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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1998
COMMISSION FILE NUMBER 333-26729
KEY PLASTICS L.L.C.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MICHIGAN 35-1997449
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER IDENTIFICATION NO.)
OF INCORPORATION OR ORGANIZATION)
21333 HAGGERTY ROAD SUITE 200
NOVI, MICHIGAN
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
48375
(ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (248) 449-6100
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: NONE
Indicate by check mark 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, and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of the registrant's voting stock held by
non-affiliates: Not Applicable. The Company is privately held.
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ITEM 1. BUSINESS
THE COMPANY - BACKGROUND
Key Plastics L.L.C., together with its subsidiaries (collectively, the
"Company" or "Key"), provides the global automotive industry with comprehensive
plastics manufacturing capabilities, including design and engineering,
high-precision injection molding, automated manufacturing and assembly, class A
surface plastic painting and material and product testing. The Company operates
from its world headquarters and technical center, 16 manufacturing and three
paint facilities in North America and 13 facilities in Europe with painting
and manufacturing capabilities. The Company supplies highly engineered plastic
components and assemblies to automotive original equipment manufacturers and
Tier I suppliers around the world. The Company believes it is the largest
independent automotive supplier of plastic door handle assemblies, decorative
bezels and pressurized bottles in North America. After the acquisition of
Foggini, discussed below, the Company presently makes or is capable of
making every interior trim component in the under 700 ton press range.
Key Plastics, Inc. was formed in January 1986 to acquire the plastics
manufacturing operations of Key International Manufacturing, Inc., which had
been involved in plastics manufacturing for over 20 years. On February 9, 1998
Key Plastics, Inc. contributed substantially all of its assets and liabilities
to Key Plastics Technology, L.L.C. ("Technology"), a wholly owned subsidiary
(the "Restructuring"). Subsequently, Technology changed its name to Key Plastics
L.L.C. and Key Plastics, Inc. changed its name to Key Plastics Holdings, Inc.
("Holdings"). Pursuant to the Restructuring, the Company became the primary
obligor under the Credit Agreement dated March 24, 1997 by and among the Company
(as defined therein), the lenders party thereto from time to time and NBD Bank,
as agent for such lenders, as amended (the "Senior Credit Agreement"); the 14%
Senior Notes due 1999 (the "Senior Notes") issued under the Indenture, dated
November 17, 1992, by and between the Company and Society National Bank (now
Mellon Bank), as amended; and the 10 1/4% Senior Subordinated Notes due 2007
(the "Senior Subordinated Notes") issued under the Indenture dated March 24,
1997 by and between the Company and Marine Midland Bank, as Trustee (the
"Indenture"). Also, on February 9, 1998, a third party investor purchased a 25%
equity interest in the Company (the "Investment").
The Company is privately owned by Holdings and a third party investor.
The Company has elected to be taxed as a limited liability company. The Company
has made, and intends to continue to make, distributions to its members to pay
their income tax obligations as a result of the Company's pass through status.
RECENT DEVELOPMENTS
On March 29, 1999 the Company, through its subsidiary, Foggini-Key
Europe, S.a.r.l., ("Foggini-Key") acquired the Foggini group of companies
("Foggini"), headquartered in Turin, Italy. Foggini is a manufacturer and
assembler of plastic injection molded components for automotive OEMs and Tier 1
suppliers in Western Europe. The acquisition of Foggini adds nine manufacturing
facilities spread throughout Italy, France, Switzerland and the Czech Republic.
Foggini has a product offering of interior trim components and exterior parts
that compliments the existing Key business. For 1998 Foggini expects to report
sales of approximately $130 million.
On March 26, 1999, the Company refinanced a portion of its existing
term loans and all of its revolving debt under the Senior Credit Agreement dated
March 24, 1997 and incurred new debt through amendment to, and restatement of
the Senior Credit Agreement (the "New Senior Credit Facility"). The new debt was
principally used to fund the Foggini acquisition consummated on March 29, 1999.
The New Senior Credit Facility includes two amortizing term loans totaling $180
million and a $120 million revolving credit facility. Final maturity for the
amortizing term loans occurs in 2005 and 2006. The maturity for the revolving
credit facility occurs in 2006.
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PRODUCTS
The Company is a global designer and manufacturer of highly engineered,
value-added plastics components and assemblies for automobiles, sport utility
vehicles, light trucks and minivans. The Company considers itself to be the
largest independent supplier of plastic door handle assemblies, radio bezels and
pressurized bottles. The Company is also a major supplier of speaker grilles,
air louvers, electrical connector covers and interior trim components. These
components are typically more difficult for a customer to produce in-house or
for a competitor to replicate due to the substantial investment required in
specialized engineering, design and manufacturing capabilities. Management
believes such products have strong worldwide growth potential and high margin
opportunity.
The Company offers comprehensive manufacturing capabilities, including
design and engineering, high-precision injection molding, automated
manufacturing and assembly, plastics painting and material and product testing.
The Company also has extensive tool making capabilities and designs and builds
approximately one-third of the tooling used in the manufacture of its products.
INTERNATIONAL OPERATIONS
The Company has acquired strategic positions in Europe in order to
serve its customers on a global basis. In 1998 the UK, Portugal and France
accounted for approximately 25% of the Company's net sales. This expansion
resulted in the addition of new customers such as Rover, Renault and Sommer
Allibert. On March 29, 1999 the Company, through Foggini-Key acquired Foggini, a
manufacturer and assembler of plastic injection molded components for automotive
OEMs and Tier 1 suppliers in Western Europe. The acquisition of Foggini adds
nine manufacturing facilities spread throughout Italy, France, Switzerland and
the Czech Republic. Foggini has a product offering of interior trim components
and exterior parts that compliments Key's existing business. Foggini expands the
Company's customer base to include Fiat, Volkswagen and several other important
Western OEMs and Tier 1 suppliers. The Foggini acquisition adds significantly to
the base of sales to Renault and the PSA Group. For 1998 Foggini expects to
report sales of approximately $130 million.
The Company prices its products sold throughout Europe and Canada in
the currency of the country shipping the products and, in the United States and
Mexico, in United States dollars. To the extent that prices are in the currency
of the country in which the products are sold, the prices of such products in
dollars will vary as the value of the dollar fluctuates against such currencies.
There can be no assurance that there will not be increases in the value of the
dollar against such currencies that will reduce the dollar return to the Company
on the sale of its products in such countries.
The Company is presently engaged in limited currency hedging of specific foreign
currency transactions, primarily in France and the UK.
MANUFACTURING OPERATIONS
Product Manufacturing. The Company's core manufacturing technologies
are small press injection molding, automated assembly, pad printing, painting,
laser etching, sonic welding and hot plate welding. As part of its strategy to
supply highly engineered value-added components, the Company has substantially
expanded the use of automation and robotics in its assembly operations. These
capabilities enhance quality, reliability and reduce labor costs.
Product Processes. The Company has organized its production processes
to minimize the number of manufacturing functions and the frequency of material
handling. In addition, the Company utilizes, where practical, a flexible
manufacturing process which uses cellular manufacturing to allow a continuous
flow of parts with minimal set-up time. Such cellular manufacturing utilizes
machine vision, robotics and a palletized approach and can be easily converted
from one product application to the other with re-programming and new pallets at
a cost lower than traditional work cell approach.
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Paint Operations. The Company believes its broad base of Class A paint
application capabilities positions it well for supplying the domestic and
foreign exterior trim market. The Company is able to provide both high-bake,
high solids painting, which is traditionally preferred by domestic OEMs, and
low-bake, two component painting, which is preferred by foreign OEMs. The
Company has also developed paint application technology utilizing innovative
robotic applications, which has enabled the Company to reduce costs by improving
paint transfer efficiency.
Quality. The Company has a strong quality assurance program and has
made substantial investments in technology to monitor and improve quality.
Included among these investments are CAD/CAM equipment, statistical process
control systems, failure mode and effect systems, process-controlled molding
machines and automated assembly equipment. In addition, the Company has material
and product test laboratories that monitor product reliability and are
accredited by its major OEM customers. The Company's engineering functions are
ISO 9001 certified. All of the Company's eligible manufacturing facilities are
QS 9000 registered. One new facility is working through the required six month
start up period.
THE OEM SUPPLIER INDUSTRY
The Company competes in the global automotive original equipment
manufacturer supplier industry. The OEM supplier industry is cyclical and, in
large part, dependent upon the overall strength of consumer demand for light
trucks and passenger cars. The automotive industry is currently characterized by
a number of factors which affect the Company. These factors include (i) OEMs'
demand for suppliers with efficient, comprehensive research and development,
design and manufacturing capabilities, (ii) consolidation of suppliers as a
result of increasing OEM demands, and (iii) the globalization of the OEM
supplier base. As a result of these factors, suppliers must (i) continually
demonstrate the ability to satisfy, in cost efficient ways, the OEMs' design and
manufacturing demands and (ii) establish international positions which can
effectively supply and service the OEMs.
Management believes the Company has achieved a leadership position and
is well positioned to benefit from emerging trends in global automotive markets
as a result of several key competitive strengths. These competitive strengths
include: (i) demonstrated technological expertise and innovation in developing
highly engineered systems and components; (ii) strong relationships with major
OEMs; (iii) an emphasis on quality management; (iv) the ability to supply its
customers globally; and (v) state of the art equipment and facilities.
RAW MATERIALS
The principal raw materials used by the Company are engineered plastic
resins such as nylon, polypropylene and ABS, all of which are available from
several suppliers. The Company has no reason to believe that there will not be
an ample supply of its raw materials for the reasonably foreseeable future, but
the Company cannot make any prediction as to the future price of such raw
materials. The Company is generally not able to pass on to its customers any
increase in raw material costs. As the Company has grown, its increased
purchasing volume, in many cases, has enabled it to hold or reduce raw material
costs. As a result, the Company has not experienced a significant increase in
the prices of its raw materials in recent years.
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CUSTOMERS
The Company's direct sales to its principal customers, Ford Automotive
Operations, including its subsidiary Visteon ("Ford"), General Motors
Corporation ("GM"), and DaimlerChrysler Corporation ("Chrysler") accounted for
approximately 37%, 14% and 9%, respectively, of the Company's consolidated net
sales in fiscal year 1998. If sales to those OEMs' Tier I suppliers are
included, the Company's sales to Ford, GM and Chrysler accounted for
approximately 52%, 16% and 14%, respectively, of the Company's consolidated net
sales in fiscal year 1998. The Company's business is dependent upon consumer
demand for the specific models and product lines that incorporate the Company's
parts. The Company's arrangements with its OEMs are typically in the form of
purchase orders that may be canceled by the OEMs. However, the Company believes
cancellation of purchase orders is rare, due, in part, to the OEM production
interruption likely to be caused by changing suppliers. The loss of any of these
customers could adversely affect the Company's future revenues.
COMPETITION
The Company's business is highly competitive. A large number of actual
and potential competitors exist, including the internal component operations of
the OEMs as well as independent suppliers. Some of the Company's competitors
include Donnelly Corporation, ADAC Corporation, Summit Plastics, LDM
Technologies, Inc., Fawn Industries, Inc., Lacks Industries, Inc., Geiger
Technik., Seigal Roberts, Ventura Group, MGI Coutier, Mecaplast and
Manducher. None of these competitors competes with the Company along all
product lines. The Company competes on the basis of quality, cost, timely
delivery, customer service and, increasingly, on the basis of design and
engineering capability, painting capability, new product innovation and product
testing capability.
The Company's business is increasingly competitive due to the
consolidation of the supply base resulting from changing OEM policies. The
Company principally competes for new business both at the beginning of
development of new models and upon the redesign of existing models by its major
customers. New model development generally begins two to four years prior to the
marketing of such models to the public. Due to the large investment by OEMs in
tooling and the long lead time required to commence production, customers
generally do not change suppliers once a part is put into production.
EMPLOYEES
At December 31, 1998, the Company employed approximately 5,000 persons
in North America and Europe. The Company believes that relations with its
employees are good. Hourly employees at the Company's Plymouth, Michigan
facility (approximately 9% of all employees) and its two U.K. plants
(approximately 13% of all employees) are the only employees represented by
collective bargaining units. Workers at the plant in Belleme, France are
represented by the Federation of the Plastics Industry. The Plymouth employees
are represented by Local 7639 International Union of United Paper Workers
pursuant to a collective bargaining agreement, which expires on December 7,
2000. The workforce at Key's facilities in the United Kingdom are represented by
two unions: Amalgamated Electrical and Engineering Union ("AEEU") and
Manufacturing, Scientific and Finance Union ("MSF"). Both AEEU and MSF follow
the traditional negotiation patterns seen in Great Britain by renegotiating
terms and conditions on an annual basis. Wage negotiations in France occur
annually on a nationwide basis, with little local control.
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ENVIRONMENTAL MATTERS
The Company and its operations are subject to comprehensive and
frequently changing federal, state and local environmental and occupational
health and safety laws and regulations, including laws and regulations governing
emissions of air pollutants, discharges of waste and storm water, and the
disposal of hazardous wastes. The Company is also subject to liability for the
investigation and remediation of environmental contamination (including
contamination caused by other parties) at the properties it owns or operates and
at other properties where the Company or predecessors have arranged for the
disposal of hazardous substances. As a result, the Company is involved, from
time to time, in administrative and judicial proceedings and inquiries relating
to environmental matters. The Ohio Environmental Protection Agency has raised
questions about the air permit status of the Company's facility in Montpelier,
Ohio. The Company expects to resolve these questions without making significant
financial expenditures. The Company does not believe there are any other pending
investigations at the Company's plants or sites relating to environmental
matters.
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ITEM 2. PROPERTIES
Most of the Company's facilities are owned by the Company, with the
exception of the Company's world headquarters in Novi, Michigan and
manufacturing facilities in Grand Rapids, Michigan, Knoxville, Tennessee,
Coventry, U.K., Chihuahua, Mexico (Plant 1 only), all facilities in Italy,
Switzerland and the Czech Republic, which are leased. Management believes that
its facilities are adequate for its present needs. The Company conducts molding,
painting and assembly operations in approximately 2.0 million square feet of
manufacturing floor space in 32 operating locations in the following
communities.
<TABLE>
<CAPTION>
Approximate
Location Square Footage Description of Use
-------- -------------- ------------------
<S> <C> <C>
Novi, Michigan................................... 33,000 World Headquarters and Technical Center
Plymouth, Michigan............................... 168,000 Manufacturing
Felton, Pennsylvania (Plant 1)................... 53,000 Manufacturing
Felton, Pennsylvania (Plant 2)................... 39,000 Manufacturing
Hamilton, Indiana................................ 54,000 Manufacturing
York, Pennsylvania (Plant 1)..................... 22,000 Manufacturing
York, Pennsylvania (Plant 2)..................... 40,000 Manufacturing
Montpelier, Ohio................................. 79,000 Painting
Hartford City, Indiana........................... 50,000 Painting and Assembly
Chihuahua, Mexico (Plant 1)...................... 65,000 Manufacturing
Grand Rapids, Michigan........................... 56,000 Manufacturing
South Bend, Indiana.............................. 80,000 Manufacturing
Coventry, UK..................................... 100,000 Manufacturing and Painting
Leiria, Portugal................................. 84,000 Manufacturing and Painting
Port Huron, Michigan............................. 52,000 Manufacturing
Chesterfield, Michigan........................... 44,000 Assembly and limited painting
Chihuahua, Mexico (Plant 2)...................... 55,000 Manufacturing
Ashley, Indiana.................................. 21,000 Manufacturing
Belleme, France.................................. 90,000 Manufacturing
Howell, Michigan................................. 116,000 Painting and Assembly
Markham, Canada.................................. 41,000 Manufacturing
Knoxville, Tennessee............................. 42,000 Manufacturing
Tamworth, UK..................................... 70,000 Manufacturing
Monterrey, Mexico................................ 50,000 Manufacturing
Rome, Italy...................................... 66,000 Manufacturing
Turin, Italy (Plant 1)........................... 120,000 Manufacturing
Turin, Italy (Plant 2)........................... 36,000 Manufacturing
Turin, Italy (Plant 3)........................... 10,000 Manufacturing
Novazzano, Switzerland (Plant 1)................. 22,000 Manufacturing
Novazzano, Switzerland (Plant 2)................. 22,000 Manufacturing
Bohema, Czech Republic........................... 16,000 Manufacturing
Rochefort, France................................ 105,000 Manufacturing
Voujeaucourt, France............................. 101,000 Manufacturing
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
The Company is, from time to time, involved in routine litigation
arising out of the ordinary course of its business. The Company believes
currently pending or threatened litigation will not have a material adverse
effect on the consolidated financial condition or results of operations of the
Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not Applicable.
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ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS.
The Company is owned by Holdings and Paribas Principal Partners
("Paribas"). Holdings is a privately owned holding company whose members are
primarily employees or directors of the Company. Holdings owns a 75% interest in
the Company and Paribas owns the remaining 25% interest. There is no established
public trading market for the equity of the Company.
Key is organized as a limited liability company. The Company is not subject to
federal income taxes. The Company's policy is to make distributions to its
equity holders for income taxes due on their share of the Company's taxable
income. In addition, certain covenants of the Senior Note Indenture, New Senior
Credit Facility and Restated Operating Agreement restrict the Company's ability
to pay cash dividends.
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ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected historical consolidated
financial data of Key for the five year period ended December 31, 1998. The
selected consolidated financial data for such fiscal years were derived from the
audited consolidated financial statements of the Company. The audited
consolidated financial statements of the Company for each of the three years in
the period ended December 31, 1998 are included elsewhere in this Annual Report
on Form 10-K together with the report thereon of PricewaterhouseCoopers LLP,
independent accountants. The following table should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and the historical consolidated financial statements of the Company
presented elsewhere in this Annual Report on Form 10-K.
<TABLE>
<CAPTION>
Year Ended December 31,
($ in thousands)
----------------------------------------------------------------------------------
INCOME STATEMENT DATA: 1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net Sales $371,533 $306,001 $217,087 $179,251 $194,112
Gross Profit 67,647 66,319 41,785 37,544 36,060
Selling, general and 35,613 33,664 18,866 15,531 13,955
administrative expenses
Amortization of goodwill 2,596 1,576 114 -- --
Interest expense 29,148 22,112 15,754 14,861 12,752
Net income/(loss) before (457) 8,845 7,051 7,079 8,569
extraordinary item, minority
interest and foreign income tax
Extraordinary item-loss on early (522) (5,192) -- -- --
retirement of debt
Net income/(loss) ($3,172) $1,679 $7,051 $7,080 $8,569
BALANCE SHEET DATA:
Total assets $388,489 $282,904 $193,204 $126,090 $121,853
Total debt 301,038 219,288 144,283 119,640 111,060
Long-term debt 280,372 216,575 82,521 102,467 103,522
Total members' equity (deficit) (8,459) (12,261) (15,563) (20,875) (23,427)
OTHER FINANCIAL DATA:
EBITDA (a) $ 54,299 $ 47,497 $ 32,094 $ 28,984 $ 27,588
</TABLE>
(a) EBITDA is defined as income (loss) from continuing operation before
the effect of extraordinary items, minority interest and non-operating
income or expense, plus the following: interest, income taxes,
depreciation and amortization. EBITDA is presented because it is a
widely accepted financial indicator of a company's ability to incur
and service debt. EBITDA is not and should not be used as an
indicator or alternative to net income (loss) or cash flow as
reflected in the Consolidated Financial Statements of the Company, is
not intended to represent funds available for debt service, dividends,
reinvestment or other discretionary uses, is not a measure of
financial performance under generally accepted accounting principles,
should not be considered in isolation or as a substitute for measures
of performance prepared in accordance with generally accepted
accounting principles and may not be comparable to other
similarly-titled measures of other companies. A reconciliation of net
income (loss) to EBITDA is as follows:
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Reconciliation of Net Income (loss) to EBITDA
Year Ended December 31,
($ in thousands)
<TABLE>
<CAPTION>
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net Income (loss) $(3,172) $ 1,679 $ 7,051 $ 7,080 $ 8,569
Add (Deduct) the following:
Extraordinary item 522 5,192 -- -- --
Minority interest & other 1,322 1,722 -- -- --
Foreign income taxes 1,618 374
Interest expense 28,175 21,679 15,211 14,292 12,752
Depreciation & amortization 25,834 16,851 9,832 7,612 6,267
------- ------- ------- ------- -------
EBITDA $54,299 $47,497 $32,094 $28,984 $27,588
</TABLE>
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ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following management's discussion and analysis of financial
condition and results of operations should be read in conjunction with the
Company's Consolidated Financial Statements (including the notes thereto)
appearing elsewhere in this Annual Report on Form 10-K
RESULTS OF OPERATIONS: 1998 FISCAL YEAR COMPARED TO 1997 FISCAL YEAR
Net sales of the fiscal year ended December 31, 1998 (the "1998 Fiscal
Year") increased by $65.5 million, or 21.4%, over net sales for the fiscal year
ended December 31, 1997 (the "1997 Fiscal Year"). Of the increase, approximately
$51 million resulted from acquisitions completed during the last 24 months. The
remainder of the increase, approximately $14.5 million, resulted primarily from
additional programs and higher tool sales. The Company estimates $6.5 million of
sales were lost due to the labor related strike at General Motors North American
operations during portions of the second and third quarters of the 1998 Fiscal
Year. Sales in the 1998 Fiscal Year were also adversely impacted by a price
concession granted to a major customer.
Gross profit for the 1998 Fiscal Year increased by $1.3 million to
$67.6 million. Gross profit as a percentage of sales decreased year over year to
18.2% of sales from 21.7% in the 1997 Fiscal Year. The decrease in the
percentage of gross profit as a percent of sales is attributable to several
factors, including the performance of certain of the Company's recent
acquisitions (1.5%), the price concession discussed above (1.1%) and higher
tooling sales (.5%).
Selling, general and administrative expenses ("SG&A") for the 1998
Fiscal Year increased by $1.9 million from the 1997 Fiscal Year. As a percentage
of sales, SG&A decreased to 9.6% of sales from 11.0% of sales in the 1997 Fiscal
Year. The year over year change in the percentage of SG&A as a percentage of
sales is attributable to lower SG&A requirements for the Company's 1998
acquisitions.
The minority interest for 1998 and 1997 relates to the portion net
income of a partially owned subsidiary in Portugal (Materias Plasticas, S.A.,
see further discussion in Note 9 of the Notes to Financial Statements )
attributable to the minority members. The minority interest for 1998 represents
the period from January 1 through March 31, 1998. The minority members' interest
was acquired by the Company on March 31, 1998.
As discussed under the heading of "Liquidity and Capital Resources",
the Company refinanced its debt during the first quarter of 1997. As part of
that refinancing, $40.1 million of the Company's Senior Notes were tendered and
retired. The premium related to the repurchase of the Senior Notes, the related
fees and the pro rata portion of the unamortized debt issuance costs for the
Senior Notes were recorded as an extraordinary item of approximately $5.2
million in the 1997 income statement. A further $10 million of the Senior Notes
were purchased and retired during 1998. The premium paid to acquire the $10
million of Senior Notes, approximately $0.5 million, was recorded as an
extraordinary item in 1998.
Interest expense (which excludes amortization of debt issue costs)
increased from $21.7 million in the 1997 Fiscal Year to $28.2 million in the
1998 Fiscal Year. The increase is the result of higher average debt, offset in
part by lower average interest rates. Average debt was higher primarily as a
result of borrowings related to acquisitions and capital asset purchases.
Interest rates are lower as a result of the Company's refinancing in March 1997
and the amendment to the Senior Credit Agreement in March 1998. The refinancing
resulted in the retirement of $40.1 million of Senior Notes using debt at
current market rates. The amendment to the Senior Credit Agreement provided for
local currency borrowings in France and the United Kingdom which replaced US
dollar debt at lower interest rates.
Net income for the 1998 Fiscal Year decreased from the 1997 Fiscal Year
as a result of the foregoing.
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RESULTS OF OPERATIONS: 1997 FISCAL YEAR COMPARED TO 1996 FISCAL YEAR
Net sales of the 1997 Fiscal Year increased by $88.9 million, or 40.9%,
over net sales for the fiscal year ended December 31, 1996 (the "1996 Fiscal
Year"). Of the increase, approximately $34 million resulted from acquisitions
completed during 1997. Sales increased a further $31 million over the 1996
Fiscal Year as a result of the acquisitions completed in 1996. The remainder of
the increase, approximately $24 million, resulted primarily from additional
programs.
Gross profit for the 1997 Fiscal Year increased by $24.5 million,
primarily as a result of the increased sales discussed above. The gross profit
margin increased by 2.5%, from 19.2% in the 1996 Fiscal Year to 21.7% in the
1997 Fiscal Year. The increase was primarily attributable to operating
efficiencies within the Company's existing businesses and to slightly higher
overall margins experienced in the businesses acquired during 1996 and 1997.
SG&A for the 1997 Fiscal Year increased by $14.8 million from $18.9 in
the 1996 Fiscal Year. Approximately $6 million of the increase represents the
full year effect of 1996 acquisitions. The Company's European operations incur
SG&A costs at several times that of the North American operations. This was
primarily attributable to two factors. First, the businesses acquired in Europe
tend to be separate, self sustained enterprises with individual administrative
and engineering staffs. Second, the Company believes that SG&A costs in the
areas of Europe where it has operations are generally increased by the economic
and regulatory environments of those countries, and will tend to be higher than
the Company's historical base of North American operations.
The minority interest for 1997 relates to the portion of net income of
a partially owned subsidiary in Portugal attributable to the minority members.
As discussed more fully under the heading of Liquidity and Capital
Resources, the Company refinanced its debt during the first quarter of 1997. As
part of that refinancing, $40.1 million of the Company's Senior Notes were
tendered and retired. The premium related to the repurchase of the Senior Notes,
the related fees and the pro rata portion of the unamortized debt issuance costs
for the Senior Notes were recorded as an extraordinary item of approximately
$5.2 million in the 1997 income statement.
Interest expense (excluding amortization of debt issue costs) increased
from $15.2 million in the 1996 Fiscal Year to $21.7 million in the 1997 Fiscal
Year as a result of higher average debt, offset in part by lower average
interest rates, resulting primarily from borrowings related to acquisitions and
capital asset purchases.
Net income for the 1997 Fiscal Year decreased from the 1996 Fiscal Year
as a result of the foregoing.
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LIQUIDITY AND CAPITAL RESOURCES
The Company's principal cash requirements are to meet its debt
payments, fund its capital plan (including, where necessary, acquisitions) and
meet its working capital needs. The Company anticipates its operating cash flow,
together with additional available borrowings under the New Senior Credit
Facility, will be sufficient to meet the aforementioned requirements.
Net cash provided from operations was approximately $15.7 million in
the 1998 Fiscal Year compared to $7.8 million in the 1997 Fiscal Year. The
increase in cash from operations primarily relates to working capital
improvements and increased business volume.
Net cash used in investing activities in the 1998 Fiscal Year of $105.4
million consisted of $63.8 million of capital spending, $30.3 million of which
related to acquisitions. Fiscal 1998 capital expenditures include injection
molding machines, assembly equipment and automation. The Company believes 1999
capital spending will be approximately $37 million, excluding the Foggini
acquisition. Actual capital expenditures may be greater as a result of
acquisitions or new business opportunities. The $26.3 million increase in
tooling assets includes tooling, engineering and design costs for the launch of
several significant production programs in 1998. The Company believes these
costs will be recovered over the life of the production part.
As of March 9, 1998, the Senior Credit Agreement was amended to allow
the Company to obtain additional five-and-one-half year amortizing term loans as
follows: Key Plastics L.L.C. $20 million US dollars, Key Plastics International,
S.N.C. to obtain a French franc 93.9 million and Key Plastics, U.K. to obtain a
pound sterling 6.3 million. This action provided additional borrowing capacity
which was used primarily for acquisitions. This action also provided a natural
hedge for the Company's net assets in France and the U.K. It also provided for
lower local currency borrowings than the United States dollar debt replaced by
this action.
On March 26, 1999, the Company refinanced a portion of its existing
term loans and all of its revolving debt under the Senior Credit Agreement and
incurred new debt through the New Senior Credit Facility. The new debt was
principally used to fund the cash portion of the Foggini acquisition,
consummated on March 29, 1999. The New Senior Credit Facility includes two
amortizing term loans totaling $180 million and a $120 million revolving
facility. Final maturity for the amortizing term loans occurs in 2005 and 2006.
The maturity for the revolving facility occurs in 2006.
Net cash provided by financing activities in 1998 was $86.6 million. On
February 10, 1998, a portion of the proceeds from the Investment, $7.2 million,
was accounted for as additional paid in capital and used to pay down debt. Loans
under the new Senior Credit Facility are secured by substantially all of the
assets of the Company and constitute senior debt of the Company.
At December 31, 1998, the Company had total indebtedness of $301
million, of which $125.0 million was incurred pursuant to the notes issued under
the Indenture, $154.3 million was incurred pursuant to the Company's Senior
Credit Agreement and $14 million was incurred pursuant to the notes issued under
the indenture related to the Senior Notes dated November 17, 1992, by and
between the Company and Society Bank (now known as Mellon Bank), as amended. Pro
forma availability under the revolving portion of the New Senior Credit Facility
was approximately $24 million as of December 31, 1998.
13
<PAGE> 14
YEAR 2000 COSTS
The Year 2000 problem relates to computer systems that have time and
date-sensitive programs that were designed to read years beginning with "19",
but may not properly recognize the Year 2000. If a computer system or software
application used by the Company or a third party dealing with the Company fails
because of the inability of the system or application to properly read the Year
2000, the result could have a material adverse effect on the Company.
READINESS/CONTINGENCY PLANS
For its information technology, the Company currently utilizes an IBM
AS400-based computing environment which is complimented by a series of
local-area networks (LAN) and stand alone personal computers. Substantially all
operating systems related to the AS400 and LANs have been updated to comply with
Year 2000 requirements. In addition, upgraded versions of the Company's
financial, manufacturing and other software applications, which are Year 2000
ready, are available and are now in the process of being integrated into the
Company's systems. The Company expects this integration to be complete by the
end of the second quarter of 1999. Plans are in place to replace non-compliant
personal computers during the first half of 1999. Contingency plans are also
presently under development for these systems.
The Company also has a program to determine the Year 2000 compliance
efforts of its equipment and material suppliers. The Company has sent
comprehensive questionnaires to all of its significant suppliers regarding their
Year 2000 compliance and is attempting to identify any problem areas with
respect to those suppliers. Most suppliers responding state they plan to be Year
2000 compliant by 2000. This is an ongoing program and the Company's response to
specific problems will depend upon its assessment of the risk that such problems
may cause. The Company cannot guarantee that Year 2000 problems originating with
suppliers will not occur. The Company will develop contingency plans to address
specific problems as they are identified.
The Company is also reviewing its building and utility systems for the
impact of Year 2000. Many of the systems in this area are Year 2000 ready. While
there is no reason to expect utility suppliers will not be Year 2000 compliant,
there can be no assurance that these suppliers will in fact meet the Company's
requirements. The failure of any supplier to achieve Year 2000 compliance could
cause a shutdown of one or more of the Company's plants, which could adversely
impact the Company's ability to supply products to its customers. At this time
the Company has draft contingency plans developed for these systems and final
version expected by May 1, 1999. In the case of utilities, alternative suppliers
may not be available.
The Company uses non-mainframe computers and software in production
processes throughout the world. The Company is presently evaluating the
readiness of the computer systems used in those processes. Findings to date
indicate minimal changes will be required to achieve Year 2000 readiness. There
can be no assurance that the Company will identify and correct every Year 2000
problem in the computer applications used in its production processes. The
Company does not believe contingency plans for these systems will be necessary.
RISKS
As a critical supplier to automotive OEM and tier 1 suppliers, the
Company's major exposure for Year 2000 problems is that of shutting down
production at one of its customer's factories. The costs associated with such an
occurrence could have a material adverse impact on the Company's results of
operations.
COSTS TO ADDRESS YEAR 2000 ISSUES
The Company estimates the total cost of completing any required
modifications, upgrades or replacements will not have a material adverse effect
on the Company's results of operations. This estimate is being monitored and
will be revised as additional information becomes available.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Company is exposed to a variety of market risks, including foreign
currency exchange rate fluctuations and interest rate fluctuations on its
variable borrowings.
FOREIGN CURRENCY RISK
A portion of the Company's operations consists of manufacturing and
sales activities outside of the United States. The Company manufactures and
sells products in Canada, Mexico, England, France, Portugal and, after the
acquisition of Foggini in March 1999, Italy, Switzerland and the Czech Republic.
As a result, the Company's financial results could be significantly affected by
factors such as changes in foreign currency exchange rates or weak economic
conditions in the foreign markets in which the Company distributes its products.
The functional currency for all of the Company's operations, with the exception
of Mexico, is the currency of the country selling the products. The US dollar is
the functional currency of the Company's Mexican operations. As such, the
Company's operating results are exposed to exchange rate fluctuations at its
foreign locations.
At December 31, 1998, the Company's net assets subject to foreign
currency translation risk are $7.9 million. The potential loss from a
hypothetical 10% adverse change in quoted foreign currency exchange rates would
be approximately $0.8 million. This model assumes a parallel adverse shift in
currency exchange rates. This assumption may overstate the impact of exchange
rate changes on individual assets and liabilities denominated in a foreign
currency.
At December 31, 1998, the Company held foreign exchange forward
contracts with a notional value of $28 million. The contracts are hedges for
specific foreign currency transactions as follows. Approximately $19 million is
to purchase French francs and $9 million is to purchase British pounds sterling.
The French franc hedge relates to an acquisition completed in March 1999 and the
pound sterling hedge relates to an anticipated cash flow pursuant to the
refinancing of debt under the Company's Senior Credit Agreement. Both hedges
were settled prior to March 31, 1999.
INTEREST RATE RISK
Approximately half the Company's borrowings carry variable interest
rates tied to the US prime rate or LIBOR rates, which are subject to
fluctuations beyond the control of the Company. The Company also has fixed
long-term borrowings which mitigate the impact of potential interest rate
fluctuations.
14
<PAGE> 15
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The financial statements and supplementary financial information
included in this Annual Report on Form 10-K are set forth on the Index to
Consolidated Financial Statements appearing on page F-1 of this report.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not Applicable.
15
<PAGE> 16
ITEM 10. DIRECTORS AND OFFICERS
The following are the directors and executive officers of the Company.
<TABLE>
<CAPTION>
Name Age Position with Company Current position since
- - ---- --- --------------------- ----------------------
<S> <C> <C> <C>
Joel D. Tauber 63 Director 1986
George Mars 61 Director 1986
David C. Benoit 50 Chief Executive Officer and Director 1995 (Director since 1986)
Leonard R. Griffin 47 President and Chief Operating Officer and Director 1995
Jean-Michel Coulot 45 Director 1998
Stephen Eisenstein 37 Director 1997
Christian Coumans 60 President, International Operations 1997
Douglas C. Chapple 47 Vice President, Eastern Group Operations 1996
Darrel Hampton 59 Senior Vice President, Strategic Planning 1998
Calvin A. Saur 47 Vice President, Global Technology & Product 1995
Development
Joseph A. White 45 Vice President, Chief Financial Officer 1998
Henry J. Wojtaszek 55 Vice President, Western Group Operations 1996
</TABLE>
Joel D. Tauber formed the Company with Messrs. Mars and Benoit in 1986
and has been a director and Chairman of the Board since that time. Mr. Tauber
is a manufacturing executive, business consultant and investor. Mr. Tauber is
President of Keyco Bond Fund, Inc. and serves as Chairman of the Board of
Complex Tooling & Molding, Inc., Keywell Corporation and KMGI, Inc.
George Mars formed the Company with Messrs. Tauber and Benoit in 1986.
He has been a director since that time and Co-Chairman of the Board since 1995.
Prior to his retirement, Mr. Mars served as President of the Company from 1986
to 1995.
David C. Benoit formed the Company with Messrs. Tauber and Mars and has
been a director since the Company's formation in 1986. Mr. Benoit was Executive
Vice President of the Company from 1986 to 1995, when he was appointed to his
current position of Chief Executive Officer. Mr. Benoit has 17 years experience
in the automotive industry. Mr. Benoit is also a member of the Board of
Directors for Complex Tooling & Molding, Inc.
Leonard R. Griffin, President and Chief Operating Officer and a
Director of the Company, joined Key in April 1995 and joined the Board of
Directors in February 1998. Prior to joining the Company, Mr. Griffin served for
five years as President of Woodbridge Inoac, Inc., a joint venture partnership
formed by Woodbridge Group, a Canadian plastics company and Inoac, Ltd., a
Japanese automotive parts supplier. Prior to serving as President of Woodbridge,
Mr. Griffin was General Manager of Rockwell International's Automotive Plastics
Products Operations. Mr. Griffin's business experience consists of nearly 30
years in the automotive industry.
Jean-Michel Coulot is a managing director of Paribas Principal
Investments (Paris office) specializing in leveraged buyouts and other private
equity transactions in the engineering and capital goods sector. Prior to
joining Paribas Principal Investments, Mr. Coulot was the head of European
Equity Sales for Paribas Capital Markets' London office and was a representative
at the Paribas office in Indonesia.
Stephen Eisenstein is a founding partner of Paribas Principal Partners.
Prior to founding Paribas Principal Partners, Mr. Eisentein was a Managing
Director in Banque Paribas' U.S. Merchant Banking Group.
Christian Coumans joined the Company in May of 1997 as Vice President
of International Operations. Prior to joining Key, Mr. Coumans worked for Sommer
Allibert, S.A. where he held several positions in marketing, international
development and operations.
Douglas C. Chapple has been Vice President, Eastern Group of the
Company since November 1996. Prior to joining the Company, Mr. Chapple was, from
1994 to 1996, Vice President, Manufacturing of Dott Industries, Inc., a
privately owned finisher and decorator of plastic products. Before joining Dott
Industries, Inc., Mr. Chapple was employed, for over 17 years, by General Motors
Corporation in a variety of manufacturing and engineering capacities.
Darrel Hampton joined the Company in September of 1998 as Senior Vice
President, Strategic Planning. Prior to joining Key, Mr. Hampton was Vice
President, Customer Relations and Program Management at UT Automotive, Interior
Systems, a Tier 1 supplier of automotive electrical, electronics and integrated
trim systems. Mr. Hampton has 38 years of experience in the automotive industry.
16
<PAGE> 17
Calvin A. Saur has been employed by the Company since 1986 and was
promoted to his current position, Vice President, Global Technology & Product
Development, in May of 1995. Mr. Saur has held various other positions at the
Company, including Vice President, Research & Development. He has 27 years of
experience within the automotive industry.
Joseph White joined the Company as Vice President and Chief Financial
Officer in September of 1998. Prior to joining the Company, Mr. White spent one
year with the Becker Group as Vice President of Finance and 16 years with
Aeroquip-Vickers Inc. in various positions, most recently Finance Director of
Vickers Asia-Pacific.
Henry J. Wojtaszek has been employed at the Company for 12 years in
various manufacturing capacities and has been the Vice President, Western Group
since 1996. Mr. Wojtaszek has 35 years of automotive industry experience and
is a past president of the Society of Plastics Engineers.
17
<PAGE> 18
ITEM 11. EXECUTIVE COMPENSATION
The following table sets forth certain information as to the cash
compensation earned by each of the Company's chief executive officer and four
other most highly paid current executive officers who earned more than $100,000
for services rendered to the Company during the three years ended December 31,
1998.
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
ALL OTHER
NAME AND TITLE YEAR SALARY BONUS COMPENSATION
<S> <C> <C> <C> <C>
David C. Benoit 1998 $320,000 $162,000 3,600(a)
Chief Executive Officer 1997 290,000 145,000 2,700(a)
1996 275,000 125,000 1,300(a)
Leonard R. Griffin 1998 270,000 132,000 4,800(a)
President 1997 250,000 120,900 4,600(a)
1996 240,000 106,000 700(a)
Douglas Chapple 1998 165,000 33,800 4,798(a)
Vice President, Eastern Group(b) 1997 157,500 34,800 1,900(a)
1996 25,000 -- --
Christian Coumans 1998 162,000 63,900 10,247(a)
President, International 1997 89,000 39,289 --
Operations (c)
Calvin A. Saur 1998 130,000 30,000 3,346(a)
Vice President, Product Development 1997 124,000 27,000 2,900(a)
1996 117,000 24,250 1,300(a)
</TABLE>
(a) Represents 401K match amounts for the account of the named executive. Prior
to 1997 represents profit sharing amounts paid to the named executive
officers.
(b) Joined the Company in 1996.
(c) Joined the Company in 1997.
18
<PAGE> 19
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
As of March 27,1998, Holding's and Paribas beneficially owned 75
percent and 25 percent, respectively, of the Company. The address for Holdings
is the Company's address. The address for Paribas is 787 Seventh Avenue, New
York, NY 10019.
The following table sets forth the beneficial ownership of Holding's
common stock ("Common Stock") as of March 29, 1999 owned by the directors of the
Key, the named executive officers, and all directors and officers as a group,
and by other holders known to the Company as having beneficial ownership of more
than five percent of the Common Stock.
Each person exercises sole investment and voting rights with respect to the
shares of Common Stock shown in the table below unless otherwise stated. The
address of each of the following persons is Suite 200, 21333 Haggerty Road,
Novi, Michigan 48375.
<TABLE>
<CAPTION>
NUMBER OF SHARES PERCENTAGE OF
OF COMMON STOCK OUTSTANDING
DIRECTORS, OFFICERS AND FIVE PERCENT HOLDERS OWNED BENEFICIALLY SHARES(a)
<S> <C> <C>
Joel D. Tauber Trust............................ 32,000 7.1
Joel D. Tauber ................................. 58,828 12.9%
David C. Benoit ................................ 79,833(a) 17.6%
George Mars .................................... 62,065 13.6%
Calvin A. Saur ................................. 9,228 2.0%
A.E. Stull ..................................... 6,000 1.3%
Leonard R. Griffin ............................. 6,101 1.3%
Douglas Chapple................................. 1,000 0.2%
All directors and officers as a
group (13 persons).............................. 272,803 79.7%
</TABLE>
(a) 79,833 shares are held by various David C. Benoit trusts, of which
Mr. Benoit either controls or is the Trustee and beneficiary.
Messrs. Tauber, Mars and Benoit, if they vote their shares in a
combination which exceeds 50% of the outstanding Common Stock, have the ability
to elect a majority of the Board of Directors of Holdings determine the outcome
of any other matter submitted to members for approval. There are no
arrangements, however, among any of the members of Holdings, including such
persons, with respect to the voting or disposition of the Common Stock and there
are no arrangements between the members and Holdings, except that (i) members
may not make any dispositions which could result in the termination of the
Company's S Corporation status and (ii) certain members are parties to an
Equityholders Agreement as described in Item 13.
CHANGE OF CONTROL ARRANGEMENTS - LONG TERM INCENTIVE PLAN
The Company's Long Term Incentive Plan (the "LTIP") is intended to
provide additional incentive to officers, including the executive officers named
in the Summary Compensation Table, and other eligible key employees of the
Company. The LTIP provides compensation to the employees who are included in the
LTIP and who remain employees as of the date of the occurrence of a Third Party
Transaction (as defined) of the Company. A Third Party Transaction is defined as
an initial public offering of the Company's Member Interest, a sale of all or
substantially all of the Company's Member Interest or a sale of all or
substantially all of the Company's assets. In the event that a Third Party
Transaction occurs, each eligible employee will be entitled to payment based on
a formula equal to the Total Incentive Pool (as defined) multiplied by the
result obtained by multiplying a factor assigned to each employee at the time
such employee is included in the LTIP times the employee's Cumulative Base
Compensation. Cumulative Base Compensation means the total base compensation
earned by such employee from the date of inclusion in the LTIP to the date of
occurrence of a Third Party Transaction. The factor assigned to each employee is
based upon the level of management in which the employee is included. Total
Incentive Pool means the total of all Cumulative Base Compensation of every
eligible employee. The LTIP will fund upon the occurrence of a Third Party
Transaction and terminates as of the date of such occurrence.
19
<PAGE> 20
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Consulting Arrangements. The Company has consulting arrangements with
each of Messrs. Tauber and Mars. Mr. Tauber and Mr. Mars are each paid $10,000
per month for services provided to the Company. In addition, Mr. Mars receives
compensation at a rate of $1,000 per diem, plus out-of-pocket expenses, for each
day of services provided, which services are not compensated for by the $10,000.
In 1998, Mr. Tauber and Mr. Mars earned $120,000 and $120,000, respectively.
Non-Competition and Non-Disclosure Agreements. On February 9, 1998 each
of Messrs. Tauber and Benoit entered into Non-Competition and Non-Disclosure
Agreements with the Company, pursuant to which they have agreed, during the term
of the agreements and for 6 months after termination of their affiliation with
the Company, to not compete with the Company within a 50 mile radius of any
company facility or disclose or use confidential information without the consent
of the Company, except as required in executing their duties to the Company.
Equityholders Agreement. As of February 9, 1998, the Company, Holdings,
Paribas, and each of Messrs. Tauber, Mars and Benoit entered into an
Equityholders Agreement (the "Equityholders Agreement"). Pursuant to the terms
of the Equityholders Agreement, the parties agreed to certain restrictions on
the transfer of equity interests in the Company and Holdings and granted certain
parties tag-along rights, bring-along rights, rights of first refusal and
preemtive rights related to transfers of equity interest in the Company and
Holdings and sales or transfer of all assets or equity interests in the Company.
The parties also agreed to certain matters of corporate governance of the
Company and Holdings and other matters.
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS SCHEDULES, AND REPORTS ON FORM 8-K
(a) 1. Financial Statements:
The Consolidated Financial Statements filed with this report
are listed on page F-1.
2. Financial Statement Schedules:
No financial statement schedules, for which provision is made
in the applicable accounting regulations of the Securities and
Exchange Commission, are required under the related
instructions or are immaterial and, therefore, have been
omitted.
3. Exhibits:
The exhibits filed with this Report are listed on the "Exhibit
Index" on page E-1 and are incorporated herein by reference.
(b) Reports on Form 8-K.
The Company filed no reports on Form 8-K during the fourth
quarter of 1998.
20
<PAGE> 21
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Annual Report on Form 10-K,
including, without limitation, statements containing the words "believes,"
"anticipates," "expects" and words of similar import, constitute
"forward-looking statements" within the meaning of the Private Securities Reform
Act of 1995. Such forward-looking statements involve known and unknown risks,
uncertainties and other factors that may cause the actual results, performance
or achievements of the Company, or industry results, to be materially different
from any future results, performance or achievements expressed or implied by
such forward-looking statements. Such factors include, among others, the
following: international, national and local general economic and market
conditions; demographic changes; the size and growth of the automobile market or
the plastic automobile component market; consumer demand for the particular
models or lines that use the Company's parts; the ability of the Company to
sustain, manage or forecast its growth; the size, timing and mix of purchases of
the Company's products; new product development and introduction; existing
government regulations and changes in, or the failure to comply with, government
regulations; adverse publicity; dependence upon OEMs (as defined); liability and
other claims asserted against the Company; competition; the loss of significant
customers or suppliers; fluctuations and difficulty in forecasting operating
results; changes in business strategy or development plans; business
disruptions; product recalls; warranty costs; the ability to attract and retain
qualified personnel; the ability to protect technology; the ability to realize
planned cost savings in its acquisitions; retention of earnings; and other
factors referenced in this Annual Report on Form 10-K. Certain of these factors
are discussed in more detail elsewhere in this Annual Report on Form 10-K,
including, without limitation, under the captions "Selected Consolidated
Financial Data," "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and "Business." Given these uncertainties, users of
this Annual Report on Form 10-K are cautioned not to place undue reliance on
such forward-looking statements. The Company disclaims any obligation to update
any such factors or to publicly announce the result of any revisions to any of
the forward-looking statements contained or incorporated by reference herein to
reflect future events or developments.
21
<PAGE> 22
KEY PLASTICS L.L.C. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE
Report of Independent Accountants.........................................F-2
Consolidated Balance Sheets -- December 31, 1998 and 1997.................F-3
Consolidated Statements of Operations --
Years Ended December 31, 1998, 1997, and 1996............................F-4
Consolidated Statements of Members' Deficit --
Years Ended December 31, 1998, 1997, and 1996.............................F-5
Consolidated Statements of Cash Flows --
Years Ended December 31, 1998, 1997 and 1996............................F-6
Notes to Consolidated Financial Statements................................F-7
F-1
<PAGE> 23
REPORT OF INDEPENDENT ACCOUNTANTS
To the Members of Key Plastics L.L.C.:
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of operations, members' deficit, and cash flows
present fairly, in all material respects, the financial position of Key Plastics
L.L.C. and Subsidiaries at December 31, 1998 and 1997, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1998, in conformity with generally accepted accounting principles.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ PricewaterhouseCoopers LLP
Detroit, Michigan
March 29, 1999
F-2
<PAGE> 24
KEY PLASTICS L.L.C. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
(Dollars in thousands)
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash $ 3,798 $ 6,918
Accounts receivable, net 77,795 58,186
Inventories 53,006 54,867
Prepaid expenses 6,659 3,529
-------- --------
Total current assets 141,258 123,500
Property, plant and equipment, net 171,533 122,285
Tooling assets, net 24,800 5,904
Intangibles, net 42,292 29,482
Other assets 8,606 1,733
-------- --------
Total assets $388,489 $282,904
======== ========
LIABILITIES AND MEMBERS' DEFICIT
Current liabilities:
Current maturities of long-term debt $ 20,666 $ 2,653
Accounts payable 61,043 46,389
Accrued interest 6,093 5,236
Accrued payroll 6,217 3,942
Other accrued liabilities 9,785 12,746
-------- --------
Total current liabilities 103,804 70,966
Capital lease obligation 3,692 1,514
Long-term debt 280,372 216,575
Other long-term obligations 9,080 6,110
Members' equity (deficit):
Members' contributions 19,355 12,317
Accumulated deficit (27,960) (24,740)
Accumulated other comprehensive income 146 162
-------- --------
Total members' deficit (8,459) (12,261)
-------- --------
Total liabilities and members' deficit $388,489 $282,904
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-3
<PAGE> 25
KEY PLASTICS L.L.C. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
YEARS ENDED DECEMBER 31, 1998, 1997, AND 1996
(Dollars in thousands)
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Net sales.............................................................. $371,533 $306,001 $217,086
Cost of sales.......................................................... 303,886 239,682 175,301
Selling, general and administrative expenses........................... 35,613 33,664 18,866
-------- -------- --------
32,034 32,665 22,919
Amortization of Goodwill............................................... 2,596 1,576 114
Interest expense and amortization of debt
issuance costs...................................................... 29,148 22,112 15,754
Other non-operating expense............................................ 747 122 --
-------- -------- --------
Income/(loss) before foreign income taxes,
minority interest and extraordinary item.......................... (457) 8,845 7,051
Foreign income taxes................................................... 1,618 374 --
Minority interest...................................................... 575 1,600 --
-------- -------- --------
Income/(loss) before extraordinary item............................ (2,650) 6,871 7,051
Extraordinary item - early retirement of debt.......................... (522) (5,192) --
-------- -------- --------
Net income/(loss).................................................. $ (3,172) $ 1,679 $ 7,051
========= ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-4
<PAGE> 26
KEY PLASTICS L.L.C. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF MEMBERS' DEFICIT
YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(Dollars in thousands)
<TABLE>
<CAPTION>
Additional Shareholder
Common Stock Paid-In Notes Members'
Shares Amount Capital Receivable Contribution
------ ------ ----------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Balances December 31, 1995 $ 316,834 95 $10,002
Dividend distributions, $5.63/ share
Purchase and constructive retirement of common stock (926) (216)
Net Income
Currency Translation
Comprehensive Income
------- ----- ------
Balances, December 31, 1996 315,908 95 9,786
Dividend distributions, $2.27/ share
Purchase and constructive retirement of common stock (38)
Issuance of common stock 6,000 2 353 $(355)
Shareholder contribution 2,396
Payment on shareholder notes 78
Net Income
Currency translation
Comprehensive Income
------- ---- -------- ------
Balances, December 31, 1997 321,908 97 12,497 (277)
February 9,1998 Contribution from Key Plastics Holdings, (321,908) (97) (12,497) 277 $12,317
Inc. to Key Plastics L.L.C.
Members' Contribution 7,038
Dividend Distribution
Net Loss
Currency translation
Comprehensive Income
------- ----- ------- ------- -------
Balances, December 31, 1998 $ -- -- $ -- $ -- $19,355
======= ===== ======= ======= =======
<CAPTION>
Accumulated Other
Accumulated Comprehensive
Deficit Income (Loss) Total
----------- ---------------- -----
<S> <C> <C> <C>
Balances December 31, 1995 $(30,972) $(20,875)
Dividend distributions, $5.63/ share (1,782) (1,782)
Purchase and constructive retirement of common stock (216)
Net Income 7,051 7,051
Currency Translation $ 259 259
-------
Comprehensive Income 7,310
------- ------- -------
Balances, December 31, 1996 (25,703) 259 (15,563)
Dividend distributions, $2.27/ share (716) (716)
Purchase and constructive retirement of common stock (38)
Issuance of common stock --
Shareholder contribution 2,396
Payment on shareholder notes 78
Net Income 1,679 1,679
Currency translation (97) (97)
--------
Comprehensive Income 1,582
------- ------ -------
Balances, December 31, 1997 (24,740) 162 (12,261)
February 9,1998 Contribution from Key Plastics Holdings, --
Inc. to Key Plastics L.L.C.
Members' Contribution 7,038
Dividend Distribution (48) (48)
Net Loss (3,172) (3,172)
Currency translation (16) (16)
--------
Comprehensive Income (3,188)
-------- ------ --------
Balances, December 31, 1998 $(27,960) $ 146 $(8,459)
======== ====== =======
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-5
<PAGE> 27
KEY PLASTICS L.L.C. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
YEARS ENDED DECEMBER 1998, 1997, AND 1996
(Dollars in thousands)
<TABLE>
<CAPTION>
1998 1997 1996
--------- -------- --------
Cash flows from operating activities:
<S> <C> <C> <C>
Net income/(loss) $ (3,172) $ 1,679 $ 7,051
--------- -------- --------
Adjustments to reconcile net income/(loss) to net
cash provided by operating activities:
Extraordinary item--early retirement of debt 522 5,192 --
Minority interest 575 1,600 --
Depreciation 22,265 14,842 9,175
Amortization 3,569 2,009 657
Decrease (increase) in assets:
Accounts receivable (12,148) (4,499) (13,725)
Inventories 6,691 (13,793) (13,571)
Prepaid expenses (3,130) 601 (906)
Increase (decrease) in liabilities:
Accounts payable 5,916 3,026 16,517
Other accrued liabilities (5,395) (2,812) 9,296
--------- -------- --------
Total adjustments 18,865 6,166 7,443
--------- -------- --------
Net cash provided by operating activities 15,693 7,845 14,494
--------- -------- --------
Cash flows from investing activities:
Acquisitions of property, plant and equipment, net (33,477) (23,621) (16,738)
Property, plant and equipment from acquired businesses (30,372) (14,598) (23,109)
Increase in intangible assets (16,379) (18,153) (6,093)
Tooling assets, net (26,329) (2,699) (2,009)
Decrease/(increase) in other assets 4,087 (5,369) --
Deposits for pending acquisitions (2,897) -- --
--------- -------- --------
Net cash used in investing activities (105,367) (64,440) (47,949)
Cash flows from financing activities:
Net borrowings under debt agreements 92,588 323,944 45,464
Principal payments under debt
agreements and capital leases (10,925) (246,746) (16,042)
Long-term agreements to finance acquisitions (1,677) -- 1,677
Costs to secure new financing (522) (5,865) --
Cash portion of extraordinary item -- (4,460)
Purchase of common stock -- (38) (216)
Dividend distributions (48) (716) (1,782)
Member capital contributions, net 7,038 2,396 --
Change in outstanding checks -- (5,372) 4,354
--------- -------- --------
Net cash provided by financing activities 86,554 63,513 33,455
--------- -------- --------
Net increase/(decrease) in cash (3,120) 6,918 --
Cash, beginning of year 6,918 -- --
--------- -------- --------
Cash, end of year $ 3,798 $ 6,918 $ --
========= ======== ========
Supplemental disclosure of cash flow information -
Cash paid during the year for:
Interest $ 27,321 $21,674 $13,889
Foreign income taxes $ 1,291 $ -- $ --
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
F-6
<PAGE> 28
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
On February 8, 1998, Key Plastics, Inc. contributed significantly all of its
assets and liabilities to Key Plastics L.L.C., a Michigan limited liability
company, wholly owned by Key Plastics, Inc. This reorganization of entities
under common control was accounted for at historical cost in a manner similar
to a pooling of interest. Also, Key Plastics, Inc. changed its name to Key
Plastics Holdings, Inc.
1. SIGNIFICANT ACCOUNTING POLICIES
At December 31, 1998, Key Plastics L.L.C. (the "Company") is owned by Key
Plastics Holdings, Inc. ("Holdings") and Paribas Principal Partners ("Paribas"),
collectively "Members". Holdings is a privately owned holding company whose
members are primarily employees or directors of the Company. Holdings owns a 75%
interest in the Company and Paribas owns the remaining 25% interest.
CONSOLIDATION -- The consolidated financial statements include the accounts of
Key Plastics L.L.C. and its majority-owned or controlled subsidiaries. All
significant intercompany accounts and transactions have been eliminated.
INVENTORIES -- Inventories are stated at the lower of cost or market with cost
determined using the FIFO (first-in, first-out) method.
REVENUE RECOGNITION:
Manufactured Parts -- Sales are recognized on manufactured parts when
the parts are shipped to the customer. Returns and allowances are recorded as a
reduction of sales in the period they occur.
TOOLING AND ENGINEERING COSTS:
Tooling -- Costs of tooling purchased or produced and engineering and
design related to tools or production parts for future product programs are
included in work-in-progress inventory. Income from contracts for the
manufacture of customer tooling, and related engineering and design is accounted
for under the completed-contract method of accounting, which recognizes revenue
upon completion of contracts or identifiable segments.
Costs for tools, and tooling related engineering and design in excess of
customer reimbursement are capitalized and depreciated over the related part's
production period. Generally, such tooling is owned by the customer and used by
the Company for the production of parts for the respective customer. Such
capitalized costs, net of depreciation, are included in Tooling Assets.
Engineering and design costs related to part development, in excess of customer
reimbursement, are capitalized and depreciated over the related part's
production period. Such capitalized costs, net of depreciation and are included
in other assets.
PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment are stated at cost. Depreciation is
determined using the straight-line method over the estimated useful lives of the
assets.
The general ranges of lives are as follows:
Building and improvements................................. 25 to 30 years
Machinery and equipment.................................... 3 to 15 years
Furniture and fixtures..................................... 3 to 10 years
Maintenance and repairs are expensed; renewals and betterments are
capitalized. Upon retirement, replacement, or sale, gains or losses are included
in income.
F-7
<PAGE> 29
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
INTANGIBLES:
Goodwill -- Goodwill represents the excess of amounts paid and
liabilities assumed over the fair value of identifiable tangible and intangible
assets acquired. This amount is amortized using the straight-line method over a
period of 15 years. The company evaluates the carrying value of goodwill for
potential impairment on an ongoing basis. Such evaluations compare operating
income before amortization of goodwill to the amortization recorded for the
operations to which the goodwill relates. The company also considers projected
future operating results, trends and other circumstances in making such
estimates and evaluations.
Deferred Financing Costs -- Deferred financing costs represent costs
incurred in connection with obtaining financing. These costs are amortized over
the period the loans are outstanding.
Other Intangibles -- Other intangibles are amortized using the
straight-line method over five to 10 years.
Preproduction Costs -- Preproduction costs associated with the start-up
of manufacturing activities related to new parts are included in the cost of
sales in the period incurred.
INCOME TAXES -- The Company is organized as a limited liability company. Under
the provisions of this election, the Company is not subject to federal income
taxes. The Company's policy is to pay dividends to Members for income taxes due
on their share of the Company's taxable income. Under the terms of a tax
allocation agreement, the Members are required to make additional capital
contributions to the Company equivalent to the income tax benefit resulting from
their share of the Company's taxable losses to the extent of previous
distributions. The additional capital contributions are recorded when received.
MAJOR CUSTOMERS -- The Company manufactures injection molded plastic parts for
sale primarily to domestic automobile manufacturers and their suppliers.
Substantially all of the Company's net sales and accounts receivable are with
three domestic automobile manufacturers and their suppliers. Net sales to one of
these customers accounted for approximately 37 percent of net sales in 1998,
approximately 46 percent of net sales in 1997 and approximately 58 percent of
1996 net sales. Net sales to a second one of these customers accounted for
approximately 14 percent of 1998 sales, approximately 11 percent of sales in
1997 and approximately 10 percent of 1996 net sales. The change in these
percentages reflects the increased diversity of the Company's automotive
customer base.
ESTIMATES -- The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenue and expenses during the period.
Actual results could differ from those estimates.
FOREIGN CURRENCY TRANSLATION -- Assets and liabilities of international
subsidiaries are translated at the exchange rates as of the balance sheet date.
Related translation adjustments are reported as a component of stockholders'
equity. Revenues and expenses are translated at the average rates in effect for
the period.
DERIVATIVE FINANCIAL INSTRUMENTS -- The company limits use of derivative
financial instruments to forward exchange contracts to hedge significant
foreign currency transactions. As of December 31, 1998, the notional value of
all contracts was $28 million, including approximately $19 million to purchase
French francs and $9 million to purchase British pounds sterling. The French
franc hedge relates to an acquisition completed in March 1999 (see Note 12,
Subsequent Event). The pound sterling hedge relates to an anticipated cash
flow for a refinancing of debt under the Company's Senior Credit Facility in
March 1999 (see Note 5, Long-Term Debt). As of December 31, 1997, the Company
held a Portuguese escudo forward with a notional amount of $8 million to hedge
a transaction which closed in the first quarter of 1998.
FINANCIAL INSTRUMENTS -- The Company's financial instruments recorded on the
balance sheet include cash and cash equivalents, accounts receivable, accounts
payable and debt. Because of their short maturity cash and cash equivalents,
accounts receivable and payable approximates fair value. Fair value of
long-term debt is based on rates available to the Company for debt with similar
terms and maturities.
F-8
<PAGE> 30
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
EFFECT OF NEW ACCOUNTING PRONOUNCEMENTS - The Company has adopted Statement of
Financial Accounting Standards No. 130, "Reporting Comprehensive Income" ("SFAS
130"). SFAS 130 requires all items recognized under the standard as components
of Comprehensive Income be reported in the financial statements. The only
component of the Company's Comprehensive Income not already included in Net
Income consists of currency translation adjustments that result from
consolidating foreign subsidiaries in United States dollars at current exchange
rates. The Company has elected to report total Comprehensive Income in the
Statement of Members' Deficit.
In April 1998, the Accounting Standards Executive Committee issued Statement of
Position 98-5, "Reporting on the Costs of Start-Up Activities," which is
effective beginning January 1, 1999 for the Company. This statement requires
start up activities, to be expensed as incurred. Start-Up Activities are broadly
defined in the Statement of Position as one-time activities related to opening a
new facility, introducing a new product or service, conducting business in a new
territory, conducting business with a new class of customer, initiating a new
process in an existing facility or commencing some new operation. At its March
24, 1999 meeting, the Emerging Issues Task Force (EITF) added to its agenda, an
issue addressing whether pre-production engineering costs are capitalizable
fixed asset costs, start-up costs within the scope of SOP 98-5, or research and
development costs within the scope of FASB Statement No. 2, "Accounting for
Research and Development Costs". The adoption of SOP 98-5 is not expected to
materially affect the results of operations or financial position of the
Company, pending resolution of the EITF issue.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities," which is effective for all fiscal years beginning after
June 15, 1999 (January 1, 2000 for the Company). The statement requires all
derivative instruments be recorded at fair value on the balance sheet with
changes in fair value recorded each period in current earnings or comprehensive
income depending upon the underlying purpose for the derivative. Management of
the Company has not yet determined the impact that adoption of this statement
will have on its earnings or financial position.
RECLASSIFICATIONS -- Certain reclassifications have been made in the prior year
financial statements to conform with the presentation used in 1998.
F-9
<PAGE> 31
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. INVENTORIES
The components of inventories consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
(Dollars in Thousands)
1998 1997
------- -------
<S> <C> <C>
Raw materials...................................... $15,709 $9,071
Work in process.................................... 3,203 2,438
Finished goods..................................... 10,009 9,005
Customer tooling in process........................ 24,085 34,353
------- -------
Total......................................... $53,006 $54,867
======= =======
</TABLE>
F-10
<PAGE> 32
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
3. PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following:
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
(Dollars in Thousands)
1998 1997
-------- -------
<S> <C> <C>
Land................................................ $6,743 $2,591
Building and improvements........................... 43,282 35,038
Machinery and equipment............................. 198,805 127,304
Furniture and fixtures.............................. 9,728 7,281
Construction-in-progress............................ 9,410 8,916
-------- -------
Total.......................................... 258,558 181,130
Less accumulated depreciation.................. 87,025 58,845
-------- -------
Total.......................................... $171,533 $122,285
======== =======
<CAPTION>
4. INTANGIBLES
Intangible assets consist of the following:
DECEMBER 31,
----------------------
(Dollars in Thousands)
1998 1997
-------- -------
Goodwill............................................ $40,577 $24,746
Deferred financing costs............................ 8,122 7,582
Other intangibles................................... 844 836
------- -------
Total......................................... 49,543 33,164
Less accumulated amortization................. 7,251 3,682
------- -------
Total......................................... $42,292 $29,482
======= =======
</TABLE>
F-11
<PAGE> 33
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
5. LONG-TERM DEBT
Long-term debt consists of the following:
December 31,
---------------------------
1998 1997
-------- -------
<S> <C> <C>
Senior Subordinated Notes, due March 2007, requiring semiannual interest
payments at the rate of 10.25%......................................... $125,000 $125,000
Term loans, bank, due September 2004, requiring quarterly interest payments
at LIBOR plus 2.5% (7.6% at December 31, 1998):
Payable in US dollars.............................. 33,475 15,000
Payable in British pounds sterling................. 9,935 9,246
Payable in Portuguese escudos...................... 11,413 --
Payable in French francs........................... 12,165 --
Revolving credit loan, bank, due December 2003, requiring monthly interest
payments at prime plus 0.5% and LIBOR plus 2.25%. A portion totaling $11.6
million US dollars is denominated in Canadian dollars. (Interest rates
vary from 7.35% to 8.25% at December 31, 1998)......................... 87,301 33,837
Senior Notes, due November 1999, requiring semiannual interest payments at
the rate of 14%........................................................ 14,015 24,365
Other.................................................................. 7,734 11,780
-------- --------
Total including current maturities..................................... 301,038 219,228
Less: Current maturities.............................................. 20,666 2,653
-------- --------
Total.................................................................. $280,372 $216,575
======== ========
Principal payments of long-term debt for each of the next five years is as
follows:
Current maturities.................................................. $20,666
2000................................................................ 13,023
2001................................................................ 25,023
2002................................................................ 40,989
2003 and thereafter................................................. 201,337
</TABLE>
F-12
<PAGE> 34
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
5. LONG-TERM DEBT -- (CONTINUED)
The Company's financing agreements contain many restrictive loan
covenants, some of which require the Company to maintain minimum levels of
working capital, require the maintenance of specified financial ratios, and
restrict specified payments, including dividends. Under the most restrictive
covenant, the Company must maintain a specified minimum fixed charge ratio,
which could limit the Company's capital expenditures for any 12 month period.
Substantially all of the Company's assets are pledged as collateral for
long-term debt.
In March 1997 the Company simultaneously issued $125 million of 10.25%
Senior Subordinated Notes, due March 2007, entered into a new $140,000 Senior
Credit Facility and made a tender offer for all of its 14% Senior Notes then
outstanding. The $125 million Senior Subordinated notes were sold in a private
placement and subsequently registered in July 1997. As a result of the March
1997 tender offer, $40.6 million of the Senior Notes due 1999 were retired. On
November 15, 1999 the Company retired an additional $10.4 million of Senior
Notes due 1999. The premiums paid to the noteholders, the related transaction
fees and unamortized debt issue costs were recorded in the respective years'
consolidated statements of operations as an extraordinary item.
During March 1999 the Company refinanced a portion of the existing
term and all of the revolving debt under the Senior Credit Facility
and incurred new debt ("the New Senior Credit Facility"). The new debt
was principally used to fund an acquisition consummated also during March 1999
(see Subsequent Event footnote). The debt maturities herein reflect the
repayment schedule of the New Senior Credit Facility for the refinanced debt as
December 31, 1998. The New Senior Credit Facility includes two amortizing term
loans totaling $180 million and a $120 million revolving facility. Final
maturity for the amortizing term loan occurs in 2005 and 2006. The maturity for
the revolving facility occurs in 2006. Pro forma availability under the New
Senior Credit Facility (after the acquisition of Foginni discussed in Note 12,
Subsequent Event) was approximately $24 million at December 31, 1998.
At December 31, 1998, the Company had the following additional open
letters of credit. Economic and Industrial Development Revenue Bonds of $3.2
million are collateralized by a $3.2 million letter of credit. The revolving
credit facility payable in Portuguese escudos is collateralized by a $15 million
bank letter of credit. The Company is self-insured in the State of Michigan for
workers' compensation. As such, the Company has a bank letter of credit in the
amount of $0.5 million to serve as collateral for any potential claims.
The carrying amount of the bank debt and the remaining other long-term
debt instruments approximate fair value as the floating rates inherent in this
debt reflect changes in overall market interest rates.
F-13
<PAGE> 35
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. LEASES
The Company has entered into capital leases for facilities and
production equipment in Mexico, the United States and the United Kingdom
(equipment only). The gross amount of assets included in property, plant and
equipment under capital leases as of December 31, 1998 and 1997 $6.1 million
and $2.6 million, respectively.
Present value of net minimum lease payments under capital leases is
$3.7 million and $1.5 million as of December 31, 1998 and 1997, respectively.
The Company has significant operating leases at three of its
facilities. During 1995, the Company entered into a 10 year operating lease for
its World Headquarters located in Novi, Michigan. The Company's executive,
engineering and sales staffs are located at the World Headquarters. The Company
also has an operatings lease for the Grand Rapids, Michigan plant which expires
in 2000 and the Coventry, U.K. plant which expires in 2005. The rental expense
related to these leases amounted to $1,326 thousand in 1998, $682 thousand in
1997, and $530 thousand in 1996.
Minimum future lease obligations on capital and operating
leases in effect at December 31, 1998 are as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
------- ---------
<S> <C> <C>
1999..................................................... 1,705 1,476
2000..................................................... 973 1,438
2001..................................................... 700 1,176
2002..................................................... 460 1,116
2003..................................................... 72 1,135
Thereafter............................................... 24 2,078
</TABLE>
F-14
<PAGE> 36
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
7. EMPLOYEE BENEFITS AND COMPENSATION COMMITMENTS
RETIREMENT AND PROFIT SHARING PLANS - Effective January 1, 1997 the
Company began providing a defined contribution retirement plan to substantially
all of its employees in the United States. Contributions are matched by the
Company up to a maximum of three percent. This plan replaced a profit sharing
plan, which provided for contributions determined at the Board of Directors'
discretion. Company contributions to these plans were approximately $1.0
million and $0.8 million in 1998 and 1997, respectively.
CHANGE IN CONTROL AGREEMENT -- Certain key management are included in a long
term incentive plan. The plan provides for payments upon the occurrence of an
initial public offering, sale of all or substantially all of the Company's stock
or sale of all or substantially all of the Company's assets. Payment is based
upon a formula specified in the plan.
F-15
<PAGE> 37
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
8. LITIGATION AND CLAIMS
The Company is subject to various legal and regulatory proceedings and
claims which arise in the ordinary course of business. In the opinion of
management, the amount of any liability which may result with respect to these
actions will not materially affect the financial position of the Company.
Additionally, the Company is under review by the Ohio Environmental
Protection Agency ("OEPA") for possible violations of environmental emission
standards and permitting regulations at its Ohio facility. The Company is in the
process of providing the information requested by the OEPA and is taking the
necessary steps to comply with the regulations. At this point, no fines and
penalties have been assessed against the Company. Based on current information,
management believes that the results of the investigation will not materially
affect the financial position or results of operations of the Company.
F-16
<PAGE> 38
9. INCOME TAXES
Income before income taxes for U.S. and non-U.S. operations, excluding equity in
net income/(loss) of affiliated companies. The Company has elected to be taxed
as a limited liability corporation. Under the provisions of this election, the
Company is not subject to federal income taxes. Therefore, there is no U.S.
tax obligation to the Company. Total income before income taxes as follows
( $ in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
U.S. $(6,119) $6,102 $6,552
Non-U.S. 5,662 2,743 499
------- ------ ------
Total income before income taxes $ (457) $8,845 $7,051
======= ======= ======
</TABLE>
The provision for income taxes was estimated as follows (in thousands):
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Currently payable
U.S. federal $ -- $ -- $ --
Non-U.S. 1,528 374 --
====== ===== =====
Total currently payable 1,528 374 --
Deferred tax liability/(benefits)
U.S. federal -- -- --
Non-U.S. 90 -- --
------ ----- -----
Total deferred 90 -- --
------ ----- -----
Total provision $1,618 $ 374 $ --
====== ===== =====
</TABLE>
Deferred taxes are provided for earnings of non-U.S. subsidiaries which are
planned to be remitted. No provision for deferred taxes has been made on the
retained earnings (primarily prior to 1998) which are considered to be
indefinitely invested in the non-U.S. subsidiaries. Deferred taxes for the
undistributed earnings of non-U.S. subsidiaries are not practical to estimate.
A reconciliation of the provision for income taxes compared with the amounts at
the U.S. statutory tax rate.
<TABLE>
<CAPTION>
1998 1997 1996
---- ---- ----
<S> <C> <C> <C>
Tax provision at Foreign statutory rate of 40% 40% 40% 40%
Effect of:
Tax on non-U.S. income 0 Pts. 0 Pts. 0 Pts.
State and local income taxes 0 0 0
Other (Net operating losses) (11) (26) (40)
-------- -------- --------
Provision for income taxes 29% 14% 0%
</TABLE>
Deferred income taxes reflect the estimated tax effect of accumulated temporary
differences between assets and liabilities for financial reporting purposes and
those amounts as measured by tax laws and regulations. The components of
deferred income tax assets and liabilities at December 31 were as follows (in
thousands):
<TABLE>
<CAPTION>
1996 1997
---- ----
Deferred tax assets
- - -------------------
<S> <C> <C>
Allowance for credit losses $ 50 $ --
Accrued liabilities 10 --
---- ----
Total deferred tax assets 60 --
Deferred tax liabilities
- - ------------------------
Depreciation and amortization 150 --
------ ----
Total deferred tax liabilities 150 --
------ ----
Net deferred tax assets/(liabilities) $(90) $ --
------ ----
</TABLE>
F-17
<PAGE> 39
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
10. ACQUISITIONS
The Company accounted for the following acquisitions using the Purchase
Method. The consolidated statements of operations include the operating results
of the acquired businesses from each date of acquisition.
During 1998, the Company completed three acquisitions which compliment
or expand the existing automotive parts manufacturing business. On May 29, 1998
the Company purchased the assets and business of Acco Plastics, Inc. located in
Markham, Ontario (Canada). The plant in Markham performs injection molding and
assembly operations. On June 4, 1998 the assets and business of the Howell,
Michigan division of Libralter Plastics was acquired. The Howell plant does
Class A surface exterior painting, injection molding and assembly. On August 20,
1998 the Company acquired certain injection molding assets and the related
business of Concentric, Inc. located in the U.K., Mexico and the United States.
During 1997, the Company completed three acquisitions, which expanded
its automotive plastic injection molding, assembly and painting capabilities. On
March 28, 1997 the Company purchased three North American manufacturing
facilities of the Aeroquip Division of the Aeroquip-Vickers Corporation. On June
30, 1997 the Company purchased the assets of T.D. Shea Manufacturing Inc., an
OEM supplier of decorative appliques with two factories in Indiana. On September
5, 1997 the Company acquired the Clearplas France division of Ascot Ltd.
located in Belleme, France.
During 1996, the Company acquired Clearplas, Ltd. (Clearplas) and
Materias Plasticas, S.A. ("MaP"). Both companies are automotive suppliers
specializing in injection molding, painting and assembly. At December 31, 1997,
Other Long-Term Obligations includes $1.8 million, representing the present
value of deferred payments for the MaP shares acquired.
During November 1996, the Company acquired MaP pursuant to an agreement
which provided for the Company's acquisition of 38% of the voting stock of MaP
and an option to purchase all of its remaining shares. Commencing in 1996, the
agreement gave the Company significant operational control, including the
appointment of a majority of the Board of Directors, appointment of the general
manager and the ability to influence significant operational decisions. During
March 1998, the Company completed the acquisition of the remaining outstanding
shares of MaP through the exercise of the aforementioned option pursuant to the
1996 agreement. Minority interest in the accompanying Consolidated Statements of
Income represents income attributable to MaP shareholders, other than the
Company, until March 1998. Other accrued liabilities at December 31, 1997
include approximately $1.6 million representing the other shareholder's interest
in the net assets of MaP.
None of the acquisitions completed by the Company during
the years 1996 through 1998 have exceeded the Securities and Exchange
Commission threshold, either individually or in the aggregate, for determining
if a Significant Subsidiary has been acquired.
On March 29, 1999 the Company completed the acquisition of the Foggini
group of companies, see Note 12, Subsequent Event.
F-18
<PAGE> 40
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
11. SEGMENT DATA
The Company is a global supplier of highly engineered plastic
components for the automotive industry. Its comprehensive plastics manufacturing
capabilities include design and engineering, high-precision injection molding,
automated manufacturing and assembly, plastic painting and material and product
testing. Prior to the acquisition of the Foggini group of companies on March 29,
1999, discussed in Note 12, the Company conducted manufacturing, assembly and
painting operations from 19 facilities in North America and four facilities in
Europe. All of these activities constitute a single operating segment.
Financial information summarized by geographic area is as follows:
<TABLE>
<CAPTION>
NET SALES: 1998 1997 1996
---------- ---- ---- ----
<S> <C> <C> <C>
United States $254,155 $215,956 176,202
United Kingdom 41,109 34,679 24,166
Other Europe 48,765 33,051 5,284
Other North America 27,504 22,315 11,434
-------- --------- ---------
TOTAL $371,533 $306,001 $217,086
LONG-LIVED ASSETS
United States 119,715 87,119 73,808
United Kingdom 20,116 8,438 8,786
Other Europe 13,102 12,726 10,428
Other North America 18,600 14,002 7,255
--------- -------- ---------
TOTAL $171,533 $122,285 $100,277
</TABLE>
Transfers between geographic areas are not significant, and when made,
are recorded at prices comparable to normal unaffiliated customer sales.
F-19
<PAGE> 41
KEY PLASTICS L.L.C. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
12. SUBSEQUENT EVENT
The Company completed the acquisition of the Foggini group of companies
("Foggini") effective March 29, 1999, for a total value including assumed debt
of $113 million. Foggini, headquartered in Turin, Italy, expects to report 1998
sales of approximately $130 million from its operations in France, Italy,
Switzerland, and the Czech Republic. Foggini is a leading supplier of air
louvers and other automotive interior and exterior trim components for most
major European original equipment manufacturers and tier one suppliers. The
purchase price was paid in cash, assumed debt and a 35% equity interest in the
combined European business of the Company. The cash portion of the acquisition
was funded with debt provided through a refinancing of the Company's term and
revolving loans consummated during March 1999, discussed more fully in Note 5,
Long-Term Debt, above.
* * * * * *
F-20
<PAGE> 42
SIGNATURES
Pursuant to the requirements of Section 15(d) 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.
KEY PLASTICS L.L.C.
Dated: March 31, 1999
By: /s/ Joseph A. White
-------------------
Joseph A. White
Vice President and Chief
Financial Officer
Dated: March 31, 1999
/s/ David M. Smith
------------------
David M. Smith
Corporate Controller
(Principal Accounting Officer)
Dated: March 31, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ David C. Benoit Chief Executive Officer and Director March 31, 1999
- - ---------------------- (Principal Executive Officer)
David C. Benoit
/s/ Leonard R. Griffin Chief Operating Officer, President March 31, 1999
- - ---------------------- and Director
Leonard R. Griffin
/s/ Stephen Eisenstein Director March 31, 1999
- - ----------------------
Stephen Eisenstein
/s/ Joel Tauber Director March 31, 1999
- - ----------------------
Joel Tauber
<PAGE> 43
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.1 * Share Purchase Agreement
3.2 Restated Articles of Organization of the Company. Incorporated
herein by reference to Exhibit 3.2 to Holdings' Annual Report
on Firm 10-K for the year ended December 31, 1997.
3.4 Amended and Restated Operating Agreement of Technology.
Incorporated herein by reference to Exhibit 3.2 to Holdings'
Annual Report on Firm 10-K for the year ended December 31,
1997.**
4.1 Indenture, dated November 17, 1992, by and between the Company
(as defined therein) and Society National Bank, as Trustee
(the "Senior Note Indenture"), including 14% Senior Notes
issued thereunder. Incorporated herein by referenced to
Exhibit 4.1 to Holdings' Registration Statement No. 33-56048.
4.1.1 Supplemental Indenture to the Senior Note Indenture, dated as
of February 9, 1998. Incorporated herein by reference to
Exhibit 3.2 to Holdings' Annual Report on Firm 10-K for the
year ended December 31, 1997.
4.2 Loan Agreement, dated as of August 1, 1989, between Key and
the Town of Hamilton, Indiana. Incorporated herein by
reference to Exhibit 4.5 of Holdings' Registration Statement
33-56048.
4.3 Reimbursement Agreement, dated as of November 17, 1992,
between the Key and Comerica Bank. Incorporated herein by
reference to Exhibit 4.6 to Holdings' Registration Statement
No. 33-56048.
4.4 Loan Agreement, dated as of December 1, 1987, between Key and
the Economic Development Corporation of the Township of
Plymouth, Michigan. Incorporated herein by reference to
Exhibit 4.7 to Holdings' Registration Statement No. 33-56048.
<PAGE> 44
4.5 Reimbursement Agreement, dated as of December 1, 1987, between
Key and Manufacturers Bank of Detroit, as amended.
Incorporated herein by reference to Exhibit 4.8 to Holdings'
Registration Statement 33-56048.
4.7 Indenture, dated March 24, 1997, by and between the Company
(as defined therein) and Marine Midland Bank, as Trustee (the
"Senior Subordinated Note Indenture"). Incorporated herein by
reference to Exhibit 4.6 to the Company's Registration
Statement No. 333-26729.
<PAGE> 45
4.7.1 First Amendment to the Senior Subordinated Note Indenture,
made as of February 9, 1998. Incorporated herein by reference
to Exhibit (4.7.1/4.7.2) to Holdings' Annual Report on Form
10-K for the year ended December 31, 1997.
4.7.2 Supplemental Indenture to the Senior Subordinated Note
Indenture, dated as of February 9, 1998. Incorporated herein
by reference to Exhibit (4.7.1/4.7.2) to Holdings' Annual
Report on Form 10-K for the year ended December 31, 1997.
4.8 10 1/4% Senior Subordinated Notes dated March 24, 1997.
Incorporated herein by reference to Exhibit 4.9 to the
Company's Registration Statement No. 333- 26729.
10.1 * Credit Agreement, dated as of March 26, 1999, by and among
the Company, the Borrowing Subsidiaries (as defined therein),
the lenders party thereto from time to time and NBD Bank, as
agent for such lenders (the "Credit Agreement").
10.2 Contribution and Assignment Agreement, dated as of February 9,
1998, by Key to Technology. Incorporated herein by reference
to Exhibit (10.8/10.9/10.10) to Holdings' Annual Report on
Form 10-K for the year ended December 31, 1997.
10.3 Assumption Agreement, made as of February 9, 1998 by and
between Key and Technology. Incorporated herein by reference
to Exhibit (10.8/10.9/10.10) to Holdings' Annual Report on
Form 10-K for the year ended December 31, 1997.
10.4 Equityholders Agreement, dated as of February 9, 1998, by and
among Key, the Company, Paribas Principal Incorporated and the
other Members signatory thereto. Incorporated herein by
reference to Exhibit (10.8/10.9/10.10) to Holdings' Annual
Report on Form 10-K for the year ended December 31, 1997.**
10.5 * Non-Competition and Non-Disclosure Agreement, entered into on
February 9, 1998, by and between the Company and Joel D.
Tauber.
10.6 * Non-Competition and Non-Disclosure Agreement entered into on
February 9, 1997, by and between the Company and David C.
Benoit.
10.7 * Shareholders Agreement
10.8 * Unilateral Promise to Sell Shares
21.1 * Subsidiaries of the Registrant.
27.1 * Financial Data Schedule (EDGAR version only).
* Filed herewith
** A portion of this document has been redacted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission
("SEC"). An unredacted version of this document has been filed separately
with the SEC.
<PAGE> 1
EXHIBIT 2.1
SHARE PURCHASE AGREEMENT
As a confirmation and in execution of the Agreement entered into between the
parties on July 10 1998, October 8 1998, November 6 1998 and December 10 1998
BETWEEN :
- - - MASSIMO FOGGINI
born on April 6th, 1935 in Turin (Italy),
of Italian Nationality,
residing at Strada Privata Santa Brigida 131, Moncalieri, Italy
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - GIOVANNI FOGGINI
born on November 24, 1939 in Turin (Italy),
of Italian Nationality,
residing at Corso Einaudi 7, Turin, Italy,
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - PAOLO FOGGINI
born on November 21, 1941 in Turin (Italy),
of Italian Nationality,
residing at Via Moncalieri 2, Moncalieri, Italy,
married under a contract providing for separate ownership of property and,
consequently, entitled alone to enter into this agreement.
- - - MARIA ALBA FOGGINI
born on July 3, 1943 at Alba (Italy),
of Italian Nationality,
residing at Piazza Vittorio Veneto 5, Turin, Italy,
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
COLLECTIVELY REFERRED HEREIN AS "THE SELLERS"
ON THE ONE HAND,
AND:
- - - KEY - FOGGINI EUROPE Sarl, a company governed by the laws and regulations of
Luxembourg, with a share capital of 56.057.000 EUROS, having its registered
office located at Luxembourg, L-2453, 16 rue Eugene Ruppert, registered
under the number 68568
represented by Mr. David BENOIT, Mr. Christian COUMANS and Mr. Mark
ABBO, acting in their capacity as managers, duly empowered for the
purpose hereof by virtue of the bylaws and of a decision of the
Constitutive General Assembly
<PAGE> 2
REFERRED HEREIN AS "THE BUYER"
ON THE OTHER HAND.
WITNESSETH
WHEREAS, prior to a capital increase of the company Foggini & C carried out on
February 17, 1999 and subscribed by the Buyer, the Sellers owned, directly or
indirectly, all of the issued and outstanding shares of the three holding
companies of the Foggini group, i.e. Foggini Groupe SA (the French holding
company), Foggini SA (the Swiss holding company) and Foggini and C. Srl (the
Italian holding company):
The Sellers directly owned 38,4615% of the shares in Foggini & C. Srl;
Foggini Groupe SA and Foggini SA owned respectively 50% and 11,5385% of the
shares in Foggini & C. Srl.
WHEREAS, the Sellers also own directly 100% of the shares in Foggini Progetti
Srl. and 3% of the shares in Radicar Srl, the balance or 97% of Radicar Srl
being owned by Foggini & C.
WHEREAS, the Sellers and the Buyer have been discussing the principle and the
terms of the transfer to the Buyer of the direct or indirect ownership of 100%
of the shares in these companies, organized under the following operations and
to be concluded effectively at the latest the date hereof:
i) Transfer of the ownership of a number of shares in Foggini Groupe SA,
Foggini SA and Foggini Progetti Srl, representing in each company 55% of the
issued share capital, subject to the present Agreement;
ii) Subscription by the Buyer in a share capital increase of Foggini & C. Srl
whereby the Buyer consequently owns 35% of the share capital of Foggini & C.
Srl, this increase having already taken place on February 17, 1999;
iii) Contribution by the Sellers to the Buyer of the shares representing 45% of
the share capital of Foggini Groupe SA, Foggini SA (Switzerland), Foggini
Progetti Srl, of the shares representing 25% of the share capital of Foggini
and C. Srl and of the shares representing 3% of the share capital of Radicar
Srl. in exchange of 30.184.538 B share representing 35% of the Capital share of
the purchaser.
iv) Contribution of sellers is contingent upon the occurrence of following
circumstances:
1) is proved that Holding has been legally incorporated by duly empowered
representatives of the shareholders;
2) both parties have agreed on the wording of the By laws regarding the
protection of minorities, the Shareholders' Agreement, and Key has duly
contributed its European Companies (UK, Portugal and France) in
accordance with their Balance sheets results as of Dec. 31, 1998.
3) The sellers have had the possibility to check the above.
<PAGE> 3
So that, following these operations, the Buyer shall control, directly or
indirectly:
1. 100% of the capital in the FOGGINI GROUPE S.A. Company, a French joint stock
company with a share capital of FRF 26,000,000 ;
2. 100% of the capital of the FOGGINI SA Company (Suisse), a Swiss joint stock
company with a capital of SFR 500,000.
3. 100% of the capital of the FOGGINI DEUTSCHLAND GmbH Company, a German
limited liability company.
4. 100% of the capital of the FOGGINI IBERICA SL Company, a Spanish company.
5. 100% of the capital of the FOGGINI France Company SA, a French joint stock
company with a capital of FRF 70,000,000
6. 51% of the capital of the FOGGINI BOHEMIA s.r.o. a Czechoslovakian company.
7. 100% of the capital of the FOGGINI & C Srl. Company, an Italian limited
liability company with a capital of Italian Lira 4.000,000,000.
8. 100% of the capital of the FOGGINI PROGETTI Srl. Company, an Italian limited
liability company with a capital of Italian Lire 20,000,000.
9. 100% of the capital of the RADICAR Srl. Company, an Italian limited
liability company with a capital of Italian Lira 99,000,000.
10. 100% of the capital of the CORIL SA Company, a Swiss joint stock company
with a capital of 600.000 Suiss Francs.;
11. 51% of the capital of the ELMEG Srl Company, an Italian limited liability
company with a capital of Lira 99,000,000.
In consideration of the execution of this contract the Buyer shall directly or
indirectly control of:
12. 99.9% of the capital of KEY PLASTICS France SAS,
13. 99.9% of the capital of KEY PLASTICS INTERNATIONAL SAS in France;
14. 99.99% of the capital of KEY PLASTICS in United Kingdom;
15. 99.97% of the capital of MAP SANISTAR ACCESSORIOS LDA, in Portugal;
16. 99.99% of the capital of MAPKEY MATERIAS PLASTICAS S.A., in Portugal;
These eleven companies are referred to below collectively as "THE GROUP."
WHEREAS, the Sellers have agreed with the Buyer, in the terms and conditions
set forth herein, of the transfer to the later i) 14300 shares, representing
55% of the issued share capital of Foggini Groupe SA; ii) 2750 shares,
representing 55% of the issued share capital of Foggini SA(Switzerland); and
iii) 11.000 shares representing 55% of the issued share capital of Foggini
Progetti Srl.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
In the framework of the present agreement, the terms listed below shall have
the following meanings:
<PAGE> 4
AGREEMENT shall mean this share purchase agreement, signed by the Sellers and
the Buyer, together with the Annexes hereto.
BASE PRICE shall mean the price of the Shares as set forth in article 2.2.1 of
the Agreement.
FINAL PRICE shall mean the Base Price for the Shares, corrected pursuant to
Article 2.2.3 of this Agreement.
SHARES shall mean :
i) 11.700 shares, representing 45% of the issued share capital of
Foggini Groupe SA, owned by the Sellers at the present date and subject
to the Agreement;
ii) 2250 shares, representing 45% of the issued share capital of Foggini
Switzerland, owned by the Sellers at the present date and subject to the
Agreement;
iii) 9.000 shares, representing 45% of the issued share capital of Foggini
Progetti Srl, owned by the Sellers at the present date and subject to the
Agreement;
(iv) Other shares of Foggini France SA, Foggini Iberica S.r.l., Foggini
Deutschland GMBH, Foggini BTV Bohemia Sro, Coril SA and Elmeg S.r.l.,
which are hold in the name of other persons respect the companies
belonging to the Group, on behalf of whom the sellers act on behalf for
the completion of the transfer contemplated by this agreement, with
exception of Elmeg S.r.l. and Foggini BTV Bohemia Sro whose shares in
measure of 49% are owned by local minority shareholders.
COMPANY FOGGINI GROUPE shall mean Foggini Groupe SA, a French company with a
share capital of French Francs 26.000.000 Francs divided into 26.000 shares with
a par value of 1.000 French Francs, all in the same class and fully paid up,
which has its registered office at Zone Industrielle des Soeurs, 17300
Rochefort, registered with the Rochefort Companies Registrar under N(degree)
B311 285 423.
COMPANY FOGGINI ITALY shall mean Foggini & C. Srl, an Italian company with a
share capital of Italian Liras 4.000.000.000, divided into 4.000.000 shares with
a par value of Italian Liras 1.000, all in the same class and fully paid up,
which has its registered office at Via Aosta 18, 10092 Beinasco (Torino),
registered with the Turin Companies Registrar under N(degree) 272/1965/206.
COMPANY FOGGINI PROGETTI shall mean Foggini Progetti Srl, an Italian company
with a share capital of Italian 20.000.000 Liras, divided into 20.000 shares
with a par value of Italian Liras 1,000, all in the same class and fully paid
up, which has its registered office at Via Aosta 17, 10092 Beinasco (Torino),
registered with the Turin Companies Registrar under N(degree) 272/4238/1982.
COMPANY FOGGINI SWITZERLAND shall mean Foggini SA, a Suisse corporation with a
share capital of Swiss Francs 500.000, divided into 5.000 shares with a par
value of Swiss Francs100, all in the same class and fully paid up, which has its
registered office at Via la
<PAGE> 5
Pobbia, Novazzano, registered with the Mendrisio Companies Registrar under
N(degree) CH-524.3.006.759-4
THE GROUPE shall mean the eleven companies of the Foggini Group as listed
hereinabove.
CONTRIBUTION OPERATION shall mean the contribution of the Promisor in favor of
the company, effected today, and concerning the full and total property of the
shares representing 55% of the capital of Foggini Groupe, Foggini Switzerland
and Foggini Progetti and the shares representing 25% of the capital of Foggini
& C and 3% of the capital of Radicar Srl.
OPTION AGREEMENT shall mean the unilateral Promise to sell shares entered into
on the date hereof pursuant to which the Sellers undertake to transfer to Key
Plastics LLC 301.845 of B shares created on the date hereof representing 35% of
the share capital of the Buyer,.
ARTICLE 2 SALE AND PURCHASE OF THE SHARES OF FOGGINI GROUP, FOGGINI PROGETTI
AND FOGGINI SWITZERLAND
2.1 TRANSFER OF SHARES
By virtue of this Agreement, the Sellers transfer, in their name and in the name
of others persons of whose behalf they act, and assign the Shares to the Buyer,
which accepts, according to the terms and conditions herein below and subject to
the applicable de facto and de jure standard warranties and in accordance with
laws and regulations applicable to the parties, as well as to the warranties set
forth hereinafter in Article 3, together with all rights and obligations
attached thereto.
The parties specifically agree that full beneficial ownership and commencement
of enjoyment of the Shares shall be transferred with effect from the present
date, i.e. March 29 1999, dividend, if any, whose distribution would be decided
from the date hereof accruing to the Buyer.
2.2 PRICE
2.2.1 PRICE OF SHARES
In consideration of the transfer of the Shares, the Parties have agreed to a
Fixed Price of Two Hundred Nineteen Million Ninety Five Thousand French Francs
(FF 219,095,000), subject to any adjustment as may be required in accordance
with Article 2.2.3 of this Agreement.
2.2.2 PAYMENT
The parties have agreed that the Buyer shall pay the agreed Base Price according
to the following terms:
<PAGE> 6
- - - The Buyer has already paid to the Sellers the amount of Twelve Million
French Francs (FF 12,000,000) on July 15 1998;
The Sellers discharge payment of this sum by the Buyer.
- - - The Buyer pays on the present day the sum of ninety Seven Million Five
Hundred and Forty Seven Thousand Five Hundred French Francs (FF97,547,500),
by wire transfer in accordance with sellers' instruction;
The Sellers discharge the Buyer for the payment of this sum.
- - - The Buyer will pay on June 30, 1999 at the latest the sum of One Hundred and
Nine Million Five Hundred and Forty Seven Thousand Five Hundred French
Francs (FF 109,547,500), by bank transfer.
- - - In respect hereof, the Purchaser remits on the date hereof issued by an
irrevocable letter of credit issued in their favor by First Chicago - London
Branch a copy of which is annexed hereafter as Appendix S.
2.2.3 FINAL PRICE
The Price shall, if applicable, increased, on the basis of the accounts of
Foggini Italy, including the results of its subsidiary Radicar Srl, for the
financial year ending December 31, 1998, certified by the auditing firm Arthur
Andersen Turin, Italy in an amount representing the difference, franc for franc,
between an amount of losses equivalent to 25.000.000 French and the losses
appearing in such accounts, converted in French Francs.
For the purpose of the present agreement, the parties agree that the exchange
rate French Francs/ Italian Liras shall be computed on the basis of 295,182 Lire
for one Franc.
The Sellers shall procure that the accounts of Foggini Italy for the financial
year ended December 31, 1998 be settled and transmitted to Arthur Andersen by
May 15, 1999 at the latest, which shall certify such accounts by May 30, 1999 at
the latest (a letter of acceptance of entrustment of Arthur Andersen is hereby
enclosed under Appendix T.
The Balance sheet shall be drafted in accordance with the Law, good faith and
consostency with the criteria adopted in previous years; audit shall be
accomplished under the same criteria adopted by A & A during the precedents
audits.
The Buyer or the Seller, as applicable, shall be able to require the other to
reimburse such amount which shall be due in respect of the payment of the Final
Price within 30 days of the certification of the accounts.
2.3 DOCUMENTS DELIVERED BY THE SELLERS TO THE BUYER ON THE DATE HEREOF
On the date hereof, the Sellers deliver to the Buyer an original copy of the
following documents:
<PAGE> 7
- - - Letters from the members of the Foggini family, administrators, directors
and holders of powers of attorneys of the above mentioned GROUPE companies
resigning without condition nor indemnification from all their functions
within the totality of such Companies, taking effect upon nomination of
their replacement.
- - - (If applicable) Minutes of the meeting of the appropriate bodies of the
totality of the GROUPE companies approving the above mentioned transfer and
contribution, agreeing to the Buyer as new shareholder and/or renouncing
exercise of the preemption right on the transferred Shares as well as on the
contributed shares.
- - - Convening of the appropriate bodies of the totality of the GROUPE companies
in view of nominating the directors in replacement of those resigning.
- - - Minutes of the works committee meetings of the companies of the GROUPE
convened, if necessary, to be informed and to be asked for advice on the
change of majority shareholding in the framework of the agreements entered
into between Foggini Group and Key Plastics
- - - Transfer forms or other transfer instruments for the Shares to be
transferred, duly completed and signed.
- - - The share transfer register and the shareholders' accounts of the companies
of the GROUPE, with the transfer forms corresponding to the entries in said
register and shareholders' accounts,
- - - The register of the minutes of the meetings of the Board of Directors and
Shareholders' General Meetings , the attendance sheet of the Board meeting
and the attendance sheet of the general meeting of the three companies
mentioned, duly signed and up to date.
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE SELLERS
On the date hereof, the Sellers, in such capacity and in that of
Managers/Directors, if applicable, jointly and severally, declare and warrant:
1. That they are the due owner of the Shares and of the shares object of the
Contribution Operation and that the companies of the GROUP owning shares in
other companies of the GROUP, are also the due owners of the shares at
issue.
2. That the approval procedures which possibly apply were respected prior to
the aforementioned transfers.
3. That the procedure for increasing the capital of the FOGGINI & C. Srl
Company to which the Buyer has subscribed, was carried out in strict
compliance with the law and Articles of Incorporation.
4. That all the shares composing the capital of the companies of the GROUP
(referred to hereinafter as the "SHARES") are fully paid up.
5. That since June 30, 1998, no transfer of SHARES has taken place and that the
structure of the GROUP, such as described in Appendix A hereinafter, is the
one in force on today's date.
<PAGE> 8
6. That no SHARE is burdened with any encumbrances whatsoever and that all the
SHARES can be transferred freely, with all the rights attached thereto, on
the sole condition of the respect of the approval clauses
7. That no SHARE is the object of a dispute or claim, whether it be present or,
to the Sellers' knowledge, apt to be filed.
8. That the companies in the GROUP were all duly and validly created and
validly exist;
9. That, as far as the companies of the GROUP are concerned, there are no
capital increases, issues of bonds or of any other securities or rights
detached therefrom, pending or to be carried out in the future, with the
exception of the capital increase mentioned above by the FOGGINI & C. Srl.
Company in favor of the Buyer ; that no preferential subscription right nor
any other right having the SHARES as object has been conferred upon third
parties; that no debenture loan exists which has been issued or secured by
any one of the GROUP's companies;
10. That the conveyances of the SHARES of the GROUP's companies have been duly
carried out in obeyance to legal rules and bylaws;
11. That the accounts and balance sheets of the companies of the GROUPE as of
December 31, 1998 (attached hereinafter as Appendixes B to M) are true
pursuant to applicable accounting practices
12. That tangible and intangible fixed assets (patent and trademark), such as
real property, machines, facilities, furnishings, molds, patents and
trademarks of the Companies of the GROUP are transferred in their present
state, provided that these assets exist and that they are in conformity with
the applicable laws and regulations at the time of the transfer, which is
accepted by the Buyer;
13. That there are no civil or fiscal lawsuits, current, or future but related
to the past.;
14. The sellers shall keep harmless the Buyer in connection of any final
negative outcome arising from civil or tax dispute, relating to the past;
under the condition that the Sellers might defend themselves, at their
costs, and that the new Directors will appoint Attorneys at Law indicated by
them;
15. That since June 30, 1998, there were no operations affecting the accounts
and balance sheets of the GROUP companies, beyond ordinary and current
commercial, financial and industrial operations.
As a result, the Sellers, jointly and severally, undertake to immediately
indemnify, at the Buyer's choice, either the latter, in the form of a reduction
of the price, or the company in the GROUP in which the cause of the
indemnification has been identified, as damages, for any decrease in the assets
or any aggravation of the liabilities of the companies of the GROUP which do not
appear in the accounts and balance sheets as of December 31, 1998 attached
hereafter, and for any inaccuracy in any one of the foregoing statements.
The Sellers acknowledge that the Buyer will be entitled to transfer any claim
which would be the result of the present warranty to the benefit of Key Plastics
LLC, and that said company may set it off against any sum due by it to the
Sellers in respect of the Option Agreement.
This guarantee of assets and liabilities is for a period of four years beginning
on the date hereof, in favor of the Buyer and of all the successive assignees of
the shares of the GROUP's companies.
<PAGE> 9
It shall nonetheless be extended in accordance with the legal statutes of
limitations which apply, or shall apply in social, fiscal and para-fiscal
matters with respect to the concerned companies of the GROUP.
In the event of the death and/or disappearance of the Sellers and the Buyer,
their heirs or assigns, whether minor or disabled or beneficiaries, shall be
bound jointly and severally to meet the obligations made hereunder.
ARTICLE 4 SCOPE AND INTEGRITY OF THE AGREEMENT
No action or omission by the Parties, except where specifically agreed by the
Parties in writing, shall be interpreted as a waiver of any provisions of the
present Agreement.
This Agreement sets out all the undertakings given by the Parties in connection
with its object.
If any material provision of this Agreement is held to be invalid or
unenforceable, partly or wholly, such determination shall not invalidate any
other provision of this Agreement. However, the Parties hereto shall attempt,
through negotiations in good faith, to replace any provision of this Agreement
so held to be invalid or unenforceable by a provision of comparable effect.
The failure of the Parties to reach agreement on a replacement provision shall
neither affect the validity of the remaining provisions of this Agreement nor
the validity of the valid or enforceable part of any provision held partly
invalid, which provision shall take effect to the maximum extent permitted by
law.
ARTICLE 5 ADDENDA
This Agreement shall not be amended other than by a written addendum signed by
the Parties. The tolerance or lack of action on the part of the Buyer or the
Sellers shall not be construed to mean the waiver of their respective rights
within the meaning of this Agreement.
ARTICLE 6 NOTIFICATION
All notices as between the Parties shall be served by registered letter with
acknowledgement of receipt sent to the address of the addressee set out below or
any other address notified by way of the above mentioned methods. All time
limits shall run as from the day the said letter is presented, as evidenced by
indications form postal or courier service, or, in case of interruption of such
service, from the day such letter is received by the addressee by any other
expedient means.
Concerning the Seller:
<PAGE> 10
. Prof. Vittorio Blaas Anselmi
Corso Venezia 37 for the attention of Mr. Vittorio Blaas Anselmi
Concerning the Buyer
. At its registered office as indicated on the first page of the Agreement,
for the attention of Mr.D. Benoit and Mr. C. Coumans.
ARTICLE 7 LANGUAGE - GOVERNING LAW - JURISDICTION
This Agreement is drawn up in French.
The translation in English of the Agreement is non binding on the parties and on
third parties.
This Agreement shall be governed by and construed according to the laws of
France.
The Courts of Paris shall have jurisdiction over all disputes and all other
proceedings arising in connection with the interpretation or performance of this
Agreement, should the Parties fail to come to an out-of-court settlement, the
present transfer of shares and the contribution of shares having the character
of transfer of control.
ARTICLE 8 POWERS
All powers are granted to the holder of an original of the present Agreement in
order to carry out the required formalities.
ARTICLE 9 CONFIDENTIALITY
9.1 The Sellers undertake not to disclose any confidential information currently
in their possession or which may come into their possession in the future
concerning the FOGGINI GROUP companies, and not to use said information for the
benefit of any third party.
Confidential information shall mean all information no available to the general
public
9.2 This Agreement shall be strictly confidential. The Parties to the Agreement
undertake not to disclose its contents unless legally obligated to do so or to
defend their rights in a court of justice.
All press releases and other public relations activities of the Parties with
regard to this Agreement shall be mutually approved in writing by the Sellers
and the Buyer in advance.
ARTICLE 10 FEES AND EXPENSES
<PAGE> 11
Each of the Parties shall bear, without compensation from the other Party, the
entirety of the fees and expenses it incurs for the preparation or the
performance of this Agreement. This shall include specifically counsel and
auditor fees.
The Parties recognize that there are no commissions due to any intermediary for
the transfer or contribution of the shares of the GROUPE companies.
ARTICLE 11 REGISTRATION
Subject to any mandatory law or regulation, the transfer of the Shares shall be
filed with the appropriate tax registration authority, by the Buyer, at his
expense.
ARTICLE 12 APPENDICES
The following appendices A to L are an integral part of this Agreement.
Signed in Milan on March 29, 1999
In 11 copies, including 6 for registration.
THE SELLERS: THE BUYER:
- - ------------ ----------
REPRESENTED BY
/s/ MASSIMO FOGGINI /s/ DAVID BENOIT
M. MASSIMO FOGGINI MR. DAVID BENOIT, MANAGER
/s/ GIOVANNI FOGGINI /s/ CHRISTIAN COUMANS
M. GIOVANNI FOGGINI MR. CHRISTIAN COUMANS, MANAGER
/s/ PAOLO FOGGINI /s/ MARK ABBO
M. PAOLO FOGGINI MR. MARK ABBO, MANAGER
/s/ MARIA ALBA FOGGINI
MS. MARIA ALBA FOGGINI
<PAGE> 12
APPENDIXES TO THE SHARE PURCHASE AGREEMENT
A) Structure of the GROUPE prior to the February 17, 1999 increase of capital of
Foggini & C.
B) Accounts as of Dec. 31, 1998 of the company FOGGINI GROUPE S.A
C) Accounts as of Dec. 31, 1998 of the company FOGGINI DEUTSCHLAND GmbH
D) Accounts as of Dec. 31, 1998 of the company FOGGINI IBERICA SL
E) Accounts as of Dec. 31, 1998 of the company the FOGGINI France SA
F) Accounts as of Dec. 31, 1998 of the company FOGGINI BOHEMIA s.r.o.
G) Accounts as of Dec. 31, 1998 of the company FOGGINI SA
H) Accounts as of Dec. 31, 1998 of the company FOGGINI & C Srl
I) Accounts as of Dec. 31, 1998 of the company FOGGINI PROGETTI Srl
J) Accounts as of Dec. 31, 1998 of the company RADICAR Srl
K) Accounts as of Dec. 31, 1998 of the company CORIL SA
L) Accounts as of Dec. 31, 1998 of the company ELMEG Srl
M) Statement of account showing the net assets value of the Group as of Dec. 31,
1998
N) Accounts as of Dec. 31, 1998 of the company Key Plastic International S.n.c.
O) Accounts as of Dec. 31, 1998 of the company Key Plastic France S.a.s.
P) Accounts as of Dec. 31, 1998 of the company Key Plastic UK
Q) Accounts as of Dec. 31, 1998 of the company Map Sanistar Accessorios,
Limitada
R) Accounts as of Dec. 31, 1998 of the company Map Key Materias Plasticas S.A.
S) Letter of credit
T) Letter of Arthur Andersen in acceptance of entrustment for Audit
<PAGE> 1
EXHIBIT 10.1
KEY PLASTICS L.L.C.
--------------------------------------
CREDIT AGREEMENT
dated as of March 26, 1999
--------------------------------------
NBD BANK, as Agent
<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Section Page
- - ------- ----
<S> <C>
ARTICLE I...................................................................................................1
1.1 Certain Definitions.............................................................................1
1.2 Other Definitions; Rules of Construction........................................................22
1.3 Accounting Terms and Determinations.............................................................22
ARTICLE II..................................................................................................23
2.1 Commitments of the Lenders......................................................................23
2.2 Termination and Reduction of Commitments........................................................25
2.3 Fees............................................................................................26
2.4 Disbursement of Advances........................................................................26
2.5 Conditions for First Disbursement...............................................................28
2.6 Further Conditions for Disbursement.............................................................31
2.7 Subsequent Elections as to Borrowings...........................................................31
2.8 Limitation of Requests and Elections............................................................32
2.9 Minimum Amounts; Limitation on Number of Borrowings.............................................32
2.10 Borrowing Base Adjustments.....................................................................32
2.11 Security and Collateral........................................................................32
2.12 Noteless Agreement; Evidence of Indebtedness...................................................32
ARTICLE III.................................................................................................33
3.1 Principal Payments..............................................................................36
3.2 Interest Payments...............................................................................36
3.3 Letter of Credit Reimbursement Payments.........................................................37
3.4 Payment Method..................................................................................40
3.5 No Setoff or Deduction..........................................................................40
3.6 Payment on Non-Business Day; Payment Computations...............................................40
3.7 Additional Costs................................................................................41
3.8 Illegality and Impossibility....................................................................41
3.9 Indemnification.................................................................................42
3.10 Substitution of Lender.........................................................................42
ARTICLE IV..................................................................................................43
4.1 Corporate Existence and Power...................................................................43
4.2 Corporate Authority.............................................................................43
4.3 Binding Effect..................................................................................43
4.4 Subsidiaries....................................................................................44
4.5 Litigation......................................................................................44
4.6 Financial Condition.............................................................................44
4.7 Use of Advances.................................................................................44
4.8 Consents, Etc...................................................................................45
4.9 Taxes...........................................................................................45
4.10 Title to Properties............................................................................45
4.11 ERISA..........................................................................................45
4.12 Disclosure.....................................................................................45
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Section Page
- - ------- ----
<S> <C>
4.13 Environmental and Safety Matters...............................................................46
4.15 No Default.....................................................................................46
4.16 Intellectual Property..........................................................................46
4.17 No Burdensome Restrictions.....................................................................46
4.18 Labor Matters..................................................................................46
4.19 Solvency.......................................................................................47
4.20 Not an Investment Company; Other Regulations...................................................47
4.21 Senior Unsecured Debt Documents................................................................47
4.22 Senior Subordinated Debt Documents.............................................................47
4.22 Foggini Acquisition............................................................................48
4.24 Compliance With Laws...........................................................................48
4.25 Year 2000......................................................................................48
ARTICLE V...................................................................................................49
5.1 Affirmative Covenants...........................................................................49
(a) Preservation of Corporate Existence, Etc................................................49
(b) Compliance with Laws, Etc...............................................................49
(c) Maintenance of Properties; Insurance....................................................49
(d) Reporting Requirements..................................................................50
(e) Accounting, Access to Records, Books, Etc...............................................51
(f) Additional Security and Collateral......................................................51
(g) Further Assurances......................................................................52
(h) Year 2000...............................................................................52
5.2 Negative Covenants..............................................................................52
(a) Net Worth...............................................................................53
(b) Total Debt to EBITDA Ratio..............................................................53
(c) Interest Coverage Ratio.................................................................53
(d) Fixed Charge Coverage Ratio.............................................................53
(e) Indebtedness............................................................................53
(f) Liens...................................................................................54
(g) Merger; Acquisitions; Etc...............................................................55
(h) Disposition of Assets; Etc..............................................................55
(i) Nature of Business......................................................................56
(j) Dividends and Other Restricted Payments.................................................56
(k) Investments, Loans and Advances.........................................................57
(l) Transactions with Affiliates............................................................57
(n) Inconsistent Agreements.................................................................58
(o) Negative Pledge Limitation..............................................................58
(p) Subsidiary Dividends....................................................................58
(p) Payments and Modification of Debt.......................................................58
(q) Capital Expenditures....................................................................58
(r) Additional Covenants....................................................................59
ARTICLE VI..................................................................................................59
6.1 Events of Default...............................................................................59
6.2 Remedies........................................................................................61
</TABLE>
CREDIT AGREEMENT Page ii
<PAGE> 4
<TABLE>
<CAPTION>
Section Page
- - ------- ----
<S> <C>
6.3 Distribution of Proceeds of Collateral..........................................................62
6.4 Letter of Credit Liabilities....................................................................63
ARTICLE VII.................................................................................................63
7.1 Appointment; Nature of Relationship.............................................................63
7.2 Powers..........................................................................................64
7.3 General Immunity................................................................................64
7.4 No Responsibility for Loans, Recitals, etc......................................................64
7.5 Action on Instructions of Lenders...............................................................64
7.6 Employment of Agents and Counsel................................................................65
7.7 Reliance on Documents; Counsel..................................................................65
7.8 Agent's Reimbursement and Indemnification.......................................................65
7.9 Notice of Default...............................................................................65
7.10 Rights as a Lender.............................................................................65
7.11 Lender Credit Decision.........................................................................65
7.12 Successor Agent................................................................................66
7.13 Collateral Management..........................................................................66
7.14 Right to Indemnity.............................................................................67
7.15 Sharing of Payments............................................................................67
7.16 Withholding Tax Exemption......................................................................67
ARTICLE VIII................................................................................................68
8.1 Amendments, Etc.................................................................................68
8.2 Notices.........................................................................................69
8.3 No Waiver By Conduct; Remedies Cumulative.......................................................69
8.4 Reliance on and Survival of Various Provisions..................................................69
8.5 Expenses; Indemnification.......................................................................70
8.6 Successors and Assigns..........................................................................71
8.7 Counterparts....................................................................................73
8.8 Governing Law...................................................................................73
8.9 Table of Contents and Headings..................................................................74
8.10 Construction of Certain Provisions.............................................................74
8.11 Integration and Severability...................................................................74
8.12 Independence of Covenants......................................................................74
8.13 Interest Rate Limitation.......................................................................74
8.14 Judgment and Payment...........................................................................74
8.15 Acknowledgments................................................................................75
8.16 WAIVER OF JURY TRIAL...........................................................................75
8.17 Interest Rate Disclosure.......................................................................75
</TABLE>
CREDIT AGREEMENT Page iii
<PAGE> 5
<TABLE>
<S> <C> <C>
EXHIBITS
- - --------
Exhibit A..........................Borrowing Base Certificate
Exhibit B..........................Consent and Amendment of Security Documents
Exhibit C..........................Environmental Certificate
Exhibit D-1, D-2 and D-3...........Guaranty
Exhibit E-1, E-2 and E-3...........Pledge Agreements
Exhibit F-1........................Revolving Credit Note
Exhibit F-2........................Swingline Note
Exhibit F-3........................Term Loan A Note
Exhibit F-4........................Term Loan B Note
Exhibit G-1, G-2 and G-3...........Security Agreements
Exhibit H..........................Request for Revolving Credit Advance
and Swingline Loan
Exhibit I..........................Opinion of Counsel
Exhibit J..........................Request for Continuation or Conversion of Advance
Exhibit K..........................Assignment and Acceptance
SCHEDULES
- - ---------
Schedule 1.1-A.....................Borrowing Subsidiaries
Schedule 1.1-B.....................LIBOR Base Rate
Schedule 1.1-C.....................Non Competition Agreements
Schedule 1.1-D.....................Senior Subordinated Debt Documents
Schedule 1.1-E.....................Senior Unsecured Debt Documents
Schedule 4.4.......................Subsidiaries
Schedule 4.5.......................Litigation
Schedule 4.16......................Intellectual Property
Schedule 4.21......................Application of Funds
Schedule 5.2(e)....................Indebtedness
Schedule 5.2(f)....................Liens
Schedule 5.2(k)....................Investments, Loans and Advances
</TABLE>
CREDIT AGREEMENT Page iv
<PAGE> 6
THIS CREDIT AGREEMENT, dated as of March 26, 1999 (this "Agreement"),
is by and among KEY PLASTICS L.L.C., a Michigan limited liability company (the
"Company"), the borrowing subsidiaries party hereto from time to time (the
"Borrowing Subsidiaries", and collectively with the Company, the "Borrowers"),
the lenders party hereto from time to time (the "Lenders"), and NBD BANK, a
Michigan banking corporation, as agent for the Lenders.
INTRODUCTION
The Company, the borrowing subsidiaries and lenders party thereto, and
NBD Bank, as agent for such lenders, are parties to a Credit Agreement dated as
of June 24, 1997 (as amended, the "Existing Credit Agreement"), and the parties
hereto desire to amend and restate the Existing Credit Agreement in its entirety
as set forth herein.
In consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree that the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used herein the following terms shall have
the following respective meanings:
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Company or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation, partnership, limited
liability company or other business entity, or division thereof, whether through
purchase of assets, merger or otherwise or (ii) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority of the Capital Stock (by percentage or voting
power) of any Person.
"Adjusted Prime Rate" shall mean the per annum rate equal to the sum of
(a) the Applicable Margin, plus (b) the greater of the Prime Rate or the Federal
Funds Rate plus 1/2%, in each case as in effect from time to time, which
Adjusted Prime Rate shall change simultaneously with any change in such Prime
Rate or Federal Funds Rate, as the case may be.
"Adjusted Prime Rate Loan" shall mean any Loan which bears interest at
the Adjusted Prime Rate.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Affiliate", when used with respect to any Person, shall mean any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person. For purposes of this definition "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), with respect to any Person, shall mean possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise. Without limiting the foregoing
definition of Affiliate, any Person shall be deemed to control another Person if
the controlling Person owns or controls 10% or more of any class of voting
securities (or other ownership interest of any kind) of the controlled Person.
"Agent" shall mean NBD, in its capacity as agent for the Lenders
hereunder, and any successor Agent appointed pursuant to Section 7.12.
<PAGE> 7
"Applicable Lending Office" shall mean, with respect to any Advance
made by any Lender or with respect to such Lender's Commitment, the office or
branch of such Lender or of any Affiliate of such Lender located at the address
specified as the applicable lending office for such Lender set forth next to the
name of such Lender in the signature pages hereof or any other office, branch or
Affiliate of such Lender or of any Affiliate of such Lender hereafter selected
and notified to the Company and the Agent by such Lender.
"Applicable Margin" shall mean, (a) with respect to the Term Loan B,
2.25% in the case of Adjusted Prime Rate Loans and 3.50% in the case of LIBOR
Loans and (b) with respect to any other Adjusted Prime Rate Loan, any other
LIBOR Loan (including without limitation any LIBOR Loans that are part of any
Revolving Credit Loans or Term Loan A) the Letter of Credit fee under Section
2.3(b)(i) and the commitment fees under Section 2.3(a), as the case may be, the
per annum rate (expressed in basis points) in accordance with the following
table:
<TABLE>
<CAPTION>
====================================================================================================================
APPLICABLE MARGIN
- - --------------------------------------------------------------------------------------------------------------------
Total Debt to Adjusted Prime LIBOR Loan and Commitment
EBITDA Ratio Rate Loan Letter of Credit Fee Fee
- - --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
greater than 4.50 175 bps 300 bps 62.5 bps
or equal to
- - --------------------------------------------------------------------------------------------------------------------
greater than 4.00 but less than 4.50 150 bps 275 bps 50 bps
or equal to
- - --------------------------------------------------------------------------------------------------------------------
greater than 3.50 but less than 4.00 125 bps 250 bps 50 bps
or equal to
- - --------------------------------------------------------------------------------------------------------------------
greater than 3.00 but less than 3.50 100 bps 225 bps 45 bps
or equal to
- - --------------------------------------------------------------------------------------------------------------------
less than 3.00 50 bps 200 bps 37.5 bps
====================================================================================================================
</TABLE>
The Applicable Margin shall be based upon the Total Debt to EBITDA
Ratio as calculated as of the last day of each fiscal quarter of the Company and
the Applicable Margin shall be adjusted on (a) the last day of the second month
following the close of the fiscal quarter for the first three fiscal quarters in
each year, and (b) the last day of the fourth month following the close of the
last fiscal quarter of each fiscal year, based on the financial statements of
the Company and related compliance certificate pursuant to Section 5.1(d) to the
Lenders; provided that, (i) for purposes of calculating the Total Debt to EBITDA
Ratio in determining the Applicable Margin only, the amount of all mandatory
payments payable under the Foggini Option Agreement shall be considered as part
of Total Debt; (ii) as of the Effective Date, the Applicable Margin shall be
based on a Total Debt to EBITDA Ratio of equal to or greater than 4.50 to 1.00,
(iii) the Applicable Margin shall be adjusted for the first time based upon the
Total Debt to EBITDA Ratio as of June 30, 1999 and (iv) upon the occurrence and
during the continuance of any Event of Default, the Applicable Margin shall be
based on a Total Debt to EBITDA Ratio of greater than 4.50 to 1.00, in each case
regardless of the actual Total Debt to EBITDA Ratio.
"Assignment and Acceptance" is defined in Section 8.6(c).
"Assignment of Rents and Leases" shall mean each assignment of rents
and leases or similar agreement entered into by the Company or any Guarantor for
the benefit of the Agent and the Lenders pursuant to this Agreement in such form
as approved by the Agent, as amended or modified from time to time.
CREDIT AGREEMENT Page 2
<PAGE> 8
"Board of Directors" shall mean the Board of Directors of the Company,
or any authorized committee of the Board of Directors.
"Bond L/Cs" shall mean the Letters of Credit issued for the account of
the Company pursuant to Section 2.1(a) as follows: (a) in the amount of $484,129
to back payment under the Limited Obligation Industrial Revenue Bonds issued by
the Town of Hamilton and (b) in the amount of $2,784,144 to back payments under
Floating Rate Monthly Demand Economic Development Bonds issued by the Economic
Development of the Township of Plymouth.
"Borrowers" shall mean the Company and the Borrowing Subsidiaries.
"Borrowing" shall mean the aggregation of Advances, including each
Letter of Credit issuance, of the Lenders to be made to a Borrower, or
continuations and conversions of such Loans, made pursuant to Article II on a
single date and, in the case of any Loans, for a single LIBOR Interest Period,
which Borrowings may be classified for purposes of this Agreement by reference
to the type of Loans or the type of Advances comprising the related Borrowing,
e.g., a "LIBOR Borrowing" is a Borrowing comprised of LIBOR Loans and a "Letter
of Credit Borrowing" is an Advance comprised of a single Letter of Credit.
"Borrowing Base" shall mean, as of any date, the following amount,
stated in Dollars: (a) 85% of the amount of Eligible Accounts Receivable, plus
(b) the lesser of 50% of the amount of Eligible Inventory or (i) $45,000,000 at
any time during the fiscal year ending December 31, 1999, (ii) $51,000,000 at
any time during the fiscal year ending December 31, 2000, (iii) $55,000,000 at
any time during the fiscal year ending December 31, 2001, (iv) $56,000,000 at
any time during the fiscal year ending December 31, 2002, (v) $57,000,000 at any
time during the fiscal year ending December 31, 2003, (vi) $59,000,000 at any
time during the fiscal year ending December 31, 2004, and (viii) $60,000,000 at
any time thereafter, plus (c) the lesser of 50% of Eligible Deferred
Reimbursement Tooling or $20,000,000, minus (d) the aggregate outstanding
principal balance of the Senior Unsecured Notes, minus (e) the aggregate
outstanding balance of the Foggini Deferred Payment.
"Borrowing Base Certificate" for any date shall mean an appropriately
completed report as of such date and substantially in the form of Exhibit A
hereto, certified as true and correct as of such date by a duly authorized
officer of the Company.
"Borrowing Subsidiary" shall mean each Subsidiary listed as a Borrowing
Subsidiary in Schedule 1.1-A as amended from time to time in accordance with
Section 8.1.
"Business Day" shall mean a day other than a Saturday, Sunday or other
day on which banks in New York, Chicago or Detroit are not open to the public
for carrying on substantially all of their banking functions, or, with respect
to any Canadian Advance, NBD Canada is not open to the public for carrying on
substantially all of its banking functions in Toronto, Ontario.
"CAD" or "C$" shall mean the lawful money of Canada.
"Canada" shall mean the Dominion of Canada.
"Canadian Advances" shall mean any Term Loan or Swingline Loan
denominated in CAD.
"Canadian Lender" shall mean any Lender which, whether directly or
through an Affiliate of such Lender, can make Canadian Advances hereunder free
of withholding taxes of Canada, has agreed to be a Canadian Lender and that is
designated to the Agent and the Company as a Canadian Lender.
CREDIT AGREEMENT Page 3
<PAGE> 9
"Canadian Percentage" of any Canadian Lender as of any date, shall mean
a fraction (expressed as a percentage), the numerator of which is the Commitment
of such Canadian Lender and the denominator which is the aggregate Commitments
of all Canadian Lenders.
"Canadian Subsidiary" shall mean Key Plastics Company, Canada, a
corporation organized under the laws of Nova Scotia, Canada.
"Capital Expenditures" shall mean, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Subsidiaries for such period, as the same are (or should be) set forth, in
accordance with Generally Accepted Accounting Principles, in consolidated
financial statements of the Company and its Subsidiaries for such period;
provided, however, that (a) (i) the purchase price and associated costs to
complete the Foggini Acquisition and (ii) other expenditures acceptable to the
Agent made contemporaneously with and as an integral part of the Foggini
Acquisition in an amount not to exceed $2,000,000 shall not be considered
Capital Expenditures for purposes of this definition and (b) the Capital
Expenditures for the calendar year ending December 31, 1998 shall be deemed
equal to the amount (which amount is $30,100,000) shown in the final projections
of the Company and its Subsidiaries delivered to the Lenders prior to the
Effective Date.
"Capital Lease" of any Person shall mean any lease which, in accordance
with Generally Accepted Accounting Principles, is or should be capitalized on
the books of such Person.
"Capital Stock" shall mean (i) in the case of any corporation, all
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities or any other form of equity securities, (ii) in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock, (iii) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited) and (iv) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distribution of assets of, the issuing
Person.
"Cash Equivalent" shall mean (i) cash in Dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or other government acceptable to the Agent or any agency or
instrumentality or political subdivision thereof having maturities of not more
than six months from the date of acquisition, (iii) marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Corporation ("S&P") or Moody's Investors Service, Inc.
("Moody's"), (iv) certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any Lender or with any commercial bank having
capital and surplus in excess of $250,000,000 and a Keefe Bank Watch Rating of
"B" or better or otherwise acceptable to the Agent, (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clauses (ii), (iii) and (iv) above entered into with any financial
institution meeting the qualifications specified in clause (iv) above, (vi)
commercial paper having one of the two highest ratings obtained from Moody's or
S&P and in each case maturing within six months after the date of acquisition,
(vii) investments in money market funds which invest substantially all their
assets in securities of the type described in clauses (i) through (vi) above,
and (viii) foreign investments that are of similar type of, and that have a
rating comparable to, any of the investments referred to in clauses (i) through
(vii) above.
"Change in Control" shall mean the occurrence of any of the following:
CREDIT AGREEMENT Page 4
2
<PAGE> 10
(a) prior to an Initial Public Offering, the Principals and their
Related Parties shall cease to control, directly or indirectly, in each case
free and clear of all Liens, at least 51% (on a fully diluted basis) of the
issued and outstanding shares of Capital Stock of the Company entitled to vote
for the election of members of the board of directors of the Company and have
the right and authority to appoint, designate or otherwise elect a majority of
the board of directors of the Company;
(b) after an Initial Public Offering, (i) the Principals and their
Related Parties shall cease to control, directly or indirectly, in each case
free and clear of all Liens, at least 20% (on a fully diluted basis) of the
issued and outstanding shares of Capital Stock of the Company entitled to vote
for the election of directors of the board of directors of the Company and have
the right and authority to appoint, designate or otherwise elect at least 20% of
the members of the board of directors of the Company, (ii) other than the
Principals and their Related Parties, any Person, or two or more Persons acting
in concert, acquire beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange Act of
1934) of more than 20% of the outstanding shares of voting stock of the Company
on a fully diluted basis, or (iii) a majority of the members of the Board of
Directors of the Company shall not be Continuing Directors;
(c) David C. Benoit or Joel D. Tauber shall not have the current
management and director positions that they now hold with the Company with all
responsibilities normally associated with those positions;
(d) any "Change in Control" as defined in the Senior Subordinated Note
Indenture; or
(e) any "Change of Control" as defined in the Senior Unsecured Note
Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder.
"C/L/C" shall mean any commercial letter of credit issued hereunder.
"Commitments" shall mean, collectively, the Revolving Credit
Commitments and the Term Loan Commitments.
"Consent and Amendment" shall mean the Consent and Amendment of
Security Documents in the form of Exhibit B hereto executed by certain of the
Borrowers and Guarantors in favor of the Agent and the Lenders.
"Consolidated" or "consolidated" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more Persons
of the amounts signified by such term for all such Persons determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles.
"Contingent Liabilities" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligator, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (d) otherwise to assure or hold harmless the owner of
such primary obligation against loss in respect thereof, provided however, that
the term Contingent Liabilities shall not include endorsements of instruments
for deposit or collection in the ordinary
CREDIT AGREEMENT Page 5
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course of business; provided further, that, for purposes of calculating the
financial covenants contained in Sections 5.2(a) through (d), Contingent
Liabilities shall be those Contingent Liabilities that are or should be noted in
the financial statements of such Person or the notes thereto as required under
Generally Accepted Accounting Principles or otherwise described in clause (iv)
of the definition of Total Debt. The amount of any Contingent Liability shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Liability is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as determined
by such Person in good faith.
"Continuing Directors" shall mean as of any date of determination, any
member of the Board of Directors of the Company who (i) was a member of such
Board of Directors on the Effective Date or (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Contractual Obligation" shall mean, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Defaulting Lender" shall mean any Lender that fails to make available
to the Agent such Lender's Loans required to be made hereunder or shall have not
made a payment required to be made to the Agent hereunder. Once a Lender becomes
a Defaulting Lender, such Lender shall continue as a Defaulting Lender until
such time as such Defaulting Lender makes available to the Agent the amount of
such Defaulting Lender's Loans and all other amounts required to be paid to the
Agent pursuant to this Agreement.
"Disqualified Stock" shall mean any Capital Stock that, 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, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part.
"Dollar Equivalent" shall mean as of any date, with respect to any
amount in a currency other than Dollars, the sum in Dollars resulting from the
conversion of such amount from such currency into Dollars at the most favorable
spot exchange rate determined by the Agent to be available to it for the
purchase of such currency with Dollars at approximately 11:00 a.m. local time of
the Applicable Lending Office of the Agent on such date as a determination of
the Dollar Equivalent is made.
"Dollars" and "$" shall mean the lawful money of the United States of
America.
"Domestic Subsidiary" shall mean each present and future Subsidiary of
the Company which is not a Foreign Subsidiary.
"EBITDA" shall mean, for any period, Net Income for such period plus
all amounts deducted in determining such Net Income on account of (a) Total
Interest Expense, (b) income taxes, (c) depreciation and amortization expense,
(d) if agreed to by the Agent, reasonable charges from a merger or acquisition
and other non-cash charges, and (e) for purposes of calculating the financial
covenants in Section 5.2(b), (c) and (d), but not for purposes of determining
the Applicable Margin or for any other purpose, for the first three calendar
quarters of 1999 only, the impact on Net Income due to the General Motors
Corporation strike not to exceed $2,100,000 in the aggregate, all as determined
for the Company and its Subsidiaries on a consolidated basis in accordance with
Generally Accepted Accounting Principles.
"Effective Date" shall mean the effective date specified in the final
paragraph of this Agreement.
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"Eligible Accounts Receivable" shall mean, as of any date, those
accounts receivable owned by the Company or any Guarantor which is a Domestic
Subsidiary or is located in and organized under the laws of the United Kingdom,
Canada, Portugal or Mexico (but excluding, without limitation, Key S.A.S., Key
S.N.C. and the Foggini Group) which are payable in any Permitted Currency
(valued at the Dollar Equivalent thereof) and in which the Company or any such
Guarantor has granted to the Agent, for the benefit of the Agent and the
Lenders, an enforceable, perfected security interest which is not void or
voidable pursuant to a Security Agreement and all representations and warranties
pertaining to such accounts receivable in such Security Agreement are true and
correct, valued at the face amount thereof less sales, excise or similar taxes
outstanding and less returns, discounts, credits and allowances of any nature at
any time claimed in writing or issued, owing or granted; but shall not include
any such account receivable (a) that is not a bona fide existing obligation
created by the sale and actual delivery of inventory, goods or other property or
the furnishing of services or other good and sufficient consideration to
customers of the Company or any such Guarantor, as the case may be, in the
ordinary course of business, (b) that is more than 90 days past due or that
remains outstanding more than 90 days after the earlier of the date of the
invoice or the shipment of the related inventory, goods or other property or the
furnishing of the related services or other consideration, (c) that is subject
to any dispute, contra-account, defense, offset or counterclaim or any Lien
(except those in favor of the Agent under the Security Documents), or the
inventory, goods, property, services or other consideration of which such
account receivable constitutes proceeds are subject to any such Lien, but only
to the extent of such dispute, contra-account, defense, offset, counterclaim or
Lien, (d) in respect of which the inventory, goods, property, services or other
consideration have been rejected or the amount is in dispute, but only to the
extent of such dispute, (e) that is due from any Affiliate or Subsidiary of the
Company or any Guarantor, (f) that is payable by any Person located outside the
United States (which shall not be deemed to include any territories of the
United States), Canada or other country acceptable to the Agent, other than any
Subsidiary of General Motors Corporation, Ford Motor Company or DaimlerChrysler
AG or any other substantial auto manufacturer or supplier approved by the Agent;
(g) that is payable by the United States or any of its departments, agencies or
instrumentalities or by any state or other governmental entity or by any foreign
government unless the Company or such Guarantor, as the case may be, fully
complies with the Assignment of Claims Act and executes all documents and
agreements and causes all documents and agreements to be executed in connection
therewith as requested by the Agent or any similar foreign statute in the case
of accounts receivable payable by a foreign government, (h) that is payable by
any Person as to which 25% or more of the aggregate amount of such accounts
receivable payable by such Person to the Company or any such Guarantor, as the
case may be, do not otherwise constitute Eligible Accounts Receivable pursuant
to clause (b) of this definition (i) that are payable by any Person that is the
subject of any proceeding seeking to adjudicate it a bankrupt or insolvent or
seeking liquidation, winding up or reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief or protection of debtors or
seeking the appointment of a receiver, trustee, custodian or other similar
official for it or for any substantial part of its property, or that is not
generally paying its debts as they become due or has admitted in writing its
inability to pay its debts generally or has made a general assignment for the
benefit of creditors, (j) which is evidenced by a promissory note or other
instrument, or (k) that for any other reason is at any time deemed by the Agent
to be ineligible.
"Eligible Deferred Reimbursement Tooling" shall mean such portion of
long term assets, net of any payments received thereon, of the Company or a
Guarantor which is a Domestic Subsidiary or is located in and organized under
the laws of the United Kingdom, Canada or Portugal (but excluding, without
limitation, Key S.A.S., Key S.N.C., the Mexican Subsidiaries and the Foggini
Group) which consists of Tooling reimbursement payments provided that each of
the following conditions are satisfied: (a) the sale of the related Tooling is
covered under specific written purchase orders or agreements between the Company
or such Guarantor and the purchaser of such Tooling, and the terms and
provisions of all such purchase orders and agreements and the purchaser thereof
must be satisfactory to the Agent, (b) the Agent has a first priority, perfected
and enforceable security interest in the Company's or such Guarantor's interest
in such assets, including without
CREDIT AGREEMENT Page 7
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limitation, any account receivable or other proceeds of the Company or such
Guarantor relating to such long term assets, subject to only such Liens as are
permitted by Section 5.2(f)(i), (c) the unpaid balance of such Tooling as
represented by the Company or such Guarantor is not subject to any defense,
counterclaim, setoff, contra-account, credit, allowance or adjustment and (d)
such Tooling has been constructed in accordance with the requirements and other
terms of such purchase orders and other agreements relating thereto and the
purchaser thereof has approved such Tooling and is not disputing the
acceptability of such Tooling. For purposes of this definition, all Tooling
reimbursement payments of the Company or such Guarantor which are the subject of
any Tooling Contract financed by any lender other than by Advances by the
Lenders under this Agreement shall be excluded from this definition and no (i)
Eligible Inventory or (ii) accounts receivable included within Eligible Accounts
Receivable shall be included as part of Eligible Deferred Reimbursement Tooling.
"Eligible Inventory" shall mean, as of any date, that inventory
(including raw materials, work in process, tooling and finished goods) owned by
the Company or any Guarantor which is a Domestic Subsidiary or is located in and
organized under the laws of the United Kingdom, Canada or Portugal (but
excluding, without limitation, Key S.A.S., Key S.N.C., the Mexican Subsidiaries
and the Foggini Group) and in which the Company or such Guarantor has granted to
the Agent, for the benefit of the Lenders, an enforceable, perfected security
interest which is not void or voidable pursuant to a Security Agreement and all
representations and warranties pertaining to such inventory in such Security
Agreement are true and correct, valued at the lower of cost or market value on a
first-in-first-out basis and subject to such reserves as established by the
Agent, but shall not include any such inventory (a) that does not constitute
inventory readily salable or usable in the business of the Company or any such
Guarantor; (b) that is located outside the United States (which shall not be
deemed to include any territories of the United States), Canada or other country
acceptable to the Agent; (c) that is subject to, or any accounts or other
proceeds resulting from the sale or other disposition thereof could be subject
to, any Lien (except those in favor of the Agent under the Security Documents),
including any sale on approval or sale or return transaction or any consignment;
(d) that is not in the possession of the Company or any such Guarantor; (e) that
is held for lease or is the subject of any lease; (f) that is subject to any
trademark, trade name or licensing arrangement, or any law, rules or regulation,
that could limit or impair the ability of the Agent to promptly exercise all
rights of the Agent under the Security Agreements; (g) if such inventory is
located on premises not owned by the Company or any such Guarantor and the
landlord or other owner of such premises has not waived its distraint, lien and
similar rights with respect to such inventory and shall not have agreed to
permit the Agent to enter such premises pursuant to a waiver and agreement of
such Person in favor of and in form and substance acceptable to Agent; (h) with
respect to which any insurance proceeds are not payable to the Agent as a loss
payee or are payable to any loss payee other than the Agent, the Company or any
such Guarantor, as the case may be; or (i) that for any other reason is at any
time deemed by the Agent to be ineligible.
"Environmental Certificate" shall mean an appropriately completed
environmental certificate in the form of Exhibit C attached hereto delivered by
the Company and the Guarantors.
"Environmental Laws" at any date shall mean all provisions of law,
statutes, ordinances, rules, regulations, judgments, writs, injunctions,
decrees, orders, awards and standards promulgated by the government of the
United States of America or any foreign government or by any state, province,
municipality or other political subdivision thereof or therein or by any court,
agency, instrumentality, regulatory authority or commission of any of the
foregoing concerning the protection of, or regulating the discharge of hazardous
substances into, the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations thereunder.
CREDIT AGREEMENT Page 8
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"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which, together with the Company or any Subsidiary of the Company,
would be treated as a single employer under Section 414 of the Code.
"Estimation Period" shall mean the period for which a shareholder who
is an individual is required to estimate for Federal income tax purposes his
allocation of taxable income for a calendar year in connection with determining
his estimated federal income tax liability for such period.
"Event of Default" shall mean any of the events or conditions described
in Section 6.1.
"Excess Cash Flow" shall mean, for any fiscal year, an amount equal to
(i) EBITDA for such year plus (ii) Rental Charges for such year, plus (iii)
decreases in net working capital for such year, minus (iv) Capital Expenditures
for such year, minus (v) Fixed Charges for such year, and minus (vi) increases
in net working capital for such year.
"Exchange Rate" means with respect to any non-Dollar currency on any
date, the rate at which such currency may be exchanged into Dollars at the
Agent's spot rate of exchange in the interbank market where its foreign currency
exchange operations in respect of such non-Dollar currency are then being
conducted, at or about 10:00 a.m., London time, on such date for the purchase of
Dollars with such non-Dollar currency, for delivery two Business Days later;
provided, that if at the time of any such determination, no such spot rate can
reasonably be quoted, the Agent may use any reasonable method as it deems
applicable to determine such rate, and such determination shall be conclusive
absent manifest error.
"Federal Funds Rate" shall mean, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Detroit
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
"Financial Contract" of a Person shall mean (a) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (b) any Hedging Agreement.
"Fixed Charge Coverage Ratio" shall mean, as of the last day of any
fiscal quarter of the Company, the ratio of (a) EBITDA plus Rental Charges,
minus Capital Expenditures, to (b) Fixed Charges, in each case as calculated for
the four consecutive fiscal quarters then ending, all as determined in
accordance with Generally Accepted Accounting Principles.
"Fixed Charges" shall mean, for any period, the sum, without
duplication, of (a) Total Interest Expense plus (b) all payments of principal
and other sums required to be paid during such period by the Company or its
Subsidiaries with respect to Indebtedness of the Company or its Subsidiaries,
other than payments required under Sections 3.1(c), (d), (e) and (f) hereof, the
principal payment on the Senior Unsecured Notes and the Foggini Deferred
Payment, plus (c) Rental Charges paid or payable during such period by the
Company and its Subsidiaries, plus (d) all dividends, distributions and other
obligations paid with respect to any class of the Company's Capital Stock or any
dividend, payment or distribution paid in connection with the redemption,
purchase, retirement or other acquisition, directly or indirectly, of any shares
of the Company's Capital Stock, other than Permitted LLC Tax Dividends, plus (e)
all accrued income taxes for such period for the Company or its Subsidiaries,
which shall include, so long as the Company is a limited
CREDIT AGREEMENT Page 9
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liability company, the greater of the amount which is or should be accrued
quarterly by the Company to pay Permitted LLC Tax Dividends or the amount of
Permitted LLC Tax Dividends paid for such period, plus (f) all tax
indemnification or similar payments paid under the Foggini Acquisition
Documents.
"Foggini Acquisition" shall mean the acquisition by the Company of the
Foggini Group in accordance with the terms of the Foggini Acquisition Documents.
"Foggini Acquisition Documents" shall mean the Foggini Dividend
Assignments, the Foggini Option Agreement, the Foggini Purchase Agreement and
all other agreements and documents executed pursuant to the Foggini Acquisition
at any time.
"Foggini Deferred Payment" shall mean the deferred payment for the
Foggini Acquisition currently due on or about June 30, 1999 in the amount of
109,547,500 French Francs.
"Foggini Dividend Assignments" shall mean the assignments by the
Foggini Sellers to the Company of all of the Foggini Sellers interest in all
dividends and other distributions of Key Europe.
"Foggini Group" shall mean the entities being purchased by Key Europe
pursuant to the Foggini Acquisition, namely Foggini Groupe S.A., Foggini
Deutschland GmbH Company, Foggini Iberica SL Company, Foggini France Company SA,
Foggini Bohemia s.r.o. Company, Foggini Sa Company (Switzerland), Foggini & C
Srl. Company, Radicar Srl. Company Coril SA Company and Elmeg Srl Company.
"Foggini Option Agreement" shall mean the Unilateral Promise to Sell
Shares dated as of the date hereof and executed by the Foggini Sellers and the
Company, Key Plastics Automotive LLC and Key Plastics International LLC.
"Foggini Purchase Agreement" shall mean the Share Purchase Agreement
dated as of the date hereof among the Foggini Sellers and Key Europe.
"Foggini Sellers" shall mean, collectively, Massimo Foggini, Giovanni
Foggini, Paolo Foggini and Maria Alba Foggini.
"Foreign Subsidiary" shall mean any Subsidiary incorporated or formed
in any jurisdiction other than any State of the United States of America.
"France" shall mean the Republic of France.
"Generally Accepted Accounting Principles" shall mean generally
accepted accounting principles as in effect from time to time, applied on a
basis consistent (except for changes concurred in by the Company's independent
public accountants) with the most recent audited consolidated financial
statements of the Company and its Subsidiaries delivered to the Lenders.
"Guaranties" shall mean the guaranty entered into by each of the
Guarantors for the benefit of the Agent and the Lenders pursuant to this
Agreement in substantially the form of Exhibit D-1, Exhibit D-2 or Exhibit D-3
hereto, as amended or modified from time to time, and any other guaranty entered
into by any Guarantor at any time, in each case as amended or modified from time
to time.
"Guarantor" shall mean Key Plastics Holdings, Inc., each present and
future Subsidiary of the Company, or any other person executing a Guaranty at
any time, other than any Subsidiary prohibited by
CREDIT AGREEMENT Page 10
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applicable law from executing a Guaranty, and the Company as a Guarantor with
respect to all of the Borrowing Subsidiaries.
"Hedging Agreement" shall mean an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Hedging Obligations" of a Person means any and all obligations of such
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all Hedging
Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Hedging Agreement.
"Indebtedness" of any Person shall mean, as of any date, (a) all
obligations of such Person for borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or bankers' acceptances, (b) all obligations of
such Person as lessee under any Capital Lease, (c) all obligations which are
secured by any Lien existing on any asset or property of such Person whether or
not the obligation secured thereby shall have been assumed by such Person, (d)
the unpaid purchase price for goods, property or services acquired by such
Person, except for trade accounts and accrued expenses payable arising in the
ordinary course of business which are not past due within customary payment
terms, (e) all Hedging Obligations of such Person (valued in an amount equal to
the highest termination payment, if any, that would be payable by such Person
upon termination for any reason on the date of determination), and (f) all
Contingent Liabilities of such Person with respect to or relating to
indebtedness, obligations and liabilities of others similar in character to
those described in clauses (a) through (e) of this definition.
"Initial Public Offering" means the sale of capital stock of the
Company pursuant to (a) a registration statement under the Securities Act that
has been declared effective by the SEC or (b) a public offering outside the
United States and which results, in either case, in an active trading market for
such shares. An active trading market shall be deemed to exist if such shares
are listed on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market System or any major international trading market
exchange.
"Interest Coverage Ratio" shall mean, as of the end of any fiscal
quarter, the ratio of (a) EBITDA to (b) Total Interest Expense, in each case as
calculated for the four consecutive fiscal quarters then ending, all as
determined in accordance with Generally Accepted Accounting Principles.
"Interest Payment Date" shall mean (a) with respect to any LIBOR Loan,
the last day of each LIBOR Interest Period with respect to such LIBOR Loan, and,
in the case of any LIBOR Interest Period exceeding three months, those days that
occur during such LIBOR Interest Period at intervals of three months after the
first day of such LIBOR Interest Period and (b) in all other cases, the last
Business Day of each March, June, September and December occurring after the
date hereof, commencing with the first such Business Day occurring after the
date of this Agreement.
"Joinder Agreement" shall mean any joinder agreement entered into by a
Borrowing Subsidiary subsequent to the date hereof, which shall be in form and
substance satisfactory to the Agent.
"Key Europe" shall mean Key Foggini Europe Sarl, a societe a
responsabiliti limitee incorporated under the laws of Luxembourg.
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"Key S.A.S." shall mean Key Plastics France, S.A.S., a corporation
formed under the laws of France.
"Key S.N.C." shall mean Key Plastics International, S.N.C., a general
partnership formed under the laws of France.
"Key U.K." shall mean Key Plastics, U.K., an unlimited company
incorporated in England.
"LaSalle" shall mean LaSalle National Bank, a national banking
association of Chicago, Illinois.
"Lender Indebtedness" shall mean, without duplication, (a) the Advances
and all other indebtedness, obligations and liabilities of each Borrower and of
each Guarantor to the Agent or the Lenders under any Loan Document, and (b) all
Hedging Obligations of any Borrower or Guarantor to any Lender or Affiliate of a
Lender.
"Letter of Credit" shall mean a C/L/C or S/L/C having a stated expiry
date or a date upon which the draft must be reimbursed not later than twelve
months (other than Bond L/C's, which may be up to three years, the MaP Letter of
Credit and Letters of Credit which are automatically renewable annually but may
be cancelled by the Agent annually are permissible) after the date of issuance
and not later than the fifth Business Day before the Termination Date, issued by
an L/C Issuing Bank on behalf of the Revolving Credit Lenders for the account of
the Company pursuant to Section 2.1(a) under an application and related
documentation acceptable to the L/C Issuing Bank issuing such Letter of Credit
requiring, among other things, immediate reimbursement by the Company or such
Subsidiary to the L/C Issuing Bank in respect of all drafts or other demand for
payment honored thereunder and all expenses paid or incurred by the L/C Issuing
Bank relative thereto.
"Letter of Credit Advance" shall mean any issuance of a Letter of
Credit under Section 2.4 made pursuant to Section 2.1(a) in which each Revolving
Credit Lender acquires a pro rata risk participation.
"Letter of Credit Documents" shall have the meaning ascribed thereto in
Section 3.3(b).
"L/C Issuing Bank" shall mean the Agent, provided, however, that with
respect to the MaP Letter of Credit, it shall mean LaSalle.
"LIBOR" shall mean, with respect to any LIBOR Loan and the related
LIBOR Interest Period, the per annum rate that is equal to the sum of:
(a) the Applicable Margin, plus
(b) the rate per annum obtained by dividing (i)(A) in the case of any
LIBOR Loan denominated in CAD the LIBOR Base Rate determined for such LIBOR
Interest Period in the manner set forth in Schedule 1.1-B hereto, or (B) in the
case of all LIBOR Loans denominated in Dollars, the per annum rate of interest
at which deposits in Dollars for such LIBOR Interest Period and in an aggregate
amount comparable to the amount of such LIBOR Loan to be made by the Agent in
its capacity as a Lender hereunder are offered to the Agent by other prime banks
in the London interbank market at approximately 11:00 a.m. local time in London
on the second LIBOR Business Day prior to the first day of such LIBOR Interest
Period, by (ii) an amount equal to one minus the stated maximum rate (expressed
as a decimal) of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) that is specified
on the first day of such LIBOR Interest Period by the Board of Governors of the
Federal Reserve System (or any successor agency thereto) or any governmental
authority (including any nation or government, any political subdivision thereof
and any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government) having jurisdiction
with respect thereto, for determining the
CREDIT AGREEMENT Page 12
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maximum reserve requirement with respect to eurocurrency funding (in the case of
the Board of Governors of the Federal Reserve System currently referred to as
"Eurocurrency liabilities" in Regulation D of such Board) to be maintained by a
member of the Federal Reserve System or an FDIC - insured institution, all as
conclusively determined by the Agent, each such sum to be rounded up, if
necessary, to the nearest whole multiple of one one-hundredth of one percent
(1/100 of 1%).
"LIBOR Business Day" shall mean, with respect to any LIBOR Loan, a day
which is both a Business Day and a day on which dealings in deposits in the
currency in which such LIBOR Loan is denominated are carried out in the
principal financial center of the jurisdiction of issue of such currency and in
the London interbank market.
"LIBOR Interest Period" shall mean, with respect to any LIBOR Loan, the
period commencing on the day such LIBOR Loan is made or converted to a LIBOR
Loan and ending on the date one, two, three or six months thereafter, as the
Company may elect under Section 2.4 or 2.7, and each subsequent period
commencing on the last day of the immediately preceding LIBOR Interest Period
and ending on the date one, two, three or six months thereafter, as the Company
may elect under Section 2.4 or 2.7, provided, however, that (a) any LIBOR
Interest Period which commences on the last LIBOR Business Day of a calendar
month (or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last LIBOR Business Day
of the appropriate subsequent calendar month, (b) each LIBOR Interest Period
which would otherwise end on a day which is not a LIBOR Business Day shall end
on the next succeeding LIBOR Business Day or, if such next succeeding LIBOR
Business Day falls in the next succeeding calendar month, on the next preceding
LIBOR Business Day, (c) no LIBOR Interest Period which would end after Maturity
Date A with respect to Term Loan A or after Maturity Date B with respect to Term
Loan B or the Termination Date with respect to any Revolving Credit Loan shall
be permitted, and (d) with respect to any LIBOR Interest Period in which occurs
a scheduled principal repayment date with respect to the related LIBOR Loan
pursuant to Section 3.1(b), a portion of such LIBOR Loan, not exceeding the
amount of the scheduled principal payment, shall have a LIBOR Interest Period
terminating on such principal payment date.
"LIBOR Loan" shall mean any Loan which bears interest at LIBOR.
"Lien" shall mean any pledge, assignment, hypothecation, mortgage,
fixed or floating charge, security interest, deposit arrangement, option,
conditional sale or title retaining contract, sale and leaseback transaction,
financing statement filing, lessor's or lessee's interest under any capital
lease, subordination of any claim or right, or any other type of lien, charge or
encumbrance.
"Loan" shall mean any Revolving Credit Loan, any Term Loan and any
Swingline Loan. Any such Loan or portion thereof may also be denominated as an
Adjusted Prime Rate Loan or a LIBOR Loan and such Adjusted Prime Rate Loans and
LIBOR Loans are referred to herein as "types" of Loans.
"Loan Document" shall mean, collectively, this Agreement, the Notes,
the Security Documents and any other agreement, instrument or document executed
in connection with any of the foregoing at any time.
"MaP" shall mean Materias de Plasticas, S.A., a sociedade anonima de
responsabilidade limitada incorporated under the laws of Portugal.
"MaP Letter of Credit" shall mean a letter of credit issued by LaSalle
for the benefit of ABN Amro Bank, Lisbon Branch, for the account of the Company
in an amount not to exceed $15,000,000 in accordance with the terms and
conditions set forth in Section 2.4(d)(ii) hereto, as the same may be amended or
substituted from time to time with the consent of the Agent.
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"Material Adverse Effect" shall mean (i) a material adverse effect on
the property, business, operations, financial condition, liabilities or
capitalization of the Company and its Subsidiaries, taken as a whole, (ii) a
material adverse effect on the ability of the Company or any Guarantor to
perform its obligations under the Loan Documents or (iii) a material adverse
effect on the rights and remedies of the Agent or the Lenders under the Loan
Documents.
"Maturity Date A" shall mean the earlier to occur of (a) the date on
which the maturity of Term Loan A is accelerated pursuant to Section 6.2 and (b)
March 26, 2005.
"Maturity Date B" shall mean the earlier to occur of (a) the date on
which the maturity of Term Loan B is accelerated pursuant to Section 6.2 and (b)
March 26, 2006.
"Mexican Subsidiaries" shall mean Subsidiaries of the Company located
in Mexico or organized or existing under the laws of Mexico or any political
subdivision thereof.
"Mexico" shall mean the United Mexican States.
"Mortgages" shall mean each mortgage, deed of trust or similar
agreement executed by any Borrower or Guarantor in connection herewith or in
connection with the Existing Credit Agreement, as amended or modified from time
to time, and each such mortgage, deed of trust or similar agreement shall be in
form and substance satisfactory to the Agent.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"NBD" shall mean NBD Bank, a Michigan banking corporation, including
any of its branches and Affiliates.
"NBD Canada" shall mean First Chicago NBD Bank, Canada, a Canadian
chartered bank.
"Net Cash Proceeds" shall mean, (a) in connection with any sale or
other disposition of any asset or any settlement by, or receipt of payment in
respect of, any property insurance claim or condemnation award, the cash
proceeds (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such sale,
settlement or payment, net of reasonable and documented attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied to
the repayment of Indebtedness secured by a Lien expressly permitted hereunder on
any asset which is the subject of such sale, insurance claim or condemnation
award (other than any Lien in favor of the Agent for the benefit of the Agent
and the Lenders) and other customary fees actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof and (b) in connection with any issuance or sale of any equity
securities or debt securities or instruments or the incurrence of loans, the
cash proceeds received from such issuance or incurrence, net of investment
banking fees, reasonable and documented attorneys' fees, accountants' fees,
underwriting discounts and commissions and other reasonable and customary fees
and expenses actually incurred in connection therewith.
"Net Income" shall mean, for any period, the net income (or loss) of
the Company and its Subsidiaries on a consolidated basis for such period taken
as a single accounting period, determined in accordance with Generally Accepted
Accounting Principles; provided that in determining Net Income there shall be
excluded, without duplication: (a) the income of any Person (other than a
Subsidiary of the Company) in which any Person other than the Company or any of
its Subsidiaries has a joint interest or partnership interest or other ownership
interest, except to the extent of the amount of dividends or other distributions
actually paid to the Company or
CREDIT AGREEMENT Page 14
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any of its Subsidiaries by such Person during such period, (b) the income of any
Person accrued prior to the date it becomes a Subsidiary of the Company or is
merged into or consolidated with the Company or any of its Subsidiaries or that
Person's assets are acquired by the Company or any of its Subsidiaries, (c) the
proceeds of any insurance policy, (d) gains (but not losses) from the sale,
exchange, transfer or other disposition of property or assets not in the
ordinary course of business of the Company and its Subsidiaries, and related tax
effects in accordance with Generally Accepted Accounting Principles, (e) any
other extraordinary or non-recurring gains of the Company or its Subsidiaries,
and related tax effects in accordance with Generally Accepted Accounting
Principles, and (f) the income of any Subsidiary of the Company to the extent
that the declaration or payment of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted by operation of the terms
of its charter or of any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary.
"Net Worth" shall mean, as of any date, the amount of any capital
stock, paid in capital and similar equity accounts, including minority
interests, plus (or minus in the case of a deficit) the capital surplus and
retained earnings of the Company and the Subsidiaries and the amount of any
foreign currency translation adjustment account shown as a capital account of
the Company and its Subsidiaries, all on a consolidated basis in accordance with
Generally Accepted Accounting Principles.
"Non-Competition Agreement" shall mean, collectively, the non
competition and similar agreements described on Schedule 1.1-C hereto.
"Note" shall mean any Revolving Credit Note, any Term Loan Note or any
Swingline Note.
"Overdue Rate" shall mean (a) in respect of principal of Adjusted Prime
Rate Loans, a rate per annum that is equal to the sum of three percent (3%) per
annum plus the Adjusted Prime Rate, (b) in respect of principal of LIBOR Loans,
a rate per annum that is equal to the sum of three percent (3%) per annum plus
the per annum rate in effect thereon until the end of the then current LIBOR
Interest Period for such Loan and, thereafter, a rate per annum that is equal to
the sum of three percent (3%) per annum plus the LIBOR for the currency in which
such Loan is denominated for each successive LIBOR Interest Period selected by
the Agent in its discretion from time to time until such LIBOR Loan is paid in
full, together with any amounts due under Section 3.9 of this Agreement if such
payment is made other than on the last day of the LIBOR Interest Period then
applicable to such LIBOR Loan,, and (c) in respect of other amounts payable by
the Borrowers hereunder (other than interest), a per annum rate that is equal to
the sum of three percent (3%) per annum plus the Adjusted Prime Rate.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Currency" shall mean Dollars, CAD and any other currency
agreed to by the Agent in its discretion, in each case (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily
offered to banks in the London interbank market, (iv) which is convertible into
Dollars in the international interbank market and (v) as to which a Dollar
Equivalent may be readily calculated. If, after the designation by the Agent of
any currency as a Permitted Currency, (x) currency control or other exchange
regulations are imposed in the country in which such currency is issued with the
result that different types of such currency are introduced, (y) such currency
is, in the determination of the Agent, no longer readily available or freely
traded or (z) in the determination of the Agent, a Dollar Equivalent of such
currency is not readily calculable, the Agent shall promptly notify the Lenders
and the Company, and such currency shall no longer be a Permitted Currency until
such time as all of the Agent agree to reinstate such currency as a Permitted
Currency and promptly, but in any event within five Business Days of receipt of
such notice from the Agent, the relevant Borrower shall repay all Loans in such
affected currency.
CREDIT AGREEMENT Page 15
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"Permitted Liens" shall mean Liens permitted by Section 5.2(f) hereof.
"Permitted Quarterly Tax Distributions" shall mean quarterly
distribution of Tax Amounts determined on the basis of the estimated taxable
income of the Company, for the related Estimation Period, provided, however,
that: (A) prior to any distributions of Tax Amounts the Company shall deliver an
officers' certificate certifying that the Tax Amounts to be distributed were
determined pursuant to the terms of this Agreement, containing a comparison of
such distribution of Tax Amounts to the projections of such distributions
supplied by the Company to the Agent and explaining the reasons for any
differences, and stating to the effect that the Company qualifies as a limited
liability company or substantially similar pass-through entity for Federal
Income tax purposes and (B) at the time of such distributions, the most recent
audited financial statements of the Company reflect that the Company was treated
as a limited liability company or substantially similar pass-through entity for
Federal income tax purposes for the period covered by such financial statements.
"Permitted LLC Tax Dividends" shall mean the dividends permitted by
clause (iii) of Section 5.2 (j).
"Person" shall include an individual, a corporation, an association, a
partnership, a trust or estate, a joint stock company, an unincorporated
organization, a joint venture, a trade or business (whether or not
incorporated), a government (foreign or domestic) and any agency or political
subdivision thereof, or any other entity.
"Plan" shall mean any pension plan (other than a Multiemployer Plan)
subject to Title IV of ERISA or to the minimum funding standards of Section 412
of the Code which has been established or maintained by the Company, any
Subsidiary of the Company or any ERISA Affiliate, or by any other Person if the
Company, any Subsidiary of the Company or any ERISA Affiliate could have
liability with respect to such pension plan.
"Pledge Agreements" shall mean each Pledge Agreement entered into by
the Company or any Guarantor for the benefit of the Agent and the Lenders
pursuant to this Agreement substantially in the forms attached hereto as
Exhibits E-1, E-2 and E-3, as amended or modified from time to time.
"Portugal" shall mean the Republic of Portugal.
"Prime Rate" shall mean the per annum rate announced by the Agent from
time to time as its "prime rate" (it being acknowledged that such announced rate
may not necessarily be the lowest rate charged by the Agent to any of its
customers, and such "prime rate" in the case of Canadian Advances shall be the
sum of 150 basis points plus such "prime rate" established by NBD Canada for
loans to its Canadian commercial borrowers), or the corporate base rate of
interest announced or established by any Affiliate of the Agent or, when used in
connection with any Advance denominated in any Permitted Currency other than
Dollars or CAD, "Prime Rate" means the correlative floating rate of interest
customarily applicable to similar extensions of credit to corporate borrowers
denominated in such currency in the country of issue, as determined by the
Agent, which Prime Rate shall change simultaneously with any change in such
announced or established rates.
"Principals" shall mean (i) any or all of David Benoit, George Mars and
Joel Tauber and (ii) any trust established by any of the foregoing, provided
that the beneficiaries of the trust are members of such Person's immediate
family and such Person maintains sole voting power over the shares held by such
trust.
"Prohibited Transaction" shall mean any transaction involving any Plan
which is proscribed by Section 406 of ERISA or Section 4975 of the Code.
CREDIT AGREEMENT Page 16
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"Quarterly Payment Period" shall mean the period commencing on the
tenth day and ending on and including the twentieth day of each month in which
Federal individual estimated tax payments are due; provided that payments in
respect of estimated state income taxes due in January may instead, at the
option of the Company, be paid during the last 20 days of the immediately
preceding December.
"Reimbursement Agreements" shall mean the Standby Letter of Credit
Applications and Reimbursement Agreements executed in connection with the Bond
L/Cs, as amended or modified from time to time.
"Reimbursement Amount" is defined in Section 3.3(a)(i).
"Related Fund" means, with respect to any Term Loan B Lender that is a
fund that invests in bank loans, any other fund that invests in bank loans and
is managed by the same investment advisor as such Term Loan B Lender or by an
Affiliates of such investment advisor.
"Related Party" with respect to any Principal shall mean (A) any
controlling stockholder, 80% (or more) owned Subsidiary, or spouse or immediate
family member (in the case of an individual) of such Principal or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Principal and/or such other Persons referred
to in the immediately preceding clause (A).
"Rental Charges" shall mean, for any period, the maximum amount of all
rents and other payments (exclusive of property taxes, property and liability
insurance premiums and maintenance costs) paid or required to be paid by the
Company or its Subsidiaries during such period under any lease of real or
personal property in respect of which the Company or its Subsidiaries are
obligated as a lessee or user, other than any Capital Lease.
"Reportable Event" shall mean a reportable event as described in
Section 4043(b) of ERISA including without limitation those events as to which
the thirty (30) day notice period is waived under Part 2615 of the regulations
promulgated by the PBGC under ERISA.
"Required Lenders" shall mean Lenders holding not less than (i) 51% of
the Dollar Equivalent of the Commitments at the time of voting (provided that,
after any Term Loan is made, the amount of the Term Loan Commitment with respect
thereto shall be deemed equal to the outstanding principal balance of the
related Term Loan for purposes of this definition), or (ii) 51% of the Dollar
Equivalent of the Advances at the time of voting if the Commitments have expired
or been terminated.
"Required Revolving Credit Lenders" shall mean Revolving Credit Lenders
holding not less than 51% of the Revolving Credit Commitments (or 51% of the
Revolving Credit Advances if the Revolving Credit Commitments have been
terminated).
"Required Term Loan B Lenders" shall mean Term Loan B Lenders holding
not less than 51% of the outstanding principal amount of Term Loan B.
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other governmental authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Revolving Credit Advance" shall mean any Revolving Credit Loan and any
Letter of Credit Advance.
CREDIT AGREEMENT Page 17
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"Revolving Credit Commitments" shall mean, with respect to each Lender,
the commitment of each such Lender to make Revolving Credit Loans, and to
participate in Letter of Credit Advances, in amounts not exceeding in the
aggregate principal or face amount outstanding at any time the Revolving Credit
Commitment amount for such Lender set forth next to the name of such Lender on
the signature pages hereof, or, as to any Lender becoming a party hereto after
the Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced pursuant to Section 2.2 or modified pursuant to Section
8.6.
"Revolving Credit Lenders" shall mean those Lenders which have a
Revolving Credit Commitment or, if such Commitment shall have been terminated,
have outstanding Revolving Credit Advances.
"Revolving Credit Loan" shall mean any borrowing under Section 2.4 and
made pursuant to Section 2.1(a).
"Revolving Credit Notes" shall mean the promissory notes of the Company
evidencing the Revolving Credit Loans, in substantially the form annexed hereto
as Exhibit F-1, respectively, as amended or modified from time to time and
together with any promissory note or notes issued in exchange or replacement
therefor, and "Revolving Credit Note" shall mean any one of such Revolving
Credit Notes.
"Security Agreements" shall mean each Security Agreement entered into
by the Company or any Guarantor for the benefit of the Agent and the Lenders
pursuant to this Agreement substantially in the forms attached hereto as Exhibit
G-1, G-2 and G-3, as amended or modified from time to time, and any other
agreement executed by the Company granting a Lien for the benefit of the Agent
and the Lenders in form or substance satisfactory to the Agent, as amended or
modified from time to time.
"Security Documents" shall mean the Mortgages, the Pledge Agreements,
the Security Agreements, the Guaranties, the Reimbursement Agreements, the
Assignment of Rents and Leases and all other agreements and documents delivered
pursuant to this Agreement or otherwise entered into by any Person to secure or
guaranty the obligations of the Borrowers or any of them under this Agreement or
the Existing Credit Agreement, including without limitation, to the extent such
documents (or the benefit thereof) have been transferred to the Agent for the
benefit of itself and the Lenders, all collateral security documents of whatever
nature granted by MaP to the financial institution named as the beneficiary in
the MaP Letter of Credit to secure its loans to MaP which are supported by the
MaP Letter of Credit.
"Senior Subordinated Debt Documents" shall mean the Senior Subordinated
Note Indenture, the Senior Subordinated Notes and all agreements and documents
executed in connection therewith at any time, including without limitation those
agreements and documents listed on Schedule 1.1-D hereto.
"Senior Subordinated Notes" shall mean the Senior Subordinated Notes
issued by the Company in the aggregate principal amount of $125,000,000 due 2007
issued pursuant to the Senior Subordinated Note Indenture.
"Senior Subordinated Note Indenture" shall mean the Senior Subordinated
Indenture between the Company and Marine Midland Bank, as trustee, dated as of
March 24, 1997, as amended or modified from time to time.
"Senior Unsecured Debt Documents" shall mean the Senior Unsecured Note
Indenture, the Senior Unsecured Notes and all agreements and documents executed
in connection therewith at any time, including without limitation those
agreements and documents listed on Schedule 1.1-E hereto.
CREDIT AGREEMENT Page 18
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"Senior Unsecured Notes" issued by the Company in the original
aggregate principal amount of $65,000,000 due 1999 issued pursuant to the Senior
Unsecured Note Indenture, and with a principal balance as of the Effective Date
of $14,015,000.
"Senior Unsecured Note Indenture" shall mean the Indenture dated as of
November 17, 1992 between the Company and Mellon Bank F.S.B. (successor to
KeyBank National Association, formerly known as Society National Bank), as
trustee, as amended or modified from time to time.
"Senior Unsecured Note Portion" shall mean an amount equal to the
unpaid principal balance of the Senior Unsecured Notes (which amount is equal to
$14,015,000 as of the Effective Date), and such amount is blocked from the
Revolving Credit Commitments and the Borrowing Base for the purpose of funding
the principal payments due on the Senior Unsecured Notes.
"S/L/C" shall mean any standby letter of credit issued hereunder.
"Subordinated Debt" shall mean, for any Person, any Indebtedness of
such Person which is fully subordinated to all Indebtedness of such Person owing
to the Agent and the Lenders, by written agreements and documents in form and
substance satisfactory to the Agent and which is governed by terms and
provisions, including without limitation maturities, covenants, defaults, rates
and fees, acceptable to the Agent, and shall include, without limitation, all
Indebtedness owing pursuant to the Senior Subordinated Notes.
"Subordinated Debt Documents" shall mean the Senior Subordinated Debt
Documents and any other agreement or document evidencing or relating to any
Subordinated Debt, whether under the Senior Subordinated Notes or any other
Subordinated Debt.
"Subsidiary" of any Person shall mean any other Person (whether now
existing or hereafter organized or acquired) in which (other than directors,
qualifying shares required by law) at least a majority of the securities or
other ownership interests of each class having ordinary voting power or
analogous right (other than securities or other ownership interests which have
such power or right only by reason of the happening of a contingency), at the
time as of which any determination is being made, are owned, beneficially and of
record, by such Person or by one or more of the other Subsidiaries of such
Person or by any combination thereof.
"Swingline Loan" shall mean any loan under Section 2.4 and made by the
Agent to the Company pursuant to Section 2.1(d).
"Swingline Note" shall mean any promissory note of any Borrower
evidencing the Swingline Loans in substantially the form of Exhibit F-2 hereto,
as amended or modified from time to time and together with any promissory note
or notes issued in exchange or replacement therefor.
"Tax Amounts" with respect to any taxable period shall not exceed an
amount equal to (A) the product of (x) the taxable income of the Company for
such period as determined by the Tax Amounts CPA and (y) the Tax Percentage
reduced by (B) to the extent not previously taken into account, any income tax
benefit attributable to the Company which could be realized (without regard to
the actual realization) by its stockholders in the current or any prior taxable
year, or portion thereof, commencing on or after the Effective Date (including
any tax losses or tax credits), computed at the applicable Tax Percentage for
the year that such benefit is taken into account for purposes of this
computation.
"Tax Amounts CPA" shall mean a nationally recognized certified public
accounting firm.
CREDIT AGREEMENT Page 19
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"Tax Percentage" shall mean, for a particular taxable year, the highest
effective marginal combined rate of Federal and state income tax, imposed on an
individual taxpayer, as certified by the Tax Amounts CPA in a certificate filed
with the Agent. The rate of open "state income tax" to be taken into account for
purposes of determining the Tax Percentage for a particular taxable year shall
be deemed to be the highest state marginal tax rate applicable to any member of
the Company.
"Term Loan A" shall mean the single borrowing under Section 2.4 and
made to the Borrowers pursuant to Section 2.1(b).
"Term Loan A Commitment" shall mean, with respect to each Lender, the
commitment of each Lender to make Term Loan A in an amount not exceeding in the
aggregate principal amount outstanding at any time the Term Loan A Commitment
amount for such Lender set forth next to the name of such Lender on the
signature pages hereof, or, as to any Lender becoming a party hereto after the
Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced by payments on the Term Loan A or modified pursuant to
Section 8.6.
"Term Loan A Lenders" shall mean those Lenders which have a Term Loan A
Commitment or, if such Commitments have been terminated, have an outstanding
portion of the Term Loan A.
"Term Loan A Notes" shall mean the promissory notes of the Borrowers
evidencing Term Loan A, in substantially the form of Exhibit F-3, as amended or
modified from time to time and together with any promissory note or notes issued
in exchange or replacement therefor, and "Term Loan A Note" shall mean any one
of such Term Loan A Notes.
"Term Loan B" shall mean the single borrowing under Section 2.4 and
made to the Company pursuant to Section 2.1(c).
"Term Loan B Commitment" shall mean, with respect to each Lender, the
commitment of each Lender to make Term Loan B in an amount not exceeding in the
aggregate principal amount outstanding at any time the Term Loan B Commitment
amount for such Lender set forth next to the name of such Lender on the
signature pages hereof, or, as to any Lender becoming a party hereto after the
Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced by payments on the Term Loan B or modified pursuant to
Section 8.6.
"Term Loan B Lenders" shall mean those Lenders which have a Term Loan B
Commitment or, if such Commitments have been terminated, have an outstanding
portion of the Term Loan B.
"Term Loan B Notes" shall mean the promissory notes of the Company
evidencing the Term Loan B, in substantially the form of Exhibit F-4, as amended
or modified from time to time and together with any promissory note or notes
issued in exchange or replacement therefor, and "Term Loan B Note" shall mean
any one of such Term Loan B Notes.
"Term Loan Commitments" shall mean, collectively, the Term Loan A
Commitments and the Term Loan B Commitments.
"Term Loan Notes" shall mean, collectively, the Term Loan A Notes and
the Term Loan B Notes.
"Term Loans" shall mean Term Loan A and Term Loan B.
CREDIT AGREEMENT Page 20
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"Term Loan B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make the Term Loan B in an amount not exceeding in
the aggregate principal amount outstanding at any time the Term Loan B
Commitment amount for such Lender set forth next to the name of such Lender on
the signature pages hereof, or, as to any Lender becoming a party hereto after
the Effective Date, as set forth in the applicable Assignment and Acceptance, in
each case as reduced by payments on the Term Loan B or modified pursuant to
Section 8.6.
"Term Loans" shall mean, collectively, Term Loan A and Term Loan B.
"Termination Date" shall mean the earlier to occur of (a) March 26,
2005, and (b) the date on which the Revolving Credit Commitments shall be
terminated pursuant to Section 2.2 or 6.2.
"Tooling" shall mean dies, molds, tooling and similar items.
"Tooling Contract" shall mean any contract for the fabrication or
purchase of Tooling.
"Total Debt" as of any date, shall mean the difference of (a) the sum
of all of the following for the Company and its Subsidiaries on a consolidated
basis, without duplication: (i) all debt for borrowed money and similar monetary
obligations evidenced by bonds, notes, debentures, Capital Lease obligations or
otherwise, including without limitation obligations in respect of the deferred
purchase price of properties or assets, factoring of receivables, asset
securitization and book and bank overdrafts, in each case whether direct or
indirect; (ii) all liabilities secured by any Lien existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; (iii) all reimbursement obligations under outstanding letters
of credit in respect of drafts which (A) may be presented or (B) have been
presented and have not yet been paid and are not included in clause (i) above;
and (iv) all guarantees and other Contingent Liabilities relating to
indebtedness, obligations or liabilities of the type described in the foregoing
clauses (i), (ii) and (iii); minus (b) without duplication, the sum of all cash
and Cash Equivalents owned by the Company or any Guarantor free and clear of any
Lien (other than in favor of the Agent pursuant to the Security Documents).
"Total Debt to EBITDA Ratio" shall mean, at any time, the ratio of (a)
Total Debt at such time to (b) EBITDA, as calculated for the four most recently
completed fiscal quarters of the Company.
"Total Interest Expense" shall mean, for any period, total interest and
related expense (including, without limitation, that portion of any Capitalized
Lease obligation attributable to interest expense in conformity with Generally
Accepted Accounting Principles, all capitalized interest, the interest portion
of any deferred payment obligations, all commissions, discounts and other fees
and charges owed with respect to letter of credit and bankers acceptance
financing, the net costs and net payments under any interest rate hedging, cap
or similar agreement or arrangement, prepayment charges, agency fees,
administrative fees and commitment fees) paid, payable or accrued during such
period, without duplication for any other period, with respect to all
outstanding Indebtedness of the Company and its Subsidiaries, all as determined
for the Company and its Subsidiaries on a consolidated basis for such period in
accordance with Generally Accepted Accounting Principles except to the extent
otherwise described above; provided that the interest with respect to the Senior
Unsecured Notes shall be calculated at the interest rate applicable to the
Revolving Credit Loans for purposes of this definition.
"True-up Amount" means, in respect of a particular taxable year, an
amount determined by the Tax Amounts CPA equal to the difference between (i) the
aggregate permitted Quarterly Tax Distributions actually distributed in respect
of such taxable year and (ii) the actual Tax Amounts for such year. For purposes
of this Agreement, the amount equal to the excess, if any, of the amount
described in clauses (i) over the amount described in clause (ii) above shall be
referred to as the "True-up Amount due to the Company"
CREDIT AGREEMENT Page 21
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and the excess, if any, of the amount described in clause (ii) over the amount
described in clause (i) above shall be referred to as the "True-up Amount due to
the stockholders."
"True-up Determination Date" shall mean the date on which the Tax
Amounts CPA delivers a statement to the Agent indicating the True-up Amount.
"Unfunded Benefit Liabilities" shall mean, with respect to any Plan as
of any date, the amount of the unfunded benefit liabilities determined in
accordance with Generally Accepted Accounting Principles.
"United Kingdom" shall mean the United Kingdom of Great Britain and
Northern Ireland.
"Unmatured Event" shall mean any event or condition which might become
an Event of Default with notice or lapse of time or both.
"U.S. Advance" shall mean any Loan denominated in Dollars.
"Year 2000 Issues" shall mean anticipated costs, problems and
uncertainties associated with the inability of certain computer applications to
effectively handle data including dates on and after January 1, 2000, as such
inability affects the business, operations and financial condition of the
Company and its Subsidiaries and of the Company and its Subsidiaries' material
customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 4.25.
1.2 Other Definitions; Rules of Construction. As used herein, the terms
"Lenders", "Company", and "this Agreement" shall have the respective meanings
ascribed thereto in the introductory paragraph of this Agreement. Such terms,
together with the other terms defined in Section 1.1, shall include both the
singular and the plural forms thereof and shall be construed accordingly. Use of
the terms "herein", "hereof", and "hereunder" shall be deemed references to this
Agreement in its entirety and not to the Section or clause in which such term
appears. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
1.3 Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered to
the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared, in accordance with Generally Accepted Accounting
Principles provided that, if the Company notifies the Agent that it wishes to
amend any covenant in Article V to eliminate the effect of any change in
Generally Accepted Accounting Principles (or if the Agent notifies the Company
that the Required Lenders wish to amend Article V for such purpose), then the
Company's compliance with such covenants shall be determined on the basis of
Generally Accepted Accounting Principles in effect immediately before the
relevant change in Generally Accepted Accounting Principles became effective
until either such notice is withdrawn or such covenant or any such defined term
is amended in a manner satisfactory to the Company and the Required Lenders.
Except as otherwise expressly provided herein, all references to a time of day
shall be references to Detroit, Michigan time. Notwithstanding anything herein,
in any financial statements of the Company or in Generally Accepted Accounting
Principles to the contrary, for purposes of calculating and determining
compliance with the financial covenants in Sections 5.2(a), (b), (c) and (d),
including defined terms used therein, any Acquisitions, if any, made by the
Company or any of its Subsidiaries including any related financing transactions,
during the period for which such financial covenants were calculated shall be
deemed to have occurred on the first day of the relevant period for which such
CREDIT AGREEMENT Page 22
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financial covenants were calculated on a pro forma basis acceptable to the
Agent. Notwithstanding anything in Sections 5.2(b), (c) or (d) or in the
definition of Applicable Margin (or the defined terms as used in Sections
5.2(b),(c) or (d) or within the definition of Applicable Margin), such financial
covenants shall be tested, and the Applicable Margin shall be adjusted, for the
first time based on the results for the fiscal quarter ending March 31, 1999.
(b) The Company shall deliver to the Lenders at the same time
as the delivery of any annual or quarterly financial statement under Section
5.1(d) hereof (i) a description in reasonable detail of any material variation
between the application or other modification of accounting principles employed
in the preparation of such statement and the application or other modification
of accounting principles employed in the preparation of the immediately prior
annual or monthly financial statements as to which no objection has been made in
accordance with the last sentence of subsection (a) above and (ii) reasonable
estimates of the difference between such statements arising as a consequence
thereof.
(c) To enable the ready and consistent determination of
compliance with the covenants set forth in Section 5.2 hereof, the Company will
not change the last day of its fiscal year from December 31 of each year, or the
last days of the first three fiscal quarters in each of its fiscal years from
March 31, June 30, and September 30 of each year, respectively.
ARTICLE II
THE COMMITMENTS AND THE ADVANCES
2.1 Commitments of the Lenders.
(a) Revolving Credit Advances. Each Revolving Credit Lender
agrees, for itself only, subject to the terms and conditions of this Agreement,
to make Revolving Credit Loans denominated in Dollars to any Borrower pursuant
to Section 2.4 and to participate in Letter of Credit Advances denominated in
any Permitted Currency (subject to the conversion to Dollars to the extent
required hereunder) to any Borrower pursuant to Section 3.3, from time to time
from and including the Effective Date to but excluding the Termination Date, not
to exceed in aggregate principal amount at any time outstanding the amount
determined pursuant to Section 2.1(e).
(b) Term Loan A. Each Term Loan A Lender agrees, for itself
only, subject to the terms and conditions of this Agreement, to make a portion
of Term Loan A denominated in Dollars to [certain Borrowers to be agreed upon
between the Company and the Lenders] on the Effective Date in an amount equal to
its Term Loan A Commitment which is denominated in Dollars and to make a portion
of Term Loan A denominated in CAD to the Canadian Subsidiary on the Effective
Date in an amount equal to its Term Loan A Commitment which is denominated in
CAD.
(c) Term Loan B. Each Term Loan B Lender agrees, for itself
only, subject to the terms and conditions of this Agreement, to make a portion
of Term Loan B denominated in Dollars to the Company on the Effective Date in an
amount equal to its Term Loan B Commitment.
(d) Swingline Loans. (i) In accordance with the procedures
specified in this Section 2.1(d) and Section 2.4(a), any Borrower may request
the Agent to make, and the Agent may, in its sole discretion, make Swingline
Loans to such Borrower from time to time during the period from the Effective
Date until the Termination Date in an aggregate principal amount not to exceed
at any time the lesser of (A) $30,000,000 or the Dollar Equivalent thereof in
any Permitted Currency (the "Swingline Facility") and (B) the aggregate amount
of
CREDIT AGREEMENT Page 23
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Revolving Credit Advances that could be but is not borrowed as of the date of
such request. Each Lender's Revolving Credit Commitment shall be deemed utilized
by an amount equal to such Lender's pro rata share (based on such Lender's
Revolving Credit Commitment) of each Swingline Loan (or the Dollar Equivalent
thereof in the case of a Swingline Loan denominated in a currency other than
Dollars) for purposes of determining the amount of Revolving Credit Advances
required to be made by such Lender, but no Lender's Revolving Credit Commitment,
including the Agent's, shall be deemed utilized for purposes of determining
commitment fees under Section 2.3(a). Each such Swingline Loan approved by the
Agent shall bear interest at the Adjusted Prime Rate. Within the limits of the
Swingline Facility, so long as the Agent, in its sole discretion, elects to make
Swingline Loans, the Borrowers may borrow and reborrow under this Section
2.1(d)(i). Prior to refunding any Swingline Loan (whether or not denominated in
Dollars) with a Revolving Credit Loan, the relevant Borrower shall be required
to repay, in the currency in which such Swingline Loan is outstanding, the full
principal amount of and accrued but unpaid interest on each Swingline Loan not
denominated in Dollars, together with any amounts required under Section 3.9
with respect to such repayment.
(ii) The Agent may at any time in its sole and absolute
discretion require that any Swingline Loan be refunded by a Revolving Credit
Loan which is an Adjusted Prime Rate Borrowing from the Revolving Lenders, and
upon written notice thereof by the Agent to the Revolving Credit Lenders and the
Borrower which borrowed such Swingline Loan, such Swingline Loan shall be
converted to Dollars and such Borrower shall be deemed to have requested a
Revolving Credit Loan denominated in Dollars which is an Adjusted Prime Rate
Borrowing in an amount equal to the Dollar Equivalent of the amount of such
Swingline Loan determined as of the date of such refunding, and such Adjusted
Prime Rate Borrowing shall be made to refund such Swing Line Loan. Each
Revolving Credit Lender shall be absolutely and unconditionally obligated to
fund its pro rata share (based on such Revolving Credit Lender's Revolving
Credit Commitment) of such Adjusted Prime Rate Borrowing or, if applicable,
purchase a participating interest in the Swingline Loans pursuant to Section
2.1(d)(iii) and such obligation shall not be affected by any circumstance,
including, without limitation, (A) any set-off, counterclaim, recoupment,
defense or other right which such Revolving Credit Lender has or may have
against the Agent or the Company or any if its Subsidiaries or anyone else for
any reason whatsoever; (B) the occurrence or continuance of an Unmatured Event
or an Event of Default, subject to Section 2.1(d)(iii); (C) any adverse change
in the condition (financial or otherwise) of the Company or any of its
Subsidiaries; (D) any breach of this Agreement or any other agreement by any
other Lender, any Borrower or any Guarantor; or (E) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing
(including without limitation any Borrower's failure to satisfy any conditions
contained in Article II or any other provision of this Agreement).
(iii) If, due to any Event of Default (including without
limitation as a result of the occurrence of an Event of Default with respect to
the Company or any of its Subsidiaries pursuant to Section 6.1(h)) Adjusted
Prime Rate Loans may not be made by the Revolving Credit Lenders as described in
Section 2.1(d)(ii), then (A) the Borrowers agree that each Swingline Loan not
paid pursuant to Section 2.1(d)(ii) shall be automatically converted to Dollars
based on the Dollar Equivalent of such Swingline Loans on the date of conversion
and shall bear interest, payable on demand by the Agent, at the Overdue Rate,
and (B) effective on the date each such Adjusted Prime Rate Loan would otherwise
have been made, each Revolving Credit Lender severally agrees that it shall
unconditionally and irrevocably, without regard to the occurrence of any
Unmatured Event or Event of Default or any other circumstances, in lieu of
deemed disbursement of loans, to the extent of such Revolving Credit Lender's
Revolving Credit Commitment, purchase a participating interest in the Swingline
Loans by paying its participation percentage thereof to the Agent. Each
Revolving Credit Lender will immediately transfer to the Agent, in same day
funds, the amount of its participation. After such payment to the Agent, each
Revolving Credit Lender shall share on a pro rata basis (calculated by reference
to its Revolving Credit Commitment) in any interest which accrues thereon and in
all repayments thereof. If and to the extent that any Revolving Credit Lender
shall not have so made the amount of such participating interest available to
the Agent, such Revolving Credit Lender and the Company severally agree to pay
to the
CREDIT AGREEMENT Page 24
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Agent forthwith on demand such amount together with interest thereon, for each
day from the date of demand by the Agent until the date such amount is paid to
the Agent, at (x) in the case of the Company, the interest rate specified above
and (y) in the case of such Lender, the Federal Funds Rate (for Swingline Loans
denominated in Dollars) or the Agent's carrying cost for such participating
interest (for Swingline Loans denominated in any Permitted Currency other than
Dollars) for the first five days after the date of demand by the Agent and
thereafter at the interest rate specified above.
(e) Limitation on Amount of Advances. Notwithstanding anything
in this Agreement to the contrary, (i) the Dollar Equivalent of the aggregate
principal amount of the Revolving Credit Advances and Swingline Loans at any
time outstanding shall not exceed the lesser of (A) the amount of the Borrowing
Base at such time determined by the Agent and (B) the aggregate amount of the
Revolving Credit Commitments at such time minus the Senior Unsecured Note
Portion, provided that the Senior Unsecured Note Portion shall not be deducted
from the Revolving Credit Commitments for any Revolving Credit Loan which will
be used solely to make a principal payment on the Senior Unsecured Notes if the
conditions for all Revolving Credit Advances are satisfied, and minus the
aggregate outstanding balance of the Foggini Deferred Payment; provided,
however, that (i) the aggregate principal amount of Letters of Credit
outstanding at any time shall not exceed $40,000,000, (ii) the aggregate
principal amount of the portion of Term Loan A made by each Term Loan A Lender
to the Borrowers shall not exceed the amount of its respective Term Loan A
Commitment and (iii) and the aggregate principal amount of the portion of Term
Loan B made by each Term Loan B Lender to the Company shall not exceed the
amount of its respective Term Loan B Commitment.
(f) Amendment and Restatement. This Agreement amends and
restates the Existing Credit Agreement, and all Advances and Letters of Credit
outstanding under the Existing Credit Agreement shall constitute Advances and
Letters of Credit under this Agreement and all fees and other obligations
accrued under the Existing Credit Agreement will continue to accrue and be paid
under this Agreement, subject to the rates and amounts specified in this
Agreement. As stated in the Loan Documents, the Advances and other obligations
pursuant hereto are issued in exchange and replacement for the Advances and
other obligations under the Existing Credit Agreement, shall not be a novation
or satisfaction thereof and shall be entitled to the same collateral, plus
additional collateral as specified herein, with the same priority.
2.2 Termination and Reduction of Revolving Credit Commitments.
(a) The Company shall have the right to terminate or reduce the Revolving Credit
Commitments at any time and from time to time, provided that (i) the Company
shall give notice of such termination or reduction to the Agent specifying the
amount and effective date thereof, (ii) each partial reduction of the Revolving
Credit Commitment shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000 and shall reduce the Revolving Credit Commitments of all
of the Lenders proportionately in accordance with the respective Revolving
Credit Commitment amounts for each such Lender, (iii) no such termination or
reduction shall be permitted with respect to any portion of the Revolving Credit
Commitments as to which a request for an Advance pursuant to Section 2.4 is then
pending, and (iv) the Revolving Credit Commitments may not be terminated if any
Revolving Credit Advances are then outstanding and may not be reduced below the
sum of the principal amount of Revolving Credit Advances then outstanding plus
the outstanding principal amount of Senior Unsecured Notes and of the Foggini
Deferred Payment. The Revolving Credit Commitments or any portion thereof
terminated or reduced pursuant to this Section 2.2, whether optional or
mandatory, may not be reinstated.
(b) For purposes of this Agreement, a Letter of Credit Advance
(i) shall be deemed outstanding in an amount equal to the sum of the maximum
amount available to be drawn under the related Letter of Credit on or after the
date of determination and on or before the stated expiry date thereof plus the
amount of any draws under such Letter of Credit that have not been reimbursed as
provided in Section 3.3 and (ii) shall be deemed outstanding at all times on and
before such stated expiry date or such earlier date on which
CREDIT AGREEMENT Page 25
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all amounts available to be drawn under such Letter of Credit have been fully
drawn, and thereafter until all related reimbursement obligations have been paid
pursuant to Section 3.3.
2.3 Fees. (a) The Company agrees to pay to the Revolving
Credit Lenders a commitment fee on the daily average of the difference between
the Revolving Credit Commitments and the Revolving Credit Advances, for the
period from the Effective Date to but excluding the Termination Date, at a rate
equal to the Applicable Margin. For purposes of determining such commitment
fees, all Letters of Credit shall be considered usage of the Revolving Credit
Commitments, and all Swingline Loans shall not be considered usage of the
Revolving Credit Commitments. Accrued commitment fees shall be payable quarterly
in arrears on the last Business Day of each March, June, September and December,
commencing on June 30, 1999 and on the Termination Date.
(b) The Company agrees to pay to (i) the Agent with respect to
Letters of Credit, a fee computed at the Applicable Margin calculated on the
maximum amount available to be drawn from time to time under a Letter of Credit,
which fee shall be paid annually in advance at the time such Letter of Credit is
issued for the period from and including the date of issuance of such Letter of
Credit to and including the stated expiry date of such Letter of Credit, which
fees shall be for the pro rata benefit of the Revolving Credit Lenders and (ii)
to the L/C Issuing Bank, in addition to all other fees, with respect to all
Letters of Credit, a fee computed at the rate of 0.25% per annum calculated on
the face amount of each Letter of Credit, which fee shall be paid at the time
each Letter of Credit is issued and shall be solely for the account of the L/C
Issuing Bank. Such fees are nonrefundable and the Company shall not be entitled
to any rebate of any portion thereof if such Letter of Credit does not remain
outstanding through its stated expiry date or for any other reason. The Company
further agrees to pay to the L/C Issuing Bank, on demand, such other customary
administrative fees, charges and expenses of the L/C Issuing Bank, in respect of
the issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.
(c) The Company agrees to pay to the Agent agency fees for its
services as Agent under this Agreement and for other services in such amounts as
may from time to time be agreed to in writing between the Company and the Agent.
2.4 Disbursement of Advances. (a) A Borrower shall give the
Agent notice of its request for each Advance in substantially the form of
Exhibit H hereto not later than 10:00 a.m. Detroit time (i) three LIBOR Business
Days prior to the date such Advance is requested to be made if such Advance is
to be made as a LIBOR Borrowing, (ii) five Business Days prior to the date any
Letter of Credit Advance is requested to be made, (iii) on the Business Day such
Advance is requested to be made in the case of any Swingline Loan denominated in
Dollars, and (iv) on the Business Day prior to the date such Advance is
requested to be made in all other cases, which notice shall specify whether a
LIBOR Borrowing, an Adjusted Prime Rate Borrowing, a Swingline Loan or a Letter
of Credit Advance is requested and, in the case of each requested LIBOR
Borrowing the currency in which such LIBOR Borrowing is to be denominated and
the LIBOR Interest Period to be initially applicable to such Borrowing and, in
the case of each Letter of Credit Advance, such information as may be necessary
for the issuance thereof by the Agent. The Agent, not later than 12:00 noon the
same Business Day such notice is given, shall provide notice of such requested
Advance (other than Swingline Loan) to each Revolving Credit Lender in the case
of each Revolving Credit Advance and to each relevant Term Loan Lender in the
case of any Term Loan. Subject to the terms and conditions of this Agreement,
the proceeds of each such requested Advance shall be made available to the
requesting Borrower by depositing the proceeds thereof in the case of Loans
denominated in Dollars, in immediately available funds, in an account maintained
and designated by the requesting Borrower at the principal office of the Agent
and in the case of Loans denominated in a currency other than Dollars, in same
day or such other funds as the Agent may determine to be customary for the
settlement of deposits of such currency, in an account maintained and designated
by the
CREDIT AGREEMENT Page 26
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requesting Borrower at the Applicable Lending Office of the Agent. Subject to
the terms and conditions of this Agreement, the L/C Issuing Bank shall, on the
date such Letter of Credit Advance is requested to be made, issue the related
Letter of Credit on behalf of the Revolving Credit Lenders for the account of
the Company. Notwithstanding anything herein to the contrary, the L/C Issuing
Bank may decline to issue any requested Letter of Credit on the basis that the
beneficiary, the purpose of issuance or the terms or the conditions of drawing
are unacceptable to it in its reasonable discretion, provided that the L/C
Issuing Bank shall not unreasonably decline to issue a Letter of Credit pursuant
to this sentence.
(b) Each Lender, directly or through its Applicable Lending
Office, not later than 2:00 p.m. on the date any Borrowing in the form of a Loan
for which such Lender has a Commitment is required to be made, shall make its
pro rata share of such Borrowing available in immediately available funds at the
Applicable Lending office of the Agent for disbursement to the requesting
Borrower. Unless the Agent shall have received notice from any Lender prior to
the date such Borrowing is requested to be made under this Section 2.4 that such
Lender will not make available to the Agent such Lender's pro rata portion of
such Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date such Borrowing is requested to be made in
accordance with this Section 2.4. If and to the extent such Lender shall not
have so made such pro rata portion available to the Agent, the Agent may (but
shall not be obligated to) make such amount available to the requesting
Borrower, and such Lender and the requesting Borrower severally agree to pay to
the Agent forthwith on demand such amount together with interest thereon, for
each day from the date such amount is made available to the requesting Borrower
by the Agent until the date such amount is repaid to the Agent, at a rate per
annum equal to, in the case of the requesting Borrower, the interest rate
applicable to such Borrowing during such period and, in the case of any Lender,
for the first five days at the Federal Funds Rate (for a Borrowing denominated
in Dollars) or at the Agent's carrying cost for such amount (for a Borrowing
denominated in a currency other than Dollars) and in either case at the interest
rate applicable to such Borrowing thereafter. If such Lender shall pay such
amount to the Agent together with interest, such amount so paid shall constitute
a Loan by such Lender as a part of such Borrowing for purposes of this
Agreement. The failure of any Lender to make its pro rata portion of any such
Borrowing available to the Agent shall not relieve any other Lender of its
obligations to make available its pro rata portion of such Borrowing on the date
such Borrowing is requested to be made, but no Lender shall be responsible for
failure of any other Lender to make such pro rata portion available to the Agent
on the date of any such Borrowing.
(c) Subject to the terms and conditions of this Agreement, the
Company may borrow Revolving Credit Advances under this Section 2.4 and under
Section 3.3, prepay Revolving Credit Advances pursuant to Section 3.1 and
reborrow Revolving Credit Advances but not the Term Loans under this Section
2.4.
(d) (i) With the exception of the MaP Letter of Credit,
nothing in this Agreement shall be construed to require or authorize any
Revolving Credit Lender to issue any Letter of Credit, it being recognized that
the Agent has the sole obligation under this Agreement to issue Letters of
Credit for the risk of the Lenders. Upon issuance of a Letter of Credit by the
Agent, each Revolving Credit Lender shall automatically acquire a pro rata risk
participation interest in such Letter of Credit Advance based on its respective
Revolving Credit Commitment. If the Agent shall honor a draft or other demand
for payment presented or made under any Letter of Credit, the Agent shall
provide notice thereof to each Revolving Credit Lender on the date such draft or
demand is honored unless the Company or any of its Subsidiaries shall have
satisfied its reimbursement obligation under Section 3.3 by payment to the Agent
on such date, and each such reimbursement obligation not so paid by the Company
or any of its Subsidiaries shall be automatically converted to Dollars on such
date. Each Revolving Credit Lender, on such date, shall make its pro rata share
of the amount paid by the Agent available in immediately available funds at the
principal office of the Agent for the account of the Agent. If and to the extent
such Revolving Credit Lender shall not have made any required pro rata portion
available to the Agent, such Revolving Credit Lender and the Company,
unconditionally and irrevocably, severally agree to pay to the Agent forthwith
on demand such amount together with interest thereon, for each day from the date
such amount was
CREDIT AGREEMENT Page 27
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paid by the Agent until such amount is so made available to the Agent at a per
annum rate equal to the interest rate applicable during such period to the
related Loan disbursed under Section 3.3 in respect of the reimbursement
obligation of the Company. If such Revolving Credit Lender shall pay such amount
to the Agent together with such interest, if any, accrued, such amount so paid
shall constitute a Revolving Credit Loan by such Revolving Credit Lender as part
of the Revolving Credit Borrowing disbursed in respect of the reimbursement
obligation of the Company under Section 3.3 for purposes of this Agreement. The
failure of any Revolving Credit Lender to make its pro rata portion of any such
amount paid by the Agent available to the Agent shall not relieve any other
Revolving Credit Lender of its obligation to make available its pro rata portion
of such amount, but no Revolving Credit Lender shall be responsible for failure
of any other Revolving Credit Lender to make such pro rata portion available to
the Agent. Notwithstanding anything herein to the contrary, it is acknowledged
and agreed that Letters of Credit hereunder may be issued for the account of any
of the Subsidiaries of the Company, provided that for all purposes of this
Agreement both the Company and such Subsidiary shall be deemed the account party
thereon and shall be jointly and severally liable for all obligations in
connection therewith and the Company shall have obtained an agreement from such
Subsidiary that such Subsidiary shall be bound by all of the terms and
provisions of this Agreement with respect to Letters of Credit, such agreement
to be in form of substance satisfactory to the Agent.
(ii) Nothing in this Agreement shall be construed to require
or authorize any Revolving Credit Lender to issue the MaP Letter of Credit, it
being recognized that LaSalle has the sole obligation under this Agreement to
issue the MaP Letter of Credit for the risk of the Revolving Credit Lenders.
Upon issuance of the MaP Letter of Credit by LaSalle, each Revolving Credit
Lender shall automatically acquire a pro rata risk participation interest in
such Letter of Credit Advance based on its respective Revolving Credit
Commitment. If LaSalle shall honor a draft or other demand for payment presented
or made under the MaP Letter of Credit, the Agent shall provide notice thereof
to each Revolving Credit Lender on the date such draft or demand is honored
unless the Company or any of its Subsidiaries shall have satisfied its
reimbursement obligation under Section 3.3 by payment to LaSalle on such date.
Each Revolving Credit Lender, on such date, shall make its pro rata share of the
amount paid by LaSalle available in immediately available funds at the principal
office of LaSalle for the account of LaSalle. If and to the extent such
Revolving Credit Lender shall not have made any required pro rata portion
available to LaSalle, such Revolving Credit Lender and the Company,
unconditionally and irrevocably, severally agree to pay to LaSalle forthwith on
demand such amount together with interest thereon, for each day from the date
such amount was paid by LaSalle until such amount is so made available to
LaSalle at a per annum rate equal to the interest rate applicable during such
period to the related Loan disbursed under Section 3.3 in respect of the
reimbursement obligation of the Company. If such Revolving Credit Lender shall
pay such amount to LaSalle together with such interest, if any, accrued, such
amount so paid shall constitute a Revolving Credit Loan by such Revolving Credit
Lender as part of the Revolving Credit Borrowing disbursed in respect of the
reimbursement obligation of the Company under Section 3.3 for purposes of this
Agreement. The failure of any Revolving Credit Lender to make its pro rata
portion of any such amount paid by LaSalle available to LaSalle shall not
relieve any other Revolving Credit Lender of its obligation to make available
its pro rata portion of such amount, but no Revolving Credit Lender shall be
responsible for the failure of any other Revolving Credit Lender to make such
pro rata portion available to LaSalle.
2.5 Conditions for First Disbursement. The obligation of the Lenders
to make the first Advance hereunder is subject to receipt by each Lender and the
Agent of the following documents and completion of the following matters, in
form and substance satisfactory to each Lender and the Agent:
(a) Charter Documents. Certificates of recent date of the
appropriate authority or official of the Company's and each Guarantor's
respective jurisdiction of organization listing all charter documents of the
Company or each Guarantor, respectively, on file in that office and certifying
as to the good standing and corporate existence of the Company or each
Guarantor, respectively, together with copies of such charter documents of the
Company or each Guarantor certified as of a recent date by such authority or
official and
CREDIT AGREEMENT Page 28
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certified as true and correct as of the Effective Date by a duly authorized
officer of the Company or each Guarantor, respectively;
(b) By-Laws and Corporate Authorizations. Copies of the
by-laws or operating agreement of the Company each Guarantor together with all
authorizing resolutions and evidence of other corporate action taken by the
Company and each Guarantor to authorize the execution, delivery and performance
by the Company and each Guarantor of the Loan Documents to which the Company or
such Guarantor, respectively, is a party and the consummation by the Company or
such Guarantor, respectively, of the transactions contemplated hereby, certified
as true and correct as of the Effective Date by a duly authorized officer of the
Company or each Guarantor, respectively;
(c) Incumbency Certificate. Certificates of incumbency of the
Company and each Guarantor containing, and attesting to the genuineness of, the
signatures of those officers or members, as the case may be, authorized to act
on behalf of the Company or each Guarantor in connection with the Loan Documents
to which the Company and such Guarantor is a party and the consummation by the
Company or such Guarantor of the transactions contemplated hereby, certified as
true and correct as of the Effective Date by a duly authorized officer of the
Company and each Guarantor;
(d) Notes. The Notes duly executed on behalf of the Company
for each Lender which has requested Notes;
(e) Security Documents. The Security Documents duly executed
on behalf of the Borrowers and the Guarantors, as the case may be, granting to
the Agent for the benefit of the Lenders the collateral and security intended to
be provided pursuant to Section 2.11 (except to the extent the Agent has agreed
that any such Security Documents with respect to certain Foreign Subsidiaries
may be delivered post closing due to any legal requirements or impediments),
together with:
(i) Recording, Filing, Etc. Recordation, filing and other
action (including payment of any applicable taxes or fees) in such jurisdictions
as the Lenders or the Agent may deem necessary or appropriate with respect to
the Security Documents, including the filing of financing statements and similar
documents which the Lenders or the Agent may deem necessary or appropriate to
create, preserve or perfect the liens, security interests and other rights
intended to be granted to the Lenders or the Agent thereunder, together with
Uniform Commercial Code record searches in such offices as the Lenders or the
Agent may request;
(ii) Title Insurance. Policies of mortgage title insurance
issued by an insurer and in amounts satisfactory to the Lenders and the Agent,
insuring the interest of the Agent under the Mortgages without standard
exceptions and without any special exceptions not acceptable to the Agent and
containing such further endorsements, affirmative coverage and other terms as
the Lenders and the Agent may request;
(iii) Surveys. Surveys of the property subject to the
Mortgages made by a land surveyor licensed in the State in which such property
is located and acceptable to the Agent complying with the Minimum Standard
Detail Requirements for Land Title Surveys as adopted by the American Land Title
Association and the American Congress on Surveying and Mapping and showing such
details as the Lenders and the Agent may request, certified to the Agent and the
issuer of such mortgage title insurance policy in form acceptable to the Agent,
or such surveys recertified by such a surveyor sufficient to permit the issuers
of all mortgage title insurance policies to remove their standard exceptions;
(iv) Leased Property; Landlord Waivers. Copies of all real
property leases, certified as true and correct as of the Effective Date by a
duly authorized officer of the Company, and an agreement of each landlord under
such leases to the extent required by the Agent, in form and substance
acceptable to the
CREDIT AGREEMENT Page 29
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Agent, waiving its distraint, lien and similar rights with respect to any
property subject to the Security Documents and agreeing to permit the Lenders
and the Agent to enter such premises in connection therewith; and
(v) Casualty and Other Insurance. Evidence that the
casualty and other insurance required pursuant to Section 5.1(c), paragraph 1(e)
of the Security Agreement and paragraph 6 of each Mortgage is in full force and
effect;
(f) Legal Opinions. The favorable written opinions of counsels
for each Borrower and each Guarantor, substantially in the form of Exhibit I
attached hereto, and as to such other matters as the Agent may request;
(g) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorizations, declarations, registrations
or filings, if any, required on the part of the Company or any Guarantor in
connection with the execution, delivery and performance of the Loan Documents or
the transactions contemplated hereby or as a condition to the legality, validity
or enforceability of, the Loan Documents, certified as true and correct and in
full force and effect as of the Effective Date by a duly authorized officer of
the Company, or if none are required, a certificate of such officer to that
effect;
(h) Acquisition/Due Diligence. The satisfactory completion of
the Foggini Acquisition (other than the payment of the purchase price with the
initial Advances hereunder and other routine matters described in the
acquisition completion certificate delivered by the Company to the Agent prior
to the making of the initial Advance hereunder) and all due diligence with
respect to the Company, its Subsidiaries, Foggini and the Foggini Acquisition,
including, but not limited to, the satisfactory review of all Foggini
Acquisition Documents, all terms, conditions and provisions of the Foggini
Acquisition, all final projections, all pro forma and prospective financial
statements, all sources and uses statements, pro forma borrowing base and
covenant compliance projections and certificates, new business awards and
contracts of the Company and its Subsidiaries, the organizational structure of
the Company and its Subsidiaries after the Foggini Acquisition, all
environmental matters relating to Foggini, all shareholder and other agreements
with the shareholders of Foggini, all charter documents and other organizational
documents of Foggini, all required court, regulatory and other approvals
required in connection with the Foggini Acquisition, and the form and structure,
including the financial, legal, accounting, tax and all other aspects of the
Foggini Acquisition, all of which shall be satisfactory to the Agent and its
counsel;
(i) Environmental Certificate. An Environmental Certificate
duly executed by the Company and the Guarantors;
(j) Payments. Evidence satisfactory to the Agent that all
transfers of funds and payments described on Schedule 4.21 are being
accomplished simultaneously, or at such other time as noted on Schedule 4.21,
with the first Advance hereunder, including without limitation the payment in
full of all indebtedness and other liabilities, and the termination of all
commitments to lend and all Liens relating thereto, as described on Schedule
4.21;
(k) Due Diligence. The Agent shall have received and be
satisfied with a field asset examination of receivables and inventory (provided
that it is acknowledged that such field asset examination is a condition
precedent only to the Revolving Credit Advances), all environmental reports and
liabilities, all litigation searches, a review of all Contingent Liabilities and
all other due diligence and investigation required by the Agent;
CREDIT AGREEMENT Page 30
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(l) Certificates. The Agent shall have received, in form and substance
satisfactory to the Agent, a pro forma covenant compliance certificate,
Borrowing Base Certificate and projection of tax payments, as of the Effective
Date and as of the end of each of the first four quarters after the Effective
Date;
(m) Senior Unsecured Notes. Evidence satisfactory to the Agent that the
outstanding aggregate principal balance of the Senior Unsecured Notes is equal
to $14,015,000; and
(n) Other Conditions. Such other documents and completion of such other
matters as the Agent or any Lender may reasonably request.
2.6 Further Conditions for Disbursement. The obligation of the Lenders to
make any Advance (including the first Advance), or any continuation or
conversion under Section 2.7, is further subject to the satisfaction of the
following conditions precedent:
(a) The representations and warranties contained in Article IV hereof
and in the Security Documents shall be true and correct on and as of the date
such Advance is made (both before and after such Advance is made) as if such
representations and warranties were made on and as of such date;
(b) No Event of Default or Unmatured Event shall exist or shall have
occurred and be continuing on the date such Advance is made and the making of
such Advance shall not cause an Event of Default or Unmatured Event;
(c) The Agent shall have received the Borrowing Base Certificate
pursuant to Section 5.1(d)(v) as of the close of business on the last day of the
month preceding the date such Advance is made;
(d) In addition to all other applicable conditions, in the case of any
Letter of Credit Advance, the Company shall have delivered to the L/C Issuing
Bank an application for such Letter of Credit and other related documentation
requested by and acceptable to the Agent appropriately completed and duly
executed on behalf of the Company, and any Subsidiary, if applicable.
Each Borrower shall be deemed to have made a representation and warranty to the
Lenders at the time of the making of, and the continuation or conversion of,
each Advance to the effects set forth in clauses (a) and (b) of this Section
2.6. For purposes of this Section 2.6, the representations and warranties
contained in Section 4.6 hereof shall be deemed made with respect to both the
financial statements referred to therein and the most recent financial
statements delivered pursuant to Section 5.1(d)(ii) and (iii).
2.7 Subsequent Elections as to Borrowings. Subject to Section 2.4(a), each
Borrower may elect, with respect to any Loan outstanding to it, (a) to continue
a LIBOR Borrowing of one type, or a portion thereof, as a LIBOR Borrowing of the
then existing type or (b) to convert a LIBOR Borrowing of one type, or a portion
thereof, to a Borrowing of another type (or, in the case of the Company, elect
to convert an Adjusted Prime Rate Borrowing, or a portion thereof, to a LIBOR
Borrowing), in each case by giving notice thereof to the Agent in substantially
the form of Exhibit J hereto not later than 10:00 a.m. Detroit time (or 10:00
a.m. local time of the Applicable Lending Office of the Agent in the case of
Loans denominated in a Permitted Currency other than Dollars) three LIBOR
Business Days prior to the date any such continuation of or conversion to a
LIBOR Borrowing is to be effective and not later than 10:00 a.m. Detroit time on
the Business Day date such continuation or conversion is to be effective in all
other cases, provided that an outstanding LIBOR Borrowing may only be converted
on the last day of the then current LIBOR Interest Period with respect to such
Borrowing, and provided, further, if a continuation of a Borrowing as, or a
conversion of a Borrowing to, a LIBOR Borrowing is requested, such notice shall
also specify the LIBOR Interest Period to be applicable thereto upon such
continuation or conversion. The Agent, not later than 1:00 p.m. the Business Day
such notice is given, shall
CREDIT AGREEMENT PAGE 31
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provide notice of such election to the relevant Lenders. If a Borrower shall not
timely deliver such a notice with respect to any outstanding LIBOR Borrowing,
the relevant Borrower shall be deemed to have elected to convert such LIBOR
Borrowing to an Adjusted Prime Rate Borrowing on the last day of the then
current LIBOR Interest Period with respect to such Borrowing.
2.8 Limitation of Requests and Elections. Notwithstanding any other
provision of this Agreement to the contrary, if, upon receiving a request for a
LIBOR Borrowing pursuant to Section 2.4, or a request for a continuation of a
LIBOR Borrowing, or a request for a conversion of an Adjusted Prime Rate
Borrowing to a LIBOR Borrowing pursuant to Section 2.7, (a) in the case of any
LIBOR Borrowing, deposits in the relevant Permitted Currency for periods
comparable to the LIBOR Interest Period elected are not available to any Lender
in the relevant interbank market, or (b) the applicable interest rate will not
adequately and fairly reflect the cost to any Lender of making, funding or
maintaining the related LIBOR Borrowing or (c) by reason of national or
international financial, political or economic conditions or by reason of any
applicable law, treaty, rule or regulation (whether domestic or foreign) now or
hereafter in effect, or the interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by any Lender with any guideline, request or directive of
such authority (whether or not having the force of law), including without
limitation exchange controls, it is impracticable, unlawful or impossible for
any Lender (i) to make or fund the relevant LIBOR Borrowing or (ii) to continue
such LIBOR Borrowing or (iii) to convert a Borrowing to such a LIBOR Borrowing,
then the Borrowers shall not be entitled, so long as such circumstances
continue, to request a LIBOR Borrowing pursuant to Section 2.4 or a continuation
of or conversion to a LIBOR Borrowing pursuant to Section 2.7. In the event that
such circumstances no longer exist, the Lenders shall again consider requests
for LIBOR Borrowings pursuant to Section 2.4, and requests for continuations of
and conversions to LIBOR Borrowings of the affected type pursuant to Section
2.7.
2.9 Minimum Amounts; Limitation on Number of Borrowings. Except for (a)
Advances and conversions thereof which exhaust the entire remaining amount of
the Commitments and (b) payments required pursuant to Section 3.8, each
Borrowing and each continuation or conversion pursuant to Section 2.7 and each
prepayment thereof shall be in a minimum amount of $5,000,000 and in integral
multiples of $1,000,000. No more than six LIBOR Interest Periods shall be
permitted to exist at any one time with respect to all Revolving Credit Loans,
no more than three LIBOR Interest Periods shall be permitted to exist at any one
time with respect to Term Loan A and no more than three LIBOR Interest Periods
shall be permitted to exist at any one time with respect to Term Loan B.
2.10 Borrowing Base Adjustments. Each Borrower agrees that if at any time
any trade account receivable or any inventory of any Borrower or any Guarantor
fails to constitute Eligible Accounts Receivable, Eligible Deferred
Reimbursement Tooling or Eligible Inventory as the case may be, for any reason,
the Agent may, at any time upon written notice to the Company and
notwithstanding any prior classification of eligibility, classify such asset or
property as ineligible and exclude the same from the computation of the
Borrowing Base. Additionally, the Agent may establish such reserves against the
Eligible Accounts Receivable, Eligible Deferred Reimbursement Tooling or
Eligible Inventory from time to time as determined by the Agent, in each case
without in any way impairing the rights of the Lenders and the Agent in and to
the same under the Security Agreements.
2.11 Security and Collateral. To secure the payment when due of all Lender
Indebtedness, each Borrower shall execute and deliver, or cause to be executed
and delivered, to the Lenders and the Agent Security Documents, to the extent
not legally prohibited from doing so or determined by the Agent to be cost
prohibitive, granting the following:
(a) Security interests in all present and future accounts,
inventory, equipment, fixtures, general intangibles and all other personal
property of each Borrower and each Guarantor;
CREDIT AGREEMENT PAGE 32
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(b) Mortgage liens on all real property and fixtures of each
Borrower and each Guarantor;
(c) Pledges of 100% of the Capital Stock of all Subsidiaries;
(d) Guarantees of all Guarantors; and
(e) All other security and collateral described in the Security
Documents.
2.12 Noteless Agreement; Evidence of Indebtedness. (a) Each Lender shall
maintain in accordance with its usual practice an account or account evidencing
the indebtedness of the Borrowers to such Lender resulting from each Advance
made by such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(b) The Agent shall also maintain accounts in which it will record
(i) the amount of each Advance made hereunder, the type thereof and the Interest
Period with respect thereto, (ii) the amount of any principal or interest due
and payable or to become due and payable from the Borrowers to each Lender
hereunder and (iii) the amount of any sum received by the Agent hereunder from
the Borrowers and each Lender's share thereof.
(c) The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be prima facie evidence of the existence and
amounts of the Advances therein record; provided, however, that the failure of
the Agent or any lender to maintain such accounts or any error therein shall not
in any manner affect the obligations of the Borrowers to repay the Advances in
accordance with their terms.
(d) Any Lender may request that its Advances be evidenced by the
appropriate Note(s). In such event, the relevant Borrower shall prepare, execute
and deliver to such Lender such Note(s) payable to the order of such Lender in a
form supplied by the Agent. Thereafter, the Advances evidenced by such Note(s)
and interest thereon shall at all times (including after any assignment pursuant
to Section 8.6) be represented by one or more Notes payable to the order of the
payee named therein or any assignee pursuant to Section 8.6, except to the
extent that any such Lender or assignee subsequently returns any such Note(s)
for cancellation and requests that such Advances once again be evidenced as
described in paragraphs (a) and (b) above.
ARTICLE III
PAYMENTS AND PREPAYMENTS OF ADVANCES
3.1 Principal Payments.
(a) Unless earlier payment is required under this Agreement, each
relevant Borrower shall pay to the Revolving Credit Lenders on the Termination
Date the entire outstanding principal amount of the Revolving Credit Loans
outstanding to it. If the Revolving Credit Advances at any time exceed the
amount allowed pursuant to Section 2.1(e), the Company shall prepay, or cause
another Borrower or Borrowers to prepay, the Revolving Credit Advances by an
amount equal to or greater than such excess.
CREDIT AGREEMENT Page 33
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(b) Unless earlier payment is required under this Agreement, Term Loan
A shall be payable as follows:
(i) The relevant Borrowers shall pay to the Term Loan A Lenders
their pro rata share of the principal of Term Loan A in twenty-three consecutive
quarterly installments payable on the last day of each March, June, September
and December, commencing with the last day of June, 1999, and a final principal
installment due on Maturity Date A, as follows: (A) quarterly principal
installments equal to the Dollar Equivalent of $1,000,000 each for the first
four quarterly payments, (B) quarterly principal installments equal to the
Dollar Equivalent of $2,000,000 each for the next four quarterly payments, (C)
quarterly principal payments equal to the Dollar Equivalent of $3,000,000 each
for the next four quarterly payments, (D) quarterly principal payments equal to
the Dollar Equivalent of $4,000,000 each for the next four quarterly payments,
and (E) principal installments equal to the Dollar Equivalent of $5,000,000 each
for the next seven quarterly installments and for the principal installment due
on Maturity Date A, and on Maturity Date A Term Loan A shall be paid in full.
(ii) The Company shall pay to the Term Loan B Lenders the
principal of Term Loan B in twenty seven consecutive quarterly installments
payable on the last day of each March, June, September and December, commencing
with the last day of June, 1999, and a final installment payable on Maturity
Date B, as follows: (A) quarterly principal installments of $250,000 each for
the first twenty-four quarterly payments, and (B) principal installments of
$23,500,000 each for the next three quarterly installments and for the principal
installment due on Maturity Date B, and on Maturity Date B Term Loan B shall be
paid in full.
(c) In addition to all other payments of the Loans required hereunder,
the Company shall prepay the Loans by an amount equal to 100% of all of the Net
Cash Proceeds from any sale or other disposition of any assets (other than the
sale of inventory in the ordinary course of business upon customary credit
terms, sales of scrap or obsolete material or equipment which are not material
in the aggregate and transfers of assets, including without limitation Capital
Stock, between Guarantors or between the Company and Guarantors) in excess of
$1,000,000 in aggregate amount in any fiscal year (other than such Net Cash
Proceeds from the sale of fixed assets which are used within 180 days of the
date received to replace the fixed asset so sold or otherwise disposed of or to
acquire a fixed asset of comparable value, provided that until such Net Cash
Proceeds are used, notwithstanding anything herein to the contrary, a reserve
shall be taken against the Revolving Credit Commitments, and they shall each be
blocked in an amount equal to such Net Cash Proceeds) which payments shall be
due 20 days after the end of each month for all such sales and other
dispositions during such month. The Company shall provide a certificate to the
Agent within 20 days after each sale of assets which, but for the above
parenthetical, would cause a prepayment under this Section 3.1(c), which
certificate shall describe such sale of assets and estimate when such Net Cash
Proceeds will be used to purchase assets of a comparable value, and if such Net
Cash Proceeds are not used within 180 days after such sale or such earlier date
when the Company has determined not to purchase assets of comparable value with
such Net Cash Proceeds the Company will then prepay the Loans with such Net Cash
Proceeds. Such mandatory prepayments shall be applied pro rata between the Term
Loans first, and shall be applied to installments on the Term Loans in the
inverse order of maturities until paid in full and thereafter shall be applied
to the Revolving Credit Advances. Any such payments on the Revolving Credit
Advances shall permanently reduce the amount of the Revolving Credit Commitments
by the amount of such payment.
(d) In addition to all other payments of the Loans required hereunder,
the Company shall prepay the Loans by an amount equal to 75% of all Net Cash
Proceeds of any Subordinated Debt incurred at any time or any other Indebtedness
(other than Indebtedness permitted hereunder), if any. Such mandatory
prepayments shall be applied pro rata among the Term Loans first, and shall be
applied to installments on the Term Loans, in the inverse order of maturities
until paid in full and thereafter shall be applied to the
CREDIT AGREEMENT Page 34
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Revolving Credit Advances. Any such payments on the Revolving Credit Advances
shall permanently reduce the amount of the Revolving Credit Commitments by the
amount of such payment.
(e) In addition to all payments of the Loans required hereunder, the
Company shall prepay the Loans by an amount equal to 75% of the Net Cash
Proceeds from the issuance or other sale of any Capital Stock of the Company or
any of its Subsidiaries. Such mandatory prepayments on the Loans shall be
applied pro rata among the Term Loans first, and shall be applied to
installments on the Term Loans in the inverse order of maturities until paid in
full and thereafter shall be applied to the Revolving Credit Advances. Any such
payments on the Revolving Credit Advances shall permanently reduce the amount of
the Revolving Credit Commitments by the amount of such payment.
(f) In addition to all payments of the Loans required hereunder, the
Company shall prepay the Loans by amount equal to 50% of Excess Cash Flow,
payable 90 days after the end of each fiscal year (commencing with the fiscal
year ending December 31, 1999) based upon the Excess Cash Flow for the most
recently ended fiscal year. Such mandatory prepayment shall be applied pro rata
among the Term Loans first, and shall be applied to installments on the Term
Loans in the inverse order of maturities until paid in full and thereafter shall
be applied to the Revolving Credit Advances. Any such payments on the Revolving
Credit Advances shall permanently reduce the amount of Revolving Credit
Commitments by the amount of such payment.
(g) A Borrower may at any time and from time to time prepay all or a
portion of the Loans, without premium or penalty, provided that (i) a Borrower
may not prepay any portion of any Loan as to which an election of or a
conversion to a LIBOR Loan is pending pursuant to 2.7, (ii) a Borrower shall
comply with all requirements of Section 3.9 in connection with any payment of
any LIBOR Loan, (iii) in the event that the Company makes any prepayment of Term
Loan B at any time on or prior to the date one year after the Effective Date
(whether pursuant hereto, pursuant to this Section 3.1, Section 6.2 or
otherwise) the Company shall pay to each Term Loan B Lender a prepayment premium
equal to 1.00% of the amount prepaid, and (iv) all optional prepayments of any
Term Loan shall be applied to installments due thereon in the inverse order of
maturities. The Company agrees that the amounts payable pursuant to this Section
are a reasonable preestimate of loss and not a penalty. Such amounts are payable
as liquidated damages for the loss of bargain and payment of such amounts shall
not in any way reduce, affect or impair any other obligations of the Company
under this Agreement.
(h) The Borrowers shall (i) give the Agent at least ten Business Days'
notice of each prepayment that the Borrowers expect to make on Term Loan B
pursuant to Sections 3.1(c), (d), (e), (f), and (g), in each case specifying the
amount of such prepayment and a brief description of the event or events which
cause such prepayment to be made.
(i) (i) At least five Business Days before the date (an "Unscheduled
Prepayment Date") on which any prepayment of the Term Loan B (a "Term Loan B
Unscheduled Prepayment") would, but for the provisions of this subsection (i),
become payable pursuant to Sections 3.1(c), (d), (e) and (f) the Company shall
deliver a notice conforming to the requirements of paragraph (ii) below (a "Term
Loan B Prepayment Notice") to the Agent and on or before such Unscheduled
Prepayment Date, the Company shall deposit in a cash collateral account with the
Agent an amount equal to such Term Loan B Unscheduled Prepayment (together with
interest accrued thereon to but excluding the Deferred Term Loan B Prepayment
Date specified in such Term Loan B Prepayment Notice). Such Term Loan B
Unscheduled Prepayment shall not be made on such Unscheduled Payment Date but
shall instead be deferred as provided in this subsection (i). Upon receipt of
any Term Loan B Prepayment Notice, the Agent shall promptly notify each Term
Loan B Lender of the contents hereof.
CREDIT AGREEMENT Page 35
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(ii) Each Term Loan B Prepayment Notice shall (w) set forth the
amount of the relevant Term Loan B Unscheduled Prepayment and the portion
thereof that each Term Loan B Lender will be entitled to receive if it accepts
prepayment of its Term Loan B Loans in accordance with this subsection, (x)
contain an offer to prepay on a specified date (a "Deferred Term Loan B
Prepayment Date"), which shall not be less than 10 days or more than 25 days
after the date of such Term Loan B Prepayment Notice, the Term Loan B Loans of
such Term Loan B Lender by an aggregate principal amount equal to such Term Loan
B Lender's share of such Term Loan B Unscheduled Prepayment, (y) request such
Term Loan B Lender to notify the Company and the Agent in writing, no later than
the fifth Business Day before the Deferred Term Loan B Prepayment Date, of such
Term Loan B Lender's acceptance or rejection (in each case, in whole and not in
part) of such offer of prepayment and (z) inform such Term Loan B Lender that,
if it fails to reject such offer in writing on or before the fifth Business Day
before such Deferred Term Loan B Prepayment Date, it shall be deemed to accept
such offer. Each Term Loan B Prepayment Notice shall be given by facsimile and
confirmed by hand delivery or overnight courier service, in each case addressed
to the Agent and each Term Loan B Lender as provided herein.
(iii) On each Deferred Term Loan B Prepayment Date, the Agent
shall withdraw from such cash collateral account the amount deposited therein
with respect to the relevant Term Loan B Unscheduled Prepayment (and any
interest earned thereon) and shall apply such amount as follows:
(x) to prepay a portion of the principal of the Term Loan B Loans
of each Term Loan B Lender that shall have accepted (or be deemed to
have accepted) such prepayment in accordance with the related Term Loan
B Prepayment Notice (an "Accepting Term Loan B Lender") equal to the
portion of the relevant Term Loan B Unscheduled Prepayment initially
allocated to such Accepting Term Loan B Lender;
(y) to prepay a portion of the principal of the Term Loan A and
the Term Loan B Loans of the Accepting Term Loan B Lenders, ratably in
proportion to the then outstanding principal amounts thereof, in an
aggregate amount equal to the portion of the relevant Term Loan B
Unscheduled Prepayment initially allocated to the Term Loan B Lenders
that rejected such prepayment; and
(z) to pay interest accrued on the principal amounts so prepaid to
the date of prepayment.
If the amount withdrawn from such cash collateral account is not sufficient to
make the foregoing payments, the Company shall pay to the Agent on such Deferred
Term Loan B Prepayment Date an amount equal to the shortfall. Notwithstanding
anything herein to the contrary, if all of the Revolving Credit Loans and Term
Loan A are paid in full, the Term Loan B Lenders may not refuse a prepayment on
Term Loan B.
3.2 Interest Payments. The Borrowers shall pay interest to the Lenders on
the unpaid principal amount of each Loan, for the period commencing on the date
such Loan is made until such Loan is paid in full, on each Interest Payment Date
and at maturity (whether at stated maturity, by acceleration or otherwise), and
thereafter on demand, at the following rates per annum:
(a) During such periods that such Loan is an Adjusted Prime Rate Loan,
the Adjusted Prime Rate.
(b) During such periods that such Loan is a LIBOR Loan, the LIBOR
applicable to such Loan for each related LIBOR Interest Period.
CREDIT AGREEMENT Page 36
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Notwithstanding the foregoing paragraphs (a) and (b), the Borrowers shall pay
interest on demand at the Overdue Rate on the outstanding principal amount of
any Loan and any other amount payable by the Borrowers hereunder (other than
interest) upon and during the continuance of any Event of Default if required by
the Required Lenders.
3.3 Letter of Credit Reimbursement Payments. (a) (i) The relevant Borrower
agrees to pay to the L/C Issuing Bank, not later than 1:00 p.m. Detroit time on
the date on which the L/C Issuing Bank shall honor a draft or other demand for
payment presented or made under such Letter of Credit, an amount equal to the
amount paid by the L/C Issuing Bank in respect of such draft or other demand
under such Letter of Credit and all reasonable expenses paid or incurred by the
L/C Issuing Bank relative thereto (the "Reimbursement Amount"). The L/C Issuing
Bank shall, on the date of each demand for payment under any Letter of Credit
issued by the L/C Issuing Bank, give the relevant Borrower and the Agent notice
thereof and of the amount of such relevant Borrowers' reimbursement obligation
and liability for expenses relative thereto; provided that the failure of the
L/C Issuing Bank to give such notice shall not affect the reimbursement and
other obligations of the Borrowers under this Section 3.3. Unless the relevant
Borrowers shall have made such payment to the L/C Issuing Bank on such day, upon
each such payment by the L/C Issuing Bank, such Borrower shall be deemed to have
elected to satisfy its reimbursement obligation by an Adjusted Prime Rate
Borrowing in an amount equal to the Dollar Equivalent (determined as of the date
of such payment) of the amount so paid by the L/C Issuing Bank in respect of
such draft or other demand under such Letter of Credit, and the L/C Issuing Bank
shall be deemed to have disbursed to the Company, for the account of the
Revolving Credit Lenders, the Adjusted Prime Rate Loans comprising such Adjusted
Prime Rate Borrowing, and each Revolving Credit Lender shall make its share of
each such Adjusted Prime Rate Borrowing available to the L/C Issuing Bank in
accordance with this Agreement. Such Adjusted Prime Rate Loans shall be deemed
disbursed notwithstanding any failure to satisfy any conditions for disbursement
of any Loan and, to the extent of the Adjusted Prime Rate Loans so disbursed,
the reimbursement obligation of such Borrower with respect to such Letter of
Credit under this subsection (a)(i) shall be deemed satisfied.
(ii) If, for any reason (including without limitation as a result
of the occurrence of an Event of Default with respect to any Borrower pursuant
to Section 6.1(h)), Adjusted Prime Rate Loans may not be made by the Revolving
Credit Lenders as described in subsection (a)(i) of this Section 3.3, (A) the
relevant Borrower agrees that each Reimbursement Amount not paid pursuant to the
first sentence of subsection (a)(i) of this Section 3.3 shall be converted to
dollars equal to the Dollar Equivalent as of the date such Reimbursement Amount
is due and shall bear interest, payable on demand by the L/C Issuing Bank, at
the interest rate then applicable to Adjusted Prime Rate Loans, and (B)
effective on the date each such Adjusted Prime Rate Loan would otherwise have
been made with respect to any Letter of Credit, each Revolving Credit Lender
severally agrees that it shall unconditionally and irrevocably, without regard
to the occurrence of any Event of Default or Unmatured Event to the extent of
such Revolving Credit Lender's pro rata share (based on the percentage of the
aggregate Revolving Credit Commitments of all Revolving Credit Lenders then
constituted by such Revolving Credit Lender's Revolving Credit Commitment)
purchase a participating interest in each Reimbursement Amount. Each such Lender
will immediately transfer to the L/C Issuing Bank, in same day funds, the amount
of its participation. Each such Lender shall share on a pro rata basis in any
interest which accrues thereon and in all repayments thereof. If and to the
extent that any Lender shall not have so made the amount of such participating
interest available to the L/C Issuing Bank, such Lender agrees to pay to the L/C
Issuing Bank forthwith on demand such amount together with interest thereon, for
each day from the date of demand by the L/C Issuing Bank until the date such
amount is paid to the L/C Issuing Bank, at the Federal Funds Rate for the first
five days after such demand and at the Overdue Rate thereafter.
(iii) Each Revolving Credit Lender shall be obligated, absolutely
and unconditionally, to make Adjusted Prime Rate Loans pursuant to Section
3.3(a)(i) to purchase and fund
CREDIT AGREEMENT Page 37
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participation interests in Letters of Credit pursuant to Section 2.4(d) and
3.3(a)(ii) and the obligation shall not be affected by any circumstance
whatsoever, including, without limitation, (i) any set off, counterclaim,
recoupment, defense or other right which such Lender or the Company may have
against the L/C Issuing Bank, any Borrower or anyone else for any reason
whatsoever, (ii) the occurrence of any Event of Default or Unmatured Event (iii)
any adverse change in the condition (financial or otherwise) of the Company or
any of their Subsidiaries, (iv) any breach of this Agreement by the Company, any
of its Subsidiaries, the L/C Issuing Bank, or any other Lender, or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing, including without limitation any termination or other limitation
on the Revolving Credit Commitments or any failure to satisfy any conditions
precedent to any Advance contained herein or any other provision of this
Agreement.
(b) The reimbursement obligation of the Borrowers under this Section
3.3 shall be absolute, unconditional and irrevocable and shall remain in full
force and effect until all obligations of the Company to the Lenders hereunder
shall have been satisfied, and such obligations of the Borrowers shall not be
affected, modified or impaired upon the happening of any event, including
without limitation, any of the following, whether or not with notice to, or the
consent of, the Company:
(i) Any lack of validity or enforceability of any Letter of Credit
or any documentation relating to any Letter of Credit or to any transaction
related in any way to such Letter of Credit (the "Letter of Credit Documents");
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest in
collateral or security, with respect to any of the Letter of Credit Documents;
(iii) The existence of any claim, setoff, defense or other right
which the Company may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Persons or entities for whom any such
beneficiary or any such transferee may be acting), the L/C Issuing Bank or any
Lender or any other Person or entity, whether in connection with any of the
Letter of Credit Documents, the transactions contemplated herein or therein or
any unrelated transactions;
(iv) Any draft or other statement or document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect;
(v) Payment by the L/C Issuing Bank to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit, including failure of any documents to bear any
reference or adequate reference to such Letter of Credit;
(vi) Any failure, omission, delay or lack on the part of the L/C
Issuing Bank or any Lender or any party to any of the Letter of Credit Documents
to enforce, assert or exercise any right, power or remedy conferred upon the L/C
Issuing Bank, any Lender or any such party under this Agreement or any of the
Letter of Credit Documents, or any other acts or omissions on the part of the
L/C Issuing Bank, any Lender or any such party; or
(vii) Any other event or circumstance that would, in the absence
of this clause, result in the release or discharge by operation of law or
otherwise of any Borrower from the performance or observance of any obligation,
covenant or agreement contained in this Section 3.3.
CREDIT AGREEMENT Page 38
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No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which any Borrower has or may have against the
beneficiary of any Letter of Credit shall be available hereunder to any Borrower
against the L/C Issuing Bank or any Lender. Nothing in this Section 3.3 shall
limit the liability, if any, of the Lenders to the relevant Borrower pursuant to
Section 3.3(c).
(c) The relevant Borrower hereby indemnifies and agrees to hold
harmless the Lenders, the Agent, the L/C Issuing Banks and their respective
officers, directors, employees and agents, harmless from and against any and all
claims, damages, losses, liabilities, costs or expenses of any kind or nature
whatsoever which the Lenders, the Agent, the L/C Issuing Banks or any such
Person may incur or which may be claimed against any of them by reason of or in
connection with any Letter of Credit issued for the account of such Borrower,
and neither any Lender, the Agent, any L/C Issuing Bank nor any of their
respective officers, directors, employees or agents shall be liable or
responsible for: (i) the use which may be made of any Letter of Credit or for
any acts or omissions of any beneficiary in connection therewith; (ii) the
validity, sufficiency or genuineness of documents or of any endorsement thereon,
even if such documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (iii) payment by the L/C Issuing
Bank to the beneficiary under any Letter of Credit against presentation of
documents which do not comply with the terms of any Letter of Credit, including
failure of any documents to bear any reference or adequate reference to such
Letter of Credit; (iv) any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit; or (v) any other event or
circumstance whatsoever arising in connection with any Letter of Credit;
provided, however, that the relevant Borrower shall not be required to indemnify
the Lenders, the Agent, the L/C Issuing Banks and such other Persons, and the
Lenders shall be severally liable to the relevant Borrower to the extent, but
only to the extent, of any direct, as opposed to consequential or incidental,
damages suffered by the Company which were caused by (A) the L/C Issuing Bank's
wrongful dishonor of any Letter of Credit after the presentation to it by the
beneficiary thereunder of a draft or other demand for payment and other
documentation strictly complying with the terms and conditions of such Letter of
Credit, or (B) the payment by the L/C Issuing Bank to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of the Letter of Credit to the extent, but only to the extent, that such
payment constitutes gross negligence or wilful misconduct of the L/C Issuing
Bank; provided that none of the Agent, any L/C Issuing Bank, any Lender or any
such Person shall have the right to be indemnified hereunder for its own gross
negligence or wilful misconduct as determined by a court of competent
jurisdiction. It is understood that in making any payment under a Letter of
Credit the L/C Issuing Bank will rely on documents presented to it under such
Letter of Credit as to any and all matters set forth therein without further
investigation and regardless of any notice or information to the contrary, and
such reliance and payment against documents presented under a Letter of Credit
substantially complying with the terms thereof shall not be deemed gross
negligence or wilful misconduct of the L/C Issuing Bank in connection with such
payment. It is further acknowledged and agreed that the relevant Borrower may
have rights against the beneficiary or others in connection with any Letter of
Credit with respect to which the Lenders, the L/C Issuing Banks or the Agent are
alleged to be liable and it shall be a precondition of the assertion of any
liability of the Lenders, the L/C Issuing Banks or the Agent under this Section
that the relevant Borrower shall first have exhausted all remedies in respect of
the alleged loss against such beneficiary and any other parties obligated or
liable in connection with such Letter of Credit and any related transactions.
(d) With the exception of the MaP Letter of Credit, Letters of Credit
may be issued in any currency acceptable to the Agent, provided that all
Reimbursement Amounts payable by the Company shall be paid in Dollars in an
amount equal to the Dollar Equivalent of such Reimbursement Amount as determined
at the time the Agent makes payment under any Letter of Credit and not more than
an amount equal to the Dollar Equivalent of $40,000,000 in such Letters of
Credit in any currency other than Dollars may be issued, which Dollar Equivalent
shall be measured at the time of issuance of any Letter of Credit. For purposes
of this Agreement, the outstanding amount of any Letter of Credit issued in any
currency other than Dollars shall be equal to the Dollar Equivalent thereof.
CREDIT AGREEMENT Page 39
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3.4 Payment Method. (a) All payments required to be made by a Borrower in
Dollars hereunder will be made in immediately available funds to the Agent for
the account of the Lenders at its address set forth on the signature pages not
later than 1:00 p.m. Detroit time on the date on which such payment shall become
due. Payments received after 1:00 p.m. Detroit time shall be deemed to be
payments made prior to 1:00 p.m. Detroit time on the next succeeding Business
Day. All payments required to be made by a Borrower in a currency other than
Dollars will be made in the required currency and in same day or such other
funds as the Agent may determine to be customary for the settlement of deposits
in such currency not later than 1:00 p.m. local time of the Applicable Lending
Office of the Agent, to such Applicable Lending Office for the account of the
Lenders. Payments received after 1:00 p.m. local time of such Applicable Lending
Office shall be deemed to be payments received before 1:00 p.m. local time on
the next succeeding LIBOR Business Day. Each Borrower hereby authorizes the
Agent to charge its account with the Agent in order to cause timely payment of
principal, interest and fees due under Section 2.3 to be made (subject to
sufficient funds being available in such account for that purpose).
(b) At the time of making each such payment, a Borrower shall, subject
to the other terms and conditions of this Agreement, specify to the Agent that
Advance or other obligation of the Borrowers hereunder to which such payment is
to be applied. In the event that a Borrower fails to so specify the relevant
obligation or if an Event of Default shall have occurred and be continuing, the
Agent may apply such payments as it may determine.
(c) On the day such payments are deemed received, the Agent shall remit
to the Lenders their pro rata shares of such payments in the same type of funds
received by the Agent, (i) in the case of payments of principal and interest on
any Borrowing, determined with respect to each such Lender by the ratio which
the outstanding principal balance of its Loan included in such Borrowing bears
to the outstanding principal balance of the Loans of all the Lenders included in
such Borrowing and (ii) in the case of fees paid pursuant to Section 2.3 and
other amounts payable hereunder (other than the L/C Issuing Bank's fee payable
pursuant to Section 2.3(b)(ii), the Agent's fees payable pursuant to Section
2.3(c) and amounts payable to any Lender under Section 2.4 or 3.7) determined
with respect to each such Revolving Credit Lender by the ratio which the
Commitment of such Revolving Credit Lender bears to the Commitments of all the
Revolving Credit Lenders.
3.5 No Setoff or Deduction. All payments of principal and interest on the
Loans and other amounts payable by the Borrowers hereunder shall be made by the
Borrowers without setoff or counterclaim, and free and clear of, and without
deduction or withholding for, or on account of, any present or future taxes,
levies, imposts, duties, fees, assessments, or other charges of whatever nature,
imposed by any governmental authority, or by any department, agency or other
political subdivision or taxing authority. If any such taxes, levies, imposts,
duties, fees, assessments or other charges are required to be withheld from any
amounts payable hereunder with respect to any Advance, the amount so payable
shall be increased to the extent necessary to yield to the payee thereof (after
such withholding) the interest or any such other amounts payable hereunder at
the rates and in the amounts specified in this Agreement.
3.6 Payment on Non-Business Day; Payment Computations. Except as otherwise
provided in this Agreement to the contrary, whenever any installment of
principal of, or interest on, any Loan or any other amount due hereunder becomes
due and payable on a day which is not a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day and, in the case of any
installment of principal, interest shall be payable thereon at the rate per
annum determined in accordance with this Agreement during such extension. Except
as otherwise provided in Schedule 1.1-B, computations of interest and other
amounts due under this Agreement shall be made on the basis of a year of 360
days for the actual number of days elapsed, including the first day but
excluding the last day of the relevant period.
CREDIT AGREEMENT Page 40
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3.7 Additional Costs. (a) In the event that any applicable law, treaty, rule
or regulation (whether domestic or foreign) now or hereafter in effect and
whether or not presently applicable to any Lender or the Agent, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Lender
or the Agent with any guideline, request or directive of any such authority
(whether or not having the force of law), shall (i) directly affect the basis of
taxation of payments to any Lender or the Agent of any amounts payable by a
Borrower under this Agreement (other than taxes imposed on the overall net
income of any Lender or the Agent, by the jurisdiction, or by any political
subdivision or taxing authority of any such jurisdiction, in which any Lender or
the Agent, as the case may be, has its principal office), or (ii) shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by
any Lender or the Agent, or (iii) shall impose any other condition with respect
to this Agreement, the Commitments, the Notes or the Loans or any Letter of
Credit, and the result of any of the foregoing (i.e., (i), (ii) or (iii)) is to
increase the cost to any Lender or the Agent, as the case may be, of making,
funding or maintaining any LIBOR Loan or any Letter of Credit or to reduce the
amount of any sum receivable by any Lender or the Agent, as the case may be,
thereon, then such Borrower shall pay to such Lender or the Agent, as the case
may be, from time to time, upon request by such Lender (with a copy of such
request to be provided to the Agent) or the Agent, additional amounts sufficient
to compensate such Lender or the Agent, as the case may be, for such increased
cost or reduced sum receivable to the extent, in the case of any LIBOR Loan,
such Lender or the Agent is not compensated therefor in the computation of the
interest rate applicable to such LIBOR Loan. A statement as to the amount of
such increased cost or reduced sum receivable, prepared in good faith and in
reasonable detail by such Lender or the Agent, as the case may be, and submitted
by such Lender or the Agent, as the case may be, to such Borrower, shall be
conclusive and binding for all purposes absent manifest error in computation.
(b) In the event that any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to any Lender or the Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Lender or the
Agent with any guideline, request or directive of any such authority (whether or
not having the force of law), including any risk-based capital guidelines,
affects or would affect the amount of capital required or expected to be
maintained by such Lender or the Agent (or any corporation controlling such
Lender or the Agent) and such Lender or the Agent, as the case may be,
determines that the amount of such capital is increased by or based upon the
existence of such Lender's or the Agent's obligations hereunder and such
increase has the effect of reducing the rate of return on such Lender's or the
Agent's (or such controlling corporation's) capital as a consequence of such
obligations hereunder to a level below that which such Lender or the Agent (or
such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by such Lender or the Agent to be material, then the Borrowers
shall pay to such Lender or the Agent, as the case may be, from time to time,
upon request by such Lender (with a copy of such request to be provided to the
Agent) or the Agent, additional amounts sufficient to compensate such Lender or
the Agent (or such controlling corporation) for any increase in the amount of
capital and reduced rate of return which such Lender or the Agent reasonably
determines to be allocable to the existence of such Lender's or the Agent's
obligations hereunder. A statement as to the amount of such compensation,
prepared in good faith and in reasonable detail by such Lender or the Agent, as
the case may be, and submitted by such Lender or the Agent to the Borrowers,
shall be conclusive and binding for all purposes absent manifest error in
computation.
3.8 Illegality and Impossibility. In the event that any applicable law,
treaty, rule or regulation (whether domestic or foreign) now or hereafter in
effect and whether or not presently applicable to any Lender, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by any Lender
with any guideline, request or directive of such authority (whether or not
having the force of law), including without limitation exchange controls, shall
make it unlawful or impossible for any Lender to maintain any LIBOR Loan under
this Agreement, the Borrowers shall upon
CREDIT AGREEMENT Page 41
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receipt of notice thereof from such Lender, repay in full the then outstanding
principal amount of each LIBOR Loan so affected, together with all accrued
interest thereon to the date of payment and all amounts owing to such Lender
under Section 3.9, which LIBOR Loan may be repaid with an Adjusted Prime Rate
Loan if the conditions for such Loan are satisfied, in each case (a) on the last
day of the then current LIBOR Interest Period applicable to such Loan if such
Lender may lawfully continue to maintain such Loan to such day, or (b)
immediately if such Lender may not continue to maintain such Loan to such day.
3.9 Indemnification. If a Borrower makes any payment of principal with
respect to any LIBOR Loan on any other date than the last day of a LIBOR
Interest Period applicable thereto (whether pursuant to Section 3.1, Section
3.8, Section 6.2 or otherwise), or if a Borrower fails to borrow any LIBOR Loan
after notice has been given to the Lenders in accordance with Section 2.4, or if
a Borrower fails to make any payment of principal or interest in respect of a
LIBOR Loan when due, such Borrower shall reimburse each Lender on demand for any
resulting loss or expense incurred by each such Lender, including without
limitation any loss incurred in obtaining, liquidating or employing deposits
from third parties, whether or not such Lender shall have funded or committed to
fund such Loan. A statement as to the amount of such loss or expense, prepared
in good faith and in reasonable detail by such Lender and submitted by such
Lender to such Borrower, shall be conclusive and binding for all purposes absent
manifest error in computation. Calculation of all amounts payable to such Lender
under this Section 3.9 shall be made as though such Lender shall have actually
funded or committed to fund the relevant LIBOR Loan through the purchase of an
underlying deposit in an amount equal to the amount of such Loan and having a
maturity comparable to the related LIBOR Interest Period and through the
transfer of such deposit from an offshore office of such Lender to a domestic
office of such Lender in the United States of America; provided, however, that
such Lender may fund any LIBOR Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 3.9.
3.10 Substitution of Lender. If (i) the obligation of any Lender to make or
maintain LIBOR Loans has been suspended pursuant to Section 3.8 when not all
Lenders obligations have been suspended (ii) any Lender has demanded
compensation under Section 3.7 or (iii) any Lender is a Defaulting Lender, the
Company shall have the right, if no Unmatured Event or Event of Default then
exists, to replace such Lender (a "Replaced Lender") with one or more other
lenders (collectively, the "Replacement Lender") acceptable to the Agent,
provided that (x) at the time of any replacement pursuant to this Section 3.10,
the Replacement Lender shall enter into one or more Assignment and Acceptances,
pursuant to which the Replacement Lender shall acquire the Commitments and
outstanding Advances and other obligations of the Replaced Lender and, in
connection therewith, shall pay to the Replaced Lender in respect thereof an
amount equal to the sum of (A) the amount of principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, (B) the amount of all
accrued, but theretofore unpaid, fees owing to the Replaced Lender under Section
2.3 and (C) the amount which would be payable by any Borrower(s) to the Replaced
Lender pursuant to Section 3.9 if such Borrower(s) prepaid at the time of such
replacement all of the Loans of such Replaced Lender outstanding at such time
and (y) all obligations of the Company then owing to the Replaced Lender (other
than those specifically described in clause (x) above in respect of which the
assignment purchase price has been, or is concurrently being, paid) shall be
paid in full to such Replaced Lender concurrently with such replacement. Upon
the execution of the respective Assignment and Acceptances, the payment of
amounts referred to in clauses (x) and (y) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by the Company, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder.
The provisions of this Agreement (including without limitation Sections 3.9 and
8.5) shall continue to govern the rights and obligations of a Replaced Lender
with respect to any Loans made or any other actions taken by such lender while
it was a Lender. Nothing herein shall release any Defaulting Lender from any
obligation it may have to the Company, the Agent or any other Lender.
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3.11 Non-Receipt of Funds by the Agent. Unless a Borrower or a Lender, as
the case may be, notifies the Agent prior to the date on which it is scheduled
to make payment to the Agent of (a) in the case of a Lender, the proceeds of a
Loan or (b) in the case of a Borrower, a payment of principal, interest or fees
to the Agent for the account of the Lenders, that it does not intend to make
such payment, the Agent may assume that such payment has been made. The Agent
may, but shall not be obligated to, make the amount of such payment available to
the intended recipient in reliance upon such assumption. If such Lender or
Borrower, as the case may be, has not in fact made such payment to the Agent,
the recipient of such payment shall, on demand by the Agent, repay to the Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Agent until the date the Agent recovers such amount at a rate per annum
equal to (i) in the case of payment by a Lender in Dollars, the Federal Funds
Rate for such day, (ii) in the case of payment by a Lender in any Permitted
Currency other than Dollars, the amount necessary to cover the costs of the
Agent due to the non-receipt of the expected funds, as determined by the Agent,
or (iii) in the case of payment by a Borrower, the interest rate applicable to
the relevant Loan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants that:
4.1 Corporate Existence and Power. Each of the Borrowers and the Guarantors
is a company or a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of incorporation or organization,
and is duly qualified to do business, and is in good standing, in all additional
jurisdictions where such qualification is necessary under applicable law, except
for those jurisdictions where the failure to so qualify or be in good standing
could not result in any Material Adverse Effect. Each of the Borrowers and the
Guarantors has all requisite corporate or company power to own or lease the
properties used in its business and to carry on its business as now being
conducted and as proposed to be conducted, and to execute and deliver the Loan
Documents to which it is a party and to engage in the transactions contemplated
by the Loan Documents.
4.2 Corporate Authority. The execution, delivery and performance by each of
the Borrowers and the Guarantors of the Loan Documents to which it is a party
have been duly authorized by all necessary company or corporate action and are
not in contravention of any law, rule or regulation, or any judgment, decree,
writ, injunction, order or award of any arbitrator, court or governmental
authority, or of the terms of any Borrower's or any Guarantor's charter or
by-laws, or of any contract or undertaking to which any Borrower or any
Guarantor is a party or by which any Borrower or any Guarantor or their
respective property may be bound or affected or result in the imposition of any
Lien except for Permitted Liens.
4.3 Binding Effect. The Loan Documents to which any Borrower or any
Guarantor is a party are the legal, valid and binding obligations of the
Borrowers and the Guarantors party thereto, respectively, enforceable against
the Borrowers and the Guarantors in accordance with their respective terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the rights of creditors generally and by general
principles of equity.
CREDIT AGREEMENT Page 43
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4.4 Subsidiaries. Schedule 4.4 hereto correctly sets forth the corporate
name, jurisdiction of organization and ownership of each Subsidiary of the
Company. Each such Subsidiary and each Person becoming a Subsidiary of a
Borrower or a Guarantor after the date hereof is and will be a corporation or
limited liability company duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization and is and
will be duly qualified to do business in each additional jurisdiction where such
qualification is or may be necessary under applicable law, except for those
jurisdictions where the failure to so qualify or be in good standing could not
result in any Material Adverse Effect. Each Subsidiary of the Company has and
will have all requisite power to own or lease the properties used in its
business and to carry on its business as now being conducted and as proposed to
be conducted, except where the failure to have such power could not result in a
Material Adverse Effect. All outstanding shares of capital stock of each class
of each Subsidiary of the Company have been and will be validly issued and are
and will be fully paid and nonassessable and, except as otherwise indicated in
Schedule 4.4 hereto, are and will be owned, beneficially and of record, by a
Borrower, a Guarantor or another Subsidiary of the Company free and clear of any
Liens other than as permitted under this Agreement.
4.5 Litigation. Except as set forth in Schedule 4.5 hereto, there is no
action, suit or proceeding pending or, to the best of any Borrower's knowledge,
threatened against or affecting any Borrower, any Guarantor or any of their
respective Subsidiaries before or by any court, governmental authority or
arbitrator, which if adversely decided might result, either individually or
collectively, in any Material Adverse Effect and, to the best of the Borrowers'
knowledge, there is no basis for any such action, suit or proceeding.
4.6 Financial Condition. The consolidated balance sheet of the Company and
its Subsidiaries and the consolidated statements of income, retained earnings
and cash flows of the Company and its Subsidiaries for the fiscal year ended
December 31, 1997 and reported on by Coopers & Lybrand L.L.P., independent
certified public accountants, copies of which have been furnished to the
Lenders, fairly present, and the financial statements of the Company and its
Subsidiaries delivered pursuant to Section 5.1(d) will fairly present, the
consolidated financial position of the Company and its Subsidiaries as at the
respective dates thereof, and the consolidated results of operations of the
Company and its Subsidiaries for the respective periods indicated, all in
accordance with Generally Accepted Accounting Principles. The budgeted
consolidated and consolidating financial statements of the Company and its
Subsidiaries and the pro forma projections of consolidated financial results of
the Company and its Subsidiaries for each of the fiscal years ending December
31, 1999 through December 31, 2005 are based on appropriate assumptions and the
best information available. The consolidated balance sheet of the Company and
its Subsidiaries and the consolidated statements of income, retained earnings
and cash flows of the Company and its Subsidiaries for the fiscal year ending
December 31, 1998 and prepared by the Company, fairly present the consolidated
financial position of the Company and its Subsidiaries as at the respective
dates thereof, and the consolidated results of operations of the Company and its
Subsidiaries for the respective periods indicated, all in accordance with
Generally Accepted Accounting Principles, subject to customary year end audit
adjustments. There has been no Material Adverse Effect since December 31, 1997
or December 31, 1998. There is no material Contingent Liability of the Company
that is not reflected in such financial statements or in the notes thereto.
4.7 Use of Advances. The Company will use the proceeds of the initial
Advances hereunder as described in the sources and uses certificate delivered by
the Company to the Agent on the Effective Date, and the Borrowers will use all
other Advances for general company or corporate purposes. No Borrower, no
Guarantor nor any of their respective Subsidiaries extends or maintains, in the
ordinary course of business, credit for the purpose, whether immediate,
incidental, or ultimate, of buying or carrying margin stock (within the meaning
of Regulations T, U or X of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Advance will be used for the
purpose, whether immediate, incidental, or ultimate, of buying or carrying any
such margin stock or maintaining or extending credit to others for such purpose.
Any Capital Stock being acquired in connection with the Foggini Acquisition is
not "margin stock" within the meaning of
CREDIT AGREEMENT Page 44
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Regulations T, U or X of the Board of Governors of the Federal Reserve System
and is not "marginable OTC stock" or "foreign margin stock" within the meaning
of Regulation T of the Board of Governors of the Federal Reserve System. After
applying the proceeds of each Advance, such margin stock will not constitute
more than 25% of the value of the assets (either of the Company alone or of the
Company and its Subsidiaries on a consolidated basis) that are subject to any
provisions of any Loan Document that may cause the Advances to be deemed
secured, directly or indirectly, by margin stock
4.8 Consents, Etc. Except for such consents, approvals, authorizations,
declarations, registrations or filings delivered by the Borrowers pursuant to
Section 2.5(g), if any, each of which is in full force and effect, no consent,
approval or authorization of or declaration, registration or filing with any
governmental authority or any nongovernmental Person or entity, including
without limitation any creditor, lessor or stockholder of any Borrower, any
Guarantor or any of their respective Subsidiaries, is required on the part of
any Borrower or any Guarantor in connection with the execution, delivery and
performance of any Loan Document or the transactions contemplated hereby or as a
condition to the legality, validity or enforceability of any Loan Document.
4.9 Taxes. The Borrowers, the Guarantors and their respective Subsidiaries
have filed all tax returns (federal, state and local) required to be filed and
have paid all taxes shown thereon to be due and required to be paid including
interest and penalties, or have established adequate financial reserves on their
respective books and records for payment thereof. No Borrower, no Guarantor nor
any of their respective Subsidiaries knows of any actual or proposed tax
assessment or any basis therefor, and no extension of time for the assessment of
deficiencies in any federal or state tax has been granted by any Borrower, any
Guarantor or any Subsidiary.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement, a
Borrower, a Guarantor or one or more of their respective Subsidiaries have good
and marketable fee simple title to all of the real property reflected in said
balance sheet, and a valid and indefeasible ownership interest in all of the
other properties and assets reflected in said balance sheet or subsequently
acquired by any Borrower, any Guarantor or any Subsidiary. All of such
properties and assets are free and clear of any Lien except for Permitted Liens.
Except to the extent set forth in Section 2.11, the Security Documents grant a
first priority, enforceable and perfected lien and security interest which is
not void or voidable in all real property, personal property and all other
assets of each Borrower and each Guarantor, subject only to Permitted Liens.
4.11 ERISA. The Borrower, the Guarantors, their respective Subsidiaries, the
ERISA Affiliates and the Plans are in compliance in all material respects with
those provisions of ERISA and of the Code which are applicable with respect to
any Plan. No Prohibited Transaction and no Reportable Event has occurred with
respect to any Plan. None of the Borrowers, the Guarantors, their respective
Subsidiaries nor any of the ERISA Affiliates is an employer with respect to any
Multiemployer Plan. The Borrowers, the Guarantors, their respective Subsidiaries
and the ERISA Affiliates have met the minimum funding requirements under ERISA
and the Code with respect to each of their respective Plans, if any, and other
than obligations in the ordinary course of business to make Plan contributions
and pay PBGC premiums when due, have not incurred any liability to the PBGC or
any Plan. Assuming the funds provided by each Lender do not constitute the plan
assets of any pension plan, the execution, delivery and performance of the Loan
Documents do not constitute a Prohibited Transaction. There is no material
Unfunded Benefit Liability with respect to any Plan. As of the Effective Date,
no Borrower, Guarantor or any Subsidiary has any Plans.
4.12 Disclosure. No report or other information furnished in writing or on
behalf of any Borrower, any Guarantor or any Subsidiary to any Lender or the
Agent in connection with the negotiation or administration of this Agreement
contains to the best of its knowledge any material misstatement of fact or omits
to state any material fact or any fact necessary to make the statements
contained therein not misleading. No Loan Document nor any other document,
certificate, or report or statement or other information furnished to any Lender
or the
CREDIT AGREEMENT Page 45
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Agent by or on behalf of any Borrower, any Guarantor or any Subsidiary in
connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact in order to make
the statements contained herein and therein not misleading. There is no fact
known to any Borrower which materially and adversely affects, or which in the
future may materially and adversely affect, the business, properties, operations
or condition, financial or otherwise, of any Borrower, any Guarantor or any
Subsidiary, which has not been set forth in this Agreement or in the other
documents, certificates, statements, reports and other information furnished in
writing to the Lenders by or on behalf of any Borrower, any Guarantor or any
Subsidiary in connection with the transactions contemplated hereby taken as a
whole, including without limitation the offering memorandum for the Senior
Subordinated Notes.
4.13 Environmental and Safety Matters. All representations and warranties
made by the Borrowers and the Guarantors in the Environmental Certificate
delivered pursuant to Section 2.5(i) and Section 5.1(d)(x) are true and correct.
4.14 Borrowing Base. All trade accounts receivable, inventory and tooling
reimbursement payments of each Borrower and each Guarantor represented or
reported by the Borrowers to be, or otherwise included in, Eligible Accounts
Receivable, Eligible Inventory and Eligible Deferred Reimbursement Tooling
comply in all respects with the requirements therefor set forth in the
definitions thereof and are not of a type which, prior to the date of the
Borrowing Base Certificate, have been identified as ineligible by the Agent, and
the computations of the Borrowing Base set forth in each Borrowing Base
Certificate are true and correct.
4.15 No Default. No Borrower, no Guarantor nor any Subsidiary is in default
or has received any written notice of default under or with respect to any of
its Contractual Obligations in any respect which is reasonably likely to result
in a Material Adverse Effect. No Unmatured Event or Event of Default has
occurred and is continuing.
4.16 Intellectual Property. Set forth on Schedule 4.16 is a complete and
accurate list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of the
Borrowers, the Guarantors and each of their respective Subsidiaries showing as
of the Effective Date the jurisdiction in which registered, the registration
number and the date of registration. The Borrowers, the Guarantors and each of
their respective Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, service marks, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted (the
"Intellectual Property") except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse Effect. No claim has
been asserted and is pending by any Person challenging or questioning the use of
any such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does any Borrower, any Guarantor or any of their
respective Subsidiaries know of any valid basis for any such claim; the use of
such Intellectual Property by the Borrowers, the Guarantors and each of their
respective Subsidiaries does not infringe on the rights of any Person, and, to
the knowledge of the Borrowers, no Intellectual Property has been infringed,
misappropriated or diluted by any other Person except for such claims,
infringements, misappropriation and dilutions that, in the aggregate, could not
have a Material Adverse Effect.
4.17 No Burdensome Restrictions. No Requirement of Law or Contractual
Obligation applicable to any Borrower, any Guarantor or any Subsidiary could
have a Material Adverse Effect.
4.18 Labor Matters. There are no strikes or other labor disputes against any
Borrower, any Guarantor or any Subsidiary pending or, to the knowledge of any
Borrower, threatened that (individually or in the aggregate) could have a
Material Adverse Effect. Hours worked by and payment made to employees of the
Borrowers, the Guarantors and their respective Subsidiaries have not been in
violation of the Fair Labor Standards Act, if applicable, or any other
applicable Requirement of Law dealing with such matters that
CREDIT AGREEMENT Page 46
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(individually or in the aggregate) could have a Material Adverse Effect. All
payments due from the Borrowers, the Guarantors and their respective
Subsidiaries on account of employee health and welfare insurance that
(individually or in the aggregate) could have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrowers, the
Guarantors, and their respective Subsidiaries.
4.19 Solvency. (a) After giving effect to the transactions described herein
and to the incurrence or assumption of all Indebtedness (including without
limitation the Subordinated Debt, all Advances and all other obligations being
incurred or assumed in connection herewith and therewith) (i) the fair value of
the assets of the Borrowers, the Guarantors and their respective Subsidiaries on
a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, subordinated, contingent or otherwise, of the Borrowers, the
Guarantors and their respective Subsidiaries on a consolidated basis; (ii) the
present fair saleable value of the property of the Borrowers, the Guarantors and
their respective Subsidiaries on a consolidated basis will be greater than the
amount that will be required to pay the probable liability of the Borrowers, the
Guarantors and their respective Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) the Borrowers,
the Guarantors and their respective Subsidiaries on a consolidated basis will be
able to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured; and (iv) the
Borrowers, the Guarantors and their respective Subsidiaries on a consolidated
basis will not have unreasonably small capital with which to conduct the
businesses in which they are engaged as such businesses are now conducted and
are proposed to be conducted after the date hereof.
(b) The Borrowers do not intend to, or to permit any of their
respective Subsidiaries or any Guarantor to, and do not believe that they or any
of their respective Subsidiaries or any Guarantor will, incur debts beyond their
ability to pay such debts as they mature, taking into account the timing of and
amounts of cash to be received by them or any such Subsidiary or any such
Guarantor and the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary or any such
Guarantor.
4.20 Not an Investment Company; Other Regulations. No Borrower, no Guarantor
nor any of their respective Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended. No Borrower, no
Guarantor nor any of their respective Subsidiaries is subject to any regulation
under any federal or state statute or regulation which limits its ability to
incur Indebtedness.
4.21 Senior Unsecured Debt Documents. As of the Effective Date, the
aggregate outstanding principal balance of the Senior Unsecured Notes is equal
to $14,015,000 and all Senior Unsecured Debt Documents are described on Schedule
1.1-E hereto. There is no event of default or event or condition which the
Company reasonably believes will become an event of default with notice or lapse
of time or both under the Senior Unsecured Debt Documents. The Third Amendment
to Indenture dated as of November 17, 1992 between the Company and Mellon Bank,
F.S.B. as trustee, relating to the Senior Unsecured Note Indenture is in full
force and effect and is valid and binding on the Company and each holder of the
Senior Unsecured Notes.
4.22 Senior Subordinated Debt Documents. All representations and warranties
of the Company contained in any Senior Subordinated Debt Document are true and
correct in all material respects. The Company received net proceeds in the
approximate amount of $121,000,000 on or about March 24, 1997 from its issuance
of the Senior Subordinated Notes, and all agreements, instruments and documents
executed or delivered pursuant to the issuance of the Senior Subordinated Notes
are described on Schedule 1.1-D hereto. All Lender Indebtedness is "Senior Debt"
and "Designated Senior Debt" as defined in the Senior Subordinated Debt
Documents, this Agreement and the other Loan Documents are the "Senior Credit
Facility" as
CREDIT AGREEMENT Page 47
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defined in the Senior Subordinated Debt Documents and, other than the Lender
Indebtedness, there is no other "Designated Senior Debt" thereunder. This
Agreement and the other Loan Documents are the "Senior Credit Facility" as
defined in the Senior Subordinated Indenture. Other than the Lender
Indebtedness, there is no other "Designated Senior Indebtedness" thereunder. The
Term Loans are being incurred pursuant to, and in full compliance with, the
first paragraph of Section 4.09 of the Senior Subordinated Note Indenture, and
the Term Loans are classified as Indebtedness incurred under the first paragraph
of Section 4.09 of the Senior Subordinated Note Indenture and are not classified
as Indebtedness outstanding or incurred pursuant to the items listed as
"Permitted Debt" following the first paragraph of Section 4.09 of the Senior
Subordinated Note Indenture. All Revolving Credit Advances, up to the full
amount of the aggregate Revolving Credit Commitments, are incurred pursuant to
clause (iii) of the items listed as "Permitted Debt" following the first
paragraph of Section 4.09 of the Senior Subordinated Note Indenture and do not
need to meet the requirements of the first paragraph of Section 4.09 of the
Senior Subordinated Note. There is no Event of Default or event or condition
which could become an Event of Default with notice or lapse of time or both,
under the Senior Subordinated Debt Documents and each of the Senior Subordinated
Debt Documents is in full force and effect. Other than pursuant to the Senior
Subordinated Notes, there is no obligation pursuant to any Senior Subordinated
Debt Document or other document or agreement evidencing or relating to any
Subordinated Debt outstanding or to be outstanding on the Effective Date which
obligates the Company to pay any principal or interest or redeem any of its
Capital Stock or incur any other monetary obligation.
4.23 Foggini Acquisition. On or within one day of the Effective Date, Key
Europe will complete the Foggini Acquisition in accordance with the Foggini
Acquisition Documents and in accordance with all laws and regulations and all
other Requirements of Law, and will acquire, free and clear of all Liens (other
than Permitted Liens), good and marketable title to all assets (including
without limitation all Capital Stock of the Foggini Group) being acquired
pursuant to the Foggini Acquisition and the Foggini Acquisition Documents.
Complete and correct copies of all Foggini Acquisition Documents have been
delivered to the Agent on or before the Foggini Acquisition Date. The Company
owns, free and clear of all Liens, 65% of the Capital Stock of Key Europe, and
Key Europe owns 100% of the Capital Stock of Key S.A.S., Key U.K., MaP and, upon
completion of the Foggini Acquisition, the Foggini Group, in each case free and
clear of all Liens other than in favor of the Agent. All shareholders of Key
Europe, other than the Company, have unconditionally and irrevocably assigned to
the Company all of their rights in all dividends and other distributions paid or
payable by Key Europe for a period of seven years after the Effective Date, and
such assignments are valid, binding and enforceable in accordance with their
terms. Other than restrictions imposed by law, there are no limitations or
restrictions on (a) the making of any dividends or distributions of any of the
Foggini Group, Key Europe or any other Subsidiary of the Company, or (b) the
ability of any of the Foggini Group, Key Europe or any other Subsidiary of the
Company to make loans or advances to the Company.
4.24 Compliance With Laws. The Company and its Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective property except for any failure to comply with any of the
foregoing which could not reasonably be expected to have a Material Adverse
Effect.
4.25 Year 2000. The Company has made a full and complete assessment of the
Year 2000 Issues and has a realistic and achievable program for remediating the
Year 2000 Issues on a timely basis (the "Year 2000 Program"). Based on such
assessment and on the Year 2000 Program, the Company does not reasonably
anticipate that Year 2000 Issues will have a Material Adverse Effect.
CREDIT AGREEMENT Page 48
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ARTICLE V
COVENANTS
5.1 Affirmative Covenants. Each Borrower covenants and agrees that, until
the last to occur of the Maturity Date A, Maturity Date B and the Termination
Date and thereafter until payment in full of the principal of and accrued
interest on the Advances and the performance of all other obligations of the
Borrowers under this Agreement, unless the requisite Lenders pursuant to Section
8.1 shall otherwise consent in writing, it shall, and shall cause each of its
Subsidiaries and the Guarantors to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and its qualification as a foreign corporation or limited
liability company or other entity, as the case may be (other than any merger
permitted pursuant to Section 5.2(g) and other than any dissolution or
liquidations of any Subsidiary if the assets of such Subsidiary are transferred
to a Borrower or any Guarantor in connection with such dissolution or
liquidation), in good standing (or the equivalent thereof in any foreign
jurisdiction) in each jurisdiction, foreign or domestic, in which such
qualification is necessary under applicable law and the rights, licenses,
permits (including those required under Environmental Laws), franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
businesses; provided, however, that a Borrower shall not be required to preserve
any such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if its Board of Directors or other
governing body shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Agent or the Lenders; and defend all of the foregoing against all
claims, actions, demands, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory authority.
(b) Compliance with Laws, Etc. Comply in all material respects with all
applicable laws, rules, regulations and orders of any governmental authority
whether federal, state, local or foreign (including without limitation ERISA,
the Code and Environmental Laws), in effect from time to time, the enforcement
of which could have a Material Adverse Effect; and pay and discharge, before any
interest or penalty for nonpayment thereof becomes payable, all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income, revenues or property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise, which, if unpaid, might give rise to Liens (other than Permitted
Liens) upon such properties or any portion thereof, except to the extent that
payment of any of the foregoing is then being contested in good faith by
appropriate legal proceedings and with respect to which adequate financial
reserves have been established on the books and records of such Borrower, such
Guarantor or such Subsidiary.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of the business of the
Borrowers, the Guarantors or any of their respective Subsidiaries and keep such
property in good repair, working order and condition and from time to time make,
or cause to be made all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
and maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, including fire and other risks insured against by extended coverage,
as is usually carried by companies engaged in similar businesses and owning
similar properties similarly situated and maintain in full force and effect
public liability insurance, insurance against claims for personal injury or
death or property damage occurring in connection with any of its activities or
any of any properties owned, occupied or controlled
CREDIT AGREEMENT Page 49
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by it, in such amount as it shall reasonably deem necessary, and maintain such
other insurance as may be required by law or as may be reasonably requested by
the Agent for purposes of assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Lenders and the Agent the
following:
(i) Promptly and in any event within five Business Days after
becoming aware of the occurrence of (A) any Unmatured Event or Event of Default,
(B) the commencement of any litigation against, by or affecting any Borrower,
any Guarantor or any of their respective Subsidiaries, which could have a
Material Adverse Effect, and any material developments therein, or (C) entering
into any material contract or undertaking that is not entered into in the
ordinary course of business or (D) any development in the business or affairs of
any Borrower, any Guarantor or any of their respective Subsidiaries which has
resulted in or which is likely in the reasonable judgment of the Borrowers, to
result in a Material Adverse Effect, a statement of the chief financial officer
of the Company setting forth details of such Unmatured Event or Event of Default
and the action which such Borrower, such Guarantor or such Subsidiary, as the
case may be, has taken and proposes to take with respect thereto;
(ii) As soon as available and in any event within 45 days after
the end of each fiscal quarter of the Company, the consolidated and
consolidating balance sheet of the Company and its Subsidiaries as of the end of
such quarter, and the related consolidated and consolidating statements of
income cash flows for such quarter and for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, setting forth
in each case in comparative form the corresponding figures for the corresponding
date or period of the preceding fiscal year and the variances, if any, from the
budget and forecast delivered pursuant to Section 5.1(d)(ix), all in reasonable
detail and duly certified (subject to year-end audit adjustments) by the chief
financial officer of the Company as having been prepared in accordance with
Generally Accepted Accounting Principles, together with a certificate of the
chief financial officer of the Company stating (A) that no Unmatured Event or
Event of Default, has occurred and is continuing or, if an Unmatured Event or
Event of Default has occurred and is continuing, a statement setting forth the
details thereof and the action which the Company has taken and proposes to take
with respect thereto, and (B) that a computation (which computation shall
accompany such certificate and shall be in detail satisfactory to the Agent)
showing compliance with Section 5.2 (a), (b), (c) and (d) hereof is in
conformity with the terms of this Agreement;
(iii) As soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and cash flows for such fiscal
year, with a customary audit report of Coopers & Lybrand L.L.P., or any of the
five largest independent certified public accounting firms in the United States,
without qualifications unacceptable to the Agent, together with, a certificate
of the chief financial officer of the Company stating (A) that no Unmatured
Event or Event of Default has occurred and is continuing or, if an Unmatured
Event or Event of Default has occurred and is continuing,, a statement setting
forth the details thereof and the action which the Company has taken and
proposes to take with respect thereto, and (B) that a computation (which
computation shall accompany such certificate and shall be in reasonable detail)
showing compliance with Section 5.2 (a), (b) (c) and (d) hereof is in conformity
with the terms of this Agreement;
(iv) Promptly after the sending or filing thereof, copies of all
reports, proxy statements and financial statements which any Borrower, any
Guarantor or any of their respective Subsidiaries sends to or files with any of
their respective security holders or any securities exchange or the Securities
and Exchange Commission or any successor agency thereof;
CREDIT AGREEMENT Page 50
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(v) Within 30 days after the end of each month, a Borrowing Base
Certificate prepared as of the close of business on the last day of each month,
certified as true and correct by the chief financial officer of the Company,
together with such supporting schedules and information as requested by the
Agent;
(vi) As soon as available and in any event within 30 days after
the end of each month, a report containing an aging as of the end of the
preceding month of accounts receivable and accounts payable of the Borrowers,
the Guarantors and their respective Subsidiaries, in a form satisfactory to the
Agent, if requested by the Agent;
(vii) As soon as available and in any event within 30 days after
the end of each month, a report identifying the inventory of the Borrowers, the
Guarantors, and their respective Subsidiaries and cost and location thereof and
the deferred reimbursement tooling as of the end of the preceding month, in a
form satisfactory to the Agent, if requested by the Agent;
(viii) Promptly and in any event within 10 Business Days after
receipt, a copy of any management letter or comparable analysis prepared by the
auditors for any Borrower, any Guarantor or any of their respective
Subsidiaries;
(ix) Within 90 days before the end of each fiscal year of the
Company, a budget and forecast prepared by the Company for the following fiscal
year;
(x) Within 60 calendar days after the end of each fiscal year of
the Company, a duly executed Environmental Certificate; and
(xi) Promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the Borrowers,
the Guarantors or any of their respective Subsidiaries as any Lender or the
Agent may from time to time reasonably request.
(e) Accounting, Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with
Generally Accepted Accounting Principles and to comply with the requirements of
this Agreement and, at any reasonable time and from time to time, (i) permit any
Lender or the Agent, or any agents or representatives thereof, to examine and
make copies of and abstracts from the records and books of account of, and visit
the properties of, the Borrowers, the Guarantors and their respective
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrowers, the Guarantors and their respective Subsidiaries with their
respective directors, officers, employees and independent auditors, and by this
provision the Borrowers do hereby authorize such Persons to discuss such
affairs, finances and accounts with any Lender or the Agent, (ii) at the expense
of the Borrowers, permit the Agent or any of its agents or representatives to
conduct a comprehensive field audit of its books, records, properties and
assets, including without limitation all collateral subject to the Security
Documents and site access, at the Borrowers' expense, and (iii) at the expense
of the Borrowers after and during the continuance of an Event of Default, permit
the Agent or any of its agents to conduct real estate appraisals, provided that
the Agent shall give the Borrowers reasonable notice of any of the foregoing.
(f) Additional Security and Collateral. Promptly (i) execute and
deliver and cause each Guarantor to execute and deliver, additional Security
Documents, within 30 days after request therefor by the Agent, sufficient to
grant to the Agent for the benefit of the Lenders and the Agent liens and
security interests in any after acquired property, and (ii) cause each Person
becoming a Subsidiary of any Borrower or any Guarantor from time to time to
execute and deliver to the Lenders and the Agent, within 30 days after such
Person becomes
CREDIT AGREEMENT Page 51
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a Subsidiary, a Guaranty and a Security Agreement, together with other related
documents described in Section 2.5 sufficient to grant to the Agent for the
benefit of the Lenders and the Agent liens and security interests in all
collateral of the type described in Section 2.11. The Company shall notify the
Lenders and the Agent, within 10 days after the occurrence thereof, of the
acquisition of any property by any Borrower or any Guarantor that is not subject
to the existing Security Documents, any Person becoming a Subsidiary and any
other event or condition, other than the passage of time, that may require
additional action of any nature in order to preserve the effectiveness and
perfected status of the liens and security interests of the Lenders and the
Agent with respect to such property pursuant to the Security Documents,
including without limitation delivering the originals of all promissory notes
and other instruments payable to any Borrower, any Guarantor or any Subsidiary
to the Agent and delivering the originals of all stock certificates or other
certificates evidencing any Capital Stock owned by any Borrower, any Guarantor
or any Subsidiary at any time. Upon the request of the Agent and if permitted to
do so by applicable law, the Company will promptly cause each Guarantor and each
Subsidiary to execute and deliver to the Lenders and the Agent a Guaranty and
Security Agreement, together with other related documents described in Section
2.5 sufficient to grant to the Agent for the benefit of the Lenders and the
Agent liens and security interests, to the extent available under applicable
law, in all collateral of the type described in Section 2.11 which has not yet
been delivered.
(g) Further Assurances. Execute and deliver within 30 days after
request therefor by the Agent, all further instruments and documents and take
all further action that the Agent may reasonably request, in order to give
effect to the intent of, and to aid in the exercise and enforcement of the
rights and remedies of the Lenders under, the Loan Documents, including without
limitation causing each lessor of real property to any Borrower, any Guarantor
or any of their respective Subsidiaries to execute and deliver to the Agent,
prior to or upon the commencement of any tenancy, an agreement in form and
substance acceptable to the Agent duly executed on behalf of such lessor waiving
any distraint, liens and similar rights with respect to any property subject to
the Security Documents and agreeing to permit the Lenders and the Agent to enter
such premises in connection therewith. In addition, each Borrower and each
Guarantor agrees to deliver to the Agent from time to time upon the acquisition
or creation of any subsidiary not listed in Schedule 4.4 hereto supplements to
Schedule 4.4 such that such Schedule, together with such supplements, shall at
all times accurately reflect the information provided for thereon. The Company
further agrees to take all necessary action to ensure that the Agent and the
Lenders may rely on the audited financial statements of the Company and its
Subsidiaries, including without limitation any necessary acknowledgments or
consents from the Company's auditors as may be required under applicable law.
(h) Year 2000. Take, and cause each of its Subsidiaries to take, all
such actions as are reasonably necessary to successfully implement the Year 2000
Program and to assure that Year 2000 Issues will not have a Material Adverse
Effect. At the request of the Agent, the Company will provide a description of
the Year 2000 Program, together with any updates or progress reports with
respect thereto.
(i) Required Hedging Agreements. The Company will maintain one or more
Hedging Agreements with one or more financial institutions acceptable to the
Agent, providing for a fixed rate of interest on a notional amount mutually
acceptable to the Agent and the Company. The Company will not, and will not
permit any Subsidiary to, enter into any Financial Contract for purposes of
financial speculation.
5.2 Negative Covenants. Until the last to occur of the Maturity Date B,
Maturity Date A and the Termination Date and thereafter until payment in full of
the principal of and accrued interest on the Advances and the performance of all
other obligations of the Borrowers under this Agreement, each Borrower agrees
that, unless the requisite Lenders pursuant to Section 8.1 shall otherwise
consent in writing, it shall not, and shall not permit any of its Subsidiaries
or any Guarantor to:
CREDIT AGREEMENT Page 52
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(a) Net Worth. Permit or suffer the consolidated Net Worth of the
Company and its Subsidiaries at any time to be less than the sum of $23,500,000,
plus 100% of the net proceeds of any issuance of the Capital Stock of the
Company after the Effective Date, plus 50% of the net income (net of any
Permitted LLC Tax Dividends) of the Company and its Subsidiaries, added as of
the end of each fiscal year of the Company, commencing with the fiscal year
ending December 31, 1999, provided that if such net income is negative in any
fiscal year the amount added for such fiscal year shall be zero and shall not
reduce the amount added for any other fiscal year.
(b) Total Debt to EBITDA Ratio. Permit or suffer the Total Debt to
EBITDA Ratio to be greater than (i) 5.0 to 1.0 at any time from and including
the Effective Date to and including September 29, 1999, (ii) 4.75 to 1.0 at any
time from and including September 30, 1999 to and including March 30, 2000,
(iii) 4.50 to 1.0 at any time from and including March 31, 2000 to and including
March 30, 2001, (iv) 4.25 to 1.0 at any time from and including March 31, 2001
to and including March 30, 2002, (v) 4.00 to 1.0 at any time from and including
March 31, 2002 to and including March 30, 2003, (vi) 3.75 to 1.0 at any time
from and including March 31, 2003 to and including March 30, 2004, (vii) 3.50 to
1.0 at any time from and including March 31, 2004 to and including March 30,
2005, or (viii) 3.25 to 1.0 at any time thereafter.
(c) Interest Coverage Ratio. Permit or suffer the Interest Coverage
Ratio to be less than (i) 2.0 to 1.0 as of the end of any fiscal quarter of the
Company ending on or before June 30, 1999, (ii) 2.1 to 1.0 as of the end of any
fiscal quarter of the Company ending on or after September 30, 1999 but on or
before December 31, 1999, (iii) 2.25 to 1.0 as of the end of any fiscal quarter
of the Company ending on or after March 31, 2000 but on or before December 31,
2000, (iv) 2.50 to 1.0 as of the end of any fiscal quarter of the Company ending
on or after March 31, 2001 but on or before December 31, 2001, (v) 2.75 to 1.0
as of the end of any fiscal quarter of the Company ending on or after March 31,
2002 but on or before December 31, 2002, (vi) 3.00 to 1.0 as of the end of any
fiscal quarter of the Company ending on or after March 31, 2003 but on or before
December 31, 2003, (vii) 3.25 to 1.0 as of the end of any fiscal quarter of the
Company ending on or after March 31, 2004 but on or before December 31, 2004, or
(viii) 3.50 to 1.0 as of the end of any fiscal quarter of the Company ending
thereafter.
(d) Fixed Charge Coverage Ratio. Permit or suffer the Fixed Charge
Coverage Ratio to be less than (i) 1.0 to 1.0 as of the end of any fiscal
quarter of the Company ending on or before December 31, 1999, (ii) 1.05 to 1.0
as of the end of any fiscal quarter of the Company ending on or after March 31,
2000 but on or before December 31, 2001, or (iii) 1.10 to 1.0 as of the end of
any fiscal quarter of the Company thereafter.
(e) Indebtedness. Create, incur, assume or in any manner become liable
in respect of, or suffer to exist, or permit or suffer any Subsidiary or any
Guarantor to create, incur, assume or in any manner become liable in respect of,
or suffer to exist, any Indebtedness other than:
(i) The Lender Indebtedness;
(ii) The Indebtedness described in Schedule 5.2(e) hereto and
refinancings thereof, but no increase in the amount thereof (as such amount is
reduced from time to time) and no modifications of the terms thereof which is
less favorable to the Company or more restrictive on the Company in any material
manner shall be permitted;
(iii) Indebtedness of any Subsidiary of the Company owing to the
Company or to any other Subsidiary of the Company;
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(iv) Subordinated Debt, including the related subordinated
guarantees, pursuant to the Senior Subordinated Debt Documents, provided that
the aggregate principal amount of such Subordinated Debt shall not exceed
$125,000,000;
(v) Indebtedness pursuant to the Senior Unsecured Notes in an
aggregate amount not to exceed a principal amount equal to $14,015,000, as
reduced from time to time;
(vi) Subordinated Debt owing to shareholders of the Company;
(vii) Trade accounts payable and accrued expenses arising in the
ordinary course which are past due in an amount which is not material in the
aggregate for the Company and its Subsidiaries on a consolidated basis or which
are being contested in good faith by appropriate proceedings and for which
adequate reserves are maintained on the books of the Company;
(viii) Indebtedness on connection with receivables factoring under
terms and in countries acceptable to the Agent, provided that the aggregate
outstanding amount of such Indebtedness may not exceed $35,000,000; and
(ix) Indebtedness other than (i) through (viii) above not
exceeding $25,000,000 in aggregate amount at any time outstanding.
(f) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of the Company or any of
its Subsidiaries, other than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which adequate
financial reserves have been established on its books and records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in the
aggregate, and which would not have a Material Adverse Effect and which
constitute (A) pledges or deposits under worker's compensation laws,
unemployment insurance laws or similar legislation, (B) good faith deposits in
connection with bids, tenders, contracts or leases to which the Company or any
of its Subsidiaries is a party for a purpose other than borrowing money or
obtaining credit, including rent security deposits, (C) liens imposed by law,
such as those of carriers, warehousemen and mechanics, if payment of the
obligation secured thereby is not yet due or which are being contested in good
faith by appropriate legal proceedings and with respect to which adequate
financial reserves have been established on the books and records of Company or
such Subsidiary, (D) liens securing taxes, assessments or other governmental
charges or levies not yet subject to penalties for nonpayment, and (E) pledges
or deposits to secure public or statutory obligations of the Company or any of
its Subsidiaries, or surety, customs or appeal bonds to which the Company or any
of its Subsidiaries is a party;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor encumbrances,
easements or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar purposes, or
zoning or other restrictions as to the use of such real property, provided that
all of the foregoing, in the aggregate, do not at any time materially detract
from the value of said properties or materially impair their use in the
operation of the businesses of the Company or any of its Subsidiaries;
CREDIT AGREEMENT Page 54
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(iv) Liens created pursuant to the Security Documents and
Liens expressly permitted by the Security Documents;
(v) Each Lien described in Schedule 5.2(f) hereto may be
suffered to exist, provided that there may be no increase in the amount of
indebtedness, obligations or liabilities secured thereby and it may not secure
any other indebtedness, obligations and liabilities other than those now
secured;
(vi) Any Lien created to secure payment of a portion of the
purchase price of, or existing at the time of acquisition of, any tangible fixed
asset acquired by the Company or any of its Subsidiaries may be created or
suffered to exist upon such fixed asset if the outstanding principal amount of
the Indebtedness secured by such Lien does not at any time exceed the purchase
price paid by the Company or such Subsidiary for such fixed asset, provided that
such Lien does not encumber any other asset at any time owned by the Company or
such Subsidiary, and provided, further, that not more than one such Lien shall
encumber such fixed asset at any one time;
(vii) Any Lien on any assets of any Subsidiaries of the
Company in favor of the Company securing permitted Indebtedness of such
Subsidiary owing to the Company, provided that such Lien is subordinated to the
Liens of the Agent by written agreements satisfactory to the Agent;
(viii) The interest or title of a lessor under any lease
otherwise permitted under this Agreement with respect to the property subject to
such lease to the extent performance of the obligations of the Company or its
Subsidiary thereunder is not delinquent in any material respect; and
(ix) Liens on receivables which are subject to factoring
arrangements to the extent permitted by, and securing only the Indebtedness
allowed by, Section 5.2(e)(viii).
(g) Merger; Acquisitions; Etc. Make any Acquisition; nor merge or
consolidate or amalgamate with any other Person or take any other action having
a similar effect, nor enter into any joint venture or similar arrangement with
any other Person, provided, however, that this Section 5.2(g) shall not prohibit
(i) any merger of any Subsidiary with or into another Subsidiary or any merger
of any Subsidiary into the Company, provided that (A) there is no Unmatured
Event or Event of Default either before or after such merger, (B) if any such
merger involves the Company, the Company shall be the surviving corporation and
(C) if any such merger involves the Company or any Guarantor, the consolidated
Net Worth of the Company or such Guarantor involved in such merger immediately
after the merger would be equal to or greater than its consolidated Net Worth
immediately preceding such merger, (ii) any Acquisition if the aggregate amount
of consideration paid or payable for all such Acquisitions on or after the
Effective Date (other than the Foggini Acquisition) does not exceed $1,000,000,
provided that there is no Umatured Event or Event of Default either before or
after such Acquisition and the consolidated Net Worth of the Company and its
Subsidiaries after such Acquisition would be equal to or greater than its
consolidated Net Worth immediately preceding such Acquisition, or (iii) the
Foggini Acquisition in accordance with the terms of this Agreement.
(h) Disposition of Assets; Etc. Sell, lease, license, transfer, assign
or otherwise dispose of all or any portion of its business, assets, rights,
revenues or property, real, personal or mixed, tangible or intangible, whether
in one or a series of transactions, other than inventory sold in the ordinary
course of business upon customary credit terms and sales of scrap or obsolete
material or equipment which are not material in the aggregate, and shall not
permit or suffer any Subsidiary to do any of the foregoing; provided, however,
that this Section 5.2(h) shall not prohibit any such sale, lease, license,
transfer, assignment or other disposition (i) if the aggregate book value
(disregarding any write-downs of such book value other than ordinary
depreciation and amortization) of all of the business, assets, rights, revenues
and property disposed of after the Effective Date of this Agreement shall be
less than $1,000,000 in the aggregate and if, immediately after such
transaction, no
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Unmatured Event or Event of Default shall exist or shall have occurred and be
continuing, (ii) sales as to which proceeds are used within 180 days to purchase
or construct assets of at least equivalent value to those sold, (iii) sales as
to which proceeds are used to make prepayments on the Advances in accordance
with Section 3.1(c), (iv) transfers of assets, including without limitation
Capital Stock, between Guarantors or between the Company and Guarantors, (v)
investments which consist of transfers of assets instead of cash and which are
permitted by Section 5.2(k) or (vi) such transfer of assets as pursuant to a
dividend or redemption permitted by Section 5.2(j) or an investment, loan or
advance permitted pursuant to Section 5.2(k); provided, however, in the case of
any of the foregoing permitted sales, leases, licenses, transfers, assignments
or other dispositions (an "Asset Sale") the Company shall not, and shall not
permit any of its Subsidiaries to, consummate an Asset Sale unless (A) the
Company (or the Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an officer's certificate
delivered to the Agent) of the assets and (B) at least 80% of the consideration
therefor received by the Company or such Subsidiary is in the form of cash;
provided that the amount of (x) any liabilities (as shown on the Company's or
such Subsidiary's' most recent balance sheet), of the Company or any Subsidiary
that are assumed by the transferee of any such assets such that the Company or
such Subsidiary have no further liability and (y) any securities, notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are converted by the Company or such Subsidiary into cash (to the extent of
the cash received), shall be deemed to be cash for purposes of this provision
and the definition of Net Cash Proceeds, and the Agent promptly shall obtain a
first priority security interest in any non cash consideration for any Asset
Sale.
(i) Nature of Business. Make or suffer any substantial change in the
nature of its business from that engaged in on the Effective Date or engage in
any other businesses other than those in which it is engaged on the Effective
Date.
(j) Dividends and Other Restricted Payments. Make, pay, declare or
authorize any dividend, payment or other distribution in respect of any class of
its Capital Stock or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of its Capital Stock other than such dividends,
payments or other distributions (i) to the extent payable solely in shares of
Capital Stock (other than Disqualified Stock) of the Company, (ii) the
repurchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company held by any employee of the Company upon
termination of employment of such employee, provided that the aggregate price
paid for such repurchased, redeemed, acquired or retired Capital Stock shall not
exceed $1,000,000 in any consecutive twelve month period, no Event of Default or
Unmatured Event shall have occurred and be continuing immediately after such
transaction and the price paid for such Capital Stock shall be made in
accordance with the existing agreements relating thereto, and (iii) the
following described dividends: For so long as the Company is a limited liability
company or substantially similar pass-through entity for Federal income tax
purposes, the Company may make cash distributions to its shareholders, during
each Quarterly Payment Period, in an aggregate amount not to exceed the
Permitted Quarterly Tax Distribution in respect of the related Estimation
Period. If any portion of a Permitted Quarterly Tax Distribution is not
distributed during such Quarterly Payment Period, the Permitted Quarterly Tax
Distribution payable during the immediately following Quarterly Payment Period
shall be increased by such undistributed portion. Within 10 days following the
Company's filing of Internal Revenue Service Form 1120S for the immediately
preceding taxable year, the Tax Amounts CPA shall file with the Agent a written
statement indicating in reasonable detail the calculation of the True-Up Amount.
In the case of a True-up Amount due to the stockholders, the Permitted Quarterly
Tax Distribution payable during the immediately following Quarterly Payment
Period shall be increased by such True-up Amount. In the case of a True-up
Amount due to the Company, the Permitted Quarterly Tax Distribution payable
during the immediately following Quarterly Payment Period shall be reduced by
such True-up Amount and the excess, if any, of the True-up Amount over such
Permitted Quarterly Tax Distribution shall be applied to reduce the immediately
following Permitted Quarterly Tax
CREDIT AGREEMENT Page 56
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Distributions until such True-up Amount is entirely offset. The Company will not
issue any preferred stock or Disqualified Stock. The Company shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, make any
payment or other transfer of any kind in respect of any Non-Competition
Agreement if any Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof and will not amend or modify,
or make any optional payment on, any Non-Competition Agreement. The Company
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, make any optional payment or other optional transfer of any kind
pursuant to the Foggini Option Agreement (and it is acknowledged and agreed that
the payment under the Foggini Option Agreement for the acquisition of all or any
part of the Capital Stock of Key Europe is an optional payment) and will not
amend or modify the Foggini Option Agreement or enter into any other agreement
relating to the purchase of the Capital Stock of Key Europe which is not owned
by the Company.
(k) Investments, Loans and Advances. Purchase or otherwise acquire any
Capital Stock of or other ownership interest in, or debt securities of or other
evidences of Indebtedness of, any other Person; nor make any loan or advance of
any of its funds or property or make any other extension of credit to, or make
any other investment or contribution or acquire any interest whatsoever in, any
other Person; nor incur any Contingent Liability except to the extent permitted
under Section 5.2(e) and other Contingent Liabilities in aggregate amount not to
exceed $250,000; nor permit any Subsidiary to do any of the foregoing; other
than (i) extensions of trade credit made in the ordinary course of business on
customary credit terms and commission, travel and similar advances made to
officers and employees in the ordinary course of business, (ii) Cash
Equivalents, (iii) investments, loans and advances in and to any Guarantor, or
any person becoming a Guarantor as a result thereof, provided that any such loan
or advance shall be represented by a promissory note in form and substance
satisfactory to the Agent and pledged to the Agent for the benefit of itself and
the Lenders, (iv) investments, loans and advances after the Effective Date of
this Agreement in Foreign Subsidiaries which are not Guarantors in aggregate
amount not exceeding $12,500,000, provided, however, that (A) such investments,
loans and advances under Section 5.2(k)(iv) shall not be permitted unless
immediately before and after (on a pro forma basis acceptable to the Agent and
supported by such certificates and opinions as requested by the Agent) such
investment, loan or advance: (w) the terms and conditions thereof shall be
satisfactory to the Agent, (x) no Unmatured Event or Event of Default shall
exist or shall have occurred and be continuing, (y) the representations and
warranties contained in the Loan Documents shall be true and correct on and as
of the date such investment, loan or advance is made as if made on the date
thereof and giving effect thereto and (z) the Company is able to borrow at least
$10,000,000 in Revolving Credit Loans after giving effect to such investment,
loan or advance and (B) it is acknowledged and agreed that the deferral of
existing royalty and management fees owing by any Subsidiary to the Company
consistent with the past practice of the Company and the sale of product by the
Company to Subsidiaries on customary trade terms on an arms length basis shall
not be considered investments, loans and advances to such Subsidiary and shall
not be prohibited by this Section 5.2(k), provided that any such amounts are not
included as revenues of the Company and its Subsidiaries during such deferral,
(vii) extensions of credit to employees and officers of the Company and its
Subsidiaries in the ordinary course of business for the purpose of purchasing
Capital Stock of the Company not in excess of $1,000,000 in aggregate amount at
any one time outstanding for all employees and officers, (viii) investments,
loans and advances in an aggregate amount not to exceed the existing investment
as of the Effective Date plus $1,500,000 in a joint venture known as Key-Inouac
joint venture on the terms disclosed to the Lenders prior to the Effective Date,
and (ix) those investments, loans, advances and other transactions described in
Schedule 5.2(k) hereto, having the same terms as existing on the date of this
Agreement, but no extension or renewal thereof shall be permitted.
(l) Transactions with Affiliates. Make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliates (each of the foregoing, an "Affiliate Transaction")
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been
CREDIT AGREEMENT Page 57
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obtained in a comparable transaction by the Company or such Subsidiary with an
unrelated Person and (ii) the Company delivers to the Agent (x) with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1,000,000, a resolution of the Board of
Directors set forth in an officers' certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such Affiliate Transaction
has been approved by a majority of the disinterested members of the Board of
Directors and (y) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
$5,000,000, an opinion as to the fairness to the Lenders of such Affiliate
Transaction from a financial point of view issued by an accounting, appraisal or
investment banking firm of national standing, provided that (A) (1) any
employment or consulting agreement or arrangement entered into by the Company or
any of its Subsidiaries in the ordinary course of business and consistent with
the past practice of the Company or such Subsidiary, (2) transactions between or
among the Company and/or the Guarantors and (3) Permitted Quarterly Tax
Distributions and other dividends and redemptions pursuant to Section 5.2(j)
shall not be deemed Affiliate Transactions and (B) any loan, advance or
investment permitted by Section 5.2 (k) shall not be subject to clause (y)
above.
(m) Inconsistent Agreements. Enter into any agreement or permit or
suffer any Subsidiary to enter into any agreement containing any provision which
would be violated or breached by this Agreement or any of the transactions
contemplated hereby or by performance by the Company or any of its Subsidiaries
of its obligations in connection therewith.
(n) Negative Pledge Limitation. Enter into any agreement (other than
the Senior Subordinated Note Indenture), including without limitation any
amendments to existing agreements, with any Person other than the Lenders
pursuant hereto which prohibits or limits the ability of the Company or any
Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired.
(o) Subsidiary Dividends. The Company covenants that it will not permit
any of its Subsidiaries directly or indirectly to create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
which by its terms materially restricts the ability of any such Subsidiary to
(i) pay dividends or make any other distributions on such Subsidiary's Capital
Stock, (ii) pay any Indebtedness owed to the Company or any of its other
Subsidiaries, (iii) make any loans or advances to the Company or any of such
other Subsidiaries or (iv) transfer any material portion of its assets to the
Company or any of such other Subsidiaries, except for such encumbrances or
restrictions required by applicable law.
(p) Payments and Modification of Debt. Make, or permit any Subsidiary
to make, any optional payment, defeasance (whether a covenant defeasance, legal
defeasance or other defeasance), prepayment or redemption of any of its or any
of its Subsidiaries' Subordinated Debt or other Indebtedness or amend or modify,
or consent or agree to any amendment or modification of, any instrument or
agreement under which any of its Subordinated Debt is issued or created or
otherwise related thereto, or enter into any agreement or arrangement providing
for any defeasance of any kind of any of its Subordinated Debt, or designate any
Indebtedness (other than the Lender Indebtedness) as "Designated Senior Debt"
under the Senior Subordinated Debt Documents, provided that the Company may
prepay the Senior Unsecured Notes if no Unmatured Event or Event of Default
exists or would be caused thereby and if the conditions to receiving a Revolving
Credit Loan are satisfied. Nothing in this Section 5.2(p) shall prohibit the
Company from making any mandatory payment under Sections 4.12, 4.13 or 4.16 of
the Senior Unsecured Note Indenture.
(q) Capital Expenditures. Acquire or contract to acquire any fixed
asset or make any other Capital Expenditure if the aggregate purchase price and
other acquisition costs of all such fixed assets acquired and other Capital
Expenditures made by the Company or any of its Subsidiaries during any fiscal
year of the Company would exceed, on a consolidated basis, an amount equal to
the sum of (i) (A)
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$38,500,000 for the fiscal year of the Company ending December 31, 1999, (B)
$40,000,000 for the fiscal year of the Company ending December 31, 2000, (C)
$45,000,000 for the fiscal year of the Company ending December 31, 2001, or (C)
$50,000,000 for any fiscal year thereafter, plus (ii) the amount of Capital
Expenditures allowed for the previous fiscal year (without giving effect to any
increase in the amount thereof caused by this clause (ii)) minus the amount of
actual Capital Expenditures for the previous fiscal year, plus (iii) if the
Company meets or exceeds its projected EBITDA (as contained in the Company's
projections delivered to the Agent prior to the Effective Date) for the previous
fiscal year and cumulatively for all fiscal years ending after the Effective
Date through such previous fiscal year, $5,000,000, plus (iv) up to $2,000,000
in aggregate amount (or such lesser amount as determined by the Agent) per
fiscal year for program specific Capital Expenditures for new business programs
not awarded as of the Effective Date, such Capital Expenditures acceptable to
the Agent.
5.3 Additional Covenants. If at any time a Borrower shall enter into or
be a party to any instrument or agreement with respect to any Indebtedness which
in the aggregate, together with any related Indebtedness, exceeds $1,000,000,
including all such instruments or agreements in existence as of the date hereof
and all such instruments or agreements entered into after the date hereof,
relating to or amending any terms or conditions applicable to any of such
Indebtedness which includes covenants, terms, conditions or defaults not
substantially provided for in this Agreement or more favorable to the lender or
lenders thereunder than those provided for in this Agreement, then such Borrower
shall promptly so advise the Agent and the Lenders. Thereupon, if the Agent
shall request, upon notice to Borrowers, the Agent and the Lenders shall enter
into an amendment to this Agreement or an additional agreement (as the Agent may
request), providing for substantially the same covenants, terms, conditions and
defaults as those provided for in such instrument or agreement to the extent
required and as may be selected by the Agent. In addition to the foregoing, any
covenants, terms, conditions or defaults in the Senior Subordinated Debt
Documents not substantially provided for in this Agreement or more favorable to
the holders of Subordinated Debt issued in connection therewith are hereby
incorporated by reference into this Agreement to the same extent as if set forth
fully herein, and no subsequent amendment, waiver, termination or modification
thereof shall effect any such covenants, terms, conditions or defaults as
incorporated herein.
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following events or
conditions shall be deemed an "Event of Default" hereunder unless waived by the
requisite Lenders pursuant to Section 8.1:
(a) Nonpayment. Any Borrower shall fail to pay when due any principal
of the Loans, or any reimbursement obligation under Section 3.3 (whether by
deemed disbursement of a Revolving Credit Loan or otherwise), or, within 5 days
after becoming due, any interest on the Loans or any fees or any other amount
payable hereunder;
(b) Misrepresentation. Any representation or warranty made by any
Borrower or any Guarantor in any Loan Document or any other certificate, report,
financial statement or other document furnished by or on behalf of any Borrower
or any Guarantor in connection with this Agreement, shall prove to have been
incorrect in any material respect when made or deemed made;
(c) Certain Covenants. Any Borrower or any Guarantor shall fail to
perform or observe any term, covenant or agreement contained in Section 5.1(d),
Section 5.2 (other than Sections 5.2(e), (f), (l), (m), and (n)) or 5.3 hereof;
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(d) Other Defaults. (i) Any Borrower or any Guarantor shall fail to
perform or observe any term, covenant or agreement contained in Sections 5.2(e)
or (f) hereof and any such failure shall remain unremedied for 5 Business Days
after written notice thereof shall have been given to the Company by the Agent
or (ii) any Borrower or any Guarantor shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document (other than those
described in Sections 6.1(a), (b) or 6.1(c) or clause (i) of this Section
6.1(d)), and any such failure shall remain unremedied for 20 calendar days after
written notice thereof shall have been given to the Company by the Agent (or
such longer or shorter period of time as may be specified in such Loan
Document);
(e) Other Indebtedness. Any Borrower or any Guarantor shall fail to pay
any part of the principal of, the premium, if any, or the interest on, or any
other payment of money due under any of its Indebtedness (other than
Indebtedness hereunder), beyond any period of grace provided with respect
thereto, which individually or together with other such Indebtedness as to which
any such failure exists has an aggregate outstanding principal amount in excess
of $1,000,000; or any Borrower or any Guarantor shall fail to perform or observe
any other term, covenant or agreement contained in any agreement, document or
instrument evidencing or securing any such Indebtedness having such aggregate
outstanding principal amount, or under which any such Indebtedness was issued or
created, beyond any period of grace, if any, provided with respect thereto if
the effect of such failure is either (i) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment in
respect of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company;
(f) Judgments. One or more judgments or orders for the payment of money
(not fully paid or covered without dispute by insurance) in an aggregate amount
of $1,000,000 in any fiscal year shall be rendered against any Borrower or any
Guarantor, or any other judgment or order (whether or not for the payment of
money) shall be rendered against or shall affect any Borrower or any Guarantor
which causes or could cause or could have a Material Adverse Effect, and either
(i) such judgment or order shall have remained unsatisfied and such Borrower or
such Guarantor shall not have taken action necessary to stay enforcement thereof
by reason of pending appeal or otherwise, prior to the expiration of the
applicable period of limitations for taking such action or, if such action shall
have been taken, a final order denying such stay shall have been rendered, or
(ii) enforcement proceedings shall have been commenced by any creditor upon any
such judgment or order;
(g) ERISA. The occurrence of a Reportable Event that results in or
could result in liability of any Borrower, any Guarantor or any ERISA Affiliate
to the PBGC or to any Plan and such Reportable Event is not corrected within
thirty (30) days after the occurrence thereof; or the occurrence of any
Reportable Event which could constitute grounds for termination of any Plan by
the PBGC or for the appointment by the appropriate United States District Court
of a trustee to administer any Plan and such Reportable Event is not corrected
within thirty (30) days after the occurrence thereof; or the filing by any
Borrower, any Guarantor or any ERISA Affiliate of a notice of intent to
terminate a Plan or the institution of other proceedings to terminate a Plan; or
any Borrower, any Guarantor or any ERISA Affiliate shall fail to pay when due
any liability to the PBGC or to a Plan; or the PBGC shall have instituted
proceedings to terminate, or to cause a trustee to be appointed to administer,
any Plan; or any Person engages in a Prohibited Transaction with respect to any
Plan which results in or could result in liability of any Borrower, any
Guarantor or any ERISA Affiliate to make a required installment or other payment
to any Plan within the meaning of Section 302(f) of ERISA or Section 412(n) of
the Code that results in or could result in liability of any Borrower or any
Guarantor or any ERISA Affiliate to the PBGC or any Plan; or the withdrawal of
any Borrower, any Guarantor or any ERISA Affiliate from a Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA; or any Borrower, any Guarantor or any ERISA Affiliate becomes an
employer with respect to any
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Multiemployer Plan without the prior written consent of the Required Lenders;
provided, however, that the aggregate liability caused by any of the foregoing
exceeds $1,000,000;
(h) Insolvency, Etc. Any Borrower, any Guarantor or any of
their respective Subsidiaries shall be dissolved or liquidated or any judgment,
order or decree therefor shall be entered (other than dissolutions or
liquidations of Subsidiaries permitted by Section 5.1(a)), or shall generally
not pay its debts as they become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors, or shall institute, or there shall be instituted against the Company
or any of its Subsidiaries, any proceeding or case seeking to adjudicate it a
bankrupt or insolvent or seeking liquidation, winding up, administration,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law in any country relating to bankruptcy, insolvency or
reorganization or relief or protection of debtors or seeking the entry of an
order for relief, or the appointment of a receiver (including an administrative
receiver), trustee, administrator, custodian or other similar official for it or
for any substantial part of its assets, rights, revenues or property, and, if
such proceeding is instituted against any Borrower, Guarantor or Subsidiary and
is being contested by such Borrower, Guarantor or Subsidiary, as the case may
be, in good faith by appropriate proceedings, such proceeding shall remain
undismissed or unstayed for a period of 60 days; or any Borrower, Guarantor or
Subsidiary shall take any action (corporate or other) to authorize or further
any of the actions described above in this subsection;
(i) Other Documents. Any material provision of any Loan
Document or any Subordinated Debt Document shall at any time for any reason
cease to be valid and binding and enforceable against any obligor thereunder, or
the validity, binding effect or enforceability thereof shall be contested by any
Person or any obligor shall deny that it has any or further liability or
obligation thereunder, or any Loan Document or any Subordinated Debt Document
shall be terminated, invalidated or set aside, or be declared ineffective or
inoperative or in any way cease to give or provide to the Lenders and the Agent
the benefits purported to be created thereby in any material manner;
(j) Control. Any Change of Control shall occur; or
(k) Foggini Acquisition. (i) the Foggini Acquisition shall not
be consummated in accordance with this Agreement and the Foggini Acquisition
Documents concurrently or within one Business Day of the making of the initial
Loans, or the Foggini Acquisition shall be unwound, reversed or otherwise
rescinded in whole or in any material part for any reason, or (ii) Company shall
agree to any material amendment to, or waive any of its material rights under,
or otherwise change any material terms of, any of the Foggini Acquisition
Documents as in effect on the Effective Date, in a manner adverse to the Company
or any of its Subsidiaries or to the Lenders without the prior written consent
of the Agent.
6.2 Remedies.
(a) Upon the occurrence and during the continuance of any
Event of Default, by notice to the Company (i) the Agent may, and upon being
directed to do so by the Required Revolving Credit Lenders shall, terminate the
Commitments or (ii) the Agent may, and upon being directed to do so by the
Required Lenders, shall declare the outstanding principal of, and accrued
interest on, the Loans, all unpaid reimbursement obligations in respect of
drawings under Letters of Credit and all other amounts owing under this
Agreement to be immediately due and payable, or (iii) the Agent may, and upon
being directed to do so by the Required Lenders, shall demand immediate delivery
of cash collateral, and the Company agrees to deliver such cash collateral upon
demand, in an amount equal to the maximum amount that may be available to be
drawn at any time prior to the stated expiry of all outstanding Letters of
Credit, or any one or more of the foregoing, whereupon the Commitments shall
terminate forthwith and all such amounts, including such cash collateral, shall
become immediately due and payable, as the case may be, provided that in the
case of any event or condition
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described in Section 6.1(h), the Commitments shall automatically terminate
forthwith and all such amounts, including such cash collateral, shall
automatically become immediately due and payable without notice; in all cases
without demand, presentment, protest, diligence, notice of dishonor or other
formality, all of which are hereby expressly waived. Such cash collateral
delivered in respect of outstanding Letters of Credit shall be deposited in a
special cash collateral account to be held by the Agent as collateral security
for the payment and performance of the Borrowers' obligations under this
Agreement to the Lenders and the Agent.
(b) The Agent may and, upon being directed to do so by the
Required Lenders, shall, in addition to the remedies provided in Section 6.2(a),
exercise and enforce any and all other rights and remedies available to it or
the Lenders, whether arising under this Agreement or any other Loan Document or
under applicable law, in any manner deemed appropriate by the Agent, including
suit in equity, action at law, or other appropriate proceedings, whether for the
specific performance (to the extent permitted by law) of any covenant or
agreement contained in any other Loan Document or in aid of the exercise of any
power granted in any other Loan Document.
(c) Upon the occurrence and during the continuance of any
Event of Default, each Lender may, subject to Section 7.10, at any time and from
time to time, without notice to any Borrower (any requirement for such notice
being expressly waived by each Borrower) set off and apply against any and all
of the obligations of any Borrower now or hereafter existing under this
Agreement, whether owing to such Lender or any other Lender or the Agent, any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender or any
Affiliate of such Lender to or for the credit or the account of any Borrower and
any property of any Borrower from time to time in possession of such Lender,
irrespective of whether or not such Lender shall have made any demand hereunder
and although such obligations may be contingent and unmatured. Each Borrower
hereby grants to the Lenders and the Agent a lien on and security interest in
all such deposits, indebtedness and property as collateral security for the
payment and performance of the obligations of the Borrowers under this Agreement
to the maximum extent permitted by applicable law. The rights of such Lender
under this Section 6.2(c) are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Lender may
have.
6.3 Distribution of Proceeds of Collateral. All proceeds of any
realization on the collateral pursuant to the Security Documents and any
payments received by the Agent or any Lender pursuant to the Guaranties
subsequent to and during the continuance of any Event of Default, shall be
allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and
expenses, including without limitation all reasonable attorneys' fees, of the
Agent in connection with the enforcement of the Security Documents and otherwise
administering this Agreement and the other Loan Documents;
(b) Second, to the payment of all fees required to be paid
under any Loan Document including commitment fees, owing to the Lenders and the
Agent pursuant to the Lender Indebtedness on a pro rata basis in accordance with
the Lender Indebtedness consisting of fees owing to the Lenders and Agent under
the Lender Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders and Agent on a pro rata basis in
accordance with the Lender Indebtedness consisting of interest owing to the
Lenders and the Agent under the Lender Indebtedness and obligations and
liabilities relating to Hedging Agreements owing to the Lenders and the Agent
under the Lender Indebtedness for application to payment of such liabilities;
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(d) Fourth, to the Lenders and the Agent on a pro rata basis
in accordance with the Lender Indebtedness consisting of principal (including
without limitation any cash collateral for any outstanding Letters of Credit),
for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing
to the Lenders and the Agent on a pro rata basis in accordance with the total
amount of such Indebtedness owing to each of the Lenders and the Agent, for
application to payment of such liabilities; and
(f) Sixth, to the Borrowers, their respective Subsidiaries or
such other Persons as may be legally entitled thereto.
Notwithstanding the foregoing, no payments of principal, interest or fees
delivered to the Agent for the account of any Defaulting Lender shall be
delivered by the Agent to such Defaulting Lender. Instead, such payments shall,
for so long as such Defaulting Lender shall be a Defaulting Lender, be held by
the Agent, and the Agent is hereby authorized and directed by all parties hereto
to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting
Lender to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender
on any borrowing date to the extent such Defaulting Lender
fails to make such Loans.
Notwithstanding the foregoing, upon the termination of all Commitments and the
payment and performance of all of the Advances and other obligations owing
hereunder (other than those owing to a Defaulting Lender), any funds then held
in escrow by the Agent pursuant to the preceding sentence shall be distributed
to each Defaulting Lender, pro rata in proportion to amounts that would be due
to each Defaulting Lender but for the fact that it is a Defaulting Lender.
6.4 Letter of Credit Liabilities. For the purposes of payments and
distributions under Section 6.3, the full amount of Lender Indebtedness on
account of any Letter of Credit then outstanding but not drawn upon shall be
deemed to be then due and owing. Amounts distributable to the Lenders or Agent
on account of such Lender Indebtedness under such Letters of Credit shall be
deposited in a separate collateral account in the name of and under the control
of the Agent and held by the Agent first as security for such Letter of Credit
Lender Indebtedness and then as security for all other Lender Indebtedness and
the amount so deposited shall be applied to the Letter of Credit Lender
Indebtedness at such times and to the extent that such Letter of Credit Lender
Indebtedness become absolute liabilities and if and to the extent that the
Letter of Credit Lender Indebtedness fail to become absolute Lender Indebtedness
because of the expiration or termination of the underlying Letters of Credit
without being drawn upon then such amounts shall be applied to the remaining
Lender Indebtedness in the order provided in Section 6.3. The Borrowers hereby
grant to the Agent, for the benefit of the Lenders and Agent, a lien and
security interest in all such funds deposited in such separate collateral
account, as security for all the Lender Indebtedness as set forth above.
ARTICLE VII
THE AGENT AND THE LENDERS
7.1. Appointment; Nature of Relationship. NBD is hereby appointed by
the Lenders as the Agent hereunder and under each other Loan Document, and each
of the Lenders irrevocably authorizes the Agent
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to act as the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. The Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article VII. Notwithstanding the use of the defined term
"Agent," it is expressly understood and agreed that the Agent shall have not
have any fiduciary responsibilities to any Lender by reason of this Agreement or
any other Loan Document and that the Agent is merely acting as the
representative of the Lenders with only those duties as are expressly set forth
in this Agreement and the other Loan Documents. In its capacity as the Lenders'
contractual representative, the Agent (i) does not hereby assume any fiduciary
duties to any of the Lenders, (ii) is a "representative" of the Lenders within
the meaning of Section 9-105 of the Uniform Commercial Code and (iii) is acting
as an independent contractor, the rights and duties of which are limited to
those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against the Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
7.2. Powers. The Agent shall have and may exercise such powers under
the Loan Documents as are specifically delegated to the Agent by the terms of
each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
7.3. General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Company or any of its
Subsidiaries, the Lenders or any Lender for any action taken or omitted to be
taken by it or them hereunder or under any other Loan Document or in connection
herewith or therewith except for its or their own gross negligence or willful
misconduct.
7.4. No Responsibility for Loans, Recitals, etc. Neither the Agent nor
any of its directors, officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into, or verify (i) any statement, warranty
or representation made in connection with any Loan Document or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article II, except
receipt of items required to be delivered to the Agent; (iv) the validity,
enforceability, effectiveness, sufficiency or genuineness of any Loan Document
or any other instrument or writing furnished in connection therewith; or (v) the
value, sufficiency, creation, perfection or priority of any interest in any
collateral security. The Agent shall have no duty to disclose to the Lenders
information that is not required to be furnished by the Company or any
Subsidiary to the Agent at such time, but is voluntarily furnished by the
Company or any Subsidiary to the Agent (either in its capacity as Agent or in
its individual capacity).
7.5. Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by the
Required Lenders or the Required Revolving Credit Lenders, as the case may be,
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Advances. The
Lenders hereby acknowledge that the Agent shall be under no duty to take any
discretionary action permitted to be taken by it pursuant to the provisions of
this Agreement or any other Loan Document unless it shall be requested in
writing to do so by the Required Lenders or the Required Revolving Credit
lenders, as the case may be. The Agent shall be fully justified in failing or
refusing to take any action hereunder and under any other Loan Document unless
it shall first be indemnified to its satisfaction by the Lenders pro rata
against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
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7.6. Employment of Agents and Counsel. The Agent may execute any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
7.7. Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
7.8. Agent's Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Company for which the Agent is entitled to reimbursement by
the Company under the Loan Documents, (ii) for any other expenses incurred by
the Agent on behalf of the Lenders, in connection with the preparation,
execution, delivery, administration and enforcement of the Loan Documents and
(iii) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Agent. The
obligations of the Lenders under this Section 7.8 shall survive payment of the
Obligations and termination of this Agreement.
7.9. Notice of Default. The Agent shall not be deemed to have knowledge
or notice of the occurrence of any Unmatured Event or Event of Default hereunder
unless the Agent has received written notice from a Lender or the Company
referring to this Agreement describing such Unmatured Event or Event of Default
and stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
7.10. Rights as a Lender. In the event the Agent is a Lender, the Agent
shall have the same rights and powers hereunder and under any other Loan
Document as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when the Agent is a
Lender, unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent may accept deposits from, lend money to, and
generally engage in any kind of trust, debt, equity or other transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Company or any of its Subsidiaries in which the Company or such
Subsidiary is not restricted hereby from engaging with any other Person. The
Agent, in its individual capacity, is not, subject to Section 8.6, obligated to
remain a Lender.
7.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements prepared by the Company and such other documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan Documents. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan Documents.
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7.12. Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Company, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, on behalf of the Company and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Company and the Lenders, a successor Agent. If the Agent has resigned and no
successor Agent has been appointed, the Lenders may perform all the duties of
the Agent hereunder and the Company shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Agent shall be deemed to be appointed
hereunder until such successor Agent has accepted the appointment. Any such
successor Agent shall be a commercial bank having capital and retained earnings
of at least $50,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent. Upon the effectiveness of the resignation of the Agent, the
resigning Agent shall be discharged from its duties and obligations hereunder
and under the Loan Documents. After the effectiveness of the resignation of an
Agent, the provisions of this Article VII shall continue in effect for the
benefit of such Agent in respect of any actions taken or omitted to be taken by
it while it was acting as the Agent hereunder and under the other Loan
Documents.
7.13. Collateral Management. The Agent is hereby authorized on behalf
of all of the Lenders, without the necessity of any further consent from any
Lender, from time to time prior to an Event of Default, to take any action with
respect to the collateral or the Security Documents which may be necessary (i)
to perfect and maintain perfected the security interest in and liens upon the
collateral granted pursuant to the Security Documents; and (ii) to release
portions of the collateral from the security interests and liens imposed by the
Security Documents in connection with any dispositions of such portions of the
collateral permitted hereby. In the event that the Borrowers or the Guarantors
desire to sell or otherwise dispose of any assets and such sale or disposition
is permitted hereby, the Agent shall, upon timely notice from the Borrowers,
release such portions of the collateral from the security interests and liens
imposed by the Security Documents as may be specified by the Borrowers or the
Guarantors in order for the Borrowers or the Guarantors to consummate such
proposed sale or disposition, provided that at or prior to the time of such
proposed sale or disposition no Unmatured Event or Event of Default shall have
occurred and be continuing, including, without limitation, any Unmatured Event
or Event of Default that would arise upon consummation of such sale or
disposition. For purposes of the preceding sentence, the Borrowers shall give
timely notice if, not less than two Business Days prior to the date of such
proposed sale or disposition, they shall furnish to the Agent an officers'
certificate setting forth in reasonable detail the circumstances of such
proposed sale or disposition.
7.14. Right to Indemnity. The Agent shall be fully justified in failing
or refusing to take any action hereunder unless it shall first be indemnified to
its satisfaction by the Lenders pro rata against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
7.15 Sharing of Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Lender Indebtedness owing from a
Borrower (other than payments received pursuant to Sections 3.7, 3.8, 3.9, and
8.5) in a greater proportion than that received by any other Lender on its
Lender Indebtedness owing from such Borrower, such Lender agrees, promptly upon
demand, to purchase a portion of the Advances to such Borrower held by the other
Lenders so that after such purchase each Lender will hold its ratable proportion
of Advances to such Borrower. If any Lender, whether in connection with setoff
or amounts which might be subject to setoff or otherwise, receives collateral or
other protection for its Lender Indebtedness or such amounts which may be
subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral ratably
in proportion to their aggregate Lender Indebtedness (in accordance with the
formula set forth in the next sentence). In
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addition to the equalization accomplished by the first two sentences of this
Section 7.15, if any Lender receives the proceeds of any collateral upon and
during the continuance of any Event of Default, including without limitation in
connection with any enforcement of remedies hereunder, in a greater proportion
(based on the ratio of such Lender's aggregate Lender Indebtedness (as
calculated in Dollars based on the Dollar Equivalent of such amount on the date
of acceleration of the Lender Indebtedness pursuant to Section 6.2) to the sum
of the Lender Indebtedness of all Lenders (as calculated in Dollars based on the
Dollar Equivalent of such amount on the date of acceleration of the Lender
Indebtedness pursuant to Section 6.2)) than that received by any other Lender,
such Lender and all other Lenders agree to purchase participation interests in
other Lender Indebtedness and/or take such other reasonable actions and make
such other equitable adjustments among the Lenders as reasonably agreed to by
the Lenders, to ensure that each Lender receives its proportionate share (based
on its Dollar Equivalent share of the Lender Indebtedness of all Lenders) of all
such proceeds of collateral. The Lenders further agree among themselves that if
payment to a Lender obtained by such Lender through the exercise of a right of
set-off, banker's lien, counterclaim or otherwise as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by repurchase of participations theretofore sold,
return its share of that benefit to each Lender whose payment shall have been
rescinded or otherwise and/or make other appropriate adjustments. Each Borrower
agrees that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including set-off,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Advance or other obligation in the amount of
such participation. The Lenders further agree among themselves that, in the
event that amounts received by the Lenders and the Agent hereunder are
insufficient to pay all such obligations or insufficient to pay all such
obligations when due, the fees and other amounts owing to the Agent in such
capacity shall be paid therefrom before payment of obligations owing to the
Lenders under this Agreement. Except as otherwise expressly provided in this
Agreement, if any Lender or Agent shall fail to remit to the Agent or any other
Lender an amount payable by such Lender or Agent to the Agent or such other
Lender pursuant to this Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or such
other Lender at a rate per annum equal to the rate at which borrowings are
available to the payee in its overnight federal funds market. It is further
understood and agreed among the Lenders and the Agent that if the Agent shall
engage in any other transactions with any of the Borrowers and shall have the
benefit of any collateral or security therefor which does not expressly secure
the obligations arising under this Agreement except by virtue of a so-called
dragnet clause or comparable provision, the Agent shall be entitled to apply any
proceeds of such collateral or security first in respect of the obligations
arising in connection with such other transaction before application to the
obligations arising under this Agreement.
7.16 Withholding Tax Exemption. (A) Each Lender that is not
organized and incorporated under the laws of the United States or any State
thereof agrees to file with the Agent and the Company, in duplicate, (a) on or
before the later of (i) the Effective Date and (ii) the date such Lender becomes
a Lender under this Agreement and (b) thereafter, for each taxable year of such
Lender (in the case of a Form 4224) or for each third taxable year of such
Lender (in the case of any other form) during which interest or fees arising
under this Agreement and the other Loan Documents are received, unless not
legally able to do so as a result of a change in United States income tax
enacted, or treaty promulgated, after the date specified in the preceding clause
(a), on or prior to the immediately following due date of any payment by the
Company hereunder, (1) a properly completed and executed copy of either Internal
Revenue Service Form 4224 or Internal Revenue Service Form 1001 and Internal
Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any additional
form necessary for claiming complete exemption from United States withholding
taxes (or such other form as is required to claim complete exemption from Unites
States withholding taxes), if and as provided by the Code or other
pronouncements of the United States Internal Revenue Service, or (2) in the case
that such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of
the Code and cannot deliver either Internal Revenue Service Form 1001 or 4224, a
properly completed and executed copy of Internal Revenue Service form W-8, and
such Lender
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warrants to the Company that the form so filed will be true and complete;
provided that such Lender's failure to complete and execute such Form 4224 or
Form 1001, or Form W-8 or Form W-9, as the case may be, and any such additional
form (or any successor form or forms) shall not relieve the Company of any of
its obligations under this Agreement, except as otherwise provided in this
Section 7.16.
(B) Each Canadian Lender that is created or organized under the laws of
a jurisdiction other than Canada or a Province thereof making Canadian Advances
shall deliver, or have its Applicable Lending Office to be used to make Canadian
Advances deliver, to the Company and the Agent on the date on which such
Canadian Lender becomes a Lender hereunder, evidence that the Minister of
National Revenue is satisfied that payments made to such Lender hereunder are
not subject to Taxes pursuant to Regulation 805(2) of the Income Tax Act
("Evidence of Canadian Tax Exemption"). In addition, from time to time after the
date on which such Canadian Lender becomes a Lender hereunder upon the
reasonable request of the Company, each such Canadian Lender further agrees to
deliver to the Company and the Agent further Evidence of Canadian Tax Exemption,
unless any change in treaty, law, regulation or official interpretation thereof
prevents such Lender from duly providing same. Nothing in this Section 7.16(B)
shall relieve the Company or the Canadian Subsidiary of any of their respective
obligations under this Agreement, except as otherwise provided in this Section
7.16.
ARTICLE VIII
MISCELLANEOUS
8.1 Amendments, Etc. (a) No amendment, modification, termination
or waiver of any provision of this Agreement nor any consent to any departure
therefrom shall be effective unless the same shall be in writing and signed by
the Required Lenders and, to the extent any rights, obligations or duties of the
Agent may be affected thereby, the Agent, provided, however, that no such
amendment, modification, termination, waiver or consent shall, without the
consent of the Agent and all of the Lenders, (i) authorize or permit the
extension of time for, or any reduction of the amount of (including any
reallocation of amounts payable among the different types of Advances resulting
in a reduction of the amount payable on a type of Advance, except to the extent
permitted hereunder), any payment of the principal of, or interest on, the Loans
or any Letter of Credit reimbursement obligation, or any fees or other amount
payable hereunder, (ii) increase or extend the respective Commitments of any
Lender without such Lender's consent or modify the provisions of this Section
regarding the taking of any action under this Section or the provisions of
Section 7.15 or the definition of Required Lenders, or (iii) release any
material amount of collateral (other than releases permitted by the Loan
Documents) or release any material Guarantor, and provided, further, that no
such amendment, modification, termination, waiver or consent, shall, (A) without
the consent of the Required Revolving Credit Lenders, amend or modify the
definition of Required Revolving Credit Lenders or allow the Company to obtain a
Revolving Credit Advance if it would otherwise be unable to absent such
amendment, modification, termination, waiver or consent, and (B) without the
consent of the Required Term Loan B Lenders, amend or modify the definition of
Required Term Loan B Lenders or amend or modify Section 3.1 (g), (h) or (i).
Notwithstanding the foregoing, Schedule 1.1-A may be amended as follows:
(1) Schedule 1.1-A may be amended to add Subsidiaries of the Company as
additional Borrowing Subsidiaries upon (x) execution and delivery by the
Borrowers, any such Borrowing Subsidiary and the Agent, of a Joinder Agreement
providing for any such Subsidiary to become a Borrowing Subsidiary, (y) delivery
to the Agent of a legal opinion in respect of such additional Subsidiary
Borrower acceptable to the Agent, such other documents with respect thereto as
the Agent shall reasonably request and (z) the written approval of the Agent in
its sole discretion.
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(2) Schedule 1.1-A will be amended to remove any Subsidiary as a
Borrowing Subsidiary upon written notice by the Company to the Agent to such
effect and repayment in full of all outstanding Loans of such Borrowing
Subsidiary.
(b) Any such amendment, waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
(c) Notwithstanding anything herein to the contrary, no Defaulting
Lender shall be entitled to vote (whether to consent or to withhold its consent)
with respect to any amendment, modification, termination or waiver of any
provision of this Agreement or any departure therefrom or any direction from the
Lenders to the Agent, and, for purposes of determining the Required Lenders, the
Required Revolving Credit Lenders or the Required Term Loan B Lenders at any
time, the Commitments and the Advances of each Defaulting Lender shall be
disregarded.
8.2 Notices. (a) Except as otherwise provided in Section 8.2(c) hereof, all
notices and other communications hereunder shall be in writing and shall be
delivered or sent to the Borrowers, the Agent and the Lenders at the respective
addresses and numbers for notices set forth on the signature pages hereof, or to
such other address as may be designated by any Borrower, the Agent or any Lender
by notice to the other parties hereto. All notices and other communications
shall be deemed to have been given at the time of actual delivery thereof to
such address, or if sent by certified or registered mail, postage prepaid, to
such address, on the third day after the date of mailing, or in the case of
telex notice, upon receipt of the appropriate answerback, or, in the case of
facsimile notice, upon receipt of a confirmation mechanically produced by the
facsimile machine, provided, however, that notices to the Agent shall not be
effective until received.
(b) Notices by a Borrower to the Agent with respect to
terminations or reductions of the Commitments pursuant to Section 2.2, requests
for Advances pursuant to Section 2.4, requests for continuations or conversions
of Loans pursuant to Section 2.7 and notices of prepayment pursuant to Section
3.1 shall be irrevocable and binding on the Borrowers.
(c) Any notice to be given by a Borrower to the Agent pursuant to
Sections 2.4, 2.7 or 3.1 and any notice to be given by the Agent or any Lender
hereunder, may be given by telephone, and all such notices given by a Borrower
must be immediately confirmed in writing in the manner provided in Section 8.2
(a). Any such notice given by telephone shall be deemed effective upon receipt
thereof by the party to whom such notice is to be given.
8.3 No Waiver By Conduct; Remedies Cumulative. No course of dealing
on the part of the Agent or any Lender, nor any delay or failure on the part of
the Agent or any Lender in exercising any right, power or privilege hereunder
shall operate as a waiver of such right, power or privilege or otherwise
prejudice the Agent's or such Lender's rights and remedies hereunder; nor shall
any single or partial exercise thereof preclude any further exercise thereof or
the exercise of any other right, power or privilege. No right or remedy
conferred upon or reserved to the Agent or any Lender under any Loan Document is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to every other right or remedy
granted thereunder or now or hereafter existing under any applicable law. Every
right and remedy granted by any Loan Document or by applicable law to the Agent
or any Lender may be exercised from time to time and as often as may be deemed
expedient by the Agent or any Lender.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of each Borrower and each
Guarantor made herein or in any other Loan Document or in any certificate,
report, financial statement or other document furnished by or on behalf of any
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Borrower or any Guarantor in connection with the negotiation and modification of
this Agreement shall be deemed to have been relied upon by the Lenders,
notwithstanding any investigation heretofore or hereafter made by any Lender or
on such Lender's behalf, and those covenants and agreements of the Borrowers set
forth in Section 3.7, 3.9 and 8.5 hereof shall survive the repayment in full of
the Advances and the termination of the Commitments.
8.5 Expenses; Indemnification. (a) The Borrowers agree to pay, or
reimburse the Agent for the payment of, on demand, (i) the reasonable fees and
expenses of counsel to the Agent, including without limitation the fees and
expenses of Dickinson Wright PLLC and any other counsel retained by the Agent in
connection with the preparation, execution, delivery and administration of the
Loan Documents and the consummation of the transactions contemplated hereby, and
in connection with advising the Agent as to its rights and responsibilities with
respect thereto, and in connection with any amendments, waivers or consents in
connection therewith, (ii) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing or
recording of the Loan Security Documents and the consummation of the
transactions contemplated hereby, and any and all liabilities with respect to or
resulting from any delay in paying or omitting to pay such taxes or fees, (iii)
all reasonable costs and expenses of the Agent (including reasonable fees and
expenses of counsel and whether incurred through negotiations, legal proceedings
or otherwise) in connection with any Unmatured Event or Event of Default, (iv)
all reasonable costs and expenses of the Agent and the Lenders (including
reasonable fees and expenses of the Agent and the Lenders) in connection with
the enforcement of, or the exercise or preservation of any rights under, any
Loan Document or in connection with any refinancing or restructuring of the
credit arrangements provided under this Agreement and (v) all reasonable costs
and expenses of the Agent (including reasonable fees and expenses of counsel) in
connection with any action or proceeding relating to a court order, injunction
or other process or decree restraining or seeking to restrain the Agent from
paying any amount under, or otherwise relating in any way to, any Letter of
Credit and any and all costs and expenses which any of them may incur relative
to any payment under any Letter of Credit.
(b) The Borrowers agree to indemnify each Lender, the Agent
and each of their respective officers, directors, employees and agents
(collectively, the "Indemnified Parties") and hold each Indemnified Party
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any Indemnified Party in
connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnified Party shall be designated a party thereto)
(collectively, the "Indemnified Liabilities") at any time relating to (whether
before or after the execution of this Agreement) any of the following:
(i) any actual or proposed use of the Advances hereunder
by the Company or any of its Subsidiaries or any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of any
Advance;
(ii) the entering into and performance of this Agreement
and any other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of a Borrower as the result of any determination
by any Lender not to make any Advance);
(iii) any investigation, litigation or proceeding related
to the Foggini Acquisition or any other acquisition or proposed acquisition by
the Company or any of its Subsidiaries at any time of all or any portion of the
stock or assets of any Person or to the issuance of, or any other matter
relating to, any Subordinated Debt, whether or not any Indemnified Party is a
party thereto;
(iv) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or other matter relating to any
release by the Company or any of its Subsidiaries of any Hazardous Material or
any violations of Environmental Laws; or
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(v) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Company or any Subsidiary thereof of any
Hazardous Material (including any losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Law), regardless
of whether caused by, or within the control of, the Company or such Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the activities of the Indemnified
Party on the property of the Company or any Subsidiary thereof conducted
subsequent to a foreclosure on such property by any Indemnified Party or by
reason of the relevant Indemnified Party's gross negligence or wilful misconduct
or breach of this Agreement, and if and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. The Borrowers
shall be obligated to indemnify the Indemnified Parties for all Indemnified
Liabilities subject to and pursuant to the foregoing provisions, regardless of
whether the Company or any of its Subsidiaries had knowledge of the facts and
circumstances giving rise to such Indemnified Liability.
Provided that no Indemnified Party shall have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
8.6 Successors and Assigns. (a) This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that a Borrower may not, without the prior
consent of all the Lenders, assign its rights or obligations under any Loan
Document and the Lenders shall not be obligated to make any Advance hereunder to
any entity other than a Borrower.
(b) Any Lender may sell a participation interest to any
financial institution or institutions, and such financial institution or
institutions may further sell, a participation interest (undivided or divided)
in, the Advances and such Lender's rights and benefits under the Loan Documents,
and to the extent of that participation, such participant or participants shall
have the same rights and benefits against each Borrower under Section 6.2(c) as
it or they would have had if participation of such participant or participants
were the Lender making the Advances to such Borrower hereunder, provided,
however, that (i) such Lender's obligations under this Agreement shall remain
unmodified and fully effective and enforceable against such Lender, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
its Advances and Notes (if applicable) for all purposes of this Agreement, (iv)
the Borrowers, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) such Lender shall not grant to its
participant any rights to consent or withhold consent to any action taken by
such Lender or the Agent under this Agreement other than action requiring the
consent of all of the Lenders hereunder and (iv) such participation shall in no
event be less than $2,000,000. The Agent from time to time in its sole
discretion may appoint agents for the purpose of servicing and administering
this Agreement and the transactions contemplated hereby and enforcing or
exercising any rights or remedies of the Agent provided under the Loan Documents
or otherwise. In furtherance of such agency, the Agent may from time to time
direct that any Borrower provide notices, reports and other documents
contemplated by this Agreement (or duplicates thereof) to such agent. Each
Borrower hereby consents to the appointment of such agent and agrees to provide
all such notices, reports and other documents and to otherwise deal with such
agent acting on behalf of the Agent in the same manner as would be required if
dealing with the Agent itself.
(c) Each Lender may, with the prior written consents of the
Company, which consent from the Company shall not be unreasonably withheld or
delayed and shall not be required if any Event of Default has occurred and is
continuing or if such assignment is to another Lender, an Affiliate of a Lender
or a Related Fund of a Term Loan B Lender, and the prior written consent of the
Agent, assign to one or more banks or other entities all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
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or a portion of its Commitment, the Advances owing to it and the Note or Notes,
if any, held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations with
respect to (x) its Revolving Credit Commitment, Revolving Credit Advances, Term
Loan A Commitment and Term Loan A or (y) its Term Loan B Commitment and Term
Loan B, (ii) except in the case of an assignment of all of a Lender's rights and
obligations under this Agreement, (A) the amount of the Commitments or the
amount of the Advances assigned, as the case may be, of the assigning Lender
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than $5,000,000 (or $2,000,000 if such assignment is with respect to a
Term Loan B Commitment and Term Loan B only), and in integral multiples of
$1,000,000 thereafter, or such lesser amount as to which the Company and the
Agent may consent and (B) after giving effect to each such assignment, unless
such assignment is of the entire amount of the Commitments of the assigning
Lender, the amount of the Commitments of the assigning Lender shall in no event
be less than $5,000,000 (or $2,000,000 if such assignment is with respect to a
Term Loan B Commitment and Term Loan B only), or such lesser amount as the
Company and the Agent may consent to and (iii) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance substantially in the
form of Exhibit K hereto (an "Assignment and Acceptance"), together with any
Note or Notes (if any) subject to such assignment and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in such Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(d) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrowers or the Guarantors or the performance or observance by the
Borrowers or the Guarantors of any of their obligations under this Agreement or
any other Loan Document; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.6 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance under the Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(e) The Agent shall maintain at its address designated on the
signature pages hereof a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment of, and principal amount of the Advances owing
to, each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for
CREDIT AGREEMENT Page 72
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all purposes, absent manifest error, and the Borrower, the Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by any Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee, together with any Note or Notes (if any)
subject to such assignment, the Agent shall, if such Assignment and Acceptance
has been completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Company. If requested by the assigning and/or assignee Lender,
within five Business Days after its receipt of such notice, each affected
Borrower, at its own expense, shall execute and deliver to the Agent in exchange
for the surrendered Note or Notes a new Note or Notes to the order of such
assignee in an amount equal to the Commitment assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Commitment retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Note or Notes, shall be dated the effective date of such Assignment
and Acceptance and shall otherwise be in substantially the form of Exhibit K
hereto.
(g) The Lenders may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.6, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers, provided that assignee
or participant agrees to keep all non public information confidential.
(h) Notwithstanding any other provision set forth in this
Agreement; any Lender may at any time create a security interest in, or assign,
all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes, if any, held by it)
in favor of any Federal Reserve Lender in accordance with Regulation A of the
Board of Governors of the Federal Reserve System, and (ii) any Term Loan B
Lender that is a fund that invests in bank loans may, without the consent of the
Company or Agent, assign or pledge all or any portion of its Advances and Notes
(if any) to any holders of obligations owed, or securities issued, by such fund,
as security for such obligations or securities, or to any trustee for, or any
other representative of, such holders; provided that such creation of a security
interest or assignment shall not release such Lender from its obligations under
this Agreement.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.8 Governing Law. This Agreement is a contract made under, and shall
be governed by and construed in accordance with, the law of the State of
Michigan in the same manner applicable to contracts made and to be performed
entirely within such State and without giving effect to choice of law principles
of such State. Each Borrower further agrees that any legal action or proceeding
with respect to any Loan Document or the transactions contemplated hereby may be
brought in any court of the State of Michigan, or in any court of the United
States of America sitting in Michigan, and each Borrower hereby submits to and
accepts generally and unconditionally the jurisdiction of those courts with
respect to its Person and property and irrevocably consents to the service of
process in connection with any such action or proceeding by personal delivery to
the Company or by the mailing thereof by registered or certified mail, postage
prepaid to the Company at its address set forth on the signature pages hereof or
as provided pursuant to Section 8.2. Nothing in this paragraph shall affect the
right of the Lenders and the Agent to serve process in any other manner
permitted by law or limit the right of the Lenders or the Agent to bring any
such action or proceeding against each Borrower or its property in the courts
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of any other jurisdiction. Each Borrower hereby irrevocably waives any objection
to the laying of venue of any such suit or proceeding in the above described
courts.
8.9 Table of Contents and Headings. The table of contents and the
headings of the various subdivisions hereof are for the convenience of reference
only and shall in no way modify any of the terms or provisions hereof.
8.10 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any Person, or which such Person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
8.11 Integration and Severability. The Loan Documents embody the
entire agreement and understanding among the Borrowers and the Agent and the
Lenders, and supersede all prior agreements and understandings, relating to the
subject matter hereof. In case any one or more of the obligations of the
Borrowers under any Loan Document shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrowers shall not in any way be affected or impaired
thereby, and such invalidity, illegality or unenforceability in one jurisdiction
shall not affect the validity, legality or enforceability of the obligations of
the Borrowers under any Loan Document in any other jurisdiction.
8.12 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any such covenant, the fact that it would be permitted by an
exception to, or would be otherwise within the limitations of, another covenant
shall not avoid the occurrence of an Unmatured Event or an Event of Default or
any event or condition which with notice or lapse of time, or both, could become
such an Unmatured Event or an Event of Default if such action is taken or such
condition exists.
8.13 Interest Rate Limitation. Notwithstanding any provision of any
Loan Document, in no event shall the amount of interest paid or agreed to be
paid by a Borrower exceed an amount computed at the highest rate of interest
permissible under applicable law. If, from any circumstances whatsoever,
fulfillment of any provision of any Loan Document at the time performance of
such provision shall be due, shall involve exceeding the interest rate
limitation validly prescribed by law which a court of competent jurisdiction may
deem applicable hereto, then, ipso facto, the obligations to be fulfilled shall
be reduced to an amount computed at the highest rate of interest permissible
under applicable law, and if for any reason whatsoever the Lender shall ever
receive as interest an amount which would be deemed unlawful under such
applicable law such interest shall be automatically applied to the payment of
principal of the Advances outstanding hereunder (whether or not then due and
payable) and not to the payment of interest, or shall be refunded to such
Borrower if such principal and all other obligations of the Borrowers to the
Lenders have been paid in full.
8.14 Judgment and Payment. (a) If, for the purpose of obtaining
judgment in any court, it is necessary to convert a sum owing hereunder by a
Borrower in one currency into another currency, each Borrower agrees, to the
fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the relevant Lender could purchase the first currency with
such other currency for the first currency on the Business Day immediately
preceding the day on which the final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
in Dollars to any party hereto or any holder of the obligations owing hereunder
(the "Applicable Creditor") shall, notwithstanding any payment obligation or
judgment in a currency (the "Payment Currency") other than Dollars, be
discharged only to the extent that, on the Business Day following receipt by the
Applicable Creditor of any sum adjudged to be so due in the Payment Currency,
the Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase Dollars with the Payment Currency; if the amount
of
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Dollars so purchased is less than the sum originally due to the Applicable
Creditor in Dollars, each Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Applicable Creditor against
such loss. The obligations of the Borrowers contained in this Section 8.14 shall
survive the termination of this Agreement and the payment of all other amounts
owing hereunder.
8.15 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) none of the Agent or any Lender has any fiduciary
relationship with or duty to the Company arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Agent and the Lenders, on the one hand, and the Borrowers, on the other
hand, in connection herewith or therewith is solely that of debtor and creditor;
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrowers and the Lenders; and
(d) it waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or consequential
damages.
8.16 WAIVER OF JURY TRIAL. THE LENDERS AND THE AGENTS AND THE
BORROWERS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF ANY
LOAN DOCUMENT OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER OF THEM. NEITHER ANY LENDER, THE
AGENT NOR ANY BORROWER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT
BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY PARTY
HERETO EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY SUCH PARTY.
8.17 Interest Rate Disclosure. For the purposes of the Interest
Act (Canada) and Canadian Advances hereunder:
(i) whenever any interest or fee under this Agreement is
calculated using a rate based on a year of 360 days or 365
days, such rate determined pursuant to such calculation, when
expressed as an annual rate, is equivalent to (X) the
applicable rate based on a year of 360 days or 365 days, as
the case may be, (Y) multiplied by the actual number of days
in the relevant calendar year, and (Z) divided by 360 or 365
as the case may be;
(ii) the principal of deemed reinvestment of interest does not
apply to any interest calculation under this Agreement; and
CREDIT AGREEMENT Page 75
<PAGE> 81
(iii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and not effective rates or
yields.
CREDIT AGREEMENT Page 76
<PAGE> 82
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered on the 26th day of March, 1999, which shall be the
Effective Date of this Agreement.
KEY PLASTICS L.L.C.
By: /s/ Mark J. Abbo
---------------------------
Its: Treasurer
-----------------------
KEY PLASTICS COMPANY, CANADA
By: /s/ Mark J. Abbo
---------------------------
Its: Treasurer
-----------------------
KEY PLASTICS U.K.
By: /s/ Mark J. Abbo
---------------------------
Its: Treasurer
-----------------------
KEY PLASTICS FRANCE S.A.S.
By: /s/ Mark J. Abbo
---------------------------
Its: Treasurer
-----------------------
KEY PLASTICS INTERNATIONAL S.N.C.
By: /s/ Mark J. Abbo
---------------------------
Its: Treasurer
-----------------------
CREDIT AGREEMENT Page 77
<PAGE> 83
FOGGINI-KEY EUROPE, S.A.R.L.
By: Mark J. Abbo
------------------------------
Its: Director
--------------------------
FOGGINI GROUPE S.A.
By: Mark J. Abbo
------------------------------
Its: Director
--------------------------
Address for Notices:
21333 Haggerty Road
Novi, Michigan 48375
Attention: Treasurer
Facsimile No.: (248) 449-4130
CREDIT AGREEMENT Page 78
<PAGE> 84
Revolving Credit Commitment: NBD BANK, as Agent and as a Lender
$15,000,000
Term Loan A Commitment: By: /s/ Teresa A. Kalil
$10,000 000 --------------------------------
Its: Vice President
Term Loan B Commitment: -------------------------------
$47,500,000
Applicable Lending Offices:
NBD Bank
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Teresa A. Kalil
Telephone: (313) 225-3432
Telecopy: (313) 225-2290
The First National Bank of Chicago, London Branch
First Chicago House
1 Triton Square
London, NW1 3FN, ENGLAND
Attention: Manager Credit Operations
Telephone: 44-171-903-4150
Telecopy: 44-171-903-4148
[OTHER LENDERS]
CREDIT AGREEMENT Page 79
<PAGE> 1
EXHIBIT 10.5
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This Non-competition and Non-disclosure Agreement (the "Agreement"), is
entered into this 9th day of February, 1998, by and between KEY PLASTICS
TECHNOLOGY, L.L.C., a Michigan Limited Liability Company, of 21333 Haggerty
Road, Suite 200, Novi, Michigan 48375 (the "Company") and JOEL D. TAUBER ("Mr.
Tauber").
Statement-of Facts
The Company is engaged in the business of manufacturing, designing,
marketing and supplying highly engineered plastic components and assemblies to
automotive original equipment manufacturers ("OEMs") in Michigan, Pennsylvania,
Ohio, Indiana, the United Kingdom, Mexico, Portugal and France. Mr. Tauber
serves on the management committee of the Company and as a consultant to the
Company. As a result of his services to the Company and his operation of the
business, Mr. Tauber has obtained and will obtain certain proprietary, secret
and confidential information concerning the business of the Company including
without limitation, product engineering and design information, financial and
organizational information, the identity of customers and sources of supply,
their needs and requirements, the nature and extent of contracts with them, and
related cost, price and sales. Part of Mr. Tauber's compensation is being paid
to preserve the confidential nature of such information. Accordingly, the
parties have agreed that this confidence shall be maintained while Mr. Tauber
continues to provide services to the Company and for a reasonable period of time
in the event either party terminates the consulting relationship.
Agreement
In consideration of the above facts and the mutual covenants of the
parties, IT IS AGREED:
1. Except in the course of fulfillment of his obligations as a
consultant of the Company, Mr. Tauber shall at no time during the term of this
Agreement or for a period of six (6) months
<PAGE> 2
immediately following the termination of his relationship with the Company
("Restricted Period"), engage in the business of manufacturing, designing,
marketing and supplying plastic automotive components and assemblies to
automotive OEMs in any location within a fifty (50) mile radius of any facility
of the Company ("Prohibited Business"), provided, however, that this Agreement
shall not prohibit the executive from participating in the business of Complex
Tooling & Molding Inc., a plastics manufacturer for the telecommunications and
computer industry. Mr. Tauber shall not engage in the Prohibited Business for
the Restricted Period, directly or indirectly, either for himself or on behalf
of any other person, firm, corporation, company or other entity, whether as an
officer, director, employee, partner, sole proprietor, agent, representative,
independent contractor, consultant, franchisor, franchisee, creditor, owner or
otherwise.
2. Unless Mr. Tauber shall first obtain the Company's written
permission, he shall not disclose or use at any time, either during or
subsequent to his performance of services for the Company, any secret,
privileged, confidential or proprietary information concerning the Company,
whether or not patentable, copyrightable or otherwise protectable, of which Mr.
Tauber becomes aware during his performance of services for the Company, whether
or not developed by Mr. Tauber, except as required in Mr. Tauber's duties to the
Company. Confidential information shall include information concerning the
Company not generally known in the business community, including, but not
limited to information concerning the Company's customer lists, supplier lists,
price lists, sales and service records, equipment, apparatus, processes,
methods, improvements, inventions, data, sales figures, projections, quotations,
estimates, accounting and billing procedures, other records, personnel history,
trade secrets, reports, budgets and other financial information, the
acquisition, installation and utilization of equipment and procedures,
technological developments, "know-how",
2
<PAGE> 3
computer programs, and the like. This information, as well as all records,
files, plans, sketches, notes, notebooks, letters, software, computer tapes or
diskettes, or other physical records or documents relating to the business of
the Company, or copies thereof, which Mr. Tauber shall use, prepare or come in
contact with, shall remain the sole property of the Company, and Mr. Tauber
shall, upon termination of his services for the Company, promptly return all
such material in his possession and control to the Company. All right, title,
and interest of every kind and nature, whether now known or unknown, in and to
any intellectual property, including, but not limited to, any inventions,
patents, trademarks, service marks, copyrights, films, scripts, ideas,
creations, and properties invented, created, written, developed, improved or
produced by Mr. Tauber, alone or with others, in the course of rendering
services to the Company shall, as between the Company and Mr. Tauber, be and
remain the sole and exclusive property of the Company for any and all purposes
and uses, and Executive shall have no right, title, or interest of any kind or
nature in or to such property, or in or to any results and/or proceeds from such
property. Mr. Tauber agrees to assist the Company, at the Company's expense, to
obtain patents or copyrights on any such patentable or copyrightable ideas,
inventions, and other developments, and agrees to execute all documents
necessary to obtain such patents or copyrights in the name of Company.
3. Mr. Tauber shall not be bound by the terms of this Agreement in the
event his consulting services are terminated by the Company or by a successor to
the Company for any event except termination by the Company for "good cause."
"Good cause" shall mean any one or more of the following occurrences:
(a) Mr. Tauber's conviction, or entry of a plea of nolo
contendere, in a court of competent and final jurisdiction for any felony crime
involving moral turpitude or punishable by
3
<PAGE> 4
imprisonment in the jurisdiction involved;
(b) Mr. Tauber commits an act of fraud, misappropriation,
embezzlement, or acts of dishonesty upon the Company;
(c) Mr. Tauber's breach of the terms of any agreement
between the Company and Mr. Tauber; (
(d) Mr. Tauber's willful misconduct; or
(e) Mr. Tauber's breach of fiduciary duty to the Company.
Additionally, Mr. Tauber shall not be bound by the terms of
this Agreement in the event that his consulting services are terminated by the
Company or any successor thereto following a Change in Control. A "Change in
Control" shall mean the (i) sale of all or substantially all of the assets of
the Company to an unaffiliated third-party, or (ii) a merger or other exchange
involving the Company with an unaffiliated third-party in which the members of
the Company immediately prior to such transaction do not own a majority of the
outstanding equity interests of the entity surviving such transaction.
4. Mr. Tauber agrees that violation of this Agreement may cause
irreparable harm to the Company. If the Company brings legal action to prevent
Mr. Tauber from violating this Agreement, Mr. Tauber consents to the entry of a
court order enjoining further violation of the Agreement. The equitable relief
permitted by this paragraph 4 shall not prejudice the Company's rights to other
legal remedies.
5. Mr. Tauber acknowledges that nothing in this Agreement shall be
deemed to create any expectations or promises as to job security or advancement.
This Agreement shall not change in any way the terms and conditions of Mr.
Tauber's engagement by the Company, but only states
4
<PAGE> 5
specifically certain covenants relating to the relationship between the Company
and Mr. Tauber.
6. This Agreement embodies the entire agreement and understanding
between the parties hereto and there are no other agreements or understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof, and this Agreement shall supersede all previous agreements,
negotiations, commitments and writings with respect to the subject matter
hereof. In the event any provision of this agreement or portion thereof is found
to be wholly or partially invalid, illegal or unenforceable in any judicial
proceedings, then such provision shall be deemed to be modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable,
or shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent permitted
by law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
7. Any modification of this Agreement must be made in writing and
signed by both parties.
8. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Michigan, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Michigan or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan. This Agreement may be executed in
any number of counterparts, each of which shall constitute an original, but when
taken together shall constitute but one instrument.
9. This Agreement shall be binding upon Mr. Tauber and Mr. Tauber's
executors, administrators and assigns, and shall inure to the benefit of the
Company and its successors and assigns.
5
<PAGE> 6
10. No failure on the part of either party to exercise, and no delay in
exercising or course of dealing with respect to, any right, power or privilege
under this Agreement (or breach of any obligation under any other agreement)
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any other agreement (or
breach of any obligation under any other agreement) preclude any other or
further exercise thereof or hereunder, or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
6
<PAGE> 7
IN WITNESS OF WHICH, the parties have executed this Agreement as
of the date first written above.
KEY PLASTICS TECHNOLOGY, L.L.C.
By: /s/ Mark J. Abbo
Its: Treasurer
/s/ Joel D. Tauber
JOEL D. TAUBER
7
<PAGE> 1
EXHIBIT 10.6
NON-COMPETITION AND NON-DISCLOSURE AGREEMENT
This Non-competition and Non-disclosure Agreement (the "Agreement"), is
entered into this 9th day of February, 1998, by and between KEY PLASTICS
TECHNOLOGY, L.L.C., a Michigan Limited Liability Company, of 21333 Haggerty
Road, Suite 200, Novi, Michigan 48375 (the "Company") and DAVID C. BENOIT (the
"Executive").
Statement-of Facts
The Company is engaged in the business of manufacturing, designing,
marketing and supplying highly engineered plastic components and assemblies to
automotive original equipment manufacturers ("OEMs") in Michigan, Pennsylvania,
Ohio, Indiana, the United Kingdom, Mexico, Portugal and France. The Executive is
a member of the management committee of the Company employed by the Company as
its Chief Executive Officer. As a result of his employment by the Company and
his operation of the business, the Executive has obtained and will obtain
certain proprietary, secret and confidential information concerning the business
of the Company including without limitation, product engineering and design
information, financial and organizational information, the identity of customers
and sources of supply, their needs and requirements, the nature and extent of
contracts with them, and related cost, price and sales. Part of the Executive's
compensation is being paid to preserve the confidential nature of such
information. Accordingly, the parties have agreed that this confidence shall be
maintained while the Executive continues in the Company's employment and for a
reasonable period of time in the event either party terminates the employment
relationship.
Agreement
In consideration of the above facts and the mutual covenants of the
parties, IT IS AGREED:
<PAGE> 2
1. Except in the course of fulfillment of his obligations as an
employee of the Company, the Executive shall at no time during the term of this
Agreement or for a period of six (6) months immediately following the
termination of his employment with the Company ("Restricted Period"), engage in
the business of manufacturing, designing, marketing and supplying plastic
automotive components and assemblies to automotive OEMs in any location within a
fifty (50) mile radius of any facility of the Company ("Prohibited Business") ,
provided, however, that this Agreement shall not prohibit the executive from
participating in the business of Complex Tooling & Molding Inc., a plastics
manufacturer for the telecommunications and computer industry. The Executive
shall not engage in the Prohibited Business during the Restricted Period,
directly or indirectly, either for himself or on behalf of any other person,
firm, corporation, company or other entity, whether as an officer, director,
employee, partner, sole proprietor, agent, representative, independent
contractor, consultant, franchisor, franchisee, creditor, owner or otherwise.
2. Unless the Executive shall first obtain the Company's written
permission, he shall not disclose or use at any time, either during or
subsequent to his employment with the Company, any secret, privileged,
confidential or proprietary information concerning the Company, whether or not
patentable, copyrightable or otherwise protectable, of which the Executive
becomes aware during his employment with the Company, whether or not developed
by the Executive, except as required in the Executive's duties to the Company.
Confidential information shall include information concerning the Company not
generally known in the business community, including, but not limited to
information concerning the Company's customer lists, supplier lists, price
lists, sales and service records, equipment, apparatus, processes, methods,
improvements, inventions, data, sales figures, projections, quotations,
estimates, accounting and billing procedures, other records, personnel
2
<PAGE> 3
history, trade secrets, reports, budgets and other financial information, the
acquisition, installation and utilization of equipment and procedures,
technological developments, "know-how", computer programs, and the like. This
information, as well as all records, files, plans, sketches, notes, note books,
letters, software, computer tapes or diskettes, or other physical records or
documents relating to the business of the Company, or copies thereof, which the
Executive shall use, prepare or come in contact with, shall remain the sole
property of the Company, and the Executive shall, upon termination of his
employment with the Company, promptly return all such material in his possession
and control to the Company. All right, title, and interest of every kind and
nature, whether now known or unknown, in and to any intellectual property,
including, but not limited to, any inventions, patents, trademarks, service
marks, copyrights, films, scripts, ideas, creations, and properties invented,
created, written, developed, improved or produced by the Executive, alone or
with others, in the course of rendering services to the Company shall, as
between the Company and the Executive, be and remain the sole and exclusive
property of the Company for any and all purposes and uses, and Executive shall
have no right, title, or interest of any kind or nature in or to such property,
or in or to any results and/or proceeds from such property. The Executive agrees
to assist the Company, at the Company's expense, to obtain patents or copyrights
on any such patentable or copyrightable ideas, inventions, and other
developments, and agrees to execute all documents necessary to obtain such
patents or copyrights in the name of Company.
3. Following termination of employment with the Company, the Executive
agrees to immediately notify any subsequent employer of the terms and conditions
of this Agreement.
4. The Executive shall not be bound by the terms of this Agreement in
the event his employment is terminated by the Company or by a successor to the
Company for any event except
3
<PAGE> 4
termination by the Company for "good cause." "Good cause" shall mean any one or
more of the following occurrences:
(a) Executive's conviction, or entry of a plea of nolo
contendere, in a court of competent and final jurisdiction for any felony crime
involving moral turpitude or punishable by imprisonment in the jurisdiction
involved;
(b) The Executive commits an act of fraud, misappropriation,
embezzlement, or acts of dishonesty upon the Company;
(c) The Executive's breach of the terms of any agreement
between the Company and the Executive;
(d) The Executive's willful misconduct; or
(e) The Executive's breach of fiduciary duty to the Company.
Additionally, the Executive shall not be bound by the terms of this
Agreement in the event that his employment is terminated by the Company or any
successor thereto following a Change in Control. A "Change in Control" shall
mean the (i) sale of all or substantially all of the assets of the Company to an
unaffiliated third-party, or (ii) a merger or other exchange involving the
Company with an unaffiliated third-party in which the members of the Company
immediately prior to such transaction do not own a majority of the outstanding
equity interests of the entity surviving such transaction.
5. The Executive agrees that violation of this Agreement may cause
irreparable harm to the Company. If the Company brings legal action to prevent
the Executive from violating this Agreement, the Executive consents to the entry
of a court order enjoining further violation of the Agreement. The equitable
relief permitted by this paragraph 5 shall not prejudice the Company's
4
<PAGE> 5
right to other legal remedies.
6. The Executive acknowledges that nothing in this Agreement shall be
deemed to create any expectations or promises as to job security or advancement.
This Agreement shall not change in any way the terms and conditions of the
Executive's employment by the Company, but only states specifically certain
covenants relating to the relationship between the Company and the Executive.
7. This Agreement embodies the entire agreement and understanding
between the parties hereto and there are no other agreements or understandings,
oral or written, between the parties hereto with respect to the subject matter
hereof, and this Agreement shall supersede all previous agreements,
negotiations, commitments and writings with respect to the subject matter
hereof. In the event any provision of this agreement or portion thereof is found
to be wholly or partially invalid, illegal or unenforceable in any judicial
proceedings, then such provision shall be deemed to be modified or restricted to
the extent and in the manner necessary to render the same valid and enforceable,
or shall be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum extent permitted
by law, as if such provision had been originally incorporated herein as so
modified or restricted, or as if such provision had not been originally
incorporated herein, as the case may be.
8. Any modification of this Agreement must be made in writing and
signed by both parties.
9. This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Michigan, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Michigan or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Michigan. This Agreement may be executed
5
<PAGE> 6
in any number of counterparts, each of which shall constitute an original, but
when taken together shall constitute but one instrument.
10. This Agreement shall be binding upon the Executive and the
Executive's executors, administrators and assigns, and shall inure to the
benefit of the Company and its successors and assigns.
11. No failure on the part of either party to exercise, and no delay in
exercising or course of dealing with respect to, any right, power or privilege
under this Agreement (or breach of any obligation under any other agreement)
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any other agreement (or
breach of any obligation under any other agreement) preclude any other or
further exercise thereof or hereunder, or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
6
<PAGE> 7
IN WITNESS OF WHICH, the parties have executed this Agreement as
of the date first written above.
KEY PLASTICS TECHNOLOGY, L.L.C.
By: /s/ Mark J. Abbo
Its: Treasurer
/s/ David C. Benoit
DAVID C. BENOIT
7
<PAGE> 1
EXHIBIT 10.7
SHAREHOLDERS AGREEMENT
BETWEEN THE UNDERSIGNED:
- - - MASSIMO FOGGINI
born on April 6th, 1935 at Turin (Italy),
of Italian Nationality,
residing at Strada Privata Standa Brigida 131, Moncalieri, Italy
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - GIOVANNI FOGGINI
born on November 24, 1939 in Turin (Italy),
of Italian Nationality,
residing at Corso Einaudi 7, Turin (Italy),
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - PAOLO FOGGINI
born on November 21, 1941 in Turin (Italy),
of Italian Nationality,
residing at Strada Moncalieri 2, Moncalieri, (Italy),
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - MARIA ALBA FOGGINI
born on July 3, 1943 at Alba (Italy),
of Italian Nationality,
residing at Piazza Vittorio Veneto 5, Turin (Italy),
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
All four acting herein jointly & severally,
Herein after collectively the "MINORITY"
On the one hand,
- - - THE COMPANIES:
1. "KEY PLASTICS LLC", a company incorporated under the laws of the United
States of America, having its registered office at 21333 Haggerty Road,
Suite 200 - Novi (48375), Michigan, United States of America.
2. "KEY PLASTICS AUTOMOTIVE LLC", a company incorporated under the laws of
United States of America, having its registered office at 21333 Haggerty
Road, Suite 200 - Novi (48375), Michigan, United States of America.
<PAGE> 2
3. "KEY PLASTICS INTERNATIONAL LLC", a company incorporated under the laws of
United States of America, having its registered office at 21333 Haggerty
Road, Suite 200 - Novi (48375), Michigan, United States of America.
Represented by Mr. Dave BENOIT, acting in its capacity as Chief
Executive Office, duly empowered for the purpose of the present
agreement by virtue of a decision of Board of Directors dated December
15, 1999,
hereinafter collectively called "the MAJORITY",
On the other hand,
hereinafter jointly the "PARTNERS"
AND
- - - FOGGINI-KEY EUROPE Sarl, a company governed by the laws and regulations of
Luxembourg, with a share capital of 56.057.000 Euros, having its
registered office located at Luxembourg L-2453, 16 rue Eugene Ruppert,
registered with ......under the number ......,
represented by Mr. David BENOIT, Mr. Christian COUMANS and Mr. Mark
ABBO, acting in their capacity as Manager, duly empowered for the
purpose of the present agreement by virtue of the bylaws and the
General Constitutive Assembly
hereafter called "the COMPANY",
WHEREAS:
By acts in front of Me Joseph ELVINGER, notary in Luxembourg, has been created
on February 16 ,1999 the COMPANY with the purpose of detention of participation
in various industrial and commercial companies.
At its creation, the MAJORITY brought to the COMPANY its participations in the
capital of KEY PLASTICS France SAS in France, KEY PLASTICS UK in the United
Kingdom and SANISTAR S.A. Portugal in Portugal by which it carries on its
activity of manufacturer and distributor of parts for the car industry in
Europe, so that the capital made up of 560.560 shares of category A and 10 of
category B, with a par value of 100 Euros, distributed as follows:
- - - Key Plastics LLC : 331.890 shares of category A and 10 of
category B
- - - Key Plastics Automotive LLC : 124.335 shares of category A
- - - Key Plastics International LLC : 124.335 shares of category A
By capital increase, shares transfers and contributions, the MINORITY has
transferred to the COMPANY, directly or by interposed subsidiary companies, the
totality of its participation in its group (companies 4 to 14 hereinafter) and
through which it also carried out an activity of manufacturer and distributor of
parts for the car industry in Europe.
So that, following these operations, the Buyer shall control, directly or
indirectly:
<PAGE> 3
1. 100% of the capital in the FOGGINI GROUPE S.A. Company, a French joint stock
company with a share capital of FRF 26,000,000;
2. 100% of the capital of the FOGGINI SA Company (Suisse), a Swiss joint stock
company with a capital of SFR 500,000.
3. 100% of the capital of the FOGGINI DEUTSCHLAND GmbH Company, a German
limited liability company.
4. 100% of the capital of the FOGGINI IBERICA SL Company, a Spanish company.
5. 100% of the capital of the FOGGINI France Company SA, a French joint stock
company with a capital of FRF 70,000,000
6. 51% of the capital of the FOGGINI BOHEMIA s.r.o. a Czechoslovakian company.
7. 100% of the capital of the FOGGINI & C Srl. Company, an Italian limited
liability company with a capital of Italian Lira 4.000,000,000.
8. 100% of the capital of the FOGGINI PROGETTI Srl. Company, an Italian limited
liability company with a capital of Italian Lire 20,000,000.
9. 100% of the capital of the RADICAR Srl. Company, an Italian limited
liability company with a capital of Italian Lira 99,000,000.
10. 100% of the capital of the CORIL SA Company, a Swiss joint stock company
with a capital of 600.000 Suiss Francs.;
11. 51% of the capital of the ELMEG Srl Company, an Italian limited liability
company with a capital of Lira 99,000,000.
In consideration of the execution of this contract the Buyer shall directly or
indirectly control of:
12. 99.9% of the capital of KEY PLASTICS France SAS,
13. 99.9% of the capital of KEY PLASTICS INTERNATIONAL SAS in France;
14. 99.99% of the capital of KEY PLASTICS in United Kingdom;
15. 99.97% of the capital of MAP SANISTAR ACCESSORIOS LDA, in Portugal;
16. 99.99% of the capital of MAPKEY MATERIAS PLASTICAS S.A., in Portugal;
Moreover, the MAJORITY has transferred its 10 shares of category B in the
COMPANY.
After completion of the aforementioned operations, the capital of the COMPANY,
increased of 86,241,500 Euros, made up of 560,560shares of category A and of
301,855 shares of category B, is held in a proportion of 65% by the
MAJORITY (totality of the A shares and 10 B shares) and 35% by the MINORITY
(balance of the B shares)
In this context, the parties have agreed to establish this SHAREHOLDERS
AGREEMENT to supplement the provisions of the statutes of the COMPANY in view of
answering the wishes of the MINORITY.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
ARTICLE 1 INFORMATION CLAUSE
Without prejudice to the right of information allowed by law and the statutes to
all the partners of the COMPANY, the COMPANY, the MAJORITY and the MINORITY,
without
<PAGE> 4
prejudice to respective laws applicable to the different companies, warrant that
the Council of the Managers of the COMPANY inform the PARTNERS in the following
manner:
In addition to information required, in accordance with the Law or with the
statutes, to be communicated to all PARTNERS, the Council of the Managers will
communicate to the PARTNERS the following documents and information relating to
the Company as well as its subsidiary companies:
- - - each year at the beginning of the fiscal year, the annual budgets and the
financing plan.
- - - each year, accounts and balance sheet, schedules and other documents
presented to the annual general meeting, concomitantly to their sending to
the holders of the capital of each company of the group.
- - - every 6 months, an intermediate balance situation (summarized balance sheet
and accounts), as well as information on the evolution of the Company and of
its subsidiary companies.
- - - every 3 months, the turnover of the companies of the group.
Moreover, it is agreed to convene the Council of the Managers at least twice per
year
ARTICLE 2 - PARTICULAR COMMITMENT
The MAJORITY, the MINORITY and the COMPANY undertake to take all necessary steps
to allow the proper application of the statutory provisions and more
particularly that:
- - - it is not brought to the conditions under which the COMPANY and its
subsidiary companies carry on their activity any modifications having for
effect to unduly divert from the scope of calculation of the consolidated
result of the COMPANY a part of the result arrived at by these companies, in
particular in the event of a transfer, in ownership or usage, in any form,
of whole or part of the tangible and intangible assets of these companies
- - - the specific majority provisions applicable of the Council of the Managers,
such as they appear in articles 12. of the statutes of the COMPANY (a copy
of which is annexed hereafter) are also applicable to the decisions taken
within subsidiary companies of the COMPANY, even though the Manager of the
COMPANY representing the MINORITY does not have a seat in the aforementioned
subsidiary companies.
For the application of these dispositions, the manager of the COMPANY
representing the MINORITY will be directly informed by a representative of
the COMPANY in the concerned company, by registered letter with
acknowledgement of receipt, of any operation entering the applicability of
the aforesaid majority provisions. He will communicate his position, also by
registered letter with acknowledgement receipt or via fax, within five clear
days of reception of the notification letter or via fax, a lack of response
from him being then deemed acceptance, which the parties hereto accept
expressly, it being understood that his position shall have no bearing on
the decision
<PAGE> 5
process within the concerned company but shall commit the MAJORITY in their
relationships with the MINORITY..
ARTICLE 3 - WARRANTY
Moreover, the MAJORITY WARRANTS respect by the COMPANY of its commitments in
respect hereto.
ARTICLE 4 - CLAUSE OF CONFIDENTIALITY
The PARTNERS undertake not to reveal nor to give any account of any document or
information which would have been be transmitted to them in respect hereof, with
the exception of information demands from authorities.
This article will remain valid even after the term hereof.
ARTICLE 5 - VALIDITY
Except as concerns the confidentiality clause, the undertakings of the parties
hereto will terminate as soon as the MINORITY ceases holding at least 35% of the
capital of the COMPANY.
By anticipation, it is also envisaged that the effects of this agreement will
cease the day when the shares of the Company will be registered on a stock
market..
ARTICLE 6 - INDEMNIFICATION
Key Plastics and/or any other company of its Group undertake to indemnify the
Minority of any loss who they may suffer in relation to the guarantee above
indicated which have been given by Key LLC to Foggini Key Europe Sarl.
ARTICLE 7 - TRANSMISSION OF COMMITMENT - DURATION
The heirs, recipients and right holders of the PARTNERS will be jointly and
severally held to entire execution hereof by the simple fact of the transmission
at their profit of ownership, of usage or usufruct of the shares of the COMPANY.
ARTICLE 8 - RESOLUTION OF THE LITIGATIONS
The present Agreement is submitted to the Luxembourg Law.
All litigation, without exception, relating to the validity, the interpretation
or the execution of this convention will be subjected to the Courts of competent
jurisdiction of Luxembourg.
ARTICLE 9 - ELECTION OF RESIDENCE
For the application hereof , each party elects residence as indicated
hereinabove..
<PAGE> 6
Without prejudice of the execution of this agreement the parties and the
Companies expressly confirm their agreement in accordance to the terms set fort
by article nine of Protocol of Brussels Convention of 27/09/1968.
Signed at
On 29th March 1999
<PAGE> 7
<PAGE> 1
EXHIBIT 10.8
UNILATERAL PROMISE TO SELL SHARES
BETWEEN:
- - - MASSIMO FOGGINI
born on April 6th, 1935 in Turin (Italy),
of Italian Nationality,
residing at Strada Privata Santa Brigida 131, Moncalieri, Italy
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - GIOVANNI FOGGINI
born on November 24, 1939 in Turin (Italy),
of Italian Nationality,
residing at Corso Einaudi 7, Turin, Italy,
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - PAOLO FOGGINI
born on November 21, 1941 in Turin (Italy),
of Italian Nationality,
residing at Via Moncalieri 2, Moncalieri, Italy,
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
- - - MARIA ALBA FOGGINI
born on July 3, 1943 at Alba (Italy),
of Italian Nationality,
residing at Piazza Vittorio Veneto 5, Turin, Italy,
married under a contract providing for separate ownership of property
and, consequently, entitled alone to enter into this agreement.
COLLECTIVELY REFERRED HEREIN AS "THE PROMISOR"
ON THE ONE HAND,
AND
"KEY PLASTICS LLC", a company incorporated under the laws of the United States
of America, having its registered office at 21333 Haggerty Road, Suite 200 -
Novi (48375), Michigan, United States of America.
Represented by Mr. Dave BENOIT, acting in its capacity duly empowered
for the purpose of the present agreement,
REFERRED HEREIN AS "THE BENEFICIARY"
<PAGE> 2
2
ON THE OTHER HAND,
WITNESSETH
WHEREAS, the Promisor owned, directly or indirectly, all of the issued and
outstanding shares of the three holding companies of the Foggini group, i.e.
Foggini Groupe SA (the French holding company), Foggini SA (the Swiss holding
company) and Foggini and C. Srl (the Italian holding company):
- - - the Promisor owned 100% of the shares in Foggini Groupe SA and Foggini SA,
and 38,4615% of the shares in Foggini & C. Srl;
- - - Foggini Groupe SA and Foggini SA owned respectively 50% and 11,5384% of the
shares in Foggini & C. Srl.
WHEREAS, the Promisor also owned directly 100% of the shares in Foggini Progetti
Srl and 3%. of the shares in Radicar Srl, the balance representing 97% of the
capital of Radicar being owned by Foggini & C.
WHEREAS, the Promisor has transferred to Key Foggini Europe the direct ownership
of all their shares in Foggini Groupe SA, Foggini SA and Foggini Progetti,
Foggini and C. Srl and Radicar, pursuant to the following operations:
i) The Promisor has transferred to Foggini Key Europe SARL, on the date
hereof, the ownership of a number of shares in Foggini Groupe SA, Foggini
SA and Foggini Progetti Srl, representing in each company 45% of the
issued share capital;
ii) Foggini -Key Europe Sarl has subscribed on February 18, 1999 1.400.000
shares in a share capital increase of Foggini & C. Srl
iii) The Promisors upon the occurrence of what is provided under point iv) of
the share Purchase Agreement contributed, on the date hereof, to Key
Foggini Europe sarl, the ownership of the remaining 55% of the capital of
Foggini Groupe SA, Foggini SA, Foggini Progetti Srl, of 25% of the capital
of Foggini and C. Srl and 3% of the capital of Radicar Srl, against
30.184.538 B category shares representing 35 % of the share capital of
Foggini Key Europe. SARL.
WHEREAS, following final implementation of the above mentioned contribution
operation, and subject to the terms and conditions set forth herein, the
Promisor desires to undertake to sell to the Beneficiary, which promise the
latter wishes to accept, these newly created 301,845 shares representing an 35%
of the share capital of Foggini Key Europe Sarl.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINITIONS
<PAGE> 3
3
When used in connection with this agreement, the terms listed below shall have
the following meanings:
GROUP FOGGINI shall mean the following eleven companies:
1. 100% of the capital in the FOGGINI GROUPE S.A. Company, a French joint stock
company with a share capital of FRF 26,000,000 ;
2. 100% of the capital of the FOGGINI SA Company (Suisse), a Swiss joint stock
company with a capital of SFR 500,000.
3. 100% of the capital of the FOGGINI DEUTSCHLAND GmbH a German company.
4. 100% of the capital of the FOGGINI IBERICA SL a Spanish company.
5. 100% of the capital of the FOGGINI France Company SA, a French joint stock
company with a capital of FRF 70,000,000
6. 51% of the capital of the FOGGINI BOHEMIA s.r.o. a Czechoslovakian company.
7. 100% of the capital of the FOGGINI & C Srl. Company, an Italian limited
liability company with a capital of Italian Lira 4.000,000,000.
8. 100% of the capital of the FOGGINI PROGETTI Srl. Company, an Italian limited
liability company with a capital of Italian Lira 20,000,000.
9. 100% of the capital of the RADICAR Srl. Company, an Italian limited
liability company with a capital of 99,000,000..
10. 100% of the capital of the CORIL SA Company, a Swiss joint stock company
with a capital of 600,000 Swiss Francs.
11. 51% of the capital of the ELMEG Srl Company, an Italian limited liability
company with a capital of Italian Lira 99,000,000.
AGREEMENT shall mean this unilateral promise to sell Shares, signed by the
Promisor and the Beneficiary, together with the Annexes hereto.
CONTRACTUAL PERIOD shall mean any period of 12 subsequent months starting March
17 of a civil year and ending March 16 of the next civil year.
COMPANY shall mean Foggini Key Europe Sarl, a company governed by the laws and
regulations of Luxembourg, with a share capital of 56.057.000 Euros, having its
registered office located at Luxembourg, L-2453, 16, rue Eugene Ruppert,.
FOGGINI GROUPE shall mean Foggini Groupe SA, a French societe anonyme with a
share capital of French Francs 26.000.000, divided into 26.000 shares with a par
value of French Francs 1.000, all in the same class and fully paid up, which has
its registered office at Rochefort sur Mer 17300, Zone Industrielle des Soeurs,
, registered with the Rochefort Companies Registrar under N(degree)311 285 423.
FOGGINI ITALY shall mean Foggini & C. Srl, an Italian company with a share
capital of Italian Liras 4,000,000,000 divided into 4,000,000 shares with a par
value of Italian Lira 4,000,000, all in the same class and fully paid up, which
has its registered office at Via Aosta 18, 10092 Beinasco (Torino), registered
with the Torino Companies Registrar under N(degree) 272/1965/206.
<PAGE> 4
4
FOGGINI PROGETTI shall mean Foggini Progetti Srl, an Italian company with a
share capital of Italian 20.000.000 Liras, divided into 20,000 shares with a par
value of Italian Liras 1,000, all in the same class and fully paid up, which has
its registered office at Via Aosta 17, 10092 Beinasco (Torino), registered with
the Torino Companies Registrar under N(degree) 272/4238/1982.
FOGGINI SWITZERLAND shall mean Foggini SA, a Swiss corporation with a share
capital of Swiss Francs 500.000, divided into 5.000 shares with a par value of
Swiss Francs 100, all in the same class and fully paid up, which has its
registered office at Via la Pobbia, Novazzano, registered with the Mendrisio
Companies Registrar under N(degree) 524.3.006.759-4.
CONTRIBUTION OPERATION shall mean the contribution of the Promisor in favor of
the company, effected today, and concerning the full and total property of the
shares representing 55% of the capital of Foggini Groupe, Foggini Switzerland
and Foggini Progetti and the shares representing 25% of the capital of Foggini
& C and 3% of the capital of Radicar Srl as a consideration of 35% of the
Capital share of Key Foggini Europe Sarl.
SHARES shall mean 30.184 B shares, subject of the present agreement,
representing 35% of the issued share capital of the Company, which have been
created by the Company in respect of the increase of its capital and attributed
to the Promisor following the Contribution Operation.
THE OPTION shall mean the right allowed to the Beneficiary to exercise or not
the Agreement and so acquire or not the shares
OPTION PRICE shall mean the Option Price as defined in Article 4 of the
Agreement.
SHARE TRANSFER PRICE shall mean the Share Transfer Price as defined in Article 5
of the Agreement.
ARTICLE 2 PROMISE TO SELL
The Promisor irrevocably undertakes to transfer the Shares to the Beneficiary
under the terms and conditions defined herein below.
The Beneficiary accepts the Promise granted as such and reserves the right to
exercise it or not.
ARTICLE 3 PROMISE TERM OF VALIDITY
This promise to sell is granted until the earlier of (i) March 16, 2006, 12:00
p.m. and (ii) the date of exercise if any, of the Option.
ARTICLE 4 OPTION PRICE
<PAGE> 5
5
In consideration of the Option granted to the Beneficiary, the parties have
agreed that, as long as the Option is not exercised, the Beneficiary shall pay
to the Promisor at the end of each Contractual Period the following Option
Price:
- - - for the period ended March 16, 2000: the amount of Twelve Million Eight
hundred and Forty Nine Thousand Three Hundred French Francs (FF12,849,300);
- - - for the period ended March 16, 2001: the amount of Twelve Million Eight
hundred and Forty Nine Thousand Three Hundred French Francs (FF12,849,300);
- - - for the period ended March 16, 2002: the amount of Twenty One Million Four
hundred Fifteen Thousand Five Hundred French Francs (FF 21,415,500);
- - - for the period ended March 16, 2003: the amount of Twenty One Million Four
hundred Fifteen Thousand Five Hundred French Francs (FF 21,415,500);
- - - for the period ended March 16, 2004: the amount of Twenty One Million Four
hundred Fifteen Thousand Five Hundred French Francs (FF 21,415,500);
- - - for the period ended March 16, 2005: the amount of Twenty One Million Four
hundred Fifteen Thousand Five Hundred French Francs (FF 21,415,500);
- - - for the period ended March 16, 2006: the amount of Twenty One Million Four
hundred Fifteen Thousand Five Hundred French Francs (FF 21,415,500);
The Option Price shall be paid by the Beneficiary to the Promisor 15 days at the
latest before the end of each Contractual Period.
Should the Option be exercised, the Option Price for the Contractual Period
considered shall be settled on the date of execution of the Option, on a pro
rata basis of the number of dayus elapsed since the start of the relevant
Contractual Period and on the basis of a 365 day year and shall become due and
payable at the date of payment of the Share Transfer Price.
ARTICLE 5 SHARE TRANSFER PRICE
Should the Option be exercised, the Parties have irrevocably agreed to a Share
Transfer Price of:
- - - Two Hundred Fourteen Million One Hundred Fifty Five Thousand French Francs
(FF214,155,000), , in the event the Option is exercised prior to March 16,
2004, 12:00 p.m.
- - - Two Hundred Fourteen Million One Hundred and Fifty Five Thousand French
Francs (FF214,155,000) plus any increase of the consolidated net asset value
of the FOGGINI GROUP between February 15, 2002 and the date of exercise of
the Option, , in the event the Option is exercised after March 16, 2004,
12:00 p.m. and until the term hereof.
<PAGE> 6
6
For the computation of this increase of the consolidated net asset value of
the FOGGINI GROUP, the Parties agrees in advance to entrust such mission to
the audit firm Arthur Andersen Milan which shall have to render its report(
within 30 days of the exercise of the Option.
In case of disagreement on the definition of the consolidated net asset
value, the Parties nominate in advance Arthur Andersen Milan as expert to
supply such definition pursuant to applicable accounting practices in each
countries, its opinion being binding upon the Parties, without any
possibility of recourse, which they accept expressly.
amount which will come in addition to any prior payment of Option Price(s).
ARTICLE 6 DATE OF EXECUTION
In the event the Option is exercised, then, within Thirty (30) working days
after the Promise being exercised, the Beneficiary shall be required to make a
payment to the Promisor of the Share Transfer Price stipulated in Article 5, by
bank transfer in accordance to the Beneficiary instruction, in exchange for a
share transfer document authorizing the Beneficiary to register said transfer in
the Company share register, duly signed by the Promisor.
The Shares will be transferred with full rights as from the first day of the
financial year during which this Promise shall have been exercised.
ARTICLE 7 WARRANTIES
The Promisor undertakes to sell the shares free of any liens, preemptive rights,
seizures, securities, warranties, claims or any other obligations likely to
restrict in any way whatsoever the full and rightful ownership and free disposal
thereof.
The Promisor also undertakes not sell, pledge or encumber the shares in any
manner until the term hereof , as defined in Article 3 hereinabove.
ARTICLE 8 SCOPE AND INTEGRITY OF THE AGREEMENT
No action or omission by the Parties, except where specifically agreed by the
Parties in writing, shall be interpreted as a waiver of any provisions of the
present Agreement.
This Agreement sets out all the undertakings given by the Parties in connection
with its object.
If any material provision of this Agreement is held to be invalid or
unenforceable, partly or wholly, such determination shall not invalidate any
other provision of this Agreement. However, the Parties hereto shall attempt,
through negotiations in good faith, to replace any
<PAGE> 7
7
provision of this Agreement so held to be invalid or unenforceable by a
provision of comparable effect. The failure of the Parties to reach agreement on
a replacement provision shall neither affect the validity of the remaining
provisions of this Agreement nor the validity of the valid or enforceable part
of any provision held partly invalid, which provision shall take effect to the
maximum extent permitted by law.
ARTICLE 9 ADDENDA
This Agreement shall not be amended other than by a written addendum signed by
the Parties. The tolerance or lack of action on the part of the Beneficiary or
the Promisor shall not be construed to mean the waiver of their respective
rights within the meaning of this Agreement.
ARTICLE 10 NOTICE
All notices as between the Parties shall be served by registered letter with
acknowledgement of receipt sent to the address of the addressee set out below or
any other address notified by way of the above mentioned methods. All time
limits shall run as from the day the said letter is presented, as evidenced by
indications form postal or courier service, or, in case of interruption of such
service, from the day such letter is received by the addressee by any other
expedient means.
Concerning the Seller:
for the attention of Mr. Vittorio Blaas Anselmi, Avvocato, Corso Venezia
37, Milan, Italy
Concerning the Buyer
At its registered office as indicated on the first page of the Agreement,
for the attention of Mr. D. Benoit or C. Coumans
ARTICLE 11 LANGUAGE - GOVERNING LAW - JURISDICTION
This Agreement is drawn up in French.
The translation in English of the Agreement is non binding on the parties and on
third parties.
This Agreement shall be governed by and construed according to the laws of
France.
The Courts of Paris shall have jurisdiction over all disputes and all other
proceedings arising in connection with the interpretation or performance of this
Agreement, should the Parties fail to come to an out-of-court settlement, the
present transfer of shares and the contribution of shares having the character
of transfer of control.
<PAGE> 8
8
ARTICLE 12 POWERS
All powers are granted to the holder of an original of the present Agreement in
order to carry out the required formalities.
ARTICLE 13 CONFIDENTIALITY
13.1 The Sellers undertake not to disclose any confidential information
currently in their possession or which may come into their possession in the
future concerning the FOGGINI GROUP companies, and not to use said information
for the benefit of any third party.
Confidential information shall mean all information no available to the general
public
13.2 This Agreement shall be strictly confidential. The Parties to the
Agreement undertake not to disclose its contents unless legally obligated to do
so or to defend their rights in a court of justice.
All press releases and other public relations activities of the Parties with
regard to this Agreement shall be mutually approved by the Sellers and the Buyer
in advance.
ARTICLE 14 FEES AND EXPENSES
Each of the Parties shall bear, without compensation from the other Party, the
entirety of the fees and expenses it incurs for the preparation or the
performance of this Agreement. This shall include specifically counsel and
auditor fees.
The Parties recognize that there are no commissions due to any intermediary for
the transfer or contribution of the shares of the GROUPE companies.
ARTICLE 15 REGISTRATION
Subject to any mandatory law or regulation, the transfer of the Shares shall be
filed with the appropriate tax registration authority, by the Buyer, at his
expense.
Without prejudice of the execution of this agreement the parties and the
Companies expressly confirm their agreement in accordance to the terms set fort
by article nine of Protocol of Brussels Convention of 27/09/1968.
Established in
On 29 March 1999
<PAGE> 9
9
In ...originals
/s/ David Benoit
- - -------------- ----------------
THE SELLERS THE BENEFICIARY
Mr. Massimo Foggini "Key Plastics LLC"
Represented by Mr. David Benoit, Manager
Mr. Giovanni Foggini
Mr. Paolo Foggini
Mrs. Maria Alba Foggini
<PAGE> 1
EXHIBIT 21.1
<TABLE>
<CAPTION>
List of Subsidiaries
--------------------
Name Jurisdiction Ownership
- - ---- ------------ ---------
<S> <C> <C> <C>
Key Plastics International L.L.C. Michigan Key Plastics L.L.C. 100%
Key Plastics Automotive L.L.C. Michigan Key Plastics L.L.C. 100%
Key Plastics Mexico A L.L.C. Michigan Key Plastics L.L.C. 100%
Key Plastics Mexico B L.L.C. Michigan Key Plastics L.L.C. 100%
Key Acco L.L.C. Michigan Key Plastics L.L.C. 100%
Key Plastics de Mexico 1, S. de Mexico Key Plastics Mexico A 50%
R.L. de C.V. Key Plastics Mexico B 50%
Key Plastics Company, Canada Canada Key Acco L.L.C. 100%
Foggini-Key Europe S.a.r.l. Luxembourg Key International L.L.C. 50%
Key Automotive L.L.C. 50%
Key Plastics U.K. UK Foggini-Key Europe S.a.r.l. 100%
Key Plastics France S.A.S. France Foggini-Key Europe S.a.r.l. 100%
Key Plastics International S.N.C. France Key Plastics France S.A.S. 99%
Key Plastics U.K. 1%
Foggini Groupe S.A. France Foggini-Key Europe S.a.r.l. 75%
Key Plastics France S.A.S. 25%
Foggini France S.A. France Foggini Groupe S.A. 100%
Foggini S.A. Switzerland Foggini-Key Europe S.a.r.l. 100%
Coril S.A. Switzerland Foggini S.A. Company 50%
Foggini Groupe S.A. 50%
Foggini et Co. S.r.l. Company Italy Foggini Groupe S.A. 32.5%
Foggini-Key Europe S.a.r.l. 60.0%
Foggini S.A. Company 7.5%
Foggini Progetti S.r.l. Company Italy Foggini-Key Europe S.a.r.l. 100%
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C> <C>
Radicar S.r.l. Company Italy Foggini et Co. S.r.l. Company 97%
Foggini-Key Europe S.a.r.l. 3%
Map Sanistar, Acessorios, Lda Portugal Foggini-Key Europe S.a.r.l. 99.97%
Nominal Shareholders 0.03%
Map-Key, Materias de Portugal Map Sanistar, Acessorios 99.99%
Plasticas S.A. Nominal Shareholders 0.01%
Foggini Deutschland GmbH Germany Foggini Groupe S.A. 100%
Foggini Iberica S.L. Company Spain Foggini Groupe S.A. 100%
Foggini Bohemia S.r.o. Company Czech Foggini Groupe S.A. 51%
Elmeg Srl Company Italy Foggini Groupe S.A. 51%
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 3,798
<SECURITIES> 0
<RECEIVABLES> 77,795
<ALLOWANCES> 0
<INVENTORY> 53,006
<CURRENT-ASSETS> 141,258
<PP&E> 258,558
<DEPRECIATION> (87,025)
<TOTAL-ASSETS> 388,489
<CURRENT-LIABILITIES> 103,804
<BONDS> 301,038
0
0
<COMMON> 0
<OTHER-SE> (8,459)
<TOTAL-LIABILITY-AND-EQUITY> 388,489
<SALES> 371,533
<TOTAL-REVENUES> 371,533
<CGS> 303,886
<TOTAL-COSTS> 339,499
<OTHER-EXPENSES> 1,322
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 29,148
<INCOME-PRETAX> (457)
<INCOME-TAX> 1,618
<INCOME-CONTINUING> (2,650)
<DISCONTINUED> 0
<EXTRAORDINARY> (522)
<CHANGES> 0
<NET-INCOME> (3,172)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
