incurred or suffered by such person in connection
with such proceeding, whether or not the indemnified liability arises or arose
from any threatened, pending or completed proceeding by or in the right of the
Corporation, except to the extent that such indemnification is prohibited by
applicable law.
4.2 ADVANCE OF EXPENSES. Expenses incurred by a director or officer of the
-------------------
Corporation in defending a proceeding shall be paid by the Corporation in
advance of the final disposition of such proceeding subject to the provisions of
any applicable statute.
4.3 PROCEDURE FOR DETERMINING PERMISSIBILITY. To determine whether any
----------------------------------------
indemnification or advance of expenses under this Article IV is permissible, the
board of directors by a majority vote of a quorum consisting of directors not
parties to such proceeding may, and on request of any person seeking
indemnification or advance of expenses shall be required to, determine in each
4
<PAGE>
case whether the applicable standards in any applicable statute have been met,
or such determination shall be made by independent legal counsel if such quorum
is not obtainable, or, even if obtainable, a majority vote of a quorum of
disinterested directors so directs, provided that, if there has been a change in
control of the Corporation between the time of the action or failure to act
giving rise to the claim for indemnification or advance of expenses and the time
such claim is made, at the option of the person seeking indemnification or
advance of expenses, the permissibility of indemnification or advance of
expenses shall be determined by independent legal counsel. The reasonable
expenses of any director or officer in prosecuting a successful claim for
indemnification, and the fees and expenses of any special legal counsel engaged
to determine permissibility of indemnification or advance of expenses, shall be
borne by the Corporation.
4.4 CONTRACTUAL OBLIGATION. The obligations of the Corporation to indemnify a
----------------------
director or officer under this Article IV, including the duty to advance
expenses, shall be considered a contract between the Corporation and such
director or officer, and no modification or repeal of any provision of this
Article IV shall affect, to the detriment of the director or officer, such
obligations of the Corporation in connection with a claim based on any act or
failure to act occurring before such modification or repeal.
4.5 INDEMNIFICATION NOT EXCLUSIVE; INURING OF BENEFIT. The indemnification and
-------------------------------------------------
advance of expenses provided by this Article IV shall not be deemed exclusive of
any other right to which one indemnified may be entitled under any statute,
provision of the Certificate of Incorporation, these bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office, and shall inure to the benefit of the heirs, executors and
administrators of any such person.
4.6 INSURANCE AND OTHER INDEMNIFICATION. The board of directors shall have the
-----------------------------------
power to (i) authorize the Corporation to purchase and maintain, at the
Corporation's expense, insurance on behalf of the Corporation and on behalf of
others to the extent that power to do so has not been prohibited by statute,
(ii) create any fund of any nature, whether or not under the control of a
trustee, or otherwise secure any of its indemnification obligations, and (iii)
give other indemnification to the extent permitted by statute
5
<PAGE>
ARTICLE V
TRANSFER OF SHARE CERTIFICATES
------------------------------
Transfers of share certificates and the shares represented thereby shall be
made on the books of the Corporation only by the registered holder or by duly
authorized attorney. Transfers shall be made only on surrender of the share
certificate or certificates.
ARTICLE VI
AMENDMENTS
----------
These bylaws may be amended or repealed at any regular or special meeting
of the board of directors by vote of a majority of all directors in office or at
any annual or special meeting of stockholders by vote of holders of a majority
of the outstanding stock entitled to vote thereon. Notice of any such annual or
special meeting of stockholders shall set forth the proposed change or a summary
thereof.
6
<PAGE>
EXHIBIT 4.1
================================================================================
DELCO REMY INTERNATIONAL, INC.
8-5/8% Senior Notes Due 2007
-------------------------------------------
INDENTURE
Dated as of December 22, 1997
------------------------------------------
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE 1
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions................................................. 1
SECTION 1.02. Other Definitions........................................... 26
SECTION 1.03. Incorporation by Reference of Trust
Indenture Act.............................................. 26
SECTION 1.04. Rules of Construction....................................... 27
ARTICLE 2
The Securities
--------------
SECTION 2.01. Form and Dating............................................. 27
SECTION 2.02. Execution and Authentication................................ 28
SECTION 2.03. Registrar and Paying Agent.................................. 29
SECTION 2.04. Paying Agent To Hold Money in Trust......................... 29
SECTION 2.05. Securityholder Lists........................................ 30
SECTION 2.06. Registration of Transfer and Exchange....................... 30
SECTION 2.07. Replacement Securities...................................... 32
SECTION 2.08. Outstanding Securities...................................... 32
SECTION 2.09. Temporary Securities........................................ 33
SECTION 2.10. Cancellation................................................ 33
SECTION 2.11. Defaulted Interest.......................................... 33
SECTION 2.12. CUSIP Numbers............................................... 34
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee.......................................... 34
SECTION 3.02. Selection of Securities To Be Redeemed...................... 34
SECTION 3.03. Notice of Redemption........................................ 35
SECTION 3.04. Effect of Notice of Redemption.............................. 35
SECTION 3.05. Deposit of Redemption Price................................. 36
SECTION 3.06. Securities Redeemed in Part................................. 36
ARTICLE 4
Covenants
---------
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 4.01. Payment of Securities....................................... 36
SECTION 4.02. SEC Reports................................................. 37
SECTION 4.03. Limitation on Indebtedness.................................. 37
SECTION 4.04. Limitation on Restricted Payments........................... 40
SECTION 4.05. Limitation on Restrictions on Distri-
butions from Restricted Subsidiaries....................... 44
SECTION 4.06. Limitation on Sales of Assets and
Subsidiary Stock........................................... 45
SECTION 4.07. Limitation on Affiliate Transactions........................ 49
SECTION 4.08. Limitation on the Sale or Issuance
of Capital Stock of Restricted
Subsidiaries............................................... 50
SECTION 4.09. Change of Control........................................... 51
SECTION 4.10. Limitation on Liens......................................... 53
SECTION 4.11. Compliance Certificate...................................... 53
SECTION 4.12. Further Instruments and Acts................................ 53
SECTION 4.13. Future Guarantors........................................... 53
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer
Assets..................................................... 54
SECTION 5.02. When a Subsidiary Guarantor May Merge or
Transfer Assets............................................ 55
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default........................................... 56
SECTION 6.02. Acceleration................................................ 58
SECTION 6.03. Other Remedies.............................................. 59
SECTION 6.04. Waiver of Past Defaults..................................... 59
SECTION 6.05. Control by Majority......................................... 59
SECTION 6.06. Limitation on Suits......................................... 60
SECTION 6.07. Rights of Holders to Receive Payment........................ 60
SECTION 6.08. Collection Suit by Trustee.................................. 60
SECTION 6.09. Trustee May File Proofs of Claim............................ 61
SECTION 6.10. Priorities.................................................. 61
SECTION 6.11. Undertaking for Costs....................................... 62
SECTION 6.12. Waiver of Stay or Extension Laws............................ 62
ARTICLE 7
---------
Trustee
-------
SECTION 7.01. Duties of Trustee........................................... 62
SECTION 7.02. Rights of Trustee........................................... 64
</TABLE>
<PAGE>
Contents, p. 3
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 7.03. Individual Rights of Trustee................................ 64
SECTION 7.04. Trustee's Disclaimer........................................ 64
SECTION 7.05. Notice of Defaults.......................................... 65
SECTION 7.06. Reports by Trustee to Holders............................... 65
SECTION 7.07. Compensation and Indemnity.................................. 65
SECTION 7.08. Replacement of Trustee...................................... 66
SECTION 7.09. Successor Trustee by Merger................................. 67
SECTION 7.10. Eligibility; Disqualification............................... 68
SECTION 7.11. Preferential Collection of Claims
Against Company............................................ 68
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities;
Defeasance................................................. 68
SECTION 8.02. Conditions to Defeasance.................................... 69
SECTION 8.03. Application of Trust Money.................................. 71
SECTION 8.04. Repayment to Company........................................ 71
SECTION 8.05. Indemnity for Government Obligations........................ 71
SECTION 8.06. Reinstatement............................................... 71
ARTICLE 9
Amendments
----------
SECTION 9.01. Without Consent of Holders.................................. 72
SECTION 9.02. With Consent of Holders..................................... 73
SECTION 9.03. Compliance with Trust Indenture Act......................... 74
SECTION 9.04. Revocation and Effect of Consents and
Waivers.................................................... 74
SECTION 9.05. Notation on or Exchange of Securities....................... 74
SECTION 9.06. Trustee To Sign Amendments.................................. 75
SECTION 9.07. Payment for Consent......................................... 75
ARTICLE 10
Subsidiary Guaranties
---------------------
SECTION 10.01. Guaranties.................................................. 75
SECTION 10.02. Contribution................................................ 77
SECTION 10.03. Successors and Assigns...................................... 78
SECTION 10.04. No Waiver................................................... 78
SECTION 10.05. Modification................................................ 78
SECTION 10.06. Execution of Supplemental Indenture for
Future Subsidiary Guarantors............................... 78
ARTICLE 11
</TABLE>
<PAGE>
Contents, p. 4
<TABLE>
<CAPTION>
Page
----
<S> <C>
Miscellaneous
-------------
SECTION 11.01. Trust Indenture Act Controls................................ 79
SECTION 11.02. Notices..................................................... 79
SECTION 11.03. Communication by Holders with Other
Holders.................................................... 80
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent.................................................. 80
SECTION 11.05. Statements Required in Certificate or
Opinion.................................................... 80
SECTION 11.06. When Securities Disregarded................................. 81
SECTION 11.07. Rules by Trustee, Paying Agent and
Registrar.................................................. 81
SECTION 11.08. Legal Holidays.............................................. 81
SECTION 11.09. Governing Law............................................... 81
SECTION 11.10. No Recourse Against Others.................................. 82
SECTION 11.11. Successors.................................................. 82
SECTION 11.12. Multiple Originals.......................................... 82
SECTION 11.13. Table of Contents; Headings................................. 82
</TABLE>
Exhibit A Form of Security
Exhibit B Form of Supplemental Indenture
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Indenture
Section Section
------- ---------
<S> <C>
310(a)(1) ...................................... 7.10
(a)(2) ...................................... 7.10
(a)(3) ...................................... N.A.
(a)(4) ...................................... N.A.
(b) ......................................
.08; 7.10
(c) ...................................... N.A.
311(a) ...................................... 7.11
(b) ...................................... 7.11
(c) ...................................... N.A.
312(a) ...................................... 2.05
(b) ......................................
1.03
(c) ......................................
1.03
313(a) ...................................... 7.06
(b)(1) ...................................... N.A.
(b)(2) ...................................... 7.06
(c) ......................................
1.02
(d) ...................................... 7.06
314(a) ...................................... .02; 4.11;
1.02
(b) ...................................... N.A.
(c)(1) ......................................
1.04
(c)(2) ......................................
1.04
(c)(3) ...................................... N.A.
(d) ...................................... N.A.
(e) ......................................
1.05
(f) ...................................... 4.11
315(a) ...................................... 7.01
(b) ......................................
.05; 11.02
(c) ...................................... 7.01
(d) ...................................... 7.01
(e) ...................................... 6.11
316(a)(last
sentence) ...................................... 11.06
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TIA Indenture
Section Section
------- ---------
<S> <C>
(a)(1)(A) ...................................... 6.05
(a)(1)(B) ...................................... 6.04
(a)(2) ...................................... N.A.
(b) ...................................... 6.07
317(a)(1) ...................................... 6.08
(a)(2) ...................................... 6.09
(b) ...................................... 2.04
318(a) ......................................
1.01
</TABLE>
N.A. Means Not Applicable.
Note: This Cross-Reference Table shall not, for any purposes, be deemed to be
part of this Indenture.
<PAGE>
INDENTURE dated as of December 22, 1997, among DELCO REMY
INTERNATIONAL, INC., a Delaware corporation (the "Company"),
certain of the Company's subsidiaries signatory hereto (each, a
"Subsidiary Guarantor" and, collectively, the "Subsidiary
Guarantors") and UNITED STATES TRUST COMPANY OF NEW YORK, a New
York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 8-5/8% Senior
Notes Due 2007 (the "Securities"):
ARTICLE 1
Definitions and Incorporation by Reference
------------------------------------------
SECTION 1.01. Definitions.
------------
"Additional Assets" means (i) any property or assets (other than
-----------------
Indebtedness and Capital Stock) in a Related Business; (ii) the Capital Stock of
a Person that becomes a Restricted Subsidiary as a result of the acquisition of
such Capital Stock by the Company or another Restricted Subsidiary; or (iii)
Capital Stock constituting a minority interest in any Person that at such time
is a Restricted Subsidiary; provided, however, that any such Restricted
-------- -------
Subsidiary described in clause (ii) or (iii) above is primarily engaged in a
Related Business.
"Affiliate" of any specified Person means any other Person, directly
---------
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.04, 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of Capital Stock representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company or of rights
or warrants to purchase such Capital Stock (whether or not currently
exercisable) and any Person who would be an Affiliate of any
<PAGE>
2
such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
-----------------
disposition (or series of related sales, leases, transfers or dispositions) by
the Company or any Restricted Subsidiary, including any disposition by means of
a merger, consolidation or similar transaction (each referred to for the
purposes of this definition as a "disposition"), of (i) any shares of Capital
Stock of a Restricted Subsidiary (other than directors' qualifying shares and,
to the extent required by local ownership laws in foreign countries, shares
owned by foreign shareholders), (ii) all or substantially all the assets of any
division, business segment or comparable line of business of the Company or any
Restricted Subsidiary or (iii) any other assets of the Company or any Restricted
Subsidiary outside of the ordinary course of business of the Company or such
Restricted Subsidiary (other than, in the case of (i), (ii) and (iii) above, (x)
a disposition by a Restricted Subsidiary to the Company or by the Company or a
Restricted Subsidiary to a Wholly Owned Subsidiary and (y) for purposes of
Section 4.06 only, a disposition that constitutes a Restricted Payment permitted
by Section 4.04).
"Asset Purchase Agreement" means the Asset Purchase Agreement dated
------------------------
July 13, 1994, by and among the Company, DRA and General Motors Corporation.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
-----------------
as at the time of determination, (i) if such Sale and Leaseback Transaction is a
Capital Lease Obligation, the amount of Indebtedness represented thereby
according to the definition of "Capital Lease Obligations" and (ii) in all other
instances, the present value (discounted at the interest rate borne by the
Notes, compounded annually) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
------------
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts
-----------------
<PAGE>
3
payable under or in respect of the Senior Credit Facility including principal,
premium (if any), interest, fees, charges, expenses, reimbursement obligations,
Guarantees and all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the Company or
------------------
any committee thereof duly authorized to act on behalf of such Board.
"Business Day" means each day which is not a Legal Holiday.
------------
"Capital Lease Obligations" means an obligation that is required to be
-------------------------
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of any of the following
-----------------
events:
(i) any "person" (as such term is used in Sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that for purposes of this clause (i) such person shall
be deemed to have "beneficial ownership" of all shares that any such person
has the right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 35%
of the total voting power of the Voting Stock of the Company; provided,
--------
however, that the Permitted Holders beneficially own (as defined in this
-------
clause (i), provided that the Permitted Holders shall be deemed to
beneficially own any Voting Stock of any entity (the "specified entity")
held by any other entity (the "parent entity") so long as the Permitted
Holders beneficially own (as so defined), directly or indirectly, in the
aggregate a majority of the voting power of the Voting Stock of the parent
entity), directly or
<PAGE>
4
indirectly, in the aggregate a lesser percentage of the total voting power
of the Voting Stock of the Company than such other person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the Board of Directors (for purposes
of this clause (i), such other person shall be deemed to beneficially own
any Voting Stock of a specified entity held by a parent entity, if such
other person is the beneficial owner (as defined in this clause (i)),
directly or indirectly, of more than 35% of the voting power of the Voting
Stock of such parent entity and the Permitted Holders beneficially own (as
defined in this clause (i)), directly or indirectly, in the aggregate a
lesser percentage of the voting power of the Voting Stock of such parent
entity and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the board of
directors of such parent entity);
(ii) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors of the Company then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
to constitute a majority of the Board of Directors then in office;
(iii) the merger or consolidation of the Company with or into another
Person or the merger of another Person with or into the Company, or the
sale of all or substantially all the assets of the Company to another
Person (other than a Person that is controlled by the Permitted Holders),
and, in the case of any such merger or consolidation, the securities of the
Company that are outstanding immediately prior to such transaction and
which represent 100% of the aggregate voting power of the Voting Stock of
the Company are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving corporation that represent immediately after such transaction, at
least a majority of the aggregate voting power of the
<PAGE>
5
Voting Stock of the surviving corporation; or
(iv) the shareholders of the Company shall have approved any plan of
liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Company" means the party named as such in this Indenture until a
-------
successor replaces it in accordance with the terms hereof and, thereafter, means
the successor and, for purposes of any provision contained herein and required
by the TIA, each other obligor on the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
---------------------------
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days (or, if less,
the number of days after the end of such fiscal quarter as the consolidated
financial statements of the Company shall be provided to the Securityholders
pursuant to the Indenture) prior to the date of such determination (determined
for the four fiscal quarters ending prior to the Issue Date, or any of such
fiscal quarters, on a pro forma basis to give effect to the Subsequent
Acquisitions as if they occurred on the first day of such period) to (ii)
Consolidated Interest Expense for such four fiscal quarters; provided, however,
-------- -------
that:
(1) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding on such
date of determination or if the transaction giving rise to the need to calculate
the Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both,
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving effect on a pro forma basis to such Indebtedness as if such
Indebtedness had been Incurred on the first day of such period and the discharge
of any other Indebtedness repaid, repurchased, legally defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period (except that, in the case of
Indebtedness used to finance working capital needs Incurred under a revolving
credit or similar arrangement, the amount thereof shall be deemed to be the
average daily balance of such Indebtedness during such four-fiscal-quarter
period);
(2) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any
<PAGE>
6
Asset Disposition, the EBITDA for such period shall be reduced by an amount
equal to the EBITDA (if positive) directly attributable to the assets which are
the subject of such Asset Disposition for such period, or increased by an amount
equal to the EBITDA (if negative) directly attributable thereto for such period
and Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any
Indebtedness of the Company or any Restricted Subsidiary repaid, repurchased,
legally defeased, assumed by a third person (to the extent the Company and its
Restricted Subsidiaries are no longer liable for such Indebtedness) or otherwise
discharged with respect to the Company and its continuing Restricted
Subsidiaries in connection with such Asset Disposition for such period (or, if
the Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the Indebtedness of
such Restricted Subsidiary to the extent the Company and its continuing
Restricted Subsidiaries are no longer liable for such Indebtedness after such
sale);
(3) if since the beginning of such period the Company shall have
consummated a Public Equity Offering, Consolidated Interest Expense for such
period shall be reduced by an amount equal to the Consolidated Interest Expense
directly attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, legally defeased or otherwise discharged with
respect to the Company and its Restricted Subsidiaries in connection with such
Public Equity Offering for such period;
(4) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an Investment in
any Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary)
or an acquisition of assets, which acquisition constitutes all or substantially
all of an operating unit of a business, including any such Investment or
acquisition occurring in connection with a transaction requiring a calculation
to be made hereunder, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or acquisition occurred on
the first day of such period; and
(5) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period) shall
have made any Asset Disposition, any Investment or acquisition of
<PAGE>
7
assets that would have required an adjustment pursuant to clause (3) or (4)
above if made by the Company or a Restricted Subsidiary during such period,
EBITDA and Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto as if such Asset Disposition, Investment
or acquisition occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to an acquisition of assets, the amount of income or earnings relating
thereto and the amount of Consolidated Interest Expense associated with any
Indebtedness Incurred in connection therewith, the pro forma calculations shall
be determined in good faith by a responsible financial or accounting Officer.
If any Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest of such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking in to account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Interest Expense" means, for any period, the total
-----------------------------
interest expense of the Company and its consolidated Restricted Subsidiaries,
plus, (a) to the extent not included in such total interest expense, and to the
extent Incurred by the Company or its Restricted Subsidiaries, (i) interest
expense attributable to Capital Lease Obligations, (ii) amortization of debt
discount, (iii) capitalized interest, (iv) noncash interest expenses, (v)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (vi) net costs associated with
Hedging Obligations (including amortization of fees), (vii) Preferred Stock
dividends in respect of all Preferred Stock of Restricted Subsidiaries held by
Persons other than the Company or a Wholly Owned Subsidiary, (viii) interest
incurred in connection with Investments in discontinued operations, (ix)
interest actually paid on any Indebtedness of any other Person that is
Guaranteed by the Company or any Restricted Subsidiary and (x) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company or any Wholly Owned Subsidiary) in
connection with Indebtedness Incurred by such plan or trust, minus, (b) to the
extent included in such total interest expense, amortization of deferred
financing costs, fees and expenses.
"Consolidated Net Income" means, for any period, the net income of the
-----------------------
Company and its consolidated Subsidi-
<PAGE>
8
aries; provided, however, that there shall not be included in such Consolidated
-------- -------
Net Income:
(i) any net income (or loss) of any Person if such Person is not a
Restricted Subsidiary, except that subject to the exclusion contained in
clause (iv) below, the Company's equity in the net income of any such
Person for such period shall be included in such Consolidated Net Income up
to the aggregate amount of cash actually distributed by such Person during
such period to the Company or a Restricted Subsidiary as a dividend or
other distribution (subject, in the case of a dividend or other
distribution paid to a Restricted Subsidiary, to the limitations contained
in clause (iii) below);
(ii) for purposes of subclause (a)(3)(A) of Section 4.04 only, any
net income (or loss) of any Person acquired by the Company or a Subsidiary
in a pooling of interests transaction for any period prior to the date of
such acquisition ;
(iii) any net income of any Restricted Subsidiary if such Restricted
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that (A) subject
to the exclusion contained in clause (iv) below, the Company's equity in
the net income of any such Restricted Subsidiary for such period shall be
included in such Consolidated Net Income up to the aggregate amount of cash
that could have been distributed by such Restricted Subsidiary consistent
with such restriction during such period to the Company or another
Restricted Subsidiary as a dividend or other distribution (subject, in the
case of a dividend or other distribution paid to another Restricted
Subsidiary, to the limitation contained in this clause) and (B) the
Company's equity in a net loss of any such Restricted Subsidiary for such
period shall be included in determining such Consolidated Net Income;
(iv) any gain (or loss) realized upon the sale or other disposition
of any assets of the Company or its consolidated Subsidiaries (including
pursuant to any sale-and-leaseback arrangement) which is not sold or
otherwise disposed of in the ordinary course of business and any gain (but
not loss) realized upon the sale or other disposition of any Capital Stock
of any Person;
<PAGE>
9
(v) extraordinary gains or losses;
(vi) the cumulative effect of a change in accounting principles; and
(vii) any noncash compensation expense realized for grants of
performance shares, stock options or other stock awards to officers,
directors and employees of the Company or any Restricted Subsidiary.
"Consolidated Net Worth" means the total of the amounts shown on the
----------------------
balance sheet of the Company and the Restricted Subsidiaries, determined on a
consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.
"Currency Agreement" means, with respect to any Person, any foreign
------------------
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"CVC Investor" means (i) CVC, (ii) Citicorp, N.A. and (iii) any
------------
officer, employee or director of CVC so long as such person shall be an officer,
employee or director of CVC.
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Disqualified Stock" means, with respect to any Person, any Capital
------------------
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable, at the option of the holder
thereof, for Indebtedness or Disqualified Stock or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior to
the first anniversary of the Stated Maturity of the Securities.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of
------------------------------
the Company other than a Foreign
<PAGE>
10
Restricted Subsidiary.
"DRA" means Delco Remy America, Inc., a Delaware corporation and a
---
Wholly Owned Subsidiary.
"EBITDA" for any period means the sum of Consolidated Net Income plus,
------
without duplication, the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Expense, (b) income tax
expense, (c) depreciation expense, (d) amortization expense and (e) all other
noncash items reducing Consolidated Net Income (other than items that will
require cash payments and for which an accrual or reserve is, or is required by
GAAP to be, made, other than (i) accruals for post-retirement benefits other
than pensions and (ii) restructuring charges incurred by the Company in any
completed fiscal quarter preceding the Issue Date), less all noncash items
increasing Consolidated Net Income, in each case for such period.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization of, a Subsidiary of the
Company shall be added to Consolidated Net Income to compute EBITDA only to the
extent (and in the same proportion) that the net income of such Subsidiary was
included in calculating Consolidated Net Income.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Financing Disposition" means any sale of any accounts receivable, or
---------------------
interest therein, by the Company or any Subsidiary to any Receivables
Subsidiary, or by the Receivables Subsidiary, pursuant to a Permitted
Receivables Financing.
"Foreign Restricted Subsidiary" means any Restricted Subsidiary of the
-----------------------------
Company which is not organized under the laws of the United States of America or
any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
----
States of America as in effect as of the Issue Date, including those set forth
(i) in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board and (iii) in such
other statements by such other entity as approved by a significant segment of
the accounting profession.
"GM Contingent Note" means the Contingent Purchase Price Note issued
------------------
by DRA pursuant to the Asset Purchase
<PAGE>
11
Agreement.
"GM Exchange Debentures" means the 8% Subordinated Debentures issued
----------------------
by DRA on or prior to the Issue Date in exchange for the Series A 8% Preferred
Stock of DRA issued pursuant to the Asset Purchase Agreement.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such Person
(whether arising by virtue of partnership arrangements, or by agreements to
keep-well, to purchase assets, goods, securities or services, to take-or-pay or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Indebtedness
or other obligation of the payment thereof or to protect such obligee against
loss in respect thereof (in whole or in part); provided, however, that the term
-------- -------
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning. The term "Guarantor" shall mean any Person Guaranteeing
any obligation.
"Hedging Obligations" of any Person means the obligations of such
-------------------
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means the Person in whose name a Security
------ --------------
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise become
-----
liable for; provided, however, that any Indebtedness or Capital Stock of a
-------- -------
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary; and provided further, however,
---------------- -------
that in the case of a discount security, neither the accrual of interest nor the
accretion of original issue discount shall be considered an Incurrence of
Indebtedness, but the entire face amount of such security shall be deemed
Incurred upon the issuance of such security. The term "Incurrence" when used as
a noun shall have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
------------
determination (without duplication):
<PAGE>
12
(i) the principal of and premium (if any) in respect of (A)
indebtedness of such Person for money borrowed and (B) indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the
payment of which such Person is responsible or liable;
(ii) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person;
(iii) all obligations of such Person issued or assumed as the
deferred purchase price of property or services, all conditional sale
obligations of such Person and all obligations of such Person under any
title retention agreement (but excluding trade accounts payable arising in
the ordinary course of business), which purchase price or obligation is due
more than six months after the date of placing such property in service or
taking delivery and title thereto or the completion of such services
(provided that, in the case of obligations of an acquired Person assumed in
--------
connection with an acquisition of such Person, such obligations would
constitute Indebtedness of such Person);
(iv) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit
securing obligations (other than obligations described in clauses (i)
through (iii) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon or, if
and to the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit);
(v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any Subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends);
(vi) all obligations of the type referred to in clauses (i) through
(v) of other Persons and all dividends of other Persons for the payment of
which, in either case, such Person is responsible or liable, directly or
indirectly, as obligor, guarantor or
<PAGE>
13
otherwise, including by means of any Guarantee;
(vii) all obligations of the type referred to in clauses (i) through
(vi) of other Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of
such property or assets or the amount of the obligation so secured; and
(viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations as described above at such date;
provided, however, that (A) the amount outstanding at any time of any
- -------- -------
Indebtedness issued with original issue discount shall be deemed to be the face
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at such time as determined in
conformity with GAAP and (B) the outstanding principal amount of the GM
Contingent Note shall be deemed to be zero until the last day of the fiscal year
or other period with respect to which the amount due thereunder shall be
determined.
"Indenture" means this Indenture as amended or supplemented from time
---------
to time.
"Interest Rate Agreement" means any interest rate swap agreement,
-----------------------
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance, loan
----------
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person.
"Issue Date" means the date on which the Securities are originally
----------
issued.
<PAGE>
14
"Joint Venture" means, in respect of any Person, any corporation,
-------------
association, partnership or other business entity of which not less than 20% and
not more than 80% of the total voting power of shares of Capital Stock or other
interests (including partnership interests) 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
(i) such Person, (ii) such Person and one or more Subsidiaries of such Person or
(iii) one or more Subsidiaries of such Person.
"Kraftube" means Kraftube, Inc., a Michigan corporation.
--------
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Management Investors" means each of the officers, employees and
--------------------
directors of the Company who own Voting Stock of the Company on the Issue Date,
in each case so long as such person shall remain an officer, employee or
director of the Company.
"MascoTech" means MascoTech Automotive Systems Group, Inc., a Delaware
---------
corporation.
"Net Available Cash" from an Asset Disposition means cash payments
------------------
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
noncash form) in each case net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses Incurred, and all Federal,
state, provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (ii) all
payments made on any Indebtedness which is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon or other
security agreement of any kind with respect to such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be, repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other
<PAGE>
15
payments required to be made to minority interest holders in Subsidiaries or
joint ventures as a result of such Asset Disposition and (iv) the deduction of
appropriate amounts provided by the seller as a reserve, in accordance with
GAAP, against any liabilities associated with the property or other assets
disposed in such Asset Disposition and retained by the Company or any Restricted
Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
-----------------
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Non-Core Assets" means any assets of the Company used primarily in
---------------
the powder metal forge business of the Company on the Issue Date.
"Non-Wholly Owned Subsidiary" means a Restricted Subsidiary all the
---------------------------
Capital Stock (other than, to the extent required by local ownership laws in
foreign countries, shares owned by foreign shareholders) of which is owned by
(i) the Company or one or more Wholly Owned Subsidiaries and/or (ii) any of the
directors, officers, employees or former owners of such Restricted Subsidiary.
"Officer" means the Chairman of the Board, the Chief Executive
-------
Officer, the Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
---------------------
"Opinion of Counsel" means a written opinion from legal counsel who is
------------------
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Permitted Holders" means the CVC Investors, MascoTech, World Equity
-----------------
Partners, the Management Investors and their respective Permitted Transferees;
provided, however, that in no event shall the Management Investors and the CVC
- -------- -------
Investors (other than CVC or Citicorp, N.A.), collectively, be deemed "Permitted
Holders" with respect to more than 30% of the total voting power of all classes
of Voting Stock of the Company.
<PAGE>
16
"Permitted Liens" means: (i) Liens to secure Indebtedness permitted to
---------------
be Incurred under Section 4.03(b)(1); (ii) Liens to secure Indebtedness
permitted to be Incurred under Section 4.03(b)(10), provided that any such Lien
--------
may not extend to any property of the Company or any Restricted Subsidiary,
other than the property acquired, constructed or leased with the proceeds of
such Indebtedness and any improvements or accessions to such property; (iii)
Liens for taxes, assessments or governmental charges or levies on the property
of the Company or any Restricted Subsidiary if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision that shall
--------
be required in conformity with GAAP shall have been made therefor; (iv) Liens
imposed by law, such as carriers', warehousemen's, landlords', suppliers',
materialmen's and mechanics' Liens and other similar Liens on the property of
the Company or any Restricted Subsidiary arising in the ordinary course of
business and securing payment of obligations which are not more than 60 days
past due or are being contested in good faith and by appropriate proceedings or
other Liens arising out of any judgment or award against the Company or a
Restricted Subsidiary with respect to which the Company or such Restricted
Subsidiary shall then be proceeding in good faith with an appeal or other
proceeding for review, provided that, if such judgment or award is for the
--------
payment of money in excess of $10,000,000 (or its foreign currency equivalent at
the time) and is entered against the Company or any Significant Subsidiary, such
Lien shall be fully and unconditionally released within 60 days following the
entry of such judgment or award; (v) Liens on the property of the Company or any
Restricted Subsidiary Incurred in the ordinary course of business to secure
performance of obligations with respect to statutory or regulatory requirements,
performance or return-of-money bonds, surety bonds or other obligations of a
like nature and Incurred in a manner consistent with industry practice, in each
case which are not Incurred in connection with the borrowing of money, the
obtaining of advances or credit or the payment of the deferred purchase price of
property and which do not in the aggregate impair in any material respect the
use of property in the operation of the business of the Company and its
Restricted Subsidiaries taken as a whole; (vi) Liens on property at the time the
Company or any Restricted Subsidiary acquired such property, including any
acquisition by means of a merger or consolidation with or into the Company or
any Restricted Subsidiary; provided, however, that any such Lien may not extend
--------- -------
to any other property of the Company or any
<PAGE>
17
Restricted Subsidiary; provided further, however, that such Liens shall not have
---------------- -------
been Incurred in anticipation of or in connection with the transaction or series
of transactions pursuant to which such property was acquired by the Company or
any Restricted Subsidiary; (vii) Liens on the property of a Person at the time
such Person becomes a Restricted Subsidiary; provided, however, that any such
-------- -------
Lien may not extend to any other property of the Company or any other Restricted
Subsidiary which is not a direct Subsidiary of such Person; provided further,
----------------
however, that any such Lien was not Incurred in anticipation of or in connection
- -------
with the transaction or series of transactions pursuant to which such Person
became a Restricted Subsidiary; (viii) pledges or deposits by the Company or any
Restricted Subsidiary under workmen's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to
which the Company or any Restricted Subsidiary is party, or deposits to secure
public or statutory obligations of the Company or any Restricted Subsidiary, or
deposits of cash or United States government bonds to secure surety or appeals
bonds obtained in the ordinary course of business to which the Company or a
Restricted Subsidiary is a party, or deposits as security for taxes (that shall
not at the time be delinquent or thereafter can be paid without penalty or are
being contested in good faith and by appropriate proceedings) or import duties
incurred in the ordinary course of business, or deposits for the payment of
rent, in each case Incurred in the ordinary course of business; (ix) utility
easements, survey exceptions, building restrictions and such other encumbrances
or charges against real property as are of a nature generally existing with
respect to properties of a similar character; (x) Liens existing on the Issue
Date not otherwise described in clauses (i) through (ix) above; (xi) Liens not
otherwise described in clauses (i) through (x) above on the property of any
Restricted Subsidiary that is not a Subsidiary Guarantor to secure any
Indebtedness permitted to be Incurred by such Restricted Subsidiary pursuant to
Section 4.03; and (xii) Liens on the property of the Company or any Restricted
Subsidiary to secure any Refinancing, in whole or in part, of any Indebtedness
secured by Liens referred to in clause (i), (ii), (vi), (vii), (x) or (xi)
above; provided, however, that any such Lien shall be limited to all or part of
-------- -------
the same property that secured the original Lien (together with improvements and
accessions to such property) and the aggregate principal amount of Indebtedness
that is secured by such Lien shall not be increased to an amount greater than
the sum of (a) the outstanding principal amount, or, if greater, the committed
amount, of the Indebtedness secured by Liens
<PAGE>
18
described under clause (i), (ii), (vi), (vii), (x) or (xi) above, as the case
may be, at the time the original Lien became a Permitted Lien under this
Indenture and (b) an amount necessary to pay any premiums, fees and other
expenses Incurred by the Company or any Restricted Subsidiary in connection with
such Refinancing.
"Permitted Receivables Financing" means any financing pursuant to
-------------------------------
which the Company or any Restricted Subsidiary may sell, convey or otherwise
transfer to a Receivables Subsidiary or any other Person (in the case of a
transfer by a Receivables Subsidiary), or grant a security interest in, any
accounts receivable (and related assets) of the Company or any Restricted
Subsidiary; provided, however, that (i) the covenants, events of default and
-------- -------
other provisions applicable to such financing shall be customary for such
transactions and shall be on market terms (as determined in good faith by the
Board of Directors) at the time such financing is entered into, (ii) the
interest rate applicable to such financing shall be a market interest rate (as
determined in good faith by the Board of Directors) at the time such financing
is entered into and (iii) such financing shall be nonrecourse to the Company and
its Subsidiaries (other than the Receivables Subsidiary) except to a limited
extent customary for such transactions.
"Permitted Transferee" means, (a) with respect to any CVC Investor,
--------------------
who is an employee, officer or director of CVC, any spouse or lineal descendant
(including by adoption) of such CVC Investor so long as such CVC Investor shall
be an employee, officer or director of CVC; (b) with respect to MascoTech,
MascoTech Inc.; and (c) with respect to any Management Investor, any spouse or
lineal descendant (including by adoption) of such Management Investor so long as
such Management Investor shall be an employee, officer or director of the
Company.
"Person" means any individual, corporation, partnership, joint
------
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
<PAGE>
19
"principal" of a Note means the principal of the Note plus the
---------
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"Public Equity Offering" means an underwritten primary public offering
----------------------
of common stock of the Company (or, for purposes of Section 4.08(D), any
Restricted Subsidiary referred to therein) pursuant to an effective registration
statement under the Securities Act.
"Public Market" means any time after (x) a Public Equity Offering with
-------------
respect to a Restricted Subsidiary has been consummated and (y) at least 10% of
the total issued and outstanding common stock of such Restricted Subsidiary has
been distributed by means of an effective registration statement under the
Securities Act or sales pursuant to Rule 144 under the Securities Act.
"Purchase Money Indebtedness" mean Indebtedness (i) consisting of the
---------------------------
deferred purchase price of property, conditional sale obligations, obligations
under any title retention agreement, other purchase money obligations and
obligations in respect of industrial revenue bonds or similar Indebtedness, in
each case where the maturity of such Indebtedness does not exceed the
anticipated useful life of the asset being financed, and (ii) Incurred to
finance the acquisition by the Company or a Restricted Subsidiary of such asset,
including additions and improvements; provided, however, that any Lien arising
-------- -------
in connection with any such Indebtedness shall be limited to the specified asset
being financed or, in the case of real property or fixtures, including additions
and improvements, the real property on which such asset is attached; and
provided further, however, that such Indebtedness is Incurred within 90 days
- ---------------- -------
after such acquisition of such asset by the Company or Restricted Subsidiary.
"Receivables Subsidiary" means a bankruptcy-remote, special-purpose
----------------------
Wholly Owned Subsidiary formed in connection with a Permitted Receivables
Financing.
"Refinance" means, in respect of any Indebtedness, to refinance,
---------
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
------------------------
Indebtedness of the Company or any Restricted Subsidiary existing on the Issue
Date or Incurred in
<PAGE>
20
compliance with this Indenture, including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) such Refinancing
-------- -------
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (ii) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced and (iii)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or less
than the aggregate principal amount (or if Incurred with original issue
discount, the aggregate accreted value) then outstanding or committed (plus fees
and expenses, including any premium and defeasance costs) under the Indebtedness
being Refinanced; provided further, however, that Refinancing Indebtedness shall
---------------- -------
not include (x) Indebtedness of a Subsidiary that Refinances Indebtedness of the
Company or (y) Indebtedness of the Company or a Restricted Subsidiary that
Refinances Indebtedness of an Unrestricted Subsidiary. For purposes of this
definition, the Average Life and the aggregate principal amount of the GM
Contingent Note at the time of any Refinancing thereof shall be determined by a
responsible financial or accounting Officer based on a good faith estimate of
the amount of the contingent payment that will become due and payable under such
note and the timing of the scheduled installments thereof in accordance with the
terms of such note.
"Related Business" means any business related, ancillary or
----------------
complementary (as determined in good faith by the Board of Directors) to the
businesses of the Company and the Restricted Subsidiaries on the Issue Date.
"Restricted Payment" means, with respect to any Person, (i) the
------------------
declaration or payment of any dividends or any other distributions on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving such Person) or similar payment to the holders
of its Capital Stock, except dividends or distributions payable solely in its
Capital Stock (other than Disqualified Stock)) and except dividends or
distributions payable solely to the Company or a Restricted Subsidiary (and, if
such Restricted Subsidiary is not wholly owned, to its other shareholders on a
pro rata basis or on a basis that results in the receipt by the Company or a
Restricted Subsidiary of dividends or distributions of greater value than it
would receive on a pro rata basis), (ii) the purchase, redemption or other
acquisition or retirement for value of any Capital Stock of the Company held by
any Person or of any Capital Stock of a Restricted
<PAGE>
21
Subsidiary held by any Affiliate of the Company (other than a Restricted
Subsidiary, including an Affiliate of a Restricted Subsidiary), including the
exercise of any option to exchange any Capital Stock (other than into Capital
Stock of the Company that is not Disqualified Stock), (iii) the purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value,
prior to scheduled maturity, scheduled repayment or scheduled sinking fund
payment of any Subordinated Obligations (other than the purchase, repurchase or
other acquisition of Subordinated Obligations purchased in anticipation of
satisfying a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of acquisition), (iv) the
designation of any Subsidiary of the Company as an Unrestricted Subsidiary
(other than the designation of Kraftube as an Unrestricted Subsidiary at the
time of the Company's acquisition of Ballantrae Corporation), in which event the
amount of such "Restricted Payment" shall be the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value of the
net assets of such Subsidiary at the time that such Subsidiary is designated an
Unrestricted Subsidiary, or (v) the sale or issuance of Capital Stock of a
Restricted Subsidiary to a Person other than the Company or another Restricted
Subsidiary if the result thereof is that such Restricted Subsidiary shall cease
to be a Restricted Subsidiary, in which event the amount of such "Restricted
Payment" shall be the fair market value of the remaining interest, if any, in
such former Restricted Subsidiary held by the Company and its other Restricted
Subsidiaries.
"Restricted Subsidiary" means any Subsidiary of the Company that is
---------------------
not an Unrestricted Subsidiary.
"Sale/Leaseback Transaction" means an arrangement relating to property
--------------------------
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
"SEC" means the Securities and Exchange Commission.
---
"Secured Indebtedness" means any Indebtedness of the Company secured
--------------------
by a Lien. "Secured Indebtedness" of any Subsidiary Guarantor has a correlative
--------------------
meaning.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
<PAGE>
22
"Senior Credit Facility" means the revolving credit facility made
----------------------
available pursuant to the Fourth Amended and Restated Financing Agreement dated
as of December 16, 1997, among the Subsidiary Guarantors, as borrowers, the
Company, as guarantor, the lenders from time to time party thereto and Bank One,
Indianapolis, National Association, as Agent, as the same may be amended,
waived, modified, Refinanced or replaced from time to time (except to the extent
that any such amendment, waiver, modification, replacement or Refinancing would
be prohibited by the terms of this Indenture).
"Senior Indebtedness" of the Company means (i) Indebtedness of the
-------------------
Company, whether outstanding on the Issue Date or thereafter Incurred, including
the Guarantee by the Company of all Bank Indebtedness, and (ii) accrued and
unpaid interest thereon, in respect of (a) Indebtedness of the Company for money
borrowed and (b) Indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which the Company is responsible or
liable unless, in the instrument creating or evidencing the same or pursuant to
which the same is outstanding, it is provided that such obligations are
subordinate in right of payment to the Securities; provided, however, that
-------- -------
Senior Indebtedness shall not include (1) any obligation of the Company to any
Subsidiary, (2) any liability for Federal, state, local or other taxes owed or
owing by the Company, (3) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (4) any Indebtedness of the
Company (and any accrued and unpaid interest in respect thereof) which is
subordinate or junior in any respect (other than as a result of the Indebtedness
being unsecured) to any other Indebtedness or other obligation of the Company
including any Subordinated Obligations, (5) any obligations with respect to any
Capital Stock or (6) that portion of any Indebtedness which at the time of
Incurrence is Incurred in violation of this Indenture. "Senior Indebtedness" of
-------------------
any Subsidiary Guarantor has a correlative meaning.
"Significant Subsidiary" means any Restricted Subsidiary that would be
----------------------
a "Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the final payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision
<PAGE>
23
providing for the repurchase of such security at the option of the holder
thereof upon the happening of any contingency unless such contingency has
occurred).
"Subordinated Obligation" of the Company means any Indebtedness of the
-----------------------
Company (whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement to that effect. "Subordinated Obligation" of any Subsidiary
-----------------------
Guarantor has a correlative meaning.
"Subsequent Acquisitions" means the acquisition by the Company prior
-----------------------
to the Issue Date of substantially all the Capital Stock of World Wide
Automotive, Inc. and the merger between a Subsidiary of the Company and
Ballantrae Corporation on or prior to the Issue Date.
"Subsidiary" means, in respect of any Person, any corporation,
----------
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) 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 (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Subsidiary Guarantor" means each Subsidiary designated as such on the
--------------------
signature pages hereto and any other Subsidiary that has issued a Subsidiary
Guaranty.
"Subsidiary Guaranty" means any Guarantee of the Securities which may
-------------------
from time to time be executed and delivered pursuant to this Indenture. Each
such Subsidiary Guaranty shall be in the form prescribed in this Indenture.
"Temporary Cash Investments" means any of the following: (i) any
--------------------------
investment in direct obligations of the United States of America or any agency
thereof or obligations guaranteed by the United States of America or any agency
thereof, (ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 180 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50,000,000 (or the
foreign currency equivalent thereof) and has outstanding debt which is rated "A"
(or such similar equivalent rating)
<PAGE>
24
or higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act) or any money-market fund
sponsored by a registered broker dealer or mutual fund distributor, (iii)
repurchase obligations with a term of not more than 30 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above, (iv) investments in
commercial paper, maturing not more than 90 days after the date of acquisition,
issued by a corporation (other than an Affiliate of the Company) organized and
in existence under the laws of the United States of America, any State thereof
or the District of Columbia or any foreign country recognized by the United
States of America with a rating at the time as of which any investment therein
is made of "P-1" (or higher) according to Moody's Investors Service, Inc. or "A-
1" (or higher) according to Standard and Poor's Ratings Group, and (v)
investments in securities with maturities of six months or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States of America, or by any political subdivision or taxing
authority thereof, and rated at least "A" by Standard & Poor's Ratings Group or
"A" by Moody's Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
--- ------
77bbbb) as in effect on the date of this Indenture.
"Trustee" means the party named as such in this Indenture until a
-------
successor replaces it and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President or any
-------------
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code
-----------------------
as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
-----------------------
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors in the manner provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
of the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary or any of its
Subsidiaries owns any Capital Stock
<PAGE>
25
or Indebtedness of, or holds any Lien on any property of, the Company or any
other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be
so designated; provided, however, that either (A) the Subsidiary to be so
-------- -------
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, such designation would be permitted under Section
4.04. The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided, however, that immediately after giving effect
-------- -------
to such designation, (x) the Company could Incur $1.00 of additional
Indebtedness under Section 4.03(a) and (y) no Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be evidenced to
the Trustee by promptly filing with the Trustee a copy of the resolution of the
Board of Directors giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions. As of the date of this Indenture, the only Unrestricted Subsidiaries
are Autovill Holdings, Inc., Remy Mexico Holdings, Inc., Remy South America
Holdings, Inc., and Remy Korea Holdings, Inc. (in each case as to which the
Company represents and warrants that such Subsidiary has total assets of $1,000
or less) and Kraftube (provided that the Company represents and warrants that
Kraftube will be designated as an Unrestricted Subsidiary under the indenture
for the Company's 10-5/8% Senior Subordinated Notes Due 2006). Upon designation
of a Restricted Subsidiary as an Unrestricted Subsidiary in compliance with this
paragraph, such Restricted Subsidiary shall, by delivery of a supplemental
indenture in form satisfactory to the Trustee, be released from any Subsidiary
Guaranty previously made by such Subsidiary.
"U.S. Government Obligations" means direct obligations (or
---------------------------
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or other
------------
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Restricted Subsidiary all the
-----------------------
Capital Stock of which (other than directors' qualifying shares) is owned by the
Company and/or
<PAGE>
26
one or more Wholly Owned Subsidiaries.
"World Equity Partners" means World Equity Partners, L.P., a Delaware
---------------------
limited partnership.
SECTION 1.02. Other Definitions.
------------------
<TABLE>
<CAPTION>
Term Defined in
----
Section
----------
<S> <C>
"Affiliate Transaction"..................................... 4.07(a)
"Bankruptcy Law"............................................ 6.01
"Change of Control Offer"................................... 4.09(a)
"Change of Control Payment"................................. 4.09(a)
"Change of Control Payment Date"............................ 4.09(b)
"covenant defeasance option"................................ 8.01(b)
"Custodian"................................................. 6.01
"Depositary"................................................ 2.02
"Event of Default".......................................... 6.01
"Excess Proceeds"........................................... 4.06(a)
"Global Securities"......................................... 2.02
"legal defeasance option"................................... 8.01(b)
"Legal Holiday"............................................. 11.08
"Offer"..................................................... 4.06(b)
"Offer Amount".............................................. 4.06(c)
"Offer Period".............................................. 4.06(c)
"Paying Agent".............................................. 2.03
"Purchase Date"............................................. 4.06(c)
"Registrar"................................................. 2.03
"Successor Company"......................................... 5.01
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
<PAGE>
27
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE 2
The Securities
--------------
SECTION 2.01. Form and Dating. The Securities and the Trustee's
----------------
certificate of authentication shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture.
<PAGE>
28
The Securities may have notations, legends or endorsements required by law,
stock exchange rule, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). Each Security shall be dated the date of its
authentication. The terms of the Securities set forth in Exhibit A are part of
the terms of this Indenture.
SECTION 2.02. Execution and Authentication. Two Officers shall sign
-----------------------------
the Securities for the Company by manual or facsimile signature. The Company's
seal shall be impressed, affixed, imprinted or reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers, authenticate Securities for original issue up to the aggregate
principal amount stated in the Securities in the form of one or more Global
Securities (herein defined as the "Global Security" or "Global Securities"),
which (i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the outstanding Securities, (ii) shall be
registered in the name of the depositary (the "Depositary"), which shall
initially be The Depository Trust Company or its nominee, for such Global
Security or Global Securities or its nominee, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect: "UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN." The aggregate principal
<PAGE>
29
amount of Securities outstanding at any time may not exceed such amount except
as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Securities. Unless limited by the terms of
such appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as any Registrar, Paying Agent or agent for service of notices
and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
---------------------------
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to each due
------------------------------------
date of the principal and interest on any Security, the Company shall deposit
with the Paying Agent a sum sufficient to pay such principal and interest when
so becoming due. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the
benefit of Securityholders or the Trustee all money held by the Paying Agent for
the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by
<PAGE>
30
the Company in making any such payment and while any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee.
If the Company or a Subsidiary acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and to account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further liability
for the money delivered to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
---------------------
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing at least five
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Securityholders.
SECTION 2.06. Registration of Transfer and Exchange. The Securities
--------------------------------------
shall be issued in registered form and shall be transferable only upon the
surrender of a Security for registration of transfer. When Securities are
presented to the Registrar with a request to register their transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transaction are met, provided that a Security
surrendered for registration of transfer or exchange shall be duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Registrar duly executed by, the Holder thereof or his attorney duly authorized
in writing. To permit registration of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Securities at the Registrar's
or coregistrar's request. The Company may require payment of a sum sufficient
to pay all taxes, assessments or other governmental charges in connection with
any transfer or exchange pursuant to this Section.
Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
coregistrar may (subject to the provisions of the Securities with respect to
record dates)deem and treat the person in whose name a Security is registered as
the absolute owner of such Security for the purpose of receiving payment of
principal of and interest on such Security and for all other purposes
whatsoever, whether
<PAGE>
31
or not such Security is overdue, and none of the Company, the Trustee, the
Paying Agent, the Registrar or any coregistrar shall be affected by notice to
the contrary.
A Global Security may be transferred, in whole but not in part and in
the manner provided in this Section, only to a nominee of the Depositary for
such Global Security, or to the Depositary, or a successor Depositary for such
Global Security selected or approved by the Company, or to a nominee of such
successor Depositary.
If at any time the Depositary for the Global Security or Global
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Global Securities or if at any time the
Depositary for the Global Security or Global Securities shall no longer be
eligible or in good standing under the Exchange Act, or other applicable statute
or regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Global Securities. If a successor Depositary for such
Global Security or Global Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee, upon receipt of a
written order for the authentication and delivery of individual Securities in
exchange for such Global Security or Global Securities, will authenticate and
deliver individual Securities in definitive form in an aggregate principal
amount equal to the outstanding principal amount of the Global Security or
Global Securities in exchange for such Global Security or Global Securities.
The Company may at any time and in its sole discretion determine that
the Securities shall no longer be represented by such Global Security or Global
Securities. Also, if an Event of Default has occurred and is continuing, any
Holder of a beneficial interest in the Global Security or Global Securities
shall, if required by the Depositary or upon written request by such Holder to
the Company, be entitled to receive definitive Securities in an aggregate
principal amount equal to and in exchange for its respective beneficial interest
in the Global Security or Global Securities, executed, authenticated and
delivered in accordance with this Indenture.
In any exchange provided for in any of the preceding two paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be canceled by the
<PAGE>
32
Trustee. Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
None of the Company, the Subsidiary Guarantors, the Trustee, any
Paying Agent or the Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Depositary has advised the Company that, subject to the above, it
will take any action permitted to be taken by a Holder (including the
presentation of Securities for exchange as described above) only at the
direction of one or more participants to whose account interests in the Global
Security or Global Securities are credited and only in respect of such portion
of the aggregate principal amount of Securities as to which such participant or
participants has or have given such direction.
SECTION 2.07. Replacement Securities. If a mutilated Security is
-----------------------
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Subsidiary
Guarantors, the Trustee, the Paying Agent, the Registrar and any co-registrar
from any loss which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge the Holder for their expenses in replacing a
Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
-----------------------
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section
<PAGE>
33
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser, in which event
the replacement Security shall cease to be outstanding, subject to the
provisions of Section 8-405 of the Uniform Commercial Code.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Securities
(or portions thereof) to be redeemed or maturing, as the case may be, and the
Paying Agent is not prohibited from paying such money to the Securityholders on
that date pursuant to the terms of this Indenture, then on and after that date
such Securities (or portions thereof) cease to be outstanding and interest on
them ceases to accrue.
SECTION 2.09. Temporary Securities. Until definitive Securities are
---------------------
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities.
SECTION 2.10. Cancellation. The Company at any time may deliver
-------------
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company. The
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest. If the Company defaults in a
-------------------
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
<PAGE>
34
manner. The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed any such special record date and payment date to the
reasonable satisfaction of the Trustee and shall promptly mail to each
Securityholder a notice that states the special record date, the payment date
and the amount of defaulted interest to be paid.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities
--------------
may use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
- -------- -------
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE 3
Redemption
----------
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
-------------------
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 45 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
---------------------------------------
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal and securities exchange requirements, if any, and that the Trustee
considers fair and appropriate. The Trustee shall make the selection from
outstanding Securities not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities that have
denominations larger than $1,000.
<PAGE>
35
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption. The Trustee shall notify the Company promptly of the Securities
or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
---------------------
than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture, interest on Securities (or portion
thereof) called for redemption ceases to accrue on and after the redemption
date; and
(7) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
-------------------------------
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surren-
<PAGE>
36
der to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive any payments due on the relevant interest payment date). Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the redemption
----------------------------
date, the Company shall deposit with the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
----------------------------
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security
surrendered.
ARTICLE 4
Covenants
---------
SECTION 4.01. Payment of Securities. The Company shall promptly pay
----------------------
the principal of and interest on the Securities on the dates and in the manner
provided in the Securities and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture money sufficient to pay all
principal and interest then due and the Trustee or the Paying Agent, as the case
may be, is not prohibited from paying such money to the Securityholders on that
date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. SEC Reports. Notwithstanding that the Company may not
------------
be required to remain subject to the reporting requirements of Section 13 or
15(d) of the
<PAGE>
37
Exchange Act, the Company shall file with the SEC and provide the Trustee and
Securityholders and prospective Securityholders (upon request) with such annual
reports and such information, documents and other reports as are specified in
such Sections and applicable to a U.S. corporation subject to such Sections,
such information, documents and other reports to be so filed and provided at the
times specified for the filing of such information, documents and reports under
such Sections; provided, however, that the Company shall not be required to file
-------- -------
any report, document or other information with the SEC if the SEC does not
permit such filing.
SECTION 4.03. Limitation on Indebtedness. (a) The Company shall not
---------------------------
and shall not permit any Restricted Subsidiary to Incur, directly or indirectly,
any Indebtedness unless, on the date of such Incurrence, the Consolidated
Coverage Ratio exceeds 2.00 to 1.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur any or all of the following Indebtedness:
(1) Indebtedness Incurred pursuant to the Senior Credit Facility or
any Permitted Receivables Financing; provided, however, that, after giving
-------- -------
effect to any such Incurrence, the aggregate principal amount of such
Indebtedness then outstanding does not exceed the greater of (i)
$180,000,000 (less any permanent reductions in the amount of available
borrowings thereunder) and (ii) the sum of (x) 75% of the book value of the
inventory of the Company and its Restricted Subsidiaries and (y) 85% of the
book value of the accounts receivable of the Company and its Restricted
Subsidiaries, in each case determined in accordance with GAAP;
(2) Indebtedness of the Company owed to and held by any Wholly Owned
Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by
the Company or a Wholly Owned Subsidiary; provided, however, that any
-------- -------
subsequent issuance or transfer of any Capital Stock which results in any
such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company or a
Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the
Incurrence of such Indebtedness of the issuer thereof;
(3) Indebtedness of the Company or a Restricted Subsidiary owed to
and held by any Non-Wholly Owned Subsidiary; provided, however, that (i)
-------- -------
any such
<PAGE>
38
Indebtedness shall be unsecured Subordinated Obligations of the Company or
such Restricted Subsidiary, as applicable, and (ii) any subsequent issuance
or transfer of any Capital Stock of such Non-Wholly Owned Subsidiary or any
subsequent transfer of such Indebtedness (other than to the Company, a
Wholly Owned Subsidiary or another Non-Wholly Owned Subsidiary) shall be
deemed to constitute the Incurrence of such Indebtedness by the issuer
thereof;
(4) Indebtedness of the Company represented by the Securities;
(5) Indebtedness outstanding on the Issue Date (other than
Indebtedness described in clause (1), (2) or (3) of this Section 4.03(b));
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to Section 4.03(a) or pursuant to clause (4), (5), (9) or (12) of
this Section 4.03(b) or this paragraph (6);
(7) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds entered into by
the Company and the Restricted Subsidiaries in the ordinary course of their
business;
(8) Hedging Obligations consisting of Interest Rate Agreements and
Currency Agreements entered into in the ordinary course of business and not
for the purpose of speculation; provided, however, that, in the case of
-------- -------
Currency Agreements and Interest Rate Agreements, such Currency Agreements
and Interest Rate Agreements do not increase the Indebtedness of the
Company outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder;
(9) Purchase Money Indebtedness and Capital Lease Obligations
Incurred to finance the acquisition by the Company or a Restricted
Subsidiary of any assets in the ordinary course of business and which,
together with all Refinancing Indebtedness Incurred in respect of
Indebtedness previously Incurred pursuant to this clause (9), do not exceed
$35,000,000 in the aggregate at any time outstanding;
(10) Indebtedness represented by the Subsidiary Guaranties;
<PAGE>
39
(11) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business, provided that such Indebtedness
--------
is extinguished within five business days of Incurrence;
(12) Indebtedness of the Company and its Restricted Subsidiaries, to
the extent the proceeds thereof are immediately used after the Incurrence
thereof to purchase Securities tendered in an offer to purchase made as a
result of a Change of Control;
(13) Indebtedness of the Company and its Restricted Subsidiaries
arising from agreements providing for indemnification, adjustment of
purchase price or similar obligations, in any case Incurred in connection
with the disposition of any assets of the Company or any Restricted
Subsidiary (other than Guarantees of Indebtedness Incurred by any Person
acquiring all or any portion of such assets for the purpose of financing
such acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary in connection
with such disposition; and
(14) Indebtedness in an aggregate principal amount which, together
with all other Indebtedness of the Company outstanding on the date of such
Incurrence (other than Indebtedness permitted by clauses (1) through (13)
of this Section 4.03(b) or Section 4.03(a)), does not exceed $75,000,000.
(c) Notwithstanding the foregoing, the Company shall not, and shall
not permit any Restricted Subsidiary to, Incur any Indebtedness pursuant to
Section 4.03(b) if the proceeds thereof are used, directly or indirectly, to
Refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities and the Subsidiary Guaranties, as applicable to
at least the same extent as such Subordinated Obligations; provided, however,
-------- -------
that the foregoing shall not prohibit the Refinancing of all or any part of the
GM Contingent Note or the GM Exchange Debentures with Refinancing Indebtedness
if, at the time of such Incurrence, no Default shall have occurred and be
continuing (or would result therefrom).
(d) For purposes of determining compliance with this Section 4.03,
(i) in the event that an item of Indebtedness meets the criteria of more than
one of the
<PAGE>
40
types of Indebtedness described in this Section, the Company, in its sole
discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses and
(ii) an item of Indebtedness may be divided and classified in more than one of
the types of Indebtedness described herein.
(e) Notwithstanding Section 4.03(a) or 4.03(b), the Company shall
not, and shall not permit any Subsidiary Guarantor to, Incur any Secured
Indebtedness that is not Senior Indebtedness of the Company or any Subsidiary
Guarantor, as applicable, unless contemporaneously therewith effective provision
is made to secure the Securities or Subsidiary Guaranty, as applicable equally
and ratably with such Secured Indebtedness.
SECTION 4.04. Limitation on Restricted Payments. (a) The Company
----------------------------------
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to make a Restricted Payment if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company is not able to Incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a); or
(3) the aggregate amount of such Restricted Payment together with
all other Restricted Payments (the amount of any payments made in property
other than in cash to be valued at the fair market value of such property,
as determined in good faith by the Board of Directors) declared or made
since the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the period
(treated as one accounting period) from the beginning of the fiscal
quarter immediately following the fiscal quarter during which the
Securities are originally issued to the end of the most recent fiscal
quarter ending at least 45 days (or, if less, the number of days after
the end of such fiscal quarter as the consolidated financial
statements of the Company shall be provided to the Securityholders
pursuant to this Indenture) prior to the date of such Restricted
Payment (or, in case such Consolidated Net Income accrued during such
period (treated as one accounting period) shall be a
<PAGE>
41
deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company from
the issuance or sale of its Capital Stock (other than Disqualified
Stock) subsequent to the Issue Date (other than an issuance or sale to
a Subsidiary of the Company and other than an issuance or sale to an
employee stock ownership plan or to a trust established by the Company
or any of its Subsidiaries for the benefit of their employees to the
extent that the purchase by such plan or trust is financed by
Indebtedness of such plan or trust to the Company or any Subsidiary or
for which the Company or any Subsidiary is liable, directly or
indirectly, as a guarantor or otherwise (including by the making of
cash contributions to such plan or trust which are used to pay
interest or principal on such Indebtedness));
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's balance sheet upon
the conversion or exchange (other than by the Company or a Subsidiary
of the Company) subsequent to the Issue Date, of any Indebtedness of
the Company or its Restricted Subsidiaries convertible or exchangeable
for Capital Stock (other than Disqualified Stock) of the Company (less
the amount of any cash, or the fair value of any other property,
distributed by the Company or any Restricted Subsidiary upon such
conversion or exchange); and
(D) an amount equal to the portion (proportionate to the
Company's equity interest in such Subsidiary) of the fair market value
of the net assets of an Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary;
provided, however, that the foregoing amount shall not exceed, in the
-------- -------
case of any such Unrestricted Subsidiary, the amount previously
treated as a Restricted Payment by the Company or any Restricted
Subsidiary in such Person.
(b) The provisions of Section 4.04(a) shall not prohibit:
(1) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Company or any Restricted Subsidiary made by exchange
for, or out of
<PAGE>
42
the proceeds of the substantially concurrent sale of, Capital Stock of the
Company (other than Disqualified Stock and other than Capital Stock issued
or sold to a Subsidiary of the Company or an employee stock ownership plan
or to a trust established by the Company or any of its Subsidiaries for the
benefit of their employees to the extent that the purchase by such plan or
trust is financed by Indebtedness of such plan or trust to the Company or
any Subsidiary or for which the Company or any Subsidiary is liable,
directly or indirectly, as a guarantor or otherwise (including by the
making of cash contributions to such plan or trust which are used to pay
interest or principal on such Indebtedness)); provided, however, that (A)
--------
such purchase or redemption shall be excluded in the calculation of the
amount of Restricted Payments and (B) the Net Cash Proceeds from such sale
shall be excluded from the calculation of amounts under Section
4.04(a)(3)(B);
(2) any purchase or redemption of (A) Subordinated Obligations of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Indebtedness of the Company which is permitted to be
Incurred pursuant to paragraphs (b) and (c) of Section 4.03 or (B)
Subordinated Obligations of a Restricted Subsidiary made by exchange for,
or out of the proceeds of the substantially concurrent sale of,
Indebtedness of such Restricted Subsidiary or the Company which is
permitted to be Incurred pursuant to paragraphs (b) and (c) of Section
4.03; provided, however, that such purchase or redemption shall be excluded
-------- -------
in the calculation of the amount of Restricted Payments;
(3) any purchase or redemption of (A) Disqualified Stock of the
Company made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Disqualified Stock of the Company or (B) Disqualified
Stock of a Restricted Subsidiary made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock of
such Restricted Subsidiary or the Company; provided, however, that (i) at
-------- -------
the time of such exchange, no Default shall have occurred and be continuing
(or would result therefrom) and (ii) such purchase or redemption will be
excluded in the calculation of the amount of Restricted Payments;
(4) any purchase or redemption of Subordinated Obligations from Net
Available Cash to the extent permitted by Section 4.06; provided, however,
-------- -------
that such
<PAGE>
43
purchase or redemption will be excluded in the calculation of the amount of
Restricted Payments;
(5) upon the occurrence of a Change of Control and within 60 days
after the completion of the offer to repurchase the Securities pursuant to
Section 4.09 (including the purchase of all Securities tendered), any
purchase or redemption of Subordinated Obligations required pursuant to the
terms thereof as a result of such Change of Control at a purchase or
redemption price not to exceed the outstanding principal amount thereof,
plus accrued and unpaid interest thereon, if any; provided, however, that
-------- -------
(A) at the time of such purchase or redemption, no Default shall have
occurred and be continuing (or would result therefrom), (B) the Company
would be able to Incur an additional $1.00 of Indebtedness pursuant to
Section 4.03(a) after giving pro forma effect to such Restricted Payment,
(C) such purchase or redemption is not made, directly or indirectly, from
the proceeds of (or made in anticipation of) any Issuance of Indebtedness
by the Company or any Subsidiary of the Company and (D) such purchase or
redemption will be included in the calculation of the amount of Restricted
Payments;
(6) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 4.04(a); provided, however, that at the time of payment of
-------- -------
such dividend, no other Default shall have occurred and be continuing (or
would result therefrom); provided further, however, that such dividend
---------------- -------
shall be included in the calculation of the amount of Restricted Payments;
or
(7) the repurchase of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees,
former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of
such common stock; provided, however, that the aggregate amount of such
-------- -------
repurchases shall not exceed the sum of (i) $5,000,000 and (ii) the
aggregate amount of cash received by the Company after the Issue Date from
the sale of such shares to, or the exercise of options to
<PAGE>
44
purchase such shares by, employees or directors of the Company or any of
its Subsidiaries; provided further, however, that such repurchases shall be
---------------- -------
included in the calculation of the amount of Restricted Payments.
SECTION 4.05. Limitation on Restrictions on Distributions from
------------------------------------------------
Restricted Subsidiaries. The Company shall not, and shall not permit any
- ------------------------
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or consensual restriction on the ability of
any Restricted Subsidiary to (i) pay dividends or make any other distributions
on its Capital Stock to the Company or a Restricted Subsidiary or pay any
Indebtedness owed to the Company, (ii) make any loans or advances to the Company
or (iii) transfer any of its property or assets to the Company, except:
(1) any encumbrance or restriction pursuant to an agreement in effect
at or entered into on the Issue Date;
(2) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by such Restricted Subsidiary which was entered into on or prior to the
date on which such Restricted Subsidiary was acquired by the Company (other
than as consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of related
transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company) and out standing on
such date;
(3) any encumbrance or restriction pursuant to an agreement effecting
a Refinancing of Indebtedness Incurred pursuant to an agreement referred to
in clause (1) or (2) of this Section 4.05 or this clause (3) or contained
in any amendment to an agreement referred to in clause (1) or (2) of this
Section 4.05 or this clause (3) or contained in any amendment to an
agreement referred to in clause (1) or (2) of this Section 4.05 or this
clause (3); provided, however, that the encumbrances and restrictions with
-------- -------
respect to such Restricted Subsidiary contained in any such refinancing
agreement or amendment are no more restrictive in any material respect than
the encumbrances and restrictions with respect to such Restricted
Subsidiary contained in such agreements;
(4) any such encumbrance or restriction consisting
<PAGE>
45
of customary nonassignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the lease
or the property leased thereunder;
(5) in the case of clause (iii) of this Section 4.05, restrictions
contained in security agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such restrictions restrict the transfer
of the property subject to such security agreements or mortgages;
(6) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
(7) any encumbrance or restriction with respect to any Receivables
Subsidiary pursuant to an agreement related to Indebtedness of the
Receivables Subsidiary which is permitted under Section 4.03 or pursuant to
any agreement relating to a Financing Disposition to or by the Receivables
Subsidiary.
SECTION 4.06. Limitation on Sales of Assets and Subsidiary Stock.
--------------------------------------------------
(a) The Company shall not, and shall not permit any Restricted Subsidiary to
consummate any Asset Disposition unless (i) the Company or such Restricted
Subsidiary receives consideration at the time of such Asset Disposition at least
equal to the fair market value (including as to the value of all noncash
consideration), as determined in good faith by the Board of Directors, of the
shares and assets subject to such Asset Disposition, and (ii) at least 75% (or
100% in the case of lease payments) of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or cash
equivalents. In the event and to the extent that the aggregate Net Available
Cash received by the Company or any Restricted Subsidiary from one or more Asset
Disposition occurring on or after the Issue Date exceeds $10,000,000, then the
Company or such Restricted Subsidiary shall (A) within 360 days after the
receipt of such Net Available Cash and to the extent the Company or such
Restricted Subsidiary elects (or is required by the terms of any Senior
Indebtedness) to (1) apply an amount equal to such excess Net Available Cash to
prepay, repay or purchase Senior Indebtedness of the Company or such Restricted
Subsidiary, in each case owing to a Person other than the Company or any
Affiliate of the Company, or (2) invest (or enter into a
<PAGE>
46
binding commitment to invest, provided that such commitment shall be subject
--------
only to customary conditions (other than financing) and such investment shall be
consummated within 360 days after the end of such 360-day period) an equal
amount, or the amount not so applied pursuant to clause (1), in Additional
Assets (including by means of an Investment in Additional Assets by a Restricted
Subsidiary with Net Available Cash received by the Company or another Restricted
Subsidiary) and (B) apply such excess Net Available Cash (to the extent not
applied pursuant to clause (A)), to make an Offer (as defined below) to purchase
Securities pursuant to and subject to the conditions of Section 4.06(b);
provided, however, that in connection with any prepayment, repayment or purchase
- -------- -------
of Senior Indebtedness pursuant to clause (A) above, the Company or such
Restricted Subsidiary shall retire such Senior Indebtedness and shall cause the
related loan commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased; provided further, however,
---------------- -------
that the Company or such Restricted Subsidiary shall not be required to
permanently reduce the related loan commitment in the case of any such
prepayment, repayment or purchase with Net Available Cash from any Asset
Disposition of Non-Core Assets, so long as an amount equal to 100% of such Net
Available Cash is invested in Additional Assets within the period required
pursuant to clause (B) above. The amount of such excess Net Available Cash
required to be applied pursuant to clause (B) above and not theretofore so
applied shall constitute "Excess Proceeds". Pending application of Net Available
Cash pursuant to this covenant, such Net Available Cash shall be invested in
Temporary Cash Investments.
For the purposes of clause (ii) this Section 4.06(a), the following
are deemed to be cash: (x) the assumption of Indebtedness of the Company or any
Restricted Subsidiary (other than Indebtedness that by its terms is subordinated
to the Notes or the applicable Subsidiary Guaranty) and the release of the
Company and the Restricted Subsidiaries from all liability on such Indebtedness
in connection with such Asset Disposition and (y) securities received by the
Company or any Restricted Subsidiary from the transferee that are promptly
converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities pursuant to clause (B) of Section 4.06(a), the Company shall be
required to purchase an aggregate principal amount of Securities equal to the
Excess Proceeds (rounded down to the nearest multiple of $1,000) which have been
tendered by Holders pursuant to
<PAGE>
47
an offer, commenced within 30 days following the expiration of the applicable
period referred to clause (A) of Section 4.06(a) (or, if the Company so elects,
at any time within such period), by the Company for the Securities (the "Offer")
at a purchase price of 100% of their principal amount plus accrued and unpaid
interest, if any, to the date of purchase, subject to the right of Holders of
record on the relevant record date to receive interest due on the relevant
interest payment date that is on or prior to the date of repurchase, in
accordance with the procedures (including prorationing in the event of
oversubscription) set forth in Section 4.06(c). If the aggregate purchase price
of Securities tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of the Securities, such remaining Net Available Cash
may be used by the Company for any corporate purpose (to the extent not
otherwise prohibited by the Indenture). The Company shall not be required to
make an Offer for Securities pursuant to this Section if the Net Available Cash
available therefor (after application of the proceeds as provided in clause (A)
of Section 4.06(a)) is less than $10,000,000 (which lesser amount shall be
carried forward for purposes of determining whether an Offer is required with
respect to the Net Available Cash from any subsequent Asset Disposition).
(c) (1) Promptly, and in any event within 30 days after the Company
becomes obligated to make an Offer, the Company shall be obligated to deliver to
the Trustee and send, by first-class mail to each Holder, a written notice
stating that the Holder may elect to have his Securities purchased by the
Company either in whole or in part (subject to prorationing as hereinafter
described in the event the Offer is oversubscribed) in integral multiples of
$1,000 of principal amount, at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days after the
date of such notice (the "Purchase Date") and shall contain such information
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed decision (which at a minimum will
include (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q and any Current Report on Form
8-K of the Company filed subsequent to such Quarterly Report, other than Current
Reports describing Asset Dispositions otherwise described in the offering
materials, or corresponding successor reports, (ii) a description of material
developments in the Company's business subsequent to the date of the latest of
such reports and (iii) if material, appropriate pro forma financial information)
and all instructions and materials
<PAGE>
48
necessary to tender Securities pursuant to the Offer, together with the
information contained in clause (2)).
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) in Temporary Cash Investments, maturing on the last day prior to the
Purchase Date or on the Purchase Date if funds are immediately available by open
of business, an amount equal to the Offer Amount to be held for payment in
accordance with the provisions of this Section. Upon the expiration of the
period for which the Offer remains open (the "Offer Period"), the Company shall
deliver to the Trustee for cancellation the Securities or portions thereof which
have been properly tendered to and are to be accepted by the Company. The
Trustee shall, on the Purchase Date, mail or deliver payment to each tendering
Holder in the amount of the purchase price. In the event that the aggregate
purchase price of the Securities delivered by the Company to the Trustee is less
than the Offer Amount, the Trustee shall deliver the excess to the Company
immediately after the expiration of the Offer Period for application in
accordance with this Section.
(3) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security which was
delivered for purchase by the Holder and a statement that such Holder is
withdrawing his election to have such Security purchased. If at the expiration
of the Offer Period the aggregate principal amount of Securities surrendered by
Holders exceeds the Offer Amount, the Company shall select the Securities to be
purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Securities in denominations of $1,000,
or integral multiples thereof, shall be purchased). Holders whose Securities are
purchased only in part shall
<PAGE>
49
be issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered.
(4) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section 4.06. A Security
shall be deemed to have been accepted for purchase at the time the Trustee,
directly or through an agent, mails or delivers payment therefor to the
surrendering Holder.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations thereunder in connection with the repurchase of Securities
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with the provisions of this Section, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section by virtue thereof.
SECTION 4.07. Limitation on Affiliate Transactions. (a) The Company
------------------------------------
shall not, and shall not permit any Restricted Subsidiary to, enter into or
permit to exist any transaction (including the purchase, sale, lease or exchange
of any property, employee compensation arrangements or the rendering of any
service) with any Affiliate of the Company (an "Affiliate Transaction") unless
(i) the terms thereof are no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate, (ii) if such
Affiliate Transaction involves an amount in excess of $5,000,000, the terms
thereof (1) are set forth in writing, (2) comply with clause (i) and (3) have
been approved by a majority of disinterested members of the Board of Directors
and (iii) if such Affiliate Transaction involves an amount in excess of
$10,000,000, (A) the terms thereof comply with clause (ii) and (B) the Company
has received a written opinion from a nationally recognized investment banking
firm to the effect that the consideration to be paid or received in connection
with such Affiliate Transaction is fair, from a financial standpoint, to the
Company or such Restricted Subsidiary, as the case may be; provided, however,
-------- -------
that no such opinion shall be required with respect to any Financing
Disposition.
(b) The provisions of Section 4.07(a) shall not
<PAGE>
50
prohibit (i) any Restricted Payment permitted to be paid pursuant to Section
4.04, (ii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans in the ordinary course of
business and approved by the Board of Directors, (iii) the grant of stock
options or similar rights to employees and directors of the Company in the
ordinary course of business pursuant to plans approved by the Board of
Directors, (iv) loans or advances to employees in the ordinary course of
business of the Company or its Restricted Subsidiaries, (v) fees, compensation
or employee benefit arrangements paid to and indemnity provided for the benefit
of directors, officers or employees of the Company or any Subsidiary in the
ordinary course of business or (vi) any Affiliate Transaction between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries in the
ordinary course of business (so long as the other stockholders of any
participating Restricted Subsidiaries which are not Wholly Owned Subsidiaries
and are not themselves Affiliates of the Company).
SECTION 4.08. Limitation on the Sale or Issuance of Capital Stock of
------------------------------------------------------
Restricted Subsidiaries. The Company shall not (i) sell, pledge, hypothecate or
- -----------------------
otherwise dispose of any shares of Capital Stock of a Restricted Subsidiary
(other than pledges of Capital Stock securing Senior Indebtedness as in effect
on the Issue Date) or (ii) permit any Restricted Subsidiary, directly or
indirectly, to issue or sell or otherwise dispose of any shares of its Capital
Stock other than (A) to the Company or a Wholly Owned Subsidiary, (B) directors'
qualifying shares, (C) if, immediately after giving effect to such issuance,
sale or other disposition, such Restricted Subsidiary would no longer constitute
a Restricted Subsidiary or (D) with respect to the common stock of any
Restricted Subsidiary, in a Public Equity Offering as a result of or after which
a Public Market exists; provided, however, that, in the case of clauses (C) and
-------- -------
(D), such issuance, sale or disposition or Public Equity Offering complies with
Section 4.06. Upon any issuance or sale of Capital Stock pursuant to clause (C)
and delivery of a supplemental indenture in form satisfactory to the Trustee,
any such Restricted Subsidiary that is a Subsidiary Guarantor shall be released
from all its obligations under its Subsidiary Guaranty.
SECTION 4.09. Change of Control. (a) Upon the occurrence of a
-----------------
Change of Control, each Holder shall, unless the Company has elected to redeem
the Securities pursuant to the terms of the Securities, have the right to
require that the Company repurchase all or a portion of such Holder's
<PAGE>
51
Securities pursuant to the offer described below (the "Change of Control Offer")
at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase, subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
repurchase (the "Change of Control Payment").
(b) Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase (subject to
the right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date);
(2) that any Security (or portion thereof) accepted for payment (and
duly paid on the Change of Control Payment Date) pursuant to the Change of
Control Offer shall cease to accrue interest on the Change of Control
Payment Date;
(3) that any Securities (or portions thereof) not properly tendered
shall continue to accrue interest;
(4) the circumstances and relevant facts and financial information
regarding such Change of Control;
(5) the repurchase date, which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the "Change of
Control Payment Date"); and
(6) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Securities
purchased and that Holders of Securities must follow in order to withdraw
an election to tender Securities (or portions thereof) for payment.
(c) Holders electing to have a Security purchased will be required to
surrender the Security, with an appropriate form duly completed, to the Company
at the address specified in the notice at least three Business Days prior to the
Change of Control Payment Date. Holders will be
<PAGE>
52
entitled to withdraw their election if the Trustee or the Company receives not
later than one Business Day prior to the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security which was delivered for purchase by
the Holder and a statement that such Holder is withdrawing his election to have
such Security purchased. Holders whose Securities are purchased only in part
shall be issued new Securities equal in principal amount to the unpurchased
portion of the Securities surrendered.
(d) On the Change of Control Payment Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent (or, if the
Company or any of its Wholly Owned Subsidiaries is acting as the Paying Agent,
segregate and hold in trust) in cash an amount equal to the Change of Control
Payment payable to the Holders entitled thereto, to be held for payment in
accordance with the provisions of this Section.
(e) On the Change of Control Payment Date, the Company shall deliver
to the Trustee the Securities or portions thereof which have been properly
tendered to and are to be accepted by the Company for payment. The Trustee or
the Paying Agent shall, on the Change of Control Payment Date, mail or deliver
payment to each tendering Holder of the Change of Control Payment. In the event
that the aggregate Change of Control Payment is less than the amount delivered
by the Company to the Trustee or the Paying Agent, the Trustee or the Paying
Agent, as the case may be, shall deliver the excess to the Company immediately
after the Change of Control Payment Date.
(f) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations thereunder in connection with the repurchase of Securities
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
SECTION 4.10. Limitation on Liens. The Company shall not, and shall
-------------------
not permit any Restricted Subsidiary to, directly or indirectly, Incur or permit
to exist any Lien (other than Permitted Liens) of any nature whatsoever on any
property of the Company or any Restricted Subsidiary (including Capital Stock of
a Restricted Subsidiary),
<PAGE>
53
whether owned at the Issue Date or thereafter acquired, unless (i) if such Lien
secures Indebtedness that ranks pari passu with the Securities or the applicable
---- -----
Subsidiary Guaranty, as applicable, the Securities or such Subsidiary Guaranty
are secured on an equal and ratable basis with the obligations so secured or
(ii) if such Lien secures Indebtedness that is subordinated to the Securities or
such Subsidiary Guaranty, such Lien shall be subordinated to a Lien granted to
the Securityholders in the same collateral as that securing such Lien to the
same extent as such subordinated Indebtedness is subordinated to the Securities
or such Subsidiary Guaranty.
SECTION 4.11. Compliance Certificate. The Company shall deliver to
----------------------
the Trustee within 120 days after the end of each fiscal year of the Company a
certificate signed by two of the Company's officers, one of who must be the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company, stating that in the course of the performance
by the signers of their duties as officers of the Company such officers would
normally have knowledge of any Default and whether or not the signers know of
any Default that occurred during such period. If such signers do, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. For purposes of this Section
4.11, such compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 4.12. Further Instruments and Acts. Upon request of the
----------------------------
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.13. Future Guarantors. After the date of this Indenture,
-----------------
the Company shall cause each Domestic Restricted Subsidiary (other than each
such Subsidiary that is a party hereto) to execute and deliver to the Trustee a
supplemental indenture in the form of Exhibit B hereto pursuant to which such
Subsidiary shall Guarantee payment of the Securities as provided in Section
10.06; provided, however, that, with respect to Ballantrae Corporation and
-------- -------
Tractech Inc., the Company shall have until the earlier of (i) January 15, 1998,
and (ii) the date such entities Guarantee the Company's 10-5/8% Senior
Subordinated Notes Due 2006, to cause such entities (assuming that at such time
they are Restricted Subsidiaries) to execute and deliver such a supplemental
indenture; provided further, however, that the Company shall use its best
---------------- -------
efforts to cause such
<PAGE>
54
entities to execute such a supplemental indenture prior to the earlier of such
dates in accordance with applicable securities laws.
ARTICLE 5
Successor Company
-----------------
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
-----------------------------------------
shall not consolidate with or merge with or into, or convey, transfer or lease,
in one transaction or a series of transactions, all or substantially all its
assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a Person organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
the Successor Company (if not the Company) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all the obligations of the Company under
the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary of the Company as a result of such transaction as
having been Incurred by the Successor Company or such Subsidiary at the
time of such transaction), no Default shall have occurred and be
continuing;
(iii) except in the case of a merger the sole purpose of which is to
change the Company's jurisdiction of incorporation, immediately after
giving effect to such transaction, the Successor Company would be able to
Incur an additional $1.00 of Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which is
not less than the Consolidated Net Worth of the Company immediately prior
to such transaction;
(v) in the case of a conveyance, transfer or lease of all or
substantially all the assets of the Company, such assets shall have been
transferred as an entirety to one Person; and
<PAGE>
55
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
Notwithstanding the foregoing clauses (ii), (iii), (iv) and (v), any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company.
The Successor Company shall be the successor to the Company and shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture, but the predecessor Company in the case of a
conveyance, transfer or lease shall not be released from the obligation to pay
the principal of and interest on the Securities.
SECTION 5.02. When a Subsidiary Guarantor May Merge or Transfer
-------------------------------------------------
Assets. The Company shall not permit any Subsidiary Guarantor to consolidate
- ------
with or merge with or into, or convey, transfer or lease, in one transaction or
series of transactions, all or substantially all its assets to any Person,
unless:
(i) the resulting, surviving or transferee Person (if not such
Subsidiary) shall be a Person organized and existing under the laws of the
jurisdiction under which such Subsidiary was organized or under the laws of
the United States of America, or any State thereof or the District of
Columbia, and such Person (if not such Subsidiary) shall expressly assume,
by a supplemental indenture, in a form satisfactory to the Trustee, all the
obligations of such Subsidiary under its Subsidiary Guaranty, if any;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Company, any
Subsidiary of the Company or the Successor Company as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), no Default shall have occurred and be continuing;
(iii) in the case of a conveyance, transfer or lease of all or
substantially all the assets of such Subsidiary, such assets shall have
been transferred as an entirety to one Person; and
(iv) the Company delivers to the Trustee an
<PAGE>
56
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if any,
complies with this Indenture;
provided, however, that the foregoing clauses (i), (iii) and (iv) shall not
- -------- -------
apply to any transaction which constitutes an Asset Disposition if the Company
has complied with the applicable provisions of Section 4.06 with respect to such
Asset Disposition.
ARTICLE 6
Defaults and Remedies
---------------------
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
-----------------
(1) the Company defaults in any payment of interest on any Security
when the same becomes due and payable, and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise;
(3) the Company or any Subsidiary Guarantor fails to comply with
Section 5.01 or 5.02, respectively;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.09, 4.10 or 4.13 (other than a failure to purchase
Securities when required under Section 4.06 or 4.09) and such failure
continues for 30 days after the notice specified below;
(5) the Company or any Subsidiary Guarantor fails to comply with any
of its agreements in the Securities or this Indenture (other than those
referred to in clause (1), (2), (3) or (4) above) and such failure
continues for 30 days after the notice specified below;
(6) Indebtedness of the Company or any Significant Subsidiary is not
paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default and the total
amount of such Indebtedness unpaid or accelerated exceeds $10,000,000 or
its foreign currency equivalent
<PAGE>
57
at the time and such non-payment or acceleration continues for 10 days
after the notice specified below;
(7) the Company or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in
an involuntary case;
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property; or
(D) makes a general assignment for the benefit of its creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary;
or any similar relief is granted under any foreign laws; and in the case of
clause (A), (B) or (C) or any similar relief under foreign laws, the order
or decree remains unstayed and in effect for 60 days;
(9) any judgment or decree for the payment of money in excess of
$10,000,000 (or its foreign currency equivalent at the time) is entered
against the Company or any Significant Subsidiary, remains outstanding for
a period of 60 days following the entry of such judgment or decree and is
not discharged, waived or the execution thereof stayed within 10 days after
the notice specified below; or
(10) a Subsidiary Guaranty ceases to be in full force and effect
(other than in accordance with the
<PAGE>
58
terms of such Subsidiary Guaranty) or a Subsidiary Guarantor denies or
disaffirms its obligations under its Subsidiary Guaranty and such Default
continues for a period of 10 days after the notice specified below.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, United States Code, or any
------------------
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
A Default under clause (4) or (5) is not an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the Securities
notify the Company of the Default and the Company does not cure such Default
within the time specified after receipt of such notice. Such notice must specify
the Default, demand that it be remedied and state that such notice is a "Notice
of Default" (and, if given by the Holders, a copy of such notice shall also be
given to the Trustee).
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (3), (7) or (10) and any event which with the
giving of notice or the lapse of time would become an Event of Default under
clause (4), (5), (6), (8) or (9), its status and what action the Company is
taking or proposes to take with respect thereto.
SECTION 6.02. Acceleration. If an Event of Default (other than an
------------
Event of Default specified in Section 6.01(7) or (8) with respect to the
Company) occurs and is continuing, the Trustee, by notice to the Company, or the
Holders of at least 25% in principal amount of the Securities, by notice to the
Company and the Trustee, may declare the principal of and accrued interest on
all the Securities to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an Event of
Default specified in Section 6.01(7) or (8) with respect to the Company occurs,
the principal of and interest on all the Securities shall ipso facto become and
---- -----
be immediately due and payable without any declaration or other act on the part
of the Trustee or
<PAGE>
59
any Securityholders. The Holders of a majority in principal amount of the
Securities by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
--------------
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
------------------------
principal amount of the Securities by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default in the payment of the
principal of or interest on a Security or (ii) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority in
-------------------
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
-------- -------
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such
<PAGE>
60
action.
SECTION 6.06. Limitation on Suits. A Security holder may not pursue
-------------------
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
------------------------------------
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
--------------------------
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
--------------------------------
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
<PAGE>
61
allowed in any judicial proceedings relative to the Company, its creditors or
its property and, unless prohibited by law or applicable regulations, may vote
on behalf of the Holders in any election of a trustee in bankruptcy or other
Person performing similar functions, the Trustee shall be entitled and empowered
to collect, receive and distribute any money or other property payable or
deliverable on any such claims, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and its counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07, out of the estate in any such
proceeding shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Securityholders may be entitled
to receive in such proceeding, whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Securityholder or,
except as stated above, to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money or
----------
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Securities for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Company shall
<PAGE>
62
mail to each Securityholder and the Trustee a notice that states the record
date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
---------------------
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company (to the
--------------------------------
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 7
Trustee
-------
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
-----------------
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
<PAGE>
63
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording
<PAGE>
64
protection to the Trustee shall be subject to the provisions of this Section and
to the provisions of the TIA.
SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively
-----------------
rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers ' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
--------------------
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in this Indenture or in any document issued in connection with the
sale of the Securities or in the Securities other than the Trustee's certificate
of authentication.
SECTION 7.05. Notice of Defaults. If a Default
------------------
<PAGE>
65
occurs and is continuing and if it is known to a trust officer of the Trustee,
the Trustee shall mail to each Securityholder notice of the Default within 90
days after it occurs. Except in the case of a Default in payment of principal of
or interest on any Security (including payments pursuant to the mandatory
redemption provisions of such Security, if any), the Trustee may withhold the
notice if and so long as the Trustee in good faith determines that withholding
the notice is in the interests of Securityholders.
SECTION 7.06. Reports by Trustee to Holders. As promptly as
-----------------------------
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of such date that
complies with TIA (S) 313(a). The Trustee also shall comply with TIA (S) 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
--------------------------
the Trustee promptly upon request from time to time reasonable compensation for
its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Company
shall indemnify the Trustee against any and all loss, liability or expense
(including attorneys' fees) incurred by it in connection with the acceptance and
administration of this trust and the performance of its duties hereunder
including the costs and expenses of enforcing this Indenture (including this
Section 7.07) against the Company and defending itself against any claim
(whether asserted by any Securityholder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that any such loss, liability or expense is
attributable to its negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for
<PAGE>
66
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations with respect to any such claims
except to the extent such failure materially prejudices the Company. The Company
shall defend the claim and the Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own wilful misconduct, negligence
or bad faith. The Company need not pay for any settlement made by the Trustee
without the Company's consent, such consent not to be unreasonably withheld.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities.
The Company's payment obligations and other liens granted to the
Trustee pursuant to this Section shall survive the discharge of this Indenture.
When the Trustee incurs expenses or renders services after the occurrence of a
Default specified in Section 6.01(7) or (8) with respect to the Company, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
----------------------
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event
<PAGE>
67
being referred to herein as the retiring Trustee), the Company shall promptly
appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07 and provided that all monies owing to the Trustee
hereunder have been paid.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
---------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee, provided that such successor shall
be eligible and qualified under Section 7.10.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication of
any predecessor trustee, and deliver such Securities so authenticated; and in
case at that time any of the Securities shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor to the Trustee; and in
all such cases
<PAGE>
68
such certificates shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
-----------------------------
all times satisfy the requirements of TIA (S) 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b); provided, however, that there shall be excluded from the operation
-------- -------
of TIA (S) 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA (S)
310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
-------------------------------------------------
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated therein.
ARTICLE 8
Discharge of Indenture; Defeasance
----------------------------------
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
------------------------------------------------
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the mailing of a notice of redemption pursuant to Article 3 hereof and
the Company irrevocably deposits with the Trustee funds sufficient to pay at
maturity or upon redemption all outstanding Securities, including interest
thereon to maturity or such redemption date (other than Securities replaced
pursuant to Section 2.07), and if in either case the Company pays all other sums
payable hereunder by the Company, then this Indenture shall, subject to Section
8.01(c), cease to be of further effect. The Trustee shall acknowledge
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time may
terminate (i) all its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02
<PAGE>
69
(subject to any requirement of the TIA), 4.03, 4.04, 4.05, 4.06, 4.07, 4.08,
4.09, 4.10 and 4.13 and the operation of Sections 6.01(4), 6.01(6), 6.01(7),
6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and (8), with respect
only to Significant Subsidiaries) or contained in Sections 5.01(iii) and (iv)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 6.01(4),
6.01(6), 6.01(7), 6.01(8) and 6.01(9) (but, in the case of Sections 6.01(7) and
(8), with respect only to Significant Subsidiaries) or because of the failure of
the Company to comply with Section 5.01(iii) or (iv). If the Company exercises
its legal defeasance option or its covenant defeasance option, each Subsidiary
Guarantor, if any, shall be released from all its obligations under its
Subsidiary Guaranty.
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.07, 7.07, 7.08, 8.05 and 8.06 shall
survive until the Securities have been paid in full. Thereafter, the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
------------------------
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of and interest
on the Securities to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will
<PAGE>
70
provide cash at such times and in such amounts as will be sufficient to pay
principal and interest when due on all the Securities to maturity or
redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(7) or (8) with respect to the
Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Securityholders will not recognize income, gain or loss for Federal income
tax purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(8) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
8 have been complied with.
Before or after a deposit, the Company may make
<PAGE>
71
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
--------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
--------------------
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years, and,
thereafter, Securityholders entitled to the money must look to the Company for
payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company
------------------------------------
shall pay and shall indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or the
principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
-------- -------
Company has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
<PAGE>
72
Amendments
----------
SECTION 9.01. Without Consent of Holders. The Company, the
--------------------------
Subsidiary Guarantors and the Trustee may amend this Indenture or the Securities
without notice to or consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the
-------- -------
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to add further Guarantees with respect to the Securities or to
release Subsidiary Guarantors when permitted by the terms hereof, or to
secure the Securities;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(6) to comply with any requirements of the SEC in connection with
qualifying, or maintaining the qualification of, this Indenture under the
TIA; or
(7) to make any change that does not adversely affect the rights of
any Securityholder.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company and the Trustee
-----------------------
may amend this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of at least a majority in principal
amount of the Securities. However, without the consent of each Securityholder
affected thereby, an amendment may not:
<PAGE>
73
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the amount payable upon the redemption or repurchase of
any Security, or change the time at which any Security may be redeemed in
accordance with Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) at any time after a Change of Control or Asset Disposition has
occurred, change the time at which the related offer to purchase the
Securities must be made or at which the Securities must be repurchased
pursuant to such offer;
(7) impair the right of any Holder to institute suit for enforcement
of any payment on or with respect to such Holder's Securities or any
Subsidiary Guaranty; or
(8) make any change in Section 6.04 or 6.07 or the second sentence of
this Section;
(9) subordinate the Securities to any other obligation of the
Company; or
(10) make any change in any Subsidiary Guaranty that would adversely
affect the Holders.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
-----------------------------------
to this Indenture or the Securities
<PAGE>
74
shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
---------------------------------------------
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Securityholder. An
amendment or waiver becomes effective upon the execution of such amendment or
waiver by the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an amendment
--------------------------------------
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee To Sign Amendments. The Trustee shall sign any
--------------------------
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing any amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in
<PAGE>
75
relying upon, an Officers' Certificate and an Opinion of Counsel stating that
such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Payment for Consent. Neither the Company nor any
-------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
Subsidiary Guaranties
---------------------
SECTION 10.01. Guaranties. Each Subsidiary Guarantor hereby
----------
unconditionally guarantees, jointly and severally, to each Holder and to the
Trustee and its successors and assigns (a) the full and punctual payment of
principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the Securities and (b) the full and
punctual performance within applicable grace periods of all other obligations of
the Company under this Indenture and the Securities (all the foregoing being
hereinafter collectively called the "Obligations"). Each Subsidiary Guarantor
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice or further assent from such Subsidiary Guarantor and that
such Subsidiary Guarantor will remain bound under this Article 10
notwithstanding any extension or renewal of any Obligation.
Each Subsidiary Guarantor waives presentation to, demand of, payment
from and protest to the Company of any of the Obligations and also waives notice
of protest for nonpayment. Each Subsidiary Guarantor waives notice of any
default under the Securities or the Obligations. The obligations of each
Subsidiary Guarantor hereunder shall not be affected by (a) the failure of any
Holder or the Trustee to assert any claim or demand or to enforce any right or
remedy against the Company or any other Person under this Indenture, the
Securities or any other agreement or otherwise; (b) any extension or renewal of
any thereof; (c) any rescission, waiver, amendment or modification of any of the
terms or provisions of this Indenture, the Securities
<PAGE>
76
or any other agreement; (d) the release of any security held by any Holder or
the Trustee for the Obligations or any of them; (e) the failure of any Holder or
the Trustee to exercise any right or remedy against any other guarantor of the
Obligations; or (f) any change in the ownership of such Subsidiary Guarantor.
Each Subsidiary Guarantor further agrees that its Subsidiary Guaranty
herein constitutes a guarantee of payment, performance and compliance when due
(and not a guarantee of collection) and waives any right to require that any
resort be had by any Holder or the Trustee to any security held for payment of
the Obligations.
Except as expressly set forth in Sections 4.08 and 8.01 and in the
definition of "Unrestricted Subsidiary", the obligations of each Subsidiary
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to any
defense of setoff, counterclaim, recoupment or termination whatsoever or by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the Obligations of
each Subsidiary Guarantor herein shall not be discharged or impaired or
otherwise affected by the failure of any Holder or the Trustee to assert any
claim or demand or to enforce any remedy under this Indenture, the Securities or
any other agreement, by any waiver or modification of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or thing or omission or delay to do any other
act or thing which may or might in any manner or to any extent vary the risk of
such Subsidiary Guarantor or would otherwise operate as a discharge of such
Subsidiary Guarantor as a matter of law or equity.
Each Subsidiary Guarantor further agrees that its Guarantee herein
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of principal of or interest on any Obligation
is rescinded or must otherwise be restored by any Holder or the Trustee upon the
bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which any Holder or the Trustee has at law or in equity against any
Subsidiary Guarantor by virtue hereof, upon the failure of the Company to pay
the principal of or interest on any Obligation when
<PAGE>
77
and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Obligation, each
Subsidiary Guarantor hereby promises to and will, upon receipt of written demand
by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders or
the Trustee an amount equal to the sum of (i) the unpaid amount of such
Obligations, (ii) accrued and unpaid interest on such Obligations (but only to
the extent not prohibited by law) and (iii) all other monetary Obligations of
the Company to the Holders and the Trustee.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in respect of any Obligations guaranteed hereby until
payment in full of all Obligations. Each Subsidiary Guarantor further agrees
that, as between it, on the one hand, and the Holders and the Trustee, on the
other hand, (x) the maturity of the Obligations Guaranteed hereby may be
accelerated as provided in Article 6 for the purposes of such Subsidiary
Guarantor's Subsidiary Guaranty herein, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6, such Obligations (whether or not due
and payable) shall forthwith become due and payable by such Subsidiary Guarantor
for the purposes of this Section.
Each Subsidiary Guarantor also agrees to pay any and all costs and
expenses (including reasonable attorneys' fees) incurred by the Trustee or any
Holder in enforcing any rights under this Section.
SECTION 10.02. Contribution. Each of the Company and any Subsidiary
------------
Guarantor (a "Contributing Party") agrees that, in the event a payment shall be
made by any other Subsidiary Guarantor under any Subsidiary Guaranty (the
"Claiming Guarantor"), the Contributing Party shall indemnify the Claiming
Guarantor in an amount equal to the amount of such payment multiplied by a
fraction, the numerator of which shall be the net worth of the Contributing
Party on the date hereof and the denominator of which shall be the aggregate net
worth of the Company and all the Subsidiary Guarantors on the date hereof (or,
in the case of any Subsidiary Guarantor becoming a party hereto pursuant to
Section 10.07, the date of the supplemental indenture hereto executed and
delivered by such Subsidiary Guarantor).
SECTION 10.03. Successors and Assigns. This Article 10 shall be
----------------------
binding upon each Subsidiary Guarantor
<PAGE>
78
and its successors and assigns and shall inure to the benefit of the successors
and assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
SECTION 10.04. No Waiver. Neither a failure nor a delay on the part
---------
of either the Trustee or the Holders in exercising any right, power or privilege
under this Article 10 shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise of any right,
power or privilege. The rights, remedies and benefits of the Trustee and the
Holders herein expressly specified are cumulative and not exclusive of any other
rights, remedies or benefits which either may have under this Article 10 at law,
in equity, by statute or otherwise.
SECTION 10.05. Modification. No modification, amendment or waiver of
------------
any provision of this Article 10, nor the consent to any departure by any
Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Trustee, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on any Subsidiary Guarantor in any case shall
entitle such Subsidiary Guarantor to any other or further notice or demand in
the same, similar or other circumstances.
SECTION 10.06. Execution of Supplemental Indenture for Future
----------------------------------------------
Subsidiary Guarantors. Each Subsidiary which is required to become a Subsidiary
- ---------------------
Guarantor pursuant to Section 4.13 shall promptly execute and deliver to the
Trustee a supplemental indenture in the form of Exhibit B hereto pursuant to
which such Subsidiary shall become a Subsidiary Guarantor under this Article 10
and shall guarantee the Obligations. Concurrently with the execution and
delivery of such supplemental indenture, the Company shall deliver to the
Trustee an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized, executed and delivered by such Subsidiary and that,
subject to the application of bankruptcy, insolvency, moratorium, fraudulent
conveyance or transfer and other similar laws relating to creditors' rights
generally and to the principles of equity, whether considered in a proceeding at
law or in equity, the Subsidiary Guaranty of such Subsidiary Guarantor is a
legal, valid and binding
<PAGE>
79
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary
Guarantor in accordance with its terms.
ARTICLE 11
Miscellaneous
-------------
SECTION 11.01. Trust Indenture Act Controls. If any provision of
----------------------------
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. Notices. Any notice or communication shall be in
-------
writing and delivered in person, or sent by registered or certified mail, by any
air courier guaranteeing overnight delivery or by fax (promptly confirmed by
telephone) and addressed as follows:
If to the Company or any Subsidiary Guarantor:
Delco Remy International, Inc.
2902 Enterprise Drive
Anderson, IN 46013
Attention: Chief Financial Officer
Phone: (317) 778-6499
Fax: (317) 778-6424
If to the Trustee:
United States Trust Company of New York
114 W. 47 Street
New York, NY 10036
Attention: Corporate Trust Department
Phone: (212) 852-1613
Fax: (212) 852-1620
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its
<PAGE>
80
sufficiency with respect to other Securityholders. If a notice or communication
is given in the manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 11.03. Communication by Holders with Other Holders.
-------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion. Each
---------------------------------------------
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opin-
<PAGE>
81
ion of such individual, such covenant or condition has been complied with.
SECTION 11.06. When Securities Disregarded. In determining whether
---------------------------
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the fore going, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 11.07. Rules by Trustee, Paying Agent and Registrar. The
--------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 11.08. Legal Holidays. A "Legal Holiday" is a Saturday, a
--------------
Sunday or a day on which banking institutions are not required to be open in the
State of New York. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 11.09. Governing Law. This Indenture and the Securities
-------------
shall be governed by, and construed in accordance with, the laws of the State of
New York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would be
required thereby.
SECTION 11.10. No Recourse Against Others. A director, officer,
--------------------------
employee or stockholder, as such, of the Company or any Subsidiary Guarantor
shall not have any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Securityholder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 11.11. Successors. All agreements of the Company or any
----------
Subsidiary Guarantor in this Indenture and
<PAGE>
82
the Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.12. Multiple Originals. The parties may sign any number
------------------
of copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
SECTION 11.13. Table of Contents; Headings. The table of contents,
---------------------------
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
DELCO REMY INTERNATIONAL, INC.,
by
_____________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
DELCO REMY AMERICA, INC.,
by
_____________________________
Name:
Title:
REMY INTERNATIONAL, INC.,
by
_____________________________
Name:
Title:
REMAN HOLDINGS, INC.,
by
_____________________________
Name:
Title:
NABCO, INC.,
by
_____________________________
Name:
Title:
THE A&B GROUP, INC.,
by
<PAGE>
_____________________________
Name:
Title:
A&B ENTERPRISES, INC.,
by
_____________________________
Name:
Title:
DALEX, INC.,
by
_____________________________
Name:
Title:
A&B CORES, INC.,
by
_____________________________
Name:
Title:
R&L TOOL COMPANY, INC.,
by
_____________________________
Name:
Title:
MCA, INC. OF MISSISSIPPI,
by
_____________________________
Name:
Title:
POWER INVESTMENTS, INC.,
by
_____________________________
Name:
<PAGE>
Title:
FRANKLIN POWER PRODUCTS, INC.,
by
_____________________________
Name:
Title:
INTERNATIONAL FUEL SYSTEMS,
INC.,
by
_____________________________
Name:
Title:
MARINE DRIVE SYSTEMS, INC.,
by
_____________________________
Name:
Title:
MARINE CORPORATION OF AMERICA,
by
_____________________________
Name:
Title:
POWRBILT PRODUCTS, INC.,
by
_____________________________
Name:
Title:
WORLD WIDE AUTOMOTIVE, INC.,
by
_____________________________
Name:
Title:
<PAGE>
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee,
by
_____________________________
Name:
Title:
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
CUSIP No. 246626AC9 $145,000,000
No. A-1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
8-5/8% Senior Notes Due 2007
DELCO REMY INTERNATIONAL, INC., a Delaware corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of One Hundred
Forty-Five Million Dollars on December 15, 2007.
Interest Payment Dates: June 15 and December 15, commencing June 15,
1998.
Record Dates: June 1 and December 1.
<PAGE>
2
Additional provisions of this Security are set forth on the other side
of this Security.
DELCO REMY INTERNATIONAL,
INC.,
by
_____________________________
President
_____________________________
Secretary
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION Dated: December 22, 1997
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee,
certifies that this is
one of the Securities
referred to in the
Indenture.
by
_____________________________
Authorized Signatory
<PAGE>
3
[FORM OF REVERSE SIDE OF SECURITY]
8-5/8% Senior Note Due 2007
1. Interest
--------
Delco Remy International, Inc., a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semiannually on June 15 and December 15 of each year. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the Issue Date. Interest will
be computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities plus
1% per annum, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
2. Method of Payment
-----------------
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are registered holders of Securities at the close
of business on the June 1 and December 1 immediately preceding the interest
payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Securities
represented by a Global Security (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by the Depositary. The Company will make all payments in respect of a
certificated Security (including principal, premium and interest), by mailing a
check to the registered address of each Holder thereof; provided, however, that
-------- -------
payments on the Securities may also be made, in the case of a Holder of at
<PAGE>
4
least $1,000,000 aggregate principal amount of Securities, by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. Paying Agent and Registrar
--------------------------
Initially, United States Trust Company of New York, a New York banking
corporation ("Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its domestically incorporated Wholly Owned Subsidiaries
may act as Paying Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of
December 22, 1997 ("Indenture"), among the Company, certain of the Company's
subsidiaries signatory thereto (the "Subsidiary Guarantors") and the Trustee.
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C.
------
(S)(S) 77aaa-77bbbb) as in effect on the date of the Indenture (the "Act").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are unsecured senior obligations of the Company limited
to $145,000,000 aggregate principal amount at any one time outstanding (subject
to Section 2.07 of the Indenture). The Indenture imposes certain limitations on
the Incurrence of Indebtedness by the Company and its Restricted Subsidiaries;
the payment of dividends on, and redemption of, Capital Stock of the Company and
its Restricted Subsidiaries; the redemption of certain Subordinated Obligations
of the Company and its Restricted Subsidiaries; sales of assets and Restricted
Subsidiary
<PAGE>
5
Capital Stock; certain transactions with Affiliates of the Company; the sale or
issuance of Capital Stock of the Restricted Subsidiaries; the creation of Liens;
and consolidations, mergers and transfers of all or substantially all the
Company's or a Restricted Subsidiary's assets. In addition, the Indenture
prohibits certain restrictions on distributions and dividends from Restricted
Subsidiaries.
To guarantee the due and punctual payment of the principal and
interest, if any, on the Securities and all other amounts payable by the Company
under the Indenture and the Securities when and as the same shall be due and
payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors have
unconditionally guaranteed the Obligations on a senior basis pursuant to the
terms of the Indenture.
5. Optional Redemption
-------------------
Except as set forth in the next paragraph, the Securities may not be
redeemed prior to December 15, 2002. On and after that date, the Company may
redeem the Securities in whole at any time or in part from time to time at the
following redemption prices (expressed in percentages of principal amount), plus
accrued and unpaid interest, if any, to the redemption date (subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date that is on or prior to the date of
redemption), if redeemed during the 12-month period beginning on or after
December 15, of the years set forth below:
<TABLE>
Redemption
Period Price
- ------ ----------
<S> <C>
2002............................................ 104.313%
2003............................................ 102.875%
2004............................................ 101.438%
2005 and thereafter............................. 100.000%
</TABLE>
Notwithstanding the foregoing, at any time prior to December 15, 2000,
the Company may redeem in the aggregate up to 40% of the original aggregate
principal
<PAGE>
6
amount of Securities with the proceeds of one or more Public Equity Offerings,
at a redemption price (expressed as a percentage of principal amount thereof) of
108.625% plus accrued and unpaid interest, if any, to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of redemption); provided, however, that at least 50% of the original
-------- -------
aggregate principal amount of the Securities must remain outstanding after each
such redemption.
6. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued interest
on all Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions
--------------
Upon a Change of Control, unless the Company has elected to redeem the
Securities pursuant to paragraph 5, any Holder of Securities will have the
right, subject to certain conditions specified in the Indenture, to cause the
Company to repurchase all or any part of the Securities of such Holder at a
purchase price equal to 101.0% of the principal amount of the Securities to be
repurchased plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of purchase) as provided in, and subject to the terms of, the
Indenture.
8. Denominations; Transfer; Exchange
---------------------------------
<PAGE>
7
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any transfer or exchange, the
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to pay any taxes required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or to transfer or exchange any Securities for a period of 15 days prior to a
selection of Securities to be redeemed or 15 days before an interest payment
date.
9. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
10. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
11. Discharge and Defeasance
------------------------
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
12. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be
<PAGE>
8
amended with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (ii) any default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in principal amount outstanding of the Securities. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article V of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to add
further Guarantees with respect to the Securities or to release Subsidiary
Guarantees when permitted by the terms of the Indenture, or to secure the
Securities, or to add additional covenants or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection
with qualifying the Indenture under the Act, or to make any other change that
does not adversely affect the rights of any Securityholder.
13. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities at maturity, upon redemption pursuant to para graph 5 of the
Securities, upon acceleration or otherwise, or failure by the Company to redeem
or purchase the Securities when required; (iii) failure by the Company or any
Subsidiary Guarantor to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Indebtedness of the Company if the amount accelerated (or so
unpaid) exceeds $10,000,000 and such acceleration continues for 10 days after
notice; (v) certain events of bankruptcy, insolvency or reorganization with
respect to the Company and the Significant Subsidiaries; (vi) certain judgments
or decrees for the payment of money in excess of $10,000,000 or its foreign
currency equivalent against the Company or a Significant Subsidiary; and (vii) a
Subsidiary Guaranty ceasing to be in full force and effect (other than in
accordance with its terms) and such default continues for 10 days after notice.
If any of certain Events of Default
<PAGE>
9
enumerated in the Indenture occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the Securities may declare all the
Securities to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Securities being due
and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
with hold from Securityholders notice of any continuing Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.
14. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securi ties and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
15. No Recourse Against Others
--------------------------
A director, officer, employee or stockholder, as such, of the Company
or any Subsidiary Guarantor shall not have any liability for any obligations of
the Company or a Subsidiary Guarantor under the Securities or the Indenture or
for any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
16. Governing Law
-------------
<PAGE>
10
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
17. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS SECURITY IN LARGER TYPE.
<PAGE>
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
____________________________________________________________
Date: ________________ Your Signature: _____________________
____________________________________________________________
Sign exactly as your name appears on the other side of this
Security.
Signature Guarantee:
_____________________ __________________________
Signature must be guaranteed Signature
____________________________________________________________
<PAGE>
12
OPTION OF HOLDER TO ELECT PURCHASE
IF YOU WANT TO ELECT TO HAVE THIS SECURITY PURCHASED BY THE COMPANY
PURSUANT TO SECTION 4.06 OR 4.09 OF THE INDENTURE, CHECK THE BOX:
[_]
IF YOU WANT TO ELECT TO HAVE ONLY PART OF THIS SECURITY PURCHASED BY
THE COMPANY PURSUANT TO SECTION 4.06 OR 4.09 OF THE INDENTURE, STATE THE AMOUNT
IN PRINCIPAL AMOUNT: $
DATE: _______________ YOUR SIGNATURE:
______________________
(SIGN EXACTLY AS YOUR
NAME APPEARS ON THE
OTHER SIDE OF THIS
SECURITY.)
SIGNATURE GUARANTEE: __________________________________________________________
(SIGNATURE MUST BE GUARANTEED)
<PAGE>
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of , among [SUBSIDIARY GUARANTOR] (the
"Subsidiary Guarantor"), a subsidiary of Delco Remy International
Inc. (or its successor), a Delaware corporation (the "Company"),
DELCO REMY INTERNATIONAL, INC., on behalf of itself and the
Subsidiary Guarantors (the "Existing Subsidiary Guarantors")
under the Indenture referred to below, and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York banking corporation, as trustee
under the indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Company has heretofore executed and delivered to the
Trustee an Indenture (the "Indenture"), dated as of December 22, 1997, providing
for the issuance of an aggregate principal amount of $145,000,000 of 8-5/8%
Senior Notes due 2007 (the "Securities");
WHEREAS Section 4.13 of the Indenture provides that under certain
circumstances the Company is required to cause the New Subsidiary Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the New Subsidiary Guarantor shall unconditionally guarantee all of the
Company's obligations under the Securities pursuant to a Subsidiary Guaranty on
the terms and conditions set forth herein; and
WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee and the
Company are authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the New
Subsidiary Guarantor, the Company and the Trustee mutually covenant and agree
for the equal and ratable benefit of the holders of the Securities as follows:
<PAGE>
2
1. Definitions. (a) Capitalized terms used herein without
------------
definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplement, except as otherwise herein
expressly provided or unless the context otherwise requires: (i) the terms and
expressions used herein shall have the same meanings as corresponding terms and
expressions used in the Indenture; and (ii) the words "herein," "hereof" and
"hereby" and other words of similar import used in this Supplement refer to this
Supplement as a whole and not to any particular section hereof.
2. Agreement to Guarantee. The New Subsidiary Guarantor hereby
-----------------------
agrees, jointly and severally with all other Subsidiary Guarantors, to guarantee
the Company's obligations under the Securities on the term and subject to the
conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Indenture.
3. Ratification of Indenture; Supplemental Indentures Part of
----------------------------------------------------------
Indenture. Except as expressly amended hereby, the Indenture is in all respects
- ----------
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY,
--------------
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
--------------------------------
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this
-------------
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
<PAGE>
3
7. Effect of Headings. The Section headings herein are for
-------------------
convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
[NEW SUBSIDIARY GUARANTOR],
by
________________________________
Name:
Title:
DELCO REMY INTERNATIONAL, INC., on
behalf of itself and the Existing
Subsidiary Guarantors,
by
________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee,
by
________________________________
Name:
Title:
<PAGE>
EXHIBIT 10.1
DELCO REMY INTERNATIONAL, INC.
$145,000,000
8-5/8% Senior Notes Due 2007
Underwriting Agreement
New York, New York
December 17, 1997
Salomon Brothers Inc
Credit Suisse First Boston Corporation
Morgan Stanley & Co. Incorporated
In care of Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
Delco Remy International, Inc., a Delaware corporation (the
"Company"), proposes to sell to you (the "Underwriters") $145,000,000 principal
amount of its 8-5/8% Senior Notes Due 2007 (the "Notes") to be unconditionally
guaranteed on a senior basis (the "Guarantees" and, together with the Notes, the
"Securities") by each of the Company's subsidiaries that are signatories hereto,
together with Ballantrae Corporation ("Ballantrae") and Tractech Inc.
("Tractech") following the Company's acquisition of Ballantrae (each
individually a "Guarantor", and collectively the "Guarantors"). The Securities
are to be issued under an indenture to be dated as of December 22, 1997 (the
"Indenture"), among the Company, the Guarantors and United States Trust Company
of New York, as trustee (the "Trustee").
1. Representations and Warranties. The Company and the Guarantors
-------------------------------
jointly and severally represent and warrant to, and agree with, each Underwriter
as set forth below in this Section 1. Certain terms used in this Section 1 are
defined in Section 17 hereof.
(a) The Company and the Guarantors have filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file
number
<PAGE>
2
333-37703) on Form S-1, including a related preliminary prospectus, for the
registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to you.
The Company and the Guarantors will next file with the Commission either
(i) prior to the effectiveness of such registration statement, a further
amendment to such registration statement (including the form of final
prospectus) or (ii) after the effectiveness of such registration statement,
a final prospectus in accordance with Rules 430A and 424(b)(1) or (4). In
the case of clause (ii), the Company and the Guarantors have included in
such registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and the
rules thereunder to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information, together with
all other such required information, and, except to the extent the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to them prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has advised
the Underwriters, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined in Section 3), the
Prospectus (and any supplements thereto) will, comply in all material
respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective rules thereunder; on the Effective Date,
the Registration Statement did not or will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; on the Effective Date and on the Closing Date, the Indenture
did or will comply in all material
<PAGE>
3
respects with the applicable requirements of the Trust Indenture Act and
the rules thereunder; and, on the Effective Date, the Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company and the
-------- -------
Guarantors make no representations or warranties as to (i) that part of the
Registration Statement which shall constitute the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Registration
Statement or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto), it
being understood that the only such information is that described in
Section 8(b).
(c) Neither the Company nor any Guarantor has taken, nor will it
take, directly or indirectly, any action prohibited by Regulation M under
the Exchange Act in connection with any offering of the Securities.
(d) Each of the Company and the Guarantors has full corporate power
and authority to enter into and deliver this Agreement, the Indenture, the
Securities and the fourth amended and restated financing agreement
(together with all other documents and agreements entered into in
connection therewith, the "Credit Agreement") relating to the Senior Credit
Facility (as defined in the Prospectus) and to perform the actions
contemplated hereby and thereby and to perform the other Transactions (as
defined in the Prospectus). This Agreement has been duly authorized,
executed and delivered by the Company and each Guarantor and constitutes a
valid and binding obligation of the Company and each Guarantor. The
execution and delivery of the Indenture, the Securities and the Credit
Agreement have been duly authorized by the
<PAGE>
4
Company and each Guarantor party thereto and, when duly executed and
delivered by the parties thereto, will constitute valid and binding
obligations of the Company and each such Guarantor, enforceable against the
Company and each such Guarantor in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights and remedies generally and to
general principles of equity (regardless of whether enforcement is sought
in a proceeding at law or in equity).
(e) Upon execution and delivery of the Indenture, and when the Notes
are issued, authenticated and delivered in accordance with the Indenture
and paid for in accordance with the terms of this Agreement, (i) the Notes
will constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Indenture and (ii) the Guarantees will constitute valid and
binding obligations of the Guarantors enforceable against the Guarantors in
accordance with their terms, in each case subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity).
(f) The execution, delivery and performance of this Agreement, the
Indenture and the Credit Agreement by the Company and each Guarantor party
thereto and the consummation of the actions contemplated hereby and thereby
and of the other Transactions will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, (i) the
articles of incorporation, by-laws or other organizational documents of the
Company or any of its subsidiaries, (ii) any material statute, rule or
regulation applicable to the Company or any of its subsidiaries or any
order of any court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties, (iii) any agreement or
instrument relating to borrowed money to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of their respective properties is subject or (iv)
any other material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
<PAGE>
5
subsidiaries is bound or to which any of their respective properties is
subject. No consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body that has
not already been obtained is required for the execution and delivery of
this Agreement, the Indenture, the Securities, the Credit Agreement or the
consummation of the actions contemplated hereby or thereby or of the other
Transactions, except for compliance with the Act and state securities or
blue sky laws. References in this Agreement to "subsidiaries" of the
Company shall mean each person of which a majority of the voting equity
securities or other interests is owned, directly or indirectly, by the
Company, and as of the Closing Date, shall be deemed to include Ballantrae,
Tractech and Kraftube, Inc., notwithstanding the fact that the Company may
not have consummated its acquisition of Ballantrae prior to the Closing
Date.
(g) Except as disclosed in the Prospectus, (i) there are no legal or
governmental actions, suits or proceedings pending or, to the best of the
Company's and the Guarantors' knowledge, threatened to which the Company or
any of its subsidiaries is or is threatened to be made a party or of which
property owned or leased by the Company or any of its subsidiaries is or is
threatened to be made the subject, which actions, suits or proceedings
could, individually or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), properties, business, results of
operations or prospects of the Company and its subsidiaries, taken as a
whole, or materially and adversely affect the ability of the Company or any
of its subsidiaries to perform its obligations under this Agreement, the
Indenture, the Securities or the Credit Agreement or to consummate the
actions contemplated hereby or thereby or the other Transactions (in either
case a "Material Adverse Effect"), and (ii) no labor disturbance by the
employees of the Company or any of its subsidiaries exists or, to the best
of the Company's and the Guarantors' knowledge, is imminent or
<PAGE>
6
threatened, in either case which could have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries is a party or subject to
the provisions of any material injunction, judgment, decree or order of any
court, regulatory body, administrative agency or other governmental body.
(h) Except as disclosed in or specifically contemplated by the
Prospectus, the Company and its subsidiaries have sufficient trademarks,
trade names, patent rights, copyrights, licenses, approvals and
governmental authorizations to conduct their businesses as now conducted;
the Company's and its subsidiaries' controlling persons, key employees and
stockholders have all necessary permits, licenses and other authorizations
required by applicable law for the Company and its subsidiaries to conduct
their businesses as now conducted; and the expiration of any trademarks,
trade names, patent rights, copyrights, licenses, approvals or governmental
authorizations would not have a Material Adverse Effect.
(i) Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting business in compliance with all applicable
laws, rules and regulations of the jurisdictions in which they are
conducting business, including, without limitation, all applicable local,
state and federal environmental laws and regulations, except where the
failure to be so in compliance would not have a Material Adverse Effect.
(j) Neither the Company nor any Guarantor is an "investment company"
within the meaning of the Investment Company Act of 1940 (the "Investment
Company Act"), without taking account of any exemption arising out of the
number of holders of the Company's or such Guarantor's securities.
(k) Neither the Company nor any Guarantor has paid or agreed to pay
to any person any compensation for soliciting another to purchase any
securities of the Company or such Guarantor (except as contemplated by this
Agreement).
(l) The Credit Agreement has been executed and delivered by the
parties thereto and is in full force
<PAGE>
7
and effect, and the Underwriters have received conformed counterparts of
the Credit Agreement. There exists, and at and as of the Closing Date
(after giving effect to the actions contemplated hereby and to the other
Transactions) shall exist, no condition that would constitute a default (or
an event that with notice or lapse of time, or both, would constitute a
default) under the Senior Credit Facility.
(m) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries and any person granting such person the
right to require the Company or any of its subsidiaries to file a
registration statement under the Act with respect to any securities of the
Company or any such subsidiary (except as described in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement)) or to require the Company or any of its subsidiaries to
include such securities with the Securities registered pursuant to the
Registration Statement.
(n) The Securities have been approved for listing on the New York
Stock Exchange, subject to official notice of issuance.
Any certificate signed by any officer of the Company or a Guarantor and
delivered to the Underwriters or counsel for the Underwriters in connection with
the offering of the Securities shall be deemed a representation and warranty by
the Company and the Guarantors to each Underwriter as to the matters covered
thereby.
2. Purchase and Sale. Subject to the terms and conditions and in
------------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at a purchase price of 97.5% of the
principal amount thereof, plus accrued interest, if any, on the Securities from
December 22, 1997, to the Closing Date, the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule I attached hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
---------------------
shall be made at 10:00 AM, New York City
<PAGE>
8
time, on December 22, 1997, or at such time on such later date (not later than
December 30, 1997) as the Underwriters shall designate, which date and time may
be postponed by agreement between the Underwriters and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the respective accounts of the several Underwriters against
payment by the several Underwriters of the purchase price thereof to or upon the
order of the Company by wire transfer payable in same-day funds to an account
specified by the Company. Delivery of the Securities shall be made through the
facilities of The Depository Trust Company unless the Underwriters shall
otherwise reasonably designate at least one Business Day in advance of the
Closing Date.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company and the Guarantors jointly and severally
-----------
agree with the several Underwriters that:
(a) The Company and the Guarantors will use their respective best
efforts to cause the Registration Statement, if not effective at the
Execution Time, and any amendment thereof, to become effective. Prior to
the termination of the offering of the Securities, the Company and the
Guarantors will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement to
which you reasonably object in writing within five Business Days after
receipt of a copy of such proposed amendment, supplement or Rule 462(b)
Registration Statement. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company and the Guarantors will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Underwriters of
such timely filing. The Company will promptly advise
<PAGE>
9
the Underwriters (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Prospectus, and any supplement thereto, shall have been filed
(if required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(iii) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iv) of any request by the Commission or its staff for any
amendment of the Registration Statement, any Rule 462(b) Registration
Statement or any supplement to the Prospectus or for any additional
information, (v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company and the Guarantors will use their respective best
efforts to prevent the issuance of any such stop order or the suspension of
any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the rules thereunder, the Company and the Guarantors promptly will
(i) prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
<PAGE>
10
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Underwriters an earnings statement or
statements of the Company and its subsidiaries that will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and all correspondence to or from the
Commission or its staff with respect to the Registration Statement and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Underwriters may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering of the Securities.
(e) The Company and the Guarantors will arrange for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Underwriters may designate and will maintain such qualifications in effect
so long as required for the distribution of the Securities; provided,
--------
however, neither the Company nor any Guarantor shall be required to qualify
-------
to do business in any jurisdiction where it is not now so qualified, become
subject to taxation where it is not now so subject, or to take any action
which would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject. Each of the Company and the
Guarantors will promptly advise the Underwriters of the receipt by it of
any notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company and the Guarantors will
arrange for the determination of the legality of the Securities for
purchase by institutional investors and will pay any fee of the National
Association of Securities Dealers, Inc. in connection with its review of
the offering of the Securities.
<PAGE>
11
(f) The Company will not, for a period of 180 days following the
Closing Date, offer, sell, contract to sell, grant an option to purchase or
otherwise dispose of, directly or indirectly, or announce the offering of,
or file a registration statement for, any debt securities issued or
guaranteed by the Company or any Guarantor, or enter into any agreement to
do any of the foregoing, without the prior written consent of Salomon
Brothers Inc, other than (i) the offering of the Securities contemplated
hereby, (ii) pursuant to the registration rights agreement for the
Company's outstanding Senior Subordinated Notes (as defined in the
Prospectus) or (iii) in connection with the negotiation, syndication or
arrangement of the Senior Credit Facility.
(g) The Company and the Guarantors will use their best efforts in
cooperation with the Underwriters to permit the Securities to be eligible
for clearance and settlement through The Depository Trust Company.
(h) The Company will apply the net proceeds from the sale of the
Securities sold by it, together with the net proceeds from the Equity
Offering (as defined in the Prospectus), substantially in accordance with
its statements under the caption "Use of Proceeds" in the Prospectus.
(i) Without limiting the other provisions of this Section 5 and
elsewhere in this Agreement, on the Closing Date the Company shall file a
post-effective amendment to the Registration Statement that registers the
issuance on the Closing Date of the Guarantees by Ballantrae and Tractech.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Guarantors contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company and the Guarantors made
in any certificates pursuant to the provisions hereof, to the performance by the
Company and the Guarantors of their respective obligations hereunder and to the
following additional conditions:
<PAGE>
12
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriters agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to the Underwriters the opinion
of Dechert Price & Rhoads, counsel for the Company, dated the Closing Date,
to the effect that:
(i) each of the Company and the Guarantors (other than the
Relevant Subsidiaries (as hereinafter defined), the "Subject
Guarantors") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in
which it is chartered or organized, with full corporate power and
corporate authority to own its properties and conduct its business as
described in the Prospectus; and each of the Company and the
Guarantors is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction set forth
in a schedule to such opinion (which schedule shall identify, based
solely on a certificate of an officer of the Company, each
jurisdiction in which the Company or any Guarantor owns or leases
material properties or conducts material business);
(ii) all the outstanding shares of capital
<PAGE>
13
stock of each Subject Guarantor have been duly and validly authorized
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus, all outstanding shares of
capital stock of the Guarantors are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances (other than the pledges of capital stock of the
Guarantors pursuant to the Senior Credit Facility);
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the Securities conform to the description
thereof contained in the Prospectus; and the Securities have been
approved for listing on the New York Stock Exchange, subject to
official notice of issuance;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and each of the Subject Guarantors, has been
duly qualified under and complies in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations
of the Commission, and (assuming due authorization, execution and
delivery thereof by the Trustee) constitutes a valid and legally
binding instrument enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity);
the Securities are in the form contemplated by the Indenture and have
been duly authorized and executed by the Company and each Subject
Guarantor and, upon the due authentication and delivery thereof by the
Trustee pursuant to the Indenture, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations
entitled to the benefits of the Indenture and enforceable in
accordance with
<PAGE>
14
their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity);
(v) to the best knowledge of such counsel, there is no pending
or threatened action or suit or judicial, arbitral or other
administrative proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject that, singly or in
the aggregate, (A) questions the validity of this Agreement, the
Indenture or the Credit Agreement or any action taken or to be taken
pursuant hereto or thereto or pursuant to the other Transactions, or
(B) if determined adversely to the Company or any of its subsidiaries,
is reasonably likely to have a Material Adverse Effect, except as
described in the Prospectus; and the summaries in the Registration
Statement or the Prospectus, of statutes, legal and governmental
proceedings and contracts and other documents accurately describe in
all material respects the provisions purported to be so summarized;
and the statements in the Prospectus under the caption "Description of
Certain Federal Income Tax Consequences" accurately reflect in all
material respects the United States tax consequences generally
applicable to U.S. and Non-U.S. Holders (as such terms are defined in
the Prospectus) (subject to the qualifications and assumptions set
forth in such discussion and assuming the accuracy of the discussion
in the Prospectus relating to the Company's business and activities);
(vi) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of
<PAGE>
15
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Act and the Trust
Indenture Act and the respective rules thereunder;
(vii) the Credit Agreement has been duly authorized, executed
and delivered by the Company and each of the Subject Guarantors that
is a party thereto, and constitutes a valid and legally binding
agreement, enforceable in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity);
(viii) this Agreement has been duly authorized, executed and
delivered by the Company and each of the Subject Guarantors;
(ix) neither the Company nor any of its subsidiaries is, before
or after the consummation of the actions contemplated by this
Agreement, the Indenture, the Credit Agreement or the other
Transactions, an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act
and the rules and regulations of the Commission thereunder, without
taking account of any exemption under the Investment Company Act
arising out of the number of holders of the Company's securities;
(x) no authorization, approval, consent or order of, or filing
or registration with, any court, regulatory body, administrative
agency or other governmental body is required for the execution,
delivery and performance of this
<PAGE>
16
Agreement, the Indenture or the Credit Agreement or for the
consummation of the actions contemplated hereby or thereby or of the
other Transactions, except as contemplated by Section 5(e);
(xi) the execution, delivery and performance of this Agreement,
the Indenture, the Securities and the Credit Agreement by the Company
and each Guarantor party hereto or thereto and the consummation of the
actions contemplated hereby or thereby and of the other Transactions
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (A) the articles of
incorporation, by-laws or other organizational documents of the
Company or any Subject Guarantor, (B) any material statute, rule or
regulation applicable to the Company or any Guarantor or any order of
any court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties and which order is
known to such counsel or (C) any agreement or instrument known to such
counsel to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which
any of their respective properties is subject; and the Company and
each of the Subject Guarantors that is a party thereto has full
corporate power and corporate authority to execute and deliver this
Agreement, the Indenture, the Securities and the Credit Agreement and
to perform its respective obligations hereunder and thereunder and to
consummate the other Transactions; and all corporate action required
to be taken for the due and proper authorization, execution and
delivery of this Agreement, the Indenture, the Securities and the
Credit Agreement and the consummation of the actions contemplated
hereby or thereby and of the other Transactions have been duly and
validly taken; and
(xii) no holders of securities of the Company or any of its
subsidiaries have rights to the registration of such securities under
the
<PAGE>
17
Registration Statement.
Such opinion may be limited to the laws of the United States of America,
the States of New York and New Jersey and the Delaware General Corporation
Law. In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this paragraph (b) include any supplements thereto at the Closing Date.
Such counsel shall also state, in a separate letter, that, in the
course of preparation by the Company of the Prospectus, such counsel has
participated in conferences with directors, officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences the
contents of the Prospectus and related matters were discussed and, although
such counsel has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of the
statements contained in the Prospectus (except as expressly provided
above), and noting that they have relied as to materiality to a large
extent upon the statements of directors, officers and other representatives
of the Company, no facts have come to such counsel's attention which have
caused such counsel to believe that at the Effective Date the Registration
Statement contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or that the Prospectus
includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no view with respect to the
financial statements and the notes related thereto and other financial and
accounting data included in the Prospectus).
(c) The Company shall have furnished to the
<PAGE>
18
Underwriters the opinions of the following local counsels, or such other
local counsels as shall be reasonably acceptable to the Underwriters: (1)
Stephen Plopper & Associates, local counsel to Power Investments, Inc.,
Franklin Power Products, Inc., International Fuel Systems, Inc. and Marine
Corporation of America, each an Indiana corporation; (2) Young, Williams,
Henderson & Fuselier, local counsel to the A&B Group, Inc., A&B
Enterprises, Inc., Dalex, Inc., A&B Cores, Inc., R&L Tool Company, Inc. and
MCA, Inc. of Mississippi, each a Mississippi corporation; (3) Porteous &
White, local counsel to Nabco, Inc., a Michigan corporation; (4) Jenkens &
Gilchrist, local counsel to Powrbilt Products, Inc., a Texas corporation;
and (5) Hunton & Williams, local counsel to World Wide Automotive, Inc., a
Virginia corporation (each such Guarantor, with respect to the applicable
local counsel, a "Relevant Subsidiary"), each dated as of the Closing Date
and to the effect that:
(i) each of the Relevant Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and corporate authority to own
its properties and conduct its business as described in the
Prospectus;
(ii) all the outstanding shares of capital stock of each
Relevant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable;
(iii) each of this Agreement, the Indenture and the Credit
Agreement has been duly authorized, executed and delivered by each of
the Relevant Subsidiaries that is a party hereto or thereto; and
(iv) the execution, delivery and performance of this Agreement,
the Indenture and the Credit Agreement by each Relevant Subsidiary
that is a party hereto or thereto and the consummation of the actions
contemplated hereby or thereby and of the other Transactions will not
result in a breach or violation of any of the terms and provisions
<PAGE>
19
of, or constitute a default under, the articles of incorporation,
by-laws or other organizational documents of the Relevant Subsidiary;
each of the Relevant Subsidiaries that is a party hereto or thereto
has full corporate power and corporate authority to execute and
deliver this Agreement, the Indenture and the Credit Agreement and to
perform its respective obligations hereunder and thereunder and to
consummate the other Transactions; and all corporate action required
to be taken by the Relevant Subsidiaries party hereto or thereto for
the due and proper authorization, execution and delivery of this
Agreement, the Indenture and the Credit Agreement and the consummation
of the actions contemplated hereby or thereby and of the other
Transactions have been duly and validly taken.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction in which the Relevant Subsidiaries are chartered or organized
or the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel who are satisfactory to counsel
for the Underwriters, and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Relevant
Subsidiaries and public officials. References to the Prospectus in this
paragraph (d) include any supplements thereto at the Closing Date.
(d) The Underwriters shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chairman of the Board or the
President and the
<PAGE>
20
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplement to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as if made
on the Closing Date and the Company and the Guarantors have complied
with all the agreements and satisfied all the conditions on their part
to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threat ened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the condition (financial
or other), earnings, business or properties of the Company and its
subsidiaries, which is material to the Company and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time and at the Closing Date, Ernst & Young LLP
shall have furnished to the Underwriters a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Underwriters, stating in effect that:
(i) they are independent certified public accountants with
respect to the Company, World Wide Automotive, Inc. ("World Wide"),
the Tractech Division of Titan Wheel International, Inc. and
Ballantrae, in each such case within the meaning
<PAGE>
21
of Rule 101 of the American Institute of Certified Public Accountants'
Code of Professional Conduct and its interpretations and rulings;
(ii) in their opinion the audited consolidated financial
statements included in the Prospectus and reported on by them comply
in form in all material respects with the accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations thereunder;
(iii) based upon a reading of the latest unaudited consolidated
financial statements made available by the Company, the procedures of
the American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters and certain other limited procedures requested by
the Underwriters and described in detail in such letter, nothing has
come to their attention that causes them to believe that:
(1) any unaudited financial statements included in the
Prospectus do not comply in form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act;
(2) said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included in the Prospectus; or
(3) the consolidated financial and other information
included under the headings "Pro Forma Condensed Consolidated
Financial Data",
<PAGE>
22
"Selected Consolidated Historical Financial Data", "Prospectus
Summary--Summary Consolidated Historical and Pro Forma Financial
Data", "Management's Discussion and Analysis of Financial
Condition and Results of Operations" and "Management" is not in
conformity with the disclosure requirements of Regulation S-K
under the Act;
(iv) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available
balance sheet, including the reading of minutes and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters, nothing has come to their attention that
causes them to believe that:
(1) at a specified date not more than five days prior to
the date of the letter, there were any changes in the capital
stock of the Company, increases in the long-term debt of the
Company or decreases in the stockholders' equity or net current
assets of the Company, in each case on a consolidated basis, as
compared with the amounts shown in the October 31, 1997,
unaudited consolidated balance sheet included in the Prospectus;
or
(2) for the period from October 31, 1997, to a specified
date not more than five days prior to the date of the letter,
there were any decreases, as compared with the corresponding
period in the immediately preceding fiscal quarter, in net sales,
income from continuing operations, net income or EBITDA (as
defined under "Prospectus Summary" in the Prospectus), or
increases in costs of goods sold, of the Company and its
subsidiaries on a consolidated basis, except in all instances for
increases or decreases that the Prospectus discloses have
occurred or which are set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation
<PAGE>
23
is not deemed necessary by the Underwriters;
(v) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Prospectus agrees with the accounting records of the
Company and its subsidiaries excluding any questions of legal
interpretation; and
(vi) on the basis of a reading of the unaudited pro forma
financial statements included in the Prospectus (the "pro forma
financial statements"); carrying out certain specified procedures;
reading of minutes and inquiries of certain officials of the Company,
World Wide, Tractech, Ballantrae and Kraftube who have responsibility
for financial and accounting matters; and proving the arithmetic
accuracy of the application of such pro forma adjustments to the
historical amounts in the pro forma financial statements, nothing came
to their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (f) include any
amendment or supplement thereof or thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change, decrease or increase
specified in the letter or letters referred to in paragraph (f) of this
Section 6 or (ii) any change, or any development involving a
<PAGE>
24
prospective change, in or affecting the business or properties of the
Company and its subsidiaries the effect of which, in any case referred to
in clause (i) or (ii) above, is, in the judgment of the Underwriters, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have been (i)
any decrease in the rating of the Securities or any of the Company's or any
Guarantor's other debt securities by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act)
or (ii) any notice given of any intended or potential decrease in any such
rating or that such organization has under surveillance or review (other
than any such notice with positive implications of a possible upgrading)
its rating of the Securities or any of the Company's or any Guarantor's
other debt securities.
(i) The Equity Offering (as defined in the Prospectus), the Company's
acquisition of Ballantrae and each of the other Transactions shall have
been consummated on the terms described in the Prospectus.
(j) World Wide and Power Investments, Inc. shall have been
recapitalized so that all of their respective voting interests are owned by
the Company.
(k) All conditions precedent to the obligations of the lenders to
extend loans and issue letters of credit under the Credit Agreement shall
have been fully satisfied or waived.
(l) Prior to the Closing Date, the Company shall have furnished to
the Underwriters such further information, certificates and documents as
the Underwriters may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere
<PAGE>
25
in this Agreement shall not be in all material respects reasonably satisfactory
in form and substance to the Underwriters and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancelation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Dechert, Price & Rhoads, counsel for the Company, at
30 Rockefeller Plaza, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or any Guarantor to
perform any agreement herein or comply with any provision hereof in each case
other than by reason of a default by any of the Underwriters, the Company and
the Guarantors jointly and severally will reimburse the Underwriters severally
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and the
---------------------------------
Guarantors jointly and severally agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
<PAGE>
26
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that neither
-------- -------
the Company nor any Guarantor will be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriters
specifically for inclusion therein, it being understood that the only such
information is that described in Section 8(b); and provided further, however,
-------- ------- -------
that such indemnity with respect to any Preliminary Prospectus shall not inure
to the benefit of the Underwriter (or any of the directors, officers, employees
and agents of such Underwriter or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Prospectus at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the Act
and the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact contained in such Preliminary Prospectus was
corrected in the Prospectus included in the Registration Statement at the time
it was declared effective by the Commission and it is finally judicially
determined that such delivery was required to be made under the Act and was not
so made.
(b) The Underwriters severally and not jointly agree to indemnify and
hold harmless each of the Company and the Guarantors, each of their respective
directors, each of their respective officers who sign the Registration Statement
and each person who controls the Company or any Guarantor within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such
<PAGE>
27
Underwriter specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and the
Guarantors acknowledge that the statements set forth in the last paragraph of
the cover page, the second paragraph on page three and under the heading
"Underwriting" in any Preliminary Prospectus and the Prospectus constitute the
only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the registration statement for the registration of
the Securities, any Preliminary Prospectus, the Prospectus or any amendment
thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
as counsel one firm of attorneys of the indemnifying party's choice at the
indemnifying party's expense, which counsel, together with one local counsel in
each jurisdiction, shall act on behalf of all the indemnified parties in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); provided, however, that such counsel shall be satisfactory to the
-------- -------
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel, if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would
<PAGE>
28
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment for the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Guarantors on the one hand
and the Underwriters on the other hand agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same)
(collectively "Losses") to which the Company and the Guarantors or one or more
of the Underwriters, as applicable, may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors or by the Underwriters, as applicable, from the offering of the
Securities; provided,
--------
<PAGE>
29
however, that in no case shall any Underwriter be responsible for any amount in
- -------
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Guarantors on the one hand and the Underwriters on the other hand shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Guarantors
or of the Underwriters, as applicable, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company and the Guarantors shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses), and benefits received by the Underwriters shall be deemed to be equal
to the total underwriting discounts and commissions, in each case as set forth
on the cover page of the Prospectus. Relative fault shall be determined by
reference to whether any untrue or any alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information provided by the Company or any Guarantor on the one hand or the
Underwriters on the other hand. The Company, the Guarantors and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company or any Guarantor within the meaning of either the Act or the Exchange
Act, each officer of the Company or any Guarantor who shall have signed the
Registration Statement and each director of the Company or any Guarantor shall
have the same rights to contribution as the Company and the Guarantors, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
-------------------------
<PAGE>
30
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
principal amount of Securities set forth opposite their names in Schedule I
attached hereto bears to the aggregate principal amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
--------
however, that in the event that the aggregate principal amount of Securities
- -------
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Company or any Guarantor. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Underwriters shall determine in order
that the required changes in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the Securities, if prior to such time (i)
trading in securities generally on the New York Stock Exchange or the National
Association of Securities Dealers Automated Quotation System ("NASDAQ") shall
have been suspended or limited or minimum prices shall have been established on
either of such Exchange or NASDAQ, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or
<PAGE>
31
war or other calamity or crisis the effect of which on financial markets is such
as to make it, in the sole judgment of the Underwriters, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or sent by fax (212-783-2274) and confirmed to them in care of Salomon
Brothers Inc, Seven World Trade Center, New York, New York, 10048; or, if sent
to the Company or any Guarantor, will be mailed, delivered or sent by fax (765-
778-6424) and confirmed to it, in care of Delco Remy International, Inc., 2902
Enterprise Drive, Anderson, Indiana 46013, Attention: Chief Financial Officer,
with a copy mailed, delivered or sent by fax (215-994-2222) and confirmed to
Christopher G. Karras, Esq., Dechert Price & Rhoads, 4000 Bell Atlantic Tower,
1717 Arch Street, Philadelphia, Pennsylvania 19103.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
---------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF).
15. Counterparts. This Agreement may be signed
------------
<PAGE>
32
in one or more counterparts, each of which shall constitute an original and all
of which together shall constitute one and the same agreement.
16. Headings. The Section headings used herein are for convenience
---------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
federal legal holiday.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in Section 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in Section 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
<PAGE>
33
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939.
<PAGE>
34
If the foregoing is in accordance with your under standing of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Underwriters.
Very truly yours,
DELCO REMY INTERNATIONAL, INC.,
by
Name: Thomas J. Snyder
Title: President
SUBSIDIARY GUARANTORS:
DELCO REMY AMERICA, INC.,
by
Name: Thomas J. Snyder
Title: President
REMY INTERNATIONAL, INC.,
by
Name: Thomas J. Snyder
Title: President
REMAN HOLDINGS, INC.,
by
Name: Thomas J. Snyder
Title: President
NABCO, INC.,
by
<PAGE>
35
Name: David L. Harbert
Title: Vice President
THE A&B GROUP, INC.,
by
Name: David L. Harbert
Title: Vice President
A&B ENTERPRISES, INC.,
by
Name: David L. Harbert
Title: Vice President
DALEX, INC.,
by
Name: David L. Harbert
Title: Vice President
A&B CORES, INC.,
by
Name: David L. Harbert
Title: Vice President
R&L TOOL COMPANY, INC.,
by
Name: David L. Harbert
Title: Vice President
MCA, INC. OF MISSISSIPPI,
<PAGE>
36
by
Name: David L. Harbert
Title: Vice President
POWER INVESTMENTS, INC.,
by
Name: David L. Harbert
Title: Vice President
FRANKLIN POWER PRODUCTS, INC.,
by
Name: David L. Harbert
Title: Vice President
INTERNATIONAL FUEL SYSTEMS,
INC.,
by
Name: David L. Harbert
Title: Vice President
MARINE DRIVE SYSTEMS, INC.,
by
Name: David L. Harbert
Title: Vice President
MARINE CORPORATION OF AMERICA,
by
Name: David L. Harbert
Title: Vice President
<PAGE>
37
POWRBILT PRODUCTS, INC.,
by
Name: David L. Harbert
Title: Vice President
WORLDWIDE AUTOMOTIVE, INC.,
by
---
Name: David L. Harbert
Title: Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
CREDIT SUISSE FIRST BOSTON CORPORATION
MORGAN STANLEY & CO. INCORPORATED
by SALOMON BROTHERS INC,
by
____________________________
Name:
Title:
<PAGE>
38
SCHEDULE I
<TABLE>
<CAPTION>
Underwriters Principal Amount
- ------------ of Securities to
be Purchased
-----------------
<S> <C>
Salomon Brothers Inc................................... $ 87,000,000
Credit Suisse First Boston Corporation................. 29,000,000
Morgan Stanley & Co. Incorporated...................... 29,000,000
------------
Total........................................ $145,000,000
============
</TABLE>
<PAGE>
EXHIBIT 10.2
4,000,000 Shares
DELCO REMY INTERNATIONAL, INC.
CLASS A COMMON STOCK ($.01 PAR VALUE)
UNDERWRITING AGREEMENT
December 17, 1997
<PAGE>
December 17, 1997
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston
Corporation
Smith Barney Inc.
c/o Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
Delco Remy International, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS") 4,000,000 shares of its Class A Common
Stock ($.01 par value) (the "FIRM SHARES"). The Company also proposes to issue
and sell to the several Underwriters not more than an additional 600,000 shares
of its Class A Common Stock ($.01 par value) (the "ADDITIONAL SHARES") if and to
the extent that you shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "SHARES." The shares of Class A
Common Stock ($.01 par value) of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b)
<PAGE>
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "Registration Statement" shall be deemed to include
such Rule 462 Registration Statement.
As part of the offering contemplated by this Agreement, Morgan Stanley
& Co. Incorporated ("MORGAN STANLEY") has agreed to reserve out of the Shares
set forth opposite its name on Schedule I to this Agreement, up to 278,870
shares, for sale to the Company's employees, officers and directors and certain
other parties designated by the Board of Directors of the Company (collectively,
the "PARTICIPANTS"), as set forth in the Prospectus under the heading
"Underwriters" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by Morgan
Stanley pursuant to the Directed Share Program (the "DIRECTED SHARES") will be
sold by Morgan Stanley pursuant to this Agreement at the Public Offering Price
(as defined). Any Directed Shares not orally confirmed for purchase by any
Participants by the end of the first business day after the date on which this
Agreement is executed will be offered to the public by Morgan Stanley as set
forth in the Prospectus.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (iii) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply
<PAGE>
3
to statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of the
Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly by the Company, free and clear of
all liens, encumbrances, equities or claims. As of the Closing Date (as
defined), references in this Agreement to "SUBSIDIARIES" of the Company
shall be deemed to include Ballantrae Corporation ("BALLANTRAE"), Tractech,
Inc. ("TRACTECH") and Kraftube, Inc. ("KRAFTUBE"), notwithstanding that the
Company may not have consummated its acquisition of Ballantrae prior to the
Closing Date.
(e) This Agreement has been duly authorized,
<PAGE>
4
executed and delivered by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus; and the
Shares have been approved for listing on the New York Stock Exchange,
subject to official notice of issuance.
(g) All shares of Common Stock and Class B Common Stock ($.01 par
value) of the Company (the "CLASS B COMMON STOCK" and, together with the
Common Stock, the "CAPITAL STOCK") outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-
laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the
<PAGE>
5
date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(n) The Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries,
<PAGE>
6
taken as a whole.
(o) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) which would, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(p) There are no contracts, agreements or understandings between the
Company or any of its subsidiaries and any person granting such person the
right to require the Company or any such subsidiary to file a registration
statement under the Securities Act with respect to any securities of the
Company or such subsidiary (except as described in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date
of this Agreement)) or to require the Company or any such subsidiary to
include such securities with the Shares registered pursuant to the
Registration Statement.
(q) Except as expressly described in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, (1) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary course of
business; (2) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of
any kind on its capital stock other than ordinary and customary dividends;
and (3) there has not been any material change in the capital stock, short-
term debt or long-term debt of the Company and its consolidated
subsidiaries, except in each case as described in or contemplated by the
Prospectus.
(r) The Company and its subsidiaries have good and marketable title
in fee simple to all real property and valid title to all personal property
owned by them which is material to the business of the Company and
<PAGE>
7
its subsidiaries, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in or contemplated by the Prospectus.
(s) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names currently
employed by them in connection with the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in any material
adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole.
(t) No material labor dispute with the employees of the Company or
any of its subsidiaries exists, except as described in or contemplated by
the Prospectus, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole.
(u) The Company and each of its subsidiaries are
<PAGE>
8
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied for;
and neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would
not materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, except as described in or contemplated by
the Prospectus.
(v) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate Federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any such subsidiary has received
any notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, except as described in or contemplated
by the Prospectus.
(w) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's general
or specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3)
access to assets is permitted only in accordance with management's general
or specific authorization; and (4) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
<PAGE>
9
(x) The fourth amended and restated financing agreement (together
with all other documents and agreements entered into in connection
therewith, the "CREDIT AGREEMENT") relating to the Senior Credit Facility
(as defined in the Prospectus) has been executed and delivered by the
parties thereto and is in full force and effect, and the Underwriters have
received conformed counterparts of the Credit Agreement. There exists, and
at and as of the Closing Date (after giving effect to the actions
contemplated hereby and to the other Transactions (as defined in the
Prospectus)) shall exist, no condition that would constitute a default (or
an event that with notice or lapse of time, or both, would constitute a
default) under the Senior Credit Facility.
Furthermore, the Company represents and warrants that (i) the
Registration Statement, the Prospectus and any preliminary prospectus comply,
and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
2. Agreements To Sell and Purchase. The Company hereby agrees to
--------------------------------
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $11.16 a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to 600,000 Additional
Shares at the Purchase Price. If you, on
<PAGE>
10
behalf of the Underwriters, elect to exercise such option, you shall so notify
the Company in writing not later than 30 days after the date of this Agreement,
which notice shall specify the number of Additional Shares to be purchased by
the Underwriters and the date on which such shares are to be purchased. Such
date may be the same as the Closing Date (as defined below) but not earlier than
the Closing Date nor later than ten business days after the date of such notice.
Additional Shares may be purchased as provided in Section 4 hereof solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. If any Additional Shares are to be purchased, each Underwriter
agrees, severally and not jointly, to purchase the number of Additional Shares
(subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Capital Stock or any securities convertible into or exercisable or
exchangeable for Capital Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Capital Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Capital Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Capital Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing, (C) any options granted or shares of
Capital Stock issued pursuant to benefit plans of the Company as in effect on
the date of this Agreement, (D) any issuances to officers or employees of the
Company of shares of Capital Stock pursuant to the Securities Purchase and
Holders Agreement dated July 29, 1994, by and among the Company and the
shareholders set
<PAGE>
11
forth therein or (E) the conversion, in accordance with the terms thereof, of
shares of Common Stock into shares of Class B Common Stock, or of shares of
Class B Common Stock into Common Stock.
3. Terms of Public Offering. The Company is advised by you that the
-------------------------
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$12.00 a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by
you at a price that represents a concession not in excess of $0.47 a share under
the Public Offering Price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of $0.10 a share, to any Underwriter or
to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made
---------------------
to the Company in Federal funds immediately available in New York City against
delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on December 22, 1997, or at such
other time on the same or such other date, not later than December 30, 1997, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE". The documents required to be
delivered by this Agreement shall be delivered on the Closing Date at the
offices of Dechert, Price & Rhoads, counsel for the Company, at 30 Rockefeller
Plaza, New York, New York.
Payment for any Additional Shares shall be made to the Company in
Federal funds immediately available in New York City against delivery of such
Additional Shares for the respective accounts of the several Underwriters at
10:00 a.m., New York City time, on the date specified in the notice described in
Section 2 or at such other time on the same or on such other date, in any event
not later than February 2, 1998, as shall be designated in writing by you. The
time and date of such payment are hereinafter referred to as the "OPTION CLOSING
DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in
<PAGE>
12
writing not later than one full business day prior to the Closing Date or the
Option Closing Date, as the case may be. The certificates evidencing the Firm
Shares and Additional Shares shall be delivered to you on the Closing Date or
the Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Shares to the Underwriters duly paid, against payment of the
Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The of obligations
--------------------------------------------
of the Company to sell the Shares to the Underwriters and the several
obligations of the Underwriters to purchase and pay for the Shares on the
Closing Date are subject to the condition that the Registration Statement shall
have become effective not later than 9:30 a.m. (New York City time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
<PAGE>
13
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect set forth in Section 5(a)(i) above and to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date the
opinion of Dechert Price & Rhoads, counsel for the Company, dated the
Closing Date, to the effect that:
(i) each of the Company and the domestic subsidiaries of the
Company (other than the Relevant Subsidiaries (as hereinafter
defined), the "SUBJECT SUBSIDIARIES") has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction in which it is chartered or organized, with full
corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus; and each of the
Company and the domestic subsidiaries of the Company (the "DOMESTIC
SUBSIDIARIES") is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction set forth in a schedule to such opinion (which schedule
shall identify, based solely on a certificate of an officer of the
Company, each jurisdiction in which the Company or any such Domestic
Subsidiary owns or leases material properties or conducts material
business);
(ii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the Shares conform to the description thereof
contained in the Prospectus; and the Shares have
<PAGE>
14
been approved for listing on the New York Stock Exchange, subject to
official notice of issuance;
(iii) to the best knowledge of such counsel, there is no pending
or threatened action or suit or judicial, arbitral or other
administrative proceeding to which the Company or any of its
subsidiaries is a party or of which any property or assets of the
Company or any of its subsidiaries is the subject that, singly or in
the aggregate, (A) questions the validity of this Agreement or the
Credit Agreement or any action taken or to be taken pursuant hereto or
pursuant to the other Transactions, or (B) if determined adversely to
the Company or any of its subsidiaries, is reasonably likely to have a
material adverse effect on the condition (financial or otherwise),
properties, business, results of operations or prospects of the
Company and its subsidiaries, taken as a whole, or materially and
adversely affect the ability of the Company or any of its subsidiaries
to perform its obligations under this Agreement or the Credit
Agreement or to consummate the other Transactions (a "MATERIAL ADVERSE
EFFECT"), except as described in the Prospectus; and the summaries in
the Registration Statement or the Prospectus of statutes, legal and
governmental proceedings and contracts and other documents accurately
describe in all material respects the provisions purported to be so
summarized; and the statements in the Prospectus under the caption
"Certain United States Federal Tax Consequences to Non-United States
Holders" accurately reflect in all material respects the United States
tax consequences generally applicable to Non-United States Holders (as
defined in the Prospectus) (subject to the qualifications and
assumptions set forth in such discussion and assuming the accuracy of
the discussion in the Prospectus relating to the Company's business
and activities);
(iv) the shares of Capital Stock outstanding prior to the
issuance of the Shares have been duly authorized and validly issued,
fully paid and non-assessable;
<PAGE>
15
(v) the Shares have been duly authorized and, when delivered
in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the best knowledge
of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the applicable requirements of the Securities Act and
the rules thereunder;
(vii) all the outstanding shares of capital stock of each
Subject Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital stock of
the Domestic Subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected
security interest and, to the knowledge of such counsel, after due
inquiry, any other security interests, claims, liens or encumbrances
other than the pledges of capital stock of the Domestic Subsidiaries
pursuant to the Senior Credit Facility;
(viii) the Credit Agreement has been duly authorized, executed
and delivered by the Company and each of the Subject Subsidiaries that
is a party thereto; and constitutes a valid and legally binding
agreement, enforceable in accordance with its terms subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and similar laws affecting creditors'
<PAGE>
16
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity);
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) neither the Company nor any of its subsidiaries is, before
or after the consummation of the actions contemplated by this
Agreement, the Credit Agreement or the other Transactions, an
"investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act and the rules
and regulations of the Commission thereunder, without taking account
of any exemption under the Investment Company Act arising out of the
number of holders of the Company's securities;
(xi) no authorization, approval, consent or order of, or filing
or registration with, any court, regulatory body, administrative
agency or other governmental body is required for the execution,
delivery and performance of this Agreement or the Credit Agreement or
for the consummation of the actions contemplated hereby or thereby or
of the other Transactions, except as contemplated by Section 6(e);
(xii) the execution, delivery and performance of this Agreement
and the Credit Agreement by the Company and each of the Domestic
Subsidiaries that is a party thereto and the consummation of the
actions contemplated hereby or thereby and of the other Transactions
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under (A) the articles of
incorporation, by-laws or other organizational documents of the
Company or any Subject Subsidiary, (B) any material statute, rule or
regulation applicable to the Company or any Domestic Subsidiary or any
order of any court, regulatory body, administrative agency or other
governmental body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties and which order is
known to such counsel or (C) any agreement or instrument known to
<PAGE>
17
such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of their respective properties is subject; and the
Company and each of the Subject Subsidiaries that is a party thereto
has full corporate right, power and authority to execute and deliver
this Agreement and the Credit Agreement and to perform its respective
obligations hereunder and thereunder and to consummate the other
Transactions; and all corporate action required to be taken for the
due and proper authorization, execution and delivery of this Agreement
and the Credit Agreement and the consummation of the actions
contemplated hereby and thereby and of the other Transactions have
been duly and validly taken; and
(xiii) no holders of securities of the Company or any of its
subsidiaries have rights to the registration of such securities under
the Registration Statement.
Such opinion may be limited to the laws of the United States of America,
the States of New York and New Jersey and the Delaware General Corporation
Law. In rendering such opinion, such counsel may rely as to matters of
fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus
in this paragraph (c) include any supplements thereto at the Closing Date.
Such counsel shall also state, in a separate letter, that, in the
course of preparation by the Company of the Prospectus, such counsel has
participated in conferences with directors, officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Underwriters and
representatives of counsel for the Underwriters, at which conferences the
contents of the Prospectus and related matters were discussed and, although
such counsel has not independently verified and is not passing upon and
assumes no responsibility for the accuracy, completeness or fairness of the
statements
<PAGE>
18
contained in the Prospectus (except as expressly provided above), and
noting that they have relied as to materiality to a large extent upon the
statements of directors, officers and other representatives of the Company,
no facts have come to such counsel's attention which have caused such
counsel to believe that at the date the Registration Statement became
effective it contained an untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading or that the Prospectus
includes an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no view with respect to the
financial statements and the notes related thereto and other financial and
accounting data included in the Prospectus).
The opinion and letter of such counsel shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date the
opinions of the following local counsels, or such other local counsels as
shall be reasonably acceptable to the Underwriters: (1) Stephen Plopper &
Associates, local counsel to Power Investments, Inc., Franklin Power
Products, Inc., International Fuel Systems, Inc. and Marine Corporation of
America, each an Indiana corporation; (2) Young, Williams, Henderson &
Fuselier, local counsel to the A&B Group, Inc., A&B Enterprises, Inc.,
Dalex, Inc., A&B Cores, Inc., R&L Tool Company, Inc. and MCA, Inc. of
Mississippi, each a Mississippi corporation; (3) Porteous & White, local
counsel to Nabco, Inc., a Michigan corporation; (4) Jenkens and Gilchrist,
local counsel to Powrbilt Products, Inc., a Texas corporation and (5)
Hunton & Williams, local counsel to World Wide Automotive, Inc., a Virginia
corporation (each such Domestic Subsidiary, with respect to the applicable
local counsel, a "RELEVANT SUBSIDIARY"), each dated the Closing Date and to
the effect that:
(i) each of the Relevant Subsidiaries has
<PAGE>
19
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and corporate
authority to own its properties and conduct its business as described
in the Prospectus;
(ii) all the outstanding shares of capital stock of each
Relevant Subsidiary have been duly and validly authorized and issued
and are fully paid and nonassessable;
(iii) the Credit Agreement has been duly authorized, executed
and delivered by each of the Relevant Subsidiaries that is a party
thereto; and
(iv) the execution, delivery and performance of the Credit
Agreement by each Relevant Subsidiary that is a party thereto and the
consummation of the actions contemplated thereby and of the other
Transactions will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the articles
of incorporation, by-laws or other organizational documents of the
Relevant Subsidiary; each of the Relevant Subsidiaries that is a party
thereto has full corporate power and corporate authority to execute
and deliver the Credit Agreement and to perform its respective
obligations thereunder and to consummate the other Transactions; and
all corporate action required to be taken by the Relevant Subsidiaries
party thereto for the due and proper authorization, execution and
delivery of the Credit Agreement and the consummation of the actions
contemplated thereby and of the other Transactions have been duly and
validly taken.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
jurisdiction in which the Relevant Subsidiaries are chartered or organized
or the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel who are satisfactory to counsel
for the Underwriters, and (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible
<PAGE>
20
officers of the Relevant Subsidiaries and public officials. References to
the Prospectus in this paragraph (d) include any supplements thereto at the
Closing Date.
The opinion of such local counsel shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date such
opinion or opinions of Cravath, Swaine & Moore, counsel for the
Underwriters, dated the Closing Date, with respect to the issuance and sale
of the Shares, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Underwriters may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) At the Execution Time and at the Closing Date, Ernst & Young LLP
shall have furnished to the Underwriters a letter or letters, dated
respectively as of the date hereof and as of the Closing Date, in form and
substance satisfactory to the Underwriters, stating in effect that:
(i) they are independent certified public accountants with
respect to the Company, World Wide Automotive, Inc. ("WORLD WIDE"),
the Tractech Division of Titan Wheel International, Inc. and
Ballantrae, in each case within the meaning of Rule 101 of the
American Institute of Certified Public Accountants' Code of
Professional Conduct and its interpretations and rulings;
(ii) in their opinion the audited consolidated financial
statements included in the Prospectus and reported on by them comply
in form in all material respects with the accounting requirements of
the Securities Act and the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), and the related published rules and regulations
thereunder;
(iii) based upon a reading of the latest unaudited consolidated
financial statements made
<PAGE>
21
available by the Company, the procedures of the American Institute of
Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71,
reading of minutes and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters and
certain other limited procedures requested by the Underwriters and
described in detail in such letter, nothing has come to their
attention that causes them to believe that:
(1) any unaudited financial statements included in the
Prospectus do not comply in form in all material respects with
applicable accounting requirements and with the published rules
and regulations of the Commission with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act;
(2) said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included in the Prospectus; or
(3) the consolidated financial and other information
included under the headings "Pro Forma Condensed Consolidated
Financial Data", "Selected Consolidated Historical Financial
Data", "Prospectus Summary--Summary Consolidated Historical and
Pro Forma Financial Data", "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and
"Management" is not in conformity with the disclosure
requirements of Regulation S-K under the Securities Act;
(iv) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available
balance sheet, including reading of the minutes and inquiries of
certain officials of the Company who have responsibility for financial
and accounting
<PAGE>
22
matters, nothing has come to their attention that causes them to
believe that:
(1) at a specified date not more than five days prior to the
date of the letter, there were any changes in the capital stock
of the Company, increases in the long-term debt of the Company or
decreases in the stockholders' equity or net current assets of
the Company, in each case on a consolidated basis, as compared
with the amounts shown in the October 31, 1997, unaudited
consolidated balance sheet included in the Prospectus; or
(2) for the period from October 31, 1997, to a specified
date not more than five days prior to the date of the letter,
there were any decreases, as compared with the corresponding
period in the immediately preceding quarter, in net sales, income
from continuing operations, net income or EBITDA (as defined
under "Prospectus Summary" in the Prospectus), or increases in
costs of goods sold, of the Company and its subsidiaries on a
consolidated basis, except in all instances for increases or
decreases that the Prospectus discloses have occurred or which
are set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Underwriters;
(v) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Prospectus agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(vi) on the basis of a reading of the unaudited pro forma
financial statements included
<PAGE>
23
in the Prospectus (the "PRO FORMA FINANCIAL STATEMENTS"); carrying out
certain specified procedures; reading of minutes and inquiries of
certain officials of the Company, World Wide, Tractech, Ballantrae and
Kraftube who have responsibility for financial and accounting matters;
and proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma financial
statements, nothing came to their attention which caused them to
believe that the pro forma financial statements do not comply in form
in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that such pro forma adjustments
have not been properly applied to the historical amounts in the
compilation of such statements.
References to the Prospectus in this paragraph (f) include any
amendment or supplement thereof or thereto at the date of the letter.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and each of the shareholders (including the
holders of shares received or to be received pursuant to the Company's
acquisition of Ballantrae), warrantholders, senior officers and directors
of the Company relating to sales and certain other dispositions of shares
of Capital Stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date, and
the Company shall have used its reasonable best efforts to obtain such
"lock-up" agreements from all its other shareholders (with any such
additional "lock-up" agreements being delivered to you at the Closing).
(h) The Notes Offering (as defined in the Prospectus), the Company's
acquisition of Ballantrae and each of the other Transactions shall have
been consummated on the terms described in the Prospectus.
(i) World Wide and Power Investments, Inc. shall have been
recapitalized so that all of their respective voting interests are owned by
the Company.
(j) All conditions precedent to the obligations
<PAGE>
24
of the lenders to extend loans and issue letters of credit under the Credit
Agreement shall have been satisfied or waived.
(k) Prior to the Closing Date, the Company shall have furnished to
the Underwriters such further information, certificates and documents as
you, on behalf of the Underwriters, may reasonably request.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the issuance of the Additional Shares.
6. Covenants of the Company. In further consideration of the
-------------------------
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, four signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish to you in New York City, without
charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in
Section 6(c) below, as many copies of the Prospectus and any supplements
and amendments thereto or to the Registration Statement as you may
reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which you reasonably object in writing within five business days after
receipt of a copy of such proposed amendment or supplement, and to file
with the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to
such Rule.
(c) If, during such period after the first date
<PAGE>
25
of the public offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Shares may have been sold by you
on behalf of the Underwriters and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earning statement covering the twelve-
month period ending January 31, 1999, that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel and the Company's accountants in connection with the
registration and delivery of the Shares under the Securities Act and all
other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing,
<PAGE>
26
including all printing costs associated therewith, and the mailing and
delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to
the transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or Legal Investment memorandum in connection with
the offer and sale of the Shares under state securities laws and all
expenses in connection with the qualification of the Shares for offer and
sale under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky or Legal Investment memorandum, (iv) all
filing fees and the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and qualification of
the offering of the Shares by the National Association of Securities
Dealers, Inc. (the "NASD"), (v) all fees and expenses in connection with
the preparation and filing of the registration statement on Form 8-A
relating to the Common Stock and all costs and expenses incident to listing
the Shares on the New York Stock Exchange, (vi) the cost of printing
certificates representing the Shares, (vii) the costs and charges of any
transfer agent, registrar or depositary, (viii) the costs and expenses of
the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (ix) all other
costs and expenses incident to the performance of the obligations of the
Company hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section, Section 7 entitled "Indemnity and Contribution", and the last
paragraph of Section 9 below, the Underwriters will pay all of their costs
and
<PAGE>
27
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares by them and any advertising
expenses connected with any offers they may make.
(g) To apply the net proceeds from the sale of the Shares sold by it,
together with the net proceeds from the Notes Offering, substantially in
accordance with its statements under the caption "Use of Proceeds" in the
Prospectus.
(h) That, in connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
the effectiveness of the Registration Statement. Morgan Stanley will
notify the Company as to which Directed Shares will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such Directed Shares for such period of time.
(i) To pay all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants that it will comply with all
applicable securities and other applicable laws, rules and regulations in each
foreign jurisdiction in which the Directed Shares are offered in connection with
the Directed Share Program.
7. Indemnity and Contribution. (a) The Company agrees to indemnify
---------------------------
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any
<PAGE>
28
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except (i) insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein and (ii) that
such indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 6(a) hereof.
(b) The Company agrees to indemnify and hold harmless Morgan Stanley
and each person, if any, who controls Morgan Stanley within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Ace
("Morgan Stanley Entities"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in the prospectus wrapped material
prepared by or with the consent of the Company for distribution in foreign
jurisdictions in connection with the Directed Share Program attached to the
Prospectus or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein, when considered in conjunction with the
Prospectus or any applicable preliminary prospectus, not misleading; (ii) caused
by the failure of any Participant to pay for and accept delivery of
<PAGE>
29
the Shares which, immediately following the effectiveness of the Registration
Statement, were subject to a properly confirmed agreement to purchase; or (iii)
related to, arising out of, or in connection with the Directed Shares Program,
provided that the Company shall not be responsible under this subparagraph (iii)
for any losses, claim, damages or liabilities (or expenses relating thereto)
that are finally judicially determined to have resulted from the bad faith or
gross negligence of Morgan Stanley Entities.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendments or supplements thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a), 7(b) or 7(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The indemnifying party shall not, in respect
of the legal expenses of any indemnified party in connection
<PAGE>
30
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Morgan Stanley & Co. Incorporated, in the case of parties
indemnified pursuant to Section 7(a) or 7(b), and by the Company, in the case of
parties indemnified pursuant to Section 7(c). Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to Section 7(b)
hereof in respect of such proceeding, then in addition to such separate firm for
the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for Morgan Stanley for the defense of any losses, claims,
damages and liabilities arising out of the Directed Share Program, and all
persons, if any, who control Morgan Stanley within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
<PAGE>
31
(e) To the extent the indemnification provided for in Section 7(a),
7(b) or 7(c) is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause 7(e)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
7(e)(i) above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate Public
Offering Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(f) The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does
<PAGE>
32
not take account of the equitable considerations referred to in Section 7(e).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 7 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
8. Termination. This Agreement shall be subject to termination by
------------
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the NASD, the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
<PAGE>
33
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses
8(a)(i) through 8(a)(iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
---------------------------------------
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase Shares
that it has or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule I bears to the
aggregate number of Firm Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
--------
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 9 by an amount in excess of one-
ninth of such number of Shares without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you and the Company for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the
<PAGE>
34
Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
-------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or sent by fax (312-706-4700) and confirmed to them in care of Morgan
Stanley & Co. Incorporated, 1585 Broadway, New York, New York 10036, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or sent
by fax (765-778-6424) and confirmed to it at 2902 Enterprise Drive, Anderson,
Indiana 46013, Attention: Chief Financial Officer, with a copy mailed, delivered
or sent by fax (215-994-2222) and confirmed to Christopher G. Karras, Esq.,
Dechert Price & Rhoads, 4000 Bell Atlantic Tower, 1717 Arch Street,
Philadelphia, Pennsylvania 19103.
<PAGE>
35
12. Business Day. The term "business day" shall mean any day other
-------------
than a Saturday, a Sunday or a federal legal holiday.
13. Applicable Law. This Agreement shall be governed by and
---------------
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
---------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
Very truly yours,
DELCO REMY INTERNATIONAL, INC.
By:___________________________
Name:
Title:
Accepted as of the date hereof,
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Smith Barney Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: MORGAN STANLEY & CO. INCORPORATED
By:__________________________
Name:
Title:
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Underwriter Number of
Firm Shares
To Be Purchased
<S> <C>
Morgan Stanley & Co. Incorporated 816,668
Credit Suisse First Boston Corporation 816,666
Smith Barney Inc. 816,666
William Blair & Company, L.L.C. 50,000
CIBC Oppenheimer Corp. 100,000
Donaldson, Lufkin & Jenrette Securities
Corporation 100,000
A.G. Edwards & Sons, Inc. 100,000
Freimark Blair & Company, Inc. 50,000
Furman Selz LLC 100,000
Gabelli & Company, Inc. 50,000
Goldman, Sachs & Co. 100,000
Janney Montgomery Scott Inc. 50,000
Jefferies & Company, Inc. 50,000
Edward D. Jones & Co., L.P. 50,000
Legg Mason Wood Walker, Incorporated 50,000
Lehman Brothers Inc. 100,000
McDonald & Company Securities, Inc. 50,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 100,000
Mesirow Financial, Inc. 50,000
J.P. Morgan Securities Inc. 100,000
NatCity Investments, Inc. 50,000
Prudential Securities Incorporated 100,000
Ragen MacKenzie Incorporated 50,000
Schroder & Co. Inc. 100,000
---------
Total ................. 4,000,000
=========
</TABLE>
<PAGE>
[FORM OF LOCK-UP LETTER]
[ ], 1997
Morgan Stanley & Co. Incorporated
Credit Suisse First Boston Corporation
Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated
("MORGAN STANLEY") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Delco Remy International, Inc., a Delaware
corporation (the "COMPANY"), providing for the public offering (the "PUBLIC
OFFERING") by the several Underwriters, including Morgan Stanley (the
"UNDERWRITERS"), of 4,000,000 shares (the "SHARES") of the Class A Common Stock
($.01 par value) of the Company (the "CLASS A COMMON STOCK"). The Class A
Common Stock is, together with the Class B Common Stock ($.01 par value) of the
Company (the "CLASS B COMMON STOCK"), referred to herein as the "CAPITAL STOCK".
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Morgan
Stanley on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 180 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Capital
Stock or any securities convertible into or exercisable or exchangeable for
Capital Stock or (2) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Capital Stock, whether any such transaction described in
<PAGE>
2
clause (1) or (2) above is to be settled by delivery of Capital Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not apply
to (a) the sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement, (b) the exercise of an option or warrant or the conversion of a
security outstanding on the date of the Underwriting Agreement of which the
Underwriters have been advised in writing, provided that only Capital Stock is
received by the holder of such option, warrant or security upon such exercise or
conversion, (c) any options granted or shares of Capital Stock issued pursuant
to benefit plans of the Company as in effect on the date of the Underwriting
Agreement, (d) transactions relating to shares of Capital Stock or other
securities acquired in open market transactions after the completion of the
Public Offering, (e) any purchases from any person by the Company of shares of
Capital Stock pursuant to the Securities Purchase and Holders Agreement dated
July 29, 1994, by and among the Company and the shareholders set forth therein
or (f) the conversion, in accordance with the terms thereof, of shares of Class
A Common Stock into shares of Class B Common Stock, or of shares of Class B
Common Stock into shares of Class A Common Stock. In addition, the undersigned
agrees that, without the prior written consent of Morgan Stanley on behalf of
the Underwriters, it will not, during the period commencing on the date hereof
and ending 180 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Capital
Stock or any security convertible into or exercisable or exchangeable for
Capital Stock, that results in the filing of a registration statement for such
shares or securities with the Securities and Exchange Commission prior to the
end of such 180-day period.
It is understood that if the Underwriting Agreement shall terminate or
be terminated prior to the payment for and delivery of the Shares, the
undersigned will automatically, and without further action, be released from its
obligations under this letter agreement.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
<PAGE>
3
_________________________
(Name)
_________________________
(Address)
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
condensed consolidated balance sheets and consolidated income statements for
Delco Remy International, Inc. and subsidiaries and is qualified in its entirety
by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUL-31-1998
<PERIOD-END> JAN-31-1998
<CASH> 4,400
<SECURITIES> 0
<RECEIVABLES> 129,313
<ALLOWANCES> 2,992
<INVENTORY> 195,493
<CURRENT-ASSETS> 362,486
<PP&E> 177,014
<DEPRECIATION> 33,810
<TOTAL-ASSETS> 667,503
<CURRENT-LIABILITIES> 179,608
<BONDS> 355,706
0
0
<COMMON> 244
<OTHER-SE> 92,356
<TOTAL-LIABILITY-AND-EQUITY> 667,503
<SALES> 402,279
<TOTAL-REVENUES> 402,279
<CGS> 324,938
<TOTAL-COSTS> 324,938
<OTHER-EXPENSES> 42,166
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 20,650
<INCOME-PRETAX> 14,525
<INCOME-TAX> 5,695
<INCOME-CONTINUING> 5,525
<DISCONTINUED> 645
<EXTRAORDINARY> 1,021
<CHANGES> 0
<NET-INCOME> 3,722
<EPS-PRIMARY> 0.22
<EPS-DILUTED> 0.19
</TABLE>
