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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
/x/ Annual report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the fiscal year ended DECEMBER 31, 1994.
/ / Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 for the transition period from
___________ to ___________.
COMMISSION FILE NUMBER: 1-11311
LEAR SEATING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-3386776
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
21557 TELEGRAPH ROAD, SOUTHFIELD, MI 48034
(Address of principal executive offices) (zip code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (810) 746-1500
SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
COMMON STOCK, PAR VALUE $.01 PER SHARE NEW YORK STOCK EXCHANGE
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 (or for such shorter period that the
registrant was required to file such reports), 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. [ ]
As of February 15, 1995, the aggregate market value of the registrant's Common
Stock, par value $.01 per share, held by non-affiliates of the registrant was
$242,185,308. The closing price of the Common Stock on February 15, 1995 as
reported on the New York Stock Exchange was $17.25.
As of February 15, 1995, the number of shares outstanding of the registrant's
Common Stock was 46,078,048 shares.
DOCUMENTS INCORPORATED BY REFERENCE
Certain sections of the registrant's Notice of Annual Meeting of Stockholders
and Proxy Statement for its Annual Meeting of Stockholders to be held on May 5,
1995, as described in the Cross-Reference Sheet and a Table of Contents
included herewith, are incorporated by reference into Part III of this Report.
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CROSS REFERENCE SHEET
AND
TABLE OF CONTENTS
<TABLE>
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PAGE NUMBER
OR REFERENCE (1)
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<S> <C> <C> <C>
PART I
ITEM 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ITEM 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ITEM 3. Legal proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ITEM 4. Submission of matters to a vote of security holders. . . . . . . . . . . . . . . . . . . . . 15
PART II
ITEM 5. Market for registrant's common equity and related stockholder matters. . . . . . . . . . . . 16
ITEM 6. Selected financial data. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ITEM 7. Management's discussion and analysis of financial condition and results of operations. . . . 18
ITEM 8. Financial statements and supplementary data. . . . . . . . . . . . . . . . . . . . . . . . . 26
ITEM 9. Changes in and disagreements with accountants on accounting and financial disclosure . . . . 61
PART III
ITEM 10. Directors and executive officers of the registrant (2) (4) . . . . . . . . . . . . . . . . . 62
ITEM 11. Executive compensation (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
ITEM 12. Security ownership of certain beneficial owners and management (4) . . . . . . . . . . . . . 62
ITEM 13. Certain relationships and related transactions (5) . . . . . . . . . . . . . . . . . . . . . 62
PART IV
ITEM 14. Exhibits, financial statement schedules, and reports on Form 8-K . . . . . . . . . . . . . . 63
</TABLE>
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(1) Certain information is incorporated by reference, as indicated
below, from the registrant's Notice of Annual Meeting of
Stockholders and Proxy Statement for its Annual Meeting of
Stockholders to be held on May 5, 1995 (the "Proxy Statement").
(2) Proxy Statement section entitled "Election of Directors" and
"Management."
(3) Proxy Statement section entitled "Executive Compensation."
(4) Proxy Statement section entitled "Record Date, Outstanding
Shares, Required Vote and Holdings of Certain Stockholders --
Security Ownership of Certain Beneficial Owners and Management."
(5) Proxy Statement section entitled "Certain Transactions."
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PART I
ITEM 1 - BUSINESS
As used in this report, unless the context otherwise requires, the "Company" or
"Lear" refers to Lear Seating Corporation and its consolidated subsidiaries
after giving effect to the Merger (as defined herein).
GENERAL
Lear Seating Corporation is the largest independent supplier of
automotive seat systems in the world. The Company employs approximately 25,000
people in 17 countries and operates 79 manufacturing, research, design,
engineering, testing and administration facilities. The Company's principal
products include finished automobile and light truck seat systems, automobile
and light truck seat frames, seat covers and other seat components. The
Company's seat systems, which are designed, manufactured and assembled at the
Company's manufacturing facilities, are shipped to customer assembly plants on
a just-in-time ("JIT") basis. This JIT process enables the Company to optimize
inventory turnover and deliver products to its customers on as little as 90
minutes notice. The Company has taken the JIT concept to a higher level with
Sequential Parts Delivery ("SPD"). SPD not only delivers the seat systems to
the customers on a JIT basis, but also permits delivery in the precise color and
trim sequence. In the year ended December 31, 1994, approximately 76% of
Lear's net sales were generated from sales in the United States and Canada,
with the balance of sales being primarily in Europe and Mexico. The Company's
present customers include 17 original equipment manufacturers ("OEMs"), the
most significant of which are Ford, General Motors, Fiat, Chrysler, Volvo,
Volkswagen, Saab and Mazda.
The Company's net sales have grown rapidly from approximately
$159.8 million in the fiscal year ended June 30, 1983 to approximately $3.1
billion in the year ended December 31, 1994, an average compound annual growth
rate of approximately 31%. This growth in sales is attributable primarily to
the trend in the automotive industry to "outsource" more of its requirements
for automotive components, particularly high cost components such as seat
systems. The Company has expanded its operations to facilitate such growth
through capital expenditures necessary to construct or acquire new facilities
and to enhance existing facilities, as well as through acquisitions.
Outsourcing has increased in response to competitive pressures on
OEMs to improve quality and reduce capital needs and the costs of labor,
overhead and inventory. The outsourced market for automobile and light truck
seat systems in North America is approximately 70% of the total North American
seat systems market of $6.8 billion. In 1994, the Company held a leading 37%
of the North American outsourced market and 27% of the total market. The 1994
European automotive seating market was an estimated $4.5 billion, of which
approximately 53% was outsourced. As a result of the Company's acquisition in
December 1994 of the Fiat Seat Business (as defined herein), the Company became
the market leader in Europe with a 33% share of the outsourced market and 18%
of the total market. See "Business -- FSB Acquisition."
The Company is also the largest supplier of seat systems and seat
components in Mexico. The Company believes that it is well positioned to take
advantage of the growing activities of United States-based and German-based
OEMs, in this geographic segment as well as take advantage of opportunities
that result from the North American Free Trade Agreement.
In addition to outsourcing the production of seat systems, OEMs
increasingly are transferring the primary responsibility for design,
engineering and quality control of these products to suppliers, such as Lear,
with proven design, engineering and JIT program management and manufacturing
capabilities. Suppliers that design, engineer, manufacture and conduct quality
control testing are generally referred to as "Tier I" suppliers. The Company
believes that early involvement in the design and engineering of new seating
products as a Tier I supplier affords the Company a
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competitive advantage in securing new business and provides its customers with
significant cost reduction opportunities through the coordination of the
design, development and manufacturing processes. See "Business - Business
Strategy."
The Company has enhanced its design and engineering capabilities
with two technical centers and other investments to upgrade its capabilities.
The Company is continuing this process of investing to substantially improve
all aspects of its safety and functional testing and comfort assessment
capabilities. An example of the Company's design and engineering capabilities
is the development of the Company's patented SureBond process, which bonds seat
covers to foam pads, minimizing the need for sewing. "See Business -
Manufacturing." The Company believes its enhanced design and engineering
capabilities have contributed to the increase in the Company's North American
content per vehicle from $12 in 1983 to $169 in 1994. In Europe, the
Company's content per vehicle has grown from $3 in 1983 to $80 in 1994 after
giving effect of the FSB acquisition.
The Company's continued expansion as a Tier I supplier has
resulted in the Company beginning nine new seat programs in 1994 including
programs for Ford, General Motors, Chrysler, Jaguar and BMW. This new
business, combined with the full integration of the November 1993 acquisition
of Ford's North American Seat and Seat Cover Business ("NAB"), contributed
significantly to the Company's overall growth. New programs awarded to the
Company in 1994 for business in Europe, South America, Australia and Indonesia,
combined with existing programs are expected to result in approximately $800
million in incremental annual new business through 1998. As a result of this
new business, the Company expects to construct several new seat systems
facilities, which typically involve an upfront cost of between $6.0 million and
$9.0 million per facility for owned facilities and between $1.0 million and
$6.0 million per facility for leased facilities.
The Company is the successor to a seat frame manufacturing
business founded in 1917 that served as a supplier to General Motors and Ford
from its inception. Lear Holdings Corporation ("Holdings"), the former parent
of the Company, was organized in August 1988 to effect the acquisition (the
"1988 Acquisition") of all of the outstanding common stock of Lear Seating
Corporation (formerly known as Lear Siegler Seating Corp.) and certain other
subsidiaries of Lear Siegler Holdings Corp. comprising its seating group (the
companies acquired being collectively referred to herein as the "Seating
Group"). On December 31, 1993, Holdings merged with and into the Company (the
"Merger"), and the separate corporate existence of Holdings ceased on that
date. Unless the context otherwise indicates, all information contained herein
is presented as if the Merger had occurred as of the date or as of the
beginning of the period indicated.
The Company's principal executive offices are located at 21557
Telegraph Road, Southfield, Michigan 48034. Its telephone number at that
location is (810) 746-1500. The Company was incorporated in Delaware on
January 13, 1987.
BUSINESS STRATEGY
To take advantage of additional business opportunities, the
Company has positioned itself as a global Tier I supplier of entire seat
systems to the OEMs. Tier I status typically means that the supplier is
awarded the seat program for a particular vehicle in the early stages of the
vehicle's design. The Tier I supplier becomes responsible for total seat
program management, including design, development, component sourcing, quality
assurance procedures, manufacture and delivery to the OEM's assembly plant.
The OEM benefits from lower costs, improved quality, timely delivery and the
administrative convenience of being able to treat seating as a single component
instead of as numerous individual components. The Company believes that its
early involvement in the design and engineering of new seat products as a Tier
I supplier affords the Company a competitive advantage in securing new
business. The Company has become a significant Tier I supplier by implementing
a strategy based upon the following elements:
- Strong Relationships with the OEMs. The Company's management
has developed strong relationships with its OEM customers which allow Lear to
identify business opportunities and react to customer needs in the early stages
of
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vehicle design. The Company works closely with OEMs in designing and
engineering seat systems and maintains an excellent reputation with the OEMs
for timely delivery and customer service and for providing world class quality
at a competitive price. Many of the Company's facilities have won awards from
OEMs and others, including the General Motors Mark of Excellence Award, the
General Motors Supplier of the Year Award, the General Motors Top Supplier
Award in Mexico, the Ford Q-1 Award, the General Motors of Europe Supplier of
the Year Award, the Chrysler Quality Excellence Award, the Saab 100% Supplier
Performance Award, the Mazda Most Valuable Supplier Award and Full Service
Supplier certification by Ford Motor Company.
- Product Technology and Product Design Capability. Lear has
made substantial investments in product technology and product design
capability to support its products. The Company maintains two technical
centers (in Southfield, Michigan and Turin, Italy) where it tests current and
future products to determine compliance with safety standards, quality and
durability, response to environmental conditions and user wear and tear.
Benchmarking studies are also conducted to aid in developing innovative seat
design features. The Company has recently made substantial investments to
further upgrade its computer-aided engineering ("CAE") and computer-aided
design/computer-aided manufacturing ("CAD/CAM") capabilities. Such tools as
advanced design modeling software, dynamic crash simulation, linear and
non-linear finite element analysis and solids modeling are among several tools
recently added to electronically create a seat and evaluate its performance.
- Lean Manufacturing Philosophy. Lear has adopted a "lean
manufacturing" philosophy that seeks to eliminate waste and inefficiency in its
own operations and in those of its customers. The Company believes that it
provides superior quality seating products at lower costs than the OEMs. The
Company, whose facilities are linked by computer directly to those of its
suppliers and customers, receives components from its suppliers, and delivers
seat systems and components to its customers on a JIT basis, which minimizes
inventories and fixed costs and enables the Company to deliver products on as
little as 90 minutes notice. In the year ended December 31, 1994, the
Company's overall annual inventory turnover rate was 36 times and the turnover
rate was up to 150 times in the case of certain of the Company's JIT plants.
The Company also minimizes fixed costs by using the existing suppliers to the
OEMs and the OEMs themselves for certain components instead of attempting to
produce such components itself. In cases where one of the Company's
manufacturing facilities is underutilized, the Company is able to redistribute
products to increase facility utilization.
Typically, the upfront cost of constructing a new seat systems
facility is between $6.0 and $9.0 million per facility for owned facilities and
between $1.0 million and $6.0 million per facility for leased facilities. The
principal costs in starting a new seat systems facility arise from the
acquisition of the land, construction of the building and installation of
conveyor systems. Because most seat assembly work is manual and does not
require complex equipment, capital costs are relatively low.
FSB ACQUISITION
On December 15, 1994, the Company, through its wholly-owned
subsidiary Lear Seating Italia S.r.L., purchased from Gilardini S.p.A.
("Gilardini"), a subsidiary of Fiat S.p.A. ("Fiat Auto"), all of the shares of
SEPI S.p.A. ("SEPI"), the primary automotive seat systems supplier to Fiat
Auto. SEPI and its wholly-owned subsidiary, SEPI Sud S.p.A. ("SEPI Sud"),
operate eight facilities in Italy producing automotive seat systems for 85% of
Fiat Auto's Italian vehicle production under the Fiat, Lancia, Alfa Romeo and
Ferrari nameplates as well as seat frames for certain Fiat models for which
SEPI and SEPI Sud do not supply the seat systems. In connection with this
acquisition, Lear also acquired from Gilardini (i) all of the shares of SEPI
Poland Sp. Z o.o., which produces automotive seat systems for Fiat Auto Poland
and supplies seat covers to SEPI and SEPI Sud; (ii) a 35% interest in a Turkish
joint venture which proposes to produce automotive seat systems for Tofas (a
Fiat Auto affiliate) and provides seat covers to SEPI and SEPI Sud; and (iii) a
49% interest in Industrias Cousin Freres S.L., a seat component joint venture
in Spain with Bertrand Faure S.A. Lear also anticipates acquiring interests in
proposed South American joint ventures which plan to supply automotive seat
systems to Fiat Auto or its affiliates in Brazil and Argentina.
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The purchase price for the acquisition (the "FSB acquisition") of
the interests described in the preceding paragraph (collectively, the "Fiat
Seat Business") was 250.0 billion Italian Lire, including the long-term
indebtedness of SEPI as of September 30, 1994 which totaled 80.63 billion
Italian Lire. Of the purchase price, 20.0 billion Italian Lire was deferred
and is payable, without interest thereon, on November 30, 1998. The remaining
149.37 billion Italian Lire of the purchase price was paid in cash at the
closing of the FSB acquisition. As part of the FSB acquisition, Lear also
agreed to replace the outstanding indebtedness of SEPI to Fiat Auto and its
affiliates. Lear replaced such indebtedness on January 20, 1995.
In connection with the FSB acquisition, Lear and Fiat Auto
entered into a long-term supply agreement for the production of substantially
all outsourced automotive seat systems for Fiat Auto and affiliated companies
worldwide. The financing for the FSB acquisition was provided by the Company's
Credit Agreement (as defined herein).
The sale of the Fiat Seat Business was conducted on an auction
basis in which Fiat Auto considered numerous factors submitted by each of
several bidders including price, technical resources, capabilities and
expertise in the automotive and light truck seat market. The Company believes
that its selection highlights the Company's position as a leading independent
supplier of automotive seat systems.
The FSB acquisition not only establishes Lear as the market
leader in automotive seat systems in Europe, but combined with its leading
position in North America, makes Lear the largest independent automotive seat
systems manufacturer in the world.
PRODUCTS
Lear's products have evolved from the Company's many years of
experience in the seat frame market where it has been a major supplier to
General Motors and Ford since its inception in 1917. The seat frame has
structural and safety requirements which make it the basis for overall seat
design and was the logical first step to the Company's emergence as a dominant
supplier of entire seat systems.
All of the Company's products are manufactured using JIT
manufacturing techniques, and most of the Company's products, including all
seat systems, are delivered to the OEMs on a JIT basis. The JIT concept, first
broadly utilized by Japanese automobile manufacturers, is the cornerstone of
the Company's manufacturing and supply strategy. This strategy involves many of
the principles of the Japanese system, but was redeveloped for compatibility
with the greater volume requirements and geographic distances of the North
American market. The Company first developed JIT operations in the early 1980s
at its seat frame manufacturing plants in Morristown, Tennessee and Kitchener,
Ontario. These plants previously operated under traditional manufacturing
practices, resulting in relatively low inventory turnover rates, significant
scrap and rework, a high level of indirect labor costs and long production
set-up times. As a result of JIT manufacturing techniques, the Company has
been able to consolidate plants, increase capacity and significantly increase
inventory turnover, quality and productivity.
The JIT principles first developed at Lear's seat frame plants in
1983 were next applied to the Company's growing seat systems business and has
now evolved to SPD principles. The Company's 39 seating plants are typically
no more than 30 minutes or 20 miles from its customers' assembly plants and
manufacture seats for delivery to the customer's facility in as little as 90
minutes. Orders for the Company's seats are received on a weekly basis,
pursuant to blanket purchase orders for annual requirements. These orders
detail the customers needs for the ensuing week. In addition, on each work
day, constant computer and other communication is maintained between personnel
at the Company's plants and personnel at the customer's plants to keep
production current with the customer's demand.
The following is the approximate composition by product category
of the Company's net sales in the year ended December 31, 1994: seat systems,
78%; seat covers, 12%; seat frames, 8%; and seat components, 2%.
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- Seat Systems. The seat systems business consists of the
manufacture, assembly and supply of entire seating requirements for a vehicle
or assembly plant. The Company produces seat systems for automobiles and light
trucks that are fully finished and ready to be installed in a vehicle.
Included within the Company's seat systems production are high performance
seats for luxury versions of the OEMs' specialty cars, such as the Chevrolet
Corvette, the Ford Taurus SHO, the Mercury Cougar XR7, the Ford Thunderbird
Super Coupe, the Ford Mustang GT and the Dodge Viper. High performance seats
are fully assembled seats, designed to achieve maximum passenger comfort by
adding a wide range of manual and power features such as lumbar supports,
cushion and back bolsters and leg and thigh supports. As OEMs continue to view
seat systems as a distinguishing marketing feature, the advanced features
incorporated initially in high performance seats are more frequently becoming
standard features in a wider variety of later production vehicles.
The market for seat systems developed as a result of North
American automobile manufacturers' need to restructure assembly plant methods
in response to vigorous foreign competition in the early 1980's. The Company
was positioned to take advantage of this growing market through its long
standing relationships with customers. These relationships have been fostered
through the Company's performance in seat frame manufacturing over the years
and its demonstrated ability to supply and manage total seat systems. The
Company believes that its position in the seat systems market will improve as
seats with advanced features become an increasingly important criterion for
distinguishing between competing vehicle models.
The Company's major seat systems customers include Ford, General
Motors, Fiat, Chrysler, Volvo, Volkswagen, Saab and Mazda. In addition,
through its joint ventures with NHK Spring Co., Ltd., the Company supplies seat
systems to SIA (a joint venture between Fuji Heavy Industries (Subaru) and
Isuzu) and to CAMI (a joint venture between Suzuki and General Motors). The
Company and its affiliates serve assembly plants for these customers through 39
different JIT facilities.
The Company's sales for the year ended December 31, 1994 were
comprised of the following vehicle categories: 42% light truck and sport
utility, 18% mid-size, 13% luxury, 11% full size, 9% sport and 7% compact
vehicles. Among the more significant vehicle platforms for which the Company
produces or has been awarded complete seat system responsibility are the GM C/K
pick-up (Chevrolet and GMC light trucks), the Ford Taurus and Mercury Sable,
the Ford Crown Victoria and Mercury Grand Marquis, GM C/K sport utility
vehicles (Chevrolet and GMC Suburban, Chevrolet Tahoe and GMC Yukon), Buick
LeSabre, GM J-body (Chevrolet Cavalier and Pontiac Sunfire) and the Ford
Windstar minivan. For a more complete listing of vehicles with seat systems
sold by the Company and its affiliates, see "Business - Customers."
As a result of its product technology and product design
strengths, the Company can provide ergonomic designs which offer styling
flexibility at low cost. In addition, the Company is able to incorporate many
convenience features and safety improvements into its seat designs, such as
storage armrests, rear seat fold down panels, integrated restraint systems and
child restraint seats.
Lear's position as a market leader in seat systems is largely
attributable to seating programs on new vehicle models launched in the past
five years. The Company believes that supplying seating for these new vehicle
models will provide it with a long-term revenue stream throughout the lives of
these models. The Company is currently working with customers in the
development of a number of seat systems products to be introduced by automobile
manufacturers in the late 1990's, which it expects will lead to an increase in
outsourcing opportunities in the future. For years ending December 31, 1995
through December 31, 1998, the Company anticipates approximately $800 million
in incremental annual new sales from the full ramp-up of new and recently
awarded programs. Such business includes the Ford Taurus/Mercury Sable, the
Ford Explorer, the Ford Contour/Mercury Mystique, the Dodge Ram Pick-up Truck,
the Chevrolet Cavalier/Pontiac Sunfire, the Ford Windstar Minivan, all Jaguar
models, the GM Opel Omega and the Oldsmobile Aurora/Buick Riviera.
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- Seat Covers. Lear produces seat covers at its Fairhaven,
Michigan and Saltillo, Mexico facilities, which deliver seat covers primarily
to other Company plants. In addition, pursuant to the NAB acquisition, the
Company acquired a portion of Ford's North American seat cover business and is
producing approximately 80% of the seat covers for Ford's North American
vehicles. After the NAB acquisition, the Company's major external customers
for seat covers are Ford and other independent suppliers. The expansion of the
Company's seat cover business allows the Company better control over the cost
and quality of one of the critical components of a seat system. Typically,
seat covers comprise approximately 30% of the aggregate cost of a seat system.
- Seat Frames. Lear produces steel and aluminum seat frames
for passenger cars and light trucks and medium trucks. Seat frames are
primarily manufactured using precision stamped, tubular steel and aluminum
components joined together by highly automated, state-of-the-art welding and
assembly techniques. The manufacture of seat frames must meet strict customer
specified safety standards.
The Company's seat frames are either delivered to its own plants
where they become part of a completed seat that is sold to the OEM customer, to
customer-operated assembly plants or to other independent seating suppliers
where they are used in the manufacture of assembled seating systems.
The Company's product development engineers continue to advance
its technological position with such innovative material applications as
aluminum and plastic frames and new seat designs which dramatically reduce seat
weight while increasing usable automotive vehicle interior space or increasing
safety.
- Seat Components. The Company designs and manufactures
plastic storage armrests for inclusion in seat systems at its plant in Mendon,
Michigan. Vehicles in which these components are found are the Dodge Ram
Pick-up Truck, the Ford F-Series Pick-up Truck, the Buick LeSabre and the
Oldsmobile Delta 88. The Company also manufactures painted and assembled
injection molded components at the Mendon facility that are used in automotive
vehicle interiors.
MANUFACTURING
Lear has developed a comprehensive flexible manufacturing
philosophy for seat systems that allows it to make optimal use of its
manufacturing facilities in both high and low volume markets. This concept,
based on JIT manufacturing techniques, was developed in the early 1980's to
meet the requirements of its customers seeking to reduce costs and improve
quality. The Company has over ten years of experience in JIT management and
manufacturing.
Seat and component assembly techniques fall into two major
categories, traditional assembly methods (in which fabric is affixed to a frame
using velcro, wire or other material) and advanced bonding processes. There
are two advanced bonding techniques employed by the Company: the Company's
patented SureBond process, a technique in which fabric is affixed to the
underlying foam padding using adhesives, and the Company's licensed
foam-in-place process, in which foam is injected into a fabric cover. The
SureBond process has several major advantages when compared to traditional
methods, including design flexibility, increased quality and lower cost. The
SureBond process, unlike alternative bonding processes, results in a more
comfortable seat in which air can circulate freely. The SureBond process,
moreover, is reversible, so that seat covers that are improperly installed can
be removed and repositioned properly with minimal materials cost. In addition,
the SureBond process is not capital intensive when compared to competing
technologies.
The seat assembly process begins with pulling the requisite
components from inventory. Inventory at each plant is kept at a minimum, with
each component's requirement monitored on a daily basis. This allows the plant
to devote the maximum space to production, but also requires precise forecasts
of the day's output. Seats are assembled by three or four person teams, then
tested and packaged for shipment. The Company operates its own specially
designed trailer fleet that accommodates the off-loading of vehicle seats at
the assembly plant.
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Lear obtains steel, aluminum and foam chemicals used in its seat
systems from various producers under various supply arrangements. Leather,
fabric and purchased components generally are purchased from various suppliers
under contractual arrangements typically lasting no longer than one year. All
such materials are readily available. Some of the purchased components are
obtained through the Company's own customers.
CUSTOMERS
Lear serves the worldwide automobile and light truck market,
which produces over 30 million vehicles annually. The outsourced market for
automobile and light truck seat systems in North America is approximately 70%
of the total North American seat systems market, which in 1994 was estimated to
have annual revenues of approximately $6.8 billion. The outsourced market for
seat systems in Europe is approximately 53% of the total European seat systems
market, which in 1994 was estimated to have annual revenues of approximately
$4.5 billion. The Company believes that the same competitive pressures that
contributed to the rapid expansion of its business in North America since 1983
will continue to encourage automakers in the North American and the European
markets to outsource more of their seating requirements. Over the past three
years, the Company has aggressively pursued expansion in Europe, both with its
existing and new customers.
The Company's OEM customers currently include Ford, General
Motors, Fiat, Chrysler, Volvo, Volkswagen, Saab, Mazda, BMW, Jaguar, Audi,
Subaru, Isuzu, Suzuki, Daimler-Benz, Renault and Peugeot. For additional
information regarding customers, foreign and domestic operations and sales, see
Note 18, "Geographic Segment Data," to the consolidated financial statements of
the Company included in this Report.
In the past six years, in the course of retooling and
reconfiguring plants for new models and model changeovers, OEMs have eliminated
seating production from certain of their facilities, thereby committing
themselves to purchasing seat systems and components from outside suppliers.
During this period, the Company became a supplier of these products for a
significant number of new models, many on a JIT basis.
The purchase of seat systems on a JIT basis has allowed the
Company's customers to realize a competitive advantage as a result of (i) a
reduction in labor costs since suppliers like the Company generally enjoy lower
direct labor rates, (ii) the elimination of working capital and personnel costs
associated with the production of seat systems by the OEM, (iii) a reduction in
net overhead expenses and capital investment due to the availability of
approximately 60,000 to 80,000 square feet of plant space for expansion of
other manufacturing operations which was previously associated with seat
production at the OEM facilities and (iv) a reduction in transaction costs
because of the customer's ability to deal with a limited number of
sophisticated system suppliers as opposed to numerous individual component
suppliers. In addition, the Company offers improved quality and on-going cost
reductions to its customers through design improvements.
The Company receives blanket purchase orders from its customers
that normally cover annual requirements for seats to be supplied for a
particular vehicle model. Such supply relationships typically extend over the
life of the model, which is generally four to seven years, and do not require
the purchase by the customer of any minimum number of seats. In order to
reduce its reliance on any one model, the Company produces complete seat
systems and components for a broad cross-section of both new and more
established models. Vehicles with seat systems sold by the Company and its
affiliates in the indicated locations include:
7
<PAGE> 10
UNITED STATES AND CANADA
------------------------
<TABLE>
<S> <C> <C>
BMW: FORD: GENERAL MOTORS:
300 Series Ford Crown Victoria Buick LeSabre
Ford Explorer Sports Bucket, Buick Park Avenue
CAMI - GENERAL MOTORS/SUZUKI: Eddie Bauer & Limited Edition Buick Regal
Geo Metro Ford F-Series Pick-up Truck Buick Riviera
Geo Tracker Ford Lightning Pick-up Truck Chevrolet Cavalier
Suzuki Sidekick Ford Mustang GT & LX Chevrolet Corvette
Suzuki Swift Ford Probe Chevrolet Lumina
Ford Ranger Supercab/STX Chevrolet Monte Carlo
CHRYSLER: Ford Taurus SHO Chevrolet Tahoe/GMC Yukon
Dodge Dakota Pick-up Truck Ford Thunderbird SC Chevrolet C/K Pick-up Truck
Dodge Ram Charger Ford Windstar Minivan Chevrolet Kodiak
Dodge Ram Pick-up Truck Mercury Sable Chevrolet Sport Van
Dodge Viper Mercury Cougar XR7 Chevrolet/GMC G-Van
Mercury Grand Marquis GMC Pick-up Truck
Mazda Navajo Chevrolet/GMC Suburban
GMC Rally, Vandura Van
FUJI/ISUZU: GMC Sierra Crew Cab
Isuzu Trucks GMC Sierra Pick-up Truck
Subaru Legacy GMC Top Kick
Oldsmobile Aurora
HONDA: Oldsmobile Delta 88
Passport Pontiac Sunfire
</TABLE>
EUROPE
<TABLE> ------
<S> <C> <C>
ALFA ROMEO: FIAT: JAGUAR:
Alfa 33 Coupe XJS
Alfa 155 Croma XJ6
Alfa 164 Panda
Alfa 936 Ducato LANCIA:
Futura 33 Punto Dedra
Spider Tempra Delta
Tipo Thema
CHRYSLER: Uno Y11
Eurostar Minivan X230 838
FERRARI: GENERAL MOTORS - OPEL: VOLVO:
GT-456 Astra 800 Series
Calibra 900 Series
Corsa
Omega SAAB:
Vectra Saab 900
Saab 9000
</TABLE>
MEXICO
------
<TABLE>
<S> <C> <C>
FORD: CHRYSLER: VOLKSWAGEN:
Ford Contour Club Car Pick-up Truck Beetle
Ford Escort Dodge Ram Pick-up Truck Golf
Ford F-Series Jetta
Ford Thunderbird GENERAL MOTORS: Derby
Mercury Cougar Oldsmobile Cutlass Vanagon Minivan
Mercury Grand Marquis Chevrolet Cavalier
Mercury Mystique Opel Corsa
Mercury Tracer Pontiac Sunfire
</TABLE>
AUSTRALIA
---------
<TABLE>
<S> <C>
GENERAL MOTORS - HOLDEN'S:
VS and VT
</TABLE>
8
<PAGE> 11
Because of the economic benefits inherent in the JIT manufacturing
process and the costs associated with reversing a decision to purchase
seat systems from an outside supplier, the Company believes that automobile
manufacturers' level of commitment to purchasing seating from outside suppliers,
particularly on a JIT basis, will increase. However, under the contracts
currently in effect in the United States between each of General Motors, Ford
and Chrysler with the United Automobile, Aerospace and Agricultural Implement
Workers of America (the "UAW"), in order for any of such manufacturers to obtain
components that it currently produces itself from external sources, it must
first notify the UAW of such intention. If the UAW objects to the proposed
outsourcing, some agreement will have to be reached between the UAW and the OEM.
Factors that will normally be taken into account by the UAW and the OEM include
whether the proposed new supplier is technologically more advanced than the OEM,
cost and whether the OEM will be able to reassign union members whose jobs are
being displaced to other jobs within the same factories. As part of its
long-term agreement with General Motors, the Company operates its Grand Rapids,
Michigan and Lordstown, Ohio facilities with General Motors employees and
reimburses General Motors for the wages of such employees on the basis of the
Company's employee wage structure. The Company enters into these arrangements
to enhance its relationship with its customers.
The Company's contracts with its major customers generally
provide for an annual productivity price reduction and, in some cases, provide
for the recovery of increases in material and labor costs. Cost reduction
through design changes, increased productivity and similar programs with the
Company's suppliers have generally offset changes in selling prices. The
Company's cost structure is comprised of a high percentage of variable costs.
The Company believes that this structure provides it with additional
flexibility during economic cycles.
Ford and General Motors, the two largest automobile and light
truck manufacturers in the world, are also the Company's two largest customers,
accounting for 39% and 36%, respectively, of the Company's net sales during the
year ended December 31, 1994.
MARKETING AND SALES
Lear markets its products by maintaining strong relationships
with its customers fostered during its 77-year history through strong
technical and product development capabilities, reliable delivery of high
quality products, strong customer service, innovative new products and a
competitive cost structure. Close personal communications with automobile
manufacturers are an integral part of the Company's marketing strategy.
Recognizing this, the Company was reorganized into six independent
divisions, each with the ability to focus on its own customers and programs
and each having complete responsibility for the product, from design to
installation. By moving the decision making process closer to the customer,
and instilling a philosophy of "cooperative autonomy," the Company is more
responsive to, and has strengthened its relationships with, its customers.
Automobile manufacturers have increasingly reduced their number of suppliers as
part of their move to purchase systems rather than purchase individual
components. This process favors suppliers like the Company with established
ties to automobile manufacturers and the demonstrated ability to adapt to the
new competitive environment in the automotive industry.
The Company's sales are originated entirely by its sales staff.
This marketing effort is augmented by design and manufacturing engineers who
work closely with automobile manufacturers from the preliminary design to the
manufacture and supply of a seating system. Manufacturers have increasingly
looked to suppliers like the Company to assume responsibility for the
introduction of product innovation, shorten the development cycle of new
models, decrease tooling investment and labor costs, reduce the number of
costly design changes in the early phases of production and improve seat
comfort and functionality. Once the Company is engaged to develop the design
for the seating of a specific vehicle model, it is also generally engaged to
supply the vehicle with seating when it goes into production. The Company has
responded to this trend by improving its engineering and technical capabilities
and developing technical centers in the United States and in Europe. The
Company has also developed full-scope engineering capabilities, including all
aspects of safety and functional testing and comfort assessment. In addition,
the Company has established various remote engineering sites in close proximity
to several of its OEM customers to enhance customer relationships
9
<PAGE> 12
and design activity. During the five-year term of the supply agreement entered
into in connection with the NAB acquisition, the Company is assuming
responsibility for a substantial portion of Ford's seat systems design
capability and, accordingly has built a 75,000 square foot dedicated
engineering facility in Dearborn, Michigan to service Ford products.
TECHNOLOGY
Lear conducts advanced product design development at its
technical centers in Southfield, Michigan and Turin, Italy. After the FSB
acquisition, the Company transferred its European technical facility from
Rietberg, Germany to Turin, Italy. At these centers, the Company tests its
products to determine compliance with applicable safety standards, the
products' quality and durability, response to environmental conditions and user
wear and tear. In the past, the Company has developed a number of designs for
innovative seat features which it has patented, including ergonomic features
such as adjustable lumbar supports and bolster systems and adjustable thigh
supports. In addition, the Company incorporates many convenience, comfort and
safety features into its seat designs, including storage armrests, rear seat
fold down panels, integrated restraint systems and child restraint seats. The
Company has recently invested to further upgrade its CAE and CAD/CAM systems,
including three-dimensional color graphics, customer telecommunications and
direct interface with customer CAD systems. Research and development costs
incurred with the development of new products and manufacturing methods (not
including additional research and development costs paid for by the customer)
amounted to approximately $21.9 million, $16.2 million, $18.2 million and $11.4
million for the years ended December 31, 1994 and 1993 and the fiscal years
ended June 30, 1993 and 1992, respectively.
Lear uses its patented SureBond process (the patent for which has
approximately 9 years remaining) in bonding seat cover materials to the foam
pads used in certain of its seats. The SureBond process is used to bond a
pre-shaped cover to the underlying foam to minimize the need for sewing and
achieve new seating shapes, such as concave shapes, which were previously
difficult to manufacture.
The Company, through its wholly-owned subsidiary, Progress
Pattern Corp. ("Progress Pattern"), produces patterns and tooling for use in
the automotive casting industry. Its capabilities include foundry and vacuum
form tooling, porous mold design and lost foam tooling production. The pattern
operation is also integral to the Company's seating design programs, including
independent product design and development, contract design, engineering
services, manufacturing feasibility and engineering cost studies. Progress
Pattern also manufactures production tooling for the Company's plastic and foam
molding operations. In addition to providing support for the Company's
continuing seat design, Progress Pattern provides services to its own
customers, including Ford and General Motors. It produced the casting tooling
for the General Motors Saturn engine.
The Company holds a number of mechanical and design patents
covering its automotive seating products and has numerous applications for
patents currently pending. In addition, the Company holds several trademarks
relating to various manufacturing processes. The Company also licenses its
technology to a number of seating manufacturers.
The Company has and will continue to dedicate resources to
research and development to maintain its position as a leading developer of
technology in the automotive seating industry.
JOINT VENTURES AND MINORITY INTERESTS
Lear conducts a portion of its business through joint ventures in
order to facilitate the exchange of technical information and the establishment
of business relationships with foreign automakers. The joint ventures in which
the Company participates include: (i) General Seating of America, a joint
venture with NHK Spring Co., Ltd. of
10
<PAGE> 13
Japan in which the Company has a 35% interest, which supplies trimmed seating
to SIA (a joint venture between Fuji Heavy Industries (Subaru) and Isuzu) and
(ii) General Seating of Canada Limited, a joint venture with NHK Spring Co.,
Ltd. of Japan in which the Company has a 35% interest, which supplies trimmed
seating from a plant in Woodstock, Ontario to CAMI (a joint venture between
Suzuki and General Motors). In addition, the Company has a 31% interest in
Probel, S.A., a Brazilian automotive seat component and furniture manufacturer,
and a 20% interest in Pacific Trim Corp. Ltd., a Thai manufacturer of
automotive vehicle seat systems and seat covers. In conjunction with the
purchase of the Fiat Seat Business, the Company obtained a 49% interest in
Industrias Cousin Freres, S.L., a Spanish joint venture with Bertrand Faure
S.A. which produces seat components, and a 35% interest in Markol Otomotiv Yan
Sanayi Ve Ticart, a Turkish joint venture which proposes to produce seat
systems for Tofas, a Fiat Auto affiliate, and seat covers for SEPI and SEPI
Sud. As part of the Company's effort to procure business in the Far East, the
Company also holds a 49% interest in Lear Seating Thailand Corporation. See
Note 9, "Investments in Affiliates," to the consolidated financial statements
of the Company included in this Report.
COMPETITION
Lear is one of the two primary suppliers in the outsourced North
American seat systems market. The Company's main independent competitor is
Johnson Controls, Inc., and it competes, to a lesser extent, with Douglas &
Lomason Company and Magna International, Inc. The Company's major independent
competitors in Europe, besides Johnson Controls, Inc., are Bertrand Faure
(headquartered in France) and Keiper Recaro (headquartered in Germany). The
Company also competes with the OEM's in-house seat system suppliers. The
Company competes on the basis of technical expertise, reliability, quality and
price. The Company believes its technical resources, product design
capabilities and customer responsiveness are the key factors that allow it to
compete successfully in the seat systems market.
SEASONALITY
Lear's principal operations are directly related to the
automotive industry. Consequently the Company may experience seasonal
fluctuation to the extent automotive vehicle production slows, such as in the
summer months when plants close for model year changeovers and vacation.
Historically, the Company's sales and operating profit have been the strongest
in the second and fourth calendar quarters. Net sales for the year ended
December 31, 1994 by calendar quarter broke down as follows: first quarter,
22%; second quarter, 26%; third quarter, 22%; and fourth quarter, 30%. See
Note 19, "Quarterly Financial Data," of the notes to the consolidated financial
statements included in this Report.
EMPLOYEES
After giving effect to the FSB acquisition, the Company employs
approximately 6,200 persons in the United States, 10,600 in Mexico, 2,400 in
Canada, 2,000 in Italy, 1,300 in Germany, 1,000 in Sweden, 400 in the United
Kingdom, 80 in Austria and 60 in France. Of these, about 3,700 are salaried
employees and the balance are paid on an hourly basis. Approximately 19,200 of
the Company's employees are members of unions. The Company has collective
bargaining agreements with several unions including the UAW; National
Automobile, Aerospace and Agricultural Implement Workers Union of Canada; the
Textile Workers of Canada; the Confederation of Mexican Workers; the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America; the International Association of Machinists and Aerospace Workers,
the AFL-CIO, and its Local PM 2811 of Detroit and vicinity. Each of the
Company's facilities has a separate contract with the union which represents
the workers employed there, with each such contract having an expiration date
independent of the Company's other labor contracts. The Company has
experienced some labor disputes at its plants, none of which has significantly
disrupted production or had a materially adverse effect on its operations. The
Company has been able to resolve all such labor disputes and believes its
relations with its employees are good.
11
<PAGE> 14
ENVIRONMENTAL
The Company is subject to various laws, regulations and
ordinances which govern activities such as discharges to the air and water, as
well as handling and disposal practices for solid and hazardous wastes and
which impose costs and damages associated with spills, disposal or other
releases of hazardous substances. The Company believes that it is in
substantial compliance with such requirements. Management does not believe
that it will incur compliance costs pursuant to such requirements that would
have a material adverse effect on the Company's consolidated financial position
or future results of operations. See Item 7, "Management's Discussion and
Analysis of Financial Condition and Results of Operations of the Company -
Environmental Matters."
12
<PAGE> 15
ITEM 2 -- PROPERTIES
The Company's operations are conducted through 79 facilities in
17 countries employing approximately 25,000 people worldwide. The Company's
management is headquartered in Southfield, Michigan. The headquarters
building, which accommodates both the main office and a technical center, was
completed in June 1988. Thirty-nine facilities are dedicated to providing seat
systems to nearby assembly plants. The others focus on the production of a
combination of seat systems and other seating products. Substantially all
owned facilities secure borrowings under the Company's various debt agreements.
The Company's facilities are located in appropriately designed
buildings which are kept in good repair with sufficient capacity to handle
present volumes. The Company has designed its facilities to provide for
efficient JIT manufacturing of its products. No facility is materially
underutilized. Management believes substantially all of the Company's property
and equipment is in good condition and that it has sufficient capacity to meet
its current and expected manufacturing and distribution needs. See
"Management's Discussion and Analysis of Financial Condition and Results of
Operations of the Company -- Capital Expenditures."
The following table provides certain information regarding the
Company's 79 operating facilities:
<TABLE>
<CAPTION>
OWNED/ BUILDING LEASE
FACILITY LEASED SQ. FEET FUNCTION EXPIRATION
-------- ------ -------- -------- ----------
<S> <C> <C> <C> <C>
UNITED STATES:
--------------
Southfield, MI L 27,000 engineering offices June 1996
Southfield, MI O 70,000 administrative offices and technical center ---
Detroit, MI O 156,800 manufacture of seat systems ---
Romulus I, MI O 89,600 manufacture of seat systems ---
Romulus II, MI O 96,000 manufacture of seat systems ---
Fenton, MI O 75,800 manufacture of seat systems ---
Morristown, TN O 235,900 manufacture of seat components ---
Lorain, OH L 42,100 manufacture of seat systems July 1998
Mendon, MI O 168,500 manufacture of seat components
and other plastic products ---
Southfield, MI O 65,000 manufacture of seat tooling ---
Grand Rapids, MI (1) 66,560 manufacture of seat frames ---
Southfield, MI O 19,000 product testing facility ---
Louisville, KY L 72,000 manufacture of seat systems January 2000
Janesville, WI O 152,000 manufacture of seat systems ---
Fair Haven, MI L 68,603 manufacture of seat covers July 1995
Flint, MI L 10,083 engineering offices August 1996
Warren, MI L 17,500 engineering offices March 1997
Dearborn, MI L 75,000 engineering offices April 2004
Duncan, SC L 38,926 manufacture of seat systems May 2004
Lordstown, OH O 96,000 manufacture of seat systems ---
Rochester Hills, MI L 101,600 manufacture of seat systems August 1997
Hammond, IN O (2) 111,000 manufacture of seat systems ---
Atlanta, GA O 102,000 manufacture of seat systems ---
Bridgeton, MO L (2) 127,000 manufacture of seat systems July 1998
Wentzville, MO O (2) 42,100 manufacture of seat systems ---
El Paso, TX L 86,000 warehouse May 1997
El Paso, TX L 25,000 warehouse September 1995
CANADA:
-------
Kitchener, Ontario O 343,044 manufacture of seat frames ---
Ajax, Ontario O 120,000 manufacture of seat systems ---
Whitby, Ontario O 187,400 manufacture of seat systems ---
Oakville, Ontario O 90,000 manufacture of seat systems ---
St. Thomas, Ontario L 100,000 manufacture of seat systems January 2005
</TABLE>
13
<PAGE> 16
<TABLE>
<CAPTION>
OWNED/ BUILDING LEASE
FACILITY LEASED SQ. FEET FUNCTION EXPIRATION
-------- ------ -------- -------- ----------
<S> <C> <C> <C> <C>
EUROPE:
-------
Meaux, France O 48,300 manufacture of seat components ---
Paris, France L 2,500 administrative offices January 1995
Blere, France O 14,300 manufacture of wire components ---
Rietberg, Germany O 193,143 manufacture of seat components ---
Rietberg, Germany O 17,625 technical center ---
Quakenbruck, Germany O 139,500 manufacture of seat components ---
Gustavsburg, Germany L 177,000 manufacture of seat systems June 2002
Eisenach, Germany O 77,500 manufacture of seat systems ---
Munich, Germany L 6,456 engineering offices October 2000
Koflach, Austria L 63,307 manufacture of seat systems January 1995
Trollhattan, Sweden L 135,102 manufacture of seat systems December 1996
Bengtsfors, Sweden L 246,726 manufacture of seat systems September 2007
Coventry, England O 22,000 manufacture of seat systems ---
Orbassano, Italy L (5) 200,209 manufacture of seat systems April 1998
Grugliasco, Italy O (5) 139,931 manufacture of seat frames ---
Bruino, Italy L (5) 102,257 manufacture of seat covers July 1998
Novara, Italy O (5) 129,167 manufacture of seat systems and seat frames ---
Pozzilli, Italy O (5) 161,459 manufacture of seat frames and seat covers ---
Frosinone, Italy O (5) 107,639 manufacture of seat systems ---
Caivano, Italy L (5) 118,404 manufacture of seat systems March 1997
Melfi, Italy O (5) 204,912 manufacture of seat systems ---
Myslowice, Poland L (5) 13,988 manufacture of seat frames May 1995
Myslowice, Poland L (5) 6,994 administrative offices May 1995
Tychy, Poland (in Fiat Plant) L (5) 81,776 manufacture of seat systems November 1999
MEXICO:
-------
Saltillo I L 91,025 manufacture of seat covers January 1998
Saltillo II L (2) 43,000 manufacture of seat systems April 2000
Tlahuac O 339,000 manufacture of seat components ---
Tlahuac L 8,900 warehouse June 1997
Naucalpan L 66,000 manufacture of seat systems July 1996
Cuautitlan L 75,000 manufacture of seat systems (3)
Puebla L 81,000 manufacture of seat systems (3)
Hermosillo O 121,000 manufacture of seat systems ---
Rio Bravo O 202,700 manufacture of seat covers ---
San Lorenzo O 287,000 manufacture of seat covers ---
La Cuesta O 392,500 manufacture of seat covers ---
AUSTRALIA:
----------
Adelaide 42,000 manufacture of seat systems June 2005
Melbourne L 2,500 administrative offices April 1998
AFFILIATES OR MINORITY INTERESTS:
---------------------------------
Woodstock, Ontario, Canada O (4) 120,000 manufacture of seat systems ---
Frankfort, Indiana O (4) 82,000 manufacture of seat systems ---
Khorat, Thailand L (4) 30,000 manufacture of seat covers and seat systems ---
Jakarta, Indonesia L (4) 45,000 manufacture of seat systems ---
Pamploma, Spain O (4) 87,000 manufacture of seat components ---
Bursa, Turkey L (4) 2,500 administrative offices ---
Buenos Aires, Argentina L (4) 124,700 manufacture of seat systems ---
Suzano, Sao Paulo, Brazil O (4) 344,448 manufacture of seat components ---
Ipiranga, Sao Paulo, Brazil L (4) 355,212 manufacture of seat components ---
Jaguare, Sao Paulo, Brazil L (4) 96,876 manufacture of seat components ---
</TABLE>
--------------------
(1) This facility is operated for General Motors
(2) Facility currently under construction.
(3) Currently leased on a month-to-month basis pending agreement on a
longer lease term.
(4) Owned or leased by affiliates or minority interests of the
Company.
(5) Acquired as part of FSB acquisition.
14
<PAGE> 17
ITEM 3 - LEGAL PROCEEDINGS
Management of the Company does not believe that any of the
litigation in which the Company is currently engaged, either individually or in
the aggregate, will have a material effect on the Company's consolidated
financial position or future results of operations.
The Company has been identified as a potentially responsible
party ("PRP") under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA" or "Superfund"), for the cleanup of
contamination from hazardous substances at three Superfund sites where
liability has not been determined. The Company has also been identified as a
PRP at two additional sites. Management believes that the Company is, or may
be, responsible for less than one percent, if any, of total costs at the three
Superfund sites. Expected liability at the two additional sites is not
material. The Company has set aside reserves which management believes are
adequate to cover any such liabilities. Management believes that such matters
will not result in liabilities that will have a material adverse effect on the
Company's consolidated financial position or future results of operations.
ITEM 4 - SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during
the fourth quarter of 1994.
15
<PAGE> 18
PART II
ITEM 5 - MARKET FOR THE COMPANY'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS
The Company's Common Stock is listed on the New York Stock
Exchange under the symbol "LEA." The Transfer Agent and Registrar for the
Company's Common Stock is The Bank of New York, located in New York, New York.
On February 28, 1995, there were 252 holders of record of the Company's Common
Stock.
To date, the Company has never paid a cash dividend on its Common
Stock. Any payment of dividends in the future is dependent upon the financial
condition, capital requirements, earnings of the Company and other factors.
However, the Company currently intends to retain all future earnings, if any,
to fund the development and growth of its business and, therefore, does not
anticipate paying any cash dividends in the foreseeable future. Also, the
Company is subject to certain contractual restrictions on the payment of
dividends. See Note 11, "Long-Term Debt," of the notes to the consolidated
financial statements included in this Report for information concerning such
restrictions.
The following table sets forth the high and low sales prices per
share of Common Stock, as reported by the New York Stock Exchange, for the
periods indicated:
<TABLE>
<CAPTION>
Price Range of
Year Ended December 31, 1994: Common Stock
---------------------------- ------------
High Low
------ ------
<S> <C> <C>
1st Quarter N/A N/A
2nd Quarter 20 16 3/4
3rd Quarter 19 1/4 16 1/2
4th Quarter 21 5/8 17 1/2
</TABLE>
16
<PAGE> 19
ITEM 6 -- SELECTED FINANCIAL DATA
The following income statement and balance sheet data were
derived from the consolidated financial statements of the Company. The
consolidated financial statements of the Company for the years ended December
31, 1994 and 1993, for the six months ended December 31, 1993 and for the years
ended June 30, 1993, 1992, 1991 and 1990 have been audited by Arthur Andersen
LLP. In February 1994 the Company changed its fiscal year end from June 30 to
December 31 effective December 31, 1994. The selected financial data below
should be read in conjunction with the consolidated financial statements of the
Company and the notes thereto and "Management's Discussion and Analysis of
Financial Condition and Results of Operations of the Company" included in this
Report.
<TABLE>
<CAPTION>
YEAR YEAR SIX MONTHS YEAR YEAR YEAR YEAR
ENDED ENDED ENDED ENDED ENDED ENDED ENDED
DECEMBER 31, DECEMBER 31, DECEMBER 31, JUNE 30, JUNE 30, JUNE 30, JUNE 30,
1994 (1) 1993 (1) 1993 (1) 1993 1992 1991 1990
----------- ----------- ----------- ----------- ----------- ----------- -----------
(DOLLARS IN MILLIONS (2))
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales $ 3,147.5 $ 1,950.3 $ 1,005.2 $ 1,756.5 $ 1,422.7 $ 1,085.3 $ 1,067.9
Gross profit 263.6 170.2 72.2 152.5 115.6 101.4 104.7
Selling, general and
administrative
expenses 82.6 62.7 27.7 61.9 50.1 41.6 28.2
Incentive stock and other
compensation expenses (3) -- 18.0 18.0 -- -- 1.3 1.4
Amortization 11.4 9.9 4.7 9.5 8.7 13.8 13.8
----------- ----------- ----------- ----------- ----------- ----------- -----------
Operating income 169.6 79.6 21.8 81.1 56.8 44.7 61.3
Interest expense, net 46.7 45.6 24.8 47.8 55.2 61.7 61.2
Other expense, net (4) 8.1 9.2 6.6 5.4 5.8 2.2 4.1
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income (loss) before income
taxes and extraordinary
items 114.8 24.8 (9.6) 27.9 (4.2) (19.2) (4.0)
Income taxes 55.0 26.9 13.4 17.8 12.9 14.0 16.6
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income (loss) before
extraordinary items 59.8 (2.1) (23.0) 10.1 (17.1) (33.2) (20.6)
Extraordinary items (5) -- (11.7) (11.7) -- (5.1) -- --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net income (loss) $ 59.8 $ (13.8) $ (34.7) $ 10.1 $ (22.2) $ (33.2) $ (20.6)
=========== =========== =========== =========== =========== =========== ===========
Net income (loss) per share
before extraordinary items $ 1.26 $ (.06) $ (.65) $ .25 $ (.62) $ (2.01) $ (1.25)
Net income (loss) per share $ 1.26 $ (.39) $ (.98) $ .25 $ (.80) $ (2.01) $ (1.25)
Weighted average shares
outstanding 47,438,477 35,500,014 35,500,014 40,049,064 27,768,312 16,493,499 16,500,000
BALANCE SHEET DATA:
Current assets $ 818.3 $ 433.6 $ 325.2 $ 282.9 $ 213.8 $ 223.2
Total assets 1,715.1 1,114.3 820.2 799.9 729.7 747.6
Current liabilities 981.2 505.8 375.0 344.2 287.1 254.5
Long-term debt 418.7 498.3 321.1 348.3 386.7 402.8
Common stock subject to
limited redemption rights,
net -- 12.4 3.9 3.5 1.8 1.8
Stockholders' equity 213.6 43.2 75.1 49.4 4.4 35.3
OTHER DATA:
EBITDA (6) $ 225.7 $ 122.2 $ 121.8 $ 91.8 $ 81.4 $ 94.3
Capital expenditures $ 103.1 $ 45.9 $ 31.6 $ 27.9 $ 20.9 $ 14.9
Number of facilities (7) 79 61 48 45 40 33
North American Content per
Vehicle (8) $ 169 $ 112 $ 98 $ 94 $ 84 $ 77
North American vehicle
production
(in millions) (9) 15.2 13.7 13.6 12.2 11.2 12.4
</TABLE>
------------------
(1) On July 1, 1993, the Company adopted SFAS 106 (as defined herein). As
a result, the year and six months ended December 31, 1993 represent the
first periods during which the Company began to incur additional expense
associated with the adoption of SFAS 106. The additional expense for
each of these periods was $3.3 million. The additional expense in 1994
was $7.3 million.
(2) Except per share data and North American Content per Vehicle.
(3) Includes a one-time charge of $18.0 million, of which $14.5 million is
non-cash, for the year and six months ended December 31, 1993 for
incentive stock and other compensation expense (see Note 16 "Stock
Options, Warrants and Common Stock Subject to Redemption" in the
consolidated financial statements included elsewhere in this Report).
(4) Consists of foreign currency exchange gain or loss, minority interest in
net income of subsidiaries, equity (income) loss of affiliates, state
and local taxes and other expense.
(5) The extraordinary items resulted from the prepayment of debt.
(6) "EBITDA" is operating income plus depreciation and amortization. EBITDA
does not represent and should not be considered as an alternative to net
income or cash flows from operations as determined by generally accepted
accounting principles.
(7) Includes facilities operated by the Company's less than majority-owned
affiliates and facilities under construction.
(8) "North American Content per Vehicle" is the Company's net sales in North
America divided by total North American vehicle production.
(9) "North American vehicle production" includes car and light truck
production in the United States, Canada and Mexico estimated from
industry sources.
17
<PAGE> 20
ITEM 7 - MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS OF THE COMPANY
RESULTS OF OPERATIONS
Year Ended December 31, 1994 Compared With Year Ended December 31, 1993.
Net sales of $3,147.5 million in the year ended December 31, 1994
represents the thirteenth consecutive year of record sales and surpassed sales
of $1,950.3 million in the year ended December 31, 1993 by $1,197.2 million or
61.4%. Sales in 1994 benefited from internal growth from new programs and
increased seat content per vehicle, higher automotive production in the United
States and Europe and the acquisition of the North American seat and seat cover
business (NAB) from Ford Motor Company on November 1, 1993 which accounted for
$421 million of the increase.
Gross profit (net sales less cost of sales) and gross margin
(gross profit as a percentage of net sales) were $263.6 million and 8.4% in the
year ended December 31, 1994 as compared to $170.2 million and 8.7% in the year
ended December 31, 1993. Gross profit in fiscal 1994 surpassed prior year due
to the benefit of higher sales volume including the effect of the NAB
acquisition and the Company's cost reduction programs. Partially offsetting
the increase in gross profit was $23.1 million of expense for engineering and
preproduction costs for new facilities in the United States, Canada and Europe,
lower margin contribution in Mexico and the $3.9 million increase in
postretirement health care expenses (SFAS 106).
Selling, general and administrative expenses as a percentage of
net sales declined to 2.6% for the year ended December 31, 1994 as compared to
3.2% in the prior year. The increase in actual expenditures was largely the
result of administration support expenses and research and development costs
associated with the expansion of domestic and foreign business and expenses
related to new business opportunities.
Operating income and operating margin (operating income as a
percentage of net sales) were $169.6 million and 5.4% in the fiscal year ended
December 31, 1994 and $79.6 million and 4.1% in the year ended December 31,
1993. The 113% increase in operating income was attributable to the benefits
of higher sales volume, including the effect of the NAB acquisition,
non-recurring incentive stock and other compensation expense of $18 million in
1993 and the Company's cost reduction programs. Partially offsetting the
increase in operating income were new facility and engineering costs for future
seat programs, reduced margins in Mexico and SFAS 106. Non-cash depreciation
and amortization charges were $56.1 million and $42.6 million for the years
ended December 31, 1994 and 1993.
Other expense for the year ended December 31, 1994, including
state and local taxes, foreign exchange gains and losses, minority interests
and equity in income of affiliates, decreased in comparison to the prior year
as the non-recurring write-off of equipment associated with a discontinued
program in Germany and non-seating related assets in the United States, along
with a foreign exchange gain, offset state and local tax expense associated
with the NAB acquisition.
Interest expense in fiscal 1994 increased in relation to the year
ended December 31, 1993 as additional debt incurred to finance the NAB
acquisition and higher short-term interest expense in Europe offset the
benefits derived from the refinancing of subordinated debt at a lower interest
rate and the Company's equity offering in April, 1994.
Net income for the year ended December 31, 1994 was $59.8
million, or $1.26 per share, as compared to a net loss of $13.8 million, or
$.39 per share, realized in the year ended December 31, 1993. The net income
of $59.8 million in fiscal 1994 reflects a $55.0 million provision for national
income taxes of which $26.0 million relates to foreign operations. Further
contributing to the improvement in 1994 net income was the extraordinary
expense in 1993 of $11.7 million for the early extinguishment of debt.
18
<PAGE> 21
The following chart shows operating results of the Company by principal
geographic area:
GEOGRAPHIC OPERATING RESULTS
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS ENDED YEAR ENDED
------------------------------- --------------------------- -------------------------
DECEMBER 31, DECEMBER 31, DECEMBER 31, JANUARY 2, JUNE 30, JUNE 30,
1994 1993 1993 1993 1993 1992
---- ---- ---- ---- ---- ----
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C>
NET SALES:
United States $ 1,805.3 $ 981.2 $ 551.2 $ 335.7 $ 765.7 $ 597.1
Canada 573.4 375.8 168.6 164.8 372.0 403.3
Europe 572.5 403.8 189.3 218.0 432.5 268.2
Mexico 196.3 189.5 96.1 92.9 186.3 154.1
--------- --------- --------- -------- --------- ---------
Net Sales $ 3,147.5 $ 1,950.3 $ 1,005.2 $ 811.4 $ 1,756.5 $ 1,422.7
========= ========= ========= ======== ========= =========
OPERATING INCOME:
United States $ 109.3 $ 61.3 $ 27.1 $ 17.6 $ 51.8 $ 32.0
Canada 46.3 25.6 12.1 1.8 15.3 14.7
Europe 4.4 (9.6) (7.6) (1.9) (3.9) 3.0
Mexico 10.2 20.3 8.2 5.8 17.9 7.1
Unallocated
and other (.6) (18.0) (18.0) - - -
--------- --------- --------- -------- --------- ---------
Operating Income $ 169.6 $ 79.6 $ 21.8 $ 23.3 $ 81.1 $ 56.8
========= ========= ========= ======== ========= =========
</TABLE>
United States Operations
Net sales in the United States increased by 84.0% from $981.2
million in the year ended December 31, 1993 to $1,805.3 million for the current
fiscal year. Sales for the year ended December 31, 1994 benefited from the
full year contribution of the NAB acquisition, vehicle production increases on
mature seating programs, incremental volume on new Chrysler truck and Ford
passenger car programs and sales generated by a lead vendor program under which
the Company assumed management of components for a seat program with Ford.
Operating income and operating margin were $109.3 million and
6.0% in the fiscal year ended December 31, 1994 and $61.3 million and 6.2% in
the year ended December 31, 1993. Operating income and operating margin in
fiscal 1994 as compared to the prior year benefited from the NAB acquisition,
the overall increase in vehicle production and cost reduction programs which
offset new program costs for new facilities, administrative expenses associated
with the expansion of business and increased research and development expenses.
Canadian Operations
Net sales in Canada increased by 52.6% to $573.4 million in the
year ended December 31, 1994 compared to $375.8 million in the year ended
December 31, 1993. Sales in 1994 reflect the benefit of a new Ford truck
program introduced in February 1994, the relocation of a NAB passenger car
program from Mexico and slightly higher volumes on mature seat programs which
offset downtime associated with a General Motors plant conversion for a
replacement mid-size passenger car. Initial production of the replacement
program began in February 1994 with attainment of targeted production levels in
the second quarter of 1994.
Operating income and operating margin in Canada were $46.3
million and 8.1% in the year ended December 31, 1994 and $25.6 million and 6.8%
in the year ended December 31, 1993. The growth in operating income and
operating margin was due to the benefits derived from higher sales volume on
mature seating programs, cost reduction programs, and improved operating
performance at start-up seat facilities.
19
<PAGE> 22
European Operations
Net sales in Europe increased by 41.8% to $572.5 million for the
fiscal year ended December 31, 1994 compared to $403.8 million for 1993. The
sales increase was due primarily to the addition of new seat programs in
Germany and England and vehicle production increases on established programs in
Germany, Sweden and Austria.
Operating income in Europe was $4.4 million in the fiscal year
ended December 31, 1994 as compared to an operating loss of $9.6 million
sustained in the year ended December 31, 1993. Operating income in fiscal year
1994 as compared to the prior year benefited from the higher sales levels and
cost reduction programs at existing seat and seat component facilities.
Partially offsetting the increase in operating income were incremental costs
associated with the start-up of a new seat facility in England and the
introduction of a replacement component program within an established facility
in Germany.
Mexican Operations
Net sales in Mexico were $196.3 million in the year ended
December 31, 1994 and $189.5 million in the year ended December 31, 1993.
Sales for the year ended December 31, 1994 surpassed the comparable period in
the prior year due to new Chrysler truck and Ford passenger car seat programs
and incremental volume on mature Ford programs. Partially offsetting the
increase in net sales was the product phase out of a mature truck program and
participation in customer cost reduction programs.
Operating income and operating margin in Mexico were $10.2
million and 5.2% in the fiscal year ended December 31, 1994 and $20.3 million
and 10.7% in the prior year. Operating income and operating margin in 1994
declined in relation to the prior year as a result of the Company's
participation in customer cost reduction programs and costs associated with the
introduction of replacement products at new and established facilities.
Six Months Ended December 31, 1993 Compared With Six Months Ended January 2,
1993.
Net sales of $1,005.2 million in the six months ended December
31, 1993 surpassed the six months ended January 2, 1993 by $193.8 million or
23.9% despite the effect of depressed automotive vehicle sales on existing
seating programs in Europe. Net sales benefited from the purchase of NAB on
November 1, 1993, new business in the United States and Europe and incremental
volume on established domestic seating programs.
Net sales in the United States of $551.2 million in the six
months ended December 31, 1993 increased by $215.5 million or 64.2% from the
comparable period in the prior year, reflecting $86.0 million in sales from the
NAB acquisition, improved domestic car and truck production on established
seating programs, incremental sales from new seat programs and sales generated
by a new lead vendor program under which the Company assumed management of
components for a seat program with Ford.
Net sales in Canada for the six months ended December 31, 1993 of
$168.6 million exceeded sales during the comparable period in the prior year by
$3.8 million or 2.3%, reflecting modest vehicle production increases on
established General Motors seat programs. Net sales were adversely impacted by
downtime associated with a General Motors plant conversion necessary for a
replacement mid-size passenger car model introduction. Production for that
replacement program began in the first quarter of 1994.
Net sales in Europe of $189.3 million in the six months ended
December 31, 1993 declined in relation to the six months ended January 2, 1993
by $28.7 million or 13.2% due to reduced vehicle production requirements for
carryover seating programs in Sweden and Finland and unfavorable exchange rate
fluctuations. Partially offsetting the decrease in sales was additional volume
on established seating programs in Germany and Austria.
Net sales in Mexico increased $3.2 million to $96.1 million in
the six month period ended December 31, 1993 compared to the six month period
ended January 2, 1993 due to increased production activity on existing
Volkswagen and Chrysler programs.
20
<PAGE> 23
Gross profit and gross margin were $72.2 million and 7.2% for the
six month period ended December 31, 1993 as compared to $54.5 million and 6.7%
for the prior comparable period. Gross profit and gross margin in the six
month period ended December 31, 1993 benefited from the overall increase in
North American automotive production, productivity improvement programs,
favorable Canadian exchange rate fluctuations and the NAB acquisition.
Partially offsetting the increase in gross profit were reduced utilization in
Europe, facility pre-production costs for seating programs in Canada, England
and Germany, the devaluation of the Swedish krona and severance costs
associated with the downsizing of German component operations. The adoption of
SFAS 106 had an unfavorable impact on gross profit in the six month period
ended December 31, 1993 of $2.9 million.
Selling, general and administrative expenses decreased to 2.8% of
net sales for the six months ended December 31, 1993 as compared to 3.3% for
the comparable period in the prior year. While expenditures for the more
recent period increased 3.1%, or $0.8 million, over the earlier period, an
increase in sales led to an overall decrease in these expenses as a percentage
of sales. Primarily contributing to the increase in selling, general and
administrative expenses in the six month period ended December 31, 1993 were
design, development and pre-production costs relating to a BMW seating program.
Operating income and operating margin, before the one-time charge
of $18.0 million for incentive stock and other compensation expense, were $39.8
million and 4.0% for the six months ended December 31, 1993 compared to $23.3
million and 2.9% during the comparable period in the prior year. The increase
in operating income was due largely to an overall increase in net sales in
North America, including an increase in net sales as a result of the NAB
acquisition and productivity improvements, which offset lower margin
contribution in Europe and the adoption of SFAS 106. Non-cash depreciation and
amortization charges were $21.9 million and $19.9 million for the six months
ended December 31, 1993 and January 2, 1993, respectively.
Interest expense for the six month period ended December 31, 1993
decreased by $2.2 million from the comparable period in the prior year
primarily due to the refinancing of certain subordinated and senior debt at
lower interest rates, lower European interest rates, reduced borrowings in
Canada and Europe and reduced amortization of financing fees due to the early
extinguishment of debt. See Note 4, "1994 Refinancing" to the Company's
consolidated financial statements.
Other expense for the six months ended December 31, 1993,
including state and local taxes, foreign exchange loss, minority interest in
income of subsidiaries and equity in income of affiliates, increased in
comparison to the prior year due to the $4.0 million write-off of equipment
associated with a discontinued Volkswagen program in Germany and non-seating
related assets in the United States.
A loss of $5.0 million, before extraordinary items and the
one-time charge of $18.0 million for incentive stock and other compensation
expense, was recognized for the six months ended December 31, 1993 as compared
to a net loss of $10.8 million in the prior comparable period. The net loss in
the six months ended December 31, 1993 reflects a $13.5 million provision for
national income taxes of which approximately $8.7 million relates to foreign
operations. For the six month period ended December 31, 1993, the Company
recognized a net loss of $34.7 million after giving effect to an extraordinary
item for the early extinguishment of debt of $11.7 million and one-time charge
of $18.0 million for incentive stock and other compensation expense. The
extraordinary item was comprised of unamortized deferred financing fees expense
and a call premium resulting from the redemption of the 14% Subordinated
Debentures, net of related tax effects.
Fiscal Year Ended June 30, 1993 Compared With Fiscal Year Ended June 30, 1992
Net sales of $1,756.5 million in the fiscal year ended June 30,
1993 increased $333.8 million or 23.5% over the fiscal year ended June 30,
1992. The increase was due to new business in the United States and Europe,
full year production of a second facility in Sweden for Volvo, of which the
Company assumed control in January 1992, and incremental volume on domestic and
Mexican programs.
Gross profit and gross margin were $152.5 million and 8.7% in the
fiscal year ended June 30, 1993 and $115.6 million and 8.1% in the fiscal year
ended June 30, 1992. Gross profit increased due to the benefit of incremental
volume, including production of new business programs, productivity improvement
programs and improved operating performance at new
21
<PAGE> 24
facilities in North America, Europe and Mexico. Partially offsetting
the increase in gross profit were participation in customer cost reduction
programs, plant shutdown costs at a dedicated facility in Finland, nonrecurring
favorable foreign exchange effect on sales and a retroactive price increase
recognized in the first and second quarters of the fiscal year ended June 30,
1992.
Selling, general and administrative expenses as a percentage of
net sales remained unchanged at 3.5% in the fiscal year ended June 30, 1993 as
compared to the prior fiscal year. The increase in actual expenses was largely
the result of increased research and development cost for future seating
programs in the United States, Canada and Europe. Further contributing to the
increase in expenses were administrative support expenses for Mexican
operations and costs associated with the establishment of customer business
units in North America.
Operating income and operating margin were $81.1 million and 4.6%
in the fiscal year ended June 30, 1993, $56.8 million and 4.0% in the fiscal
year ended June 30, 1992. The growth in operating income was due to
incremental volume on established seating programs and improved performance at
new seat and seat cover facilities. Partially offsetting the increase in
operating income were pre-production and facility costs for programs to be
introduced after June 30, 1993, plant shutdown costs and nonrecurring prior
fiscal year adjustments noted above. Non-cash depreciation and amortization
charges were $40.7 million in the fiscal year ended June 30, 1993 and $35.0
million in the fiscal year ended June 30, 1992.
Interest expense in the fiscal year ended June 30, 1993 declined
in relation to the fiscal year ended June 30, 1992 due to lower interest rates
on bank debt, refinancing of certain subordinated debt at a lower interest rate
and the application of funds received from the capital infusions initiated on
September 27, 1991 and July 30, 1992.
Other expense, including state and local taxes, foreign exchange
gain or loss, minority interests and equity in income of affiliates, decreased
in the fiscal year ended June 30, 1993 in comparison to the fiscal year ended
June 30, 1992 as reduced income derived from joint ventures accounted for under
the equity method coupled with the Company's write-off of its $1.7 million
investment in Probel S.A., a Brazilian company, were more than offset by the
expense portion of nonrecurring capitalization and related costs of $3.2
million associated with the capital infusion of September 27, 1991.
Net income of $10.1 million was realized in the fiscal year ended
June 30, 1993 as compared to a net loss of $22.2 million in the fiscal year
ended June 30, 1992. The net income of $10.1 million in the fiscal year ended
June 30, 1993 reflects an $11.9 million provision for foreign national income
taxes as compared to an $8.2 million provision in the fiscal year ended June
30, 1992.
United States Operations
Net sales in the United States were $765.7 million and $597.1
million in the fiscal years ended June 30, 1993 and 1992, respectively. Net
sales surpassed the prior year due to improved domestic car and truck
production on established seating programs in the second half of the fiscal
year ended June 30, 1993 coupled with a new Ford passenger car program and the
attainment of targeted production levels for a General Motors truck program
introduced in the fall of 1991.
Operating income and operating margin were $51.8 million and 6.8%
in the fiscal year ended June 30, 1993 and $32.0 million and 5.4% in the fiscal
year ended June 30, 1992. The growth in operating income and operating margin
was due to the benefits derived from incremental volume on established and new
seating programs, productivity improvements and improved operating performance
at new seat cover facilities. Partially offsetting the increase in operating
income were participation in customer cost reduction programs and preproduction
costs associated with a new seating program.
Canadian Operations
Net sales from Canadian operations were $372.0 million in the
fiscal year ended June 30, 1993 and $403.4 million in the fiscal year ended
June 30, 1992. Net sales in the fiscal year ended June 30, 1993 were adversely
impacted by market demand and vehicle inventories as General Motors announced
temporary plant shutdowns and production adjustments on existing passenger car
and light truck programs.
Operating income and operating margin were $15.3 million and 4.1%
in the fiscal year ended June 30, 1993 and $14.7 million and 3.6% in the fiscal
year ended June 30, 1992. Operating income in the fiscal year ended June 30,
1993 benefited
22
<PAGE> 25
from productivity improvement programs, favorable exchange rate
fluctuations and improved operating performance at a new seat facility.
Partially offsetting the increase in operating income were reduced vehicle
production schedules on existing programs and engineering costs associated with
a future Ford seating program.
European Operations
Net sales in Europe were $432.5 million in the fiscal year ended
June 30, 1993 and $268.2 million in the fiscal year ended June 30, 1992. Net
sales exceeded the prior year due to the addition of new operations in Germany
and Austria, the full year impact resulting from the acquisition of facilities
in Sweden and Finland and incremental volume on carryover programs in Germany.
Partially offsetting the increase in net sales were reduced vehicle production
schedules for established seating programs in Sweden and unfavorable exchange
rate fluctuations.
The Company's European operations sustained an operating loss of
$3.9 million in the fiscal year ended June 30, 1993 as compared to operating
income of $3.0 million in the fiscal year ended June 30, 1992. The $6.9
million unfavorable variance in the fiscal year ended June 30, 1993 was the
result of lower margin products introduced at an established facility in
Germany, technical and administration costs required to support European
manufacturing facilities, a retroactive price increase recognized in the first
half of the fiscal year ended June 30, 1992 and the devaluation of the Swedish
krona, which was partially offset by the favorable impact of foreign exchange
rates. Also contributing to the decrease in operating income were reserves
established by the Company for the anticipated plant shutdown costs at a
dedicated facility in Finland due to the customer transfer of production to
alternative locations in Europe. Partially offsetting the decrease in
operating income was the overall growth in sales activity, including production
from new programs in Germany and Austria and to the full year contribution of
facilities in Sweden and Finland of which the Company assumed control in the
fiscal year ended June 30, 1992.
Mexican Operations
Net sales in Mexico were $186.3 million in the fiscal year ended
June 30, 1993 and $154.1 million in the fiscal year ended June 30, 1992. Net
sales increased due to increased production activity on established General
Motors, Ford, Volkswagen and Chrysler programs.
Operating income and operating margin in Mexico were $17.9
million and 9.6% in the fiscal year ended June 30, 1993 and $7.1 million and
4.7% in the fiscal year ended June 30, 1992. The increase in operating income
and operating margin in the fiscal year ended June 30, 1993 as compared to the
prior fiscal year was due to the benefit of additional sales, productivity
improvement programs and improved manufacturing performance at a seat cover
facility.
LIQUIDITY AND FINANCIAL CONDITION
On November 29, 1994, the Company amended and restated its
Amended and Restated Credit Agreement (as amended and restated, the "Credit
Agreement"), which increased the Company's total availability to $500.0 million
from $425.0 million, reduced the Company's bank borrowing costs by
approximately 25 basis points and enabled the Company to finance a portion of
the FSB acquisition. As of December 31, 1994 the Company had $183.4 million
outstanding under the Credit Agreement ($61.5 million of which was outstanding
under letters of credit), resulting in $316.6 million unused and available. In
addition, the Company had $28.7 million of long-term debt outstanding with
various governmental authorities and banks. As of December 31, 1994, the
Company had $32.0 million in net cash and cash equivalents.
Amounts available under the Credit Agreement will be reduced by
$58.75 million every six months beginning November 30, 1997, and the Credit
Agreement will expire on November 30, 1999. Excluding amounts outstanding
under the Credit Agreement which will be due upon the expiration of the Credit
Agreement, the Company's scheduled principal payments on long-term debt are
$1.8 million in 1995, $1.9 million for each of the next three calendar years
and $1.4 million in 1999.
Net cash provided by operating activities increased to $155.7
million in the year ended December 31, 1994, compared to $113.3 million for the
same period in 1993 primarily as a result of higher operating earnings. The
net change in working capital, while slightly less favorable than in 1993,
contributed $30.4 million to net cash.
23
<PAGE> 26
The net change in working capital declined from a source of $58.4
million in 1993 to a source of $30.4 million as a result of higher reimbursable
pre-production development and production tooling attributable to 1994 and 1995
new programs. Increases in receivable, inventory and payable levels were
consistent with the 61.4% increase in net sales. As a result of improved asset
management, receivable and inventory levels actually decreased as a percent of
net sales in the year ended December 31, 1994.
Net cash used by investing activities was $195.6 and $214.8
million for years ended December 31, 1994 and 1993, respectively. As discussed
in Notes 7 and 8 of the Notes to Consolidated Financial Statements, the Company
acquired the Fiat Seat Business in December 1994 for $88.0 million cash plus
assumed liabilities and the NAB acquisition in November 1993 for $172.1 million
(including fees and expenses).
The Company's total debt as a percentage of total capitalization
decreased to 70% at December 31, 1994 from 91% at December 31, 1993. On April
13, 1994, the Company received net proceeds of $103.6 million from the initial
public offering of its common stock. These proceeds were used to reduce the
amount outstanding under the Credit Agreement. As a result, net cash provided
by financing activities decreased to $17.6 million in calendar 1994 from $127.5
million in 1993. The NAB acquisition in November 1993 and the FSB acquisition
in December 1994 were both financed with borrowings under the Credit Agreement.
In February 1994, the Company took advantage of the favorable
interest rate environment by refinancing $135.0 million in aggregate principal
amount of its 14% Subordinated Debentures due 2000 by issuing $145.0 million
aggregate principal amount of 8 1/4% Subordinated Notes due 2002. The
additional proceeds were used to pay a 5.4% call premium and a portion of the
accrued interest due on the redemption of the 14% Subordinated Debentures.
CAPITAL EXPENDITURES
During the fiscal year ending December 31, 1994, capital
expenditures aggregated approximately $103.1 million, of which approximately
$61.8 million related to the addition of new facilities and other expenditures
for new programs, with the remainder spent for increased capacity at existing
facilities and ongoing maintenance requirements. For the fiscal year ended
June 30, 1993 and 1992, capital expenditures of the Company were $31.6 million
and $27.9 million, respectively. The Company estimates that it spent, in the
aggregate, $15.0 million and $10.0 million in the fiscal years ended June 30,
1993 and 1992, respectively, for equipment replacement and refurbishment. For
the six months ended December 31, 1993, capital expenditures of the Company
were $29.0 million. For 1995, the Company anticipates capital expenditures of
approximately $95.0 million. Approximately $50.0 million is designated for new
programs and facilities, replacement programs and investment in the Company's
worldwide engineering and product testing capabilities.
During the years ended December 31, 1994 and 1993 and the years
ended June 30, 1993 and 1992, cash generated from operations and funds
available under the Credit Agreement were sufficient to meet the Company's debt
service and capital expenditure requirements. The Company believes that cash
flows from operations and funds available from existing credit facilities
(principally the Credit Agreement) will be sufficient to meet its future debt
service obligations, projected capital expenditures and working capital
requirements.
ENVIRONMENTAL MATTERS
The Company is subject to local, state, federal and foreign laws,
regulations and ordinances (i) which govern activities or operations that may
have adverse environmental effects and (ii) that impose liability for the costs
of cleaning up certain damages resulting from sites of past spills, disposal or
other releases of hazardous substances. The Company currently is engaged in
the cleanup of hazardous substances at certain sites owned, leased or operated
by the Company, including soil and groundwater cleanup at its facility in
Mendon, Michigan. Management believes that the Company will not incur
compliance costs or cleanup cost at its facilities with known contamination
that would have a material adverse effect on the Company's consolidated
financial position or future results of operations.
The Company has been identified as a potentially responsible
party ("PRP") under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA" or "Superfund"), for the cleanup of
contamination from hazardous substances at three Superfund sites where
liability has not been completely determined. The
24
<PAGE> 27
Company has also been identified as a PRP at two additional sites. Management
believes that the Company is, or may be, responsible for less than one percent,
if any, of the total costs at the three Superfund sites. Expected liability at
the two additional sites is not material.
INFLATION AND ACCOUNTING POLICIES
Lear's contracts with its major customers generally provide for
an annual productivity price reduction and provide for the recovery of
increases in material and labor costs in some contracts. Cost reduction
through design changes, increased productivity and similar programs with the
Company's suppliers generally have offset changes in selling prices. The
Company's cost structure is comprised of a high percentage of variable costs.
The Company believes that this structure provides it with additional
flexibility during economic cycles.
During December 1994, the Mexican peso experienced a devaluation
of approximately 35%. Because the Company consolidates its Mexican subsidiary
as of the end of November, the effects of this devaluation are not included in
the Company's consolidated financial statements. The devaluation is expected
to result in a decrease in stockholders' equity of approximately $10.4 million
based on exchange rates at December 31, 1994. The effect on the results of
operations is not expected to be material.
In November 1992, the Financial Accounting Standards Board issued
SFAS 112, "Employers Accounting for Post-Employment Benefits." This statement
requires that employers accrue the cost of post-employment benefits during the
employees' active service. The Company adopted this statement effective
January 1, 1994. The adoption of this statement did not have a material effect
on the Company's financial position or results of operations.
25
<PAGE> 28
ITEM 8 -- FINANCIAL STATEMENTS AND
SUPPLEMENTARY DATA
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants 27
Consolidated Balance Sheets as of December 31, 1994 and 1993 28
Consolidated Statements of Operations for the years ended December 31,
1994 and 1993, for the six months ended December 31, 1993, and for
the years ended June 30, 1993 and 1992 30
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1994 and 1993, for the six months ended December 31, 1993,
and for the years ended June 30, 1993 and 1992 31
Consolidated Statements of Cash Flows for the years ended December 31,
1994 and 1993, for the six months ended December 31, 1993 and for
the years ended June 30, 1993 and 1992 32
Notes to Consolidated Financial Statements 33
</TABLE>
26
<PAGE> 29
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Lear Seating Corporation:
We have audited the accompanying consolidated balance sheets of
LEAR SEATING CORPORATION AND SUBSIDIARIES ("the Company") as of December 31,
1994 and 1993 and the related consolidated statements of operations,
stockholders' equity and cash flows for the years ended December 31, 1994 and
1993, for the six months ended December 31, 1993, and for the years ended June
30, 1993 and 1992. 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 in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits 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. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present
fairly, in all material respects, the financial position of the Company as
of December 31, 1994 and 1993 and the results of its operations and its cash
flows for the years ended December 31, 1994 and 1993, for the six months ended
December 31, 1993, and for the years ended June 30, 1993 and 1992, in
conformity with generally accepted accounting principles.
As discussed in Note 14 to the consolidated financial statements, as of
July 1, 1993, the Company changed its method of accounting for post-retirement
benefits other than pensions.
/s/ ARTHUR ANDERSEN LLP
Detroit, Michigan,
February 15, 1995.
27
<PAGE> 30
LEAR SEATING CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN MILLIONS)
<TABLE>
<CAPTION>
December 31, December 31,
ASSETS 1994 1993
------ ------------ ------------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 32.0 $ 55.0
Accounts receivable, less allowance for
doubtful accounts of $1.2 million at December 31,
1994 and $.6 million at December 31, 1993 579.8 272.4
Inventories 126.6 71.7
Unbilled customer tooling 53.5 19.4
Other 26.4 15.1
---------- ----------
818.3 433.6
---------- ----------
PROPERTY, PLANT AND EQUIPMENT:
Land 36.6 31.3
Buildings and improvements 141.1 114.5
Machinery and equipment 310.6 210.7
Construction in progress 16.2 5.0
---------- ----------
504.5 361.5
Less- Accumulated depreciation (150.3) (110.5)
---------- ----------
354.2 251.0
---------- ----------
OTHER ASSETS:
Goodwill, less accumulated amortization of
$62.3 million at December 31, 1994 and $50.9 million
at December 31, 1993 499.5 403.7
Deferred financing fees, net 12.8 14.3
Investments in affiliates and other 30.3 11.7
---------- ----------
542.6 429.7
---------- ----------
$ 1,715.1 $ 1,114.3
========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
28
<PAGE> 31
LEAR SEATING CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN MILLIONS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
December 31, December 31,
LIABILITIES AND STOCKHOLDERS' EQUITY 1994 1993
------------------------------------ ----------- ------------
<S> <C> <C>
CURRENT LIABILITIES:
Short-term borrowings $ 84.1 $ 48.2
Cash overdrafts 27.6 19.8
Accounts payable 656.7 298.3
Accrued liabilities 210.9 138.3
Current portion of long-term debt 1.9 1.2
-------- --------
981.2 505.8
-------- --------
LONG-TERM LIABILITIES:
Deferred national income taxes 25.3 15.9
Long-term debt 418.7 498.3
Other 76.3 38.7
-------- --------
520.3 552.9
-------- --------
COMMITMENTS AND CONTINGENCIES
COMMON STOCK SUBJECT TO REDEMPTION:
Common stock subject to limited rights of
redemption, $.01 par value, 990,033
shares at December 31, 1993
at the maximum redemption price
of $13.64 per share - 13.5
Notes receivable from sale of common stock - (1.1)
-------- --------
- 12.4
-------- --------
STOCKHOLDERS' EQUITY:
Common stock, $.01 par value, 150,000,000
shares authorized at December 31, 1994 and
1993, 46,088,278 shares issued at
December 31, 1994 and 37,809,981 shares
issued at December 31, 1993, net of
shares subject to redemption .5 .4
Additional paid-in capital 274.3 156.5
Notes receivable from sale of common stock (1.0) -
Warrants exercisable for common stock - 10.0
Less - Common stock held in treasury, 10,230
shares at December 31, 1994 and 3,300,000
shares at December 31, 1993, at cost (.1) (10.0)
Retained deficit (49.4) (109.2)
Minimum pension liability adjustment (5.8) (4.2)
Cumulative translation adjustment (4.9) (.3)
-------- --------
213.6 43.2
-------- --------
$1,715.1 $1,114.3
======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
29
<PAGE> 32
LEAR SEATING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
Six
Year Ended Months Year Ended
December 31, Ended June 30,
---------------------- December 31, -------------------
1994 1993 1993 1993 1992
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Net sales $3,147.5 $1,950.3 $1,005.2 $1,756.5 $1,422.7
Cost of sales 2,883.9 1,780.1 933.0 1,604.0 1,307.1
Selling, general and
administrative expenses 82.6 62.7 27.7 61.9 50.1
Incentive stock and other
compensation expense - 18.0 18.0 - -
Amortization of goodwill 11.4 9.9 4.7 9.5 8.7
-------- -------- -------- -------- --------
Operating income 169.6 79.6 21.8 81.1 56.8
Interest expense 46.7 45.6 24.8 47.8 55.2
Foreign currency exchange
(gain) loss (.3) .1 (.2) .5 .3
Other expense, net 8.6 7.8 6.5 4.4 7.8
-------- -------- -------- -------- --------
Income (loss) before
provision for national
income taxes, minority
interests in net income of
subsidiaries, equity (income)
loss of affiliates and
extraordinary item 114.6 26.1 (9.3) 28.4 (6.5)
Provision for national
income taxes 55.0 26.9 13.4 17.8 12.9
Minority interests in net
income of subsidiaries .5 .3 .1 .5 .7
Equity (income) loss of
affiliates (.7) 1.0 .2 - (3.0)
-------- -------- -------- -------- --------
Income (loss) before
extraordinary item 59.8 (2.1) (23.0) 10.1 (17.1)
Extraordinary loss on
early extinguishment of
debt - 11.7 11.7 - 5.1
-------- -------- -------- -------- --------
Net income (loss) $ 59.8 $ (13.8) $ (34.7) $ 10.1 $ (22.2)
======== ======== ======== ======== ========
Net income (loss) per
common share, as adjusted
(Note 1): Income (loss) before
extraordinary item $ 1.26 $ (.06) $ (.65) $ .25 $ (.62)
Extraordinary loss - (.33) (.33) - (.18)
-------- -------- -------- -------- --------
Net income (loss) per
common share $ 1.26 $ (.39) $ (.98) $ .25 $ (.80)
======== ======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these statements.
30
<PAGE> 33
LEAR SEATING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(IN MILLIONS, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
Warrants Note
Exercisable Receivable
Additional for from sale
Common Paid-in Common Treasury of Common
Stock Capital Stock Stock Stock
------ --------- ---------- -------- -----------
<S> <C> <C> <C> <C> <C>
BALANCE, JUNE 30, 1991 $ - $ 60.9 $ 10.0 $ (10.1) $ -
Net loss - - - - -
Re-acquisition of 62,700 shares of
common stock subject
to redemption from management
investors, at cost - .2 - (.2) -
Sale of additional 14,999,985 shares
of common stock, net of
transaction costs - 72.4 - - -
Recognize minimum pension
liability adjustment - - - - -
Foreign currency translation - - - - -
Restate common stock subject to
redemption to
maximum redemption value - (1.8) - - -
------ -------- ------- -------- ----------
BALANCE, JUNE 30, 1992 - 131.7 10.0 (10.3) -
Net loss - - - - -
Sale of additional 3,999,996
shares of common stock,
net of transaction costs - 19.6 - - -
Sale of 84,183 shares of
treasury stock to management
investors - (.3) - .3 -
Foreign currency translation - - - - -
------ -------- ------- -------- ----------
BALANCE, JANUARY 2, 1993 - 151.0 10.0 (10.0) -
Net income - - - - -
Minimum pension liability adjustment - - - - -
Foreign currency translation - - - - -
------ -------- ------- -------- ----------
BALANCE, JUNE 30, 1993 - 151.0 10.0 (10.0) -
Net loss - - - - -
Incentive stock option compensation - 14.5 - - -
Minimum pension liability adjustment - - - - -
Foreign currency translation - - - - -
Restate common stock subject to
redemption to
maximum redemption value - (8.6) - - -
Thirty-three-for-one stock split .4 (.4) - - -
------ -------- ------- -------- ----------
BALANCE, DECEMBER 31, 1993 .4 156.5 10.0 (10.0) -
Net income - - - - -
Sale of additional 7,187,500
shares of common stock,
net of transaction costs .1 103.5 - - -
Exercise of stock options - .7 - - -
Exercise of warrants - - (10.0) 10.0 -
Elimination of common stock
subject to redemption - 13.5 - - (1.1)
Repayment of stockholders'
note receivable - - - - .1
Purchase of 21,450 shares
of treasury stock - - - (.1) -
Sale of 11,220 shares of
treasury stock - .1 - - -
Minimum pension liability
adjustment - - - - -
Foreign currency translation - - - - -
------ -------- ------- -------- ----------
BALANCE, DECEMBER 31, 1994 $ .5 $ 274.3 $ - $ (.1) $ (1.0)
====== ======== ======= ======== ==========
</TABLE>
<TABLE>
<CAPTION>
Minimum
Pension Cumulative
Retained Liability Translation
Deficit Adjustment Adjustment Total
--------- ---------- ----------- ------
<S> <C> <C> <C> <C>
BALANCE, JUNE 30, 1991 $ (62.4) $ - $ 6.0 $ 4.4
Net loss (22.2) - - (22.2)
Re-acquisition of 62,700 shares of
common stock subject
to redemption from management
investors, at cost - - - -
Sale of additional 14,999,985 shares
of common stock, net of
transaction costs - - - 72.4
Recognize minimum pension
liability adjustment - (2.8) - (2.8)
Foreign currency translation - - (.6) (.6)
Restate common stock subject to
redemption to
maximum redemption value - - - (1.8)
-------- --------- ------ ----------
BALANCE, JUNE 30, 1992 (84.6) (2.8) 5.4 49.4
Net loss (10.8) - - (10.8)
Sale of additional 3,999,996
shares of common stock,
net of transaction costs - - - 19.6
Sale of 84,183 shares of
treasury stock to management
investors - - - -
Foreign currency translation - - (4.7) (4.7)
-------- --------- ------ ----------
BALANCE, JANUARY 2, 1993 (95.4) (2.8) .7 53.5
Net income 20.9 - - 20.9
Minimum pension liability adjustment - (.4) - (.4)
Foreign currency translation - - 1.1 1.1
-------- --------- ------ ----------
BALANCE, JUNE 30, 1993 (74.5) (3.2) 1.8 75.1
Net loss (34.7) - - (34.7)
Incentive stock option compensation - - - 14.5
Minimum pension liability adjustment - (1.0) - (1.0)
Foreign currency translation - - (2.1) (2.1)
Restate common stock subject to
redemption to
maximum redemption value - - - (8.6)
Thirty-three-for-one stock split - - - -
-------- --------- ------ ----------
BALANCE, DECEMBER 31, 1993 (109.2) (4.2) (.3) 43.2
Net income 59.8 - - 59.8
Sale of additional 7,187,500
shares of common stock,
net of transaction costs - - - 103.6
Exercise of stock options - - - .7
Exercise of warrants - - - -
Elimination of common stock
subject to redemption - - - 12.4
Repayment of stockholders'
note receivable - - - .1
Purchase of 21,450 shares
of treasury stock - - - (.1)
Sale of 11,220 shares of
treasury stock - - - .1
Minimum pension liability
adjustment - (1.6) - (1.6)
Foreign currency translation - - (4.6) (4.6)
-------- --------- ------ ----------
BALANCE, DECEMBER 31, 1994 $ (49.4) $ (5.8) $(4.9) $ 213.6
======== ========= ====== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
31
<PAGE> 34
LEAR SEATING CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN MILLIONS)
<TABLE>
<CAPTION>
Six
Months
Year Ended December 31, Ended Year Ended June 30,
----------------------- December 31, -------------------
1994 1993 1993 1993 1992
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 59.8 $ (13.8) $ (34.7) $ 10.1 $ (22.2)
Adjustments to reconcile net income (loss) to net
cash provided by operating activities-
Depreciation and amortization of goodwill 56.1 42.6 21.9 40.7 35.0
Incentive stock option compensation - 14.5 14.5 - -
Accreted interest on Senior Subordinated Discount
Notes - - - - 4.7
Amortization of deferred financing fees 2.4 2.6 1.1 3.0 3.2
Deferred national income taxes (.3) (12.3) (.1) (10.9) (1.7)
Post-retirement benefits accrued 7.3 3.3 3.3 - -
Loss on retirement of property, plant and
equipment - 6.8 6.4 .4 .1
Extraordinary loss - 11.7 11.7 - 5.1
Other, net - (.5) .4 .4 (3.0)
Net change in working capital items 30.4 58.4 (7.4) 50.8 26.8
----------- ---------- ---------- ---------- ----------
Net cash provided by operating activities 155.7 113.3 17.1 94.5 48.0
----------- ---------- ---------- ---------- ----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property, plant and equipment (103.1) (45.9) (29.0) (31.6) (27.9)
Acquisitions (88.0) (172.1) (172.1) - (.7)
Proceeds from sale of property, plant and equipment .5 1.0 .1 1.0 1.0
Other, net (5.0) 2.2 2.3 (.1) 1.6
----------- ---------- ---------- ---------- ----------
Net cash used by investing activities (195.6) (214.8) (198.7) (30.7) (26.0)
----------- ---------- ---------- ---------- ----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Long-term revolving credit borrowings, net (Note 11) (108.8) 225.5 230.7 (24.1) (10.3)
Additions to other long-term debt 164.0 - - 125.0 20.0
Reductions in other long-term debt (137.4) (103.6) (54.2) (154.1) (69.2)
Short-term borrowings, net (10.7) 12.8 17.7 (10.8) (15.3)
Proceeds from sale of common stock, net 103.7 - - 20.0 72.4
Deferred financing fees (.7) (10.5) (10.5) (5.0) (1.8)
Increase (decrease) in cash overdrafts 7.5 3.3 2.5 9.0 (10.9)
Other, net - - - - (.1)
----------- ---------- ---------- ---------- ----------
Net cash provided (used) by financing
activities 17.6 127.5 186.2 (40.0) (15.2)
----------- ---------- ---------- ---------- ----------
Effect of foreign currency translation (.7) (2.5) (3.4) (3.2) .5
----------- ---------- ---------- ---------- ----------
NET CHANGE IN CASH AND CASH EQUIVALENTS (23.0) 23.5 1.2 20.6 7.3
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 55.0 31.5 53.8 33.2 25.9
----------- ---------- ---------- ---------- ----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 32.0 $ 55.0 $ 55.0 $ 53.8 $ 33.2
=========== ========== ========== ========== ==========
CHANGES IN WORKING CAPITAL, NET OF EFFECTS OF
ACQUISITIONS:
Accounts receivable, net $ (120.4) $ (83.5) $ (60.3) $ (42.5) $ (42.3)
Inventories (31.5) 2.9 (4.2) 4.2 (6.1)
Accounts payable 183.3 94.0 56.4 49.6 62.1
Accrued liabilities and other (1.0) 45.0 .7 39.5 13.1
----------- ---------- ---------- ---------- ----------
$ 30.4 $ 58.4 $ (7.4) $ 50.8 $ 26.8
=========== ========== ========== ========== ==========
SUPPLEMENTARY DISCLOSURE:
Cash paid for interest $ 35.5 $ 42.1 $ 20.2 $ 41.1 $ 47.6
=========== ========== ========== ========== ==========
Cash paid for income taxes $ 44.1 $ 15.7 $ 4.3 $ 21.8 $ 12.1
=========== ========== ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
32
<PAGE> 35
LEAR SEATING CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(1) BASIS OF PRESENTATION
The consolidated financial statements include the accounts
of Lear Seating Corporation ("the Company"), a Delaware
corporation, and its wholly-owned and majority-owned
subsidiaries. Investments in less than majority-owned
businesses are generally accounted for under the equity
method (Note 9).
Prior to December 31, 1993, the Company was a wholly-owned
subsidiary of Lear Holdings Corporation ("Holdings").
On December 31, 1993, Holdings was merged with and into
the Company and the separate corporate existence of
Holdings ceased (the "Merger"). The Merger has been
accounted for and reflected in the accompanying
financial statements as a merger of companies under
common control. As such, the financial statements of
the Company have been restated as if the post-Merger
structure had existed for all periods presented.
In February 1994, the Company changed its fiscal year end
from June 30 to December 31, effective December 31,
1993. Accordingly, the year ended December 31, 1993
does not constitute a fiscal year.
A 33-for-1 split of the Company's common stock was effective
as of the Company's initial public offering date (Note
3). All references to the numbers of shares of common
stock, stock options, warrants and income (loss) per
share in the accompanying consolidated financial
statements and notes thereto have been adjusted to give
effect to the split.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
Significant transactions and balances among the Company
and its subsidiaries have been eliminated in the
consolidated financial statements.
Inventories
Inventories are stated at the lower of cost or market.
Cost is determined principally using the first-in,
first-out method. Finished goods and
work-in-process inventories include material, labor
and manufacturing overhead costs.
Inventories are comprised of the following (in millions):
<TABLE>
<CAPTION>
December 31,
------------------
1994 1993
<S> <C> <C>
Raw materials $ 93.4 $ 42.5
Work-in-process 13.9 23.4
Finished goods 19.3 5.8
------ ------
$126.6 $ 71.7
====== ======
</TABLE>
33
<PAGE> 36
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Depreciable
property is depreciated over the estimated useful lives of the
assets, using principally the straight-line method as follows:
<TABLE>
<S> <C>
Buildings and improvements 20 to 25 years
Machinery and equipment 5 to 15 years
</TABLE>
Goodwill
Goodwill consists of the excess of the purchase price and related
acquisition costs over the fair value of identifiable net
assets acquired. Goodwill is amortized on a straight-line
basis over 40 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 of the operations to which goodwill relates to the
amortization recorded. The Company also considers future
anticipated operating results, trends and other circumstances
in making such evaluations.
Deferred Financing Fees
Costs incurred in connection with the issuance of debt are
amortized over the term of the related indebtedness using the
effective interest method.
Research and Development
Costs incurred in connection with the development of new products
and manufacturing methods are charged to operations as
incurred. Such costs amounted to $21.9 million, $16.2 million,
$7.1 million, $18.2 million and $11.4 million for the years
ended December 31, 1994 and 1993, for the six months ended
December 31, 1993, and for the years ended June 30, 1993 and
1992, respectively.
Foreign Currency Translation
Assets and liabilities of foreign subsidiaries are translated into
U.S. dollars at the exchange rates in effect at the end of the
period. Revenue and expense accounts are translated using an
average of exchange rates in effect during the period.
Translation adjustments that arise from translating a foreign
subsidiary's financial statements from the functional currency
to U.S. dollars are reflected as cumulative translation
adjustment in the consolidated balance sheets.
Until December 31, 1992, non-monetary assets and liabilities of a
foreign subsidiary operating in Mexico were translated using
historical rates, while monetary assets and liabilities were
translated at the exchange rates in effect at the end of the
period, with the U.S. dollar effects of exchange rate changes
included in the results of operations. As of January 1, 1993,
Mexico's economy was no longer deemed to be highly
inflationary, and since then, the accounts of the subsidiary
operating in Mexico have been translated consistent with other
foreign subsidiaries.
Transaction gains and losses that arise from exchange rate
fluctuations on transactions denominated in a currency other
than the functional currency, except those transactions which
operate as a hedge of a foreign currency investment position,
are included in the results of operations as incurred.
34
<PAGE> 37
During December 1994, the Mexican peso experienced a devaluation
of approximately 35%. Because the Company consolidates its
Mexican subsidiary as of the end of November, the effects of
this devaluation are not included in the consolidated financial
statements. The devaluation is expected to result in a
decrease in stockholders' equity of approximately $10.4
million, based on exchange rates at December 31, 1994, and the
effect on the results of operations is not expected to be
material.
Income Taxes
The consolidated financial statements reflect the provisions of
Statement of Financial Accounting Standards No. 109, "Accounting
for Income Taxes", for all periods presented. Since the year
ended December 31, 1993 does not constitute a fiscal year, the
consolidated national income tax provision for this period was
determined based upon the provisions of APB Opinion No. 28,
"Interim Financial Reporting."
Deferred national income taxes represent the effect of cumulative
temporary differences between income and expense items reported
for financial statement and tax purposes, and between the bases
of various assets and liabilities for financial statement and
tax purposes. Deferred tax assets are reduced by a valuation
allowance if, based on the weight of evidence, it is deemed
more likely than not that the asset will not be realized.
Weighted Average Shares Outstanding
The weighted average number of common shares outstanding for the
years ended December 31, 1994 and 1993, for the six months
ended December 31, 1993, and for the years ended June 30, 1993
and 1992 were 47,438,477, 35,500,014, 35,500,014, 40,049,064
and 27,768,312, respectively. Shares exercisable under the
1988, 1992 and 1994 Stock Option Plans and warrants (Note 16)
are included in the weighted average share calculation for the
years ended December 31, 1994 and June 30, 1993. These shares
are not included in the calculation of weighted average common
shares outstanding in other periods as their impact would be
anti-dilutive.
Industry Segment Reporting
The Company is principally engaged in the design and manufacture
of automotive seating and, therefore, separate industry segment
reporting is not applicable.
Reclassifications
Certain items in prior years' financial statements have been
reclassified to conform with the presentation used in the year
ended December 31, 1994.
(3) 1994 INITIAL PUBLIC OFFERING
In April 1994, the Company completed an initial public offering of
its common stock (the "IPO"), pursuant to which the Company sold
7,187,500 shares of its common stock for total proceeds of
approximately $111.4 million. Fees and expenses related to the
IPO totaled $7.8 million, including approximately $.9 million paid
to Lehman Brothers Inc. The net proceeds of the offering were
used to reduce outstanding borrowings under the Credit Agreement
(Note 11).
35
<PAGE> 38
In the same offering, FIMA Finance Management Inc., ("FIMA") a
wholly-owned subsidiary of EXOR Group S.A. (formerly IFINT S.A.),
sold 3,125,000 shares of the Company's common stock in the public
market. The Company received no proceeds from the sale of these
shares.
On a pro forma basis, assuming the IPO had taken place as of January
1, 1994, the consolidated results of operations of the Company
would have been as follows (Unaudited; in millions, except per
share data):
<TABLE>
<CAPTION>
Year Ended
December 31,
1994
------------
<S> <C>
Net income $60.5
Net income per common share 1.22
</TABLE>
The pro forma information above does not purport to be indicative of
the results that actually would have been achieved if the IPO had
occurred as of January 1, 1994, and is not intended to be a
projection of future results or trends.
(4) 1994 REFINANCING
On February 3, 1994, the Company completed a public offering of
$145.0 million of 8 1/4% Subordinated Notes, due 2002 (the "8 1/4%
Notes"). The 8 1/4% Notes require interest payments semi-annually
on February 1 and August 1. Fees and expenses related to the
issuance of the 8 1/4% Notes were approximately $5.0 million,
including underwriting fees of $2.4 million paid to Lehman
Brothers Inc.
The net proceeds from the sale of the 8 1/4% Notes were used to
finance the redemption of the 14% Subordinated Debentures.
Simultaneous with the sale of the 8 1/4% Notes, the Company called
the 14% Subordinated Debentures for redemption on March 4, 1994,
at a redemption price equal to 105.4% of the outstanding principal
amount of $135.0 million, plus accrued interest to the redemption
date. The premium for early extinguishment of the 14%
Subordinated Debentures and the accelerated amortization of
deferred financing fees totaled approximately $10.7 million. This
amount has been reflected as an extraordinary loss in the periods
ending December 31, 1993. The deferred tax benefit related to
this extraordinary loss was offset by a valuation allowance.
(5) 1992 REFINANCING AND SALE OF COMMON STOCK
On July 30, 1992, the Company sold $125.0 million of 11 1/4% Senior
Subordinated Notes (the "11 1/4% Notes"). Fees and expenses
related to issuance of the 11 1/4% Notes were approximately $5.0
million, including consulting and underwriting fees of $2.2
million paid to Lehman Brothers Inc. and $.1 million paid to FIMA
for consulting fees.
Simultaneous with the sale of the 11 1/4% Notes, the Company issued
3,999,996 shares of common stock to the four merchant banking
partnerships affiliated with Lehman Brothers Inc. (the "Lehman
Funds") and FIMA for total proceeds of approximately $20.0
million. Fees and expenses related to the sale were $.4 million
paid to the Lehman Funds and FIMA. Certain management investors
also purchased 84,183 shares of common stock previously held in
treasury for approximately $.4 million.
On August 14, 1992, the Company redeemed the 14 1/4% Senior
Subordinated Discount Notes (the "Discount Notes") at a redemption
price equal to 103% of the outstanding principal amount of $85.0
36
<PAGE> 39
million plus accrued interest. The prepayment premium for early
extinguishment of these notes and the accelerated amortization of
deferred financing fees totaled approximately $4.7 million and
have been reflected as an extraordinary loss in the year ended
June 30, 1992. The deferred tax benefit related to this
extraordinary loss was offset by a valuation allowance.
A portion of the net proceeds from the sale of the 11 1/4% Notes and
common stock described above were used to finance the redemption of
the Discount Notes and to prepay $15.0 million of the Domestic Term
Loan. The balance of the proceeds was designated for temporary
reduction of outstanding borrowings on the Domestic Revolving
Credit Loan, expansion of the Company's operations and for general
corporate purposes.
(6) 1991 CAPITALIZATION AND RELATED TRANSACTIONS
Pursuant to a Stock Purchase Agreement dated September 27, 1991 (the
"1991 Agreement"), the Company issued 14,999,985 shares of common
stock to the Lehman Funds and FIMA, for total proceeds of
approximately $75.0 million. Fees and expenses related to the
sale and the transactions described below approximated $7.6
million, of which approximately $3.2 million was charged to other
expense and approximately $1.8 million was capitalized as deferred
financing fees. Such fees and expenses included $4.5 million paid
to Lehman Brothers Inc.
The Lehman Funds and FIMA also purchased all of the outstanding
common stock and warrants owned by the Company's former majority
owner, General Electric Capital Corporation ("GECC"), and certain
other stockholders.
Simultaneous with the sale of common stock, the Company obtained a
$20.0 million real estate mortgage from GECC.
The net proceeds from the sale of common stock and the real estate
mortgage were used primarily to reduce outstanding borrowings on
the Domestic Revolving Credit Loan and to prepay the Domestic Term
Loan. A write-off of deferred financing fees of $.4 million
related to the prepayment of the Domestic Term Loan was recognized
as an extraordinary loss in the consolidated statement of
operations for the year ended June 30, 1992. The deferred tax
benefit related to this extraordinary loss was offset by a
valuation allowance.
The 1991 Agreement required the Company to make certain
representations and warranties prior to the sale with respect to
its tax position and title to the new shares. The Company is
required to indemnify the parties to the Agreement for any
aggregate losses, liabilities, claims or expenses arising from a
breach of the aforementioned representations and warranties.
Management is not currently aware of any information or condition
which will require indemnification under the terms of the
Agreement.
(7) FSB ACQUISITION
On December 15, 1994, the Company purchased from Gilardini S.p.A., an
Italian Corporation, all of the outstanding common stock of Sepi
S.p.A., an Italian Corporation, all of the outstanding common
stock of Sepi Poland S.p. Z o.o. and a 35% interest in a Turkish
joint venture (collectively, the "Fiat Seat Business", or "FSB").
The FSB is engaged in the design and manufacture of automotive
seating, with its principal customers being Fiat S.p.A. and its
affiliates ("Fiat"). In connection with this transaction, the
Company and Fiat entered into a long-term supply agreement for
certain products produced by the FSB.
37
<PAGE> 40
The acquisition was accounted for as a purchase, and accordingly, the
assets purchased and liabilities assumed in the acquisition have
been reflected in the accompanying balance sheet as of December
31, 1994. The operations of the FSB since the acquisition are not
material to the statement of operations of the Company for the
year ended December 31, 1994. The purchase price was allocated to
the purchased assets as follows (in millions):
<TABLE>
<S> <C>
Cash consideration paid to seller,
net of cash acquired of $6.9 million $ 85.3
Deferred purchase price, due 1998 12.3
Short-term borrowings from Fiat assumed 66.7
Fees and expenses, including $1.5 million not yet paid 4.2
Receivable from seller (1.2)
--------
Cost of acquisition $ 167.3
========
Property, plant and equipment $ 72.2
Investment in Industrias Cousin Freres, S.L. (Note 9) 4.9
Employee termination indemnities assumed (17.8)
Net non-cash working capital 15.4
Other assets purchased and liabilities assumed, net (12.5)
Goodwill 105.1
--------
Total cost allocation $ 167.3
========
</TABLE>
A portion of the purchase price had not yet been paid as of December
31, 1994. The remaining payments are included in the accompanying
consolidated balance sheet as of December 31, 1994 in other
long-term liabilities.
The cash portion of the purchase price was financed with borrowings
under the Company's Credit Agreement (Note 11). The purchase
price and related allocation may be revised in the next year based
on revisions of preliminary estimates of fair values made at the
date of purchase. Such changes are not expected to be
significant.
Assuming the acquisition had taken place as of the beginning of each
period presented, the consolidated pro forma results of operations
of the Company would have been as follows, after giving effect to
certain adjustments, including certain operations adjustments
consisting principally of management's estimates of the effects of
product pricing adjustments negotiated in connection with the
acquisition, increased interest expense, depreciation adjustments
and goodwill amortization, estimated engineering savings, the
elimination of certain costs assumed by the seller and the related
income tax effects (Unaudited; in millions, except per share
data):
38
<PAGE> 41
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------
1994 1993
------------ ------------
<S> <C> <C>
Net sales $ 3,603.4 $ 2,317.3
Income (loss) before extraordinary item 35.7 (22.8)
Net income (loss) 35.7 (34.5)
Income (loss) per common share before
extraordinary item .75 (.64)
Net income (loss) per common share .75 (.97)
</TABLE>
The pro forma information above does not purport to be indicative of
the results that actually would have been achieved if the
operations were combined during the periods presented, and is not
intended to be a projection of future results or trends.
(8) NAB ACQUISITION
On November 1, 1993, the Company purchased certain assets of the
Plastics and Trim Products Division of Ford Motor Company ("Ford")
consisting of (i) the U.S. operations that supply seat trim and
trimmed seat assemblies to Ford which are manufactured by Favesa,
S.A. de C.V.; (ii) all of the shares of Favesa, a maquiladora
operation located in Juarez, Mexico; and (iii) certain inventories
and assets employed in the operation of the NAB (collectively, the
"NAB"). In connection with this transaction, the Company and Ford
entered into a long-term supply agreement for certain products
produced by these operations at agreed upon prices.
This acquisition was accounted for as a purchase, and accordingly,
the operating results of the NAB have been included in the
accompanying financial statements since the date of acquisition.
The purchase price, after giving effect to an adjustment related
to changes in the NAB working capital, consisted of the following
and has been allocated to the net assets purchased as follows (in
millions):
<TABLE>
<S> <C>
Cash consideration paid to seller, net of cash
acquired of $2.7 million $170.7
Execution of promissory notes (Notes 10 and 11) 10.5
Fees and expenses (including $.5 million paid to
Lehman Brothers Inc.) 1.4
------
Cost of acquisition $182.6
======
Property, plant and equipment $ 79.8
Net non-cash working capital 1.7
Other assets purchased and liabilities assumed, (3.0)
Goodwill 104.1
------
Total cost allocation $182.6
======
</TABLE>
The cash portion of the purchase price was financed with borrowings
under the Company's domestic Credit Agreement (Note 11).
39
<PAGE> 42
As part of the NAB acquisition, the Company acquired and has
exercised an option to cause Ford to purchase two facilities in
consideration of Ford canceling a $19.9 million note payable (Note
10). The Company exercised this option, and the sale of these
facilities occurred in March 1994. The Company leased one of
these facilities until August 1994.
Assuming the acquisition had taken place as of the beginning of each
period presented, the consolidated pro forma results of operations
of the Company would have been as follows, after giving effect to
certain adjustments, including certain operations adjustments
consisting principally of managements' estimates of the effects of
product pricing adjustments negotiated in connection with the
acquisition and incremental ongoing NAB engineering, overhead and
administrative expenses, increased interest expense and goodwill
amortization and the related income tax effects (Unaudited; in
millions, except per share data):
<TABLE>
<CAPTION>
Six Months
Year Ended Ended Year Ended
December 31, December 31, June 30,
1993 1993 1993
------------ ------------ -----------
<S> <C> <C> <C>
Net sales $2,361.4 $1,159.5 $2,235.2
Income (loss) before extraordinary item 5.1 (19.6) 26.6
Net income (loss) (6.6) (31.3) 26.6
Income (loss) per common share before
extraordinary item .12 (.55) .66
Net income (loss) per common share (.16) (.88) .66
</TABLE>
The pro forma information above does not purport to be indicative of
the results that actually would have been achieved if the
operations were combined during the periods presented, and is not
intended to be a projection of future results or trends.
(9) INVESTMENTS IN AFFILIATES
<TABLE>
<CAPTION>
The investments in affiliates are as follows:
Percent Beneficial Ownership
------------------------------------
December 31, June 30,
----------------- ----------------
1994 1993 1993 1992
------ ------ ------ ------
<S> <C> <C> <C> <C>
Industrias Cousin Freres, S.L. (Spain) 49% -% -% -%
Lear Seating Thailand Corporation 49 - - -
Markol Otomotiv Yan Sanayi Ve Ticart (Turkey) 35 - - -
General Seating of America, Inc. 35 35 35 35
General Seating of Canada, Ltd. 35 35 35 35
Probel, S.A. (Brazil) 31 31 31 31
Pacific Trim Corporation Ltd. (Thailand) 20 20 20 20
</TABLE>
The above businesses are generally involved in the manufacture of
automotive seating and seating components.
40
<PAGE> 43
All of the above investments in affiliates are accounted for using
the equity method, except Probel. In June 1993, the Company
revalued its investment in Probel, which was previously accounted
for using the cost method, to zero due to continued operating
losses and other factors impacting its potential recoverability.
A charge of approximately $1.7 million was recorded and is
reflected in equity income of affiliates in the consolidated
statement of operations in the year ended December 31, 1993 and the
year ended June 30, 1993. The investments in Industrias Cousin
Freres, S.L. and Markol Otomotiv Yan Sanayi Ve Ticart were acquired
as part of the FSB acquisition (Note 7).
The aggregate investment in affiliates was $11.0 million and $4.6
million as of December 31, 1994 and 1993, respectively.
Dividends of approximately $.8 million, $1.0 million and $.9 million
were received by the Company in the years ended December 31, 1994
and June 30, 1993 and 1992, respectively, from General Seating of
Canada, Ltd. Additionally, a dividend of $.1 million was received
from General Seating of America in 1994. No other dividends were
received by the Company from affiliates during 1994, 1993 or 1992.
Summarized group financial information for affiliates accounted for
under the equity method is as follows (Unaudited; in millions):
<TABLE>
<CAPTION>
December 31,
---------------------
1994 1993
------ -------
<S> <C> <C>
Balance sheet data:
Current assets $ 36.8 $18.3
Non-current assets 25.6 14.1
Current liabilities 24.3 14.5
Non-current liabilities 14.5 5.7
</TABLE>
<TABLE>
<CAPTION>
Year Ended Six Months
December 31, Ended Year Ended June 30,
----------------------- December 31, ---------------------------
1994 1993 1993 1993 1992
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income statement data:
Net sales $140.4 $122.4 $ 58.4 $119.8 $129.2
Gross profit 14.1 12.6 4.9 13.0 19.3
Income before provision for
income taxes 6.0 7.3 2.3 10.8 11.6
Net income 3.9 5.0 1.4 6.6 8.2
</TABLE>
The Company had sales to affiliates of approximately $14.0 million,
$11.1 million, $5.3 million, $10.7 million and $11.8 million for
the years ended December 31, 1994 and 1993, for the six months
ended December 31, 1993, and for the years ended June 30, 1993 and
1992, respectively.
The Company has guaranteed certain obligations of its affiliates. The
Company's share of amounts outstanding under guaranteed
obligations as of December 31, 1994 amounted to $6.0 million.
41
<PAGE> 44
(10) SHORT-TERM BORROWINGS
Short-term borrowings are comprised of the following (in millions):
<TABLE>
<CAPTION>
December 31,
------------------------
1994 1993
------- -------
<S> <C> <C>
Lines of credit $ 1.0 $ 3.2
Note payable to bank, LIBOR + 3/4% 15.0 15.0
Short-term borrowing, Fiat S.p.A., 9 3/4 % (Note 7) 66.7 -
Unsecured notes payable --
NAB acquisition note payable, non-interest bearing
(Note 8) 1.2 9.3
NAB acquisition note payable, 11 1/2% (Note 8) - 19.9
Trade acceptance payable, 6% and 7 1/4% at
December 31, 1994 and 1993, respectively .2 .8
------ ------
$ 84.1 $ 48.2
====== ======
</TABLE>
At December 31, 1994, the Company has lines of credit available with
banks of approximately $61.0 million, subject to certain
restrictions imposed by the Credit Agreement (Note 11).
Weighted average interest rates under these agreements at December
31, 1994 and 1993 were 9.1% and 6.3%, respectively.
42
<PAGE> 45
(11) LONG-TERM DEBT
Long-term debt is comprised of the following (in millions):
<TABLE>
<CAPTION>
December 31,
------------------------
1994 1993
-------- --------
<S> <C> <C>
Domestic revolving credit loan $121.9 $230.7
German term loan 7.1 7.6
City of Hammond, IN Industrial Revenue Bonds 9.5 -
Development Authority of Clayton County, GA
Industrial Revenue Bonds 9.5 -
Loans from Italian Governmental Agencies 2.6 -
------ ------
150.6 238.3
Less -- Current portion (1.9) (1.2)
------ ------
148.7 237.1
------ ------
Subordinated Debt:
8 1/4% Subordinated Notes (Note 4) 145.0 -
11 1/4% Senior Subordinated Notes 125.0 125.0
14% Subordinated Debentures (Note 4) - 135.0
------ ------
270.0 260.0
------ ------
Note Payable - 1.2
------ ------
$418.7 $498.3
====== ======
</TABLE>
In October 1993 and again in November 1994, the Company amended and
restated its existing credit agreement with a syndicate of banks
to increase available credit and relax certain other provisions
under the agreement. The new $500 million revolving credit
facility (the "Credit Agreement") enabled the Company to finance
the cash portion of the FSB acquisition (Note 7) and to replace
the existing Domestic Term Loan and Domestic Revolving Credit
Facility which was used to finance the NAB acquisition (Note 8)
and retire a $20 million mortgage. The accelerated amortization of
deferred financing fees related to the previous Domestic Term Loan
and Domestic Revolving Credit Facility and the mortgage totaled
approximately $1.5 million. This amount, net of the related tax
benefit of $.5 million, has been reflected as an extraordinary
loss in the periods ending December 31, 1993. In connection with
this transaction, the Company paid $.5 million to Lehman Brothers
for consulting fees. In addition, Lehman Commercial Paper, Inc.,
an affiliate of the Lehman Funds, is a managing agent of the
Credit Agreement and received fees of $.7 million.
Loans under the Credit Agreement bear interest at the Eurodollar rate
plus 1/2% to 1% or prime rate depending on the satisfaction of
certain financial ratios. The Company pays a commitment fee on
the
43
<PAGE> 46
unused balance of the facility of 1/5% to 3/8%, depending on
certain ratios. At December 31, 1994, interest was being charged
at the Eurodollar rate plus 3/4% and the commitment fee is 1/4%.
Amounts available to be drawn under the Credit Agreement will
decrease by $58.75 million on each of November 30, 1997, May 31
and November 30, 1998 and May 31, 1999. The facility expires on
November 30, 1999.
The Company had available unused long-term revolving credit
commitments of $316.6 million at December 31, 1994, net of $61.5
million of outstanding letters of credit. Borrowings on revolving
credit loans were $495.2 million, $986.3 million, $820.5 million,
$549.2 million and $737.8 million for the years ended December 31,
1994 and 1993, for the six months ended December 31, 1993, and for
the years ended June 30, 1993 and 1992, respectively. Repayments
on revolving credit loans were $604.0 million, $760.8 million,
$589.8 million, $573.3 million and $748.1 million for the years
ended December 31, 1994 and 1993, for the six months ended
December 31, 1993, and for the years ended June 30, 1993 and 1992,
respectively.
The German Term Loan bears interest at a stated rate of 9.125%, is
payable in Deutschemarks in quarterly installments of
approximately $.3 million through March 2000, and is
collateralized by certain assets of a German subsidiary.
The Industrial Revenue Bonds (IRBs) are payable in 2024, and bear
interest at variable rates which are reset periodically. At the
Company's option, the rates can be reset weekly or monthly, or
can be fixed for a period of time or through maturity. As of
December 31, 1994, the City of Hammond IRB and the Development
Authority of Clayton County IRB bore interest rates of 4.0% and
5.9% respectively.
The Loans from Italian Governmental Agencies are payable in
installments every six months through 2000, and bear interest at
4.75% and 11.28%.
The 8 1/4% Subordinated Notes, due in 2002, require interest payments
semi-annually on February 1 and August 1.
The 11 1/4% Senior Subordinated Notes, due in 2000, require interest
payments semi-annually on January 15 and July 15.
The Credit Agreement and Subordinated Debt Agreements contain
numerous restrictive covenants. The most restrictive of these
covenants are financial covenants related to maintenance of
certain levels of net worth, operating profit and interest
coverage. The financial covenants generally become more
restrictive with the passage of time. These agreements also,
among other things, restrict the Company's ability to incur
additional indebtedness, declare dividends, make investments and
advances, sell assets and limit capital expenditures to specified
amounts. The German Term Loan agreement also contains certain
restrictive covenants.
As of December 31, 1994, the Company is able to declare limited
dividends of up to $2.5 million per quarter. Loans under the
Credit Agreement are collateralized by substantially all assets of
the Company.
44
<PAGE> 47
The scheduled maturities of long-term debt at December 31, 1994 for
the five succeeding years are as follows (in millions):
<TABLE>
<S> <C>
1995 $ 1.8
1996 1.9
1997 1.9
1998 1.9
1999 123.3
</TABLE>
45
<PAGE> 48
(12) NATIONAL INCOME TAXES
A summary of income (loss) before provision for national income taxes
and components of the provision for national income taxes for the
indicated periods is as follows (in millions):
<TABLE>
<CAPTION>
Six
Months
Year Ended December 31, Ended Year Ended June 30,
---------------------- December 31, -------------------
1994 1993 1993 1993 1992
------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income (loss) before provision for
national income taxes, minority
interests in net income of subsidiaries,
equity (income) loss of affiliates
and extraordinary item:
Domestic $ 56.4 $ (3.4) $ (15.1) $ 6.8 $(20.0)
Foreign 58.2 29.5 5.8 21.6 13.5
------ ------ ------- ------- ------
$114.6 $ 26.1 $ (9.3) $ 28.4 $ (6.5)
====== ====== ======= ======= ======
Domestic provision for national income
taxes:
Current provision $ 31.2 $ 7.4 $ 5.4 $ 6.8 $ 2.1
------- ------ ------ ------ -----
Deferred --
Deferred provision - 1.0 .9 1.5 2.6
Benefit of previously unbenefitted net
operating loss carryforwards (2.2) (3.0) (1.6) (2.4) -
------ ------ ------- ------- ------
(2.2) (2.0) (.7) (.9) 2.6
------ ------ ------- ------- ------
Total domestic provision 29.0 5.4 4.7 5.9 4.7
------ ------ ------- ------- ------
Foreign provision for national
income taxes:
Current provision 25.1 22.5 9.7 17.4 12.5
------ ------ ------- ------- ------
Deferred --
Deferred provision .9 (1.0) (1.0) (1.7) (2.1)
Adjustment due to changes
in enacted tax rates - - - (1.0) -
Tax benefit of operating losses - - - (2.8) (2.2)
------ ------ ------- ------- ------
.9 (1.0) (1.0) (5.5) (4.3)
------ ------ ------- ------- ------
Total foreign provision 26.0 21.5 8.7 11.9 8.2
------ ------ ------- ------- ------
Provision for national income taxes $ 55.0 $ 26.9 $ 13.4 $ 17.8 $ 12.9
====== ====== ======= ======= ======
</TABLE>
46
<PAGE> 49
The differences between tax provisions calculated at the United
States Federal statutory income tax rate of 35% for the periods
ended December 31, 1994 and 1993 and 34% for the years ended June
30, 1993 and 1992 and the actual consolidated national income tax
provision for the periods indicated are summarized as follows (in
millions):
<TABLE>
<CAPTION>
Year Ended Six Months Year Ended
December 31, Ended June 30,
----------------------- December 31, ------------------------
1994 1993 1993 1993 1992
-------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C>
Income (loss) before provision for national
income taxes, minority interests in net
income of subsidiaries, equity (income)
loss of affiliates and extraordinary item
multiplied by the United States Federal
statutory rate $ 40.1 $ 9.1 $ (3.3) $ 9.7 $ (2.2)
Utilization of domestic net
operating loss carryforwards (2.2) (3.0) (1.6) (2.4) -
Differences between domestic and effective
foreign tax rates 1.3 3.7 2.4 .9 3.6
Operating losses not tax benefited 3.0 4.9 4.3 3.6 8.5
Increase in valuation allowance 3.3 8.8 10.8 .4 -
Domestic income taxes provided
on foreign earnings 6.4 .9 .1 1.6 -
Amortization of goodwill 3.0 3.3 1.5 3.2 3.0
Other, net .1 (.8) (.8) .8 -
------ ------ ------ ------ ------
$ 55.0 $ 26.9 $ 13.4 $ 17.8 $ 12.9
====== ====== ====== ====== ======
</TABLE>
47
<PAGE> 50
Deferred national income taxes represent temporary differences in the
recognition of certain items for income tax and financial
reporting purposes. The components of the net deferred national
income tax liability are summarized as follows (in millions):
<TABLE>
<CAPTION>
December 31,
-------------------------
1994 1993
---------- --------
<S> <C> <C>
Deferred national income tax liabilities:
Property and equipment basis differences $ 22.1 $ 13.8
Financing and intercompany transactions 8.8 9.7
Taxes provided on unremitted
foreign earnings 19.4 6.0
Benefit plans 2.0 1.3
Other 5.4 2.6
------ ------
$ 57.7 $ 33.4
------ ------
Deferred national income tax assets:
Tax credit carryforwards $ (8.7) $(23.7)
Tax loss carryforwards (46.8) (17.1)
Benefit plans (9.6) (6.2)
Accruals (15.9) (5.4)
Deferred financing fees - (4.7)
Minimum pension liability adjustment (1.8) (1.8)
Alternative minimum tax carryforward - (.4)
Deferred compensation (6.3) (7.6)
Other (4.8) (1.3)
------ ------
(93.9) (68.2)
Valuation allowance 58.1 51.4
------ ------
(35.8) (16.8)
------ ------
Net deferred national income tax liability $ 21.9 $ 16.6
====== ======
</TABLE>
48
<PAGE> 51
The classification of the net deferred national income tax liability
is summarized as follows (in millions):
<TABLE>
<CAPTION>
December 31,
------------------------------
1994 1993
---- ----
<S> <C> <C>
Deferred tax assets:
Current $ (1.8) $ -
Long-term (1.6) (.9)
Deferred tax liability:
Current - 1.6
Long-term 25.3 15.9
-------- -------
Net deferred national income tax liability $ 21.9 $ 16.6
======== =======
</TABLE>
Deferred national income taxes and withholding taxes have been
provided on earnings of the Company's Canadian subsidiary to the
extent it is anticipated that the earnings will be remitted in the
form of future dividends. Deferred national income taxes and
withholding taxes have not been provided on the undistributed
earnings of the Company's European and Mexican subsidiaries as
such amounts are deemed to be permanently reinvested. The
cumulative undistributed earnings at December 31, 1994 on which
the Company had not provided additional national income taxes and
withholding taxes were approximately $23.1 million.
In June 1993, the Company settled with the Canadian taxing
authorities on the open issues relating to its Canadian tax
returns through 1989. In addition, a settlement was reached with
Revenue Canada regarding treatment of certain items relating to
the Company's financing subsidiaries. The expense related to
these settlements was provided by the Company prior to the year
ended June 30, 1993, and did not have a material effect on the
Company's results of operations or financial position.
As of December 31, 1994, the Company had tax loss carryforwards of
$122.4 million which relate primarily to certain foreign
subsidiaries including the FSB. Of the total carryforwards, $41.0
million have no expiration, $79.8 million expire in 1995 through
1999, and $1.6 million expire in 2005 and 2006. The tax credit
carryforwards expire in 1999.
(13) RETIREMENT PLANS
The Company has noncontributory defined benefit pension plans
covering substantially all domestic employees and certain
employees in foreign countries. The Company's salaried plans
provide benefits based on a career average earnings formula.
Hourly pension plans provide benefits under flat benefit formulas.
The Company also has a contractual arrangement with a key employee
which provides for supplemental retirement benefits. In general,
the Company's policy is to fund these plans based on legal
requirements, tax considerations, and local practices.
49
<PAGE> 52
Components of the Company's pension expense are as follows for the
periods indicated (in millions):
<TABLE>
<CAPTION>
Six Months
Year Ended December 31, Ended Year Ended June 30,
---------------------------- December 31, ---------------------
1994 1993 1993 1993 1992
------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Service cost $ 4.3 $ 3.5 $ 1.9 $ 3.1 $ 2.9
Interest cost on
projected benefit
obligation 6.3 6.1 3.2 5.9 6.2
Actual return on assets (.1) (7.8) (4.5) (6.6) (4.9)
Net amortization and (4.6) 3.1 2.2 1.8 .5
deferral
------ ------ ------ ------- ------
Net pension expense $ 5.9 $ 4.9 $ 2.8 $ 4.2 $ 4.7
====== ====== ====== ======= ======
</TABLE>
The following table sets forth a reconciliation of the funded status
of the Company's defined benefit pension plans to the related
amounts recorded in the consolidated balance sheets (in millions):
<TABLE>
<CAPTION>
December 31, 1994 December 31, 1993
--------------------------- ---------------------------
Plans Whose Plans Whose Plans Whose Plans Whose
Assets Exceed ABO Exceeds Assets Exceed ABO Exceeds
ABO Assets ABO Assets
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Actuarial present value of:
Vested benefit obligation $ 16.8 $ 54.8 $ 11.9 $ 58.1
Non-vested benefit obligation 1.3 2.2 .1 3.1
------ ------ ------ ------
Accumulated benefit obligation (ABO) 18.1 57.0 12.0 61.2
Effects of anticipated future
compensation increases 10.2 1.0 1.1 10.1
------ ------ ------ ------
Projected benefit obligation 28.3 58.0 13.1 71.3
Plan assets at fair value 22.7 38.0 18.3 42.8
------ ------ ------ ------
Projected benefit obligation in excess of
(less than) plan assets 5.6 20.0 (5.2) 28.5
Unamortized net loss (3.9) (9.5) (1.3) (12.5)
Unrecognized prior service cost .2 (3.0) - (1.0)
Unamortized net asset (obligation)
at transition 3.1 (1.0) 4.0 (1.6)
Adjustment required to recognize
minimum liability - 12.0 - 11.1
------ ------ ------ ------
Accrued pension (asset) liability recorded
in the consolidated balance sheets $ 5.0 $ 18.5 $ (2.5) $ 24.5
====== ====== ====== ======
</TABLE>
50
<PAGE> 53
The actuarial assumptions used in determining pension expense and the
funded status information shown above were as follows:
<TABLE>
<CAPTION>
Year Ended Six Months Year Ended
December 31, Ended June 30,
------------------ December 31, --------------------
1994 1993 1993 1993 1992
---- ----- -------- ------- --------
<S> <C> <C> <C> <C> <C>
Discount rate:
Domestic plans 7.5-8% 7.5-8% 7.5-8% 8% 8%
Foreign plans 7-8% 7-9% 7-8% 7-9% 9%
Rate of salary progression:
Domestic plans 5% 6% 6% 6% 6%
Foreign plans 3-5% 3-5% 3-5% 3-5% 1-5%
Long-term rate of return
on assets:
Domestic plans 9% 9% 9% 9% 9%
Foreign plans 8% 8-9% 8% 9% 9%
</TABLE>
Plan assets include cash equivalents, common and preferred stock, and
government and corporate debt securities.
Statement of Financial Accounting Standards No. 87, "Employers'
Accounting for Pensions," required the Company to record a minimum
liability as of December 31, 1994 and 1993. As of December 31,
1994, the Company recorded a long-term liability of $12.0 million,
an intangible asset of $4.4 million, which is included with other
assets, and a reduction in stockholders' equity of $5.8 million,
net of income taxes of $1.8 million.
The Company also sponsors defined contribution plans and participates
in Government sponsored programs in certain foreign countries.
Contributions are determined as a percentage of each covered
employee's salary. The Company also participates in
multi-employer pension plans for certain of its hourly employees
and contributes to those plans based on collective bargaining
agreements. The aggregate cost of the defined contribution and
multi-employer pension plans charged to operations was $2.1
million, $1.7 million, $1.0 million, $1.3 million and $1.1 million
for the years ended December 31, 1994 and 1993, for the six months
ended December 31, 1993 and the years ended June 30, 1993 and
1992, respectively.
(14) POST-RETIREMENT BENEFITS
On July 1, 1993, the Company adopted Statement of Financial
Accounting Standards No. 106, "Employers' Accounting for
Post-retirement Benefits Other Than Pensions" for its domestic
plans. This standard, which must be adopted for foreign plans no
later than 1995, requires that the expected cost of
post-retirement benefits be charged to expense during the years in
which the employees render service to the Company.
The Company's domestic post-retirement plans generally provide for
the continuation of medical benefits for all employees who
complete 10 years of service after age 45 and retire from the
Company at age 55 or older. The Company does not fund its
post-retirement benefit obligation. Rather, payments are made
as costs are incurred by covered retirees.
51
<PAGE> 54
As of July 1, 1993, the Company's accumulated post-retirement
benefit obligation was approximately $32.0 million. Because the
Company had previously recorded a liability of $6.3 million
related to these benefits, the net transition obligation, which
is being amortized over 20 years, was $25.7 million. The
following table sets forth a reconciliation of the funded status
of the accrued post-retirement benefit obligation to the related
amounts recorded in the financial statements as of December 31,
1994 and 1993 (in millions):
<TABLE>
<CAPTION>
December 31,
--------------------
1994 1993
-------- --------
<S> <C> <C>
Accumulated Post-retirement Benefit Obligation ("APBO"):
Retirees $ 11.8 $ 11.7
Fully eligible active plan participants 4.3 4.1
Other active participants 20.9 19.8
Unrecognized net gain 4.2 -
Unamortized transition obligation (23.7) (25.0)
----------- ---------
Liability Recorded in the Balance Sheet (includes current liability of
$.7 million as of December 31, 1994 and 1993) $ 17.5 $ 10.6
========== =========
</TABLE>
Components of the Company's post-retirement benefit expense based
upon an adoption date of July 1, 1993 for the indicated periods
were as follows (in millions):
<TABLE>
<CAPTION>
Years Ended Six Months
December 31, Ended
----------------- December 31,
1994 1993 1993
---- ---- ----
<S> <C> <C> <C>
Service cost $3.5 $1.7 $1.7
Interest cost on APBO 2.8 1.3 1.3
Unrecognized net gain - - -
Amortization of transition obligation 1.3 .7 .7
----- ----- -----
Net post-retirement benefit expense $7.6 $3.7 $3.7
===== ===== =====
</TABLE>
The APBO as of December 31, 1993 and the net post-retirement benefit
expense in 1994 and 1993 were calculated using an assumed
discount rate of 7.5%. The APBO as of December 31, 1994 was
calculated using an assumed discount rate of 8%. Health care
costs were assumed to rise 13.2% in 1995, with the assumed rate
increase decreasing by 1% per year to a minimum of 6.4% in 2008.
To illustrate the significance of these assumptions, a rise in
the assumed rate of health care cost increases of 1% each year
would increase the APBO as of December 31, 1994 by $4.8 million
and increase the net post-retirement benefit expense by $1.2
million for the year ended December 31, 1994.
52
<PAGE> 55
Prior to July 1, 1993, post-retirement benefit costs were expensed
as incurred. Benefit payments were approximately $.8 million, $.4
million, $.8 million and $.9 million for the year and six months
ended December 31, 1993 and for the years ended June 30, 1993 and
1992, respectively.
In November 1992, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 112, "Employers
Accounting for Post-Employment Benefits." This statement
requires that employers accrue the cost of post-employment
benefits during the employees' active service. The Company
adopted this statement effective January 1, 1994. The adoption
of this statement did not have a material effect on the Company's
financial position or results of operations.
(15) COMMITMENTS AND CONTINGENCIES
The Company is the subject of various lawsuits, claims and
environmental contingencies. In addition, the Company has been
identified as a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), for the cleanup of
contamination from hazardous substances at three Superfund sites,
and may incur indemnification obligations for cleanup at two
additional sites. In the opinion of management, the expected
liability resulting from these matters is adequately covered by
amounts accrued, and will not have a material adverse effect on
the Company's consolidated financial position or future results
of operations.
Two of the Company's European subsidiaries factor their accounts
receivable with a bank subject to limited recourse provisions and
are charged a discount fee equal to the current LIBOR rate plus
1%. The amount of such factored receivables, which is not
included in accounts receivable in the consolidated balance sheet
at December 31, 1994 was approximately $65.3 million.
Lease commitments at December 31, 1994 under noncancelable operating
leases with terms exceeding one year are as follows (in
millions):
<TABLE>
<S> <C>
1995 $ 9.9
1996 8.8
1997 6.9
1998 5.1
1999 4.6
2000 and thereafter 7.5
-----
Total $ 42.8
=====
</TABLE>
The Company's operating leases cover principally buildings and
transportation equipment. Rent expense incurred under all
operating leases and charged to operations was $9.8 million,
$12.6 million, $6.5 million, $11.6 million and $8.6 million for
the years ended December 31, 1994 and 1993, for the six months
ended December 31, 1993, and for the years ended June 30, 1993
and 1992, respectively.
53
<PAGE> 56
(16) STOCK OPTIONS, WARRANTS AND COMMON STOCK SUBJECT TO REDEMPTION
1988 Stock Option Plan
At December 31, 1994, 2,013,018 options granted under stock
option agreements dated September 29, 1988 were issued and
outstanding. The options vested over a three-year period and
are currently exercisable at $1.29 per share. The difference
between the exercise price and the market value at the date of
grant was amortized to expense over the vesting period.
1992 Stock Option Plan
Under the 1992 stock option plan, the Company may grant up to
1,914,000 stock options to the management investors and
certain other management personnel. During fiscal 1993, the
Company granted 1,376,100 of these options. On December 31,
1993, the remaining 537,900 options under this plan were
granted. Pursuant to a plan amendment effective December 31,
1993, all of the options became immediately vested and will
generally become exercisable at $5 per share on September 28,
1996.
Stock option expense for the twelve months and six months ended
December 31, 1993 was approximately $14.5 million, and is
included in incentive stock and other compensation expense in
the accompanying statements of operations. The expense
recognized reflects the immediate vesting of the previously
unvested options on December 31, 1993, based on the estimated
market value of the common stock of the Company of $13.64 per
share.
In addition to the stock option expense, incentive stock and
other compensation expense in the accompanying statements of
operations includes $3.5 million in special management bonuses
approved by the Board of Directors in December 1993.
1994 Stock Option Plan
Concurrent with the IPO (Note 3), the Company granted 498,750
options which are exercisable at $15.50 per share beginning
three years after the date of grant. The options vest over a
three year period and expire seven years after they become
exercisable. No stock compensation expense was recognized
related to these options as the exercise price was equal to
the market price as of the grant date.
54
<PAGE> 57
The changes in the number of options outstanding for the periods
indicated are as follows:
<TABLE>
<CAPTION>
Six Months
Year Ended December 31, Ended Year Ended June 30,
------------------------ December 31, ------------------------
1994 1993 1993 1993 1992
---------- ---------- ------------ ---------- ---------
<S> <C> <C> <C> <C> <C>
Options outstanding
at beginning of period 4,045,272 3,507,372 3,507,372 2,131,272 2,309,868
Options granted 498,750 537,900 537,900 1,376,100 -
Options exercised (100,797) - - - -
Options revoked (17,457) - - - (178,596)
--------- --------- --------- --------- ---------
Options outstanding
at end of period 4,425,768 4,045,272 4,045,272 3,507,372 2,131,272
========= ========= ========= ========= =========
</TABLE>
Warrants
In 1988, the Company sold warrants exercisable into 3,300,000
shares of common stock. The warrants, which entitled the
holder to receive one share of common stock for no additional
consideration, became exercisable on December 1, 1993. All
warrants were exercised or expired in 1994.
Common Stock Subject to Redemption
Prior to the initial public offering of common stock in April
1994 (Note 3), shares of common stock held by management
investors were subject to redemption in limited circumstances,
at a defined cost. This provision of the Stockholders' and
Registration Rights Agreement was eliminated in connection
with the IPO.
Shares subject to limited rights of redemption were stated at
$13.64 per share at December 31, 1993 and $5 per share at June
30, 1993 and 1992.
(17) FINANCIAL INSTRUMENTS
The Company hedges certain foreign currency risks through the use of
forward foreign exchange contracts and options. Such contracts
are generally deemed as and are effective as hedges of the
related transactions. As such, gains and losses from these
contracts are deferred and are recognized on the settlement date,
consistent with the related transactions. As of December 31,
1994, the Company and its subsidiaries have contracted to
exchange up to $81.0 million U.S. for fixed amounts of Canadian
dollars. The contracts mature during 1995. As of December 31,
1994, the unrealized deferred loss on such contracts was $1.9
million.
The carrying values of the Company's subordinated notes vary from
the fair values of these instruments. The fair values were
determined by reference to market prices of the securities in
recent public transactions. As of December 31, 1994, the
carrying value of the Company's subordinated notes was $270.0
million compared to an estimated fair value of $255.2 million.
The carrying values of cash, accounts receivable, accounts
payable and notes payable approximate the fair values of these
instruments due to the short-term,
55
<PAGE> 58
highly liquid nature of these instruments. The carrying value of
the Company's senior indebtedness approximates its fair value
which was determined based on rates currently available to the
Company for similar borrowings with like maturities.
(18) GEOGRAPHIC SEGMENT DATA
Worldwide operations are divided into four geographic segments --
United States, Canada, Europe and Mexico. The European
geographic segment includes operations in Austria, Italy, Poland,
France, Germany, Sweden and the United Kingdom. Geographic
segment information is as follows (in millions):
<TABLE>
<CAPTION>
Six Months
Year Ended December 31, Ended Year Ended June 30,
-------------------------- December 31, ---------------------------
1994 1993 1993 1993 1992
---------- ---------- ------------ ---------- ------------
<S> <C> <C> <C> <C> <C>
Net Sales:
United States $1,916.5 $1,060.6 $ 587.1 $ 847.1 $ 685.0
Canada 603.8 397.5 179.7 389.9 427.5
Europe 575.5 407.5 191.8 434.2 268.2
Mexico 222.7 208.6 106.4 203.2 173.3
Intersegment sales (171.0) (123.9) (59.8) (117.9) (131.3)
-------- -------- -------- -------- ---------
$3,147.5 $1,950.3 $1,005.2 $1,756.5 $ 1,422.7
======== ======== ======== ======== =========
Operating Income:
United States $ 109.3 $ 61.3 $ 27.1 $ 51.8 $ 32.0
Canada 46.3 25.6 12.1 15.3 14.7
Europe 4.4 (9.6) (7.6) (3.9) 3.0
Mexico 10.2 20.3 8.2 17.9 7.1
Unallocated and
other (a) (.6) (18.0) (18.0) - -
-------- -------- -------- -------- ---------
$ 169.6 $ 79.6 $ 21.8 $ 81.1 $ 56.8
======== ======== ======== ======== =========
Identifiable Assets:
United States $ 784.7 $ 680.7 $ 680.7 $ 370.0 $ 350.7
Canada 249.6 180.1 180.1 200.2 197.4
Europe 595.4 170.8 170.8 181.1 179.5
Mexico 72.5 68.3 68.3 59.1 64.6
Unallocated and
other (b) 12.9 14.4 14.4 9.8 7.7
-------- -------- -------- -------- ---------
$1,715.1 $1,114.3 $1,114.3 $ 820.2 $ 799.9
======== ======== ======== ======== =========
</TABLE>
---------------------
(a) Unallocated Operating Income primarily includes the impact of
incentive stock and other compensation expense (Note 16).
(b) Unallocated Identifiable Assets primarily consist of deferred
financing fees.
The net assets of foreign subsidiaries were $323.7 million and
$231.7 million at December 31, 1994 and 1993, respectively. The
Company's share of foreign net income (loss) was $32.2 million,
$6.0 million, $(2.4) million, $8.5 million and $7.5 million for
the years ended December 31, 1994 and 1993, for the six months
ended December 31, 1993 and for the years ended June 30, 1993 and
1992, respectively.
56
<PAGE> 59
A majority of the Company's sales are to automobile manufacturing
companies. The following is a summary of the percentage of net
sales to major customers:
<TABLE>
<CAPTION>
Year Ended Six Months Year Ended
December 31, Ended June 30,
-------------- December 31, -----------------
1994 1993 1993 1993 1992
---- ---- ------------- ------ ------
<S> <C> <C> <C> <C> <C>
Ford Motor Company 39% 28% 33% 22% 22%
General Motors Corporation 36 45 42 48 52
</TABLE>
In addition, a significant portion of remaining sales are to the
above automobile manufacturing companies through various other
automotive suppliers or to affiliates of these automobile
manufacturing companies. In addition to the customers listed
above and their affiliates, at December 31, 1994 approximately
32% of the balance of the Company's accounts receivable was from
Fiat and its affiliates.
(19) QUARTERLY FINANCIAL DATA (Unaudited; in millions, except per share data)
<TABLE>
<CAPTION>
Thirteen Weeks Thirteen Weeks Thirteen Weeks Thirteen Weeks
Ended Ended Ended Ended
April 2, July 2, October 1, December 31,
1994 1994 1994 1994
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Net sales $686.7 $822.1 $698.5 $940.2
Gross profit 50.0 78.6 48.9 86.1
Net income 6.5 21.1 6.3 25.9
Net income per common share .16 .43 .13 .54
</TABLE>
<TABLE>
<CAPTION>
Thirteen Weeks Thirteen Weeks
Ended Ended
October 2, December 31,
1993 1993
-------------- --------------
<S> <C> <C>
Net sales $399.1 $606.1
Gross profit 21.8 50.4
Loss before extraordinary item (10.8) (12.2)
Net loss (11.4) (23.3)
Loss before extraordinary item per common share (.31) (.34)
Net loss per common share (.32) (.66)
</TABLE>
57
<PAGE> 60
<TABLE>
<CAPTION>
Fourteen Weeks Thirteen Weeks Thirteen Weeks Thirteen Weeks
Ended Ended Ended Ended
October 3, January 2, April 3, June 30,
1992 (a) 1993 (a) 1993 1993
--------------- --------------- --------------- --------------
<S> <C> <C> <C> <C>
Net sales $359.1 $452.3 $458.0 $487.1
Gross profit 21.4 33.1 40.2 57.8
Net income (loss) (12.3) 1.5 6.1 14.8
Net income (loss) per common share (.36) .04 .15 .37
</TABLE>
---------------
(a) The provisions for national income taxes for the fourteen weeks
ended October 3, 1992 and the thirteen weeks ended January 2, 1993
were approximately $1.7 million and $2.8 million, respectively.
58
<PAGE> 61
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Lear Seating Corporation:
We have audited in accordance with generally accepted auditing
standards the consolidated financial statements of LEAR SEATING CORPORATION AND
SUBSIDIARIES ("the Company") included in this Form 10-K and have issued our
report thereon dated February 15, 1995. Our audits were made for the purpose
of forming an opinion on the basic financial statements taken as a whole. The
schedule on page 60 is the responsibility of the Company's management and is
presented for purposes of complying with the Securities and Exchange
Commission's rules and is not part of the basic financial statements. This
schedule has been subjected to the auditing procedures applied in the audits of
the consolidated financial statements and, in our opinion, fairly states in all
material respects the financial data required to be set forth therein in
relation to the basic financial statements taken as a whole.
/s/ ARTHUR ANDERSEN LLP
Detroit, Michigan
February 15, 1995.
59
<PAGE> 62
LEAR SEATING CORPORATION AND SUBSIDIARIES
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
(IN MILLIONS)
<TABLE>
<CAPTION>
BALANCE BALANCE AT
BEGINNING OTHER END
DESCRIPTION OF PERIOD ADDITIONS RETIREMENTS CHANGES OF PERIOD
----------- --------- --------- ----------- ------- ---------
<S> <C> <C> <C> <C> <C>
FOR THE YEAR ENDED JUNE 30, 1992:
Valuation of accounts deducted from related assets:
Allowance for doubtful accounts $ .1 $ .2 $ (.1) $ - $ .2
Reserve for unmerchantable inventories 1.3 2.8 (1.7) - 2.4
Deferred tax asset valuation allowances 18.1 6.1 - - 24.2
--------- --------- ---------- ------- ---------
$ 19.5 $ 9.1 $ (1.8) $ - $ 26.8
========= ========= ========== ======= =========
FOR THE YEAR ENDED JUNE 30, 1993:
Valuation of accounts deducted from related assets:
Allowance for doubtful accounts $ .2 $ .5 $ (.2) $ - $ .5
Reserve for unmerchantable inventories 2.4 1.4 (2.0) (.1) 1.7
Deferred tax asset valuation allowances 24.2 8.3 (2.4) - 30.1
--------- --------- ---------- ------- ---------
$ 26.8 $ 10.2 $ (4.6) $ (.1) $ 32.3
========= ========= ========== ======= =========
FOR THE SIX MONTHS ENDED DECEMBER 31, 1993:
Valuation of accounts deducted from related assets:
Allowance for doubtful accounts $ .5 $ .3 $ (.1) $ (.1) $ .6
Reserve for unmerchantable inventories 1.7 .6 (.2) (.2) 1.9
Deferred tax asset valuation allowances 30.1 23.0 (1.7) - 51.4
--------- --------- ---------- ------- ---------
$ 32.3 $ 23.9 $ (2.0) $ (.3) $ 53.9
========= ========= ========== ======= =========
FOR THE YEAR ENDED DECEMBER 31, 1994:
Valuation of accounts deducted from related assets:
Allowance for doubtful accounts $ .6 $ .6 $ (.1) $ .1 $ 1.2
Reserve for unmerchantable inventories 1.9 4.0 (1.7) (.1) 4.1
Deferred tax asset valuation allowances 51.4 8.9 (2.2) - 58.1
--------- --------- ---------- ------- ---------
$ 53.9 $ 13.5 $ (4.0) $ - $ 63.4
========= ========= ========== ======= =========
</TABLE>
60
<PAGE> 63
ITEM 9 - CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
There has been no disagreement between the management of the Company
and the Company's accountant on any matter of accounting principles or
practices or financial statement disclosure.
61
<PAGE> 64
PART III
ITEM 10 - DIRECTORS AND EXECUTIVE OFFICERS
Incorporated by reference from the Proxy Statement sections entitled
"Election of Directors", "Management" and "Record Date, Outstanding Shares,
Required Vote and Holdings of Certain Stockholders -- Security Ownership of
Certain Beneficial Owners and Management."
ITEM 11 - EXECUTIVE COMPENSATION
Incorporated by reference from the Proxy Statement section entitled
"Executive Compensation."
ITEM 12 - SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
Incorporated by reference from the Proxy Statement section entitled
"Record Date, Outstanding Shares, Required Vote and Holdings of Certain
Stockholders - Security Ownership of Certain Beneficial Owners and Management."
ITEM 13 - CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Incorporated by reference from the Proxy Statement section entitled
"Certain Transactions."
62
<PAGE> 65
PART IV
ITEM 14 - EXHIBITS, FINANCIAL SCHEDULES, AND REPORTS ON FORM 8-K
<TABLE>
<S> <C>
(a) The following documents are filed as part of this Form 10-K.
1. Consolidated Financial Statements:
Report of Independent Public Accountants
Consolidated Balance Sheets as of December 31, 1994 and 1993.
Consolidated Statements of Operations for the years ended December 31, 1994 and 1993, for the six
months ended December 31, 1993, and for the years ended June 30, 1993 and 1992
Consolidated Statements of Stockholders' Equity for the years ended December 31, 1994 and 1993, for
the six months ended December 31, 1993, and for the years ended June 30, 1993 and 1992.
Consolidated Statements of Cash Flows for the years ended December 31, 1994 and 1993, for the six
months ended December 31, 1993, and for the years ended June 30, 1993 and 1992.
Notes to Consolidated Financial Statements
2. Financial Statements Schedules:
Report of Independent Public Accountants
Schedule II - Valuation and Qualifying Accounts
All other financial statement schedules are omitted because such schedules are not required or the
information required has been presented in the aforementioned financial statements.
3. The exhibits listed on the "Index to Exhibits" on pages 64 through 66 are filed with this Form 10-K or
incorporated by reference as set forth below.
(b) The following report on Form 8-K was filed during the quarter ended December 31, 1994.
Form 8-K, dated December 15, 1994, for the Acquisition of the Fiat Seat Business.
</TABLE>
63
<PAGE> 66
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
3.1 - Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.3 to the
Company's Transition Report on Form 10-K filed March 31, 1994).
3.2 - Amended and Restated By-laws of Lear (incorporated by reference to Exhibit 3.4 to Lear's Registration
Statement on Form S-1 (No. 33-52565)).
3.3 - Merger Agreement dated December 31, 1993, by and between Lear and Holdings (incorporated by reference to
Exhibit 3.4 to Lear's Registration Statement on Form S-1 (No. 33-51317)).
4.1 - Indenture by and between Lear and The First National Bank of Boston, as Trustee, relating to the 8 1/4%
Subordinated Notes (incorporated by reference to Exhibit 4.1 to the Company's Transition Report on Form 10-K
filed on March 31, 1994).
4.2 - 11 1/4% Senior Subordinated Indenture dated as of July 15, 1992 between Lear and The Bank of New York, as
Trustee (incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-1 (No.
33-47867)).
10.1 - Credit Agreement dated as of March 8, 1989, as amended June 21, 1989 (the "Canadian Credit Agreement"),
between Lear Seating Canada, Ltd. and The Bank of Nova Scotia with respect to the establishment of credit
facilities (incorporated by reference to Exhibit 10.28 to Lear's Annual Report on Form 10-K for the year
ended June 30, 1989).
10.2 - Amendment dated September 13, 1989 to the Canadian Credit Agreement (incorporated by reference to Exhibit
10.30 to Lear's quarterly Report on Form 10-Q for the quarter ended September 30 ,1989).
10.3 - Amendment dated March 28, 1990 to the Canadian Credit Agreement (incorporated by reference to Exhibit 10.11
to the Company's Registration Statement on Form S-1 (No. 33-47867)).
10.4 - Amendment dated October 11, 1990 to the Canadian Credit Agreement (incorporated by reference to Exhibit
10.12 to the Company's Registration Statement on Form S-1 (No. 33-47867)).
10.5 - Amendment dated January 23, 1992 to the Canadian Credit Agreement (incorporated by reference to Exhibit
10.13 to the Company's Registration Statement on Form S-1 (No. 33-47867)).
10.6 - Senior Executive Incentive Compensation Plan of Lear (incorporated by reference to Exhibit 10.14 to the
Company's Registration Statement on Form S-1 (No. 33-47867)).
10.7 - Management Incentive Compensation Plan of Lear (incorporated by reference to Exhibit 10.15 the Company's
Registration Statement on Form S-1 (No. 33-47867)).
10.8 - Stock Option Agreement dated as of September 29, 1988 between the Company and certain management investors
(the "Management Investors") (incorporated by reference to Exhibit 10.6 to the Company's Registration
Statement on Form S-1 (No. 33-25256)).
10.9 - Employment Agreement dated March 20, 1995 between Lear and Kenneth L. Way, filed herewith.
10.10 - Employment Agreement dated March 20, 1995 between Lear and Robert E. Rossiter, filed herewith.
</TABLE>
64
<PAGE> 67
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
10.11 - Employment Agreement dated March 20, 1995 between Lear and James H. Vandenberghe, filed herewith.
10.12 - Employment Agreement dated March 20, 1995 between Lear and James A. Hollars, filed herewith.
10.13 - Employment Agreement dated March 20, 1995 between Lear and Barthold H. Hoemann, filed herewith.
10.14 - Employment Agreement dated June 1, 1992 between Lear and Donald J. Stebbins (incorporated by reference to
Exhibit 10.17 to the Company's Registration Statement on Form S-1 (No. 33-51317)).
10.15 - Second Amended and Restated Credit Agreement, dated as of November 29, 1994 among the Company, Chemical Bank
as administrative agent, and Bankers Trust Company, The Bank of Nova Scotia, Citicorp USA, Inc., and Lehman
Commercial Paper, Inc., as managing agents, filed herewith.
10.16 - Amended and Restated Stockholders and Registration Rights Agreement dated as of September 27, 1991 by and
among the Company, the Lehman Funds, Lehman Merchant Banking Partners Inc., as representative of the Lehman
Partnerships, FIMA Finance Management Inc., a British Virgin Islands corporation, and the Management
Investors (incorporated by reference to Exhibit 2.2 to Holdings' Current Report on Form 8-K dated September
24, 1991).
10.17 - Waiver and Agreement dated September 27, 1991, by and among Holdings, Kidder Peabody Group Inc., KP/Hanover
Partners 1988, L.P., General Electric Capital Corporation, FIMA Finance Management Inc., a Panamanian
corporation, FIMA Finance Management Inc., a British Virgin Islands corporation, MH Capital Partners Inc.,
successor by merger and name change to MH Equity Corp., SO.PA.F Societa Partecipazioni Finanziarie S.p.A.,
INVEST Societa Italiana Investimenti S.p.A., the Lehman Partnerships and the Management Investors
(incorporated by reference to Exhibit 2.3 to Holdings' Current Report on Form 8-K dated September 24, 1991).
10.18 - Amendment to Amended and Restated Stockholders and Registration Rights Agreement (incorporated by reference
to Exhibit 10.24 to the Company's Transition Report on Form 10-K filed on March 31, 1994).
10.19 - 1992 Stock Option Plan (incorporated by reference to Exhibit 10.7 to Lear's Annual Report on Form 10-K for
the year ended June 30, 1993).
10.20 - Amendment to 1992 Stock Option Plan (incorporated by reference to Exhibit 10.26 to the Company's Transition
Report on Form 10-K filed on March 31, 1994).
10.21 - 1994 Stock Option Plan (incorporated by reference to Exhibit 10.27 to the Company's Transition Report on
Form 10-K filed on March 31, 1994).
10.22 - Stock Purchase Agreement dated as of July 21, 1992 among the Company, the Lehman Funds and FIMA Finance
Management Inc., a British Virgin Islands corporation (incorporated by reference to Exhibit 10.33 to the
Company's Registration Statement on Form S-1 (No. 33-47867)).
10.23 - Asset Purchase and Supply Agreement dated as of November 18, 1991 between Lear Seating Sweden, AB and Volvo
Car Corporation (incorporated by reference to Exhibit 10.34 to the Company's Registration Statement on Form
S-1 (No. 33-47867)).
</TABLE>
65
<PAGE> 68
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
------ -------
<S> <C>
10.24 - Purchase Agreement dated as of November 1, 1993 between the Company and Ford Motor Company (incorporated by
reference to Exhibit 10 to the Company's Quarterly Report on Form 10-Q for the quarter ended October 2,
1993).
10.25 - Stock Purchase Agreement, dated December 15, 1994, by and between Gilardini S.p.A. and the Company
(incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K, dated December 15,
1994).
10.26 - $9,500,000 Loan Agreement between the Development Authority of Clayton County, Georgia and the Company,
dated as of September 1, 1994, filed herewith.
10.27 - $9,500,000 Loan Agreement between the City of Hammond, Indiana and the Company, dated as of July 1, 1994,
filed herewith.
10.28 - Lear Seating Corporation Supplemental Executive Retirement Plan, dated as of January 1, 1995, filed
herewith.
11.1 - Computation of income (loss) per share, filed herewith.
21.1 - List of subsidiaries of the Company, filed herewith.
23.1 - Consent of independent public accountants, filed herewith.
27.1 - Financial Data Schedule, filed herewith.
</TABLE>
66
<PAGE> 69
SIGNATURES
Pursuant to the requirements of Section 13 of 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 on March 29, 1995.
Lear Seating Corporation
By: /s/ Kenneth L. Way
----------------------------
Kenneth L. Way
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of Lear
Seating Corporation and in the capacities indicated March 29, 1995.
/s/ Kenneth L. Way /s/ Larry McCurdy
---------------------------- --------------------------
Kenneth L. Way Larry McCurdy
Chairman of the Board and a Director
Chief Executive Officer
/s/ James H. Vandenberghe /s/ Jeffrey P. Hughes
---------------------------- --------------------------
James H. Vandenberghe Jeffrey P. Hughes
Executive Vice President and a Director
Chief Financial Officer
/s/ Robert E. Rossiter
---------------------------- --------------------------
Robert E. Rossiter Gian Andrea Botta
President, Chief Operating a Director
Officer and a Director
/s/ David P. Spalding /s/ Robert Shower
---------------------------- --------------------------
David P. Spalding Robert Shower
a Director a Director
/s/ Eliot Fried /s/ James A. Stern
---------------------------- --------------------------
Eliot Fried James A. Stern
a Director a Director
/s/ Alan Washkowitz
----------------------------
Alan Washkowitz
a Director
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<PAGE> 1
EXHIBIT 10.9
March 20, 1995
Mr. Kenneth L. Way
2838 Chestnut Run Drive
Bloomfield Hills, Michigan 48302
Dear Mr. Way:
Lear Seating Corporation (the "Company") considers it essential to its
best interest and the best interests of its stockholders to foster the
continuous employment of key management personnel.
The Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
yourself, to their assigned duties. In order to induce you to remain in the
employ of the Company, and in consideration of your agreement to the
termination of any existing employment contract you may have with the Company
or any predecessor; the Company agrees that you shall receive, upon the terms
and conditions set forth herein, the compensation and benefits set forth in
this letter agreement ("Agreement") during the Term hereof.
1. Term of Agreement. This Agreement shall commence as of the
Effective Date (as defined on the signature page hereof) and shall continue in
effect until the fourth anniversary of such date (the "Term"). The Term may be
extended pursuant to paragraph 12, hereafter.
2. Terms of Employment. During the Term, you agree to be a
full-time employee of the Company serving in the position of Chief Executive
Officer of the Company and to devote substantially all of your working time and
attention to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities associated with your position as
Chief Executive Officer of the Company, to use your best efforts to perform
faithfully and efficiently such responsibilities. In addition, you agree to
serve in such other capacities or offices to which you may be assigned,
appointed or elected from time to time by the Board. Nothing herein shall
prohibit you from devoting your time to civic and community activities, serving
as a member of the Board of Directors of other corporations who do not compete
with the Company, or managing personal investments, as long as the foregoing
do not interfere with the performance of your duties hereunder.
<PAGE> 2
3. Compensation.
(i) As compensation for your services, under this
Agreement, you shall be entitled to receive an initial base
salary of $530,000 per annum, to be paid in accordance with
existing payroll practices for executives of the Company.
Increases in your base salary, if any, shall be determined by
the Compensation Committee of the Board of Directors. In
addition, you shall be eligible to receive an annual incentive
compensation bonus ("Bonus") to be determined from time to
time by the Compensation Committee of the Board of Directors
of the Company.
(ii) In addition to compensation provided for in
Subsection (i) of this Section 3, the Company agrees (A) to
provide the same or comparable benefits with respect to any
compensation or benefit plan in which you participate as of
the Effective Date which is material to your total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan; and (B) to maintain your ability to
participate therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms
of the opportunities provided and the level of your
participation relative to other participants, than exists on
the Effective Date.
(iii) The Company shall reimburse you for all reasonable
travel, entertainment and other business expenses incurred by
you in the performance of your responsibilities under this
Agreement promptly upon receipt of written substantiation of
such expenses. You shall also be paid all additional amounts
necessary to discharge all federal and state tax liabilities
incurred by you that are attributable to all deemed
compensation arising as a consequence of your personal use of
property owned or leased by the Company, excepting only your
personal use of any Company aircraft, including federal and
state taxes assessed against such additional compensation.
(iv) You shall be entitled to perquisites available to all
other executives of the Company and shall be entitled to 4
weeks of vacation per year.
4. Termination of Employment. Your employment may be terminated
by either the Company or you by giving a Notice of Termination, as defined in
Subsection (iv) of this Section 4. If your employment should terminate during
the Term, your entitlement to benefits shall be determined in accordance with
Section 5 hereof.
(i) Disability. If, as a result of your incapacity due
to physical or mental illness, you are unable to perform your
duties hereunder for more than six consecutive
2
<PAGE> 3
months or six months aggregate during any twelve month
period, your employment may be terminated for "Disability".
(ii) Cause. Termination of your employment for "Cause"
shall mean termination upon (A) the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
Disability), (B) the engaging by you in conduct which is
significantly injurious to the Company, monetarily or
otherwise, (C) your conviction of a felony, (D) your abuse of
illegal drugs or other controlled substances or your habitual
intoxication, or (E) the breach of any of your material
obligations hereunder including without limitation any breach
of Section 9 or 10 hereof. For purposes of this Subsection,
no act or failure to act, on your part shall be deemed
"willful" unless knowingly done, or omitted to be done, by you
not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
(iii) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without your express
written consent, of any of the following circumstances unless
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as such
terms are defined in Subsections (v) and (iv) of this Section
4, respectively, given in respect thereof:
(A) The permanent assignment to you of any duties
inconsistent with your status as an executive officer
of the Company, your physical relocation on a
permanent basis to an area outside of the
metropolitan Detroit area, a substantial adverse
alteration in the nature or status of your
responsibilities from those in effect immediately
prior to such assignment of duties, your removal from
any office specified in Section 2 hereof;
(B) Any reduction by the Company in your base
salary as in effect from time to time, except for
across-the- board salary reductions similarly
affecting all executive officers of the Company;
(C) The failure by the Company to pay or provide
to you within seven (7) days of receipt by the
Company of your written demand any amounts of base
salary or Bonus or any benefits which are due, owing
and payable to you pursuant to the terms hereof,
except pursuant to an across-the-board compensation
deferral similarly affecting all executive officers,
or to pay to you any portion of an installment of
deferred compensation due under any deferred
compensation program of the Company;
3
<PAGE> 4
(D) Except in the case of across-the-board
reductions, deferrals or eliminations similarly
affecting all executive officers of the Company, the
failure by the Company to (i) continue in effect any
compensation plan in which you participate which is
material to your total compensation, including but
not limited to the Company's plans currently in
effect or hereafter adopted, and any plans adopted in
substitution therefore, or (ii) continue to provide
you with benefits substantially similar, in
aggregate, to the Company's life insurance, medical,
dental, health, accident or disability plans in which
you are participating at the date of this Agreement;
or
(E) The failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 7 hereof.
Your continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any termination of your
employment by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 8 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated.
(v) Date of Termination, Etc. "Date of Termination"
shall mean (A) if your employment is terminated for Disability
pursuant to Subsection (i) of this Section 4, thirty (30) days
after Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties
during such thirty (30) day period), (B) if your employment is
terminated by reason of your death, the date of your death,
(C) if by you for Good Reason or by either party for any other
reason (other than Disability, death, or your voluntary
resignation without Good Reason), the date specified in the
Notice of Termination (which, in the case of a termination by
you for Good Reason, shall not be less than thirty (30) nor
more than sixty (60) days from the date such Notice of
Termination is given), and (D) if your employment is
terminated by your voluntary resignation without Good Reason
(as defined in Subsection (iii) of this Section 4), the Date
of Termination shall be forty-five (45) days from the date
such Notice of Termination is given or such other date as may
be identified by the Company. Unless the Company instructs
you not to do
4
<PAGE> 5
so, you shall continue to perform services as provided in this
Agreement through the Date of Termination.
5. Compensation Upon Termination or During Disability. Upon
termination of your employment with the Company during the Term, you shall be
entitled to the following compensation and benefits:
(i) If your employment is terminated for Disability, you
shall receive until the end of the Term all compensation
payable to you under the Company's disability and medical
plans and programs, as in effect on the Date of Termination
plus an additional payment from the Company (if necessary)
such that the aggregate amount received by you in the nature
of salary continuation from all sources equals your base
salary at the rate in effect on the Date of Termination.
After the end of the Term, your benefits shall be determined
under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the
terms of such programs, provided that such terms shall not be
less advantageous to you than the terms of such programs in
effect as of the Effective Date.
(ii) If your employment shall be terminated (A) by the
Company for Cause, or (B) by you other than for Good Reason,
the Company shall pay you your full base salary through the
Date of Termination, at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the time such payments are due, and the Company
shall have no further obligations to you under this Agreement.
Provided, however, that if your employment is terminated by
your voluntary resignation without Good Reason, you shall be
compensated per this Paragraph only to the extent that you
actively performed your assigned responsibilities through the
Date of Termination.
(iii) If your employment shall be terminated by reason of
your death, the Company shall pay your estate or designated
beneficiary (as designated by you by written notice to the
Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked
or a new beneficiary is designated, in either case by written
notice to the Company) your full base salary through the Date
of Termination and for a period of 12 whole calendar months
thereafter plus, if the Date of Termination shall not occur on
the first day of a calendar month, the balance of the month in
which the Date of Termination occurs, at the rate in effect at
the time of your death, plus any Bonus earned, prorated for
the portion of the Bonus measurement period occurring prior to
the date of your death, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the date of your death, and the
5
<PAGE> 6
Company shall have no further obligation to you, your
beneficiaries or your estate under this Agreement.
(iv) If your employment shall be terminated (a) by the
Company other than for Cause or Disability or (b) by you for
Good Reason, then you shall be entitled to the benefits
provided below:
(A) The Company shall pay you your full base
salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given
(or, if greater, at the rate in effect 30 days prior
to the time Notice of Termination is given), plus all
other amounts to which you are entitled under any
compensation or benefit plans of the Company,
including without limitation, any Bonus measurement
period occurring prior to the Date of Termination, at
the time such payments are due, except as otherwise
provided below;
(B) in lieu of any further salary payment to you
for periods subsequent to the Date of Termination,
the Company shall pay to you your full base salary at
the rate in effect immediately prior to the time
Notice of Termination is given (or, if greater, at
the rate in effect 30 days prior to the time Notice
of Termination is given), payable periodically in
accordance with past payroll practices, until the end
of the Term;
(C) in lieu of any further Bonus payments to you
for periods subsequent to the Date of Termination,
the Company shall pay to you a Bonus payable in each
March following the Date of Termination in respect of
the previous plan fiscal year equal to the quotient
obtained by aggregating the Bonuses received by you
in respect of the two plan fiscal years ending prior
to the Date of Termination (the "Bonus Period") and
dividing such sum by two. Such Bonus shall be paid
in respect of each plan fiscal year or portion
thereof ending after the Date of Termination until
the end of the Term, and shall be prorated for
partial years, if any, including without limitation
the portion of the calendar year occurring after the
Date of Termination and the final plan fiscal year in
respect of which any such March Bonus is payable
pursuant to this Section 5(iv)(C). Provided,
however, that the amount of bonus to be paid pursuant
to this Paragraph shall not be greater than the
amount of bonus that would have been paid in
accordance with Bonus Plans, existing from time to
time, had your employment not been terminated;
(D) until the end of the Term, you will continue
to participate in all other compensation and benefit
plans (including perquisites) in which you were
6
<PAGE> 7
participating immediately prior to the time Notice of
Termination is given, or comparable plans substituted
therefor; provided, however, that if you are
ineligible, (e.g., by operation of law or the terms
of the applicable plan to continue to participate in
any such plan) the Company will provide you with a
comparable level of compensation or benefits;
(E) the Company shall also pay to you all
reasonable legal fees and expenses incurred by you in
contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit
provided by this Agreement if such termination is
determined by arbitration to have been for Good
Reason or other than Cause or Disability; and
(F) if you should die after the Date of
Termination and prior to the end of the period of
payment provided for in paragraphs (B), (C), and (D)
hereof, the Company shall pay your estate or your
designated beneficiary any amounts that are or become
payable pursuant to any of such paragraphs until the
end of the Term.
(v) You shall be required to mitigate the amount of any
payment provided for in subsection (iv) of this Section 5 by
seeking and accepting, if offered, other comparable
employment, taking into consideration the provisions of
Section 9 of this Agreement, and the amount of any payment
provided for in this Section 5 shall be reduced by any
compensation earned by you during the remainder of the Term as
the result of your employment by another employer, or offset
against any amount owed by you to the Company or as otherwise
receivable by you pursuant to Subsection 5(iv)(D) shall be
reduced to the extent a comparable benefit of the same type
was made available to you during the applicable period of
benefit continuation set forth in such Subsection. Any
compensation and benefits actually received by you shall be
promptly reported to the Company.
(vi) In addition to all other amounts payable to you under
this Section 5, you shall be entitled to receive all benefits
payable to you pursuant to the terms of any plan or agreement
of the Company relating to retirement benefits.
6. Travel. You shall be required to travel to the extent
necessary for the performance of your responsibilities under this Agreement.
7. Successors; Binding Agreement. The Company will, by Agreement
in form and substance satisfactory to you, require any successor (whether
direct or indirect, by purchase merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to
7
<PAGE> 8
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption
and agreement prior to the effectiveness of any such succession shall entitle
you to compensation from the Company in the same amount and on the same terms
as you would be entitled to hereunder if you terminate your employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
8. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company (or, if you are the Secretary at the time such
notice is to be given, to the Chairman of the Company's Board of Directors), or
to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only upon receipt.
9. Noncompetition.
(i) Until the Date of Termination, you agree not to enter
into competitive endeavors and not to undertake any commercial
activity which is contrary to the best interests of the
Company or its affiliates, including becoming an employee,
owner (except for passive investments of not more than one
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), officer, consultant, agent or director of
any firm or person which either directly competes with a line
or lines of business of the Company accounting for ten percent
(10%) or more of the Company's gross sales, revenues or
earnings before taxes or derives ten percent (10%) or more of
such firm's or person's gross sales, revenues or earnings
before taxes from a line or lines of business which directly
compete with the Company. Notwithstanding any provision of
this Agreement to the contrary, you agree that your breach of
the provisions of this Section 9(i) shall permit the Company
to terminate your employment for Cause.
(ii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until
8
<PAGE> 9
the later of the Date of Termination and during any period
that you continue to be paid your salary (including any other
payment in lieu of salary) pursuant to Section 5 hereof, you
agree not to become an employee, owner (except for passive
investments of not more than one percent of the outstanding
shares of, or any other equity interest in, any company or
entity listed or traded on a national securities exchange or
in an over-the-counter securities market), consultant,
officer, agent or director of any firm or person which
directly competes with a business of the Company producing any
class of products accounting for ten percent (10%) or more of
the Company's gross sales, revenues or earnings before taxes.
During the period of payment provided in Section 5 hereof, you
will be available, consistent with other responsibilities that
you may then have, to answer questions and provide advice to
the Company. Notwithstanding anything in this Agreement to
the contrary, you agree that, from and after any breach by
you of the provisions of this Section 9(ii), the Company shall
cease to have any obligations to make payments to you under
this Agreement.
(iii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you shall not directly or
indirectly, either on your own account or with or for anyone
else, (A) solicit or attempt to solicit any of the Company's
customers (B) solicit or attempt to solicit for any business
endeavor any employee of the Company or (C) otherwise divert
or attempt to divert from the Company any business whatsoever
or interfere with any business relationship between the
Company and any other person.
(iv) You acknowledge and agree that damages for breach of
the covenant not to compete in this Section 9 will be
difficult to determine and will not afford a full and adequate
remedy, and therefore agree that the Company, in addition to
seeking actual damages pursuant to Section 11 hereof, may seek
specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent
injunction, without the necessity of a bond. You and the
Company agree that the provisions of this covenant not to
compete are reasonable. However, should any court or
arbitrator determine that any provision of this covenant not
to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this
covenant not to compete should be interpreted and enforced to
the maximum extent which such court or arbitrator deems
reasonable.
9
<PAGE> 10
10. Confidentiality.
(i) You shall not knowingly use, disclose or reveal to
any unauthorized person, during or after the Term, any trade
secret or other confidential information relating to the
Company or any of its affiliates, or any of their respective
businesses or principals, such as, without limitation,
dealers' or distributor's lists, information regarding
personnel and manufacturing processes, marketing and sales
plans, and all other such information; and you confirm that
such information is the exclusive property of the Company and
its affiliates. Upon termination of your employment, you
agree to return to the Company on demand of the Company all
memoranda, books, papers, letters and other data, and all
copies thereof or therefrom, in any way relating to the
business of the Company and its affiliates, whether made by
you or otherwise in your possession.
(ii) Any ideas, processes, characters, productions,
schemes, titles, names, formats, adaptations, plots, slogans,
catchwords, incidents, treatment, and dialogue which you may
conceive, create, organize, prepare or produce during the
period of your employment and which ideas, processes, etc.
relate to any of the businesses of the Company, shall be owned
by the Company and its affiliates whether or not you should in
fact execute an assignment thereof or other instrument or
document which may be reasonably necessary to protect and
secure such rights to the Company.
(iii) Notwithstanding anything in this Agreement to the
contrary, you agree that from and after any breach by you of
the provisions of this Section 10 during any period of payment
provided in Section 5 hereof, the Company shall cease to have
any obligations to make payments to you under this Agreement.
11. Arbitration.
(i) Except as contemplated by Section 9 (iii), Section 9,
(iv), and Section 11 (iii) hereof, any dispute or controversy
arising under or in connection with this Agreement that cannot
be mutually resolved by the parties to this Agreement and
their respective advisors and representatives shall be settled
exclusively by arbitration in Southfield, Michigan before one
arbitrator of exemplary qualifications and stature, who shall
be selected jointly by an individual to be designated by the
Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the
arbitrator, who shall be selected pursuant to the procedures
of the American Arbitration Association.
(ii) The parties agree to use their best efforts to cause
(a) the two individuals set forth in the preceding Section 11
(i), or, if applicable, the American Arbitration
10
<PAGE> 11
Association, to appoint the arbitrator within 30 days of the
date that a party hereto notifies the other party that a
dispute or controversy exists that necessitates the
appointment of an arbitrator, and (b) any arbitration hearing
to be held within 30 days of the date of selection of the
arbitrator, and, as a condition to his or her selection, such
arbitrator must consent to be available for a hearing at such
time.
(iii) Judgment may be entered on the arbitrator's award in
any court having jurisdiction, provided that you shall be
entitled to seek specific performance of your right to be paid
and to participate in benefit programs during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company and you hereby agree that
the arbitrator shall be empowered to enter an equitable decree
mandating specific performance of the terms of this Agreement.
(iv) If you prevail in full or in substantial part, the
Company shall bear all expenses of the arbitrator incurred in
any arbitration hereunder. The Company agrees to pay your
reasonable and documented legal fees and expenses in
connection with any arbitration hereunder if you prevail in
full or in substantial part.
12. Extension of Term. The Term of this Agreement shall be
automatically extended for a period of one year on each anniversary of the
Effective Date of this Agreement; said automatic extension commencing on the
second anniversary of the Effective Date. There shall be no renewal of the
Term after the Date of Termination.
13. Modifications. No provision of this Agreement may be
modified, amended, waived or discharged unless such modification, amendment,
waiver or discharge is agreed to in writing and signed by both you and such
officer of the Company as may be specifically designated by the Board.
14. No Implied Waivers. Failure of either party at any time to
require performance by the other party of any provision hereof shall in no way
affect the full right to require such performance at any time thereafter.
Waiver by either party of a breach of any obligation hereunder shall not
constitute a waiver of any succeeding breach of the same obligation. Failure
of either party to exercise any of its rights provided herein shall not
constitute a waiver of such right.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
11
<PAGE> 12
16. Payments Net of Taxes. Any payments provided for herein which
are subject to Federal, State or local tax or other withholding requirements,
shall have such amounts withheld prior to payment.
17. Survival of Obligations. The obligations of the Company under
Section 5(iii) and your obligations under Sections 9 and 10 hereof shall
survive the expiration of the Term of this Agreement.
18. Capacity of Parties. The parties hereto warrant that they
have the capacity and authority to execute this Agreement.
19. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. Entire Agreement. This Agreement and any attachments hereto,
contain the entire agreement by the parties with respect to the matters covered
herein and supersedes any prior agreement (including without limitation any
prior employment agreement), condition, practice, custom, usage and obligation
with respect to such matters insofar as any such prior agreement, condition,
practice, custom, usage or obligation might have given rise to any enforceable
right. No agreements, understandings or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
12
<PAGE> 13
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 20, 1995
("Effective Date").
Sincerely,
LEAR SEATING CORPORATION
BY: /s/ Robert E. Rossiter
------------------------------------
Agreed to this day of March, 1995
------
BY: /s/ Kenneth L. Way
-------------------------------------
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<PAGE> 1
EXHIBIT 10.10
March 20, 1995
Mr. Robert E. Rossiter
2878 Meadowwod Lane
Bloomfield, Michigan 48203
Dear Mr. Rossiter:
Lear Seating Corporation (the "Company") considers it essential to its
best interest and the best interests of its stockholders to foster the
continuous employment of key management personnel.
The Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
yourself, to their assigned duties. In order to induce you to remain in the
employ of the Company, and in consideration of your agreement to the
termination of any existing employment contract you may have with the Company
or any predecessor; the Company agrees that you shall receive, upon the terms
and conditions set forth herein, the compensation and benefits set forth in
this letter agreement ("Agreement") during the Term hereof.
1. Term of Agreement. This Agreement shall commence as of the
Effective Date (as defined on the signature page hereof) and shall continue in
effect until the fourth anniversary of such date (the "Term"). The Term may be
extended pursuant to paragraph 12, hereafter.
2. Terms of Employment. During the Term, you agree to be a
full-time employee of the Company serving in the position of President and
Chief Operating Officer of the Company and to devote substantially all of your
working time and attention to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities associated with your
position as President and Chief Operating Officer of the Company, to use your
best efforts to perform faithfully and efficiently such responsibilities. In
addition, you agree to serve in such other capacities or offices to which you
may be assigned, appointed or elected from time to time by the Board. Nothing
herein shall prohibit you from devoting your time to civic and community
activities, serving as a member of the Board of Directors of other corporations
who do not compete with the Company (provided that you have received prior
written approval from the Company's Chairman), or managing personal
investments, as long as the foregoing do not interfere with the performance of
your duties hereunder.
<PAGE> 2
3. Compensation.
(i) As compensation for your services, under this
Agreement, you shall be entitled to receive an initial base
salary of $385,000 per annum, to be paid in accordance with
existing payroll practices for executives of the Company.
Increases in your base salary, if any, shall be determined by
the Compensation Committee of the Board of Directors. In
addition, you shall be eligible to receive an annual incentive
compensation bonus ("Bonus") to be determined from time to
time by the Compensation Committee of the Board of Directors
of the Company.
(ii) In addition to compensation provided for in
Subsection (i) of this Section 3, the Company agrees (A) to
provide the same or comparable benefits with respect to any
compensation or benefit plan in which you participate as of
the Effective Date which is material to your total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan; and (B) to maintain your ability to
participate therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms
of the opportunities provided and the level of your
participation relative to other participants, than exists on
the Effective Date.
(iii) The Company shall reimburse you for all reasonable
travel, entertainment and other business expenses incurred by
you in the performance of your responsibilities under this
Agreement promptly upon receipt of written substantiation of
such expenses. You shall also be paid all additional amounts
necessary to discharge all federal and state tax liabilities
incurred by you that are attributable to all deemed
compensation arising as a consequence of your personal use of
property owned or leased by the Company, excepting only your
personal use of any Company aircraft, including federal and
state taxes assessed against such additional compensation.
(iv) You shall be entitled to perquisites available to all
other executives of the Company and shall be entitled to 4
weeks of vacation per year.
4. Termination of Employment. Your employment may be terminated
by either the Company or you by giving a Notice of Termination, as defined in
Subsection (iv) of this Section 4. If your employment should terminate during
the Term, your entitlement to benefits shall be determined in accordance with
Section 5 hereof.
(i) Disability. If, as a result of your incapacity due
to physical or mental illness, you are unable to perform your
duties hereunder for more than six consecutive
2
<PAGE> 3
months or six months aggregate during any twelve month
period, your employment may be terminated for "Disability".
(ii) Cause. Termination of your employment for "Cause"
shall mean termination upon (A) the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
Disability), (B) the engaging by you in conduct which is
significantly injurious to the Company, monetarily or
otherwise, (C) your conviction of a felony, (D) your abuse of
illegal drugs or other controlled substances or your habitual
intoxication, or (E) the breach of any of your material
obligations hereunder including without limitation any breach
of Section 9 or 10 hereof. For purposes of this Subsection,
no act or failure to act, on your part shall be deemed
"willful" unless knowingly done, or omitted to be done, by you
not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
(iii) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without your express
written consent, of any of the following circumstances unless
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as such
terms are defined in Subsections (v) and (iv) of this Section
4, respectively, given in respect thereof:
(A) The permanent assignment to you of any duties
inconsistent with your status as an executive officer
of the Company, your physical relocation on a
permanent basis to an area outside of the
metropolitan Detroit area, a substantial adverse
alteration in the nature or status of your
responsibilities from those in effect immediately
prior to such assignment of duties, your removal from
any office specified in Section 2 hereof;
(B) Any reduction by the Company in your base
salary as in effect from time to time, except for
across-the- board salary reductions similarly
affecting all executive officers of the Company;
(C) The failure by the Company to pay or provide
to you within seven (7) days of receipt by the
Company of your written demand any amounts of base
salary or Bonus or any benefits which are due, owing
and payable to you pursuant to the terms hereof,
except pursuant to an across-the-board compensation
deferral similarly affecting all executive officers,
or to pay to you any portion of an installment of
deferred compensation due under any deferred
compensation program of the Company;
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<PAGE> 4
(D) Except in the case of across-the-board
reductions, deferrals or eliminations similarly
affecting all executive officers of the Company, the
failure by the Company to (i) continue in effect any
compensation plan in which you participate which is
material to your total compensation, including but
not limited to the Company's plans currently in
effect or hereafter adopted, and any plans adopted in
substitution therefore, or (ii) continue to provide
you with benefits substantially similar, in
aggregate, to the Company's life insurance, medical,
dental, health, accident or disability plans in which
you are participating at the date of this Agreement;
or
(E) The failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 7 hereof.
Your continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any termination of your
employment by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 8 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated.
(v) Date of Termination, Etc. "Date of Termination"
shall mean (A) if your employment is terminated for Disability
pursuant to Subsection (i) of this Section 4, thirty (30) days
after Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties
during such thirty (30) day period), (B) if your employment is
terminated by reason of your death, the date of your death,
(C) if by you for Good Reason or by either party for any other
reason (other than Disability, death, or your voluntary
resignation without Good Reason), the date specified in the
Notice of Termination (which, in the case of a termination by
you for Good Reason, shall not be less than thirty (30) nor
more than sixty (60) days from the date such Notice of
Termination is given), and (D) if your employment is
terminated by your voluntary resignation without Good Reason
(as defined in Subsection (iii) of this Section 4), the Date
of Termination shall be forty-five (45) days from the date
such Notice of Termination is given or such other date as may
be identified by the Company. Unless the Company instructs
you not to do
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<PAGE> 5
so, you shall continue to perform services as provided in this
Agreement through the Date of Termination.
5. Compensation Upon Termination or During Disability. Upon
termination of your employment with the Company during the Term, you shall be
entitled to the following compensation and benefits:
(i) If your employment is terminated for Disability, you
shall receive until the end of the Term all compensation
payable to you under the Company's disability and medical
plans and programs, as in effect on the Date of Termination
plus an additional payment from the Company (if necessary)
such that the aggregate amount received by you in the nature
of salary continuation from all sources equals your base
salary at the rate in effect on the Date of Termination.
After the end of the Term, your benefits shall be determined
under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the
terms of such programs, provided that such terms shall not be
less advantageous to you than the terms of such programs in
effect as of the Effective Date.
(ii) If your employment shall be terminated (A) by the
Company for Cause, or (B) by you other than for Good Reason,
the Company shall pay you your full base salary through the
Date of Termination, at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the time such payments are due, and the Company
shall have no further obligations to you under this Agreement.
Provided, however, that if your employment is terminated by
your voluntary resignation without Good Reason, you shall be
compensated per this Paragraph only to the extent that you
actively performed your assigned responsibilities through the
Date of Termination.
(iii) If your employment shall be terminated by reason of
your death, the Company shall pay your estate or designated
beneficiary (as designated by you by written notice to the
Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked
or a new beneficiary is designated, in either case by written
notice to the Company) your full base salary through the Date
of Termination and for a period of 12 whole calendar months
thereafter plus, if the Date of Termination shall not occur on
the first day of a calendar month, the balance of the month in
which the Date of Termination occurs, at the rate in effect at
the time of your death, plus any Bonus earned, prorated for
the portion of the Bonus measurement period occurring prior to
the date of your death, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the date of your death, and the
5
<PAGE> 6
Company shall have no further obligation to you, your
beneficiaries or your estate under this Agreement.
(iv) If your employment shall be terminated (a) by the
Company other than for Cause or Disability or (b) by you for
Good Reason, then you shall be entitled to the benefits
provided below:
(A) The Company shall pay you your full base
salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given
(or, if greater, at the rate in effect 30 days prior
to the time Notice of Termination is given), plus all
other amounts to which you are entitled under any
compensation or benefit plans of the Company,
including without limitation, any Bonus measurement
period occurring prior to the Date of Termination, at
the time such payments are due, except as otherwise
provided below;
(B) in lieu of any further salary payment to you
for periods subsequent to the Date of Termination,
the Company shall pay to you your full base salary at
the rate in effect immediately prior to the time
Notice of Termination is given (or, if greater, at
the rate in effect 30 days prior to the time Notice
of Termination is given), payable periodically in
accordance with past payroll practices, until the end
of the Term;
(C) in lieu of any further Bonus payments to you
for periods subsequent to the Date of Termination,
the Company shall pay to you a Bonus payable in each
March following the Date of Termination in respect of
the previous plan fiscal year equal to the quotient
obtained by aggregating the Bonuses received by you
in respect of the two plan fiscal years ending prior
to the Date of Termination (the "Bonus Period") and
dividing such sum by two. Such Bonus shall be paid
in respect of each plan fiscal year or portion
thereof ending after the Date of Termination until
the end of the Term, and shall be prorated for
partial years, if any, including without limitation
the portion of the calendar year occurring after the
Date of Termination and the final plan fiscal year in
respect of which any such March Bonus is payable
pursuant to this Section 5(iv)(C). Provided,
however, that the amount of bonus to be paid pursuant
to this Paragraph shall not be greater than the
amount of bonus that would have been paid in
accordance with Bonus Plans, existing from time to
time, had your employment not been terminated;
(D) until the end of the Term, you will continue
to participate in all other compensation and benefit
plans (including perquisites) in which you were
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<PAGE> 7
participating immediately prior to the time Notice of
Termination is given, or comparable plans substituted
therefor; provided, however, that if you are
ineligible, (e.g., by operation of law or the terms
of the applicable plan to continue to participate in
any such plan) the Company will provide you with a
comparable level of compensation or benefits;
(E) the Company shall also pay to you all
reasonable legal fees and expenses incurred by you in
contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit
provided by this Agreement if such termination is
determined by arbitration to have been for Good
Reason or other than Cause or Disability; and
(F) if you should die after the Date of
Termination and prior to the end of the period of
payment provided for in paragraphs (B), (C), and (D)
hereof, the Company shall pay your estate or your
designated beneficiary any amounts that are or become
payable pursuant to any of such paragraphs until the
end of the Term.
(v) You shall be required to mitigate the amount of any
payment provided for in subsection (iv) of this Section 5 by
seeking and accepting, if offered, other comparable
employment, taking into consideration the provisions of
Section 9 of this Agreement, and the amount of any payment
provided for in this Section 5 shall be reduced by any
compensation earned by you during the remainder of the Term as
the result of your employment by another employer, or offset
against any amount owed by you to the Company or as otherwise
receivable by you pursuant to Subsection 5(iv)(D) shall be
reduced to the extent a comparable benefit of the same type
was made available to you during the applicable period of
benefit continuation set forth in such Subsection. Any
compensation and benefits actually received by you shall be
promptly reported to the Company.
(vi) In addition to all other amounts payable to you under
this Section 5, you shall be entitled to receive all benefits
payable to you pursuant to the terms of any plan or agreement
of the Company relating to retirement benefits.
6. Travel. You shall be required to travel to the extent
necessary for the performance of your responsibilities under this Agreement.
7. Successors; Binding Agreement. The Company will, by Agreement
in form and substance satisfactory to you, require any successor (whether
direct or indirect, by purchase merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to
7
<PAGE> 8
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption
and agreement prior to the effectiveness of any such succession shall entitle
you to compensation from the Company in the same amount and on the same terms
as you would be entitled to hereunder if you terminate your employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
8. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company (or, if you are the Secretary at the time such
notice is to be given, to the Chairman of the Company's Board of Directors), or
to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only upon receipt.
9. Noncompetition.
(i) Until the Date of Termination, you agree not to enter
into competitive endeavors and not to undertake any commercial
activity which is contrary to the best interests of the
Company or its affiliates, including becoming an employee,
owner (except for passive investments of not more than one
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), officer, consultant, agent or director of
any firm or person which either directly competes with a line
or lines of business of the Company accounting for ten percent
(10%) or more of the Company's gross sales, revenues or
earnings before taxes or derives ten percent (10%) or more of
such firm's or person's gross sales, revenues or earnings
before taxes from a line or lines of business which directly
compete with the Company. Notwithstanding any provision of
this Agreement to the contrary, you agree that your breach of
the provisions of this Section 9(i) shall permit the Company
to terminate your employment for Cause.
(ii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until
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<PAGE> 9
the later of the Date of Termination and during any period
that you continue to be paid your salary (including any other
payment in lieu of salary) pursuant to Section 5 hereof, you
agree not to become an employee, owner (except for passive
investments of not more than one percent of the outstanding
shares of, or any other equity interest in, any company or
entity listed or traded on a national securities exchange or
in an over-the-counter securities market), consultant,
officer, agent or director of any firm or person which
directly competes with a business of the Company producing any
class of products accounting for ten percent (10%) or more of
the Company's gross sales, revenues or earnings before taxes.
During the period of payment provided in Section 5 hereof, you
will be available, consistent with other responsibilities that
you may then have, to answer questions and provide advice to
the Company. Notwithstanding anything in this Agreement to
the contrary, you agree that, from and after any breach by
you of the provisions of this Section 9(ii), the Company shall
cease to have any obligations to make payments to you under
this Agreement.
(iii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you shall not directly or
indirectly, either on your own account or with or for anyone
else, (A) solicit or attempt to solicit any of the Company's
customers (B) solicit or attempt to solicit for any business
endeavor any employee of the Company or (C) otherwise divert
or attempt to divert from the Company any business whatsoever
or interfere with any business relationship between the
Company and any other person.
(iv) You acknowledge and agree that damages for breach of
the covenant not to compete in this Section 9 will be
difficult to determine and will not afford a full and adequate
remedy, and therefore agree that the Company, in addition to
seeking actual damages pursuant to Section 11 hereof, may seek
specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent
injunction, without the necessity of a bond. You and the
Company agree that the provisions of this covenant not to
compete are reasonable. However, should any court or
arbitrator determine that any provision of this covenant not
to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this
covenant not to compete should be interpreted and enforced to
the maximum extent which such court or arbitrator deems
reasonable.
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<PAGE> 10
10. Confidentiality.
(i) You shall not knowingly use, disclose or reveal to
any unauthorized person, during or after the Term, any trade
secret or other confidential information relating to the
Company or any of its affiliates, or any of their respective
businesses or principals, such as, without limitation,
dealers' or distributor's lists, information regarding
personnel and manufacturing processes, marketing and sales
plans, and all other such information; and you confirm that
such information is the exclusive property of the Company and
its affiliates. Upon termination of your employment, you
agree to return to the Company on demand of the Company all
memoranda, books, papers, letters and other data, and all
copies thereof or therefrom, in any way relating to the
business of the Company and its affiliates, whether made by
you or otherwise in your possession.
(ii) Any ideas, processes, characters, productions,
schemes, titles, names, formats, adaptations, plots, slogans,
catchwords, incidents, treatment, and dialogue which you may
conceive, create, organize, prepare or produce during the
period of your employment and which ideas, processes, etc.
relate to any of the businesses of the Company, shall be owned
by the Company and its affiliates whether or not you should in
fact execute an assignment thereof or other instrument or
document which may be reasonably necessary to protect and
secure such rights to the Company.
(iii) Notwithstanding anything in this Agreement to the
contrary, you agree that from and after any breach by you of
the provisions of this Section 10 during any period of payment
provided in Section 5 hereof, the Company shall cease to have
any obligations to make payments to you under this Agreement.
11. Arbitration.
(i) Except as contemplated by Section 9 (iii), Section 9,
(iv), and Section 11 (iii) hereof, any dispute or controversy
arising under or in connection with this Agreement that cannot
be mutually resolved by the parties to this Agreement and
their respective advisors and representatives shall be settled
exclusively by arbitration in Southfield, Michigan before one
arbitrator of exemplary qualifications and stature, who shall
be selected jointly by an individual to be designated by the
Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the
arbitrator, who shall be selected pursuant to the procedures
of the American Arbitration Association.
(ii) The parties agree to use their best efforts to cause
(a) the two individuals set forth in the preceding Section 11
(i), or, if applicable, the American Arbitration
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<PAGE> 11
Association, to appoint the arbitrator within 30 days of the
date that a party hereto notifies the other party that a
dispute or controversy exists that necessitates the
appointment of an arbitrator, and (b) any arbitration hearing
to be held within 30 days of the date of selection of the
arbitrator, and, as a condition to his or her selection, such
arbitrator must consent to be available for a hearing at such
time.
(iii) Judgment may be entered on the arbitrator's award in
any court having jurisdiction, provided that you shall be
entitled to seek specific performance of your right to be paid
and to participate in benefit programs during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company and you hereby agree that
the arbitrator shall be empowered to enter an equitable decree
mandating specific performance of the terms of this Agreement.
(iv) If you prevail in full or in substantial part, the
Company shall bear all expenses of the arbitrator incurred in
any arbitration hereunder. The Company agrees to pay your
reasonable and documented legal fees and expenses in
connection with any arbitration hereunder if you prevail in
full or in substantial part.
12. Extension of Term. The Term of this Agreement shall be
automatically extended for a period of one year on each anniversary of the
Effective Date of this Agreement; said automatic extension commencing on the
second anniversary of the Effective Date. There shall be no renewal of the
Term after the Date of Termination.
13. Modifications. No provision of this Agreement may be
modified, amended, waived or discharged unless such modification, amendment,
waiver or discharge is agreed to in writing and signed by both you and such
officer of the Company as may be specifically designated by the Board.
14. No Implied Waivers. Failure of either party at any time to
require performance by the other party of any provision hereof shall in no way
affect the full right to require such performance at any time thereafter.
Waiver by either party of a breach of any obligation hereunder shall not
constitute a waiver of any succeeding breach of the same obligation. Failure
of either party to exercise any of its rights provided herein shall not
constitute a waiver of such right.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
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16. Payments Net of Taxes. Any payments provided for herein which
are subject to Federal, State or local tax or other withholding requirements,
shall have such amounts withheld prior to payment.
17. Survival of Obligations. The obligations of the Company under
Section 5(iii) and your obligations under Sections 9 and 10 hereof shall
survive the expiration of the Term of this Agreement.
18. Capacity of Parties. The parties hereto warrant that they
have the capacity and authority to execute this Agreement.
19. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. Entire Agreement. This Agreement and any attachments hereto,
contain the entire agreement by the parties with respect to the matters covered
herein and supersedes any prior agreement (including without limitation any
prior employment agreement), condition, practice, custom, usage and obligation
with respect to such matters insofar as any such prior agreement, condition,
practice, custom, usage or obligation might have given rise to any enforceable
right. No agreements, understandings or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
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<PAGE> 13
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 20,
1995 ("Effective Date").
Sincerely,
LEAR SEATING CORPORATION
BY: /s/ Kenneth L. Way
------------------------------------
Agreed to this day of March, 1995
------
BY: /s/ Robert E. Rossiter
------------------------------------
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<PAGE> 1
EXHIBIT 10.11
March 20, 1995
Mr. James H. Vandenberghe
542 Briarcliff
Grosse Pointe Woods, Michigan 48236
Dear Mr. Vandenberghe:
Lear Seating Corporation (the "Company") considers it essential to its
best interest and the best interests of its stockholders to foster the
continuous employment of key management personnel.
The Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
yourself, to their assigned duties. In order to induce you to remain in the
employ of the Company, and in consideration of your agreement to the
termination of any existing employment contract you may have with the Company
or any predecessor; the Company agrees that you shall receive, upon the terms
and conditions set forth herein, the compensation and benefits set forth in
this letter agreement ("Agreement") during the Term hereof.
1. Term of Agreement. This Agreement shall commence as of the
Effective Date (as defined on the signature page hereof) and shall continue in
effect until the fourth anniversary of such date (the "Term"). The Term may be
extended pursuant to paragraph 12, hereafter.
2. Terms of Employment. During the Term, you agree to be a
full-time employee of the Company serving in the position of Executive Vice
President and Chief Financial Officer of the Company and to devote
substantially all of your working time and attention to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities associated with your position as Executive Vice President and
Chief Financial Officer of the Company, to use your best efforts to perform
faithfully and efficiently such responsibilities. In addition, you agree to
serve in such other capacities or offices to which you may be assigned,
appointed or elected from time to time by the Board. Nothing herein shall
prohibit you from devoting your time to civic and community activities, serving
as a member of the Board of Directors of other corporations who do not compete
with the Company (provided that you have received prior written approval from
the Company's Chairman), or managing personal investments, as long as the
foregoing do not interfere with the performance of your duties hereunder.
<PAGE> 2
3. Compensation.
(i) As compensation for your services, under this
Agreement, you shall be entitled to receive an initial base
salary of $272,000 per annum, to be paid in accordance with
existing payroll practices for executives of the Company.
Increases in your base salary, if any, shall be determined by
the Compensation Committee of the Board of Directors. In
addition, you shall be eligible to receive an annual incentive
compensation bonus ("Bonus") to be determined from time to
time by the Compensation Committee of the Board of Directors
of the Company.
(ii) In addition to compensation provided for in
Subsection (i) of this Section 3, the Company agrees (A) to
provide the same or comparable benefits with respect to any
compensation or benefit plan in which you participate as of
the Effective Date which is material to your total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan; and (B) to maintain your ability to
participate therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms
of the opportunities provided and the level of your
participation relative to other participants, than exists on
the Effective Date.
(iii) The Company shall reimburse you for all reasonable
travel, entertainment and other business expenses incurred by
you in the performance of your responsibilities under this
Agreement promptly upon receipt of written substantiation of
such expenses. You shall also be paid all additional amounts
necessary to discharge all federal and state tax liabilities
incurred by you that are attributable to all deemed
compensation arising as a consequence of your personal use of
property owned or leased by the Company, excepting only your
personal use of any Company aircraft, including federal and
state taxes assessed against such additional compensation.
(iv) You shall be entitled to perquisites available to all
other executives of the Company and shall be entitled to 4
weeks of vacation per year.
4. Termination of Employment. Your employment may be terminated
by either the Company or you by giving a Notice of Termination, as defined in
Subsection (iv) of this Section 4. If your employment should terminate during
the Term, your entitlement to benefits shall be determined in accordance with
Section 5 hereof.
(i) Disability. If, as a result of your incapacity due
to physical or mental illness, you are unable to perform your
duties hereunder for more than six consecutive
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<PAGE> 3
months or six months aggregate during any twelve month
period, your employment may be terminated for "Disability".
(ii) Cause. Termination of your employment for "Cause"
shall mean termination upon (A) the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
Disability), (B) the engaging by you in conduct which is
significantly injurious to the Company, monetarily or
otherwise, (C) your conviction of a felony, (D) your abuse of
illegal drugs or other controlled substances or your habitual
intoxication, or (E) the breach of any of your material
obligations hereunder including without limitation any breach
of Section 9 or 10 hereof. For purposes of this Subsection,
no act or failure to act, on your part shall be deemed
"willful" unless knowingly done, or omitted to be done, by you
not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
(iii) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without your express
written consent, of any of the following circumstances unless
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as such
terms are defined in Subsections (v) and (iv) of this Section
4, respectively, given in respect thereof:
(A) The permanent assignment to you of any duties
inconsistent with your status as an executive officer
of the Company, your physical relocation on a
permanent basis to an area outside of the
metropolitan Detroit area, a substantial adverse
alteration in the nature or status of your
responsibilities from those in effect immediately
prior to such assignment of duties, your removal from
any office specified in Section 2 hereof;
(B) Any reduction by the Company in your base
salary as in effect from time to time, except for
across-the-board salary reductions similarly
affecting all executive officers of the Company;
(C) The failure by the Company to pay or provide
to you within seven (7) days of receipt by the
Company of your written demand any amounts of base
salary or Bonus or any benefits which are due, owing
and payable to you pursuant to the terms hereof,
except pursuant to an across-the-board compensation
deferral similarly affecting all executive officers,
or to pay to you any portion of an installment of
deferred compensation due under any deferred
compensation program of the Company;
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(D) Except in the case of across-the-board
reductions, deferrals or eliminations similarly
affecting all executive officers of the Company, the
failure by the Company to (i) continue in effect any
compensation plan in which you participate which is
material to your total compensation, including but
not limited to the Company's plans currently in
effect or hereafter adopted, and any plans adopted in
substitution therefore, or (ii) continue to provide
you with benefits substantially similar, in
aggregate, to the Company's life insurance, medical,
dental, health, accident or disability plans in which
you are participating at the date of this Agreement;
or
(E) The failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 7 hereof.
Your continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any termination of your
employment by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 8 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated.
(v) Date of Termination, Etc. "Date of Termination"
shall mean (A) if your employment is terminated for Disability
pursuant to Subsection (i) of this Section 4, thirty (30) days
after Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties
during such thirty (30) day period), (B) if your employment is
terminated by reason of your death, the date of your death,
(C) if by you for Good Reason or by either party for any other
reason (other than Disability, death, or your voluntary
resignation without Good Reason), the date specified in the
Notice of Termination (which, in the case of a termination by
you for Good Reason, shall not be less than thirty (30) nor
more than sixty (60) days from the date such Notice of
Termination is given), and (D) if your employment is
terminated by your voluntary resignation without Good Reason
(as defined in Subsection (iii) of this Section 4), the Date
of Termination shall be forty-five (45) days from the date
such Notice of Termination is given or such other date as may
be identified by the Company. Unless the Company instructs
you not to do
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<PAGE> 5
so, you shall continue to perform services as provided in this
Agreement through the Date of Termination.
5. Compensation Upon Termination or During Disability. Upon
termination of your employment with the Company during the Term, you shall be
entitled to the following compensation and benefits:
(i) If your employment is terminated for Disability, you
shall receive until the end of the Term all compensation
payable to you under the Company's disability and medical
plans and programs, as in effect on the Date of Termination
plus an additional payment from the Company (if necessary)
such that the aggregate amount received by you in the nature
of salary continuation from all sources equals your base
salary at the rate in effect on the Date of Termination.
After the end of the Term, your benefits shall be determined
under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the
terms of such programs, provided that such terms shall not be
less advantageous to you than the terms of such programs in
effect as of the Effective Date.
(ii) If your employment shall be terminated (A) by the
Company for Cause, or (B) by you other than for Good Reason,
the Company shall pay you your full base salary through the
Date of Termination, at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the time such payments are due, and the Company
shall have no further obligations to you under this Agreement.
Provided, however, that if your employment is terminated by
your voluntary resignation without Good Reason, you shall be
compensated per this Paragraph only to the extent that you
actively performed your assigned responsibilities through the
Date of Termination.
(iii) If your employment shall be terminated by reason of
your death, the Company shall pay your estate or designated
beneficiary (as designated by you by written notice to the
Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked
or a new beneficiary is designated, in either case by written
notice to the Company) your full base salary through the Date
of Termination and for a period of 12 whole calendar months
thereafter plus, if the Date of Termination shall not occur on
the first day of a calendar month, the balance of the month in
which the Date of Termination occurs, at the rate in effect at
the time of your death, plus any Bonus earned, prorated for
the portion of the Bonus measurement period occurring prior to
the date of your death, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the date of your death, and the
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<PAGE> 6
Company shall have no further obligation to you, your
beneficiaries or your estate under this Agreement.
(iv) If your employment shall be terminated (a) by the
Company other than for Cause or Disability or (b) by you for
Good Reason, then you shall be entitled to the benefits
provided below:
(A) The Company shall pay you your full base
salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given
(or, if greater, at the rate in effect 30 days prior
to the time Notice of Termination is given), plus all
other amounts to which you are entitled under any
compensation or benefit plans of the Company,
including without limitation, any Bonus measurement
period occurring prior to the Date of Termination, at
the time such payments are due, except as otherwise
provided below;
(B) in lieu of any further salary payment to you
for periods subsequent to the Date of Termination,
the Company shall pay to you your full base salary at
the rate in effect immediately prior to the time
Notice of Termination is given (or, if greater, at
the rate in effect 30 days prior to the time Notice
of Termination is given), payable periodically in
accordance with past payroll practices, until the end
of the Term;
(C) in lieu of any further Bonus payments to you
for periods subsequent to the Date of Termination,
the Company shall pay to you a Bonus payable in each
March following the Date of Termination in respect of
the previous plan fiscal year equal to the quotient
obtained by aggregating the Bonuses received by you
in respect of the two plan fiscal years ending prior
to the Date of Termination (the "Bonus Period") and
dividing such sum by two. Such Bonus shall be paid
in respect of each plan fiscal year or portion
thereof ending after the Date of Termination until
the end of the Term, and shall be prorated for
partial years, if any, including without limitation
the portion of the calendar year occurring after the
Date of Termination and the final plan fiscal year in
respect of which any such March Bonus is payable
pursuant to this Section 5(iv)(C). Provided,
however, that the amount of bonus to be paid pursuant
to this Paragraph shall not be greater than the
amount of bonus that would have been paid in
accordance with Bonus Plans, existing from time to
time, had your employment not been terminated;
(D) until the end of the Term, you will continue
to participate in all other compensation and benefit
plans (including perquisites) in which you were
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<PAGE> 7
participating immediately prior to the time Notice of
Termination is given, or comparable plans substituted
therefor; provided, however, that if you are
ineligible, (e.g., by operation of law or the terms
of the applicable plan to continue to participate in
any such plan) the Company will provide you with a
comparable level of compensation or benefits;
(E) the Company shall also pay to you all
reasonable legal fees and expenses incurred by you in
contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit
provided by this Agreement if such termination is
determined by arbitration to have been for Good
Reason or other than Cause or Disability; and
(F) if you should die after the Date of
Termination and prior to the end of the period of
payment provided for in paragraphs (B), (C), and (D)
hereof, the Company shall pay your estate or your
designated beneficiary any amounts that are or become
payable pursuant to any of such paragraphs until the
end of the Term.
(v) You shall be required to mitigate the amount of any
payment provided for in subsection (iv) of this Section 5 by
seeking and accepting, if offered, other comparable
employment, taking into consideration the provisions of
Section 9 of this Agreement, and the amount of any payment
provided for in this Section 5 shall be reduced by any
compensation earned by you during the remainder of the Term as
the result of your employment by another employer, or offset
against any amount owed by you to the Company or as otherwise
receivable by you pursuant to Subsection 5(iv)(D) shall be
reduced to the extent a comparable benefit of the same type
was made available to you during the applicable period of
benefit continuation set forth in such Subsection. Any
compensation and benefits actually received by you shall be
promptly reported to the Company.
(vi) In addition to all other amounts payable to you under
this Section 5, you shall be entitled to receive all benefits
payable to you pursuant to the terms of any plan or agreement
of the Company relating to retirement benefits.
6. Travel. You shall be required to travel to the extent
necessary for the performance of your responsibilities under this Agreement.
7. Successors; Binding Agreement. The Company will, by Agreement
in form and substance satisfactory to you, require any successor (whether
direct or indirect, by purchase merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to
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<PAGE> 8
the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption
and agreement prior to the effectiveness of any such succession shall entitle
you to compensation from the Company in the same amount and on the same terms
as you would be entitled to hereunder if you terminate your employment for Good
Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
8. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company (or, if you are the Secretary at the time such
notice is to be given, to the Chairman of the Company's Board of Directors), or
to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall
be effective only upon receipt.
9. Noncompetition.
(i) Until the Date of Termination, you agree not to enter
into competitive endeavors and not to undertake any commercial
activity which is contrary to the best interests of the
Company or its affiliates, including becoming an employee,
owner (except for passive investments of not more than one
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), officer, consultant, agent or director of
any firm or person which either directly competes with a line
or lines of business of the Company accounting for ten percent
(10%) or more of the Company's gross sales, revenues or
earnings before taxes or derives ten percent (10%) or more of
such firm's or person's gross sales, revenues or earnings
before taxes from a line or lines of business which directly
compete with the Company. Notwithstanding any provision of
this Agreement to the contrary, you agree that your breach of
the provisions of this Section 9(i) shall permit the Company
to terminate your employment for Cause.
(ii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until
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<PAGE> 9
the later of the Date of Termination and during any period
that you continue to be paid your salary (including any other
payment in lieu of salary) pursuant to Section 5 hereof, you
agree not to become an employee, owner (except for passive
investments of not more than one percent of the outstanding
shares of, or any other equity interest in, any company or
entity listed or traded on a national securities exchange or
in an over-the-counter securities market), consultant,
officer, agent or director of any firm or person which
directly competes with a business of the Company producing any
class of products accounting for ten percent (10%) or more of
the Company's gross sales, revenues or earnings before taxes.
During the period of payment provided in Section 5 hereof, you
will be available, consistent with other responsibilities that
you may then have, to answer questions and provide advice to
the Company. Notwithstanding anything in this Agreement to
the contrary, you agree that, from and after any breach by
you of the provisions of this Section 9(ii), the Company shall
cease to have any obligations to make payments to you under
this Agreement.
(iii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you shall not directly or
indirectly, either on your own account or with or for anyone
else, (A) solicit or attempt to solicit any of the Company's
customers (B) solicit or attempt to solicit for any business
endeavor any employee of the Company or (C) otherwise divert
or attempt to divert from the Company any business whatsoever
or interfere with any business relationship between the
Company and any other person.
(iv) You acknowledge and agree that damages for breach of
the covenant not to compete in this Section 9 will be
difficult to determine and will not afford a full and adequate
remedy, and therefore agree that the Company, in addition to
seeking actual damages pursuant to Section 11 hereof, may seek
specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent
injunction, without the necessity of a bond. You and the
Company agree that the provisions of this covenant not to
compete are reasonable. However, should any court or
arbitrator determine that any provision of this covenant not
to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this
covenant not to compete should be interpreted and enforced to
the maximum extent which such court or arbitrator deems
reasonable.
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<PAGE> 10
10. Confidentiality.
(i) You shall not knowingly use, disclose or reveal to
any unauthorized person, during or after the Term, any trade
secret or other confidential information relating to the
Company or any of its affiliates, or any of their respective
businesses or principals, such as, without limitation,
dealers' or distributor's lists, information regarding
personnel and manufacturing processes, marketing and sales
plans, and all other such information; and you confirm that
such information is the exclusive property of the Company and
its affiliates. Upon termination of your employment, you
agree to return to the Company on demand of the Company all
memoranda, books, papers, letters and other data, and all
copies thereof or therefrom, in any way relating to the
business of the Company and its affiliates, whether made by
you or otherwise in your possession.
(ii) Any ideas, processes, characters, productions,
schemes, titles, names, formats, adaptations, plots, slogans,
catchwords, incidents, treatment, and dialogue which you may
conceive, create, organize, prepare or produce during the
period of your employment and which ideas, processes, etc.
relate to any of the businesses of the Company, shall be owned
by the Company and its affiliates whether or not you should in
fact execute an assignment thereof or other instrument or
document which may be reasonably necessary to protect and
secure such rights to the Company.
(iii) Notwithstanding anything in this Agreement to the
contrary, you agree that from and after any breach by you of
the provisions of this Section 10 during any period of payment
provided in Section 5 hereof, the Company shall cease to have
any obligations to make payments to you under this Agreement.
11. Arbitration.
(i) Except as contemplated by Section 9 (iii), Section 9,
(iv), and Section 11 (iii) hereof, any dispute or controversy
arising under or in connection with this Agreement that cannot
be mutually resolved by the parties to this Agreement and
their respective advisors and representatives shall be settled
exclusively by arbitration in Southfield, Michigan before one
arbitrator of exemplary qualifications and stature, who shall
be selected jointly by an individual to be designated by the
Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the
arbitrator, who shall be selected pursuant to the procedures
of the American Arbitration Association.
(ii) The parties agree to use their best efforts to cause
(a) the two individuals set forth in the preceding Section 11
(i), or, if applicable, the American Arbitration
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Association, to appoint the arbitrator within 30 days of the
date that a party hereto notifies the other party that a
dispute or controversy exists that necessitates the
appointment of an arbitrator, and (b) any arbitration hearing
to be held within 30 days of the date of selection of the
arbitrator, and, as a condition to his or her selection, such
arbitrator must consent to be available for a hearing at such
time.
(iii) Judgment may be entered on the arbitrator's award in
any court having jurisdiction, provided that you shall be
entitled to seek specific performance of your right to be paid
and to participate in benefit programs during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company and you hereby agree that
the arbitrator shall be empowered to enter an equitable decree
mandating specific performance of the terms of this Agreement.
(iv) If you prevail in full or in substantial part, the
Company shall bear all expenses of the arbitrator incurred in
any arbitration hereunder. The Company agrees to pay your
reasonable and documented legal fees and expenses in
connection with any arbitration hereunder if you prevail in
full or in substantial part.
12. Extension of Term. The Term of this Agreement shall be
automatically extended for a period of one year on each anniversary of the
Effective Date of this Agreement; said automatic extension commencing on the
second anniversary of the Effective Date. There shall be no renewal of the
Term after the Date of Termination.
13. Modifications. No provision of this Agreement may be
modified, amended, waived or discharged unless such modification, amendment,
waiver or discharge is agreed to in writing and signed by both you and such
officer of the Company as may be specifically designated by the Board.
14. No Implied Waivers. Failure of either party at any time to
require performance by the other party of any provision hereof shall in no way
affect the full right to require such performance at any time thereafter.
Waiver by either party of a breach of any obligation hereunder shall not
constitute a waiver of any succeeding breach of the same obligation. Failure
of either party to exercise any of its rights provided herein shall not
constitute a waiver of such right.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
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16. Payments Net of Taxes. Any payments provided for herein which
are subject to Federal, State or local tax or other withholding requirements,
shall have such amounts withheld prior to payment.
17. Survival of Obligations. The obligations of the Company under
Section 5(iii) and your obligations under Sections 9 and 10 hereof shall
survive the expiration of the Term of this Agreement.
18. Capacity of Parties. The parties hereto warrant that they
have the capacity and authority to execute this Agreement.
19. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. Entire Agreement. This Agreement and any attachments hereto,
contain the entire agreement by the parties with respect to the matters covered
herein and supersedes any prior agreement (including without limitation any
prior employment agreement), condition, practice, custom, usage and obligation
with respect to such matters insofar as any such prior agreement, condition,
practice, custom, usage or obligation might have given rise to any enforceable
right. No agreements, understandings or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
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If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 20, 1995
("Effective Date").
Sincerely,
LEAR SEATING CORPORATION
BY: /s/ Kenneth L. Way
------------------------------------
Agreed to this day of March, 1995
------
BY: /s/ James H. Vandenberghe
------------------------------------
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EXHIBIT 10.12
March 20, 1995
Mr. James A. Hollars
21557 Telegraph Road
Southfield, MI 48034
Dear Mr. Hollars:
Lear Seating Corporation (the "Company") considers it essential to its
best interest and the best interests of its stockholders to foster the
continuous employment of key management personnel.
The Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
yourself, to their assigned duties. In order to induce you to remain in the
employ of the Company, and in consideration of your agreement to the
termination of any existing employment contract you may have with the Company
or any predecessor; the Company agrees that you shall receive, upon the terms
and conditions set forth herein, the compensation and benefits set forth in
this letter agreement ("Agreement") during the Term hereof.
1. Term of Agreement. This Agreement shall commence as of the
Effective Date (as defined on the signature page hereof) and shall continue in
effect until the second anniversary of such date (the "Term"). The Term may be
extended pursuant to paragraph 12, hereafter.
2. Terms of Employment. During the Term, you agree to be a
full-time employee of the Company serving in the position of President -
International Operations of the Company and to devote substantially all of your
working time and attention to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities associated with your
position as President - International Operations of the Company, to use your
best efforts to perform faithfully and efficiently such responsibilities. In
addition, you agree to serve in such other capacities or offices to which you
may be assigned, appointed or elected from time to time by the Board. Nothing
herein shall prohibit you from devoting your time to civic and community
activities, serving as a member of the Board of Directors of other corporations
who do not compete with the Company (provided that you have received prior
written approval from the Company's Chairman), or managing personal
investments, as long as the foregoing do not interfere with the performance of
your duties hereunder.
<PAGE> 2
3. Compensation.
(i) As compensation for your services, under this
Agreement, you shall be entitled to receive an initial base
salary of $230,000 per annum, to be paid in accordance with
existing payroll practices for executives of the Company.
Increases in your base salary, if any, shall be determined by
the Compensation Committee of the Board of Directors. In
addition, you shall be eligible to receive an annual incentive
compensation bonus ("Bonus") to be determined from time to
time by the Compensation Committee of the Board of Directors
of the Company.
(ii) In addition to compensation provided for in
Subsection (i) of this Section 3, the Company agrees (A) to
provide the same or comparable benefits with respect to any
compensation or benefit plan in which you participate as of
the Effective Date which is material to your total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan; and (B) to maintain your ability to
participate therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms
of the opportunities provided and the level of your
participation relative to other participants, than exists on
the Effective Date.
(iii) The Company shall reimburse you for all reasonable
travel, entertainment and other business expenses incurred by
you in the performance of your responsibilities under this
Agreement promptly upon receipt of written substantiation of
such expenses. You shall also be paid all additional amounts
necessary to discharge all federal and state tax liabilities
incurred by you that are attributable to all deemed
compensation arising as a consequence of your personal use of
property owned or leased by the Company, excepting only your
personal use of any Company aircraft, including federal and
state taxes assessed against such additional compensation.
(iv) You shall be entitled to perquisites available to all
other executives of the Company and shall be entitled to 4
weeks of vacation per year.
4. Termination of Employment. Your employment may be terminated
by either the Company or you by giving a Notice of Termination, as defined in
Subsection (iv) of this Section 4. If your employment should terminate during
the Term, your entitlement to benefits shall be determined in accordance with
Section 5 hereof.
(i) Disability. If, as a result of your incapacity due
to physical or mental illness, you are unable to perform your
duties hereunder for more than six consecutive months or six
months aggregate during any twelve month period, your
employment may be terminated for "Disability".
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(ii) Cause. Termination of your employment for "Cause"
shall mean termination upon (A) the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
Disability), (B) the engaging by you in conduct which is
significantly injurious to the Company, monetarily or
otherwise, (C) your conviction of a felony, (D) your abuse of
illegal drugs or other controlled substances or your habitual
intoxication, or (E) the breach of any of your material
obligations hereunder including without limitation any breach
of Section 9 or 10 hereof. For purposes of this Subsection,
no act or failure to act, on your part shall be deemed
"willful" unless knowingly done, or omitted to be done, by you
not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
(iii) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without your express
written consent, of any of the following circumstances unless
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as such
terms are defined in Subsections (v) and (iv) of this Section
4, respectively, given in respect thereof:
(A) The permanent assignment to you of any duties
inconsistent with your status as an executive officer
of the Company, your physical relocation on a
permanent basis to an area outside of the
metropolitan Detroit area, a substantial adverse
alteration in the nature or status of your
responsibilities from those in effect immediately
prior to such assignment of duties, your removal from
any office specified in Section 2 hereof;
(B) Any reduction by the Company in your base
salary as in effect from time to time, except for
across-the- board salary reductions similarly
affecting all executive officers of the Company;
(C) The failure by the Company to pay or provide
to you within seven (7) days of receipt by the
Company of your written demand any amounts of base
salary or Bonus or any benefits which are due, owing
and payable to you pursuant to the terms hereof,
except pursuant to an across-the-board compensation
deferral similarly affecting all executive officers,
or to pay to you any portion of an installment of
deferred compensation due under any deferred
compensation program of the Company;
(D) Except in the case of across-the-board
reductions, deferrals or eliminations similarly
affecting all executive officers of the Company, the
failure by the Company to (i) continue in effect any
compensation
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<PAGE> 4
plan in which you participate which is material to
your total compensation, including but not limited to
the Company's plans currently in effect or hereafter
adopted, and any plans adopted in substitution
therefore, or (ii) continue to provide you with
benefits substantially similar, in aggregate, to the
Company's life insurance, medical, dental, health,
accident or disability plans in which you are
participating at the date of this Agreement; or
(E) The failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 7 hereof.
Your continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any termination of your
employment by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 8 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated.
(v) Date of Termination, Etc. "Date of Termination"
shall mean (A) if your employment is terminated for Disability
pursuant to Subsection (i) of this Section 4, thirty (30) days
after Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties
during such thirty (30) day period), (B) if your employment is
terminated by reason of your death, the date of your death,
(C) if by you for Good Reason or by either party for any other
reason (other than Disability, death, or your voluntary
resignation without Good Reason), the date specified in the
Notice of Termination (which, in the case of a termination by
you for Good Reason, shall not be less than thirty (30) nor
more than sixty (60) days from the date such Notice of
Termination is given), and (D) if your employment is
terminated by your voluntary resignation without Good Reason
(as defined in Subsection (iii) of this Section 4), the Date
of Termination shall be forty-five (45) days from the date
such Notice of Termination is given or such other date as may
be identified by the Company. Unless the Company instructs
you not to do so, you shall continue to perform services as
provided in this Agreement through the Date of Termination.
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<PAGE> 5
5. Compensation Upon Termination or During Disability. Upon
termination of your employment with the Company during the Term, you shall be
entitled to the following compensation and benefits:
(i) If your employment is terminated for Disability, you
shall receive until the end of the Term all compensation
payable to you under the Company's disability and medical
plans and programs, as in effect on the Date of Termination
plus an additional payment from the Company (if necessary)
such that the aggregate amount received by you in the nature
of salary continuation from all sources equals your base
salary at the rate in effect on the Date of Termination.
After the end of the Term, your benefits shall be determined
under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the
terms of such programs, provided that such terms shall not be
less advantageous to you than the terms of such programs in
effect as of the Effective Date.
(ii) If your employment shall be terminated (A) by the
Company for Cause, or (B) by you other than for Good Reason,
the Company shall pay you your full base salary through the
Date of Termination, at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the time such payments are due, and the Company
shall have no further obligations to you under this Agreement.
Provided, however, that if your employment is terminated by
your voluntary resignation without Good Reason, you shall be
compensated per this Paragraph only to the extent that you
actively performed your assigned responsibilities through the
Date of Termination.
(iii) If your employment shall be terminated by reason of
your death, the Company shall pay your estate or designated
beneficiary (as designated by you by written notice to the
Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked
or a new beneficiary is designated, in either case by written
notice to the Company) your full base salary through the Date
of Termination and for a period of 12 whole calendar months
thereafter plus, if the Date of Termination shall not occur on
the first day of a calendar month, the balance of the month in
which the Date of Termination occurs, at the rate in effect at
the time of your death, plus any Bonus earned, prorated for
the portion of the Bonus measurement period occurring prior to
the date of your death, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the date of your death, and the Company shall have
no further obligation to you, your beneficiaries or your
estate under this Agreement.
(iv) If your employment shall be terminated (a) by the
Company other than
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<PAGE> 6
for Cause or Disability or (b) by you for Good Reason, then
you shall be entitled to the benefits provided below:
(A) The Company shall pay you your full base
salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given
(or, if greater, at the rate in effect 30 days prior
to the time Notice of Termination is given), plus all
other amounts to which you are entitled under any
compensation or benefit plans of the Company,
including without limitation, any Bonus measurement
period occurring prior to the Date of Termination, at
the time such payments are due, except as otherwise
provided below;
(B) in lieu of any further salary payment to you
for periods subsequent to the Date of Termination,
the Company shall pay to you your full base salary at
the rate in effect immediately prior to the time
Notice of Termination is given (or, if greater, at
the rate in effect 30 days prior to the time Notice
of Termination is given), payable periodically in
accordance with past payroll practices, until the end
of the Term;
(C) in lieu of any further Bonus payments to you
for periods subsequent to the Date of Termination,
the Company shall pay to you a Bonus payable in each
March following the Date of Termination in respect of
the previous plan fiscal year equal to the quotient
obtained by aggregating the Bonuses received by you
in respect of the two plan fiscal years ending prior
to the Date of Termination (the "Bonus Period") and
dividing such sum by two. Such Bonus shall be paid
in respect of each plan fiscal year or portion
thereof ending after the Date of Termination until
the end of the Term, and shall be prorated for
partial years, if any, including without limitation
the portion of the calendar year occurring after the
Date of Termination and the final plan fiscal year in
respect of which any such March Bonus is payable
pursuant to this Section 5(iv)(C). Provided,
however, that the amount of bonus to be paid pursuant
to this Paragraph shall not be greater than the
amount of bonus that would have been paid in
accordance with Bonus Plans, existing from time to
time, had your employment not been terminated;
(D) until the end of the Term, you will continue
to participate in all other compensation and benefit
plans (including perquisites) in which you were
participating immediately prior to the time Notice of
Termination is given, or comparable plans substituted
therefor; provided, however, that if you are
ineligible, (e.g., by operation of law or the terms
of the applicable plan to continue to participate in
any
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<PAGE> 7
such plan) the Company will provide you with a
able level of compensation or benefits;
(E) the Company shall also pay to you all
reasonable legal fees and expenses incurred by you in
contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit
provided by this Agreement if such termination is
determined by arbitration to have been for Good
Reason or other than Cause or Disability; and
(F) if you should die after the Date of
Termination and prior to the end of the period of
payment provided for in paragraphs (B), (C), and (D)
hereof, the Company shall pay your estate or your
designated beneficiary any amounts that are or become
payable pursuant to any of such paragraphs until the
end of the Term.
(v) You shall be required to mitigate the amount of any
payment provided for in subsection (iv) of this Section 5 by
seeking and accepting, if offered, other comparable
employment, taking into consideration the provisions of
Section 9 of this Agreement, and the amount of any payment
provided for in this Section 5 shall be reduced by any
compensation earned by you during the remainder of the Term as
the result of your employment by another employer, or offset
against any amount owed by you to the Company or as otherwise
receivable by you pursuant to Subsection 5(iv)(D) shall be
reduced to the extent a comparable benefit of the same type
was made available to you during the applicable period of
benefit continuation set forth in such Subsection. Any
compensation and benefits actually received by you shall be
promptly reported to the Company.
(vi) In addition to all other amounts payable to you under
this Section 5, you shall be entitled to receive all benefits
payable to you pursuant to the terms of any plan or agreement
of the Company relating to retirement benefits.
6. Travel. You shall be required to travel to the extent
necessary for the performance of your responsibilities under this Agreement.
7. Successors; Binding Agreement. The Company will, by Agreement
in form and substance satisfactory to you, require any successor (whether
direct or indirect, by purchase merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall entitle you
to compensation
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<PAGE> 8
from the Company in the same amount and on the same terms as you would be
entitled to hereunder if you terminate your employment for Good Reason, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used
in this Agreement, "Company" shall mean the Company as herein before defined
and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
8. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company (or, if you are the Secretary at the time such
notice is to be given, to the Company's Board of Directors), or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
9. Noncompetition.
(i) Until the Date of Termination, you agree not to enter
into competitive endeavors and not to undertake any commercial
activity which is contrary to the best interests of the
Company or its affiliates, including becoming an employee,
owner (except for passive investments of not more than one
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), officer, consultant, agent or director of
any firm or person which either directly competes with a line
or lines of business of the Company accounting for ten percent
(10%) or more of the Company's gross sales, revenues or
earnings before taxes or derives ten percent (10%) or more of
such firm's or person's gross sales, revenues or earnings
before taxes from a line or lines of business which directly
compete with the Company. Notwithstanding any provision of
this Agreement to the contrary, you agree that your breach of
the provisions of this Section 9(i) shall permit the Company
to terminate your employment for Cause.
(ii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you agree not to become an
employee, owner (except for passive investments of not more
than one
8
<PAGE> 9
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), consultant, officer, agent or director of
any firm or person which directly competes with a business of
the Company producing any class of products accounting for ten
percent (10%) or more of the Company's gross sales, revenues
or earnings before taxes. During the period of payment
provided in Section 5 hereof, you will be available,
consistent with other responsibilities that you may then have,
to answer questions and provide advice to the Company.
Notwithstanding anything in this Agreement to the contrary,
you agree that, from and after any breach by you of the
provisions of this Section 9(ii), the Company shall cease to
have any obligations to make payments to you under this
Agreement.
(iii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you shall not directly or
indirectly, either on your own account or with or for anyone
else, (A) solicit or attempt to solicit any of the Company's
customers (B) solicit or attempt to solicit for any business
endeavor any employee of the Company or (C) otherwise divert
or attempt to divert from the Company any business whatsoever
or interfere with any business relationship between the
Company and any other person.
(iv) You acknowledge and agree that damages for breach of
the covenant not to compete in this Section 9 will be
difficult to determine and will not afford a full and adequate
remedy, and therefore agree that the Company, in addition to
seeking actual damages pursuant to Section 11 hereof, may seek
specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent
injunction, without the necessity of a bond. You and the
Company agree that the provisions of this covenant not to
compete are reasonable. However, should any court or
arbitrator determine that any provision of this covenant not
to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this
covenant not to compete should be interpreted and enforced to
the maximum extent which such court or arbitrator deems
reasonable.
10. Confidentiality.
(i) You shall not knowingly use, disclose or reveal to
any unauthorized
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<PAGE> 10
person, during or after the Term, any trade secret or other
confidential information relating to the Company or any of its
affiliates, or any of their respective businesses or
principals, such as, without limitation, dealers' or
distributor's lists, information regarding personnel and
manufacturing processes, marketing and sales plans, and all
other such information; and you confirm that such information
is the exclusive property of the Company and its affiliates.
Upon termination of your employment, you agree to return to
the Company on demand of the Company all memoranda, books,
papers, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of the Company
and its affiliates, whether made by you or otherwise in your
possession.
(ii) Any ideas, processes, characters, productions,
schemes, titles, names, formats, adaptations, plots, slogans,
catchwords, incidents, treatment, and dialogue which you may
conceive, create, organize, prepare or produce during the
period of your employment and which ideas, processes, etc.
relate to any of the businesses of the Company, shall be owned
by the Company and its affiliates whether or not you should in
fact execute an assignment thereof or other instrument or
document which may be reasonably necessary to protect and
secure such rights to the Company.
(iii) Notwithstanding anything in this Agreement to the
contrary, you agree that from and after any breach by you of
the provisions of this Section 10 during any period of payment
provided in Section 5 hereof, the Company shall cease to have
any obligations to make payments to you under this Agreement.
11. Arbitration.
(i) Except as contemplated by Section 9 (iii), Section 9,
(iv), and Section 11 (iii) hereof, any dispute or controversy
arising under or in connection with this Agreement that cannot
be mutually resolved by the parties to this Agreement and
their respective advisors and representatives shall be settled
exclusively by arbitration in Southfield, Michigan before one
arbitrator of exemplary qualifications and stature, who shall
be selected jointly by an individual to be designated by the
Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the
arbitrator, who shall be selected pursuant to the procedures
of the American Arbitration Association.
(ii) The parties agree to use their best efforts to cause
(a) the two individuals set forth in the preceding Section 11
(i), or, if applicable, the American Arbitration Association,
to appoint the arbitrator within 30 days of the date that a
party hereto notifies the other party that a dispute or
controversy exists that necessitates the appointment of an
arbitrator, and (b)
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<PAGE> 11
any arbitration hearing to be held within 30 days of the date
of selection of the arbitrator, and, as a condition to his or
her selection, such arbitrator must consent to be available
for a hearing at such time.
(iii) Judgment may be entered on the arbitrator's award in
any court having jurisdiction, provided that you shall be
entitled to seek specific performance of your right to be paid
and to participate in benefit programs during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company and you hereby agree that
the arbitrator shall be empowered to enter an equitable decree
mandating specific performance of the terms of this Agreement.
(iv) If you prevail in full or in substantial part, the
Company shall bear all expenses of the arbitrator incurred in
any arbitration hereunder. The Company agrees to pay your
reasonable and documented legal fees and expenses in
connection with any arbitration hereunder if you prevail in
full or in substantial part.
12. Extension of Term. The Term of this Agreement shall be
automatically extended for a period of one year on each anniversary of the
Effective Date of this Agreement. There shall be no renewal of the Term after
the Date of Termination.
13. Modifications. No provision of this Agreement may be
modified, amended, waived or discharged unless such modification, amendment,
waiver or discharge is agreed to in writing and signed by both you and such
officer of the Company as may be specifically designated by the Board.
14. No Implied Waivers. Failure of either party at any time to
require performance by the other party of any provision hereof shall in no way
affect the full right to require such performance at any time thereafter.
Waiver by either party of a breach of any obligation hereunder shall not
constitute a waiver of any succeeding breach of the same obligation. Failure
of either party to exercise any of its rights provided herein shall not
constitute a waiver of such right.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
16. Payments Net of Taxes. Any payments provided for herein which
are subject to Federal, State or local tax or other withholding requirements,
shall have such amounts withheld prior to payment.
17. Survival of Obligations. The obligations of the Company under
Section 5(iii) and your obligations under Sections 9 and 10 hereof shall
survive the expiration of the Term of this Agreement.
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<PAGE> 12
18. Capacity of Parties. The parties hereto warrant that they
have the capacity and authority to execute this Agreement.
19. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. Entire Agreement. This Agreement and any attachments hereto,
contain the entire agreement by the parties with respect to the matters covered
herein and supersedes any prior agreement (including without limitation any
prior employment agreement), condition, practice, custom, usage and obligation
with respect to such matters insofar as any such prior agreement, condition,
practice, custom, usage or obligation might have given rise to any enforceable
right. No agreements, understandings or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 20,
1995 ("Effective Date").
Sincerely,
LEAR SEATING CORPORATION
BY: /s/ Kenneth L. Way
------------------------------------
Agreed to this day of March, 1995
------
BY: /s/ James A. Hollars
-------------------------------------
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<PAGE> 1
EXHIBIT 10.13
March 20, 1995
Mr. Barthold H. Hoemann
990 Wellsley Court
Bloomfield Hills, MI 48304
Dear Mr. Hoemann:
Lear Seating Corporation (the "Company") considers it essential to its
best interest and the best interests of its stockholders to foster the
continuous employment of key management personnel.
The Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management, including
yourself, to their assigned duties. In order to induce you to remain in the
employ of the Company, and in consideration of your agreement to the
termination of any existing employment contract you may have with the Company
or any predecessor; the Company agrees that you shall receive, upon the terms
and conditions set forth herein, the compensation and benefits set forth in
this letter agreement ("Agreement") during the Term hereof.
1. Term of Agreement. This Agreement shall commence as of the
Effective Date (as defined on the signature page hereof) and shall continue in
effect until the second anniversary of such date (the "Term"). The Term may be
extended pursuant to paragraph 12, hereafter.
2. Terms of Employment. During the Term, you agree to be a
full-time employee of the Company serving in the position of President - Ford
Division of the Company and to devote substantially all of your working time
and attention to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities associated with your position as
President - Ford Division of the Company, to use your best efforts to perform
faithfully and efficiently such responsibilities. In addition, you agree to
serve in such other capacities or offices to which you may be assigned,
appointed or elected from time to time by the Board. Nothing herein shall
prohibit you from devoting your time to civic and community activities, serving
as a member of the Board of Directors of other corporations who do not compete
with the Company (provided that you have received prior written approval from
the Company's Chairman), or managing personal investments, as long as the
foregoing do not interfere with the performance of your duties hereunder.
<PAGE> 2
3. Compensation.
(i) As compensation for your services, under this
Agreement, you shall be entitled to receive an initial base
salary of $220,000 per annum, to be paid in accordance with
existing payroll practices for executives of the Company.
Increases in your base salary, if any, shall be determined by
the Compensation Committee of the Board of Directors. In
addition, you shall be eligible to receive an annual incentive
compensation bonus ("Bonus") to be determined from time to
time by the Compensation Committee of the Board of Directors
of the Company.
(ii) In addition to compensation provided for in
Subsection (i) of this Section 3, the Company agrees (A) to
provide the same or comparable benefits with respect to any
compensation or benefit plan in which you participate as of
the Effective Date which is material to your total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with
respect to such plan; and (B) to maintain your ability to
participate therein (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms
of the opportunities provided and the level of your
participation relative to other participants, than exists on
the Effective Date.
(iii) The Company shall reimburse you for all reasonable
travel, entertainment and other business expenses incurred by
you in the performance of your responsibilities under this
Agreement promptly upon receipt of written substantiation of
such expenses. You shall also be paid all additional amounts
necessary to discharge all federal and state tax liabilities
incurred by you that are attributable to all deemed
compensation arising as a consequence of your personal use of
property owned or leased by the Company, excepting only your
personal use of any Company aircraft, including federal and
state taxes assessed against such additional compensation.
(iv) You shall be entitled to perquisites available to all
other executives of the Company and shall be entitled to 4
weeks of vacation per year.
4. Termination of Employment. Your employment may be terminated
by either the Company or you by giving a Notice of Termination, as defined in
Subsection (iv) of this Section 4. If your employment should terminate during
the Term, your entitlement to benefits shall be determined in accordance with
Section 5 hereof.
(i) Disability. If, as a result of your incapacity due
to physical or mental illness, you are unable to perform your
duties hereunder for more than six consecutive months or six
months aggregate during any twelve month period, your
employment may be terminated for "Disability".
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<PAGE> 3
(ii) Cause. Termination of your employment for "Cause"
shall mean termination upon (A) the willful and continued
failure by you to substantially perform your duties with the
Company (other than any such failure resulting from your
Disability), (B) the engaging by you in conduct which is
significantly injurious to the Company, monetarily or
otherwise, (C) your conviction of a felony, (D) your abuse of
illegal drugs or other controlled substances or your habitual
intoxication, or (E) the breach of any of your material
obligations hereunder including without limitation any breach
of Section 9 or 10 hereof. For purposes of this Subsection,
no act or failure to act, on your part shall be deemed
"willful" unless knowingly done, or omitted to be done, by you
not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
(iii) Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without your express
written consent, of any of the following circumstances unless
such circumstances are fully corrected prior to the Date of
Termination specified in the Notice of Termination, as such
terms are defined in Subsections (v) and (iv) of this Section
4, respectively, given in respect thereof:
(A) The permanent assignment to you of any duties
inconsistent with your status as an executive officer
of the Company, your physical relocation on a
permanent basis to an area outside of the
metropolitan Detroit area, a substantial adverse
alteration in the nature or status of your
responsibilities from those in effect immediately
prior to such assignment of duties, your removal from
any office specified in Section 2 hereof;
(B) Any reduction by the Company in your base
salary as in effect from time to time, except for
across-the- board salary reductions similarly
affecting all executive officers of the Company;
(C) The failure by the Company to pay or provide
to you within seven (7) days of receipt by the
Company of your written demand any amounts of base
salary or Bonus or any benefits which are due, owing
and payable to you pursuant to the terms hereof,
except pursuant to an across-the-board compensation
deferral similarly affecting all executive officers,
or to pay to you any portion of an installment of
deferred compensation due under any deferred
compensation program of the Company;
(D) Except in the case of across-the-board
reductions, deferrals or eliminations similarly
affecting all executive officers of the Company, the
failure by the Company to (i) continue in effect any
compensation
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<PAGE> 4
plan in which you participate which is material to
your total compensation, including but not limited to
the Company's plans currently in effect or hereafter
adopted, and any plans adopted in substitution
therefore, or (ii) continue to provide you with
benefits substantially similar, in aggregate, to the
Company's life insurance, medical, dental, health,
accident or disability plans in which you are
participating at the date of this Agreement; or
(E) The failure of the Company to obtain a
satisfactory agreement from any successor to assume
and agree to perform this Agreement, as contemplated
in Section 7 hereof.
Your continued employment with the Company shall not
constitute consent to, or a waiver of rights with respect to,
any circumstance constituting Good Reason hereunder.
(iv) Notice of Termination. Any termination of your
employment by the Company or by you shall be communicated by
written Notice of Termination to the other party hereto in
accordance with Section 8 hereof. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this
agreement relied upon, if any, and shall set forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated.
(v) Date of Termination, Etc. "Date of Termination"
shall mean (A) if your employment is terminated for Disability
pursuant to Subsection (i) of this Section 4, thirty (30) days
after Notice of Termination is given (provided that you shall
not have returned to the full-time performance of your duties
during such thirty (30) day period), (B) if your employment is
terminated by reason of your death, the date of your death,
(C) if by you for Good Reason or by either party for any other
reason (other than Disability, death, or your voluntary
resignation without Good Reason), the date specified in the
Notice of Termination (which, in the case of a termination by
you for Good Reason, shall not be less than thirty (30) nor
more than sixty (60) days from the date such Notice of
Termination is given), and (D) if your employment is
terminated by your voluntary resignation without Good Reason
(as defined in Subsection (iii) of this Section 4), the Date
of Termination shall be forty-five (45) days from the date
such Notice of Termination is given or such other date as may
be identified by the Company. Unless the Company instructs
you not to do so, you shall continue to perform services as
provided in this Agreement through the Date of Termination.
4
<PAGE> 5
5. Compensation Upon Termination or During Disability. Upon
termination of your employment with the Company during the Term, you shall be
entitled to the following compensation and benefits:
(i) If your employment is terminated for Disability, you
shall receive until the end of the Term all compensation
payable to you under the Company's disability and medical
plans and programs, as in effect on the Date of Termination
plus an additional payment from the Company (if necessary)
such that the aggregate amount received by you in the nature
of salary continuation from all sources equals your base
salary at the rate in effect on the Date of Termination.
After the end of the Term, your benefits shall be determined
under the Company's retirement, insurance and other
compensation programs then in effect in accordance with the
terms of such programs, provided that such terms shall not be
less advantageous to you than the terms of such programs in
effect as of the Effective Date.
(ii) If your employment shall be terminated (A) by the
Company for Cause, or (B) by you other than for Good Reason,
the Company shall pay you your full base salary through the
Date of Termination, at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the time such payments are due, and the Company
shall have no further obligations to you under this Agreement.
Provided, however, that if your employment is terminated by
your voluntary resignation without Good Reason, you shall be
compensated per this Paragraph only to the extent that you
actively performed your assigned responsibilities through the
Date of Termination.
(iii) If your employment shall be terminated by reason of
your death, the Company shall pay your estate or designated
beneficiary (as designated by you by written notice to the
Company, which designation shall remain in effect for the
remainder of the Term and any extensions thereof until revoked
or a new beneficiary is designated, in either case by written
notice to the Company) your full base salary through the Date
of Termination and for a period of 12 whole calendar months
thereafter plus, if the Date of Termination shall not occur on
the first day of a calendar month, the balance of the month in
which the Date of Termination occurs, at the rate in effect at
the time of your death, plus any Bonus earned, prorated for
the portion of the Bonus measurement period occurring prior to
the date of your death, plus all other amounts to which you
are entitled under any compensation or benefit plans of the
Company at the date of your death, and the Company shall have
no further obligation to you, your beneficiaries or your
estate under this Agreement.
(iv) If your employment shall be terminated (a) by the
Company other than
5
<PAGE> 6
for Cause or Disability or (b) by you for Good Reason, then
you shall be entitled to the benefits provided below:
(A) The Company shall pay you your full base
salary through the Date of Termination at the rate in
effect at the time Notice of Termination is given
(or, if greater, at the rate in effect 30 days prior
to the time Notice of Termination is given), plus all
other amounts to which you are entitled under any
compensation or benefit plans of the Company,
including without limitation, any Bonus measurement
period occurring prior to the Date of Termination, at
the time such payments are due, except as otherwise
provided below;
(B) in lieu of any further salary payment to you
for periods subsequent to the Date of Termination,
the Company shall pay to you your full base salary at
the rate in effect immediately prior to the time
Notice of Termination is given (or, if greater, at
the rate in effect 30 days prior to the time Notice
of Termination is given), payable periodically in
accordance with past payroll practices, until the end
of the Term;
(C) in lieu of any further Bonus payments to you
for periods subsequent to the Date of Termination,
the Company shall pay to you a Bonus payable in each
March following the Date of Termination in respect of
the previous plan fiscal year equal to the quotient
obtained by aggregating the Bonuses received by you
in respect of the two plan fiscal years ending prior
to the Date of Termination (the "Bonus Period") and
dividing such sum by two. Such Bonus shall be paid
in respect of each plan fiscal year or portion
thereof ending after the Date of Termination until
the end of the Term, and shall be prorated for
partial years, if any, including without limitation
the portion of the calendar year occurring after the
Date of Termination and the final plan fiscal year in
respect of which any such March Bonus is payable
pursuant to this Section 5(iv)(C). Provided,
however, that the amount of bonus to be paid pursuant
to this Paragraph shall not be greater than the
amount of bonus that would have been paid in
accordance with Bonus Plans, existing from time to
time, had your employment not been terminated;
(D) until the end of the Term, you will continue
to participate in all other compensation and benefit
plans (including perquisites) in which you were
participating immediately prior to the time Notice of
Termination is given, or comparable plans substituted
therefor; provided, however, that if you are
ineligible, (e.g., by operation of law or the terms
of the applicable plan to continue to participate in
any
6
<PAGE> 7
such plan) the Company will provide you with a
able level of compensation or benefits;
(E) the Company shall also pay to you all
reasonable legal fees and expenses incurred by you in
contesting or disputing any such termination or in
seeking to obtain or enforce any right or benefit
provided by this Agreement if such termination is
determined by arbitration to have been for Good
Reason or other than Cause or Disability; and
(F) if you should die after the Date of
Termination and prior to the end of the period of
payment provided for in paragraphs (B), (C), and (D)
hereof, the Company shall pay your estate or your
designated beneficiary any amounts that are or become
payable pursuant to any of such paragraphs until the
end of the Term.
(v) You shall be required to mitigate the amount of any
payment provided for in subsection (iv) of this Section 5 by
seeking and accepting, if offered, other comparable
employment, taking into consideration the provisions of
Section 9 of this Agreement, and the amount of any payment
provided for in this Section 5 shall be reduced by any
compensation earned by you during the remainder of the Term as
the result of your employment by another employer, or offset
against any amount owed by you to the Company or as otherwise
receivable by you pursuant to Subsection 5(iv)(D) shall be
reduced to the extent a comparable benefit of the same type
was made available to you during the applicable period of
benefit continuation set forth in such Subsection. Any
compensation and benefits actually received by you shall be
promptly reported to the Company.
(vi) In addition to all other amounts payable to you under
this Section 5, you shall be entitled to receive all benefits
payable to you pursuant to the terms of any plan or agreement
of the Company relating to retirement benefits.
6. Travel. You shall be required to travel to the extent
necessary for the performance of your responsibilities under this Agreement.
7. Successors; Binding Agreement. The Company will, by Agreement
in form and substance satisfactory to you, require any successor (whether
direct or indirect, by purchase merger, consolidation or otherwise) to all or
substantially all the business and/or assets of the Company, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of the Company to obtain such assumption and
agreement prior to the effectiveness of any such succession shall entitle you
to compensation
7
<PAGE> 8
from the Company in the same amount and on the same terms as you would be
entitled to hereunder if you terminate your employment for Good Reason, except
that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination. As used
in this Agreement, "Company" shall mean the Company as herein before defined
and any successor to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or otherwise.
8. Notices. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Secretary of the Company (or, if you are the Secretary at the time such
notice is to be given, to the Company's Board of Directors), or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
9. Noncompetition.
(i) Until the Date of Termination, you agree not to enter
into competitive endeavors and not to undertake any commercial
activity which is contrary to the best interests of the
Company or its affiliates, including becoming an employee,
owner (except for passive investments of not more than one
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), officer, consultant, agent or director of
any firm or person which either directly competes with a line
or lines of business of the Company accounting for ten percent
(10%) or more of the Company's gross sales, revenues or
earnings before taxes or derives ten percent (10%) or more of
such firm's or person's gross sales, revenues or earnings
before taxes from a line or lines of business which directly
compete with the Company. Notwithstanding any provision of
this Agreement to the contrary, you agree that your breach of
the provisions of this Section 9(i) shall permit the Company
to terminate your employment for Cause.
(ii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you agree not to become an
employee, owner (except for passive investments of not more
than one
8
<PAGE> 9
percent of the outstanding shares of, or any other equity
interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter
securities market), consultant, officer, agent or director of
any firm or person which directly competes with a business of
the Company producing any class of products accounting for ten
percent (10%) or more of the Company's gross sales, revenues
or earnings before taxes. During the period of payment
provided in Section 5 hereof, you will be available,
consistent with other responsibilities that you may then have,
to answer questions and provide advice to the Company.
Notwithstanding anything in this Agreement to the contrary,
you agree that, from and after any breach by you of the
provisions of this Section 9(ii), the Company shall cease to
have any obligations to make payments to you under this
Agreement.
(iii) If you are terminated for Cause, until the later of
one year after the Date of Termination and during any period
that you continue to be paid your salary (including any other
payments in lieu of salary) pursuant to Section 5 hereof and
for one year thereafter, or if you resign or are terminated
other than for Cause, until the later of the Date of
Termination and during any period that you continue to be paid
your salary (including any other payment in lieu of salary)
pursuant to Section 5 hereof, you shall not directly or
indirectly, either on your own account or with or for anyone
else, (A) solicit or attempt to solicit any of the Company's
customers (B) solicit or attempt to solicit for any business
endeavor any employee of the Company or (C) otherwise divert
or attempt to divert from the Company any business whatsoever
or interfere with any business relationship between the
Company and any other person.
(iv) You acknowledge and agree that damages for breach of
the covenant not to compete in this Section 9 will be
difficult to determine and will not afford a full and adequate
remedy, and therefore agree that the Company, in addition to
seeking actual damages pursuant to Section 11 hereof, may seek
specific enforcement of the covenant not to compete in any
court of competent jurisdiction, including, without
limitation, by the issuance of a temporary or permanent
injunction, without the necessity of a bond. You and the
Company agree that the provisions of this covenant not to
compete are reasonable. However, should any court or
arbitrator determine that any provision of this covenant not
to compete is unreasonable, either in period of time,
geographical area, or otherwise, the parties agree that this
covenant not to compete should be interpreted and enforced to
the maximum extent which such court or arbitrator deems
reasonable.
10. Confidentiality.
(i) You shall not knowingly use, disclose or reveal to
any unauthorized
9
<PAGE> 10
person, during or after the Term, any trade secret or other
confidential information relating to the Company or any of its
affiliates, or any of their respective businesses or
principals, such as, without limitation, dealers' or
distributor's lists, information regarding personnel and
manufacturing processes, marketing and sales plans, and all
other such information; and you confirm that such information
is the exclusive property of the Company and its affiliates.
Upon termination of your employment, you agree to return to
the Company on demand of the Company all memoranda, books,
papers, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of the Company
and its affiliates, whether made by you or otherwise in your
possession.
(ii) Any ideas, processes, characters, productions,
schemes, titles, names, formats, adaptations, plots, slogans,
catchwords, incidents, treatment, and dialogue which you may
conceive, create, organize, prepare or produce during the
period of your employment and which ideas, processes, etc.
relate to any of the businesses of the Company, shall be owned
by the Company and its affiliates whether or not you should in
fact execute an assignment thereof or other instrument or
document which may be reasonably necessary to protect and
secure such rights to the Company.
(iii) Notwithstanding anything in this Agreement to the
contrary, you agree that from and after any breach by you of
the provisions of this Section 10 during any period of payment
provided in Section 5 hereof, the Company shall cease to have
any obligations to make payments to you under this Agreement.
11. Arbitration.
(i) Except as contemplated by Section 9 (iii), Section 9,
(iv), and Section 11 (iii) hereof, any dispute or controversy
arising under or in connection with this Agreement that cannot
be mutually resolved by the parties to this Agreement and
their respective advisors and representatives shall be settled
exclusively by arbitration in Southfield, Michigan before one
arbitrator of exemplary qualifications and stature, who shall
be selected jointly by an individual to be designated by the
Company and an individual to be selected by you, or if such
two individuals cannot agree on the selection of the
arbitrator, who shall be selected pursuant to the procedures
of the American Arbitration Association.
(ii) The parties agree to use their best efforts to cause
(a) the two individuals set forth in the preceding Section 11
(i), or, if applicable, the American Arbitration Association,
to appoint the arbitrator within 30 days of the date that a
party hereto notifies the other party that a dispute or
controversy exists that necessitates the appointment of an
arbitrator, and (b)
10
<PAGE> 11
any arbitration hearing to be held within 30 days of the date
of selection of the arbitrator, and, as a condition to his or
her selection, such arbitrator must consent to be available
for a hearing at such time.
(iii) Judgment may be entered on the arbitrator's award in
any court having jurisdiction, provided that you shall be
entitled to seek specific performance of your right to be paid
and to participate in benefit programs during the pendency of
any dispute or controversy arising under or in connection
with this Agreement. The Company and you hereby agree that
the arbitrator shall be empowered to enter an equitable decree
mandating specific performance of the terms of this Agreement.
(iv) If you prevail in full or in substantial part, the
Company shall bear all expenses of the arbitrator incurred in
any arbitration hereunder. The Company agrees to pay your
reasonable and documented legal fees and expenses in
connection with any arbitration hereunder if you prevail in
full or in substantial part.
12. Extension of Term. The Term of this Agreement shall be
automatically extended for a period of one year on each anniversary of the
Effective Date of this Agreement. There shall be no renewal of the Term after
the Date of Termination.
13. Modifications. No provision of this Agreement may be
modified, amended, waived or discharged unless such modification, amendment,
waiver or discharge is agreed to in writing and signed by both you and such
officer of the Company as may be specifically designated by the Board.
14. No Implied Waivers. Failure of either party at any time to
require performance by the other party of any provision hereof shall in no way
affect the full right to require such performance at any time thereafter.
Waiver by either party of a breach of any obligation hereunder shall not
constitute a waiver of any succeeding breach of the same obligation. Failure
of either party to exercise any of its rights provided herein shall not
constitute a waiver of such right.
15. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
16. Payments Net of Taxes. Any payments provided for herein which
are subject to Federal, State or local tax or other withholding requirements,
shall have such amounts withheld prior to payment.
17. Survival of Obligations. The obligations of the Company under
Section 5(iii) and your obligations under Sections 9 and 10 hereof shall
survive the expiration of the Term of this Agreement.
11
<PAGE> 12
18. Capacity of Parties. The parties hereto warrant that they
have the capacity and authority to execute this Agreement.
19. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of the Agreement, which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
21. Entire Agreement. This Agreement and any attachments hereto,
contain the entire agreement by the parties with respect to the matters covered
herein and supersedes any prior agreement (including without limitation any
prior employment agreement), condition, practice, custom, usage and obligation
with respect to such matters insofar as any such prior agreement, condition,
practice, custom, usage or obligation might have given rise to any enforceable
right. No agreements, understandings or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter which
will then constitute our agreement on this subject, effective on March 20,
1995 ("Effective Date").
Sincerely,
LEAR SEATING CORPORATION
BY: /s/ Kenneth L. Way
------------------------------------
Agreed to this day of March, 1995
------
BY: /s/ Barthold H. Hoemann
------------------------------------
12
<PAGE> 1
EXHIBIT 10.15
[CONFORMED COPY]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
LEAR SEATING CORPORATION
(F/K/A LEAR SIEGLER SEATING CORP., AS SUCCESSOR
BY MERGER TO LSS ACQUISITION CORPORATION
AND LEAR HOLDINGS CORPORATION)
_______________________________
$500,000,000
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF NOVEMBER 29, 1994
______________________________
CHEMICAL BANK,
AS ADMINISTRATIVE AGENT
AND
BANKERS TRUST COMPANY, THE BANK OF NOVA SCOTIA,
CITICORP USA, INC. AND
LEHMAN COMMERCIAL PAPER INC.,
AS MANAGING AGENTS
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . 1
1.2 Other Definitional Provisions . . . . . . . . . 21
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS . . . . . . 21
2.1 Commitments . . . . . . . . . . . . . . . . . . 21
2.2 Revolving Credit Notes . . . . . . . . . . . . . 22
2.3 Procedure for Revolving Credit Borrowings . . . 22
2.4 Swing Line Commitments . . . . . . . . . . . . . 23
2.5 Swing Line Loan Participations . . . . . . . . . 24
2.6 Conversion and Continuation Options . . . . . . 25
2.7 Minimum Amounts of Tranches . . . . . . . . . . 25
2.8 Termination or Reduction of Commitments . . . . 25
2.9 Mandatory Prepayments . . . . . . . . . . . . . 26
2.10 Inability to Determine Interest Rate . . . . . . 26
2.11 Illegality . . . . . . . . . . . . . . . . . . . 27
2.12 Requirements of Law . . . . . . . . . . . . . . 27
2.13 Indemnity . . . . . . . . . . . . . . . . . . . 28
2.14 Taxes . . . . . . . . . . . . . . . . . . . . . 29
2.15 Use of Proceeds . . . . . . . . . . . . . . . . 31
2.16 Assignment of Commitments Under Certain
Circumstances . . . . . . . . . . . . . . . . 31
SECTION 3. LETTERS OF CREDIT . . . . . . . . . . . . . . . 31
3.1 Letters of Credit . . . . . . . . . . . . . . . 31
3.2 Procedure for Issuance of Letters of Credit . . 33
3.3 Participating Interests . . . . . . . . . . . . 33
3.4 Payments . . . . . . . . . . . . . . . . . . . . 34
3.5 Increased Costs . . . . . . . . . . . . . . . . 35
3.6 Further Assurances . . . . . . . . . . . . . . . 36
3.7 Obligations Absolute . . . . . . . . . . . . . . 36
3.8 Letter of Credit Application . . . . . . . . . . 36
3.9 Purpose of Letters of Credit . . . . . . . . . . 37
SECTION 4. INTEREST RATE PROVISIONS, FEES AND PAYMENTS . . 37
4.1 Interest Rates and Payment Dates . . . . . . . . 37
4.2 Commitment Fees . . . . . . . . . . . . . . . . 38
4.3 Agent's Fees . . . . . . . . . . . . . . . . . . 39
4.4 Letter of Credit Fees . . . . . . . . . . . . . 39
4.5 Computation of Interest and Fees . . . . . . . . 39
4.6 Pro Rata Treatment and Payments . . . . . . . . 40
4.7 Failure by Banks to Make Funds Available . . . . 41
SECTION 5. CONDITIONS PRECEDENT . . . . . . . . . . . . . . 41
5.1 Conditions to Closing Date . . . . . . . . . . . 41
</TABLE>
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<TABLE>
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5.2 Conditions to Each Loan and Each Letter of
Credit . . . . . . . . . . . . . . . . . . . . 44
5.3 Conditions Precedent to Loan to Finance the
Acquisition . . . . . . . . . . . . . . . . . 45
SECTION 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . 46
6.1 Financial Statements . . . . . . . . . . . . . . 46
6.2 No Change . . . . . . . . . . . . . . . . . . . 46
6.3 Corporate Existence; Compliance with Law . . . . 46
6.4 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . 47
6.5 No Legal Bar; Senior Debt . . . . . . . . . . . 47
6.6 No Material Litigation . . . . . . . . . . . . . 48
6.7 No Default . . . . . . . . . . . . . . . . . . . 48
6.8 Ownership of Property; Liens . . . . . . . . . . 48
6.9 No Burdensome Restrictions . . . . . . . . . . . 48
6.10 Taxes . . . . . . . . . . . . . . . . . . . . . 48
6.11 Federal Regulations . . . . . . . . . . . . . . 49
6.12 ERISA . . . . . . . . . . . . . . . . . . . . . 49
6.13 Investment Company Act; Other Regulations . . . 50
6.14 Subsidiaries, etc. . . . . . . . . . . . . . . 50
6.15 Accuracy and Completeness of Information . . . . 50
6.16 Security Documents . . . . . . . . . . . . . . . 51
6.17 Patents, Copyrights, Permits and Trademarks . . 52
6.18 Environmental Matters . . . . . . . . . . . . . 52
SECTION 7. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . 54
7.1 Financial Statements . . . . . . . . . . . . . . 54
7.2 Certificates; Other Information . . . . . . . . 55
7.3 Performance of Obligations . . . . . . . . . . . 56
7.4 Conduct of Business, Maintenance of Existence
and Compliance with Obligations and Laws . . . 57
7.5 Maintenance of Property; Insurance . . . . . . . 57
7.6 Inspection of Property; Books and Records;
Discussions . . . . . . . . . . . . . . . . . 57
7.7 Notices . . . . . . . . . . . . . . . . . . . . 58
7.8 Maintenance of Liens of the Security
Documents . . . . . . . . . . . . . . . . . . 59
7.9 Environmental Matters . . . . . . . . . . . . . 59
7.10 Security Documents . . . . . . . . . . . . . . . 60
SECTION 8. NEGATIVE COVENANTS . . . . . . . . . . . . . . . 61
8.1 Financial Covenants . . . . . . . . . . . . . . 61
8.2 Limitation on Indebtedness . . . . . . . . . . . 62
8.3 Limitation on Liens . . . . . . . . . . . . . . 63
8.4 Limitation on Guarantee Obligations . . . . . . 66
8.5 Limitations on Fundamental Changes . . . . . . . 66
8.6 Limitation on Sale of Assets . . . . . . . . . . 67
8.7 Limitation on Dividends . . . . . . . . . . . . 68
8.8 Limitation on Capital Expenditures . . . . . . . 69
</TABLE>
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<TABLE>
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8.9 Limitation on Investments, Loans and Advances . 69
8.10 Limitation on Optional Payments and
Modification of Debt Instruments . . . . . . . 71
8.11 Transactions with Affiliates . . . . . . . . . . 72
8.12 Sale and Leaseback . . . . . . . . . . . . . . . 72
8.13 Corporate Documents . . . . . . . . . . . . . . 72
8.14 Fiscal Year . . . . . . . . . . . . . . . . . . 73
8.15 Limitation on Restrictions Affecting
Subsidiaries . . . . . . . . . . . . . . . . . 73
8.16 Hazardous Materials . . . . . . . . . . . . . . 73
8.17 Special Purpose Subsidiary . . . . . . . . . . . 73
SECTION 9. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 73
SECTION 10. THE AGENT . . . . . . . . . . . . . . . . . . . 77
10.1 Appointment . . . . . . . . . . . . . . . . . . 77
10.2 Delegation of Duties . . . . . . . . . . . . . . 77
10.3 Exculpatory Provisions . . . . . . . . . . . . . 77
10.4 Reliance by Agent . . . . . . . . . . . . . . . 78
10.5 Notice of Default . . . . . . . . . . . . . . . 78
10.6 Non-Reliance on Agent, Managing Agents and
Other Banks . . . . . . . . . . . . . . . . . 78
10.7 Indemnification . . . . . . . . . . . . . . . . 79
10.8 Agent in Its Individual Capacity . . . . . . . . 79
10.9 Successor Agent . . . . . . . . . . . . . . . . 80
SECTION 11. MISCELLANEOUS . . . . . . . . . . . . . . . . . 80
11.1 Amendments and Waivers . . . . . . . . . . . . . 80
11.2 Notices . . . . . . . . . . . . . . . . . . . . 81
11.3 No Waiver; Cumulative Remedies . . . . . . . . . 82
11.4 Survival of Representations and Warranties . . . 82
11.5 Payment of Expenses and Taxes . . . . . . . . . 82
11.6 Successors and Assigns; Participations;
Purchasing Banks . . . . . . . . . . . . . . . 83
11.7 Adjustments; Set-off . . . . . . . . . . . . . . 86
11.8 Counterparts . . . . . . . . . . . . . . . . . . 87
11.9 GOVERNING LAW . . . . . . . . . . . . . . . . . 87
11.10 Confidentiality . . . . . . . . . . . . . . . . 87
11.11 Submission to Jurisdiction; Waivers . . . . . . 87
11.12 Effect of Amendment and Restatement of the
Amended and Restated Credit Agreement . . . . 88
11.13 Release of Collateral . . . . . . . . . . . . . 88
11.14 Equalization of Outstanding Loans on Closing
Date . . . . . . . . . . . . . . . . . . . . . 89
11.15 Conflicts . . . . . . . . . . . . . . . . . . . 89
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<S> <C>
SCHEDULES:
Schedule 1.1(a) Addresses of Banks
Schedule 1.1(b) Security Documents
Schedule 1.1(c) Mortgaged Properties
Schedule 2.1 Commitments
Schedule 3.1 Existing Letters of Credit
Schedule 6.14 Subsidiaries, Divisions, Partnerships and
Joint Ventures
Schedule 6.18 Hazardous Material
Schedule 8.2 Existing Indebtedness
Schedule 8.9 Existing Loans, Advances and Capital
Contributions
Schedule 8.15 Contractual Obligation Restrictions
</TABLE>
<TABLE>
<CAPTION>
<S> <C>
EXHIBITS:
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Swing Line Note
Exhibit C Form of Second Amended and Restated Subsidiary
Guarantee
Exhibit D Form of Second Amended and Restated Domestic Pledge
Agreement
Exhibit E Form of Second Amended and Restated Fair Haven Pledge
Agreement
Exhibit F Form of Second Amended and Restated Security
Agreement
Exhibit G Form of Borrowing Certificate
Exhibit H Form of Swing Line Participation Certificate
Exhibit I Form of Commitment Transfer Supplement
</TABLE>
-iv-
<PAGE> 6
EXHIBIT 2.2
SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 29, 1994,
among (i) LEAR SEATING CORPORATION (f/k/a Lear Siegler Seating Corp., as
successor by merger to LSS Acquisition Corporation and Lear Holdings
Corporation), a Delaware corporation (the "Borrower"), (ii) the several
financial institutions parties to this Agreement from time to time
(collectively, the "Banks"; individually, a "Bank"), (iii) CHEMICAL BANK, a New
York banking corporation, as administrative agent for the Banks hereunder (in
such capacity, the "Agent") and (iv) BANKERS TRUST COMPANY, THE BANK OF NOVA
SCOTIA, CITICORP USA, INC. and LEHMAN COMMERCIAL PAPER INC., as managing agents
(collectively, the "Managing Agents"; individually, a "Managing Agent").
W I T N E S S E T H :
WHEREAS, the Borrower, certain of the Banks (the "Existing Banks"), the
Managing Agents and the Agent are parties to the Amended and Restated Credit
Agreement, dated as of October 25, 1993 (as amended prior to the date hereof,
the "Amended and Restated Credit Agreement"); and
WHEREAS, the Borrower has requested that the Amended and Restated Credit
Agreement be amended and restated in order (i) to provide for the addition of
additional financial institutions as Banks hereunder, (ii) to increase the
revolving credit facility under the Amended and Restated Credit Agreement,
(iii) to provide financing for the acquisition (the "Acquisition") by the
Borrower and its Subsidiaries of Sepi S.p.A. and certain related businesses
(collectively, the "Fiat Seat Business") from Gilardini S.p.A. and (iv) to
modify certain provisions of the Amended and Restated Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto hereby agree that on the Closing Date, as
provided in subsection 11.12, the Amended and Restated Credit Agreement shall
be amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have the
following meanings:
"ABR": for any date, the higher of (a) the rate of interest publicly
announced by Chemical in New York, New York from time to time as its prime
rate and (b) 0.5% per annum above the rate set forth for such date opposite
the caption "Federal Funds (Effective)" in the weekly statistical release
designated as "H.15(519)", or any successor publication, published by the
Board of Governors of the Federal Reserve System. The ABR is not intended to
<PAGE> 7
2
be the lowest rate of interest charged by Chemical in connection with
extensions of credit to borrowers.
"ABR Loans": Loans hereunder at such time as they are made and/or being
maintained at a rate of interest based upon the ABR.
"Acquisition": as defined in the recitals to this Agreement.
"Adjustment Date": (a) the second Business Day following receipt by the
Agent of both (i) the financial statements required to be delivered pursuant
to subsection 7.1(a) or (b), as the case may be, for the most recently
completed fiscal period and (ii) the compliance certificate required pursuant
to subsection 7.2(b) with respect to such financial statements or (b) if such
compliance certificate and financial statements have not been delivered in a
timely manner, the date upon which such compliance certificate and financial
statements were due; provided, however, that in the event that the Adjustment
Date is determined in accordance with the provisions of clause (b) of this
definition, then the date which is two Business Days following the date of
receipt of the financial statements and compliance certificate referenced in
clause (a) of this definition also shall be deemed to constitute an
Adjustment Date.
"Affiliate": of any Person shall mean (a) any other Person (other than a
Wholly-Owned Subsidiary of such Person) which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person or
(b) any other Person who is a director or officer of (i) such Person, (ii)
any Subsidiary of such Person or (iii) any Person described in clause (a)
above. For purposes of this definition, a Person shall be deemed to be
"controlled by" such other Person if such other Person possesses, directly or
indirectly, power either to (i) vote 5% or more of the securities having
ordinary voting power for the election of directors of such first Person or
(ii) direct or cause the direction of the management and policies of such
first Person whether by contract or otherwise.
"Agent": as defined in the preamble to this Agreement.
"Agreement": this Second Amended and Restated Credit Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Amended and Restated Credit Agreement": as defined in the recitals to this
Agreement.
"Applicable Margin": at any time, the rates per annum set forth below under
the relevant column heading opposite
<PAGE> 8
3
the Level of Coverage Ratio and Debt Ratio most recently determined:
<TABLE>
<CAPTION>
Eurodollar
Ratio Level Loans
----------- ----------
<S> <C>
Level I:
Coverage Ratio is
less than 4.0 to 1 and Debt Ratio is greater than 3.25 to 1 1.00%
Level II:
Coverage Ratio is
equal to or greater than 4.0 to 1 but less
than 5.0 to 1 and Debt Ratio is equal to or
less than 3.25 to 1 but greater than 1.75 to 1 0.75%
Level III:
Coverage Ratio is
equal to or greater than 5.0 to 1 and Debt
Ratio is equal to or less than 1.75 to 1 0.50%;
</TABLE>
provided that (a) the Applicable Margin commencing on the Closing Date
shall be that set forth above opposite Level II until the first
Adjustment Date for which the Coverage Ratio or Debt Ratio falls
within another Level, (b) the Applicable Margin determined for any
Adjustment Date shall remain in effect until a subsequent Adjustment
Date for which the Coverage Ratio or Debt Ratio falls within a
different Level, (c) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the
date due pursuant to subsection 7.1, the Applicable Margin shall be
(i) for the first 5 days subsequent to such due date, those in effect
on the day prior to such due date, and (ii) thereafter, that set forth
above opposite Level I, in either case, until the subsequent
Adjustment Date, and (d) if the Debt Ratio and the Coverage Ratio
determined for any Adjustment Date do not fall within the same Level,
the Applicable Margin commencing on such Adjustment Date will be the
rate set forth above opposite such higher Level. For purposes of this
definition, the higher Level shall be the Level at which the
Applicable Margin would be higher.
"Asbestos": all the meanings therefor provided under any
Relevant Environmental Laws and shall include, without limitation,
asbestos fibers and friable asbestos, as such terms are defined under
the Relevant Environmental Laws.
"Available Commitment": as to any Bank, at a particular time,
any amount equal to the excess, if any, of (a) the amount of such
Bank's Commitment at such time over (b) the sum of (i) the aggregate
unpaid principal amount at such time of all Revolving Credit Loans
made by such Bank
<PAGE> 9
4
pursuant to subsection 2.1 and (ii) such Bank's Commitment Percentage
of the aggregate Letter of Credit Obligations at such time;
collectively, as to all the Banks, the Available Commitments".
"Bank" and "Banks": as defined in the preamble to this
Agreement.
"benefitted Bank": as defined in subsection 11.7.
"Borrower": as defined in the preamble to this Agreement.
"Borrowing Date": any Business Day specified in a notice
pursuant to subsection 2.3 or 2.4 as a date on which the Borrower
requests the Banks to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Expenditures": direct or indirect (by way of the
acquisition of securities of a Person or the expenditure of cash or
the incurrence of Indebtedness) expenditures in respect of the
purchase or other acquisition of fixed or capital assets (excluding
any such asset (a) acquired in connection with normal replacement and
maintenance programs and properly charged to current operations, (b)
acquired pursuant to a Financing Lease or other lease) or (c) acquired
in connection with the Acquisition.
"Cash Equivalents": (a) securities issued or directly and
fully guaranteed or insured by the United States Government or any
agency or instrumentality thereof having maturities of not more than
twelve months from the date of acquisition, (b) time deposits and
certificates of deposit having maturities of not more than twelve
months from the date of acquisition, in each case with any Bank or
with any other domestic commercial bank having capital and surplus in
excess of $200,000,000, which has, or the holding company of which
has, a commercial paper rating meeting the requirements specified in
clause (d) below, (c) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in
clauses (a) and (b) entered into with any bank meeting the
qualifications specified in clause (b) above, (d) commercial paper
issued by the parent corporation of any Bank and commercial paper
rated at least A-1 or the equivalent thereof by Standard & Poor's
Ratings Group or P-1 or the equivalent thereof by Moody's Investors
Service, Inc. and in either case maturing within nine months after the
date of acquisition, (e) deposits maintained with money market funds
having total assets in excess of $300,000,000 and (f) demand deposit
accounts maintained in the ordinary course of
<PAGE> 10
5
business with banks or trust companies located near plant locations,
in an aggregate amount not to exceed $100,000 at any one time at any
one such bank or trust company.
"Chemical": Chemical Bank, a New York banking corporation, in
its individual capacity.
"CISA": Central de Industrias S.A. de C.V., a corporation
organized under the laws of Mexico.
"Closing Date": the date on which all of the conditions
precedent set forth in subsection 5.1 shall have been met or waived.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commercial Letters of Credit": as defined in subsection
3.1(a).
"Commitment": as defined in subsection 2.1.
"Commitment Percentage": as to any Bank, the percentage of
the aggregate Commitments constituted by such Bank's Commitment.
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Commitment Transfer Supplement": a Commitment Transfer
Supplement, substantially in the form of Exhibit I.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Borrower and which is treated as a single employer under
Section 414 of the Code.
"Consolidated Indebtedness": at a particular date, all
Indebtedness of the Borrower and its Subsidiaries.
"Consolidated Interest Expense": for any fiscal period, the
amount which would, in conformity with GAAP, be set forth opposite the
caption "interest expense" (or any like caption) on a consolidated
income statement of the Borrower and its Subsidiaries for such period,
(a) excluding therefrom, however, fees payable under subsections 4.2,
4.3 or 4.4 and any amortization or write-off of deferred financing
fees during such period and (b) including any interest income during
such period.
<PAGE> 11
6
"Consolidated Net Income": for any fiscal period, the
consolidated net income (or deficit) of the Borrower and its
Subsidiaries for such period (taken as a cumulative whole), determined
in accordance with GAAP; provided that (a) any provision for
post-retirement medical benefits, to the extent such provision
calculated under FAS 106 exceeds actual cash outlays calculated on the
"pay as you go" basis, shall not to be taken into account, and (b)
there shall be excluded (i) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary, (ii) the income (or
deficit) of any Person (other than a Subsidiary) in which the Borrower
or any Subsidiary has an ownership interest, except to the extent that
any such income has been actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions, (iii)
the undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any
Contractual Obligation or Requirement of Law (other than any
Requirement of Law of Germany) applicable to such Subsidiary, and (iv)
in the case of a successor to the Borrower or any Subsidiary by
consolidation or merger or as a transferee of its assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets; provided, further that the exclusions in clauses
(i) and (iv) of this definition shall not apply to the mergers or
consolidations of the Borrower or its Subsidiaries with their
respective Subsidiaries.
"Consolidated Net Worth": at a particular date, all amounts
which would be included under shareholders' equity on a consolidated
balance sheet of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with GAAP as at such date plus the
amount of any redeemable common stock; provided, however, that any
cumulative adjustments made pursuant to FAS 106 shall not be taken
into account; and provided, further, that any stock option expense and
any amortization of goodwill, deferred financing fees and license fees
(including any write-offs of deferred financing fees, license fees and
up to an aggregate of $5,000,000 of goodwill from October 25, 1993)
shall not be taken into account in determining Consolidated Net Worth.
"Consolidated Operating Profit": for any fiscal period,
Consolidated Net Income for such period excluding (a) extraordinary
gains and losses arising from the sale of material assets and other
extraordinary and/or non-recurring gains and losses, (b) charges,
premiums and expenses associated with the discharge of Indebtedness,
(c) charges relating to FAS 106, (d) license fees (and any write-offs
thereof), (e) stock compensation expense, (f) deferred financing fees
(and any write-offs thereof), (g) write-offs
<PAGE> 12
7
up to $5,000,000 of goodwill, (h) foreign exchange gains and losses,
(i) miscellaneous income and expenses and (j) miscellaneous gains and
losses arising from the sale of assets plus, to the extent deducted in
determining Consolidated Net Income, the excess of (i) the sum of (A)
Consolidated Interest Expense, (B) any expenses for taxes, (C)
depreciation and amortization expense and (D) minority interests in
income of Subsidiaries over (ii) net equity earnings in Affiliates
(excluding Subsidiaries).
"Continuing Directors": the directors of the Borrower on the
Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Coverage Ratio": for any Adjustment Date the ratio of (a)
Consolidated Operating Profit for the four fiscal quarters most
recently ended to (b) Consolidated Interest Expense for the four
fiscal quarters most recently ended.
"Debt Ratio": for any Adjustment Date, the ratio of (a)
Consolidated Indebtedness on the last day of the fiscal quarter most
recently ended to (b) Consolidated Operating Profit for the four
fiscal quarters most recently ended.
"Default": any of the events specified in Section 9, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": lawful currency of the United States of
America.
"Domestic Loan Party": each Loan Party that is organized
under the laws of any jurisdiction of the United States or Canada.
"EATSA": Equipos Automotrices Totales S.A. de C.V., a
corporation organized under the laws of Mexico.
"Environmental Complaint": any complaint, order, citation,
notice or other written communication from any Person with respect to
the existence or alleged existence of a violation of any Requirement
of Law or legal liability resulting from air emissions, water
discharges, noise emissions, Asbestos, Hazardous Material or any other
environmental, health or safety matter at, upon, under or within any
Mortgaged Property.
<PAGE> 13
8
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum
equal to the average (rounded upwards to the nearest whole multiple of
one sixteenth of one percent) of the respective rates notified to the
Agent by the Reference Banks as the rate at which such Reference Bank
is offered Dollar deposits two Working Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the
eurodollar and foreign currency and exchange operations of such
Reference Bank are then being conducted, at or about 10:00 A.M., New
York City time, for delivery on the first day of such Interest Period
for the number of days comprised therein and in an amount comparable
to the amount of the Eurodollar Loan of such Reference Bank to be
outstanding during such Interest Period.
"Eurodollar Loans": Revolving Credit Loans at such time as
they are made and/or are being maintained at a rate of interest based
upon the Eurodollar Rate.
"Eurocurrency Reserve Requirements": with respect to any day
as applied to a Eurodollar Loan, the aggregate (without duplication)
of the rates (expressed as a decimal fraction) of reserve requirements
in effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto),
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula
(rounded upwards to the nearest whole multiple of 1/100th of one
percent):
Eurodollar Base Rate
---------------------------------------
1.00 - Eurocurrency Reserve Requirement
"Eurodollar Tranche": the collective reference to Eurodollar
Loans whose Interest Periods each begin on the same day and end on the
same other day.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of
<PAGE> 14
9
notice, the lapse of time, or both, or any other condition, event or
act has been satisfied.
"Existing Banks": as defined in the recitals to this
Agreement.
"Existing Letters of Credit": as defined in subsection 3.1(b).
"Extensions of Credit": at any particular time, the sum of
(a) the aggregate principal amount of Revolving Credit Loans and Swing
Line Loans then outstanding and (b) the aggregate Letter of Credit
Obligations then outstanding.
"Favesa": Favesa S.A. de C.V., a Mexican corporation.
"Fiat Seat Business": as defined in the recitals to this
Agreement.
"FIMA": FIMA Finance Management Inc., a British Virgin
Islands corporation and any other wholly-owned subsidiary of Exor
Group S.A. or any of them.
"Financing Lease": (a) any lease of property, real or
personal, the obligations under which are capitalized on a
consolidated balance sheet of the Borrower and its Subsidiaries and
(b) any other such lease to the extent that the then present value of
the minimum rental commitment thereunder should, in accordance with
GAAP, be capitalized on a balance sheet of the lessee.
"Ford": Ford Motor Company.
"Foreign Letter of Credit": a Standby Letter of Credit whose
beneficiary is a Person which is directly or indirectly extending
credit to a Foreign Subsidiary.
"Foreign Subsidiaries": each of the Subsidiaries so
designated on Schedule 6.14 and any Subsidiaries organized outside the
United States which are created after the effectiveness hereof in
compliance with subsection 8.9(d).
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of
such Person guaranteeing or in effect
<PAGE> 15
10
guaranteeing any Indebtedness, leases, dividends or other obligations
(the primary obligations") of any other Person (the "primary obligo")
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 obligor, (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 any such primary obligation against loss in
respect thereof; provided, however, that the term Guarantee Obligation
shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any
Guarantee Obligation shall be deemed to be an amount equal to the
value as of any date of determination of the stated or determinable
amount of the primary obligation in respect of which such Guarantee
Obligation is made (unless such Guarantee Obligation shall be
expressly limited to a lesser amount, in which case such lesser amount
shall apply) or, if not stated or determinable, the value as of any
date of determination of the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.
"Hazardous Materials": any solid wastes, toxic or hazardous
substances, materials or wastes, defined, listed, classified or
regulated as such in or under any Relevant Environmental Laws,
including, without limitation, Asbestos, petroleum or petroleum
products (including gasoline, crude oil or any fraction thereof),
polychlorinated biphenyls, and urea-formaldehyde insulation.
"Indebtedness": of a Person, at a particular date, the sum
(without duplication) at such date of (a) indebtedness for borrowed
money or for the deferred purchase price of property or services in
respect of which such Person is liable as obligor, (b) indebtedness
secured by any Lien on any property or asset owned or held by such
Person regardless of whether the indebtedness secured thereby shall
have been assumed by or is a primary liability of such Person, (c)
obligations of such Person under Financing Leases, (d) the face amount
of all letters of credit issued for the account of such person and,
without duplication, the unreimbursed amount of all drafts drawn
thereunder and (e) obligations (in the nature of principal or
interest) of such Person in respect of acceptances or similar
obligations issued or created for the account of such Person; but
excluding (i) trade and other accounts payable in the
<PAGE> 16
11
ordinary course of business in accordance with customary trade terms
and which are not overdue for more than 120 days or, if overdue for
more than 120 days, as to which a dispute exists and adequate reserves
in conformity with GAAP have been established on the books of such
Person, (ii) deferred compensation obligations to employees and (iii)
any obligations otherwise constituting Indebtedness the payment of
which, such Person has provided for pursuant to the terms of such
Indebtedness or any agreement or instrument pursuant to which such
Indebtedness was incurred, by the irrevocable deposit in trust of an
amount of funds or a principal amount of securities, which deposit is
sufficient, either by itself or taking into account the accrual of
interest thereon, to pay the principal of and interest on such
obligations when due.
"Industrial Revenue Bonds": industrial revenue bonds issued
for the benefit of the Borrower or its Subsidiaries and in respect of
which the Borrower or its Subsidiaries will be the source of
repayment, provided that such financings, (including, without
limitation, the indenture related thereto) shall be in form and
substance reasonably satisfactory to the Issuing Bank that issues a
Letter of Credit backing such Industrial Revenue Bonds.
"Insolvency" or "Insolvent": at any particular time, a
Multiemployer Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Interest Payment Date": (a) as to any ABR Loan (including
Swing Line Loans), the last day of each March, June, September and
December, commencing on the first of such days to occur after the
effectiveness of this Agreement and (b) as to any Eurodollar Loan in
respect of which the Borrower has selected an Interest Period of one,
two or three months, the last day of such Interest Period, (c) as to
any Eurodollar Loan in respect of which the Borrower has selected an
Interest Period of six months, the day which is three months after the
making of such Eurodollar Loan and the last day of such Interest
Period and (d) as to any Loan, the Termination Date.
"Interest Period": with respect to any Eurodollar Loans:
(a) initially, the period commencing on the
borrowing or conversion date, as the case may be, with respect
to such Eurodollar Loans and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice
of borrowing as provided in subsection 2.3 or its
notice of conversion as provided in subsection 2.6, as the
case may be; and
<PAGE> 17
12
(b) thereafter, each period commencing on the last
day of the then current Interest Period applicable to such
Eurodollar Loans and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice
to the Agent not less than three Working Days prior to the
last day of the then current Interest Period with respect to
such Eurodollar Loans;
provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(i) if any Interest Period would otherwise end on
a day which is not a Working Day, that Interest Period shall
be extended to the next succeeding Working Day unless the
result of such extension would be to carry such Interest
Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Working
Day;
(ii) no Interest Period shall extend beyond the
Termination Date;
(iii) if the Borrower shall fail to give notice as
provided above, the Borrower shall be deemed to have selected
an ABR Loan to replace the affected Eurodollar Loan;
(iv) any Interest Period that begins on the last
Working Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last Working
Day of a calendar month; and
(v) the Borrower shall select Interest Periods so
that there shall be no more than eight Eurodollar Tranches in
existence on any one date; provided if the Borrower shall
select an Interest Period of one month, there shall be no more
than three Eurodollar Tranches of one month in existence on
any one date.
"Interest Rate Agreement": any interest rate protection
agreement, interest rate swap or other interest rate hedge arrangement
(other than any interest rate cap or other similar agreement or
arrangement pursuant to which the Borrower has no credit exposure), to
or under which the Borrower or any of its Subsidiaries is a party or a
beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
Borrower to any of the Banks under any one or more
<PAGE> 18
13
Interest Rate Agreements in respect of a notional principal amount of
up to $200,000,000.
"Issuing Bank": Chemical, in its capacity as issuer of the
Letters of Credit or, if Chemical is not the Agent hereunder, such
other Bank, which the Borrower and the Required Banks shall have
approved, in its capacity as issuer of the Letters of Credit; provided
that any Bank other than Chemical which agrees to become an Issuing
Bank, and which the Borrower and the Required Banks shall have
approved, may become an Issuing Bank for Standby Letters of Credit to
be used for the purposes described in subsection 3.9(b).
"Lear Canada": Lear Seating Canada Ltd., a corporation
organized under the laws of Ontario, Canada and a Wholly-Owned
Subsidiary of the Borrower.
"Lear Industries": Lear Industries Holding B.V., a
corporation organized under the laws of The Netherlands.
"Lear Italia": the collective reference to each direct
Foreign Subsidiary, organized under the laws of Italy, of the Borrower
or any Subsidiary party to the Subsidiary Guarantee.
"Letter of Credit Applications": (a) in the case of Standby
Letters of Credit, a letter of credit application for a Standby Letter
of Credit on the standard form of Chemical for standby letters of
credit, and (b) in the case of Commercial Letters of Credit, a letter
of credit application for a Commercial Letter of Credit on the
standard form of Chemical for commercial letters of credit.
"Letter of Credit Obligations": at any particular time, all
liabilities of the Borrower and any Subsidiary with respect to Letters
of Credit, whether or not any such liability is contingent, including
(without duplication) the sum of (a) the aggregate undrawn face amount
of all Letters of Credit then outstanding plus (b) the aggregate
amount of all unpaid Reimbursement Obligations and Subsidiary
Reimbursement Obligations.
"Letter of Credit Participation Certificate": a participation
certificate in the form customarily used by the Issuing Bank for such
purpose at the time such certificate is issued.
"Letters of Credit": as defined in subsection 3.1(a).
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement or preferential
arrangement of any kind
<PAGE> 19
14
or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and
the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction in respect of any of the
foregoing).
"Loan" and "Loans": the collective reference to the Revolving
Credit Loans and the Swing Line Loans.
"Loan Documents": the collective reference to this Agreement,
the Notes, the Letters of Credit, the Letter of Credit Applications
and the Security Documents.
"Loan Parties": the collective reference to the Borrower,
each guarantor or grantor party to any Security Document and each
Issuer (as defined in each Pledge Agreement).
"Management Investors": each of the managers and other
employees of the Borrower and its Subsidiaries from time to time party
to the Stockholders Agreement.
"Managing Agent" and "Managing Agents": as defined in the
preamble to this Agreement.
"Material Subsidiary": each Loan Party and any other
Subsidiary which (a) for the most recent fiscal year of the Borrower
accounted for more than 5% of the consolidated revenues of the
Borrower or (b) as of the end of such fiscal year, was the owner of
more than 5% of the consolidated assets of the Borrower all as shown
on the consolidated financial statements of the Borrower for such
fiscal year.
"Merchant Banking Partnerships": Lehman Brothers Merchant
Banking Portfolio Partnership L.P., a Delaware limited partnership,
Lehman Brothers Offshore Investment Partnership - Japan L.P., a
Bermuda limited partnership, Lehman Brothers Offshore Investment
Partnership L.P., a Bermuda limited partnership and Lehman Brothers
Capital Partners II, L.P., a Delaware limited partnership
(collectively, the "Partnerships") or any majority owned direct or
indirect Subsidiary of Lehman Brothers Holdings Inc. or any
partnership the general partner of which is a majority owned direct or
indirect Subsidiary of Lehman Brothers Holdings Inc. (with the
Partnerships, collectively referred to as the "Permitted Lehman
Entities") or a trust the beneficiaries of which include only
investors in the Permitted Lehman Entities, or any of them.
"Mortgaged Properties": the collective reference to the real
properties described on Schedule 1.1(c) and any other properties
mortgaged in favor of the Agent for the
<PAGE> 20
15
ratable benefit of the Banks pursuant to this Agreement from time to
time.
"Mortgages": the collective reference to the mortgages listed
in Schedule 1.1(b), and each other mortgage or deed of trust that may
be delivered to the Agent as collateral security for any or all of the
Obligations and the Subsidiary Reimbursement Obligations, in each case
as such mortgages or deeds of trust may be amended, supplemented or
otherwise modified from time to time.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Proceeds": shall mean the gross proceeds received by the
Borrower or any Subsidiary from a sale or other disposition of any
asset of the Borrower or such Subsidiary less (a) all reasonable fees,
commissions and other out-of-pocket expenses incurred by the Borrower
or such Subsidiary in connection therewith, (b) Federal, state, local
and foreign taxes assessed in connection therewith and (c) the
principal amount, accrued interest and any related prepayment fees of
any Indebtedness (other than the Loans) which is secured by any such
asset and which is required to be repaid in connection with the sale
thereof.
"Notes": the collective reference to the Revolving Credit
Notes and the Swing Line Note.
"Obligations": the unpaid principal amount of, and interest
on, the Notes, the Reimbursement Obligations, the Interest Rate
Agreement Obligations and all other obligations and liabilities of the
Borrower or any Subsidiary to the Agent, the Banks and the Issuing
Bank, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with this Agreement, the Notes, the
Letters of Credit, the Letter of Credit Applications, any other Loan
Document or any other document executed and delivered in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel
to the Agent) or otherwise.
"Participants": as defined in subsection 11.6(b).
"Participating Bank": any Bank (other than the Issuing Bank)
with respect to its Participating Interest in a Letter of Credit.
"Participating Interest": with respect to any Letter of
Credit (a) in the case of the Issuing Bank with respect thereto its
interest in such Letter of Credit and any Letter
<PAGE> 21
16
of Credit Application relating thereto after giving effect to the
granting of any participating interests therein pursuant hereto and
(b) in the case of each Participating Bank, its undivided participating
interest in such Letter of Credit and any Letter of Credit Application
relating thereto.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Phase I Environmental Assessments": the reports prepared by
Eckenfelder Inc. dated September 1991 concerning certain facilities
owned or operated by the Borrower or its Subsidiaries.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to the Pledge
Agreements listed in Schedule 1.1(b) and each other pledge agreement
or similar agreement that may be delivered to the Agent as collateral
security for any or all of the Obligations and the Subsidiary
Reimbursement Obligations, in each case as such Pledge Agreements or
similar agreements may be amended, supplemented or otherwise modified
from time to time.
"Pledged Stock": as defined in each of the Pledge Agreements.
"Proprietary Rights": as defined in subsection 6.17.
"Purchase Agreement": the Agreement, dated as of August 19,
1988, among Lear Siegler Aerospace Products Holdings Corp., Lear
Siegler Commercial Products Holdings Corp., Lear Siegler Automotive
Products Holdings Corp. and LSS Acquisition Corporation, as amended,
supplemented or otherwise modified from time to time.
"Purchasing Banks": as defined in subsection 11.6(c).
"Receivable Financing Transaction": any transaction or series
of transactions involving a non-recourse sale for cash of accounts
receivable by the Borrower or any of its Subsidiaries to a Special
Purpose Subsidiary and a
<PAGE> 22
17
subsequent incurrence by such Special Purpose Subsidiary of
unguaranteed Indebtedness secured solely by the accounts receivable so
acquired by such Special Purpose Subsidiary.
"Reference Banks": Chemical and The Bank of Nova Scotia.
"Refunded Swing Line Loans": as defined in subsection 2.4(c).
"Register": as defined in subsection 11.6(d).
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Bank in accordance with the terms of this
Agreement and the related Letter of Credit Application for any payment
made by the Issuing Bank under any Letter of Credit.
"Relevant Environmental Laws": any and all Federal, foreign,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental
Authority, any and all Requirements of Law and any and all common law
requirements, rules and bases of liability regulating, relating to or
imposing liability or standards of conduct concerning pollution or
protection of human health or the environment, as now or hereafter in
effect.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Banks": at a particular time, the holders of more
than 50% the aggregate unpaid principal amount of the Notes and the
Letter of Credit Obligations (after giving effect to participating
interests to the Banks), or, if no amounts are outstanding under the
Notes and no Letter of Credit Obligations are outstanding, Banks
having more than 50% of the aggregate amount of the Commitments.
"Requirement of Law": as to (a) any Person, the certificate
of incorporation and by-laws or the partnership or limited partnership
agreement 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
<PAGE> 23
18
property or to which such Person or any of its property is subject,
(b) any property, any law, treaty, rule, regulation, requirement,
judgment, decree or determination of any Governmental Authority
applicable to or binding upon such property or to which such property
is subject, including, without limitation, any Relevant Environmental
Laws, and (c) any of the Mortgaged Properties, all Restrictive
Agreements.
"Responsible Officer": with respect to any Loan Party, the
chief executive officer, the president, the chief financial officer,
any vice president, the treasurer or the assistant treasurer of such
Loan Party.
"Restrictive Agreement": any covenants, conditions or
restrictions which burden any of the Mortgaged Properties or any part
thereof for the benefit of other real property, including, without
limitation, the terms of any reciprocal easement agreement, any
agreement limiting the use of the Mortgaged Properties and any
agreements which must be performed as a condition to the continuance
of any easement included in the Mortgaged Properties.
"Revolving Credit Loan" and "Revolving Credit Loans": as
defined in subsection 2.1.
"Revolving Credit Note" and "Revolving Credit Notes": as
defined in subsection 2.2.
"Security Agreements": the collective reference to the
Security Agreements listed in Schedule 1.1(b), and each other security
agreement or similar agreement that may be delivered to the Agent as
collateral security for any or all of the Obligations and the
Subsidiary Reimbursement Obligations, in each case as such Security
Agreements or similar agreements may be amended, supplemented or
otherwise modified from time to time.
"Security Documents": the collective reference to the
Security Agreements, the Pledge Agreements, the Mortgages and the
Subsidiary Guarantee.
"Senior Subordinated Note Indenture": the Indenture, dated as
of July 15, 1992, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection
8.10.
"Senior Subordinated Notes": the 11 1/4% Senior Subordinated
Notes of the Borrower due 2000, issued pursuant to the Senior
Subordinated Note Indenture.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
<PAGE> 24
19
"Special Affiliate": any Affiliate of the Borrower which (a)
the Borrower possesses, directly or indirectly, (i) power to vote 20%
or more of the securities having ordinary voting power for the
election of directors of such Affiliate or (ii) a 20% ownership
interest in such Affiliate and (b) is engaged in business of the same
or related general type as now being conducted by the Borrower and its
Subsidiaries.
"Special Entity": any Person which is engaged in business of
the same or related general type as now being conducted by the
Borrower and its Subsidiaries.
"Special Purpose Subsidiary": any Wholly-Owned Subsidiary of
the Borrower created by the Borrower for the sole purpose of
facilitating a Receivable Financing Transaction.
"Standby Letters of Credit": as defined in subsection 3.1(a).
"Stockholders Agreement": the Amended and Restated
Stockholders and Registration Rights Agreement, dated as of September
27, 1991 among the Borrower, FIMA, the Merchant Banking Partnerships
and the several other parties thereto, as the same has been and may be
amended, supplemented or otherwise modified from time to time.
"Subordinated Debt": any obligations (for principal, interest
or otherwise) evidenced by or arising under or in respect of the
Subordinated Notes, the Subordinated Note Indenture, the Senior
Subordinated Notes and the Senior Subordinated Note Indenture and any
other covenant, instrument or agreement of subordinated Indebtedness
issued or entered into pursuant to subsection 8.10.
"Subordinated Note Indenture": the Indenture dated as of
February 1, 1994, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection
8.10.
"Subordinated Notes": the 8-1/4% Subordinated Notes of the
Borrower due 2002, issued pursuant to the Subordinated Note Indenture.
"Subscription Agreements": the collective reference to the
Subscription Agreements, dated as of September 29, 1988, between Lear
Holdings Corporation and each of the Management Investors, as each of
the same may be amended, supplemented or otherwise modified from time
to time.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power
<PAGE> 25
20
(other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority
of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly, through one
or more intermediaries, or both, by such Person (exclusive of any
Affiliate in which such Person has a minority ownership interest).
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantee": the Second Amended and Restated
Subsidiary Guarantee, dated as of the date hereof, made by LS
Acquisition Corp. No. 14, Lear Seating Holdings Corp. No. 50, Progress
Pattern Corp., Lear Plastics Corp., LS Acquisition Corporation No. 24,
and Fair Haven Industries, Inc. in favor of the Agent, substantially
in the form of Exhibit D to this Agreement.
"Subsidiary Reimbursement Obligation": the obligation of any
Subsidiary to reimburse the Issuing Bank in accordance with the terms
of this Agreement and the related Letter of Credit Application for any
payment made by the Issuing Bank under any Letter of Credit.
"Swing Line Loan" and "Swing Line Loans": as defined in
subsection 2.4(a).
"Swing Line Note": as defined in subsection 2.4(b).
"Swing Line Participation Certificate": a certificate
substantially in the form of Exhibit H to this Agreement.
"Taxes": as defined in subsection 2.14.
"Termination Date": November 30, 1999 or such earlier date on
which the Commitments are terminated pursuant to this Agreement.
"Transfer Effective Date": as defined in each Commitment
Transfer Supplement.
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an ABR Loan or
Eurodollar Loan.
"Wholly-Owned Subsidiary": as to any Person, a corporation,
partnership or other entity of which (a) 100% of the common capital
stock or other ownership interests of such corporation, partnership or
other entity or (b) more than 95% of the common capital stock or other
ownership interests of such corporation, partnership or other entity
<PAGE> 26
21
where the portion of the common capital stock or other ownership
interests not held by such Person is held by other Persons to satisfy
applicable legal requirements, is owned, directly or indirectly, by
such Person; provided, however, that so long as the Borrower owns,
directly or indirectly, more than 95% of the capital stock of Lear
Italia, Lear Italia shall be deemed a Wholly-Owned Subsidiary of the
Borrower.
"Working Day": any Business Day on which dealings in foreign
currencies and exchange between banks may be carried on in London,
England.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto, accounting
terms relating to the Borrower and its Subsidiaries not defined in subsection
1.1 and accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof,
each Bank, severally and not jointly, agrees to make revolving credit loans
(individually, a "Revolving Credit Loan"; collectively, the "Revolving Credit
Loans") to the Borrower from time to time during the Commitment Period in an
aggregate principal amount, together with the other Extensions of Credit (after
giving effect to participating interests to the Banks) of such Bank, not to
exceed at any one time outstanding the amount set forth under the heading
"Commitment" opposite the name of such Bank on Schedule 2.1, as such amount may
be reduced from time to time pursuant to subsection 2.8 (collectively, the
"Commitments"). During the Commitment Period, the Borrower may use the
Commitments by borrowing, repaying the Revolving Credit Loans in whole or in
part and reborrowing, all in accordance with the terms and conditions hereof;
provided that on the date of the
<PAGE> 27
22
making of any Revolving Credit Loans, and after giving effect to the making of
such Revolving Credit Loans, the Extensions of Credit at such time shall not
exceed the aggregate Commitments at such time. The Revolving Credit Loans may
from time to time be ABR Loans, Eurodollar Loans or a combination thereof.
2.2 Revolving Credit Notes. The Revolving Credit Loans made
by each Bank shall be evidenced by a promissory note of the Borrower,
substantially in the form of Exhibit A (individually, a "Revolving Credit
Note"; collectively, the "Revolving Credit Notes"), with appropriate insertions
as to principal amount, payable to the order of such Bank and evidencing the
obligation of the Borrower to pay a principal amount equal to the lesser of (a)
the amount of the Commitment of such Bank and (b) the aggregate unpaid
principal amount of all Revolving Credit Loans made by such Bank. Each Bank is
hereby authorized to record the date and amount of each Revolving Credit Loan
made by such Bank, and the date and amount of each payment or prepayment of
principal thereof, on the schedule annexed to and constituting a part of its
Revolving Credit Note, and any such recordation shall constitute prima facie
evidence of the accuracy of the information so recorded; provided that the
failure by any Bank to make any such recordation on its Revolving Credit Note
shall not affect any of the obligations of the Borrower under such Revolving
Credit Note or this Agreement. Each Revolving Credit Note shall (i) be dated
the Closing Date, (ii) be stated to mature on the Termination Date and (iii)
bear interest, payable on the dates specified in subsection 4.1, for the period
from the date thereof on the unpaid principal amount thereof from time to time
outstanding at the interest rate per annum specified in subsection 4.1.
2.3 Procedure for Revolving Credit Borrowings. The Borrower
may borrow under the Commitments during the Commitment Period on any Business
Day by giving the Agent irrevocable written notice (which notice must be
received by the Agent prior to 12:00 P.M., New York City time) one Business Day
prior to the requested Borrowing Date of ABR Loans and three Working Days prior
to the requested Borrowing Date of Eurodollar Loans, specifying (a) the amount
to be borrowed, (b) the requested Borrowing Date and (c) whether the borrowing
is to be of ABR Loans, Eurodollar Loans or a combination thereof and (d) if the
borrowing is to be entirely or partly Eurodollar Loans, the amount of such Loan
and the length of initial Interest Period therefor. Upon receipt of such
notice from the Borrower, the Agent shall promptly notify each Bank thereof.
Not later than 12:00 P.M., New York City time, on the Borrowing Date specified
in such notice, each Bank shall make available to the Agent in immediately
available funds in the amount equal to the Revolving Credit Loan to be made by
such Bank. The Agent shall make the amount of such borrowing available to the
Borrower by depositing the proceeds thereof in like funds as received by the
Agent in the account of the Borrower with the Agent on the date the Revolving
Credit Loans are made for transmittal by the Agent upon
<PAGE> 28
23
the Borrower's request. Each borrowing pursuant to the Commitments, except any
Revolving Credit Loan to be used solely to pay a like amount of Reimbursement
Obligations or Swing Line Loans, shall be in an aggregate principal amount of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.4 Swing Line Commitments. (a) Subject to the terms and
conditions hereof, Chemical agrees to make swing line loans (individually, a
"Swing Line Loan"; collectively, the "Swing Line Loans") to the Borrower from
time to time during the Commitment Period in an aggregate principal amount at
any one time outstanding not to exceed $40,000,000; provided that on the date
of the making of any Swing Line Loan, and after giving effect to the making of
such Swing Line Loan, the Extensions of Credit at such time shall not exceed
the Commitments. Amounts borrowed by the Borrower under this subsection 2.4
may be repaid and, through but excluding the Termination Date, reborrowed. All
Swing Line Loans shall be made as ABR Loans and shall not be entitled to be
converted into Eurodollar Loans. The Borrower shall give Chemical irrevocable
notice (which notice must be received by Chemical prior to 12:00 P.M., New York
City time) on the requested Borrowing Date specifying the amount of the
requested Swing Line Loan which shall be in an aggregate minimum amount of
$500,000 or whole multiples thereof. The proceeds of the Swing Line Loan will
be made available by Chemical to the Borrower at the office of Chemical by
crediting the account of the Borrower at such office with such proceeds.
(b) The Swing Line Loans shall be evidenced by a promissory
note of the Borrower, substantially in the form of Exhibit B (the "Swing Line
Note"), with appropriate insertions, payable to the order of Chemical and
representing the obligation of the Borrower to pay the unpaid principal amount
of the Swing Line Loans, with interest thereon as prescribed in subsection 4.1.
Chemical is hereby authorized to record the Borrowing Date, the amount of each
Swing Line Loan and the date and amount of each payment or prepayment of
principal thereof on the schedule annexed to and constituting a part of the
Swing Line Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded; provided that the failure by
Chemical to make any such recordation on its Swing Line Note shall not affect
any of the obligations of the Borrower under such Swing Line Note or this
Agreement. The Swing Line Note shall (i) be dated the Closing Date, (ii) be
stated to mature on the Termination Date and (iii) bear interest, payable on
the dates specified in 4.1, for the period from the date thereof to the
Termination Date on the unpaid principal amount thereof from time to time
outstanding at the applicable interest rate per annum specified in subsection
4.1.
(c) Chemical, at any time in its sole and absolute
discretion, may on behalf of the Borrower (which hereby irrevocably directs
Chemical to act on its behalf) request each Bank, including Chemical, to make a
Revolving Credit Loan in an
<PAGE> 29
24
amount equal to such Bank's Commitment Percentage of the amount of the Swing
Line Loans (the "Refunded Swing Line Loans") outstanding on the date such
notice is given. Unless any of the events described in Section 9(i) shall have
occurred (in which event the procedures of subsection 2.4(d) shall apply) each
Bank shall, not later than 12:00 P.M., New York City time, on the Business Day
next succeeding the date on which such notice is given, make available to
Chemical in immediately available funds in the amount equal to the Revolving
Credit Loan to be made by such Bank. The proceeds of such Revolving Credit
Loans shall be immediately applied to repay the Refunded Swing Line Loans.
Upon any request by Chemical to the Banks pursuant to this subsection 2.4(c),
the Agent shall promptly give notice to the Borrower of such request.
(d) If prior to the making of a Revolving Credit Loan
pursuant to subsection 2.4(c) one of the events described in Section 9(i) shall
have occurred, each Bank will, on the date such Loan was to have been made,
purchase an undivided participating interest in the Swing Line Loans in an
amount equal to its Commitment Percentage of such Swing Line Loans. Each Bank
will immediately transfer to Chemical, in immediately available funds, the
amount of its participation, and upon receipt thereof Chemical will deliver to
such Bank a Swing Line Participation Certificate dated the date of receipt of
such funds and in the amount of such Bank's participation.
(e) Whenever, at any time after Chemical has received from
any Bank such Bank's participating interest in a Swing Line Loan, Chemical
receives any payment on account thereof, Chemical will distribute to such Bank
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by Chemical is required to be returned,
such Bank will return to Chemical any portion thereof previously distributed by
Chemical to it.
2.5 Swing Line Loan Participations. Each Bank's obligation
to purchase participating interests pursuant to subsection 2.4(d) shall be
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (a) any set-off, counterclaim, recoupment,
defense or other right which such Bank or any Loan Party may have against
Chemical, any Loan Party or anyone else for any reason whatsoever; (b) the
occurrence or continuance of any Default or Event of Default; (c) any adverse
change in the condition (financial or otherwise) of any Loan Party; (d) any
breach of this Agreement by any Loan Party or any other Bank; or (e) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
<PAGE> 30
25
2.6 Conversion and Continuation Options. (a) The Borrower
may elect from time to time to convert Revolving Credit Loans outstanding as
Eurodollar Loans to ABR Loans by giving the Agent at least one Business Day's
prior irrevocable notice of such election; provided that any such conversion of
Eurodollar Loans shall only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert Revolving
Credit Loans outstanding as ABR Loans to Eurodollar Loans by giving the Agent
at least three Working Days' prior irrevocable notice of such election. Upon
receipt of such notice, the Agent shall promptly notify each Bank thereof. All
or any part of the Revolving Credit Loans outstanding as Eurodollar Loans or
ABR Loans may be converted as provided herein; provided that (i) no ABR Loan
may be converted into a Eurodollar Loan when any Default or Event of Default
has occurred and is continuing, (ii) partial conversions shall be in an
aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof and (iii) any such conversion may only be made if, after giving
effect thereto, subsection 2.7 shall not have been contravened.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of an Interest Period with respect thereto by compliance by the
Borrower with the notice provisions contained in the definition of "Interest
Period"; provided that no Eurodollar Loan may be continued as such when any
Default or Event of Default has occurred and is continuing but in such
circumstances shall be automatically converted to an ABR Loan on the last day
of the then current Interest Period with respect thereto.
2.7 Minimum Amounts of Tranches. All borrowings,
conversions, payments, prepayments and selection of Interest Periods hereunder
in respect of the Revolving Credit Loans shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the aggregate
principal amount of any one Eurodollar Tranche shall not be less than
$5,000,000.
2.8 Termination or Reduction of Commitments. (a) The
Commitments shall automatically reduce by an amount equal to $58,750,000 on
each of November 30, 1997, May 31, 1998, November 30, 1998 and May 31, 1999.
(b) The Borrower shall have the right, upon not less than
five Business Days' notice to the Agent, to terminate the Commitments or to
reduce the amount of the Commitments; provided that any such reduction shall be
in an amount of $2,500,000 or a whole multiple of $500,000 in excess thereof
and shall reduce permanently the amount of the Commitments then in effect.
(c) The Commitments shall automatically terminate on the
Termination Date. Upon such termination, the Borrower shall immediately repay
in full the principal amount of the Revolving Credit Loans and any unpaid
Reimbursement Obligations then
<PAGE> 31
26
outstanding together with accrued interest thereon and all other amounts due
and payable hereunder, and, if any Letters of Credit are then outstanding, the
Borrower shall deposit with the Agent in a cash collateral account to be
established on terms and conditions satisfactory to the Agent an amount in cash
equal to the undrawn face amount of all such Letters of Credit.
(d) Any reduction of Commitments pursuant to subsections
2.8(a), 2.8(b) or 8.6(e) shall be accompanied by prepayment of the Loans
(together in each case with accrued interest on the amount so prepaid to the
date of such prepayment and any additional amounts owing under subsection
2.13), to the extent, if any, that the amount of the Extensions of Credit then
outstanding exceeds the amount of the Commitments as so reduced (provided that
if the aggregate principal amount of Loans then outstanding is less than the
amount of such excess because Letter of Credit Obligations constitute a portion
thereof, the Borrower shall, to the extent of the balance of such excess,
replace outstanding Letters of Credit with new letters of credit or deposit an
amount equal to such excess in a cash collateral account with the Agent on
terms and conditions satisfactory to the Agent).
2.9 Mandatory Prepayments. The Borrower will make mandatory
prepayments on account of the Revolving Credit Loans as set forth in subsection
2.8.
2.10 Inability to Determine Interest Rate. In the event that:
(a) the Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the interbank eurodollar market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
any requested Interest Period; or
(b) the Agent shall have received notice prior to the first
day of such Interest Period from Banks constituting the Required Banks
that the interest rate determined pursuant to subsection 4.1 for such
Interest Period does not accurately reflect the cost to such Banks (as
conclusively certified by such Banks) of making or maintaining their
affected Loans during such Interest Period,
with respect to (i) proposed Loans that the Borrower has requested be made as
Eurodollar Loans, (ii) Eurodollar Loans that will result from the requested
conversion of ABR Loans into Eurodollar Loans or (iii) the continuation of
Eurodollar Loans beyond the expiration of the then current Interest Period with
respect thereto, the Agent shall give telex or telephonic notice of such
determination to the Borrower and the Banks as soon as reasonably practicable
after it becomes aware of such determination. If such notice is given (x) any
requested
<PAGE> 32
27
Eurodollar Loans shall be made as ABR Loans, (y) any ABR Loans that were to
have been converted to Eurodollar Loans shall be continued as ABR Loans and (z)
any outstanding Eurodollar Loans shall be converted, on the last day of the
then current Interest Period with respect thereto, to ABR Loans. Until such
notice has been withdrawn by the Agent, no further Eurodollar Loans shall be
made, nor shall the Borrower have the right to convert ABR Loans to Eurodollar
Loans.
2.11 Illegality. Notwithstanding any other provisions
herein, if any Requirement of Law or any change therein or in the
interpretation or application thereof shall make it unlawful for any Bank to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Bank hereunder to make Eurodollar Loans or convert ABR Loans
to Eurodollar Loans shall forthwith be cancelled and (b) such Bank's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to
ABR Loans on the respective last days of the then current Interest Periods for
such Loans or within such earlier period as required by law. If any such
prepayment or conversion of a Eurodollar Loan occurs on a day which is not the
last day of the current Interest Period with respect thereto, the Borrower
shall pay to such Bank such amounts, if any, as may be required pursuant to
subsection 2.13.
2.12 Requirements of Law. (a) In the event that any
Requirement of Law (or any change therein or in the interpretation or
application thereof) or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority:
(i) does or shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loans made by it, or change the basis of taxation of payments to such
Bank of principal, commitment fee, interest or any other amount
payable hereunder (except for changes in the rate of tax on the
overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, or deposits or other liabilities in or for the
account of, advances or loans by, or other credit extended by, or any
other acquisition of funds by, any office of such Bank which are not
otherwise included in the determination of the Eurodollar Rate; or
(iii) does or shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
any amount which such Bank deems to be material, of making, renewing or
maintaining advances or extensions of credit or to reduce any amount receivable
hereunder, in each case in
<PAGE> 33
28
respect of its Eurodollar Loans, then, in any such case, the Borrower shall
promptly pay such Bank, upon receipt of its demand setting forth in reasonable
detail any additional amounts necessary to compensate such Bank for such
additional cost or reduced amount receivable, together with interest on each
such amount from the date two Business Days after the date demanded until
payment in full thereof at the ABR. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by such Bank, through the
Agent, to the Borrower shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and payment of
the outstanding Notes.
(b) In the event that any Bank shall have determined that the
adoption of any law, rule, regulation or guideline regarding capital adequacy
(or any change therein or in the interpretation or application thereof) or
compliance by any Bank or any corporation controlling such Bank with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority, including,
without limitation, the issuance of any final rule, regulation or guideline,
does or shall have the effect of reducing the rate of return on such Bank's or
such corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Bank's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, after submission by
such Bank to the Borrower (with a copy to the Agent) of a written request
therefor, the Borrower shall promptly pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction.
(c) If the obligation of any Bank to make Eurodollar Rate
Loans has been suspended pursuant to subsection 2.10 for more than three
consecutive months or any Bank has demanded compensation under subsection
2.12(a) or 2.12(b), the Borrower shall have the right to substitute a bank or
banks (which may be one or more of the Banks) reasonably satisfactory to the
Agent by causing such bank or banks to purchase the rights (by paying to such
Bank the principal amount of its outstanding Loans together with accrued
interest thereon and all other amounts accrued for its account or owed to it
hereunder and executing a Commitment Transfer Supplement) and to assume the
obligations of such Bank under the Loan Documents. Upon such purchase and
assumption by such substituted bank or banks, the obligations of such Bank
hereunder shall be discharged; provided such Bank shall retain its rights
hereunder with respect to periods prior to such substitution including, without
limitation, its rights to compensation under this subsection 2.12.
2.13 Indemnity. The Borrower agrees to indemnify each Bank
and to hold each Bank harmless from any loss or expense
<PAGE> 34
29
which such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment when due of the principal amount of or interest on any
Eurodollar Loans of such Bank, (b) default by the Borrower in making a
borrowing or conversion after the Borrower has given a notice of borrowing in
accordance with subsection 2.3 or a notice of conversion pursuant to subsection
2.6, (c) default by the Borrower in making any prepayment after the Borrower
has given a notice in accordance with subsection 2.8 or (d) the making of a
prepayment of a Eurodollar Loan on a day which is not the last day of an
Interest Period with respect thereto, including, without limitation, in each
case, any such loss or expense arising from the reemployment of funds obtained
by it to maintain its Eurodollar Loans hereunder or from fees payable to
terminate the deposits from which such funds were obtained. This covenant
shall survive termination of this Agreement and payment of the outstanding
Notes.
2.14 Taxes. (a) All payments made by the Borrower under
this Agreement shall be made free and clear of, and without reduction or
withholding for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding, in the case of the Agent and each Bank,
income or franchise taxes imposed on the Agent or such Bank by the jurisdiction
under the laws of which the Agent or such Bank is organized or any political
subdivision or taxing authority thereof or therein or by any jurisdiction in
which such Bank's lending office is located or any political subdivision or
taxing authority thereof or therein or as a result of a connection between such
Bank and any jurisdiction other than a connection resulting solely from
entering into this Agreement (all such non-excluded taxes, levies, imposts,
deductions, charges or withholdings being thereinafter called "Taxes").
Subject to the provisions of subsection 2.14(c), if any Taxes are required to
be withheld from any amounts payable to the Agent or any Bank hereunder or
under the Notes or the Letters of Credit, the amounts so payable to the Agent
or such Bank shall be increased to the extent necessary to yield to the Agent
or such Bank (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement
and the Notes. Whenever any Taxes are paid by the Borrower with respect to
payments made in connection with this Agreement, as promptly as possible
thereafter, the Borrower shall send to the Agent for its own account or for the
account of such Bank, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. Subject to
the provisions of subsection 2.14(c), if the Borrower fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Agent and the Banks for any incremental taxes, interest or
penalties that may become
<PAGE> 35
30
payable by the Agent or any Banks as a result of any such failure.
(b) Each Bank that is not incorporated or organized under the
laws of the United States of America or a state thereof agrees that, the first
date any payment is due to be made to it hereunder or under any Note or Letter
of Credit, it will deliver to the Borrower and the Agent (i) two valid, duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that
such Bank is entitled to receive payments under this Agreement, the Notes
payable to it and the Letters of Credit, without deduction or withholding of
any United States federal income taxes, and (ii) a valid, duly completed
Internal Revenue Service Form W-8 or W-9 or successor applicable form, as the
case may be, to establish an exemption from United States backup withholding
tax. Each Bank which delivers to the Borrower and the Agent a Form 1001 or
4224 and Form W-8 or W-9 pursuant to the next preceding sentence further
undertakes to deliver to the Borrower and the Agent two further copies of the
said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms, or
other manner or certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or otherwise is required to be
resubmitted as a condition to obtaining an exemption from withholding tax, or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, and such extensions or renewals
thereof as may reasonably be requested by the Borrower, certifying in the case
of a Form 1001 or 4224 that such Bank is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless any change in treaty, law or regulation or official
interpretation thereof has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Bank from duly completing and delivering any such
letter or form with respect to it and such Bank advises the Borrower that it is
not capable of receiving payments without any deduction or withholding of
United States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
(c) The Borrower shall not be required to pay any additional
amounts to the Agent or any Bank (or Purchasing Bank) in respect of United
States withholding tax pursuant to subsection 2.14(a) if (i) the obligation to
pay such additional amounts would not have arisen but for a failure by the
Agent or such Bank (or Purchasing Bank) to comply with the requirements of
subsection 2.14(b) (or in the case of a Purchasing Bank, the requirements of
subsection 11.6(g)) or (ii) the Agent or such Bank (or Purchasing Bank) shall
not have furnished the Borrower with such forms and shall not have taken such
other steps as reasonably may be available to it (provided, however, that such
steps shall not impose on the Agent or such Bank any additional
<PAGE> 36
31
costs or legal or regulatory burdens deemed by the Agent or such Bank in its
sole judgment to be material) under applicable tax laws and any applicable tax
treaty or convention to obtain an exemption from, or reduction (to the lowest
applicable rate) of, such United States withholding tax.
(d) Each Bank agrees to use reasonable efforts (including
reasonable efforts to change its lending office) to avoid or to minimize any
amounts which might otherwise be payable pursuant this subsection 2.14;
provided, however, that such efforts shall not impose on such Bank any
additional costs or legal or regulatory burdens deemed by such Bank in its sole
judgment to be material.
(e) The agreements in subsection 2.14(a) shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder until the expiration of the applicable statute of
limitations for such taxes.
2.15 Use of Proceeds. The proceeds of the Revolving Credit
Loans shall be used (a) to finance the Acquisition and (b) for other general
corporate purposes. The proceeds of the Swing Line Loans shall be used solely
to finance the short-term working capital needs of the Borrower and its
Subsidiaries in the ordinary course of business.
2.16 Assignment of Commitments Under Certain Circumstances.
In the event that any Bank shall have delivered a notice or certificate
pursuant to subsection 2.12, the Borrower shall have the right, at its own
expense, upon notice to such Bank and the Agent, to require such Bank to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in subsection 11.6) all its interests, rights and
obligations under this Agreement to another bank or financial institution
identified by the Borrower acceptable to the Agent (subject to the restrictions
contained in subsection 11.6) which shall assume such obligations; provided
that (a) no such assignment shall conflict with any law, rule or regulation or
order of any Governmental Authority and (b) the Borrower or the assignee, as
the case may be, shall pay to the transferor Bank in immediately available
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder, including, without limitation,
amounts payable pursuant to subsection 2.12.
SECTION 3. LETTERS OF CREDIT
3.1 Letters of Credit. (a) Subject to the terms and
conditions of this Agreement, Chemical (or such other Bank which succeeds
Chemical as Agent), as Issuing Bank, agrees, and any other Issuing Bank may, as
agreed between the Borrower and such Issuing Bank, agree, on behalf of the
Banks, and in reliance on
<PAGE> 37
32
the agreement of the Banks set forth in subsection 3.3, to issue for the
account of the Borrower (or in connection with any Foreign Letter of Credit,
for the joint and several accounts of the Borrower and such applicable Foreign
Subsidiary) letters of credit in an aggregate face amount not to exceed
$125,000,000 at any time outstanding, as follows:
(i) standby letters of credit (collectively, the "Standby
Letters of Credit") in the form of either (A) in the case of standby
letters of credit to be used for the purposes described in subsection
3.9(a) or (c), the Issuing Bank's standard standby letter of credit or
(B) in the case of standby letters of credit to be used for the
purposes described in subsection 3.9(b), a letter of credit reasonably
satisfactory to the Issuing Bank, and in either case, in favor of such
beneficiaries as the Borrower shall specify from time to time (which
shall be reasonably satisfactory to the Issuing Bank);provided that
the face value of all Foreign Letters of Credit with beneficiaries
which are not organized under the laws of Canada or Mexico shall not
exceed, in the aggregate $65,000,000; and
(ii) commercial letters of credit in the form of the
Issuing Bank's standard commercial letters of credit ("Commercial
Letters of Credit") in favor of sellers of goods or services to the
Borrower or its Subsidiaries (the Standby Letters of Credit and
Commercial Letters of Credit being referred to collectively as the
"Letters of Credit");
provided that on the date of the issuance of any Letter of Credit, and after
giving effect to such issuance, the Extensions of Credit shall not exceed the
Commitments at such time. Each Standby Letter of Credit shall (i) have an
expiry date no later than (A) with respect to any Standby Letter of Credit to
be used for the purposes described in subsection 3.9(a) or (c), one year from
the date of issuance thereof or, if earlier, the Termination Date or (B) with
respect to any Standby Letter of Credit to be used for the purposes described
in subsection 3.9(b), the Termination Date, (ii) be denominated in Dollars and
(iii) be in a minimum face amount of $500,000. Each Commercial Letter of
Credit shall (i) provide for the payment of sight drafts when presented for
honor thereunder, or of time drafts, in each case in accordance with the terms
thereof and when accompanied by the documents described or when such documents
are presented, as the case may be, (ii) be denominated in Dollars and (iii)
have an expiry date no later than six months from the date of issuance thereof
or, if earlier, the Termination Date.
(b) Pursuant to the Amended and Restated Credit Agreement,
Chemical, as Issuing Bank, has issued the Letters of Credit described in
Schedule 3.1 (the "Existing Letters of Credit"). From and after the Closing
Date, the Existing Letters of Credit shall for all purposes be deemed to be
Letters of Credit outstanding under this Agreement.
<PAGE> 38
33
3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request, upon at least three Business Days'
notice, Chemical, as Issuing Bank, to issue a Letter of Credit by delivering to
such Issuing Bank at its address specified in subsection 11.2 a Letter of
Credit Application, completed to the satisfaction of such Issuing Bank,
together with such other certificates, documents and other papers and
information as such Issuing Bank may reasonably request. Upon receipt of any
Letter of Credit Application from the Borrower, or, in the case of a Foreign
Letter of Credit, from the Borrower and the Foreign Subsidiary that is an
account party on such Letter of Credit, such Issuing Bank will promptly, but in
no event later than five Business Days following receipt of such Letter of
Credit Application, notify each Bank thereof. Upon receipt of any Letter of
Credit Application, Chemical, as Issuing Bank, will process such Letter of
Credit Application, and the other certificates, documents and other papers
delivered in connection therewith, in accordance with its customary procedures
and shall promptly issue such Letter of Credit (but in no event earlier than
three Business Days after receipt by such Issuing Bank of the Letter of Credit
Application relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof and by furnishing a copy thereof to the Borrower and
the Participating Banks. In addition, the Borrower may from time to time agree
with Issuing Banks other than Chemical upon procedures for issuance by such
Issuing Banks of Letters of Credit and cause Letters of Credit to be issued by
following such procedures. Such procedures shall be reasonably satisfactory to
the Agent. Prior to the issuance of any Letter of Credit, the Issuing Bank
will confirm with the Agent that the issuance of such Letter of Credit is
permitted pursuant to Section 3 and subsection 5.2. Additionally, each Issuing
Bank and the Borrower shall inform the Agent of any modifications made to
outstanding Letters of Credit, of any payments made with respect to such
Letters of Credit, and of any other information regarding such Letters of
Credit as may be reasonably requested by the Agent, in each case pursuant to
procedures established by the Agent.
3.3 Participating Interests. In the case of each Existing
Letter of Credit, effective on the Closing Date, and in the case of each Letter
of Credit issued on or after the Closing Date, effective as of the date of the
issuance thereof, the Issuing Bank in respect of such Letter of Credit agrees
to allot and does allot, to each other Bank, and each such Bank severally and
irrevocably agrees to take and does take a Participating Interest in such
Letter of Credit and the related Letter of Credit Application in a percentage
equal to such Bank's Commitment Percentage. On the date that any Purchasing
Bank becomes a party to this Agreement in accordance with subsection 11.6,
Participating Interests in any outstanding Letter of Credit held by the Bank
from which such Purchasing Bank acquired its interest hereunder shall be
proportionately reallotted between such Purchasing Bank and such transferor
Bank. Each Participating Bank hereby agrees that its obligation to
<PAGE> 39
34
participate in each Letter of Credit issued hereunder and to pay or to
reimburse the Issuing Bank in respect of such Letter of Credit for its
participating share of the drafts drawn thereunder shall be irrevocable and
unconditional; provided that no Participating Bank shall be liable for the
payment of any amount under subsection 3.4(b) resulting solely from such
Issuing Bank's gross negligence or willful misconduct.
3.4 Payments. (a) The Borrower agrees (and in the case of a
Foreign Letter of Credit, such Foreign Subsidiary for whose account such Letter
of Credit was issued shall also agree, jointly and severally) (i) to reimburse
the Agent for the account of the relevant Issuing Bank, forthwith upon its
demand and otherwise in accordance with the terms of the Letter of Credit
Application, if any, relating thereto, for any payment made by such Issuing
Bank under any Letter of Credit issued by such Issuing Bank for its account and
(ii) to pay to the Agent for the account of such Issuing Bank, interest on any
unreimbursed portion of any such payment from the date of such payment until
reimbursement in full thereof at a fluctuating rate per annum equal to the rate
then borne by ABR Loans pursuant to subsection 4.1(a) plus 2%.
(b) In the event that an Issuing Bank makes a payment under
any Letter of Credit and is not reimbursed in full therefor, forthwith upon
demand of such Issuing Bank, and otherwise in accordance with the terms hereof
or of the Letter of Credit Application, if any, relating to such Letter of
Credit, such Issuing Bank will promptly through the Agent notify each
Participating Bank that acquired its Participating Interest in such Letter of
Credit from such Issuing Bank. No later than the close of business on the date
such notice is given, each such Participating Bank will transfer to the Agent,
for the account of such Issuing Bank, in immediately available funds, an amount
equal to such Participating Bank's pro rata share of the unreimbursed portion
of such payment. Upon its receipt from such Participating Bank of such amount,
such Issuing Bank will, if so requested by such Participating Bank, complete,
execute and deliver to such Participating Bank a Letter of Credit Participation
Certificate dated the date of such receipt and in such amount.
(c) Whenever, at any time, after an Issuing Bank has made
payment under a Letter of Credit and has received from any Participating Bank
such Participating Bank's pro rata share of the unreimbursed portion of such
payment, such Issuing Bank receives any reimbursement on account of such
unreimbursed portion or any payment of interest on account thereof, such
Issuing Bank will distribute to the Agent, for the account of such
Participating Bank, its pro rata share thereof; provided, however, that in the
event that the receipt by such Issuing Bank of such reimbursement or such
payment of interest (as the case may be) is required to be returned, such
Participating Bank will promptly return to the Agent, for the account of such
Issuing
<PAGE> 40
35
Bank, any portion thereof previously distributed by such Issuing Bank to it.
3.5 Increased Costs. (a) In the event that any Requirement
of Law (or any change therein or in the interpretation or application thereof)
or compliance by any Bank with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority shall
either (i) impose, modify or hold applicable any reserve, special deposit or
similar requirement against letters of credit issued by an Issuing Bank or
participated in by other Banks or (ii) impose upon an Issuing Bank or on any
other Bank any other condition regarding any Letter of Credit and the result of
any event referred to in clause (i) or (ii) above shall be to increase the cost
to such Issuing Bank or any other Bank of issuing or maintaining such Letter of
Credit (or its participation therein, as the case may be), or to reduce any
amount receivable in connection therewith then, in any such case the Borrower
shall, without duplication of any amounts paid pursuant to subsection 2.12(a),
promptly pay to such Issuing Bank or such other Bank, as the case may be, upon
receipt of its demand setting forth in reasonable detail any additional amounts
which shall be sufficient to compensate such Issuing Bank or such other Bank
for such increased cost or reduced amount receivable, together with interest on
each such amount from the date two Business Days after the date demanded until
payment in full thereof at the ABR. A certificate as to the fact and amount of
such increased cost incurred by such Issuing Bank or such other Bank or such
reduced amount receivable as a result of any event mentioned in clause (i) or
(ii) above, submitted by such Issuing Bank or any such other Bank (through the
Agent) to the Borrower, shall be conclusive in the absence of manifest error.
(b) In the event that an Issuing Bank shall have determined
that the adoption of any law, rule, regulation or guideline regarding capital
adequacy, or any change therein or in the interpretation or application thereof
or compliance by such Issuing Bank or any corporation controlling such Issuing
Bank with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or Governmental Authority,
including, without limitation, the issuance of any final rule, regulation or
guideline, does or shall have the effect of reducing the rate of return on such
Issuing Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Issuing Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Issuing Bank's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Issuing Bank to
be material, then from time to time, after submission by such Issuing Bank to
the Borrower (with a copy to the Agent) of a written request therefor, the
Borrower shall promptly pay to such Issuing Bank, without duplication of any
amounts paid pursuant to
<PAGE> 41
36
subsection 2.12(b), such additional amount or amounts as will compensate such
Issuing Bank for such reduction.
3.6 Further Assurances. (a) The Borrower hereby agrees,
from time to time, to do and perform any and all acts and to execute any and
all further instruments reasonably requested by an Issuing Bank more fully to
effect the purposes of this Agreement and the issuance of the Letters of Credit
opened hereunder.
(b) It is understood that in connection with Letters of
Credit issued for the purposes described in subsection 3.9(b) it may be
customary for the Issuing Bank in respect of such Letter of Credit to obtain an
opinion of its counsel relating to such Letter of Credit, and each Issuing Bank
that issues such a Letter of Credit agrees to cooperate with the Borrower in
obtaining such customary opinion, which opinion shall be at the Borrower's
expense unless otherwise agreed to by such Issuing Bank.
3.7 Obligations Absolute. The payment obligations of the
Borrower under subsection 3.4 shall be unconditional and irrevocable and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(a) the existence of any claim, set-off, defense or other
right which the Borrower may have at any time against any beneficiary,
or any transferee, of any Letter of Credit (or any Persons for whom
any such beneficiary or any such transferee may be acting), any
Issuing Bank or any Participating Bank, or any other Person, whether
in connection with this Agreement, the transactions contemplated
herein, or any unrelated transaction;
(b) any statement or any other document presented under any
Letter of Credit opened for its account proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(c) payment by an Issuing Bank under any Letter of Credit
against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit, except payment resulting
solely from the gross negligence or willful misconduct of such Issuing
Bank; or
(d) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct
of such Issuing Bank.
3.8 Letter of Credit Application. To the extent not
inconsistent with the terms of this Agreement (in which case the
<PAGE> 42
37
provisions of this Agreement shall prevail), provisions of any Letter of Credit
Application related to any Letter of Credit are supplemental to, and not in
derogation of, any rights and remedies of the Issuing Banks and the
Participating Banks under this Section 3 and applicable law. The Borrower
acknowledges and agrees that all rights of the Issuing Bank under any Letter of
Credit Application shall inure to the benefit of each Participating Bank to the
extent of its Commitment Percentage as fully as if such Participating Bank was
a party to such Letter of Credit Application.
3.9 Purpose of Letters of Credit. Each Standby Letter of
Credit shall be used by the Borrower solely (a) to provide credit support for
borrowings by the Borrower or its Subsidiaries, (b) to pay or secure the
payment of the principal amount of, and accrued interest on, and other
obligations with respect to, Industrial Revenue Bonds in accordance with the
provisions of the indenture related thereto, or (c) for other working capital
purposes of the Borrower and Subsidiaries in the ordinary course of business.
Each Commercial Letter of Credit will be used by the Borrower and Subsidiaries
solely to provide the primary means of payment in connection with the purchase
of goods or services by the Borrower and Subsidiaries in the ordinary course of
business.
SECTION 4. INTEREST RATE PROVISIONS, FEES AND PAYMENTS
4.1 Interest Rates and Payment Dates. (a) Each ABR Loan
shall bear interest for the period from and including the date thereof until
maturity, repayment or conversion on the unpaid principal amount thereof at a
rate per annum equal to the ABR.
(b) Each Eurodollar Loan shall bear interest for each
Interest Period with respect thereto on the unpaid principal amount thereof at
a rate per annum equal to the Eurodollar Rate determined for such Interest
Period plus the Applicable Margin.
(c) If all or a portion of the principal amount of any of the
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), each Eurodollar Loan shall be converted to an ABR
Loan at the end of the last Interest Period therefor for which the Agent shall
have determined, on or prior to the date such unpaid principal amount became
due, a Eurodollar Rate. Any overdue principal amount of any Loan shall bear
interest from the due date thereof until payment in full thereof (as well after
judgment as before judgment) at a rate per annum equal to the interest rate
then borne by each such Loan under subsection 4.1(a) or 4.1(b), as applicable,
plus 2%. Any overdue fees payable hereunder shall bear interest from the due
date thereof until payment in full thereof (as well after judgment as before
judgment) at a rate per annum equal to the interest rate then borne by ABR
Loans plus 2%.
<PAGE> 43
38
(d) Interest payable under subsection 4.1(a) or 4.1(b) shall
be payable in arrears on each Interest Payment Date, commencing on the first
such date to occur after the Closing Date. Interest payable under subsection
4.1(c) shall be payable on demand.
4.2 Commitment Fees. The Borrower agrees to pay to the
Agent, for the account of each Bank, a commitment fee for the period from and
including the Closing Date to the Termination Date calculated on the average
daily Available Commitment of such Bank for each day during the period for
which such commitment fee is being paid, at the rate per annum set forth below
opposite the Coverage Ratio and Debt Ratio most recently determined:
<TABLE>
<CAPTION>
Commitment
Ratio Levels Fee Rate
------------ ----------
<S> <C>
Level I:
Coverage Ratio is
less than 4.0 to 1
and Debt Ratio
is greater than
3.25 to 1 0.375%
Level II:
Coverage Ratio is
equal to or greater
than 4.0 to 1 but less
than 5.0 to 1 and
Debt Ratio is
equal to or less
than 3.25 to 1 but
greater than 1.75 to 1 0.250%
Level III:
Coverage Ratio is equal to
or greater than 5.0 to 1
and Debt Ratio is equal to
or less than 1.75 to 1 0.200%;
</TABLE>
provided that (i) the commitment fee rate commencing on the Closing Date shall
be that set forth above opposite Level II until the first Adjustment Date for
which the Coverage Ratio or Debt Ratio falls within another Level, (ii) the
commitment fee rate determined for any Adjustment Date shall remain in effect
until a subsequent Adjustment Date for which the Coverage Ratio or Debt Ratio
falls within a different Level, (iii) if the financial statements and related
compliance certificate for any fiscal period are not delivered by the date due
pursuant to subsection 7.1, the commitment fee rate shall be that set forth
above opposite Level I from such due date until the subsequent
<PAGE> 44
39
Adjustment Date, and (iv) if the Debt Ratio and the Coverage Ratio do not fall
within the same Level, the rate applicable will be the rate set forth above
opposite such higher Level. Such fee shall be payable quarterly in arrears on
the last day of each March, June, September and December, commencing on
December 31, 1994 and on the Termination Date. For purposes of this subsection
4.2(b), the higher Level shall be the Level at which the applicable rate would
be higher.
4.3 Agent's Fees. The Borrower agrees to pay to the Agent
for its own account any administrative fees as agreed between the Agent and the
Borrower in writing from time to time.
4.4 Letter of Credit Fees. (a) In lieu of any letter of
credit commissions and fees provided for in any Letter of Credit Application
(other than any standard issuance, amendment and negotiation fees), the
Borrower will pay the Agent, (i) for the account of the Issuing Bank, a
non-refundable fronting fee equal to 0.25% per annum and (ii) for the account
of the Banks, a non-refundable Letter of Credit fee equal to the Applicable
Margin with respect to Eurodollar Loans less 0.25%, in each case on the amount
available to be drawn under such Letter of Credit. Such fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter, and
shall be calculated on the average daily amount available to be drawn under the
Letters of Credit.
(b) The Borrower agrees to pay the Issuing Bank for its own
account its customary administration, amendment, transfer and negotiation fees
charged by the Issuing Bank in connection with its issuance and administration
of Letters of Credit.
4.5 Computation of Interest and Fees. (a) Interest on the
Loans and all fees payable pursuant hereto shall be calculated on the basis of
a 360 day year for the actual days elapsed. The Agent shall as soon as
practicable notify the Borrower and the Banks of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements or the Applicable
Margin shall become effective as of the opening of business on the day on which
such change in the ABR is announced, such change in the Eurocurrency Reserve
Requirements shall become effective or such change in the Applicable Margin
occurs, as the case may be. The Agent shall as soon as practicable notify the
Borrower and the Banks of the effective date and the amount of each such
change. For purposes of the Interest Act (Canada), where, in respect of any
Loan, (i) a rate of interest is to be calculated on the basis of a year of 360
days, the yearly rate of interest to which the 360 day rate is equivalent is
such rate multiplied by the number of days in the year for which such
calculation is made and divided by 360, or (ii) an annual rate of interest is
to be calculated during a leap year, the yearly rate of interest to which such
rate is equivalent is such rate multiplied by 366 and divided by 365.
<PAGE> 45
40
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Banks in the absence of manifest error. The Agent shall,
at the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Agent in determining any interest rate pursuant to
subsection 4.1(b).
(c) If any Reference Bank's Commitments shall terminate
(otherwise than on termination of all the Commitments), or its Loans shall be
assigned for any reason whatsoever, such Reference Bank shall thereupon cease
to be a Reference Bank, and if, as a result of the foregoing, there shall only
be one Reference Bank remaining, then the Agent (after consultation with the
Borrower and the Banks) shall, by notice to the Borrower and the Banks,
designate another Bank as a Reference Bank so that there shall at all times be
at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks shall be unable or otherwise fails to supply such rates to the
Agent upon its request, the rate of interest shall be determined on the basis
of the quotations of the remaining Reference Banks or Reference Bank.
4.6 Pro Rata Treatment and Payments. Each borrowing by the
Borrower hereunder (other than pursuant to subsection 2.4(a)), each conversion
or continuation of a Loan under subsection 2.6, each payment (including each
prepayment) by the Borrower on account of principal, interest and fees
hereunder (except fees referred to in subsections 4.3, 4.4(a)(i) and 4.4(b) and
except for payments in respect of Swing Line Loans) and any reduction of the
Commitments shall be made pro rata according to the respective Commitment
Percentages of the Banks. All payments (including prepayments) to be made by
the Borrower on account of principal, interest and fees shall be made without
set off or counterclaim and shall be made to the Agent, for the account of the
Banks (except with respect to the fees referred to in subsections 4.3,
4.4(a)(i) and 4.4(b) and except for payments in respect of Swing Line Loans),
at the Agent's office set forth in subsection 11.2, in each case on or prior to
12:00 P.M., New York City time, in lawful money of the United States of America
and in immediately available funds. The Agent shall promptly distribute each
such payment to each Bank. If any payment hereunder (other than payments on
the Eurodollar Loans) becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension. If any payment on a Eurodollar
Loan becomes due and payable on a day other than a Working Day, the maturity
thereof shall be extended to the next succeeding Working Day unless the result
of such extension would be to extend such payment into another calendar month
in which
<PAGE> 46
41
event such payment shall be made on the immediately preceding Working Day.
4.7 Failure by Banks to Make Funds Available. Unless the
Agent shall have been notified in writing by any Bank prior to a Borrowing Date
that such Bank will not make the amount which would constitute its Commitment
Percentage of the borrowing on such Borrowing Date available to the Agent, the
Agent may assume that such Bank has made such amount available to the Agent on
such Borrowing Date in accordance with subsection 2.3 or 2.4, as the case may
be, and the Agent may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. If such amount is made available to the Agent
on a date after such Borrowing Date, such Bank shall pay to the Agent on demand
an amount equal to the product of (a) the daily average Federal funds rate
during such period as quoted by the Agent, times (b) the amount of such Bank's
Commitment Percentage of such borrowing, times (c) a fraction the numerator of
which is the number of days that elapse from and including such Borrowing Date
to the date on which such Bank's Commitment Percentage of such borrowing shall
have become immediately available to the Agent and the denominator of which is
360. A certificate of the Agent submitted to any Bank with respect to any
amounts owing under this subsection 4.7 shall be conclusive, absent manifest
error. If such Bank's Commitment Percentage of such borrowing is not in fact
made available to the Agent by such Bank within three Business Days of such
Borrowing Date, the Agent shall be entitled to recover from the Borrower such
amount, on demand, with interest thereon at the rate applicable to the Loans
made on such Borrowing Date. Nothing herein shall be deemed to relieve any
Bank from its obligation to fulfill its Commitment hereunder or to prejudice
any rights which the Borrower may have against such Bank as a result of any
default by such Bank hereunder.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Closing Date. The Closing Date shall occur
on the date of satisfaction of the following conditions precedent:
(a) Agreement; Notes. The Agent shall have received (i)
a counterpart of this Agreement for each Bank, duly executed by a
Responsible Officer of the Borrower and (ii) for each Bank, a
Revolving Credit Note (and, in the case of Chemical, a Swing Line
Note) conforming to the requirements hereof, duly executed by a
Responsible Officer of the Borrower.
(b) Subsidiary Guarantee. The Agent shall have received,
with a counterpart for each Bank, the Subsidiary Guarantee duly
executed by each guarantor party thereto and by the Agent.
<PAGE> 47
42
(c) Security Agreements. The Agent shall have received, with
a counterpart for each Bank, each of the Security Agreements duly
executed by the grantor party thereto and by the Agent, including the
Acknowledgment and Confirmation with respect to the Amended and
Restated General Security Agreement.
(d) Pledge Agreements. The Agent shall have received, with a
counterpart for each Bank, each of the Pledge Agreements duly executed
by the pledgor party thereto and by the Agent, including the
Acknowledgment and Confirmation with respect to the Amended and
Restated Canadian Pledge Agreement and the Confirmation with respect
to the Pledge Agreement ("Nantissement").
(e) Pledged Stock; Stock Powers. The Agent shall have
received the certificates representing the shares pledged pursuant to
each of the Pledge Agreements, together with an undated stock power
for each such certificate executed in blank by a duly authorized
officer of the pledgor thereof.
(f) Mortgages. The Agent shall have received, with a
counterpart for each Bank, a certified true copy of each of the
Mortgages.
(g) Perfection Actions. Except for (i) the notarization and
the related notification relating to the Second Amended and Restated
German Pledge Agreement, (ii) the perfection procedures detailed in
the Second Amended and Restated Mexican Pledge Agreement and the
Second Amended and Restated Additional Mexican Pledge Agreement and
(iii) the notarization and filings relating to the Amendment Agreement
to the Irrevocable Property Conveyance Trust Agreements covering the
Rio Bravo, San Lorenzo and La Cuesta facilities of Favesa, all
filings, registrations and recordings necessary or recommended in
order to continue the perfection and priority of the Agent's security
interest purported to be created by the Security Documents shall have
been accomplished. The Agent shall have received evidence reasonably
satisfactory to it of each such filing, registration or recordation
and satisfactory evidence of the payment of any necessary fee, tax or
expense relating thereto.
(h) Consents. The Agent shall have received, with copies
and executed certificates for each Bank, true and correct copies (in
each case certified as to authenticity on such date by a duly
authorized officer of the Borrower) of all documents and instruments,
including all consents, authorizations and filings, required under any
Requirement of Law or by Contractual Obligation of Borrower or any of
its Subsidiaries, in connection with the execution, delivery,
performance, validity and enforceability of this Agreement and the
other Loan Documents, and such consents,
<PAGE> 48
43
authorizations and filings shall be satisfactory in form and substance
to the Banks and be in full force and effect.
(i) Incumbency Certificates. The Agent shall have
received, with a counterpart for each Bank, a certificate of the
Secretary or Assistant Secretary of each Domestic Loan Party, dated
the Closing Date, as to the incumbency and signature of their
respective officers executing each Loan Document to be entered into on
the Closing Date to which it is a party, together with satisfactory
evidence of the incumbency of such Secretary or Assistant Secretary.
(j) Corporate Proceedings. The Agent shall have
received, with a counterpart for each Bank, a copy of the resolutions
in form and substance satisfactory to the Agent, of the Board of
Directors (or the executive committee thereof) of each Domestic Loan
Party authorizing (i) the execution, delivery and performance of each
Loan Document to be entered into on the Closing Date to which it is a
party, and (ii) the granting by it of the pledge and security
interests, if any, granted by it pursuant to such Loan Document,
certified by their respective Secretary or an Assistant Secretary as
of the Closing Date, which certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked
or rescinded as of the date of such certificate.
(k) Litigation. No material suit, action, investigation,
inquiry or other proceeding (including, without limitation, the
enactment or promulgation of a statute or rule) by or before any
arbitrator or any Governmental Authority shall be pending and no
preliminary or permanent injunction or order by a state or federal
court shall have been entered (i) in connection with any Loan Document
or any of the transactions contemplated hereby or (ii) which, in any
such case, could have a material adverse effect on (A) the
transactions contemplated by any Loan Document including, without
limitation, the financings contemplated hereby or (B) the business,
operations, properties, assets or financial or other condition of the
Borrower and its Subsidiaries taken as a whole.
(l) Fees. The Agent shall have received all fees
required to be paid to the Agent and/or the Banks pursuant to Section
4 and/or any other written agreement on or prior to the Closing Date.
(m) Legal Opinion of Counsel to Borrower. The Agent shall
have received, with a copy for each Bank, an opinion, dated the
Closing Date, of Winston & Strawn, counsel to Borrower and its
Subsidiaries, and Michigan counsel to Borrower and its Subsidiaries,
acceptable to the Agent, in form and substance satisfactory to the
Banks and covering
<PAGE> 49
44
such matters incident to the transactions contemplated hereby as the
Banks may reasonably require.
(n) Legal Opinions of Foreign Counsel. The Agent shall have
received or waived as a condition precedent, with a counterpart for
each Bank, an opinion of Stikeman, Elliott, Canadian counsel to the
Borrower, Blake, Cassels & Graydon, Baker & McKenzie, Swedish counsel
to the Borrower, Freshfields, French counsel to the Agent, and
Clifford Chance, U.K. counsel to the Agent in form and substance
satisfactory to the Banks and covering such matters incident to the
transactions contemplated hereby as the Banks may reasonably require.
(o) Subordinated Debt Documents; Other Agreements. The Agent
shall have received, with a counterpart for each Bank, a certified
true copy of the Subordinated Note Indenture, the Senior Subordinated
Note Indenture, the Stockholders Agreement, the Subscription
Agreements and the Purchase Agreement.
(p) Amended and Restated Credit Agreement. All fees and
expenses payable under the Amended and Restated Credit Agreement and
accrued through the Closing Date shall have been paid in full; provided
that all such fees shall be reasonable and billed to the Borrower at
least 3 days prior to the Closing Date.
(q) Representations and Warranties. The representations and
warranties made by each of the Loan Parties in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as
of the Closing Date as if made on and as of the Closing Date.
(r) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by the Loan Documents shall be
reasonably satisfactory in form and substance to the Agent.
(s) Subsection 11.14 Provisions. The provisions of
subsection 11.14 shall have been complied with.
5.2 Conditions to Each Loan and Each Letter of Credit. The
agreement of each Bank to make any Loan requested to be made by it on any date
(including, without limitation, the Closing Date) and the agreement of the
Issuing Bank to open any Letter of Credit requested to be opened on any date
(including, without limitation, the Closing Date), is subject to the
satisfaction of the following conditions precedent as of the date such Loan or
Letter of Credit is requested to be made or opened:
(a) Representations and Warranties. Each of the
representations and warranties made by each of the Loan
<PAGE> 50
45
Parties in or pursuant to the Loan Documents shall be true and correct
in all material respects on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans or the Letters of Credit requested to be made or opened, as the
case may be, on such date.
(c) No Litigation. No material litigation, investigation or
proceeding before or by any arbitrator or Governmental Authority shall
be continuing or threatened against Borrower, any Subsidiary or any of
the officers or directors of any thereof in connection with any Loan
Document or any of the transactions contemplated hereby or thereby.
(d) No Violations of Law. The Loans and the use of
proceeds thereof shall not contravene, violate or conflict with, nor
involve any Bank in a violation of, any law, rule, injunction, or
regulation or determination of any court of law or other Governmental
Authority.
(e) No Change. Since the Closing Date, there shall have
been no material adverse change in the business, operations, assets or
financial or other condition of the Borrower and its Subsidiaries
taken as a whole.
(f) Borrowing Certificate. The Agent shall have
received, with a copy for each Bank, a certificate of the Borrower,
substantially in the form of Exhibit G, dated such Borrowing Date and
executed and delivered by a Responsible Officer of the Borrower.
Each borrowing by the Borrower hereunder and each request for
issuance of a Letter of Credit shall constitute a representation and warranty
by the Borrower as of the date of such borrowing that the conditions contained
in this subsection 5.2 have been satisfied.
5.3 Conditions Precedent to Loan to Finance the
Acquisition. The agreement of each Bank to make any Loan the proceeds of
which are to be used to finance in whole or in part the Acquisition is subject
to the satisfaction of the following conditions precedent:
(a) Date of Loan. Such Loan and the Acquisition shall
occur on or before January 31, 1995.
(b) Acquisition Documents. The Agent shall have
received, with a counterpart for each Bank, certified true copies of
the acquisition agreements and related documents related to the
Acquisition, in each case, in form and substance reasonably
satisfactory to the Agent.
<PAGE> 51
46
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make
the Loans, and to induce the Issuing Bank to issue Letters of Credit, the
Borrower hereby represents and warrants to the Agent and to each Bank that:
6.1 Financial Statements. The audited consolidated
balance sheets of the Borrower as of December 31, 1993 and the related
statements of income and cash flow for the period ending on such date,
heretofore furnished to the Agent and the Banks and certified by a Responsible
Officer of the Borrower are complete and correct in all material respects and
fairly present the financial condition of the Borrower on such date in
conformity with GAAP applied on a consistent basis (subject to normal year-end
adjustments). All liabilities, direct and contingent, of the Borrower on such
dates required to be disclosed pursuant to GAAP are disclosed in such financial
statements.
6.2 No Change. There has been no material adverse change
in the business, operations, assets or financial or other condition of the
Borrower and its Subsidiaries taken as a whole from that reflected on the
financial statements dated December 31, 1993 referred to in subsection 6.1.
6.3 Corporate Existence; Compliance with Law. The
Borrower and each of its Subsidiaries (a) is duly organized, validly existing
and in good standing (or the functional equivalent thereof in the case of
Foreign Subsidiaries) under the laws of the jurisdiction of its organization,
(b) has the corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing (or the functional equivalent
thereof in the case of Foreign Subsidiaries) under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except where the failure to be so
qualified and in good standing would not, individually or in the aggregate,
have a material adverse effect on the business, operations, property or
financial or other condition of the Borrower and its Subsidiaries taken as a
whole and would not adversely affect the ability of any Loan Party to perform
its respective obligations under the Loan Documents to which it is a party and
(d) is in compliance with all Requirements of Law, except to the extent that
the failure to comply therewith could not, individually or in the aggregate,
have a material adverse effect on the business, operations, assets or financial
or other condition of the Borrower and its Subsidiaries taken as a whole and
could not adversely affect the ability of any Loan Party to perform its
obligations under the Loan Documents to which it is a party.
<PAGE> 52
47
6.4 Corporate Power; Authorization; Enforceable
Obligations. (a) Each Loan Party has the corporate power and authority, and
the legal right, to execute, deliver and perform each of the Loan Documents to
which it is a party or to which this Agreement requires it to become a party.
The Borrower has the corporate power and authority to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on the terms
and conditions of this Agreement and the Notes. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of each of the Loan Documents to which it is a party or to which this Agreement
requires it to become a party.
(b) No consent or authorization of, filing with or other
act by or in respect of any Person (including, without limitation, any
Governmental Authority) is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of the
Loan Documents or the consummation of any of the transactions contemplated
hereby or thereby, except for consents, authorizations, or filings which have
been obtained and are in full force and effect.
(c) This Agreement and each other Loan Document to which
any Loan Party is a party has been, and each other Loan Document to be executed
by a Loan Party hereunder will be, duly executed and delivered on behalf of
such Loan Party. This Agreement and each other Loan Document to which any Loan
Party is a party constitutes, and each other Loan Document to be executed by a
Loan Party hereunder will constitute, a legal, valid and binding obligation of
such Loan Party enforceable against such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
6.5 No Legal Bar; Senior Debt. The execution, delivery
and performance by each Loan Party of the Loan Documents to which it is a
party, the borrowings hereunder and the use of the proceeds thereof, (a) will
not violate any Requirement of Law or any Contractual Obligation of the
Borrower or any other Loan Party (including, without limitation, the Senior
Subordinated Note Indenture and the Subordinated Note Indenture) except for
violations of Requirements of Law and Contractual Obligations (other than such
Indentures) which, individually or in the aggregate will not have a material
adverse effect on the business, operations, property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole and will not
adversely affect the ability of any Loan Party to perform its obligations under
any of the Loan Documents to which it is a party and (b) will not result in, or
require, the creation or imposition of any Lien (other than the Liens created
by the Security Documents) on any of its or their respective properties
<PAGE> 53
48
or revenues pursuant to any Requirement of Law or Contractual Obligation. The
Obligations constitute "Senior Indebtedness" benefitting from the subordination
provisions contained in the Subordinated Debt, except to the extent that such
Obligations are owed to an Affiliate of the Borrower.
6.6 No Material Litigation. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is pending
or, to the knowledge of the Borrower, threatened by or against the Borrower or
any of its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to any Loan Document or any of the transactions
contemplated hereby or thereby, (b) which, if adversely determined, would have
a material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or (c)
which could adversely affect the ability of any Loan Party to perform its
obligations under any of the Loan Documents to which it is a party.
6.7 No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or any of its properties in any respect which would have a
material adverse effect on the business, operations, property or financial or
other condition of the Borrower and its Subsidiaries taken as a whole or which
would adversely affect the ability of any Loan Party to perform its obligations
under any of the Loan Documents to which it is a party. No Default or Event of
Default has occurred and is continuing.
6.8 Ownership of Property; Liens. The Borrower and each
of its Material Subsidiaries has good record and marketable title in fee simple
to, or a valid and subsisting leasehold interest in all its real property, and
good title to all its other property, and none of such property is subject to
any Lien, except as permitted in subsection 8.3.
6.9 No Burdensome Restrictions. No Contractual
Obligation of the Borrower or any of its Subsidiaries and no Requirement of Law
materially adversely affects, or insofar as the Borrower could reasonably
foresee may so affect, the business, operations, property or financial or other
condition of the Borrower and its Subsidiaries taken as a whole.
6.10 Taxes. The Borrower and each of its Material
Subsidiaries has filed or caused to be filed all tax returns which to the
knowledge of the Borrower are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than those which, in
the aggregate, are not substantial in amount or
<PAGE> 54
49
those the amount or validity of which are currently being contested in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Borrower or its
Subsidiaries, as the case may be); and no tax lien has been filed and, to the
knowledge of the Borrower, no claim is being asserted with respect to any such
tax, fee or other charge.
6.11 Federal Regulations. No Loan Party is engaged, nor will
it engage, principally or as one of its important activities, in the business
of extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms under
Regulation U or Regulation G of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect. No part of the
proceeds of any Loans hereunder will be used for "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors.
6.12 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Plan, and
each Plan has complied in all material respects with the applicable provisions
of ERISA and the Code. No termination of a Single Employer Plan has occurred
and no Lien under the Code or ERISA in favor of PBGC or a Single Employer Plan
has arisen during the five-year period prior to the date as of which this
representation is deemed made. The present value of all accrued benefits under
each Single Employer Plan maintained by the Borrower or any Commonly Controlled
Entity (based on those assumptions used to fund the Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits, either individually or in the aggregate with all other
Single Employer Plans under which such accrued benefits exceed such assets, by
more than $10,000,000. Neither the Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
liability under ERISA in the aggregate which exceeds $10,000,000 if the
Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding
the date hereof, and no such withdrawal is likely to occur. No such
Multiemployer Plan is in Reorganization or Insolvent. The present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the
<PAGE> 55
50
Borrower and each Commonly Controlled Entity for post retirement benefits to be
provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to such benefits by an amount
in excess of $75,000,000.
6.13 Investment Company Act; Other Regulations. The Borrower
is not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any federal or state statute or
regulation which limits its ability to incur Indebtedness.
6.14 Subsidiaries, etc. The only Subsidiaries of the
Borrower, and the only partnerships, joint ventures or business trusts in which
the Borrower or any Subsidiary has an interest as of the Closing Date, are
those listed on Schedule 6.14. The Borrower owns, as of the Closing Date, the
percentage of the issued and outstanding capital stock or other evidences of
the ownership of each Subsidiary, partnership or joint venture listed on
Schedule 6.14 as set forth on such Schedule. No such Subsidiary, partnership
or joint venture has issued any securities convertible into shares of its
capital stock (or other evidence of ownership) or any options, warrants or
other rights to acquire such shares or securities convertible into such shares
(or other evidence of ownership), and the outstanding stock and securities (or
other evidence of ownership) of such Subsidiaries, partnerships or joint
ventures are owned by the Borrower and its Subsidiaries free and clear of all
Liens, warrants, options or rights of others of any kind whatsoever except for
Liens permitted by subsection 8.3. All of the divisions of the Borrower and
its Subsidiaries as of the Closing Date are listed on Schedule 6.14.
6.15 Accuracy and Completeness of Information. All
information, reports and other papers and data with respect to the Borrower and
its Subsidiaries and, to the best knowledge of the Borrower after due inquiry,
with respect to the Fiat Seat Business and the Acquisition (other than
projections) furnished to the Banks by the Borrower or on behalf of the
Borrower, were, at the time the same were so furnished, complete and correct in
all material respects, or have been subsequently supplemented by other
information, reports or other papers or data, to the extent necessary to give
the Banks a true and accurate knowledge of the subject matter in all material
respects. All projections with respect to the Borrower and its Subsidiaries or
with respect to the Acquisition, so furnished by the Borrower, as supplemented,
were prepared and presented in good faith by the Borrower, it being recognized
by the Banks that such projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projections may differ from the projected results. No fact is known to the
Borrower which materially and adversely affects or in the future
<PAGE> 56
51
may (so far as the Borrower can reasonably foresee) materially and adversely
affect the business, assets, liabilities, financial or other condition or
prospects of the Borrower or its Subsidiaries taken as a whole, which has not
been set forth in the financial statements referred to in subsection 6.1 or in
such information, reports, papers and data or otherwise disclosed in writing to
the Banks prior to the Closing Date. No document furnished or statement made
in writing to the Banks by the Borrower in connection with the negotiation,
preparation or execution of this Agreement contains any untrue statement of a
material fact, or, to the knowledge of the Borrower after due inquiry, omits to
state any such material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been corrected,
supplemented or remedied by subsequent documents furnished or statements made
in writing to the Banks.
6.16 Security Documents. (a) Each Security Agreement is
effective to create in favor of the Agent, for the ratable benefit of the
Banks, a legal, valid and enforceable security interest in all right, title and
interest of the Loan Party thereto in the collateral described therein. Such
Security Agreement constitutes a fully perfected first Lien on, and security
interest in, all right, title and interest of such Loan Party in the collateral
described therein.
(b) Each Pledge Agreement is effective to create in favor
of the Agent, for the ratable benefit of the Banks, a legal, valid and
enforceable security interest in the pledged assets described therein. Such
Pledge Agreement constitutes a fully perfected first Lien on, and security
interest in, all right, title and interest of the Loan Party thereto in the
pledged assets described therein.
(c) Each Mortgage is effective to grant to the Agent, for
the ratable benefit of the Banks, a legal, valid and enforceable mortgage lien
on all of the right, title and interest of the Loan Party thereto in the
mortgaged property described therein. Such Mortgage constitutes a fully
perfected lien on and security interest in, such mortgaged property, subject to
the encumbrances and exceptions to title set forth in the title policies
previously delivered to the Agent. Each Mortgage also creates a legal, valid,
enforceable and perfected first Lien on, and security interest in, all right,
title and interest of the mortgagor thereunder in all personal property which
is the subject of such Mortgage, subject to the encumbrances and exceptions to
title set forth in the title policies previously delivered to the Agent. All
references in the Mortgages to the Credit Agreement shall be deemed to refer to
this Agreement. The Borrower hereby confirms that each of the Mortgages to
which the Borrower is a party stands as collateral security for the payment and
performance of the Obligations.
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52
6.17 Patents, Copyrights, Permits and Trademarks. Each of
the Borrower and its Subsidiaries owns, or has a valid license or sub-license
in, all domestic and foreign letters patent, patents, patent applications,
patent and know-how licenses, inventions, technology, permits, trademark
registrations and applications, trademarks, trade names, trade secrets, service
marks, copyrights, product designs, applications, formulae, processes and the
industrial property rights ("Proprietary Rights") used in the operation of its
businesses in the manner in which they are currently being conducted and which
are material to the business, operations, assets or financial or other
condition of the Borrower and its Subsidiaries taken as a whole. Neither the
Borrower nor any of its Subsidiaries is aware of any existing or threatened
infringement or misappropriation of any Proprietary Rights of others by the
Borrower or any of its Subsidiaries or of any Proprietary Rights of the
Borrower or any of its Subsidiaries by others which is material to the business
operations, assets or financial or other condition of the Borrower and its
Subsidiaries taken as a whole.
6.18 Environmental Matters. Except as disclosed in Schedule
6.18, the Purchase Agreement, the Phase I Environmental Assessments, or any
schedule hereto: (a) with respect to the Mortgaged Properties:
(i) Except for the property referred to in subsection
7.10(c), the Mortgaged Properties constitute all of the real
properties owned in fee by the Borrower and its Subsidiaries in the
United States required to be mortgaged to the Agent, for the ratable
benefit of the Banks, pursuant to this Agreement.
(ii) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation consisting of reasonable
environmental compliance, review, monitoring, and remedial activities
conducted at the individual manufacturing, warehouse, or production
facility level, with all information relating to material
environmental matters arising at such facilities being sent to the
corporate officers of the Borrower from such manufacturing, warehouse
or production facilities of any Subsidiary, the Mortgaged Properties
do not contain, and have not previously contained, any Hazardous
Materials in amounts or concentrations which (A) constitute a
violation of, or (B) could reasonably give rise to any material
liability under, Relevant Environmental Laws.
(iii) To the best knowledge of the Borrower and its
Subsidiaries, after reasonable investigation consisting of reasonable
environmental compliance, review, monitoring, and remedial activities
conducted at the individual manufacturing, warehouse, or production
facility level, with all information relating to material
environmental matters
<PAGE> 58
53
arising at such facilities being sent to the corporate officers of the
Borrower from such manufacturing, warehouse or production facilities
of any Subsidiary, the Mortgaged Properties and all operations at the
Mortgaged Properties are in compliance, and have been in compliance
for the time period that each of the Mortgaged Properties has been
owned by the Borrower or its Subsidiaries, in all material respects
with all Relevant Environmental Laws, and there is no contamination
at, on or under the Mortgaged Properties, or violation of any Relevant
Environmental Law with respect to the Mortgaged Properties which could
materially interfere with the continued operation of the Mortgaged
Properties or materially impair the fair saleable value thereof.
Neither the Borrower nor any Subsidiary has knowingly assumed any
liability, by contract or otherwise, of any person under any Relevant
Environmental Laws.
(iv) Neither the Borrower nor any of its Subsidiaries has
received any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Relevant Environmental Laws with regard to any of the
Mortgaged Properties or the operations of the Borrower or any of its
Subsidiaries, other than such notice or notices where the liability or
potential liability involved, either individually or in the aggregate,
is not material to the relevant Mortgaged Property or to the Borrower
and its Subsidiaries taken as a whole, nor does the Borrower or any of
its Subsidiaries have knowledge or reason to believe that any such
notice will be received or is being threatened.
(v) To the best knowledge of the Borrower and its
Subsidiaries, based on the Borrower's and the Subsidiaries' customary
practice of contracting only with licensed haulers for removal of
Hazardous Materials from the Mortgaged Properties only to facilities
authorized to receive such Hazardous Materials, Hazardous Materials
have not been transported or disposed of from the Mortgaged Properties
in violation of, or in a manner or to a location which could
reasonably give rise to material liability under, Relevant
Environmental Laws, nor have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of the Mortgaged
Properties in material violation of, or in a manner that could
reasonably give rise to material liability under, any Relevant
Environmental Laws.
(vi) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower
and its Subsidiaries, threatened, under any Relevant Environmental Law
to which the Borrower and its Subsidiaries are or will be named as a
party with respect to the Mortgaged Properties, nor are there any
consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial
<PAGE> 59
54
requirements outstanding under any Relevant Environmental Law with
respect to the Mortgaged Properties.
(vii) To the best knowledge of the Borrower and its
Subsidiaries after reasonable investigation, consisting of reasonable
environmental compliance, review, monitoring, and remedial activities
conducted at the individual manufacturing, warehouse, or production
facility level, with all information relating to material
environmental matters arising at such facilities being sent to the
corporate officers of the Borrower from such manufacturing, warehouse
or production facilities of any Subsidiary, there has been no release
or threat of release of Hazardous Materials at or from the Mortgaged
Properties, or arising from or related to the operations of the
Borrower or its Subsidiaries in connection with the Mortgaged
Properties in material violation of or in amounts or in a manner that
could reasonably give rise to material liability under Relevant
Environmental Laws.
(b) With respect to each parcel of real property owned or
operated by the Borrower and its Subsidiaries (other than the Mortgaged
Properties, to the best knowledge of the Borrower and its Subsidiaries, after
reasonable investigation consisting of reasonable environmental compliance,
review, monitoring and remedial activities conducted at the individual
manufacturing, warehouse or production facility level, with all information
relating to material environmental matters arising at such facilities being
sent to the corporate offices of the Borrower from such manufacturing,
warehouse or production facilities of any Subsidiary, each of the
representations and warranties set forth in subsection 6.18(a)(ii) through
(a)(vii) is true and correct, except to the extent that the facts and
circumstances giving rise to any such failure to be so true and correct is not
reasonably likely to have a material adverse effect on the business,
operations, property or condition (financial or otherwise) of the Borrower and
its Subsidiaries.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect, any Note or Letter of Credit remains outstanding or any other
amount is owing to any Bank or the Agent hereunder, the Borrower shall, and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 95 days
after the end of each fiscal year of the Borrower a copy of the
audited consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as at the end of
<PAGE> 60
55
such year and the related consolidated statements of income and cash
flows for such year, setting forth in each case in comparative form
the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising
out of the scope of the audit, by independent certified public
accountants of nationally recognized standing;
(b) as soon as available, but in any event not later than 50
days after the end of each of the first three quarterly periods of
each fiscal year of the Borrower the unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of each such quarter and the related
unaudited consolidated and consolidating statements of income and cash
flows of the Borrower and their consolidated Subsidiaries for such
quarter and the portion of the fiscal year through such date, setting
forth in each case in comparative form the figures for the
corresponding quarterly period of the previous year, certified by a
Responsible Officer (subject to normal year-end audit adjustments).
The Borrower covenants and agrees that all such financial statements shall be
complete and correct in all material respects and shall be prepared in
reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
7.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a), (i) a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default, except
as specified in such certificate and (ii) a certificate of such
certified public accountants showing in detail the calculations
supporting such statements in respect of subsection 8.1;
(b) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) and (b), a certificate of
a Responsible Officer of the Borrower (i) stating that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate, (ii) stating, to
the best of such Responsible Officer's knowledge, that all such
financial statements are complete and correct in all material respects
(subject, in the case of interim statements, to normal year-end audit
adjustments) and have been prepared in reasonable detail and in
accordance with
<PAGE> 61
56
GAAP applied consistently throughout the periods reflected therein
(except as disclosed therein) and (iii) showing in detail the
calculations supporting such statements in respect of subsection 8.1;
(c) concurrently with the delivery of the financial
statements referred to in subsection 7.1(a) and (b), a copy of
management's report on the business, operations, property and
financial and other condition of the Borrower and its Subsidiaries,
including financial results with respect to each of their individual
manufacturing facilities, together with management's discussion
thereof;
(d) not later than thirty days after the end of each fiscal
year of the Borrower a copy in detail reasonably acceptable to the
Agent of the projections by the Borrower of the operating budget and
cash flow of the Borrower and its Subsidiaries, in each case for the
next succeeding fiscal year, such projections to be accompanied by a
certificate of a Responsible Officer of the Borrower to the effect
that such projections have been prepared on the basis of sound
financial planning practice and that such officer on behalf of the
Borrower has no reason to believe they are incorrect or misleading in
any material respect;
(e) promptly upon receipt thereof, copies of all reports
submitted to the Borrower by independent certified public accountants
in connection with each annual, interim or special audit of the books
of the Borrower or any of its Subsidiaries made by such accountants,
including, without limitation, any management letter commenting on the
Borrower's internal controls submitted by such accountants to
management in connection with their annual audit;
(f) promptly after the same are sent, copies of all financial
statements and reports which the Borrower sends to its public equity
holders, and within five days after the same are filed, copies of all
financial statements and reports which the Borrower may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(g) promptly, such additional financial and other information
as any Bank may from time to time reasonably request.
7.3 Performance of Obligations. Perform in all material
respects all of its obligations under the terms of each mortgage, indenture,
security agreement and other debt instrument by which it is bound or to which
it is a party and pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all its obligations of
whatever nature, except when the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and
<PAGE> 62
57
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business, Maintenance of Existence and
Compliance with Obligations and Laws. Continue to engage in business of the
same general type as now conducted by it and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
subsection 8.5; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not reasonably be
expected to have, individually or in the aggregate, a material adverse effect
on the business, operations, property or financial or other condition of the
Borrower and its Subsidiaries taken as a whole and could not reasonably be
expected to adversely affect the ability of the Borrower or any of its
Subsidiaries to perform their respective obligations under any of the Loan
Documents to which they are a party.
7.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business (including, without
limitation, the insurance required pursuant to Section 2.2 of each of the
Mortgages and Section 5(n) of the Second Amended and Restated Security
Agreement); and furnish to the Agent, upon written request, full information as
to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its business and activities; and
permit representatives of any Bank to visit and inspect any of its properties
and examine and make abstracts from any of its books and records upon
reasonable notice and at any reasonable time and as often as may reasonably be
desired, and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers and
employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
<PAGE> 63
58
7.7 Notices. Promptly give notice to the Agent and each Bank:
(a) of the occurrence of any Default or Event of Default;
(b) of any (i) default or event of default under any
Contractual Obligation of the Borrower or any of its Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any
time between the Borrower or any of its Subsidiaries and any
Governmental Authority, which in the case of either clause (i) or (ii)
above, if not cured or if adversely determined, as the case may be,
could have a material adverse effect on the business, operations,
property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole or could adversely affect the ability of
the Borrower or any of its Subsidiaries to perform their respective
obligations under any of the Loan Documents to which they are a party;
(c) of any litigation or proceeding affecting the Borrower or
any of its Subsidiaries in which the amount involved is $3,000,000 or
more and not covered by insurance or in which injunctive or similar
relief is sought;
(d) of the following events, as soon as possible and in any
event within 30 days after the Borrower knows or has reason to know
thereof: (i) the occurrence or expected occurrence of any Reportable
Event with respect to any Single Employer Plan, a failure to make any
required contribution to any Single Employer Plan, unless such failure
is cured within such 30 days or does not involve an amount in excess
of $500,000, any Lien under the Code or ERISA in favor of the PBGC or
a Single Employer Plan, or any withdrawal from, or the termination,
Reorganization or Insolvency of any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Single Employer or
Multiemployer Plan;
(e) of any Environmental Complaint materially affecting the
Borrower or any Subsidiary, any Mortgaged Property or any part thereof
or the operations of the Borrower or any Subsidiary or any other
Person on or in connection with any Mortgaged Property or any part
thereof and any notice from any Person of (i) the occurrence of any
release, spill or discharge of any Hazardous Material that is
reportable under any Relevant Environmental Law, (ii) the commencement
of any clean up pursuant to or in accordance with any Relevant
Environmental Law of any Hazardous Material at, on, under or within
the Mortgaged Property or any part thereof or (iii) any condition,
circumstance,
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59
occurrence or event that could reasonably be expected to result in a
material liability of the Borrower or any Subsidiary under any
Relevant Environmental Law;
(f) of (i) the incurrence of any Lien (other than Liens
permitted pursuant to subsection 8.3) on, or claim asserted against
any of the collateral security in the Security Documents or (ii) the
occurrence of any other event which could reasonably be expected to
have a material adverse effect on the aggregate value of the
collateral under any Security Document; and
(g) of a material adverse change in the business, operations,
property or financial or other condition of the Borrower and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 7.7 shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower proposes to
take with respect thereto.
7.8 Maintenance of Liens of the Security Documents.
Promptly, upon the reasonable request of any Bank, at the Borrower's expense,
execute, acknowledge and deliver, or cause the execution, acknowledgement and
delivery of, and thereafter register, file or record, or cause to be
registered, filed or recorded, in an appropriate governmental office, any
document or instrument supplemental to or confirmatory of the Security
Documents or otherwise deemed by the Agent necessary or desirable for the
continued validity, perfection and priority of the Liens on the collateral
covered thereby.
7.9 Environmental Matters. (a) Comply in all material
respects with, and use all reasonable efforts to ensure compliance in all
material respects by all tenants and subtenants, if any, with, all Relevant
Environmental Laws and all requirements existing thereunder and obtain and
comply in all material respects with and maintain, and use all reasonable
efforts to ensure that all tenants and subtenants obtain, comply in all
material respects with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by Relevant Environmental
Laws.
(b) Promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Relevant
Environmental Laws.
(c) Defend, indemnify and hold harmless the Agent and the
Banks, and their respective employees, agents, officers and directors, from and
against any claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature known or unknown,
contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under any Relevant
<PAGE> 65
60
Environmental Laws applicable to the operations of the Borrower and its
Subsidiaries or the Mortgaged Properties, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, except to the extent
that any of the foregoing arise solely out of the gross negligence or willful
misconduct of the party seeking indemnification therefor. This indemnity shall
continue in full force and effect regardless of the termination of this
Agreement.
7.10 Security Documents. (a) Promptly at the request of the
Required Banks (and in any event no later than 45 days after the date of such
request), the Borrower, at its own expense, shall (i) pledge 65% of the capital
stock of Lear Italia to the Agent, for the ratable benefit of the Banks, and
(ii) cause the Agent to receive, with a counterpart for each Bank, a legal
opinion of Italian counsel acceptable to the Agent covering such matters in
respect of such pledge agreement as the Agent shall reasonably request.
(b) As soon as possible and in no event later than 30 days
after the Closing Date, cause (i) the Liens granted pursuant to (A) the Second
Amended and Restated German Pledge Agreement, (B) the Second Amended and
Restated Mexican Pledge Agreement and (C) the Second Amended and Restated
Additional Mexican Pledge Agreement to be perfected and (ii) the Agent to
receive, with a counterpart for each Bank, legal opinions of Peltzer &
Riesenkampff, German counsel to the Borrower, and Enriquez, Gonzales, Aguirre y
Ochoa, Mexican counsel to the Borrower, covering such matters in respect of
such pledge agreements as the Agent shall reasonably request.
(c) No later than 45 days after completion of construction of
the Borrower's facility located in Hammond, Indiana, grant to the Agent, for
the ratable benefit of the Banks, a perfected and duly filed first Lien of
record on all real property and fixtures, upon terms substantially the same as
those set forth in the Mortgages, owned by the Borrower, located in Hammond,
Indiana.
(d) No later than 60 days after the Closing Date, cause
(i) the Liens granted pursuant to the Amendment Agreement to the Irrevocable
Property Conveyance Trust Agreements covering the Rio Bravo, San Lorenzo and La
Cuesta facilities of Favesa to be perfected and (ii) the Agent to receive, with
a counterpart for each Bank, a legal opinion of Enriquez, Gonzales, Aguirre y
Ochoa, Mexican counsel to the Borrower, covering such matters in respect of
such Trust Agreements as the Agent shall reasonably request.
<PAGE> 66
61
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, from and after the Closing
Date and so long as the Commitments remain in effect, any Note or Letter of
Credit remains outstanding or any other amount is owing to any Bank or the
Agent hereunder, the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
8.1 Financial Covenants.
(a) Consolidated Net Worth. Permit Consolidated Net Worth at
the end of any quarter during any period set forth below to be less than the
amount set forth opposite such period below:
<TABLE>
<CAPTION>
Period Amount
------ ------
<S> <C>
6/30/94 - 6/29/95 $215,000,000
6/30/95 - 6/29/96 255,000,000
6/30/96 - 6/29/97 270,000,000
6/30/97 - 6/29/98 285,000,000
6/30/98 - thereafter 300,000,000
</TABLE>
(b) Interest Coverage. Permit, at the end of any period set
forth below, the ratio of (i) Consolidated Operating Profit for such fiscal
period to (ii) Consolidated Interest Expense for such period, to be less than
the ratio set forth opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
7/1/94 - 6/30/95 3.00 to 1
7/1/95 - 6/30/96 3.00 to 1
7/1/96 - 6/30/97 3.50 to 1
7/1/97 - 6/30/98 3.50 to 1
7/1/98 - 6/30/99 3.50 to 1;
</TABLE>
provided that at the end of the first two fiscal quarters of any
period set forth above, the ratio for the preceding four fiscal
quarters ended at the end of such fiscal quarter shall be no less than
80% of the ratio set forth opposite such period above, and at the end
of the third fiscal quarter of any period set forth above, the ratio
for the preceding four fiscal quarters ended at the end of such fiscal
quarter shall be no less than 90% of the ratio set forth opposite such
period above.
(c) Consolidated Operating Profit. Permit
Consolidated Operating Profit for any fiscal year set forth below to
be less than the amount set forth opposite such fiscal year below:
<PAGE> 67
62
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1994 $140,000,000
1995 175,000,000
1996 190,000,000
1997 - thereafter 195,000,000
</TABLE>
8.2 Limitation on Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness in respect of the Loans, the Notes, the
Letters of Credit and other obligations arising under this Agreement
and, without duplication, Indebtedness of the Borrower and
Subsidiaries to the extent backed by Letters of Credit;
(b) Indebtedness in respect of (i) the Subordinated Notes (or
any refinancing thereof in accordance with subsection 8.10) in an
aggregate principal amount not exceeding $145,000,000 (plus the amount
of any premiums, costs and expenses incurred in connection with any
refinancing thereof) and (ii) the Senior Subordinated Notes (or any
refinancing thereof in accordance with subsection 8.10) in an
aggregate principal amount not exceeding $125,000,000 (plus the amount
of any premiums, costs and expenses incurred in connection with any
refinancing thereof);
(c) Indebtedness incurred to purchase or to finance the
purchase of, fixed or capital assets in an aggregate principal amount
not exceeding $2,000,000 at any one time outstanding;
(d) Indebtedness in respect of Interest Rate Agreement
Obligations;
(e) Indebtedness in respect of documentary letters of credit
(other than Letters of Credit) in an aggregate face amount not
exceeding $5,000,000 at any one time;
(f) Indebtedness in respect of letters of credit (other than
Letters of Credit) in an aggregate face amount not exceeding
$10,000,000 at any one time,provided that such letters of credit are
used solely (i) to provide credit support in respect of leased
property or (ii) to provide credit support for the benefit of Foreign
Subsidiaries;
(g) short-term Indebtedness incurred by any Foreign
Subsidiary organized under the laws of France for working capital
purposes in an aggregate principal amount not to exceed 6,000,000
French Francs at any one time outstanding;
(h) Indebtedness permitted pursuant to subsection 8.9;
<PAGE> 68
63
(i) Indebtedness incurred by any Foreign Subsidiary organized
under the laws of Germany or Austria in an aggregate principal amount
not to exceed $25,000,000 at any one time outstanding;
(j) Indebtedness incurred by any Foreign Subsidiary organized
under the laws of Mexico in an aggregate principal amount not to
exceed $30,000,000 at any one time outstanding;
(k) Indebtedness incurred by any Foreign Subsidiary organized
under the laws of Sweden or Finland in an aggregate principal amount
not to exceed $15,000,000 at any one time outstanding;
(l) Indebtedness incurred by any Foreign Subsidiary organized
under the laws of Canada in an aggregate principal amount not to
exceed $25,000,000 at any one time outstanding;
(m) Indebtedness incurred by any Foreign Subsidiary
organized under the laws of Italy (i) in connection with financing the
Acquisition, and any refinancing of such Indebtedness, in an aggregate
principal amount not to exceed the purchase price of the Fiat Seat
Business, (ii) for working capital purposes in an amount not to exceed
Lit 90,000,000,000 from the Closing Date until January 15, 1995 and
(iii) in addition to Indebtedness permitted by clauses (i) and (ii) of
this paragraph, in an aggregate principal amount not to exceed
$30,000,000 at any one time outstanding;
(n) Indebtedness incurred by any Foreign Subsidiary organized
under the laws of Poland in an aggregate principal amount not to
exceed $5,000,000 at any one time outstanding;
(o) existing Indebtedness listed on Schedule 8.2 and
refinancings thereof;
(p) Indebtedness incurred by a Special Purpose Subsidiary
in connection with a Receivables Financing Transaction; and
(q) additional Indebtedness not otherwise permitted by
paragraphs (a) through (p) above, provided that the aggregate amount
of such Indebtedness does not exceed $75,000,000 at any one time
outstanding.
8.3 Limitation on Liens. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings; provided
<PAGE> 69
64
that adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP (or, in the case of Foreign Subsidiaries,
generally accepted accounting principles in effect from time to time
in their respective jurisdictions of organization);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, or other like Liens arising in the ordinary course of
business and not overdue for a period of more than 30 days or which
are bonded or being contested in good faith by appropriate proceedings
in a manner which will not jeopardize or diminish the interest of the
Agent in any of the collateral subject to the Security Documents;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) Liens (other than any Lien imposed by ERISA) incurred on
deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value
of the property subject thereto or materially interfere with the
ordinary conduct of the business of the Borrower or such Subsidiary;
(f) Liens in favor of the Agent and the Banks created
pursuant to the Security Documents and Liens securing Reimbursement
Obligations and Subsidiary Reimbursement Obligations;
(g) Liens securing Indebtedness of the Borrower and its
Subsidiaries permitted by subsection 8.2(c) in respect of the deferred
purchase price of fixed or capital assets;provided that (i) such Liens
shall be created substantially simultaneously with the purchase of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not
increased and (iv) the principal amount of Indebtedness secured by any
such Lien shall at no time exceed 100% of the purchase price of such
property;
(h) Liens securing the Indebtedness permitted by
subsection 8.2(d), (f), (g), (i), (j), (k), (l), (m), (n), (o), (p) or
(q) and Liens securing obligations with respect to government
grants, provided that such Liens do not at any
<PAGE> 70
65
time encumber any property located in the United States except for, in
the case of Indebtedness permitted by subsection 8.2(f), Liens that
encumber leasehold interests supported by such Indebtedness;
(i) Liens securing Indebtedness permitted by subsection
8.2(d), provided that such Liens run in favor of a Bank;
(j) attachment, judgment or other similar Liens arising in
connection with court or arbitration proceedings fully covered by
insurance or involving individually or in the aggregate, no more than
$3,000,000 at any one time, provided that the same are discharged, or
that execution or enforcement thereof is stayed pending appeal, within
30 days or, in the case of any stay of execution or enforcement
pending appeal, within such lesser time during which such appeal may
be taken;
(k) Liens securing reimbursement obligations with respect to
documentary letters of credit permitted by subsection 8.2(e) which
encumber documents and other property relating to such letters of
credit;
(l) Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness
permitted by subsection 8.2,provided that (i) such Liens existed at
the time such corporation became a Subsidiary and were not created in
anticipation thereof, (ii) any such Lien does not by its terms cover
any property or assets after the time such corporation becomes a
Subsidiary which were not covered immediately prior thereto and (iii)
any such Lien does not by its terms secure any Indebtedness other than
Indebtedness existing immediately prior to the time such corporation
becomes a Subsidiary;
(m) Liens (not otherwise permitted hereunder) on assets
acquired after the date of this Agreement which secure the purchase
price thereof or other obligations related to the acquisition thereof
or on assets not subject to Liens pursuant to any Security Document,
provided that the estimated aggregate book value of the foregoing
assets shall not exceed $10,000,000;
(n) Liens on (i) investments permitted by subsection 8.9(o)
or (ii) cash deposits securing the Guarantee Obligations permitted by
subsection 8.4(f); and
(o) extensions, renewals and replacements of any Lien
described in subsections 8.2(a) through (n) above, provided that the
principal amount of the Indebtedness secured thereby is not increased
and such extension or renewal is limited to the property so
encumbered.
<PAGE> 71
66
8.4 Limitation on Guarantee Obligations. Create, incur,
assume or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations in respect of the Subsidiary
Guarantee;
(b) Guarantee Obligations in respect of obligations of the
Borrower, Subsidiaries and Special Affiliates in an aggregate
principal amount not to exceed $50,000,000 at any one time;
(c) Guarantee Obligations in respect of obligations
entered into by Foreign Subsidiaries created in the ordinary course of
business, in an aggregate amount not to exceed $60,000,000 at any one
time;
(d) Guarantee Obligations in respect of Section 5.03 of
the Purchase Agreement;
(e) Guarantee Obligations of the Borrower in connection with
the establishment of a receivables factoring or working capital credit
facility for any Foreign Subsidiary organized under the laws of Italy,
in an aggregate amount not to exceed $20,000,000 at any one time; and
(f) Guarantee Obligations of the Borrower in respect of
Indebtedness permitted to be incurred pursuant to subsection
8.2(m)(i).
8.5 Limitations on Fundamental Changes. Unless expressly
permitted under this Agreement, enter into any transaction of acquisition or
merger or consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets, or acquire by purchase or otherwise all or
substantially all of the business, property or fixed assets of, or stock or
other evidence of beneficial ownership of, any Person, or make any material
change in the present method of conducting business and except that, so long as
no Collateral is transferred for less than fair market value to a Person who
has not executed a security agreement in favor of the Agent, and none of the
Liens or guarantees created by any of the Security Documents are impaired
thereby:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
one or more Wholly-Owned Subsidiaries of the Borrower that are
organized under any jurisdiction in the United States (provided that a
Wholly-Owned Subsidiary shall be the continuing or surviving
corporation);
<PAGE> 72
67
(b) any Foreign Subsidiary may be merged or consolidated with
or into any one or more Wholly-Owned Subsidiaries that are Foreign
Subsidiaries (provided that a Wholly-Owned Subsidiary that is a
Foreign Subsidiary shall be the continuing or surviving corporation);
(c) any Wholly-Owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or another Wholly-Owned
Subsidiary of the Borrower that is organized under any jurisdiction in
the United States;
(d) any Wholly-Owned Subsidiary that is a Foreign Subsidiary
may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to another
Wholly-Owned Subsidiary that is a Foreign Subsidiary;
(e) the Borrower may sell, contribute or otherwise
transfer its ownership interest in CISA to EATSA in exchange for
capital stock of EATSA or otherwise, provided that upon consummation
of such transaction, the Borrower and its Subsidiaries shall have
pledged 65% of the common stock of EATSA pursuant to pledge agreements
in favor of the Agent, for the ratable benefit of the Banks, in form
and substance satisfactory to the Agent;
(f) the Borrower may sell Lear Industries pursuant to terms
reasonably satisfactory to the Agent; and
(g) the Borrower and its Subsidiaries may consummate the
Acquisition.
8.6 Limitation on Sale of Assets. Except as permitted by
subsection 8.5, convey, sell, lease, assign, transfer or otherwise dispose of,
any of its property, business or assets (including, without limitation,
receivables and leasehold interests) whether now owned or hereafter acquired
except:
(a) obsolete or worn out property or other property not
necessary for operations disposed of in the ordinary course of
business; provided that (i) the Net Proceeds of each such transaction
are applied to obtain a replacement item or items of property within
90 days of the disposition thereof or (ii) the fair market value (as
determined by the Board of Directors (or the executive committee
thereof) of the Borrower in good faith) of any property not replaced
pursuant to clause (i) above shall not exceed $5,000,000 in the
aggregate in any one fiscal year of the Borrower;
(b) the sale of inventory in the ordinary course of business;
(c) in a transaction permitted by subsection 8.12;
<PAGE> 73
68
(d) the sale by any Foreign Subsidiary (other than a Foreign
Subsidiary organized under the laws of Canada or Mexico) of its
accounts receivable;provided that the terms of each such sale are
satisfactory in form and substance to the Agent;
(e) the sale by any Domestic Loan Party or a Foreign
Subsidiary organized under the laws of Mexico of its accounts
receivable;provided that (i) the terms of each such sale are
satisfactory in form and substance to the Agent and (ii) the
Commitments are simultaneously reduced by the amount equal to a
percentage to be determined by the Agent of the fair market value (as
determined by the Board of Directors (or executive committee thereof)
of the Borrower) of such accounts receivable sold; and
(f) dispositions of assets not otherwise permitted by clauses
(a) through (e) above; provided that the fair market value thereof (as
determined by the Board of Directors (or the executive committee
thereof) of the Borrower in good faith) shall not exceed $15,000,000
in the aggregate in any one fiscal year of the Borrower.
8.7 Limitation on Dividends. Declare any dividend on, or
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of stock or warrants of the Borrower,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary or permit any Subsidiary to make
any payment on account of, or purchase or otherwise acquire, any shares of any
class of stock or warrants of the Borrower from any Person except for (a) (i)
payment by the Borrower of amounts then owing to management personnel of the
Borrower pursuant to the terms of their respective employment contracts, (ii)
mandatory purchases by the Borrower of its common stock from Management
Investors pursuant to the terms of the Subscription Agreements and Stockholders
Agreement and all other expenses required to be incurred by the Borrower
pursuant to the terms of the Stockholders Agreement as in effect on the date
hereof and (iii) additional repurchases by the Borrower of its common stock
from Management Investors or officers of the Borrower in an amount not to
exceed $7,500,000 in the aggregate, (b) if no Default or Event of Default has
occurred and is continuing (or would occur and be continuing after giving
effect thereto) when any such dividend is declared by the Board of Directors of
the Borrower, quarterly cash dividends on such common stock not to exceed
$2,500,000 in the aggregate per quarter but only to the extent permitted by the
terms of the Subordinated Debt and (c) dividends in the form of additional
shares of capital stock.
<PAGE> 74
69
8.8 Limitation on Capital Expenditures. Make or commit to
make any Capital Expenditures except for Capital Expenditures in cash during
any fiscal year set forth below not exceeding, in the aggregate for the
Borrower and its Subsidiaries, the amount set forth opposite such fiscal year
below:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1994 $115,000,000
1995 100,000,000
1996 60,000,000
1997 80,000,000
1998 - thereafter 60,000,000;
</TABLE>
provided that up to $20,000,000 of any such permitted amount which is not
expended in any fiscal year may be carried over for expenditure in any
subsequent fiscal year and provided, further, that up to $5,000,000 of any such
permitted amount available to be expended for any subsequent fiscal year may be
carried back for expenditure in any fiscal year.
8.9 Limitation on Investments, Loans and Advances. Make or
suffer to exist any advance, loan, extension of credit or capital contribution
to, or purchase any stock, bonds, notes, debentures or other securities of, or
make any other investment in, any Person, or create any Subsidiary, or acquire
any interest in any Person, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) investments by Foreign Subsidiaries in high quality
investments of a type similar to Cash Equivalents made outside of the
United States of America;
(d) loans, advances and capital contributions to the
Borrower, Subsidiaries (including Foreign Subsidiaries) and Special
Affiliates and investments up to an aggregate amount not to exceed
$25,000,000 at any time from and after October 25, 1993 in any Special
Entity (by way of acquisition of securities or otherwise), in each
case, in the ordinary course of business and in an aggregate amount
not to exceed $75,000,000 at any one time from and after the Closing
Date, which aggregate amount limitation is in addition to any loans,
advances, capital contributions and investments listed on Schedule 8.9
or otherwise permitted under this subsection 8.9, provided that (i)
any loans, advances and capital contributions that are made to the
Borrower or any such Subsidiary or Foreign Subsidiary for the sole
purpose of the Borrower or such Subsidiary or Foreign Subsidiary
making a loan, advance or capital contribution to the
<PAGE> 75
70
Borrower or another Subsidiary or Foreign Subsidiary, shall be deemed
to have been made only to the ultimate recipient of such funds and
(ii) the aggregate amount of loans, advances and capital contributions
to Probel S.A. may not exceed $100,000 from and after the Closing Date
and provided, further, that, subject to the foregoing limitations, the
Borrower may create Subsidiaries, provided that, except as provided in
subsection 7.10 or this subsection 8.9, (A) 65% of the common stock of
all such Foreign Subsidiaries owned by the Borrower and all of the
common stock of all other such Subsidiaries owned by the Borrower is
pledged to the Agent, for the ratable benefit of the Banks, pursuant
to a pledge agreement in form and substance satisfactory to the Agent,
(B) that each such Subsidiary which is not a Foreign Subsidiary or a
Special Purpose Subsidiary guarantee the Obligations pursuant to a
guarantee agreement in favor of the Agent, for the ratable benefit of
the Banks, in form and substance satisfactory to the Agent and (C)
each such Subsidiary which is not a Foreign Subsidiary or a Special
Purpose Subsidiary shall secure its obligations under any such
guarantee by (y) pledging 65% of the common stock of all Foreign
Subsidiaries (or if it owns less than 65% of the common stock of any
such Foreign Subsidiary, then all of the common stock of such Foreign
Subsidiary owned by it) and all of the common stock of all other
Subsidiaries owned by it pursuant to a pledge agreement in favor of
the Agent, for the ratable benefit of the Banks, in form and substance
satisfactory to the Agent, and (z) granting a security interest in all
of its material assets pursuant to a security agreement in favor of
the Agent, for the ratable benefit of the Banks, in form and substance
satisfactory to the Agent; provided, still further, that
notwithstanding any provision in this paragraph (d) to the contrary,
the Borrower and its Subsidiaries shall not be obligated to pledge any
shares of capital stock of any Foreign Subsidiary organized under the
laws of Australia or Indonesia;
(e) capital contributions, investments or transfers in
connection with transactions permitted by subsection 8.5;
(f) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate principal amount not
exceeding $2,000,000 at any one time outstanding;
(g) (i) loans and advances by any Subsidiary to the Borrower
and (ii) loans and advances by any Subsidiary to any other Subsidiary
which is a guarantor under any Guarantee;
(h) any Foreign Subsidiary may make loans, advances and
capital contributions to any other Foreign Subsidiary;
<PAGE> 76
71
(i) any Wholly-Owned Subsidiary organized under the laws
or any jurisdiction in the United States may make loans, advances and
capital contributions to any other Wholly-Owned Subsidiary organized
under the laws or any jurisdiction in the United States;
(j) the acquisition, directly or indirectly, of the stock
of CISA not currently owned by the Borrower or its Subsidiaries;
(k) the sale, contribution or other transfer by the Borrower
of its ownership interest in CISA to EATSA in exchange for capital
stock of EATSA or otherwise, provided that after giving effect to such
transaction, at least 65% of the capital stock of EATSA is pledged to
the Agent for the ratable benefit of the Banks;
(l) loans to Management Investors in connection with stock
purchases in an aggregate principal amount not exceeding $3,000,000 at
any one time outstanding;
(m) capital contributions to any Foreign Subsidiary organized
under the laws of Italy in an amount not to exceed $40,000,000;
(n) capital contributions to any Foreign Subsidiary organized
under the laws of Poland in an amount not to exceed $5,000,000; and
(o) (i) loans or participating interests in loans made to
Lear Italia, provided Lear Italia is permitted to incur such
Indebtedness pursuant to subsection 8.2(m)(i) and (ii) investments in
high quality debt instruments acceptable to the Agent, having a cost
not exceeding the purchase price of the Fiat Seat Business, and which
are pledged to secure Indebtedness permitted pursuant to subsection
8.2(m)(i) or Guarantee Obligations permitted pursuant to subsection
8.4(f).
8.10 Limitation on Optional Payments and Modification of Debt
Instruments. (a) Prepay, purchase, redeem, retire, defease or otherwise
acquire, or make any payment on account of any principal of, interest on, or
premium payable in connection with the prepayment, redemption or retirement of
any outstanding Subordinated Debt, except that the Borrower may prepay,
purchase or redeem Subordinated Debt with the proceeds of the issuance of other
subordinated Indebtedness of the Borrower; provided that either (i) the
principal terms of such other subordinated Indebtedness are no more restrictive
to the Borrower and its Subsidiaries than the principal terms of the
Subordinated Notes or (ii) the terms and conditions of the other subordinated
Indebtedness are reasonably satisfactory to the Agent or (b) without the
consent of the Agent, amend, modify or change, or consent or agree to any
amendment, modification or change to any
<PAGE> 77
72
of the terms of any Subordinated Debt (except that without the consent of the
Agent or any Bank, the terms of the Subordinated Debt may be amended, modified
or changed if such amendment, modification or change would extend the maturity
or reduce the amount of any payment of principal thereof, would reduce the rate
or extend the date for payment of interest thereon, would eliminate covenants
(other than covenants with respect to subordination to Indebtedness under this
Agreement) or defaults in such Subordinated Debt or would make such covenants
or defaults less restrictive); provided that, notwithstanding any provision
contained in this subsection 8.10, if no Default or Event of Default has
occurred and is continuing or would occur and be continuing as a result of the
following, the Subordinated Debt may be prepaid (A) with the net proceeds of
any public offering of common stock of the Borrower and (B) in addition to any
prepayment permitted pursuant to clause (A) above, in an amount not to exceed
$135,000,000 in the aggregate; provided, that prior to December 31, 1995,
prepayments permitted pursuant to clause (B) above shall not exceed
$100,000,000 in the aggregate.
8.11 Transactions with Affiliates. (a) Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transactions are otherwise permitted under this Agreement, the
Stockholders Agreement or the Subscription Agreements as in effect on the date
hereof, or such transactions are in the ordinary course of the Borrower's or
such Subsidiary's business and are upon fair and reasonable terms no less
favorable to the Borrower or such Subsidiary, as the case may be, than it would
obtain in a comparable arm's length transaction with a Person not an Affiliate;
provided, however, that the Borrower may engage Lehman Brothers Inc., The
Cypress Group, Inc., FIMA or any Affiliate of Lehman Brothers Inc., The Cypress
Group, Inc. or FIMA as financial advisor, underwriter, broker, dealer-manager
or finder in connection with any transaction at the then customary market rates
for similar services.
8.12 Sale and Leaseback. Enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of real or
personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary except that the
Borrower or any Subsidiary may enter into such transactions provided that the
fair market value of the real or personal property sold or transferred by the
Borrower or such Subsidiary does not exceed $35,000,000 in the aggregate.
8.13 Corporate Documents. Amend its Certificate of
Incorporation or By-Laws, each as in effect on the Closing Date, in any way
adverse to the interests of the Agent and the Banks.
<PAGE> 78
73
8.14 Fiscal Year. Permit the fiscal year of the Borrower to
end on a day other than December 31.
8.15 Limitation on Restrictions Affecting Subsidiaries.
Enter into any agreement with any Person other than the Banks pursuant hereto
which prohibits or limits the ability of any Subsidiary to (a) pay dividends or
make other distributions or pay any Indebtedness owed to the Borrower or any
Subsidiary, (b) make loans or advances to the Borrower or any Subsidiary, (c)
transfer any of its properties or assets to the Borrower or any Subsidiary or
(d) create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, except (i) for any
such restrictions existing by reasons of Contractual Obligations listed on
Schedule 8.15 and (ii) with respect to clauses (c) and (d) above, agreements
granting a Lien on such Subsidiary's assets which is permitted by subsection
8.3.
8.16 Hazardous Materials. Release, discharge or otherwise
dispose of any Hazardous Material on any of the Mortgaged Properties or permit
the manufacture, storage, transmission or presence of any Hazardous Material
over or upon any of the Mortgaged Properties except in accordance in all
material respects with all Relevant Environmental Laws.
8.17 Special Purpose Subsidiary. Permit (a) any Special
Purpose Subsidiary to engage in any business other than Receivables Financing
Transactions and activities directly related thereto or (b) at any time the
Borrower or any of its Subsidiaries (other than a Special Purpose Subsidiary)
or any of their respective assets to incur any liability, direct or indirect,
contingent or otherwise in respect of any obligation of a Special Purpose
Subsidiary whether arising under or in connection with any Receivables
Financing Transaction or otherwise.
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Borrower shall fail to pay (i) any principal of any
Notes when due (whether at the stated maturity, by acceleration or
otherwise) in accordance with the terms thereof or hereof or (ii) any
interest on any Notes, or any fee or other amount payable hereunder,
within five days after any such interest, fee or other amount becomes
due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower or any other Loan Party herein or in any other Loan Document
or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
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Agreement or any other Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed
made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any negative covenant contained in
Section 8 or in any Security Document to which it is a party; or
(d) The Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document other than as provided in (a)
through (c) above, and such default shall continue unremedied for a
period of 30 days; or
(e) Any Loan Document shall cease, for any reason, to be in
full force and effect, or the Borrower or any other Loan Party shall
so assert; or any security interest created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby, except, in each case, as
provided in subsection 11.13; or
(f) The Subsidiary Guarantee shall cease, for any reason, to
be in full force and effect, or any guarantor thereunder shall so
assert; or
(g) The subordination provisions contained in any instrument
pursuant to which the Subordinated Debt was created or in any
instrument evidencing such Subordinated Debt shall cease, for any
reason, to be in full force and effect or enforceable in accordance
with their terms; or
(h) The Borrower or any of its Subsidiaries shall (i) default
in any payment of principal of or interest on any Indebtedness (other
than the Notes) or in the payment of any Guarantee Obligation, in
either case where the principal amount thereof then outstanding
exceeds $10,000,000 beyond the period of grace (not to exceed 30
days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created; or (ii) default
in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained
in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect
of which default or other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to
become due prior to its stated maturity or such Guarantee Obligation
to become payable; or
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75
(i) (i) The Borrower or any Material Subsidiary shall
commence any case, proceeding or other action (A) under any existing
or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking
to have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or
the Borrower or any Material Subsidiary shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against the Borrower or any Material Subsidiary any case,
proceeding or other action of a nature referred to in clause (i) above
which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any Material Subsidiary any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
the Borrower or any Material Subsidiary shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Borrower or any Material Subsidiary shall
generally not, or shall be unable to, or shall admit in writing its
inability to, pay its debts as they become due; or
(j) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not
waived, shall exist with respect to any Single Employer Plan, (iii) a
Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed,
to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Banks, likely to
result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Banks is likely
to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a
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Multiemployer Plan or (vi) any other event or condition shall occur or
exist, with respect to a Plan; and in each case in clauses (i) through
(vi) above, such event or condition, together with all other such
events or conditions, if any, could subject the Borrower or any of its
Subsidiaries to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or
financial or other condition of the Borrower and its Subsidiaries
taken as a whole; or
(k) One or more judgments or decrees shall be entered against
the Borrower or any of its Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $5,000,000 or
more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the
entry thereof; or
(l) (i) Any Person or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended)
(other than FIMA, the Merchant Banking Partnerships, The Cypress
Group, Inc. and the officers and directors of the Borrower) (A) shall
have acquired beneficial ownership of 35% or more of any outstanding
class of capital stock of the Borrower having ordinary voting power in
the election of directors or (B) shall obtain the power (whether or
not exercised) to elect a majority of the Borrower's directors or (ii)
the Board of Directors of the Borrower shall not consist of a majority
of Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (i) above with respect of the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement, the Letters of Credit and the Notes shall immediately become
due and payable, and (B) if such event is any other Event of Default, any of
the following actions may be taken: (i) with the consent of the Required
Banks, the Agent may, or upon the request of the Required Banks, the Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) with the
consent of the Required Banks, the Agent may, or upon the direction of the
Required Banks, the Agent shall, by notice of default to the Borrower, declare
the Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement (including amounts payable in respect of Letters of Credit
whether or not the beneficiaries thereof shall have presented the drafts and
other documents required thereunder) and the Notes to be due and payable
forthwith, whereupon the same shall immediately become due and payable and
(iii) the Agent may, and upon the direction of the Required Banks shall,
exercise any and all remedies and other rights provided pursuant to this
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Agreement and/or the other Loan Documents. Except as expressly provided above
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived.
SECTION 10. THE AGENT
10.1 Appointment. Each Bank hereby irrevocably designates
and appoints Chemical Bank as the Agent of such Bank under this Agreement, and
each such Bank irrevocably authorizes Chemical Bank, as the Agent for such
Bank, to take such action on its behalf under the provisions of this Agreement
and the other Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of this Agreement
and such other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement or such other Loan Documents, the Agent shall not
have any duties or responsibilities, except those expressly set forth herein
and therein, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise
exist against the Agent. Notwithstanding anything to the contrary contained in
this Agreement, the parties hereto hereby agree that no Managing Agent shall
have any rights, duties or responsibilities in its capacity as Managing Agent
and that no Managing Agent shall have the authority to take any action
hereunder in its capacity as such.
10.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.
10.3 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or the other Loan
Documents (except for its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Borrower, any
other Loan Party or any officer thereof contained in this Agreement or the
other Loan Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agent under or in connection
with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any other Loan
Party to perform its obligations hereunder or thereunder. The
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Agent shall not be under any obligation to any Bank to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement, or to inspect the properties, books or records
of the Borrower.
10.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement and the other Loan Documents
unless it shall first receive such advice or concurrence of the Required Banks
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the Notes in accordance with a request of the Required Banks
(or, when required hereunder, all of the Banks), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and all future holders of the Notes.
10.5 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Bank or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the Agent
receives such a notice, the Agent shall promptly give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Banks; provided that
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
10.6 Non-Reliance on Agent, Managing Agents and Other Banks.
Each Bank expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Agent
hereinafter taken, including any review of the affairs of the Borrower or the
other Loan Parties, shall be deemed to constitute any representation or
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warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent, the Managing Agents or
any other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and the other Loan Parties and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Agent, the Managing Agents or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Banks by the Agent hereunder or by the other Loan Documents, the Agent shall
not have any duty or responsibility to provide any Bank with any credit or
other information concerning the business, operations, property, financial and
other condition or creditworthiness of the Borrower and the other Loan Parties
which may come into the possession of the Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Banks agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
the respective amounts of their original Commitments, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including without limitation at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Agent under or in connection with any of the foregoing; provided that no
Bank shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Agent's gross negligence or
willful misconduct. The agreements in this subsection shall survive the
payment of the Notes and all other amounts payable hereunder.
10.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower and the other Loan Parties as though the
Agent were not the Agent hereunder. With respect to its Loans made or renewed
by it and
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any Note issued to it, the Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Bank and may exercise the
same as though it were not the Agent, and the terms "Bank" and "Banks" shall
include the Agent in its individual capacity.
10.9 Successor Agent. The Agent may resign as Agent upon ten
days' notice to the Banks. If the Agent shall resign as Agent under this
Agreement, then the Required Banks shall appoint from among the Banks a
successor agent for the Banks which successor agent shall be approved by the
Borrower (which consent shall not be unreasonably withheld), whereupon such
successor agent shall succeed to the rights, powers and duties of the Agent,
and the term "Agent" shall mean such successor agent effective upon its
appointment, and the former Agent's rights, powers and duties as Agent shall be
terminated, without any other or further act or deed on the part of such former
Agent or any of the parties to this Agreement or any holders of the Notes.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this subsection 10.9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement, any
Note or any other Loan Document, nor any terms hereof or thereof may be
amended, supplemented or modified except in accordance with the provisions of
this subsection. With the written consent of the Required Banks, the Agent and
the Borrower may, from time to time, enter into written amendments, supplements
or modifications hereto for the purpose of adding any provisions to this
Agreement, the Notes, or the other Loan Documents to which the Borrower is a
party or changing in any manner the rights of the Banks or of the Borrower
hereunder or thereunder or waiving, on such terms and conditions as the Agent
may specify in such instrument, any of the requirements of this Agreement or
the Notes or the other Loan Documents to which the Borrower is a party or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall directly
(a) extend the expiry date of any Letter of Credit or extend the maturity of
any Note or any installment thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any fee, or extend the time of payment
of such fee, payable to the Banks hereunder, or reduce the principal amount
thereof, or increase the amount of any Bank's Commitment or amend, modify or
waive any provision of this subsection 11.1 or reduce the percentage specified
in the definition of Required Banks, or consent to the assignment or transfer
by the Borrower of any of its rights and obligations under this Agreement, or
release all or substantially all the collateral security under any of the
Security Documents, in each case without the written consent of all the Banks,
or (b)
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amend, modify or waive any provision of Section 10 without the written consent
of the then Agent or (c) except as provided in subsection 11.13, release less
than all or substantially all of the collateral security under any of the
Security Documents having a fair market value (as determined in good faith by
the Board of Directors (or the executive committee thereof) of the Borrower and
evidenced by a certificate delivered to the Agent) in excess of $25,000,000 in
the aggregate while this Agreement is in effect without the written consent of
the holders of at least 66-2/3% of the aggregate unpaid principal amount of the
Notes and the Letter of Credit Obligations, or, if no amounts are outstanding
under the Notes and Letter of Credit Obligations, Banks having at least 66-2/3%
of the aggregate amount of the Commitments. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon the Borrower, the Banks, the Agent and all future
holders of the Notes. In the case of any waiver, the Borrower, the Banks and
the Agent shall be restored to their former position and rights hereunder and
under the outstanding Notes, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to
any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
11.2 Notices. All notices, requests and demands to or upon
the respective parties hereto to be effective shall be in writing (including by
telegraph or telecopy), and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand, or five days
after being deposited in the mail, postage prepaid, or, in the case of
telegraph or telecopy notice, when sent and receipt has been confirmed,
addressed as follows in the case of the Borrower and the Agent, and as set
forth in Schedule 1.1(a) in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto and
any future holders of the Notes:
The Borrower: Lear Seating Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Donald J. Stebbins
Telecopy: (313) 746-1593
The Agent: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: Karen M. Sager
Telecopy: (212) 972-9854
;provided that any notice, request or demand to or upon the Agent or the Banks
pursuant to subsections 2.3, 2.4, 2.6, 2.8 and 2.9 shall not be effective until
received.
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11.3 No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder or under the Loan Documents, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder or thereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided or
provided in the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement,
the Letters of Credit and the Notes.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a)
to pay or reimburse the Agent for all its reasonable out-of-pocket costs and
reasonable expenses incurred in connection with the development, preparation
and execution of, and any amendment, supplement or modification to, this
Agreement, the Notes, the Letters of Credit and the other Loan Documents and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Agent, (b) to pay or reimburse each Bank and the Agent for all their costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the Notes, the Letters of Credit and any such
other documents, including, without limitation, fees and disbursements of
counsel to the Agent and the reasonable fees and disbursements of counsel to
the several Banks, and (c) to pay, indemnify, and hold each Bank and the Agent
harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation of
any of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the Notes, the Letters of Credit and any such other documents, and
(d) to pay, indemnify, and hold each Bank and the Agent harmless from and
against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the Notes, the Letters of
Credit and the other Loan Documents and the use by the Borrower of the proceeds
of the Loans (all the foregoing, collectively, the "indemnified liabilities");
provided that the Borrower shall have no obligation hereunder to the Agent or
any
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Bank with respect to indemnified liabilities arising from the gross negligence
or willful misconduct of the Agent or any such Bank as finally determined by a
court of competent jurisdiction. The agreements in this subsection shall
survive repayment of the Notes and all other amounts payable hereunder.
11.6 Successors and Assigns; Participations; Purchasing
Banks. (a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Banks, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any Letter of Credit
Participating Interest of such Bank, any Commitment of such Bank or any other
interest of such Bank hereunder. In the event of any such sale by a Bank of
participating interests to a Participant, such Bank's obligations under this
Agreement to the other parties to this Agreement shall remain unchanged, such
Bank shall remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under this Agreement
and the Borrower and the Agent shall continue to deal solely and directly with
such Bank in connection with such Bank's rights and obligations under this
Agreement. The Borrower agrees that if amounts outstanding under this
Agreement, the Letter of Credit and the Notes are due and unpaid, or shall have
been declared or shall have become due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement,
any Letter of Credit and any Note to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement
or any Note; provided that such right of setoff shall be subject to the
obligation of such Participant to share with the Banks, and the Banks agree to
share with such Participant, as provided in subsection 11.7. The Borrower also
agrees that each Participant shall be entitled to the benefits of subsections
2.11, 2.12, 2.13, 2.14, 3.5 and 11.5 with respect to its participation in the
Commitments and the Loans and Letters of Credit outstanding from time to time;
provided that no Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Bank would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Bank to such Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial
banking business and in accordance with applicable
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law, at any time sell to any Bank or any affiliate thereof, and, subject to the
limitations set forth in the proviso to this sentence and with the consent of
the Borrower and the Agent (which in each case shall not be unreasonably
withheld) to one or more additional banks or financial institutions
("Purchasing Banks") all or any part of its rights and obligations under this
Agreement and the Notes, pursuant to a Commitment Transfer Supplement, executed
by such Purchasing Bank, such transferor Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Borrower and the
Agent), and delivered to the Agent for its acceptance and recording in the
Register; provided, however, that (i) the Commitment purchased by any such
Purchasing Bank that is not then a Bank shall be equal to or greater than
$10,000,000 and (ii) the transferor Bank which has transferred part of its
Commitment to any such Purchasing Bank shall retain a Commitment, after giving
effect to such sale, equal to or greater than $10,000,000. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date determined pursuant to such Commitment Transfer Supplement, (x)
the Purchasing Bank thereunder shall be a party hereto and, to the extent
provided in such Commitment Transfer Supplement, have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein, and (y)
the transferor Bank thereunder shall, to the extent provided in such Commitment
Transfer Supplement, be released from its obligations under this Agreement
(and, in the case of a Commitment Transfer Supplement covering all or the
remaining portion of a transferor Bank's rights and obligations under this
Agreement, such transferor Bank shall cease to be a party hereto). Such
Commitment Transfer Supplement shall be deemed to amend this Agreement to the
extent, and only to the extent, necessary to reflect the addition of such
Purchasing Bank and the resulting adjustment of Commitment Percentages arising
from the purchase by such Purchasing Bank of all or a portion of the rights and
obligations of such transferor Bank under this Agreement and the Notes. On or
prior to the Transfer Effective Date determined pursuant to such Commitment
Transfer Supplement, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Revolving Credit Note a
new Revolving Credit Note to the order of such Purchasing Bank in an amount
equal to the Commitment assumed by it pursuant to such Commitment Transfer
Supplement and, if the transferor Bank has retained a Commitment hereunder, a
new Revolving Credit Note to the order of the transferor Bank in an amount
equal to the Commitment retained by it hereunder. Such new Notes shall be
dated the Closing Date and shall otherwise be in the form of the Notes replaced
thereby. The Notes surrendered by the transferor Bank shall be returned by the
Agent to the Borrower marked "cancelled". If any Letter of Credit
Participation Certificates have been issued to the transferor Bank and are then
outstanding, new certificates shall be issued in the appropriate amounts by the
Issuing Bank to the Purchasing Bank and, if appropriate, the transferor Bank,
as promptly as practicable after the Transfer Effective Date.
<PAGE> 90
85
(d) The Agent shall maintain at its address referred to in
subsection 11.2 a copy of each Commitment Transfer Supplement delivered to it
and a register (the "Register") for the recordation of the names and addresses
of the Banks and the Commitment of, and principal amount of the Loans owing to,
each Bank from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and the Borrower, the Agent and the Banks may
treat each Person whose name is recorded in the Register as the owner of the
Loan recorded therein for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or any Bank at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a Commitment Transfer Supplement
executed by a transferor Bank and a Purchasing Bank (and, in the case of a
Purchasing Bank that is not then a Bank or an affiliate thereof, by the
Borrower and the Agent) together with payment by the Purchasing Bank to the
Agent of a registration and processing fee of $2,500, the Agent shall (i)
promptly accept such Commitment Transfer Supplement (ii) on the Transfer
Effective Date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Banks and the Borrower.
(f) The Borrower authorizes each Bank to disclose to any
Participant or Purchasing Bank (each, a "Transferee") and any prospective
Transferee any and all financial information in such Bank's possession
concerning the Borrower and its affiliates which has been delivered to such
Bank by or on behalf of the Borrower pursuant to this Agreement or which has
been delivered to such Bank by or on behalf of the Borrower in connection with
such Bank's credit evaluation of the Borrower and its affiliates prior to
becoming a party to this Agreement; provided that the prospective Transferee
shall agree to maintain the confidentiality of such information pursuant to
subsection 11.10.
(g) If, pursuant to this subsection, any interest in this
Agreement, any Note or any Letter of Credit is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Bank shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Bank (for the benefit of the transferor Bank, the Agent and the
Borrower) that under applicable law and treaties no taxes will be required to
be withheld by the Agent, the Borrower or the transferor Bank with respect to
any payments to be made to such Transferee in respect of the Loans or the
Letters of Credit, (ii) to furnish to the transferor Bank, the Agent and the
Borrower either U.S. Internal Revenue Service Form 4224 or U.S. Internal
Revenue Service Form 1001 or successor applicable form, as the case may be,
certifying in each case that the Transferee is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income
<PAGE> 91
86
taxes, (iii) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, establish an exemption from United States
backup withholding taxes, and (iv) to agree (for the benefit of the transferor
Bank, the Agent and the Borrower) to provide the transferor Bank, the Agent and
the Borrower a new Form 4224 or Form 1001 and from W-8 or W-9, or successor
applicable forms, or other manner of certification, as the case may be, on or
before the date that any such letter or from expires or becomes obsolete or
after the occurrence of any event requiring change in the most recent letter
and from previously delivered by it to the Borrower, and such extensions or
renewals thereof as may reasonably be requested by the Borrower, certifying in
the case of a Form 1001 or 4224 that such Transferee is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, unless in any such cases an event (including
without limitation any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent the Transferee from
duly completing and delivering any such letter or from with respect to it and
such Transferee advises the transferor Bank, the Agent and the Borrower that it
is not capable of receiving payments without any deduction or withholdings of
United States federal income tax, and in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax.
(h) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
11.7 Adjustments; Set-off. (a) If any Bank (a "benefitted
Bank") shall at any time receive any payment of all or part of its Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in clause (i) of Section 9, or otherwise) in a greater
proportion than any such payment to and collateral received by any other Bank,
if any, in respect of such other Bank's Loans, or interest thereon, such
benefitted Bank shall purchase for cash from the other Banks such portion of
each such other Bank's Loan, or shall provide such other Banks with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Banks; provided, however, that
if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest. The Borrower agrees that each Bank so purchasing a portion
of another Bank's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as if such
Bank were the direct holder of such portion.
<PAGE> 92
87
(b) In addition to any rights and remedies of the Banks
provided by law, each Bank shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon the occurence and continuance of a Default
and any amount becoming due and payable by the Borrower hereunder or under the
Notes (whether at the stated maturity, by acceleration or otherwise) to set-off
and appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Bank or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Bank agrees promptly to notify the Borrower and
the Agent after any such set-off and application made by such Bank, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
11.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Agent.
11.9 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
11.10 Confidentiality. Each Bank and the Issuing Bank agrees
to take normal and reasonable precautions to maintain the confidentiality of
information designated in writing as confidential and provided to it by the
Borrower or any Subsidiary in connection with this Agreement; provided,
however, that any Bank may disclose such information (a) at the request of any
bank regulatory authority or in connection with an examination of such Bank by
any such authority, (b) pursuant to subpoena or other court process, (c) when
required to do so in accordance with the provisions of any applicable law, (d)
at the discretion of any other Governmental Authority, (e) to such Bank's
independent auditors and other professional advisors or (f) to any Transferee
or potential Transferee; provided that such Transferee agrees to comply with
the provisions of this subsection 11.10.
11.11 Submission to Jurisdiction; Waivers. The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement or any other Loan
Document to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-
<PAGE> 93
88
exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives trial by jury and any objection that
it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was
brought in an inconvenient court and agrees not to plead or claim the
same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Borrower, as the case may be, at its address set forth
in subsection 11.2 or at such other address of which the Agent shall
have been notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or
shall limit the right to sue in any other jurisdiction.
11.12 Effect of Amendment and Restatement of the Amended and
Restated Credit Agreement. On the Closing Date, the Amended and Restated
Credit Agreement shall be amended, restated and superseded in its entirety.
The parties hereto acknowledge and agree that (a) this Agreement and the other
Loan Documents, whether executed and delivered in connection herewith or
otherwise, do not constitute a novation, payment and reborrowing, or
termination of the "Obligations" (as defined in the Amended and Restated Credit
Agreement) under the Amended and Restated Credit Agreement as in effect prior
to the Closing Date; (b) such "Obligations" are in all respects continuing (as
amended and restated hereby) with only the terms thereof being modified as
provided in this Agreement; (c) the Liens and security interests as granted
under the Security Documents securing payment of such "Obligations" are in all
respects continuing and in full force and effect and secure the payment of the
Obligations (as defined in this Agreement), and to the extent necessary to
effect the foregoing, each such Security Document is hereby deemed amended
accordingly; and (d) upon the effectiveness of this Agreement all loans
outstanding under the Amended and Restated Credit Agreement immediately before
the effectiveness of this Agreement will be converted into Revolving Credit
Loans hereunder and all outstanding letters of credit under the Amended and
Restated Credit Agreement will be converted into Letters of Credit hereunder,
in each case on the terms and conditions set forth in this Agreement.
11.13 Release of Collateral. (a) The Banks hereby agree
with the Borrower, and hereby instruct the Agent, that if
<PAGE> 94
89
(i) the implied senior long-term unsecured debt securities of the Borrower are
rated at least BBB- by Standard and Poor's Ratings Group and at least BAA3 by
Moody's Investors Service, Inc. and (ii) the Agent has no actual knowledge of
the existence of a Default, the Agent shall, at the request and expense of the
Borrower, take such actions as shall be reasonably requested by the Borrower to
release its security interest in all collateral held by it pursuant to the
Security Documents.
(b) The Banks hereby agree with the Borrower, and hereby
instruct the Agent, that upon any sale (i) of accounts receivable permitted by
this Agreement or (ii) of any assets permitted by subsection 8.6(g), the Agent
shall release, to the extent necessary, its security interest in such accounts
receivable or such assets, as the case may be.
(c) The Banks hereby agree with the Borrower and hereby
instruct the Agent to release its security interest in assets on which Liens
are being created by the Borrower or any Subsidiary as permitted by subsection
8.3(m).
(d) The Banks hereby agree with the Borrower, and hereby
instruct the Agent to release its security interest in the shares of CISA
pledged pursuant to the Second Amended and Restated Mexican Pledge Agreement
upon transfer of such shares to EATSA in accordance with subsection 8.9(k) and
to take all other actions contemplated in connection therewith.
11.14 Equalization of Outstanding Loans on Closing Date.
Notwithstanding the provisions of subsections 4.6 and 11.7 and the definition
of Interest Period contained in subsection 1.1, on the Closing Date the
Borrower shall make such repayments of Loans owing to Banks that were parties
to the Amended and Restated Credit Agreement and/or make such borrowings from
Banks that were not parties to the Amended and Restated Credit Agreement (which
borrowings, if of Eurodollar Loans, shall have Interest Periods ending on dates
that coincide with the ending dates of Interest Periods then applicable to
outstanding Eurodollar Loans) as shall be required in order to cause the
outstanding Loans of each Type and Tranche owing to each Bank to equal as
nearly as practicable its Commitment Percentage of all Loans of such Type and
Tranche.
11.15 Conflicts. In the event that there exists a conflict
between provisions in this Agreement and provisions in any other Loan Document,
the provisions of this Agreement shall control.
<PAGE> 95
90
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in New York, New York by their
proper and duly authorized officers as of the day and year first above written.
LEAR SEATING CORPORATION
By: /s/ Donald J. Stebbins
--------------------------------------
Title: Vice President &
Treasurer
CHEMICAL BANK, as Agent and as a
Bank
By: /s/ Karen M. Sager
--------------------------------------
Title: Vice President
BANKERS TRUST COMPANY, as a
Managing Agent and as a Bank
By: /s/ Christopher Kinslow
--------------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as a
Managing Agent and as a Bank
By: /s/ F.C.H. Ashby
--------------------------------------
Title: Senior Manager Loan
Operation
CITICORP USA, INC., as a
Managing Agent and as a Bank
By: /s/ William G. McKnight III
--------------------------------------
Title: Vice President
LEHMAN COMMERCIAL PAPER INC., as a
Managing Agent and as a Bank
By: /s/ Jorde M. Nathan
--------------------------------------
Title: Authorized Signature
<PAGE> 96
91
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Lisa S. Marshall
--------------------------------------
Title: Director
THE BANK OF NEW YORK
By: /s/ Douglas Ober
--------------------------------------
Title: Vice President
THE MITSUBISHI TRUST &
BANKING CORPORATION
By: /s/ Masaaki Yamagishi
--------------------------------------
Title: Chief Manager
THE NIPPON CREDIT BANK, LTD.
By: /s/ Clifford Abramsky
--------------------------------------
Title: Vice President & Manager
SHAWMUT BANK CONNECTICUT, N.A.
By: /s/ Manfred Eigenbrod
--------------------------------------
Title: Managing Director
ABN AMRO BANK N.V.
By: /s/ Robert J. Graff
--------------------------------------
Title: Vice President
By: /s/ Sheralyn F. Kempel
--------------------------------------
Title: Assistant Vice President
CIBC INC.
By: /s/ Kent S. Davis
--------------------------------------
Title: Vice President
<PAGE> 97
92
COMERICA BANK
By: /s/ Mike Shea
--------------------------------------
Title: Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
By: /s/ David Bouhl, F.V.P
--------------------------------------
Title: Head of Corporate
Banking Chicago
CREDIT LYONNAIS CHICAGO BRANCH
By: /s/ Sandra E. Horwitz
--------------------------------------
Title: Vice President
CREDIT LYONNAIS CAYMAN
ISLAND BRANCH
By: /s/ Sandra E. Horwitz
--------------------------------------
Title: Authorized Signature
THE FUJI BANK, LIMITED
By: /s/ Peter L. Chinnici
--------------------------------------
Title: Joint General Manager
NATIONAL BANK OF CANADA
By: /s/ Jeffrey C. Angell
--------------------------------------
Title: Vice President
By: /s/ Duane K. Bedard
--------------------------------------
Title: Vice President
NBD BANK, N.A.
By: /s/ Thomas J. Kessel
--------------------------------------
Title: Vice President
<PAGE> 98
93
BANQUE PARIBAS
By: /s/ Laurie D. Flom
--------------------------------------
Title: Vice President
By: /s/ Rowena P. Festin
--------------------------------------
Title: Vice President
SOCIETE GENERALE
By: /s/ Gilles DeMeulenaere
--------------------------------------
Title: Vice President
CREDITANSTALT-BANKVEREIN
By: /s/ Greg Mathis
--------------------------------------
Title: Vice President
By: /s/ Geoffrey D. Spillane
--------------------------------------
Title: Senior Associate
GIRO CREDIT BANK AG DER SPARKASSEN,
GRAND CAYMAN ISLAND BRANCH
By: /s/ John Redding
--------------------------------------
Title: V.P.
By: /s/ D. Stephens
--------------------------------------
Title: V.P.
BANK ONE, MILWAUKEE, NA
By: /s/ Paul W. Jelacic
--------------------------------------
Title: Assistant Vice President
THE INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/ Hiroaki Nakamura
--------------------------------------
Title: Joint General Manager
<PAGE> 99
94
THE YASUDA TRUST AND BANKING
COMPANY, LIMITED
By: /s/ K. Inoue
--------------------------------------
Title: Joint General Manager
DRESDNER BANK AG CHICAGO AND GRAND
CAYMAN BRANCHES
By: /s/ Graham Lewis
--------------------------------------
Title: Asst. Vice President
By: /s/ Brian Brodeur
--------------------------------------
Title: Vice President
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.p.A.
By: /s/ William J. De Angelo
--------------------------------------
Title: First Vice President
<PAGE> 100
SCHEDULE 1.1(a)
NAMES AND ADDRESSES OF BANKS
<TABLE>
<S> <C>
CHEMICAL BANK BANKERS TRUST COMPANY
270 Park Avenue, 10th Floor 130 Liberty Street
New York, New York 10017 30th Floor
Attention: Karen Seger New York, New York 10006
Telephone: (212) 270-3997 Attention: Chris Kinslow
Telecopy: (212) 972-9854 Telephone: (212) 250-7671
Telecopy: (212) 250-7200
THE BANK OF NOVA SCOTIA CITICORP USA, INC.
181 West Madison 399 Park Avenue
Suite 3700 8th Floor/Zone 12
Chicago, Illinois 60602 New York, New York 10043
Attention: Alan Spurgin Attention: Elizabeth A. Palermo
Telephone: (312) 201-4142 Telephone: (212) 559-3533
Telecopy: (312) 201-4108 Telecopy: (212) 826-2375
LEHMAN COMMERCIAL PAPER INC. THE FIRST NATIONAL BANK OF BOSTON
200 Vesey Street 100 Federal Street
3 World Financial Center Mailstop 01-21-01
New York, New York 10285 Boston, Massachusetts 02106
Attention: Lisa Conrad Attention: Lisa S. Marshall
Telephone: (212) 526-0232 Telephone: (617) 434-4117
Telecopy: (212) 528-0819 Telecopy: (617) 434-6685
THE BANK OF NEW YORK THE MITSUBISHI TRUST & BANKING
One Wall Street CORPORATION
22nd Floor One Financial Place
New York, New York 10286 440 S. LaSalle Street
Attention: Paula DiPonzio Suite 3100
Telephone: (212) 635-1066 Chicago, Illinois 60605
Telecopy: (212) 635-6434 Attention: John Page
Telephone: (312) 408-6004
Telecopy: (312) 663-0863
THE NIPPON CREDIT BANK, LTD. SHAWMUT BANK CONNECTICUT, N.A.
245 Park Avenue 777 Main Street, MSN 397
30th Floor Hartford, Connecticut 06115
New York, New York 10167 Attention: Gene Martin
Attention: Clifford Abramsky Telephone: (203) 986-5624
Telephone: (212) 984-1238 Telecopy: (203) 986-5367
Telecopy: (212) 490-3895
ABN AMRO BANK N.V. CIBC INC.
135 S. LaSalle Street 200 West Madison
Room 425 Suite 2300
Chicago, Illinois 60603 Chicago, Illinois 60606
Attention: Robert J. Graff Attention: Kent Davis
Telephone: (312) 443-2675 Telephone: (312) 750-8733
Telecopy: (312) 606-8425 Telecopy: (312) 726-8884
</TABLE>
<PAGE> 101
2
<TABLE>
<S> <C>
COMERICA BANK CAISSE NATIONALE DE CREDIT AGRICOLE
One Detroit Center 55 E. Monroe Street
500 Woodward Avenue Chicago, Illinois 60603
8th Floor Attention: Roger Weis
Detroit, Michigan 48226 Telephone: (312) 917-7440
Attention: Mike Shea Telecopy: (312) 372-3724
Telephone: (313) 222-2977
Telecopy: (313) 222-9559
CREDIT LYONNAIS THE FUJI BANK, LIMITED
227 W. Monroe Street 225 West Wacker Drive
Suite 3800 Suite 2000
Chicago, Illinois 60606 Chicago, Illinois 60606
Attention: Mel Smith Attention: Mark McCracken
Telephone: (312) 641-0500 Telephone: (312) 621-0397
Telecopy: (312) 641-0527 Telecopy: (312) 621-0539
NATIONAL BANK OF CANADA NBD BANK, N.A.
27777 Franklin Road 611 Woodward Avenue
Suite 1570 Detroit, Michigan 48226
Southfield, Michigan 48034 Attention: Thomas J. Kessel
Attention: Jeffrey C. Angell Telephone: (313) 225-2884
Telephone: (810) 354-4800 Telecopy: (313) 225-2290
Telecopy: (810) 354-1768
BANQUE PARIBAS SOCIETE GENERALE
227 W. Monroe 181 West Madison Street
Suite 3300 Suite 3400
Chicago, Illinois 60606 Chicago, Illinois 60602
Attention: Laurie D. Flom Attention: Gilles Demeulenaere
Telephone: (312) 853-6022 Telephone: (312) 578-5008
Telecopy: (312) 853-6020 Telecopy: (312) 578-1671
CREDITANSTALT-BANKEVEREIN GIRO CREDIT BANK AG DER SPARKASSEN,
245 Park Avenue GRAND CAYMAN ISLAND BRANCH
New York, New York 10167 65 East 55th Street
Attention: Geoffrey D. Spillane Park Avenue Towers
Telephone: (212) 856-1250 New York, New York 10022
Telecopy: (212) 856-1006 Attention: John Redding
Telephone: (212) 909-0624
Telecopy: (212) 644-0644
BANK ONE, MILWAUKEE, NA THE INDUSTRIAL BANK OF JAPAN, LTD.
111 East Wisconsin Avenue 227 West Monroe Street
Milwaukee, Wisconsin 53202 Suite 2600
Attention: J. Dean Potokar Chicago, Illinois 60606
Telephone: (414) 765-2527 Attention: John Bowin
Telecopy: (414) 765-2176 Telephone: (312) 855-8264
Telecopy: (312) 855-8200
</TABLE>
<PAGE> 102
3
<TABLE>
<S> <C>
THE YASUDA TRUST AND BANKING DRESDNER BANK AG CHICAGO AND
COMPANY, LIMITED GRAND CAYMAN BRANCHES
181 West Madison Street 190 South LaSalle Street
Suite 4500 Chicago, Illinois 60603
Chicago, Illinois 60602 Attention: Brian Brodeur
Attention: Robert Orenstein Telephone: (312) 444-1319
Telephone: (312) 683-3836 Telecopy: (312) 444-1305
Telecopy: (312) 683-3899
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.
245 Park Avenue
New York, New York 10167
Attention: Michele von Kroemer
Telephone: (212) 692-3196
Telecopy: (212) 599-5303
</TABLE>
<PAGE> 103
SCHEDULE 1.1(b)
SECURITY DOCUMENTS
I. Guarantee
1. Second Amended and Restated Subsidiary Guarantee,
dated as of the date hereof, made by LS Acquisition Corp. No. 14, Lear Seating
Holdings Corp. No. 50, Progress Pattern Corp., Lear Plastics Corp., LS
Acquisition Corporation No. 24, and Fair Haven Industries, Inc. in favor of the
Agent, substantially in the form of Exhibit C to the Agreement.
II. Pledge Agreements
1. Second Amended and Restated Domestic Pledge
Agreement, dated as of the date hereof, made by the Borrower, pledging 100% of
the stock of Progress Pattern Corp., Lear Plastics Corp., LS Acquisition
Corporation No. 24, LS Acquisition Corporation No. 14 and Lear Seating Holdings
Corp. No. 50 and 65% of the stock of Lear Seating Sweden AB, in favor of the
Agent, substantially in the form of Exhibit D to the Agreement.
2. Second Amended and Restated Fair Haven Pledge
Agreement, dated as of the date hereof, made by LS Acquisition Corporation No.
24, pledging 100% of the stock of Fair Haven Industries, Inc., in favor of the
Agent, substantially in the form of Exhibit E to the Agreement.
3. Second Amended and Restated German Pledge Agreement
made by LS Acquisition Corp. No. 14, pledging 65% of the stock of NS
Beteiligungs GmbH, in favor of the Agent, substantially in form and substance
satisfactory to the Agent.
4. Second Amended and Restated Mexican Pledge Agreement,
dated as of the date hereof, made by the Borrower, pledging 40% of the stock of
Central de Industrias S.A. de C.V., in favor of the Agent, in form and
substance satisfactory to the Agent.
5. Second Amended and Restated Additional Mexican Pledge
Agreement, dated as of the date hereof, made by Lear Seating Holdings Corp. No.
50, pledging 65% of the stock of EATSA, in favor of the Agent, in form and
substance satisfactory to the Agent.
6. Pledge Agreement ("Nantissement"), dated as of
December 22, 1993, made by the Borrower, pledging 65% of the stock of Lear
France, in favor of the Agent, together with the related Confirmation, in form
and substance satisfactory to the Agent.
<PAGE> 104
2
7. Amended and Restated Lear Seating Canada Ltd. Share
Pledge Agreement, dated as of October 25, 1993, made by the Borrower, pledging
65% of the stock of Lear Canada, in favor of the Agent, together with the
related Acknowledgment and Confirmation, in form and substance satisfactory to
the Agent.
8. Charge Over Shares, dated December 23, 1993, made by
the Borrower, pledging 65% of the stock of Lear Seating (U.K.) Limited, in
favor of the Agent, in form and substance satisfactory to the Agent.
III. Security Agreements
1. Second Amended and Restated Security Agreement, dated
as of the date hereof, made by the Borrower, LS Acquisition Corp. No. 14, Lear
Seating Holding Corp. No. 50, Progress Pattern Corp., Lear Plastics Corp., LS
Acquisition Corporation No. 24 and Fair Haven Industries, Inc., in favor of the
Agent, substantially in the form of Exhibit F to the Agreement.
2. Amended and Restated General Security Agreement,
dated as of October 25, 1993, made by Lear Canada in favor of the Agent,
together with the related Acknowledgement and Confirmation, in form and
substance satisfactory to the Agent.
IV. Mortgages
1. Mortgage on property located in Mendon, Michigan,
dated as of September 29, 1988, from Lear Siegler Plastics Corp. to
Manufacturers Hanover Trust Company, as Agent.
2. Mortgage on property located in Fenton, Michigan,
dated as of September 29, 1988, from Lear Siegler Corp. to Manufacturers
Hanover Trust Company, as Agent.
3. Mortgage on property located in Southfield, Michigan,
dated as of September 29, 1988, from Progress Pattern Corp. to Manufacturers
Hanover Trust Company, as Agent, as amended by the First Amendment to Mortgage,
dated as of October 25, 1993, among Progress Pattern Corp., the Borrower and
Chemical Bank, as Agent.
4. Mortgage on property located in Romulus, Michigan,
dated as of September 29, 1988, from Lear Siegler Seating Corp. to
Manufacturers Hanover Trust Company, as Agent.
5. Mortgage on property located in Detroit, Michigan,
dated as of September 29, 1988, from Lear Siegler Seating Corp. to
Manufacturers Hanover Trust Company, as Agent.
6. Deeds of Trust on fee property located in Morristown,
Tennessee, each dated as of September 29, 1988, from
<PAGE> 105
3
Lear Siegler Seating Corp. to Devereaux Cannon, as Trustee, for the benefit of
Manufacturers Hanover Trust Company, as Agent.
7. Mortgage on property located in Janesville,
Wisconsin, dated as of March 1, 1991, from Lear Seating Corporation to
Manufacturers Hanover Trust Company, as Agent.
8. Amendment Agreement to the Irrevocable Property
Conveyance Trust Agreements covering the Rio Bravo, San Lorenzo and La Cuesta
facilities of Favesa.
<PAGE> 106
SCHEDULE 1.1(c)
MORTGAGED PROPERTIES
<TABLE>
<CAPTION>
Location Land Size
-------- ---------
Building Size
-------------
(Sq. Ft.) (Acres)
<S> <C> <C>
1. 21557 Telegraph Road 11.71
Southfield, Michigan
a. 70,000 sq. ft.
b. 65,500 sq. ft.
c. 19,000 sq. ft
2. 4600 Nancy Avenue 9.0
Detroit, Michigan
156,800 sq. ft.
3. 36300 Eureka Road N/A
Romulus, Michigan
89,600 sq. ft.
4. 36310 Eureka Road N/A
Romulus, Michigan
88,200 sq. ft.
5. 340 Fenway Drive 10.2
Fenton, Michigan
75,800 sq. ft.
6. 236 West Clark Street 18.0
Mendon, Michigan
168,500 sq. ft.
7. 325 Industrial Avenue 20.0
Morristown, Tennessee
(owned property)
235,900 sq. ft.
8. 5521 Jeffery Lane N/A
Morristown, Tennessee
(leased property)
37,050 sq. ft.
9. 3708 Enterprise Drive N/A
Janesville, Wisconsin
120,000 sq. ft.
</TABLE>
<PAGE> 107
SCHEDULE 2.1
COMMITMENTS
<TABLE>
Bank Commitment
---- ----------
<S> <C>
Chemical Bank $ 28,000,000
Bankers Trust Company 15,500,000
The Bank of Nova Scotia 28,000,000
Citicorp USA, Inc. 28,000,000
Lehman Commercial Paper Inc. 16,000,000
The First National Bank of Boston 25,000,000
The Bank of New York 25,000,000
The Mitsubishi Trust & Banking
Corporation 20,000,000
The Nippon Credit Bank, Ltd. 25,000,000
Shawmut Bank Connecticut, N.A. 20,000,000
ABN AMRO Bank N.V. 25,000,000
CIBC Inc. 20,000,000
Comerica Bank 22,250,000
Caisse Nationale de Credit Agricole 15,000,000
Credit Lyonnais 20,000,000
The Fuji Bank, Limited 20,000,000
National Bank of Canada 15,000,000
NBD Bank, N.A. 22,250,000
Banque Paribas 15,000,000
Societe Generale 25,000,000
Creditanstalt-Bankverein 10,000,000
Giro Credit Bank AG der Sparkassen,
Grand Cayman Island Branch 10,000,000
Bank One, Milwaukee, NA 10,000,000
The Industrial Bank of Japan, Ltd. 10,000,000
The Yasuda Trust and Banking Company,
Limited 10,000,000
Dresdner AG Chicago and Grand
Cayman Branches 10,000,000
Istituto Bancario San Paolo di
Torino S.p.A. 10,000,000
------------
$500,000,000
</TABLE>
<PAGE> 108
SCHEDULE 3.1
EXISTING LETTERS OF CREDIT
<TABLE>
<CAPTION>
Letter of Expiration
Credit Number Face Amount Beneficiary Date
--------- ----------- ----------- ---------
<S> <C> <C> <C>
T - 293944 $ 3,000,000 Zurich Insurance October 31, 1998
G - 153340 $ 8,500,000 The Bank of Nova Scotia March 31, 1998
T - 294933 $ 4,612,000 National Union Fire Insurance Company August 13, 1998
G - 137608 $ 2,875,000 National Union Fire Insurance Company October 26, 1998
G - 239356 $ 908,750 National Union Fire Insurance Company August 27, 1998
T - 216189 $ 750,000 Zurich Insurance June 30, 1998
T - 219868 $ 4,800,000 Zurich Insurance October 31, 1998
T - 220133 $15,000,000 Citibank October 31, 1998
R - 232745 $ 9,626,667 NBD Bank, N.A. July 20, 1998
T - 235091 $ 9,630,137 NBD Bank, N.A. September 16, 1998
T - 237709 $ 1,750,000 Zurich Insurance September 30, 1999
</TABLE>
<PAGE> 109
SCHEDULE 6.14
SUBSIDIARIES, DIVISIONS, PARTNERSHIPS AND JOINT VENTURES
OF LEAR SEATING CORPORATION
DOMESTIC SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction
of Number of Stock
Name of Entity Incorporation Shares Ownership Record Holder
-------------- ------------- ------ --------- -------------
<S> <C> <C> <C> <C>
LS Acquisition Corp. No. 14 Delaware 100 Common 100% Lear Seating Corporation
Lear Seating Holdings Corp. No. 50 Delaware 100 Common 100% Lear Seating Corporation
Progress Pattern Corp. Delaware 100 Common 100% Lear Seating Corporation
LS Acquisition Corporation No. 24 Delaware 100 Common 100% Lear Seating Corporation
Fair Haven Industries, Inc. Michigan 19,600 Common 100% LS Acquisition Corporation No. 24
Lear Plastics Corp. Delaware 100 Common 100% Lear Seating Corporation
</TABLE>
FOREIGN SUBSIDIARIES:
<TABLE>
<CAPTION>
Jurisdiction of
---------------
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
Lear Seating Sweden AB Sweden 100% Lear Seating Corporation
Equipos Automotrices Totales S.A. de Mexico 100% Lear Seating Holdings Corp. No. 50
C.V.
Central de Industrias S.A. de C.V. Mexico 59.6% Equipos Automotrices Totales S.A. de
40% C.V.
Lear Seating Corporation
Lear Seating Canada Ltd. Canada 100% Lear Seating Corporation
Lear International Ltd. Barbados 100% Lear Seating Canada Ltd.
Lear Industries Holdings B.V. Netherlands 100% Lear International Ltd.
Intertrim S.A. de C.V. Mexico 99.5% Lear Seating Corporation
NS Beteiligungs GmbH Germany 100% LS Acquisition Corp. No. 14
Lear Seating Autositze GmbH Austria 100% NS Beteiligungs GmbH
No Sag Draftfedern GmbH Germany 99.8% NS Beteiligungs GmbH
Lear Seating GmbH Germany 100% Lear No Sag Draftfedern GmbH
Lear France E.U.R.L. France 100% Lear Seating Corporation
Societe No Sag Francaise France 55.8% Lear France E.U.R.L.
Souby S.A. France 100% Societe No Sag Francaise
Spitzer Gmbh Austria 62% Lear No-Sag GmbH & Co. KG
Lear Seating (U.K.) Ltd. U.K. 100% Lear Seating Corporation
Lear Seating Australia PTY. Ltd. Australia 100% Lear Seating Corporation
Favesa S.A. de C.V. Mexico 99.9999% Equipos Automotrices Totales S.A. de
0.0001% C.V.
Lear Seating Corporation
Lear Seating Italia, S.r.l Italy 99% Lear Seating Corporation
1% LS Acquisition Corp. No. 14
</TABLE>
<PAGE> 110
2
PARTNERSHIPS/JOINT VENTURES:
<TABLE>
<CAPTION>
Jurisdiction of
Name of Entity Organization Stock Ownership Record Holder
-------------- ------------ --------------- -------------
<S> <C> <C> <C>
PARTNERSHIPS
------------
Lear Seating Autositze GmbH & Co. KG Austria 99% NS Beteiligungs GmbH
1% Lear Seating Autositze GmbH
Lear Seating GmbH & Co. KG Germany Gen'l Pt No Sag Draftfedern GmbH
Lim. Pt Lear Seating GmbH
No Sag Draftfedern Spitzer & Co. KG Austria 62.5% Lear Seating GmbH & Co. KG
37.5% Spitzer GmbH
JOINT VENTURES AND MINORITY INTERESTS
-------------------------------------
General Seating of America Michigan 35% (a) Lear Seating Corporation
General Seating of Canada Limited Canada 35% (a) Lear Seating Canada Ltd.
Pacific Trim Corporation Ltd. Thailand 20% Lear Seating Corporation
Probel S.A. Brazil 31% Lear Seating Canada Ltd.
</TABLE>
(a) An option exists whereby General Motors Corporation may purchase five
percent (5%) of the issued shares from Lear Seating Corporation and
Lear Seating Canada Ltd.
In connection with the Acquisition, the following entities will be acquired:
<TABLE>
<S> <C> <C> <C>
SEPI Poland Sp. Z o.o. Poland 100% Lear Seating Corporation
Markol Otomotiv Yan Sanayi Ve Ticaret Turkey 35% Lear Seating Corporation
Anonim Sirketi
SEPI S.p.A. Italy 100% Lear Seating Italia
SEPI SUD S.p.A. Italy 100% SEPI S.p.A.
Industrias Cousin Freres S.L. Spain 49.9% SEPI S.p.A.
</TABLE>
<PAGE> 111
SCHEDULE 6.18
HAZARDOUS MATERIAL
A. General Use of Hazardous Material. Holdings and its
Subsidiaries and other Persons have caused or permitted Hazardous Materials (as
defined in the Agreement) to be placed, held, located or disposed of on, under
or at each of the Mortgaged Properties from time to time in the ordinary course
of operations in the following manner:
1. Each of the Mortgaged Properties has provision for
disposal of sewage through septic systems or connections to municipal
sewage treatment systems;
2. The ordinary processes and operations conducted on
each of the Mortgaged Properties utilize certain Hazardous Materials,
including in some or all instances, paints, solvents, oils,
plasticizers, acids, caustics, solutions used to clean metal and
plastic parts and other chemicals; and
3. It is possible that urea formaldehyde foam
insulation, paints containing lead, asbestos, and polychlorinated
biphenyls ("PCBs") may have been found in certain of the Mortgaged
Properties in the past.
Specific instances of the placement, holding, location and
disposal of Hazardous Materials known to Borrower and its Subsidiaries are
disclosed in the remainder of this Schedule.
B. Mendon, Michigan
The facility at Mendon, Michigan is contaminated with Hazardous
Materials in several areas.
1. The Mendon plant has used a variety of chemicals,
some of which are Hazardous Materials. Among the chemicals used are
hydraulic, lubricating and cutting oils, chlorinated solvents and
non-chlorinated solvents and water and solvent-based paints.
2. A system of sumps and pipes used to transport
hydraulic oil to presses in the plant apparently leaked, contaminating
soil and groundwater. Approximately 8700 cubic yards of soil were
removed and disposed of with the approval of the Michigan Department
of Natural Resources ("MDNR"). MDNR also agreed to a remediation
procedure for cleaning up groundwater, including installation of an
interceptor sewer and collection of oil in an oil/water separator.
<PAGE> 112
2
3. The groundwater at the southwest corner of the plant
was found to contain levels of volatile organic compounds ("VOCs")
including trichloroethylene and other chlorinated solvents in low, but
not insignificant, concentrations. Alternatives were evaluated and a
remedial program was selected with the approval of the MDNR. A
pumping system was installed to pump and treat the groundwater prior
to discharge. It is possible that further testing will be required to
determine the scope of the problem and the optimal remedial program.
4. The groundwater at the northwest corner of the plant
under former waste pits used to treat electroplating wastewater was
found to contain nickel and chromium. The waste pits and surrounding
soil were removed, and a pumping system was installed to pump the
groundwater into the plant for discharge with the approval of the
MDNR.
5. Soil beneath one of the plant buildings was
contaminated with heavy metals as the result of spills from the former
electroplating operation and leaks in the floor. The Borrower
excavated the most heavily contaminated soil and signed a "Declaration
of Restrictions/Consent Agreement" with MDNR, which requires
maintenance of an impermeable cap (i.e., the current concrete floor)
over the contaminated area.
6. The Borrower believes that it has completed all of
the capital expenditures necessary to remedy the soil and groundwater
contamination identified at the Mendon plant. Monitoring wells
indicate that there has been no migration of contamination toward a
drinking water well located approximately one quarter of a mile from
the plant, but it is remotely possible that MDNR will require the
Borrower to undertake additional remedial actions as a precaution.
C. Morristown, Tennessee
1. The Morristown plant uses a variety of chemicals,
some of which may be Hazardous Materials. These chemicals include
lubricating, cutting and hydraulic oils, mineral spirit solvents,
water-based paints, and an iron-phosphate metal cleaning solution.
D. Detroit, Michigan
The Detroit facility consists of two plants which make foam
cushions and foam components and assemble car seats.
1. The Detroit facility uses a variety of chemicals,
some of which are Hazardous Materials. Among the chemicals used are
toluene diisocyanate, methane diisocyanate,
<PAGE> 113
3
polyols, glues (at least some of which contain the solvent methylene
chloride) paints, polyethylene, water soluble cooling oils,
lubricating oils, mineral oil, mineral spirit solvents and amines. A
recent survey did not identify any asbestos in the plant, but a few
areas that might contain asbestos apparently were not covered in the
survey.
2. Both plants at the Detroit facility were used for
industrial activity by prior owners. Borrower and its Subsidiaries
know nothing about the materials use or waste disposal practices of
those owners.
E. Southfield, Michigan
The Southfield property is the site of Progress Pattern
Corporation, its manufacturing plant and the Lear Seating Corporation
headquarters and Technical Center.
1. The operations at Southfield utilize various
chemicals, some of which are Hazardous Materials. Progress Pattern
uses paints, lubricating and hydraulic oils, solvents, plasticizers,
isocyanates, polyol, styrene, argon gas and beryllium alloys. The
Technical Center uses polyols isocyanates and solvent based
plasticizers.
2. The Progress Pattern plant discharges rinse water and
plaster of Paris waste from molds to a gravel pit on the property.
Progress Pattern personnel are instructed not to allow other wastes to
go to the gravel pit, but it is possible that small quantities of
other materials, some of which may be Hazardous materials, might on
occasion have been discharged to the gravel pit.
F. Fenton, Michigan
1. The Fenton plant uses limited amounts of oils and
solvents for occasional applications in the manufacturing process.
Water based and solvent-based paints and mineral oils are utilized in
maintenance of the facilities.
<PAGE> 114
SCHEDULE 8.2
EXISTING INDEBTEDNESS
1. Indebtedness evidenced by the Indenture dated as of July 15, 1992,
relating to the Borrower's 11-1/4% Senior Subordinated Notes, in an
aggregate principal amount of $125,000,000, plus accrued and unpaid
interest.
2. Indebtedness evidenced by the Indenture dated February 1, 1994,
relating to the Borrower's 8-1/4% Subordinated Notes, in an aggregate
principal amount of $145,000,000, plus accrued and unpaid interest.
3. Indebtedness of Lear Canada under its revolving loan facility with The
Bank of Nova Scotia in the principal amount up to $10,000,000
(Canadian), plus accrued and unpaid interest.
4. Indebtedness of NS Beteiligungs GmbH to Industriekreditbank AG-Deutsch
Industriebank in the principal amount of DM 11,000,000, plus accrued
and unpaid interest.
5. Indebtedness in Germany to the city of Eisenach, Germany, relating to
a land purchase in Eisenach, Germany, in the principal amount of DM
429,000, plus accrued and unpaid interest.
6. Indebtedness in Austria to Sparkasse under a working capital credit
line in the principal of up to ATS 40,000,000, plus accrued and unpaid
interest.
7. Indebtedness in Mexico to Internacional under a note payable facility
for working capital in the principal amount up to $15,000,000, plus
accrued and unpaid interest.
8. Indebtedness in Mexico to Bancomer, Banco Mexicano, Banamex and
Citibank under a note payable facility for working capital in the
principal amount up to 90,000,000 Mexican pesos and $12,800,000, plus
accrued and unpaid interest.
9. Indebtedness of Lear Seating Sweden AB to SE Banken under a working
capital credit facility in the principal amount up to SEK 6,500,000,
plus accrued and unpaid interest.
10. Indebtedness of the Borrower to NBD Bank, N.A. under a capitalized
lease in the amount of $221,903.
11. Indebtedness of the Borrower to the City of Hammond, Indiana under the
loan agreement dated July 1, 1994, in the principal amount of
$9,500,000, plus accrued and unpaid interest.
<PAGE> 115
2
12. Indebtedness of the Borrower to Development Authority of Clayton
County, Georgia under a loan agreement dated September 16, 1994, in
the principal amount of $9,500,000, plus accrued and unpaid interest.
13. Indebtedness of Lear Seating Canada, Ltd. to the government of the
Province of Ontario, Canada under a loan agreement, dated January 27,
1993, in the principal amount up to $2,500,000 (Canadian), plus
accrued and unpaid interest.
14. Indebtedness of Lear Seating Canada, Ltd. to the government of the
Province of Ontario, Canada under a loan agreement, in the principal
amount up to $2,000,000 (Canadian), plus accrued and unpaid interest.
15. Indebtedness of Favesa to Citibank evidenced by a promissory note
dated November 1, 1993 in the principal amount of $15,000,000, plus
accrued and unpaid interest.
16. Indebtedness of Favesa to Ford, evidenced by a promissory note dated
November 1, 1993 in the principal amount of $1,200,000, plus accrued
and unpaid interest.
17. Indebtedness of the Borrower to AFCO under a loan agreement dated
October 31, 1994 in a principal amount of approximately $1,400,000,
plus accrued and unpaid interest.
18. Indebtedness of SEPI S.p.A to Ministro dell'Industrias Commercio E
Artignato of approximately Lit 610,000,000, plus accrued and unpaid
interest.
19. Indebtedness of SEPI S.p.A to Inpool B.N.L. and Efibanca of
approximately Lit 3,200,000,000, plus accrued and unpaid interest.
20. Indebtedness of Lear Seating Italia to Istituto Bancario San Paolo di
Torino S.p.A. under a term loan agreement in the principal amount of
up to Lit 250,000,000,000, plus accrued and unpaid interest.
<PAGE> 116
SCHEDULE 8.9
EXISTING LOANS, ADVANCES AND CAPITAL CONTRIBUTIONS
1. Capital contribution by LS Acquisition Corp. No. 14 to NS Beteiligungs
GmbH in the amount of DM 10,000,000.
2. Capital contribution by Lear Seating Corporation to NS Beteiligungs
GmbH in the amount of $6,000,000.
3. Capital contribution by Lear Seating Corporation to NS Beteiligungs
GmbH in the amount of $4,000,000.
4. Capital contribution by Lear Seating Corporation to NS Beteiligungs
GmbH in the amount of DM 3,045,000.
5. Equity Investment by Lear Seating Corporation in Central de Industrias
S.A. de C.V. in the amount of $12,613,000.
6. Equity Investment by Lear Seating Corporation in Central de Industrias
S.A. de C.V. in the amount of $15,589,000.
7. Equity Investment by Lear Seating Corporation in Lear Seating Sweden
AB in the amount of $1,500,000.
8. Capital contribution by Lear Seating Corporation to Lear Seating
Sweden AB in the amount of $3,800,000.
9. Equity investment by LS Acquisition Corporation No. 24 in Fair Haven
Industries, Inc. in the amount of $750,000.
10. Equity Investment by LS Acquisition Corporation No. 24 in Fair Haven
Industries, Inc. in the amount of $600,000.
11. Equity Investment by Lear Seating Corporation in General Seating of
America, Inc. in the amount of $600,000.
12. Equity Investment by Lear Seating Canada Ltd. in General Seating of
Canada, Ltd. in the amount of $1,800,000 (Canadian).
13. Capital contribution by Lear Seating Corporation in Lear Seating
(U.K.) Ltd. in the amount of $3,890,000.
14. Equity investment in Pacific Trim Corporation Ltd. (Thailand) by Lear
Seating Corporation in the amount of $223,000.
15. Capital contribution by Lear Seating Corporation to subsidiaries
organized under the laws of Austria in the amount of $50,000.
<PAGE> 117
2
16. Capital contribution by Lear Seating Corporation to Lear France
E.U.R.L. in the amount of Fr 50,000.
17. Capital contribution and a loan by Lear Seating Corporation to Lear
Seating Australia PTY Ltd. in the amounts of $444,000 and $200,000,
respectively.
18. Capital contribution by Lear Seating Corporation to Lear Seating
Sweden Ltd. of approximately $2,300,000.
19. Capital contribution by Lear Seating Corporation to Equipos
Automotrices Totales S.A. de C.V. to finance the acquisition of the
North American Business of the Ford Motor Company.
<PAGE> 118
SCHEDULE 8.15
CONTRACTUAL OBLIGATION RESTRICTIONS
1. Indenture, dated July 15, 1992, among Lear Seating Corporation, as
Issuer, Lear Holdings Corporation, as Guarantor and The Bank of New
York, as Trustee, relating to the Borrower's 11-1/4% Senior
Subordinated Notes.
2. Indenture, dated February 1, 1994, between Lear Seating Corporation,
as Issuer and the First National Bank of Boston, as Trustee, relating
to the Borrower's 8-1/4% Subordinated Notes.
3. Loan Agreement between NS Beteilgungs GmbH and Industriekreditbank
AG-Deutsch Industriek.
4. Agreement relating to working capital credit facility provided by SE
Banken to Lear Seating Sweden AB.
5. Capital lease relating to property in Detroit, Michigan.
6. Agreements and security instruments assumed by Lear Seating
Corporation in connection with the Acquisition.
7. Loan Agreement between Lear Seating Corporation and the Province of
Ontario, Canada relating to indebtedness of up to $2,000,000
(Canadian).
8. Loan Agreement, dated January 27, 1993, between Lear Seating
Corporation and the Province of Ontario, Canada.
9. Term Loan Agreement between Lear Seating Italia and Istituto Bancario
San Paolo di Torino S.p.A. entered into in connection with the
Acquisition.
<PAGE> 119
EXHIBIT A
FORM OF
REVOLVING CREDIT NOTE
$______________ New York, New York
November , 1994
FOR VALUE RECEIVED, the undersigned, LEAR SEATING CORPORATION, a
Delaware corporation (the "Borrower"), hereby unconditionally promises
to pay to the order of _____________ (the "Bank") at the office of Chemical
Bank located at 270 Park Avenue, New York, New York 10017, in lawful money of
the United States of America and in immediately available funds, on the
Termination Date the principal amount of (a) ____________ DOLLARS ($_________),
or, if less, (b) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Bank to the Borrower pursuant to subsection 2.1 of the
Credit Agreement referred to below. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
from time to time outstanding at the rates and on the dates specified in
subsection 4.1 of such Credit Agreement.
The holder of this Revolving Credit Note is authorized to endorse on
the schedules annexed hereto and made a part hereof or on a continuation
thereof which shall be attached hereto and made a part hereof the date, Type,
maturity date, interest rate with respect thereto and amount of each Revolving
Credit Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof,
each conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period, with respect thereto.
Each such endorsement shall constitute prima facie evidence of the accuracy of
the information endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such Revolving Credit
Loan.
This Revolving Credit Note (a) is one of the Revolving Credit Notes
referred to in the Second Amended and Restated Credit Agreement, dated
as of November 29, 1994 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among the Borrower, the Bank, the other
financial institutions from time to time parties thereto, Chemical Bank, as
Agent, and Bankers Trust Company, The Bank of Nova Scotia, Citicorp USA, Inc.
and Lehman Commercial Paper Inc., as Managing Agents, (b) is subject to the
provisions of the Credit Agreement and (c) is subject to optional and mandatory
prepayment in whole or in part as provided in the Credit Agreement. This
Revolving Credit Note is guaranteed as provided in the Credit Agreement.
Reference is hereby made to the Credit
<PAGE> 120
2
Agreement for the nature and extent of the guarantees, the terms and
conditions upon which such guarantees were granted and the rights of the holder
of this Revolving Credit Note in respect thereof.
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Revolving Credit Note shall become, or
may be declared to be, immediately due and payable, all as provided in the
Credit Agreement.
All parties now and hereafter liable with respect to this Revolving
Credit Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
[This Revolving Credit Note is made in substitution and replacement
for, but not in payment of, the promissory note, dated October 25, 1993, made
by the Borrower to the Bank under the Amended and Restated Credit Agreement.]1/
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
LEAR SEATING CORPORATION
By____________________________
Title:
1/ To be included only for the Revolving Credit Notes to Banks under the
Amended and Restated Credit Agreement.
<PAGE> 121
Schedule A
to Revolving
Credit Note
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
<TABLE>
<CAPTION>
Amount Amount of ABR Loans
Converted to Amount of Principal of Converted to Unpaid Principal Notation Made
Date Amount of ABR Loans ABR Loans ABR Loans Repaid Eurodollar Loans Balance of ABR Loans By
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 122
Schedule B
to Revolving
Credit Note
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
<TABLE>
<CAPTION>
Interest Period Amount of Amount of
and Eurodollar Principal of Eurodollar Loans Unpaid Principal
Amount of Amount Converted Rate with Eurodollar Loans Converted to Balance of Notation
Date Eurodollar Loans to Eurodollar Loans Respect Thereto Repaid ABR Loans Eurodollar Loans Made By
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 123
EXHIBIT B
FORM OF
SWING LINE NOTE
$40,000,000 New York, New York
November , 1994
FOR VALUE RECEIVED, the undersigned, LEAR SEATING CORPORATION, a
Delaware corporation (the "Borrower"), hereby unconditionally promises to pay
to the order of CHEMICAL BANK (the "Bank") at the office of Chemical Bank
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, on the Termination
Date the principal amount of (a) FORTY MILLION DOLLARS ($40,000,000), or, if
less, (b) the aggregate unpaid principal amount of all Swing Line Loans made by
the Bank to the Borrower pursuant to subsection 2.4 of the Credit Agreement
referred to below. The Borrower further agrees to pay interest in like money
at such office on the unpaid principal amount hereof from time to time
outstanding at the rates and on the dates specified in subsection 4.1 of such
Credit Agreement.
The holder of this Swing Line Note is authorized to endorse on the
schedule annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date and amount of
each Swing Line Loan made pursuant to the Credit Agreement and the date and
amount of each payment or prepayment of principal thereof. Each such
endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement shall not
affect the obligations of the Borrower in respect of such Swing Line Loan.
This Swing Line Note (a) is the Swing Line Note referred to in the
Second Amended and Restated Credit Agreement, dated as of November 29, 1994 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the Bank, the other financial institutions
from time to time parties thereto, Chemical Bank, as Agent, and Bankers Trust
Company, The Bank of Nova Scotia, Citicorp USA, Inc. and Lehman Commercial
Paper Inc., as Managing Agents, (b) is subject to the provisions of the Credit
Agreement and (c) is subject to optional and mandatory prepayment in whole or
in part as provided in the Credit Agreement. This Swing Line Note is
guaranteed as provided in the Credit Agreement. Reference is hereby made to
the Credit Agreement for the nature and extent of the guarantees, the terms and
conditions upon which such guarantees were granted and the rights of the holder
of this Swing Line Note in respect thereof.
<PAGE> 124
2
Upon the occurrence of any one or more of the Events of Default, all
amounts then remaining unpaid on this Swing Line Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this Swing Line
Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
This Swing Line Note is made in substitution and replacement for, but
not in payment of, the promissory note, dated October 25, 1993, made by the
Borrower to the Bank under the Amended and Restated Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
LEAR SEATING CORPORATION
By_____________________________
Title:
<PAGE> 125
Schedule A to Swing Line Note
LOANS, CONVERSIONS AND REPAYMENTS OF SWING LINE LOANS
<TABLE>
<CAPTION>
Amount of Principal of Unpaid Principal Balance
Date Amount of Loans Loans Repaid of Loans Notation Made By
<S> <C> <C> <C> <C>
</TABLE>
<PAGE> 126
EXHIBIT C
FORM OF
SECOND AMENDED AND RESTATED
SUBSIDIARY GUARANTEE
SECOND AMENDED AND RESTATED SUBSIDIARY GUARANTEE, dated as of November 29,
1994 (this "Guarantee"), made by each of the corporations that are signatories
hereto other than Chemical Bank (the "Guarantors"), in favor of CHEMICAL BANK,
as administrative agent (in such capacity, the "Agent") for the financial
institutions (the "Banks") parties to the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, Lear Seating Corporation (the "Borrower"), certain of the Banks and
the Agent were parties to the Credit Agreement, dated as of September 29, 1988
(as amended, supplemented or otherwise modified from time to time, the
"Original Credit Agreement");
WHEREAS, pursuant to the Original Credit Agreement, LS Acquisition Corp. No.
14, Progress Pattern Corp. and Lear Plastics Corp. (f/k/a Lear Siegler Plastics
Corp.) executed and delivered to the Agent the Subsidiaries Guarantee, dated as
of September 29, 1988 (as amended, supplemented or otherwise modified from time
to time, the "Original Subsidiaries Guarantee");
WHEREAS, pursuant to the Original Credit Agreement, Lear Seating Holdings
Corp. No. 50 executed and delivered to the Agent the Guarantor Agreement, dated
as of April 23, 1990 (as amended, supplemented or otherwise modified from time
to time, the "Original LS No. 50 Guarantee");
WHEREAS, pursuant to the Original Credit Agreement, LS Acquisition
Corporation No. 24 (f/k/a LS Acquisition Corp. No. 24) executed and delivered
to the Agent the Guarantor Agreement, dated as of August 31, 1990 (as amended,
supplemented or otherwise modified from time to time, the "Original LS No. 24
Guarantee");
WHEREAS, pursuant to the Original Credit Agreement, Fair Haven Industries,
Inc. executed and delivered to the Agent the Fair Haven Guarantee, dated as of
September 13, 1990 (as amended, supplemented or otherwise modified from time to
time, the "Original Fair Haven Guarantee");
WHEREAS, pursuant to the Original Credit Agreement, Lear Seating Holding
Corp. No. 50 and LS Acquisition Corp. No. 14 executed and delivered to the
Agent the Affiliates Guarantee,
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dated as of September 17, 1991 (as amended, supplemented or otherwise modified
from time to time, the "Affiliates Guarantee"; and together with the Original
Subsidiaries Guarantee, the Original LS No. 50 Guarantee, the Original LS No.
24 Guarantee and the Original Fair Haven Guarantee, the "Original Guarantees");
WHEREAS, the Borrower requested the Banks to amend and restate the Original
Credit Agreement on the terms of the Amended and Restated Credit Agreement,
dated as of October 25, 1993 (as amended, supplemented or otherwise modified
from time to time, the "Amended and Restated Credit Agreement"), among the
Borrower, the Banks, the Agent, and Bankers Trust Company, The Bank of Nova
Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
WHEREAS, pursuant to the Amended and Restated Credit Agreement, LS
Acquisition Corp. No. 14, Lear Seating Holding Corp. No. 50, Progress Pattern
Corp., Lear Plastics Corp., LS Acquisition Corporation No. 24, and Fair Haven
Industries, Inc. executed and delivered to the Agent the Amended and Restated
Subsidiary and Affiliate Guarantee, dated as of October 25, 1993 (as amended,
supplemented or otherwise modified from time to time, the "Amended and Restated
Subsidiary and Affiliate Guarantee");
WHEREAS, the Borrower has requested the Banks to amend and restate the
Amended and Restated Credit Agreement on the terms of the Second Amended and
Restated Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Banks, the Agent, and Bankers Trust Company, The Bank
of Nova Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as
Managing Agents;
WHEREAS, pursuant to the Credit Agreement and the other Loan Documents (as
defined in the Credit Agreement), the Banks have agreed to make certain Loans
(as defined in the Credit Agreement) to or for the benefit of the Borrower and,
in the case of the Issuing Bank (as defined in the Credit Agreement), issue
and, in the case of the Participating Banks (as defined in the Credit
Agreement), participate in certain Letters of Credit (as defined in the Credit
Agreement);
WHEREAS, it is a condition precedent to the obligation of the Banks to make
the Loans and to issue or participate in the Letters of Credit under the Credit
Agreement that each Guarantor shall have executed and delivered this Guarantee
to the Agent for the ratable benefit of the Banks; and
WHEREAS, the Borrower and the Guarantors are engaged in related businesses
and each Guarantor will derive substantial
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direct and indirect benefits from the making of the Loans and issuances of the
Letters of Credit;
NOW, THEREFORE, in consideration of the premises contained herein and to
induce the Agent, the Managing Agents and the Banks to enter into the Credit
Agreement and to induce the Banks to make the Loans and to issue and
participate in the Letters of Credit under the Credit Agreement, each Guarantor
hereby agrees with the Agent, for the ratable benefit of the Banks, that the
Amended and Restated Subsidiary and Affiliate Guarantee shall be amended and
restated in its entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and Section and paragraph
references are to this Guarantee unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
2. Guarantee (a) Subject to the provisions of paragraph 2(b), each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantees to the Agent, for the ratable benefit of the Banks and their
respective successors, indorsees, transferees and assigns, the prompt and
complete payment and performance by the Borrower when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under
the other Loan Documents shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors.
(c) Each Guarantor further agrees to pay any and all expenses (including,
without limitation, all fees and disbursements of counsel) which may be paid or
incurred by the Agent or any Bank in enforcing, or obtaining advice of counsel
in respect of, any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or collecting against,
such Guarantor under this Guarantee. This Guarantee shall remain in full force
and effect until the Obligations are paid in full and the Commitments are
terminated,
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notwithstanding that from time to time prior thereto the Borrower may be free
from any Obligations.
(d) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor hereunder
without impairing this Guarantee or affecting the rights and remedies of the
Agent or any Bank hereunder.
(e) No payment or payments made by the Borrower, any of the Guarantors, any
other guarantor or any other Person or received or collected by the Agent or
any Bank from the Borrower, any of the Guarantors, any other guarantor or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment or payments other than payments made by such
Guarantor in respect of the Obligations or payments received or collected from
such Guarantor in respect of the Obligations, remain liable for the Obligations
up to the maximum liability of such Guarantor hereunder until the Obligations
are paid in full and the Commitments are terminated.
(f) Each Guarantor agrees that whenever, at any time, or from time to time,
it shall make any payment to the Agent or any Bank on account of its liability
hereunder, it will notify the Agent in writing that such payment is made under
this Guarantee for such purpose.
3. Right of Contribution. Each Guarantor hereby agrees that to the extent
that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder who has not paid
its proportionate share of such payment. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 5 hereof.
The provisions of this Section shall in no respect limit the obligations and
liabilities of any Guarantor to the Agent and the Banks, and each Guarantor
shall remain liable to the Agent and the Banks for the full amount guaranteed
by such Guarantor hereunder.
4. Right of Set-off. Upon the occurrence of any Event of Default, each
Guarantor hereby irrevocably authorizes each Bank at any time and from time to
time without notice to such Guarantor or any other Guarantor, any such notice
being expressly waived by each Guarantor, to set-off and appropriate and apply
any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether
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direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Bank to or for the credit or the account of such
Guarantor, or any part thereof in such amounts as such Bank may elect, against
and on account of the obligations and liabilities of such Guarantor to such
Bank hereunder and claims of every nature and description of such Bank against
such Guarantor, in any currency, whether arising hereunder, under the Credit
Agreement, any Note, any other Loan Documents or otherwise, as such Bank may
elect, whether or not the Agent or any Bank has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Agent and each Bank shall notify such Guarantor promptly of any
such set-off and the application made by the Agent or such Bank, provided that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of the Agent and each Bank under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Agent or such Bank may have.
5. No Subrogation. Notwithstanding any payment or payments made by any of
the Guarantors hereunder or any set-off or application of funds of any of the
Guarantors by any Bank, no Guarantor shall be entitled to be subrogated to any
of the rights of the Agent or any Bank against the Borrower or any other
Guarantor or any collateral security or guarantee or right of offset held by
the Agent or any Bank for the payment of the Obligations, nor shall any
Guarantor seek or be entitled to seek any contribution or reimbursement from
the Borrower or any other Guarantor in respect of payments made by such
Guarantor hereunder, until all amounts owing to the Agent and the Banks by the
Borrower on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to any Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by such Guarantor in trust for the
Agent and the Banks, segregated from other funds of such Guarantor, and shall,
forthwith upon receipt by such Guarantor, be turned over to the Agent in the
exact form received by such Guarantor (duly indorsed by such Guarantor to the
Agent, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Agent may determine.
6. Amendments, etc. with respect to the Obligations; Waiver of Rights.
Each Guarantor shall remain obligated hereunder notwithstanding that, without
any reservation of rights against any Guarantor and without notice to or
further assent by any Guarantor, any demand for payment of any of the
Obligations made by the Agent or any Bank may be rescinded by such party and
any of the Obligations continued, and the Obligations, or the liability of any
other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with
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6
respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Agent or any Bank, and the Credit Agreement, the Notes and the
other Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Agent, the Required Banks or all the Banks, as the
case may be, may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Agent or any Bank for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Agent nor any Bank shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guarantee or any property subject thereto. When making
any demand hereunder against any of the Guarantors, the Agent or any Bank may,
but shall be under no obligation to, make a similar demand on the Borrower or
any other Guarantor or guarantor, and any failure by the Agent or any Bank to
make any such demand or to collect any payments from the Borrower or any such
other Guarantor or guarantor or any release of the Borrower or such other
Guarantor or guarantor shall not relieve any of the Guarantors in respect of
which a demand or collection is not made or any of the Guarantors not so
released of their several obligations or liabilities hereunder, and shall not
impair or affect the rights and remedies, express or implied, or as a matter of
law, of the Agent or any Bank against any of the Guarantors. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
7. Guarantee Absolute and Unconditional. Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by the Agent or any Bank upon this Guarantee
or acceptance of this Guarantee; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guarantee; and all
dealings between the Borrower and any of the Guarantors, on the one hand, and
the Agent and the Banks, on the other hand, likewise shall be conclusively
presumed to have been had or consummated in reliance upon this Guarantee. Each
Guarantor waives diligence, presentment, protest, demand for payment and notice
of default or nonpayment to or upon the Borrower or any of the Guarantors with
respect to the Obligations. Each Guarantor understands and agrees that this
Guarantee shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of the Credit Agreement, any Note or any other Loan Document,
any of the Obligations or any other collateral security therefor or guarantee
or right of offset with respect thereto at any time or from time to time held
by the Agent or any Bank, (b) any defense, set-off or
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counterclaim (other than a defense of payment or performance) which may at any
time be available to or be asserted by the Borrower against the Agent or any
Bank, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrower or such Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for
the Obligations, or of such Guarantor under this Guarantee, in bankruptcy or in
any other instance. When pursuing its rights and remedies hereunder against
any Guarantor, the Agent and any Bank may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any
other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by the
Agent or any Bank to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or
any release of the Borrower or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve such Guarantor of any
liability hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the Agent and the
Banks against such Guarantor. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon
each Guarantor and the successors and assigns thereof, and shall inure to the
benefit of the Agent and the Banks, and their respective successors, indorsees,
transferees and assigns, until all the Obligations and the obligations of each
Guarantor under this Guarantee shall have been satisfied by payment in full and
the Commitments shall be terminated, notwithstanding that from time to time
during the term of the Credit Agreement the Borrower may be free from any
Obligations.
8. Reinstatement. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned
by the Agent or any Bank upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Borrower or any Guarantor or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
9. Payments. Each Guarantor hereby guarantees that payments hereunder will
be paid to the Agent without set-off or counterclaim in Dollars at the office
of the Agent located at 270 Park Avenue, New York, New York 10017.
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10. Representations and Warranties. Each Guarantor hereby represents and
warrants that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in
which it is currently engaged;
(b) it has the corporate power and authority and the legal right to execute
and deliver, and to perform its obligations under, this Guarantee and each
other Loan Document to which it is a party, and has taken all necessary
corporate action to authorize the execution, delivery and performance of this
Guarantee and each other Loan Document to which it is a party;
(c) this Guarantee and each other Loan Document to which it is a party
constitutes a legal, valid and binding obligation of such Guarantor enforceable
in accordance with its terms, except as affected by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting the enforcement of creditors' rights generally,
general equitable principles and an implied covenant of good faith and fair
dealing;
(d) the execution, delivery and performance of this Guarantee and each
other Loan Document to which it is a party will not violate any provision of
any Requirement of Law or Contractual Obligation of such Guarantor and will not
result in or require the creation or imposition of any Lien on any of the
properties or revenues of such Guarantor pursuant to any Requirement of Law or
Contractual Obligation of the Guarantor; and
(e) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any
other Person (including, without limitation, any stockholder or creditor of
such Guarantor) is required in connection with the execution, delivery,
performance, validity or enforceability of this Guarantee and each other Loan
Document to which it is a party.
Each Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by such Guarantor on the date of each
borrowing or issuance of a Letter of Credit under the Credit Agreement and as
of such date of borrowing or issuance, as the case may be, as though made
hereunder on and as of such date. Each Guarantor hereby confirms that each of
the Mortgages and each other Security Document to which such Guarantor is a
party stands as collateral security for
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the payment and performance of such Guarantor's obligations and liabilities
under this Guarantee.
11. Authority of Agent. Each Guarantor acknowledges that the rights and
responsibilities of the Agent under this Guarantee with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Guarantee shall, as between the Agent and the
Banks, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and such Guarantor, the Agent shall be conclusively presumed to be acting
as agent for the Banks with full and valid authority so to act or refrain from
acting, and no Guarantor shall be under any obligation, or entitlement, to make
any inquiry respecting such authority.
12. Notices. All notices, requests and demands to or upon the Agent, any
Bank or any Guarantor to be effective shall be in writing (or by telex or
telecopy confirmed in writing) and shall be deemed to have been duly given or
made (1) when delivered by hand or (2) if given by mail, five days after being
deposited in the mails by certified mail, return receipt requested or (3) if by
telex or telecopy, when sent and receipt has been confirmed, addressed as
follows:
(a) if to the Agent or any Bank, at its address or transmission number for
notices provided in subsection 11.2 of the Credit Agreement; and
(b) if to any Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Agent, each Bank and each Guarantor may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
13. Counterparts. This Guarantee may be executed by one or more of the
parties to this Guarantee on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Guarantee signed by all the
parties hereto shall be lodged with the Agent.
14. Severability. Any provision of this Guarantee which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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15. Integration. This Guarantee represents the agreement of each Guarantor
with respect to the subject matter hereof and there are no promises or
representations by the Agent or any Bank relative to the subject matter hereof
not reflected herein.
16. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by each Guarantor
and the Agent in accordance with subsection 11.1 of the Credit Agreement,
provided that any provision of this Guarantee may be waived by the Agent and
the Banks in a letter or agreement executed by the Agent or by telecopy from
the Agent.
(b) Neither the Agent nor any Bank shall by any act (except by a written
instrument pursuant to paragraph 16(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Bank, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Agent or any Bank of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Bank would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
17. Section Headings. The section headings used in this Guarantee are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
18. Successors and Assigns. This Guarantee shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Agent and the Banks and their successors and assigns.
19. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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20. Submission to Jurisdiction; Waivers. Each Guarantor hereby irrevocably
and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Guarantee or any other Loan Document to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives trial by jury and any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at
its address set forth under its signature below or at such other address of
which the Agent shall have been notified pursuant to Section 12; and
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be
duly executed and delivered as of the day and year first above written.
LS ACQUISITION CORP. NO. 14
By:_________________________
Title:
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12
LEAR SEATING HOLDINGS CORP.
NO. 50
By:_________________________
Title:
PROGRESS PATTERN CORP.
By:_________________________
Title:
LEAR PLASTICS CORP.
By:_________________________
Title:
LS ACQUISITION CORPORATION
NO. 24
By:_________________________
Title:
FAIR HAVEN INDUSTRIES, INC.
By:_________________________
Title:
Address for Notices:
c/o Lear Seating Corporation
21557 Telegraph Road
Southfield, Michigan 48034
Attention: Donald J. Stebbins
Telecopy: (313) 746-1593
CHEMICAL BANK, as Agent
By:_________________________
Title:
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EXHIBIT D
FORM OF
SECOND AMENDED AND RESTATED
DOMESTIC PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED DOMESTIC PLEDGE AGREEMENT, dated
as of November 29, 1994, made by LEAR SEATING CORPORATION (f/k/a Lear Siegler
Seating Corp., as successor by merger to LSS Acquisition Corporation and Lear
Holdings Corporation), a Delaware corporation (the "Pledgor"), in favor of
CHEMICAL BANK, as administrative agent (in such capacity, the "Agent") for the
financial institutions (the "Banks") parties to the Credit Agreement referred
to below.
W I T N E S S E T H :
WHEREAS, the Pledgor, certain of the Banks and the Agent were
parties to the Credit Agreement, dated as of September 29, 1988 (as amended,
supplemented or otherwise modified from time to time, the "Original Credit
Agreement");
WHEREAS, pursuant to the Original Credit Agreement, the
Pledgor executed and delivered to the Agent the Pledge Agreements, dated as of
September 29, 1988 and September 13, 1990 (together, as amended, supplemented
or otherwise modified from time to time, the "Original Domestic Pledge
Agreements");
WHEREAS, the Pledgor requested the Banks to amend and restate
the Original Credit Agreement on the terms of the Amended and Restated Credit
Agreement, dated as of October 25, 1993 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"), among
the Pledgor, the Banks, the Agent, and Bankers Trust Company, The Bank of Nova
Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
WHEREAS, pursuant to the Amended and Restated Credit
Agreement, the Pledgor executed and delivered to the Agent the Amended and
Restated Domestic Pledge Agreement, dated as of October 25, 1993 (as amended,
supplemented or otherwise modified from time to time, the "Amended and Restated
Domestic Pledge Agreement");
WHEREAS, the Pledgor has requested the Banks to amend and
restate the Amended and Restated Credit Agreement on the terms of the Second
Amended and Restated Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Pledgor, the Banks, the Agent, and Bankers Trust Company, The Bank of
Nova Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
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WHEREAS, pursuant to the Credit Agreement and the other Loan
Documents (as defined in the Credit Agreement), the Banks have agreed to make
certain Loans (as defined in the Credit Agreement) to or for the benefit of the
Pledgor and, in the case of the Issuing Bank (as defined in the Credit
Agreement), issue and, in the case of the Participating Banks (as defined in
the Credit Agreement), participate in certain Letters of Credit (as defined in
the Credit Agreement) for the account of the Pledgor; and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make the Loans and to issue or participate in the Letters of Credit
under the Credit Agreement that the Pledgor shall have executed and delivered
this Second Amended and Restated Domestic Pledge Agreement to the Agent for the
ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises contained
herein and to induce the Agent, the Managing Agents and the Banks to enter into
the Credit Agreement and to induce the Banks to make the Loans and to issue and
participate in the Letters of Credit under the Credit Agreement, the Pledgor
hereby agrees with the Agent, for the ratable benefit of the Banks, that the
Amended and Restated Domestic Pledge Agreement shall be amended and restated in
its entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms which are defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral" means the Pledged Stock and all Proceeds.
"Issuers" means the collective reference to the companies
identified on Schedule I as the issuers of the Pledged Stock;
individually, each an "Issuer".
"Pledge Agreement" means this Second Amended and Restated
Domestic Pledge Agreement, as amended, supplemented or otherwise
modified from time to time.
"Pledged Stock" means the shares of capital stock listed on
Schedule I, together with all stock certificates, options, warrants or
rights of any nature whatsoever that may be issued or granted by any
Issuer to the Pledgor in respect of the Pledged Stock while this
Pledge Agreement is in effect.
<PAGE> 140
3
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(1) of the Code in effect in the State of New York on the
date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon
and distributions with respect thereto.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Pledge Agreement shall refer to this Pledge
Agreement as a whole and not to any particular provision of this Pledge
Agreement, and Section, paragraph and Schedule references are to this Pledge
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Agent, for the ratable benefit of the Banks, all the Pledged
Stock and hereby grants to Agent, for the ratable benefit of the Banks, a first
security interest in the Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the
Agent of each certificate representing one or more shares of Pledged Stock to
the Agent, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor with, if the Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents
and warrants that:
(a) the shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of the capital stock of each Issuer
owned by the Pledgor, and the percentage of shares listed on Schedule
I accurately sets forth the respective percentage which such shares
pledged by the Pledgor constitute of all such issued and outstanding
capital stock of the respective Issuers;
(b) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable;
(c) the Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any and
all Liens or options in favor of, or claims of, any other Person,
except the Lien created by this Pledge Agreement; and
<PAGE> 141
4
(d) upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock, the Lien granted pursuant to this Pledge
Agreement will constitute a valid, perfected first priority Lien on
the Collateral, enforceable as such against any Persons purporting to
purchase any Collateral from the Pledgor.
5. Covenants. The Pledgor covenants and agrees with the
Agent and the Banks that, from and after the date of this Pledge Agreement
until the Obligations have been paid in full and the Commitments have been
terminated:
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, the Pledgor shall accept the same as the agent of the Agent
and the Banks, hold the same in trust for the Agent and the Banks and
deliver the same forthwith to the Agent in the exact form received,
duly indorsed by the Pledgor to the Agent, if required, together with
an undated stock power covering such certificate duly executed in
blank by the Pledgor and with, if the Agent so requests, signature
guaranteed, to be held by the Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be paid over to the Agent to be held
by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect
of the Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof, the property so distributed shall be delivered
to the Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Stock shall be received
by the Pledgor, the Pledgor shall, until such money or property is
paid or delivered to the Agent, hold such money or property in trust
for the Agent and the Banks, segregated from other funds of the
Pledgor, as additional collateral security for the Obligations.
(b) Without the prior written consent of the Agent, the
Pledgor will not (i) vote to enable, or take any other action to
permit, any Issuer to issue any stock or other
<PAGE> 142
5
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock or other equity securities of any nature of such Issuer, (ii)
sell, assign, transfer, exchange, or otherwise dispose of, or grant
any option with respect to, the Collateral or (iii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any
Person with respect to, any of the Collateral, or any interest
therein, except for the Lien provided for by this Pledge Agreement.
The Pledgor will defend the right, title and interest of the Agent and
the Banks in and to the Collateral against the claims and demands of
all Persons whomsoever.
(c) At any time and from time to time, upon the written
request of the Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Agent
may reasonably request for the purposes of obtaining or preserving the
full benefits of this Pledge Agreement and of the rights and powers
herein granted. If any amount payable under or in connection with any
of the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel
paper shall be immediately delivered to the Agent, duly endorsed in a
manner satisfactory to the Agent, to be held as Collateral pursuant to
this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Agent and the
Banks harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales
or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Pledge Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the Agent shall have given
notice to the Pledgor of the Agent's intent to exercise its corresponding
rights pursuant to Section 7 below, the Pledgor shall be permitted to receive
all cash dividends paid in the normal course of business of each Issuer and
consistent with past practice, to the extent permitted in the Credit Agreement,
in respect of the Pledged Stock and to exercise all voting and corporate rights
with respect to the Pledged Stock; provided, however, that no vote shall be
cast or corporate right exercised or other action taken which would reasonably
be expected to (a) impair the Collateral or (b) be inconsistent with or result
in any violation of any provision of the Credit Agreement or any other Loan
Document.
<PAGE> 143
6
7. Rights of the Banks and the Agent. (a) If an Event of
Default shall occur and be continuing (i) the Agent shall have the right to
receive any and all cash dividends paid in respect of the Pledged Stock and
make application thereof to the Obligations in such order as the Agent may
determine and (ii) all shares of the Pledged Stock shall be registered in the
name of the Agent or its nominee, and the Agent or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to such shares
of the Pledged Stock at any meeting of shareholders of any Issuer or otherwise
and (B) any and all rights of conversion, exchange, subscription and any other
rights, privileges or options pertaining to such shares of the Pledged Stock as
if it were the absolute owner thereof (including, without limitation, the right
to exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of any Issuer, or upon the exercise by the Pledgor or
the Agent of any right, privilege or option pertaining to such shares of the
Pledged Stock, and in connection therewith, the right to deposit and deliver
any and all of the Pledged Stock with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
it may determine), all without liability except to account for property
actually received by it, but the Agent shall have no duty to the Pledgor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) The rights of the Agent and the Banks hereunder shall not
be conditioned or contingent upon the pursuit by the Agent or any Bank of any
right or remedy against any Issuer or any other Person which may be or become
liable in respect of all or any part of the Obligations or against any
collateral security therefor, guarantee therefor or right of offset with
respect thereto. Neither the Agent nor any Bank shall be liable for any
failure to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so, nor shall the Agent be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Pledgor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Banks, may exercise, in addition to all
other rights and remedies granted in this Pledge Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, the Agent, without demand of performance or
other demand, presentment, protest, advertisement or notice of any kind (except
any notice required by law referred to below) to or upon the Pledgor, any
Issuer or any other Person (all and each of which demands, defenses,
advertisements and
<PAGE> 144
7
notices are hereby waived), may in such circumstances forthwith collect,
receive, appropriate and realize upon the Collateral, or any part thereof,
and/or may forthwith sell, assign, give an option or options to purchase or
otherwise dispose of and deliver the Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange or
broker's board or office of the Agent or any Bank or elsewhere upon such terms
and conditions as it may deem advisable and at such prices as it may deem best,
for cash or on credit or for future delivery without assumption of any credit
risk. The Agent or any Bank shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of the Collateral so sold, free of any
right or equity of redemption in the Pledgor, which right or equity is hereby
waived or released. The Agent shall apply any Proceeds from time to time held
by it and the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral
or the rights of the Agent and the Banks hereunder, including, without
limitation, attorneys' fees and disbursements of counsel to the Agent, to the
payment in whole or in part of the Obligations, in such order as the Agent may
elect, and only after such application and after the payment by the Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Agent account for the
surplus, if any, to the Pledgor. To the extent permitted by applicable law,
the Pledgor waives all claims, damages and demands it may acquire against the
Agent or any Bank arising out of the exercise by them of any rights hereunder.
If any notice of a proposed sale or other disposition of Collateral shall be
required by law, such notice shall be deemed reasonable and proper if given at
least ten days before such sale or other disposition. The Pledgor shall remain
liable for any deficiency if the proceeds of any sale or other disposition of
Collateral are insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Agent or any Bank to collect
such deficiency.
9. Registration Rights; Private Sales. (a) If the Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 8 hereof, and if in the reasonable opinion of the Agent it
is necessary or advisable to have the Pledged Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), the Pledgor will cause the relevant Issuer(s)
to (i) execute and deliver, and cause the directors and officers of the
relevant Issuer(s) to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts as may be, in the opinion of the
<PAGE> 145
8
Agent, necessary or advisable to register the Pledged Stock, or that portion
thereof to be sold under the provisions of the Securities Act, (ii) use its
best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of the Pledged Stock, or that portion thereof to be sold
and (iii) make all amendments thereto and/or to the related prospectus which,
in the opinion of the Agent, are necessary or advisable, all in conformity with
the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto. The Pledgor agrees to
cause each Issuer to comply with the provisions of the securities or "Blue Sky"
laws of any and all jurisdictions which the Agent shall designate and to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the provisions of
Section 11(a) of the Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the applicable Issuer to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Stock pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Pledgor further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to the
Agent and the Banks, that the Agent and the Banks have no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable against
the Pledgor, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred under the Credit Agreement.
<PAGE> 146
9
10. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Agent in writing that (a) states that an
Event of Default has occurred and (b) is otherwise in accordance with the terms
of this Pledge Agreement, without any other or further instructions from the
Pledgor, and the Pledgor agrees that each Issuer shall be fully protected in so
complying.
11. Agent's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Agent and any officer
or agent of the Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in the Agent's own name,
from time to time (provided an Event of Default has occurred and is continuing)
in the Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Pledge Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 11(a). All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
12. Limitation on Duties Regarding Collateral. The Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Agent deals with similar
securities and property for its own account. Neither the Agent, any Bank nor
any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any collateral upon the request of the Pledgor or otherwise.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Agent to file financing
statements with respect to the Collateral without the signature of the Pledgor
in such form and in such filing offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this Pledge
Agreement. A carbon, photographic or other reproduction of this Pledge
Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
<PAGE> 147
10
14. Authority of Agent. The Pledgor acknowledges that the
rights and responsibilities of the Agent under this Pledge Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Pledge Agreement shall,
as between the Agent and the Banks, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Agent and the Pledgor, the Agent shall be
conclusively presumed to be acting as agent for the Banks with full and valid
authority so to act or refrain from acting, and neither the Pledgor nor any
Issuer shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
15. Notices. All notices, requests and demands to or upon
the Agent, any Bank or the Pledgor to be effective shall be in writing (or by
telegraph or telecopy confirmed in writing) and shall be deemed to have been
duly given or made (a) when delivered by hand or (b) if given by mail, five
days after being deposited in the mails by certified mail, return receipt
requested or (c) if by telegraph or telecopy, when sent and receipt has been
confirmed, addressed at its address or transmission number for notices provided
in subsection 11.2 of the Credit Agreement. The Agent, each Bank and the
Pledgor may change its address and transmission numbers for notices by notice
in the manner provided in this Section.
16. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
17. Section Headings. The Section headings used in this
Pledge Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
18. Amendments in Writing; No Waiver; Pledge Cumulative
Remedies. (a) None of the terms or provisions of this Pledge Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Agent in accordance with subsection
11.1 of the Credit Agreement, provided that any provision of this Pledge
Agreement may be waived by the Agent and the Banks in a letter or agreement
executed by the Agent or by telecopy from the Agent.
(b) Neither the Agent nor any Bank shall by any act (except
by a written instrument pursuant to paragraph 18(a)
<PAGE> 148
11
hereof), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Agent or any Bank,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Agent or any Bank of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent or such Bank would otherwise have on any future
occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
19. Successors and Assigns. This Pledge Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Agent and the Banks and their successors and assigns.
20. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
<PAGE> 149
12
21. Counterparts. This Pledge Agreement may be executed by
one or more of the parties to this Pledge Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the counterparts of this
Pledge Agreement signed by all parties hereto shall be lodged with the Agent.
IN WITNESS WHEREOF, each of the undersigned has caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
LEAR SEATING CORPORATION
By:________________________
Title:
CHEMICAL BANK, as Agent
By:________________________
Title:
<PAGE> 150
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned Issuers referred to in the foregoing
Pledge Agreement hereby acknowledges receipt of a copy thereof and agrees to be
bound thereby and to comply with the terms thereof insofar as such terms are
applicable to it. Each of the undersigned agrees to notify the Agent promptly
in writing of the occurrence of any of the events described in paragraph 5(a)
of the Pledge Agreement. The undersigned further agrees that the terms of
paragraph 9(c) of the Pledge Agreement shall apply to it, mutatis mutandis,
with respect to all actions that may be required of it under or pursuant to or
arising out of Section 9 of the Pledge Agreement.
PROGRESS PATTERN CORP.
By:________________________________
Title:
LEAR PLASTICS CORP.
By:________________________________
Title:
LS ACQUISITION CORPORATION NO. 24
By:________________________________
Title:
LS ACQUISITION CORP. NO. 14
By:________________________________
Title:
LEAR SEATING HOLDINGS CORP. NO. 50
By:________________________________
Title:
LEAR SEATING SWEDEN AB
By:________________________________
Title:
<PAGE> 151
SCHEDULE I
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
Stock
Class of Certificate No. of Pct. of
Issuer Stock No. Shares Shares
------ -------- ----------- ---------- ---------
<S> <C> <C> <C> <C>
Progress Pattern Corp. Common 2 100 100%
Lear Plastics Corp. Common 2 100 100%
LS Acquisition Corporation No. Common 1 100 100%
24
LS Acquisition Corp. No. 14 Common 3 100 100%
Lear Seating Holdings Corp. Common 3 100 100%
No. 50
Lear Seating Sweden AB Common 10501- 19,500 65%
30000
</TABLE>
<PAGE> 152
EXHIBIT E
FORM OF
SECOND AMENDED AND RESTATED
FAIR HAVEN PLEDGE AGREEMENT
SECOND AMENDED AND RESTATED FAIR HAVEN PLEDGE AGREEMENT, dated
as of November 29, 1994, made by LS ACQUISITION CORPORATION NO. 24, a Delaware
corporation (the "Pledgor"), in favor of CHEMICAL BANK, as administrative agent
(in such capacity, the "Agent") for the financial institutions (the "Banks")
parties to the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Lear Seating Corporation (f/k/a Lear Siegler Seating
Corp., as successor by merger to LSS Acquisition Corporation) (the "Borrower"),
certain of the Banks and the Agent were parties to the Credit Agreement, dated
as of September 29, 1988 (as amended, supplemented or otherwise modified from
time to time, the "Original Credit Agreement");
WHEREAS, pursuant to the Original Credit Agreement, the
Pledgor executed and delivered to the Agent the Pledge Agreement, dated as of
September 13, 1990 (as amended, supplemented or otherwise modified from time to
time, the "Original Fair Haven Pledge Agreement");
WHEREAS, the Borrower requested the Banks to amend and restate
the Original Credit Agreement on the terms of the Amended and Restated Credit
Agreement, dated as of October 25, 1993 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"), among
Borrower, the Banks, the Agent, and Bankers Trust Company, The Bank of Nova
Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
WHEREAS, pursuant to the Amended and Restated Credit
Agreement, the Pledgor executed and delivered to the Agent the Pledge
Agreement, dated as of October 25, 1993 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Fair Haven Pledge
Agreement");
WHEREAS, the Borrower has requested the Banks to amend and
restate the Amended and Restated Credit Agreement on the terms of the Second
Amended and Restated Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Borrower, the Banks, the Agent, and Bankers Trust Company, The Bank of
Nova Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
WHEREAS, pursuant to the Credit Agreement and the other Loan
Documents (as defined in the Credit Agreement), the Banks
<PAGE> 153
2
have agreed to make certain Loans (as defined in the Credit Agreement)
to or for the benefit of the Borrower and, in the case of the Issuing Bank (as
defined in the Credit Agreement), issue and, in the case of the Participating
Banks (as defined in the Credit Agreement), participate in certain Letters of
Credit (as defined in the Credit Agreement) for the account of the Borrower;
and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make the Loans and to issue or participate in the Letters of Credit
under the Credit Agreement that the Pledgor shall have executed and delivered
this Second Amended and Restated Holdings Pledge Agreement to the Agent for the
ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises contained
herein and to induce the Agent, the Managing Agents and the Banks to enter into
the Credit Agreement and to induce the Banks to make the Loans and to issue and
participate in the Letters of Credit under the Credit Agreement, the Pledgor
hereby agrees with the Agent, for the ratable benefit of the Banks, that the
Amended and Restated Fair Haven Pledge Agreement shall be amended and restated
in its entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms which are defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement.
(b) The following terms shall have the following meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of New York.
"Collateral" means the Pledged Stock and all Proceeds.
"Guarantee" means the Second Amended and Restated Subsidiary
Guarantee, dated as of the date hereof, made by the Pledgor in favor
of the Agent, as amended, supplemented or otherwise modified from time
to time.
"Issuers" means the collective reference to the companies
identified on Schedule I as the issuers of the Pledged Stock;
individually, each an Issuer".
"Obligations" means all obligations and liabilities of the
Pledgor under the Guarantee, subject to any limitations contained
therein.
"Pledge Agreement" means this Second Amended and Restated Fair
Haven Pledge Agreement, as amended, supplemented or otherwise modified
from time to time.
<PAGE> 154
3
"Pledged Stock" means the shares of capital stock listed on
Schedule I, together with all stock certificates, options, warrants or
rights of any nature whatsoever that may be issued or granted by any
Issuer to the Pledgor in respect of the Pledged Stock while this
Pledge Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(1) of the Code in effect in the State of New York on the
date hereof and, in any event, shall include, without limitation, all
dividends or other income from the Pledged Stock, collections thereon
and distributions with respect thereto.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Pledge Agreement shall refer to this Pledge
Agreement as a whole and not to any particular provision of this Pledge
Agreement, and Section, paragraph and Schedule references are to this Pledge
Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Pledge; Grant of Security Interest. The Pledgor hereby
delivers to the Agent, for the ratable benefit of the Banks, all the Pledged
Stock and hereby grants to Agent, for the ratable benefit of the Banks, a first
security interest in the Collateral, as collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
3. Stock Powers. Concurrently with the delivery to the Agent
of each certificate representing one or more shares of Pledged Stock to the
Agent, the Pledgor shall deliver an undated stock power covering such
certificate, duly executed in blank by the Pledgor with, if the Agent so
requests, signature guaranteed.
4. Representations and Warranties. The Pledgor represents
and warrants that:
(a) the shares of Pledged Stock constitute all the issued and
outstanding shares of all classes of the capital stock of each Issuer
owned by the Pledgor, and the percentage of shares listed on Schedule
I accurately sets forth the respective percentage which such shares
pledged by the Pledgor constitute of all such issued and outstanding
capital stock of the respective Issuers;
(b) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable;
<PAGE> 155
4
(c) the Pledgor is the record and beneficial owner of, and
has good and marketable title to, the Pledged Stock, free of any and
all Liens or options in favor of, or claims of, any other Person,
except the Lien created by this Pledge Agreement; and
(d) upon delivery to the Agent of the stock certificates
evidencing the Pledged Stock, the Lien granted pursuant to this Pledge
Agreement will constitute a valid, perfected first priority Lien on
the Collateral, enforceable as such against any Persons purporting to
purchase any Collateral from the Pledgor.
5. Covenants. The Pledgor covenants and agrees with the
Agent and the Banks that, from and after the date of this Pledge Agreement
until the Obligations have been paid in full and the Commitments have been
terminated:
(a) If the Pledgor shall, as a result of its ownership of the
Pledged Stock, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any shares of the Pledged Stock, or otherwise in respect
thereof, the Pledgor shall accept the same as the agent of the Agent
and the Banks, hold the same in trust for the Agent and the Banks and
deliver the same forthwith to the Agent in the exact form received,
duly indorsed by the Pledgor to the Agent, if required, together with
an undated stock power covering such certificate duly executed in
blank by the Pledgor and with, if the Agent so requests, signature
guaranteed, to be held by the Agent, subject to the terms hereof, as
additional collateral security for the Obligations. Any sums paid
upon or in respect of the Pledged Stock upon the liquidation or
dissolution of any Issuer shall be paid over to the Agent to be held
by it hereunder as additional collateral security for the Obligations,
and in case any distribution of capital shall be made on or in respect
of the Pledged Stock or any property shall be distributed upon or with
respect to the Pledged Stock pursuant to the recapitalization or
reclassification of the capital of any Issuer or pursuant to the
reorganization thereof, the property so distributed shall be delivered
to the Agent to be held by it hereunder as additional collateral
security for the Obligations. If any sums of money or property so
paid or distributed in respect of the Pledged Stock shall be received
by the Pledgor, the Pledgor shall, until such money or property is
paid or delivered to the Agent, hold such money or property in trust
for the Agent and the Banks, segregated from other
<PAGE> 156
5
funds of the Pledgor, as additional collateral security for the
Obligations.
(b) Without the prior written consent of the Agent, the
Pledgor will not (i) vote to enable, or take any other action to
permit, any Issuer to issue any stock or other equity securities of
any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock or other
equity securities of any nature of such Issuer, (ii) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral or (iii) create, incur or permit to exist
any Lien or option in favor of, or any claim of any Person with
respect to, any of the Collateral, or any interest therein, except for
the Lien provided for by this Pledge Agreement. The Pledgor will
defend the right, title and interest of the Agent and the Banks in and
to the Collateral against the claims and demands of all Persons
whomsoever.
(c) At any time and from time to time, upon the written
request of the Agent, and at the sole expense of the Pledgor, the
Pledgor will promptly and duly execute and deliver such further
instruments and documents and take such further actions as the Agent
may reasonably request for the purposes of obtaining or preserving the
full benefits of this Pledge Agreement and of the rights and powers
herein granted. If any amount payable under or in connection with any
of the Collateral shall be or become evidenced by any promissory note,
other instrument or chattel paper, such note, instrument or chattel
paper shall be immediately delivered to the Agent, duly endorsed in a
manner satisfactory to the Agent, to be held as Collateral pursuant to
this Pledge Agreement.
(d) The Pledgor agrees to pay, and to save the Agent and the
Banks harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all stamp, excise, sales
or other taxes which may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the
transactions contemplated by this Pledge Agreement.
6. Cash Dividends; Voting Rights. Unless an Event of Default
shall have occurred and be continuing and the Agent shall have given notice to
the Pledgor of the Agent's intent to exercise its corresponding rights pursuant
to Section 7 below, the Pledgor shall be permitted to receive all cash
dividends paid in the normal course of business of each Issuer and consistent
with past practice, to the extent permitted in the Credit Agreement, in respect
of the Pledged Stock and to exercise all voting and corporate rights with
respect to the Pledged Stock; provided, however, that no vote shall be cast or
corporate right exercised or other action taken which would reasonably be
<PAGE> 157
6
expected to (a) impair the Collateral or (b) be inconsistent with or result in
any violation of any provision of the Credit Agreement or any other Loan
Document.
7. Rights of the Banks and the Agent. (a) If an Event of
Default shall occur and be continuing (i) the Agent shall have the right to
receive any and all cash dividends paid in respect of the Pledged Stock and
make application thereof to the Obligations in such order as the Agent may
determine and (ii) all shares of the Pledged Stock shall be registered in the
name of the Agent or its nominee, and the Agent or its nominee may thereafter
exercise (A) all voting, corporate and other rights pertaining to such shares
of the Pledged Stock at any meeting of shareholders of any Issuer or otherwise
and (B) any and all rights of conversion, exchange, subscription and any other
rights, privileges or options pertaining to such shares of the Pledged Stock as
if it were the absolute owner thereof (including, without limitation, the right
to exchange at its discretion any and all of the Pledged Stock upon the merger,
consolidation, reorganization, recapitalization or other fundamental change in
the corporate structure of any Issuer, or upon the exercise by the Pledgor or
the Agent of any right, privilege or option pertaining to such shares of the
Pledged Stock, and in connection therewith, the right to deposit and deliver
any and all of the Pledged Stock with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
it may determine), all without liability except to account for property
actually received by it, but the Agent shall have no duty to the Pledgor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) The rights of the Agent and the Banks hereunder shall not
be conditioned or contingent upon the pursuit by the Agent or any Bank of any
right or remedy against any Issuer or any other Person which may be or become
liable in respect of all or any part of the Obligations or against any
collateral security therefor, guarantee therefor or right of offset with
respect thereto. Neither the Agent nor any Bank shall be liable for any
failure to demand, collect or realize upon all or any part of the Collateral or
for any delay in doing so, nor shall the Agent be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Pledgor or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
8. Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Banks, may exercise, in addition to all
other rights and remedies granted in this Pledge Agreement and in any other
instrument or agreement securing, evidencing or relating to the Obligations,
all rights and remedies of a secured party under the Code. Without limiting
the generality of the foregoing, the Agent, without demand of performance or
other demand, presentment, protest, advertisement
<PAGE> 158
7
or notice of any kind (except any notice required by law referred to below) to
or upon the Pledgor, any Issuer or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, assign, give an
option or options to purchase or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, in the over-the-counter
market, at any exchange or broker's board or office of the Agent or any Bank or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. The Agent or any Bank shall have the
right upon any such public sale or sales, and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right or equity of redemption in the Pledgor,
which right or equity is hereby waived or released. The Agent shall apply any
Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeeping of any of the Collateral or in
any way relating to the Collateral or the rights of the Agent and the Banks
hereunder, including, without limitation, attorneys' fees and disbursements of
counsel to the Agent, to the payment in whole or in part of the Obligations, in
such order as the Agent may elect, and only after such application and after
the payment by the Agent of any other amount required by any provision of law,
including, without limitation, Section 9-504(1)(c) of the Code, need the Agent
account for the surplus, if any, to the Pledgor. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands it may
acquire against the Agent or any Bank arising out of the exercise by them of
any rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least ten days before such sale or other disposition. The
Pledgor shall remain liable for any deficiency if the proceeds of any sale or
other disposition of Collateral are insufficient to pay the Obligations and the
fees and disbursements of any attorneys employed by the Agent or any Bank to
collect such deficiency.
9. Registration Rights; Private Sales. (a) If the Agent
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section 8 hereof, and if in the reasonable opinion of the Agent it
is necessary or advisable to have the Pledged Stock, or that portion thereof to
be sold, registered under the provisions of the Securities Act of 1933, as
amended (the "Securities Act"), the Pledgor will cause the relevant Issuer(s)
to (i) execute and deliver, and cause the directors and officers of the
relevant Issuer(s) to execute and
<PAGE> 159
8
deliver, all such instruments and documents, and do or cause to be done all
such other acts as may be, in the opinion of the Agent, necessary or advisable
to register the Pledged Stock, or that portion thereof to be sold under the
provisions of the Securities Act, (ii) use its best efforts to cause the
registration statement relating thereto to become effective and to remain
effective for a period of one year from the date of the first public offering
of the Pledged Stock, or that portion thereof to be sold and (iii) make all
amendments thereto and/or to the related prospectus which, in the opinion of
the Agent, are necessary or advisable, all in conformity with the requirements
of the Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Pledgor agrees to cause each
Issuer to comply with the provisions of the securities or "Blue Sky" laws of
any and all jurisdictions which the Agent shall designate and to make available
to its security holders, as soon as practicable, an earnings statement (which
need not be audited) which will satisfy the provisions of Section 11(a) of the
Securities Act.
(b) The Pledgor recognizes that the Agent may be unable to
effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Agent shall
be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the applicable Issuer to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if such Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do
or cause to be done all such other acts as may be necessary to make such sale
or sales of all or any portion of the Pledged Stock pursuant to this Section 9
valid and binding and in compliance with any and all other applicable
Requirements of Law. The Pledgor further agrees that a breach of any of the
covenants contained in this Section 9 will cause irreparable injury to the
Agent and the Banks, that the Agent and the Banks have no adequate remedy at
law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 9 shall be specifically enforceable against
the Pledgor, and the Pledgor hereby waives and agrees not to assert any
defenses against an action for specific performance of such
<PAGE> 160
9
covenants except for a defense that no Event of Default has occurred under the
Credit Agreement.
10. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs each Issuer to comply with any
instruction received by it from the Agent in writing that (a) states that an
Event of Default has occurred and (b) is otherwise in accordance with the terms
of this Pledge Agreement, without any other or further instructions from the
Pledgor, and the Pledgor agrees that each Issuer shall be fully protected in so
complying.
11. Agent's Appointment as Attorney-in-Fact. (a) The
Pledgor hereby irrevocably constitutes and appoints the Agent and any officer
or agent of the Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Pledgor and in the name of the Pledgor or in the Agent's own name,
from time to time (provided an Event of Default has occurred and is continuing)
in the Agent's discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Pledge Agreement, including, without limitation, any financing
statements, endorsements, assignments or other instruments of transfer.
(b) The Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done pursuant to the power of attorney granted in
paragraph 11(a). All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement
is terminated and the security interests created hereby are released.
12. Limitation on Duties Regarding Collateral. The Agent's
sole duty with respect to the custody, safekeeping and physical preservation of
the Collateral in its possession, under Section 9-207 of the Code or otherwise,
shall be to deal with it in the same manner as the Agent deals with similar
securities and property for its own account. Neither the Agent, any Bank nor
any of their respective directors, officers, employees or agents shall be
liable for failure to demand, collect or realize upon any of the Collateral or
for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any collateral upon the request of the Pledgor or otherwise.
13. Execution of Financing Statements. Pursuant to Section
9-402 of the Code, the Pledgor authorizes the Agent to file financing
statements with respect to the Collateral without the signature of the Pledgor
in such form and in such filing offices as the Agent reasonably determines
appropriate to perfect the security interests of the Agent under this Pledge
Agreement. A carbon, photographic or other reproduction of this Pledge
<PAGE> 161
10
Agreement shall be sufficient as a financing statement for filing in any
jurisdiction.
14. Authority of Agent. The Pledgor acknowledges that the
rights and responsibilities of the Agent under this Pledge Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, voting right, request, judgment or other right or remedy
provided for herein or resulting or arising out of this Pledge Agreement shall,
as between the Agent and the Banks, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Agent and the Pledgor, the Agent shall be
conclusively presumed to be acting as agent for the Banks with full and valid
authority so to act or refrain from acting, and neither the Pledgor nor any
Issuer shall be under any obligation, or entitlement, to make any inquiry
respecting such authority.
15. Notices. All notices, requests and demands to or upon
the Agent, any Bank or the Pledgor to be effective shall be in writing (or by
telegraph or telecopy confirmed in writing) and shall be deemed to have been
duly given or made (a) when delivered by hand or (b) if given by mail, five
days after being deposited in the mails by certified mail, return receipt
requested or (c) if by telegraph or telecopy, when sent and receipt has been
confirmed, addressed at its address or transmission number for notices provided
in subsection 11.2 of the Credit Agreement. The Agent, each Bank and the
Pledgor may change its address and transmission numbers for notices by notice
in the manner provided in this Section.
16. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
17. Section Headings. The Section headings used in this
Pledge Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
18. Amendments in Writing; No Waiver; Pledge Cumulative
Remedies. (a) None of the terms or provisions of this Pledge Agreement may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Agent in accordance with subsection
11.1 of the Credit Agreement, provided that any provision of this Pledge
Agreement may be waived by the Agent and the Banks in a letter or agreement
executed by the Agent or by telecopy from the Agent.
<PAGE> 162
11
(b) Neither the Agent nor any Bank shall by any act (except
by a written instrument pursuant to paragraph 18(a) hereof), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any
of the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Bank, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Agent or any Bank of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Bank would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
19. Successors and Assigns. This Pledge Agreement shall be
binding upon the successors and assigns of the Pledgor and shall inure to the
benefit of the Agent and the Banks and their successors and assigns.
<PAGE> 163
12
20. GOVERNING LAW. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
21. Counterparts. This Pledge Agreement may be executed by
one or more of the parties to this Pledge Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the counterparts of this
Pledge Agreement signed by all the parties hereto shall be lodged with the
Agent.
IN WITNESS WHEREOF, each of the undersigned has caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
LS ACQUISITION CORPORATION NO. 24
By:______________________________
Title:
CHEMICAL BANK, as Agent
By:______________________________
Title:
<PAGE> 164
ACKNOWLEDGEMENT AND CONSENT
Each of the undersigned Issuers referred to in the foregoing
Pledge Agreement hereby acknowledges receipt of a copy thereof and agrees to be
bound thereby and to comply with the terms thereof insofar as such terms are
applicable to it. Each of the undersigned agrees to notify the Agent promptly
in writing of the occurrence of any of the events described in paragraph 5(a)
of the Pledge Agreement. The undersigned further agrees that the terms of
paragraph 9(c) of the Pledge Agreement shall apply to it, mutatis mutandis,
with respect to all actions that may be required of it under or pursuant to or
arising out of Section 9 of the Pledge Agreement.
FAIR HAVEN INDUSTRIES, INC.
By:__________________________
Title:
<PAGE> 165
SCHEDULE I
DESCRIPTION OF PLEDGED STOCK
<TABLE>
<CAPTION>
Class of Stock Certificate
Issuer Stock No. No. of Shares Pct. of Shares
------ -------- ---------------- ------------- --------------
<S> <C> <C> <C> <C>
Fair Haven Common 21 19,600 100%
Industries, Inc.
</TABLE>
<PAGE> 166
EXHIBIT F
FORM OF
SECOND AMENDED AND RESTATED
SECURITY AGREEMENT
SECOND AMENDED AND RESTATED SECURITY AGREEMENT, dated as of
November 29, 1994, made by each of the corporations that are signatories hereto
other than Chemical Bank (the "Grantors"), in favor of CHEMICAL BANK, as
administrative agent (in such capacity, the "Agent") for the financial
institutions (the "Banks") parties to the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Lear Holdings Corporation (f/k/a LSS Holdings
Corporation) ("Holdings"), Lear Seating Corporation (f/k/a Lear Siegler Seating
Corp., as successor by merger to LSS Acquisition Corporation) (the
"Borrower"), certain of the Banks and the Agent were parties to the Credit
Agreement, dated as of September 29, 1988 (as amended, supplemented or
otherwise modified from time to time, the "Original Credit Agreement");
WHEREAS, pursuant to the Original Credit Agreement, certain of
the Grantors executed and delivered to the Agent the Security Agreements, dated
as of September 29, 1988 in the case of the Borrower, Lear Plastics
Corporation, Progress Pattern Corp. and LS Acquisition Corp. No. 14, and dated
as of September 13, 1990 in the case of Fair Haven Industries, Inc.
(collectively, as amended, supplemented or otherwise modified from time to
time, the "Original Security Agreements");
WHEREAS, the Borrower requested the Banks to amend and restate
the Original Credit Agreement on the terms of the Amended and Restated Credit
Agreement, dated October 25, 1993 (as amended, supplemented or otherwise
modified from time to time, the "Amended and Restated Credit Agreement"), among
the Borrower, the Banks, the Agent, and Bankers Trust Company, The Bank of Nova
Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing
Agents;
WHEREAS, pursuant to the Amended and Restated Credit Agreement
the Grantors executed and delivered to the Agent the Amended and Restated
Security Agreement, dated as of October 25, 1993, as amended, supplemented or
otherwise modified from time to time, the "Amended and Restated Security
Agreement");
WHEREAS, the Borrower has requested the Banks to amend and
restate the Amended and Restated Credit Agreement on the terms of the Second
Amended and Restated Credit Agreement, dated as of the date hereof (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, the Banks, the Agent, and Bankers Trust Company, The
<PAGE> 167
Bank of Nova Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as
Managing Agents;
WHEREAS, pursuant to the Credit Agreement and the other Loan
Documents (as defined in the Credit Agreement), the Banks have agreed to make
certain Loans (as defined in the Credit Agreement) to or for the benefit of the
Borrower and, in the case of the Issuing Bank (as defined in the Credit
Agreement), issue and, in the case of the Participating Banks (as defined in
the Credit Agreement), participate in certain Letters of Credit (as defined in
the Credit Agreement); and
WHEREAS, it is a condition precedent to the obligation of the
Banks to make the Loans and to issue or participate in the Letters of Credit
under the Credit Agreement that the Grantors shall have executed and delivered
this Second Amended and Restated Security Agreement to the Agent for the
ratable benefit of the Banks;
NOW, THEREFORE, in consideration of the premises contained
herein and to induce the Agent, the Managing Agents and the Banks to enter into
the Credit Agreement and to induce the Banks to make the Loans and to issue and
participate in the Letters of Credit under the Credit Agreement, the Grantors
hereby agree with the Agent, for the ratable benefit of the Banks, that the
Amended and Restated Security Agreement shall be amended and restated in its
entirety as follows:
1. Defined Terms. (a) Unless otherwise defined herein,
terms which are defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement; the following terms which are
defined in the Uniform Commercial Code in effect in the State of New York on
the date hereof are used herein as so defined: Accounts, Chattel Paper,
Documents, Farm Products, General Intangibles, Instruments, Inventory and
Proceeds; and the following terms shall have the following meanings:
"Code" shall mean the Uniform Commercial Code as from time to
time in effect in the State of New York.
"Collateral" shall have the meaning assigned to it in Section
2 of this Security Agreement.
"Contracts" shall mean each of the agreements listed on
Schedules I-A through G, as the same may from time to time be amended,
supplemented or otherwise modified, including, without limitation, (a)
all rights for each Grantor to receive monies due and to become due to
it thereunder or in connection therewith, (b) all rights of each
Grantor to damages arising out of, or for, breach or default in
respect thereof and (c) all rights of each Grantor to perform and to
exercise all remedies thereunder.
<PAGE> 168
3
"Equipment" shall mean all equipment, as such term is defined
in Section 9-109(2) of the Code, now or hereafter acquired by each
Grantor, and, in any event, shall mean and include, but shall not be
limited to, all machinery, equipment, furnishings and fixtures now or
hereafter used in connection with the businesses of each Grantor or
located at the locations set forth on Schedules IV-A through G, and
any and all additions, substitutions and replacements of any of the
foregoing, together with all attachments, components, parts (including
spare parts), equipment and accessories installed thereon or affixed
thereto.
"Obligations" shall mean (a) with respect to the Borrower, the
"Obligations" (as such term is defined in the Credit Agreement), and
(b) with respect to LS Acquisition Corp. No. 14, Lear Seating Holdings
Corp. No. 50, Progress Pattern Corp., Lear Plastics Corp., LS
Acquisition Corp. No. 24 and Fair Haven Industries, Inc., all
obligations and liabilities of such Grantors under the Subsidiary
Guarantee, subject to any limitations contained therein.
"Security Agreement" shall mean this Second Amended and
Restated Security Agreement, as amended, supplemented or otherwise
modified from time to time.
"Subsidiary Guarantee" shall mean the Second Amended and
Restated Subsidiary Guarantee, dated as of the date hereof, made by LS
Acquisition Corp. No. 14, Lear Seating Holdings Corp. No. 50, Progress
Pattern Corp., Lear Plastics Corporation, LS Acquisition Corp. No. 24
and Fair Haven Industries, Inc. in favor of the Agent, for the ratable
benefit of the Banks, as the same may be amended, supplemented or
otherwise modified from time to time.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Security Agreement shall refer to this
Security Agreement as a whole and not to any particular provision of this
Security Agreement, and Section, paragraph and Schedule references are to this
Security Agreement unless otherwise specified.
(c) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. Grant of Security Interest. As collateral security for
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations and in order to
induce the Agent and the Banks to enter into the Credit Agreement, each Grantor
hereby sells, assigns, conveys, mortgages, pledges, hypothecates and transfers
to the Agent, and hereby grants to the Agent, for the ratable benefit of the
Banks, a security interest in all of the following
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4
property now owned or at any time hereafter acquired by such Grantor or in
which such Grantor now has or at any time in the future may acquire any right,
title or interest (collectively, the "Collateral"):
(i) all Accounts;
(ii) all Chattel Papers;
(iii) all Contracts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory; and
(ix) to the extent not otherwise included, all Proceeds,
products, substitutions and replacements of any and all of the
foregoing.
3. Rights of Agent and Banks; Limitations on Agent's and
Banks' Obligations. (a) Anything herein to the contrary notwithstanding,
each Grantor shall remain liable under each of its respective Accounts and the
Contracts to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of
any agreement giving rise to each such Account and in accordance with and
pursuant to the terms and provisions of the Contracts. Neither the Agent nor
any Bank shall have any obligation or liability under any Account (or any
agreement giving rise thereto) or under the Contracts by reason of or arising
out of this Security Agreement or the receipt by the Agent or any such Bank of
any payment relating to such Account or the Contracts pursuant hereto, nor
shall the Agent or any Bank be obligated in any manner to perform any of the
obligations of any Grantor under or pursuant to any Account (or any agreement
giving rise thereto), or under or pursuant to the Contracts, to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto) or under the Contracts, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to it or to
which it may be entitled at any time or times.
(b) At the Agent's request, each Grantor shall deliver to
the Agent all original and other documents evidencing, and relating to, the
sale and delivery of Inventory or the
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5
performance of labor or service which created the Accounts, including, but not
limited to, all Chattel Paper, original purchase orders, invoices, shipping
documents and delivery receipts and duplicate copies of credit memoranda.
(c) The Agent may at any time after the occurrence and
during the continuance of an Event of Default notify account debtors and
parties to Accounts that the Accounts have been assigned to the Agent, for the
ratable benefit of the Banks, and that payments shall be made directly to the
Agent. Upon the request of the Agent at any time after the occurrence and
during the continuance of an Event of Default, each Grantor will so notify such
account debtors and such parties to the Accounts. Upon prior notice to the
Grantors, the Agent may in its own name or in the name of others communicate
with account debtors and parties to Accounts in order to verify with them to
the Agent's satisfaction the existence, amount and terms of any Accounts.
(d) Upon prior notice to the Grantors, the Agent shall
have the right to make test verifications of the Collateral in any matter and
through any medium that it considers advisable, and the Grantor agrees to
furnish all such assistance and information as the Agent may require in
connection therewith. Each Grantor at its expense will furnish, or will cause
independent public accountants satisfactory to the Agent to furnish, to the
Agent at any time and from time to time promptly upon the Agent's request, the
following reports: (i) reconciliation of all Collateral, (ii) an aging of all
Collateral, (iii) trial balances, (iv) a test verification of such Collateral
and (v) a physical inventory of the Collateral by certified accountants
reasonably satisfactory to the Agent.
4. Representations and Warranties. Each Grantor hereby
represents and warrants that:
(a) Title; No Other Liens. Except for the Lien granted
to the Agent for the ratable benefit of the Banks pursuant to this
Security Agreement, such Grantor owns each item of the Collateral free
and clear of any and all Liens or claims of others other than Liens
permitted under subsection 8.3 of the Credit Agreement. No security
agreement, financing statement or other public notice with respect to
all or any part of such Collateral is on file or of record in any
public office, except (i) such as may have been filed in favor of the
Agent, for the ratable benefit of the Banks, pursuant to this Security
Agreement, (ii) financing statements filed with respect to equipment
leases or (iii) as may otherwise be permitted pursuant to the Credit
Agreement.
(b) Perfected First Priority Liens. Appropriate
financing statements having been filed in the jurisdictions listed on
Schedules II-A through G and all other appropriate
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6
action having been duly taken, the Liens granted pursuant to this
Security Agreement constitute perfected Liens on the Collateral in
favor of the Agent, for the ratable benefit of the Banks, which are
prior to all other Liens on such Collateral created by such Grantor
other than Liens permitted under subsection 8.3 of the Credit
Agreement and which are enforceable as such against all creditors of
and purchasers from such Grantor and against any owner or purchaser of
the real property where any of the Equipment or Inventory is located
and any present or future creditor obtaining a Lien on such real
property.
(c) Accounts. The amount represented by such Grantor to
the Banks from time to time as owing by each account debtor or by all
account debtors in respect of the Accounts will at such time be the
correct amount actually owing by such account debtor or debtors
thereunder. No amount in excess of $10,000 payable to such Grantor
under or in connection with any of the Accounts is evidenced by any
Instrument or Chattel Paper which has not been delivered to the Agent.
The place where such Grantor keeps its records concerning the Accounts
is set forth on Schedule III-A through G.
(d) Consents. Except as previously disclosed to the
Banks in writing: (i) no consent of any party (other than such
Grantor) to each Contract is required, or purports to be required, in
connection with the execution, delivery and performance of this
Security Agreement by such Grantor; (ii) each Contract is in full
force and effect and constitutes a valid and legally enforceable
obligation of the parties thereto, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally;
(iii) no consent or authorization of, filing with or other act by or
in respect of any Governmental Authority is required in connection
with the execution, delivery, performance, validity or enforceability
of any Contract by any party thereto other than those which have been
duly obtained, made or performed, are in full force and effect and do
not subject the scope of any Contract to any material adverse
limitation, either specific or general in nature; (iv) neither such
Grantor nor (to the best of such Grantor's knowledge) any other party
to any Contract is in default or is likely to become in default in the
performance or observance of any of the terms thereof; (v) such
Grantor has fully performed all its obligations under each Contract;
(vi) the right, title and interest of such Grantor in, to and under
each Contract is not subject to any defense, offset, counterclaim or
claim which could materially adversely affect the value of such
Contract as Collateral, nor have any of the foregoing been asserted or
alleged against such Grantor as to each Contract; (vii) such Grantor
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7
has delivered to the Agent a complete and correct copy of each
Contract, including all amendments, supplements and other
modifications thereto; and (viii) no amount payable to such Grantor
under or in connection with any Contract is evidenced by any
Instrument or Chattel Paper which has not been delivered to the Agent.
(e) Inventory and Equipment. The Inventory and the
Equipment are kept only at the locations listed on Schedules IV-A
through G.
(f) Chief Executive Office. Such Grantor's chief executive
office and chief place of business is located at the address listed on
Schedules V-A through G.
(g) Farm Products. None of the Collateral constitutes, or is
the Proceeds of, Farm Products.
5. Covenants. Each Grantor covenants and agrees with the
Agent and the Banks that, from and after the date of this Security Agreement
until the Obligations have been paid in full:
(a) Further Documentation; Pledge of Instruments and Chattel
Paper. At any time and from time to time, upon the reasonable request
of any Bank, and at the sole expense of such Grantor, such Grantor
will promptly and duly execute and deliver such further instruments
and documents and take such further action as such Bank may reasonably
request for the purpose of obtaining or preserving the full benefits
of this Security Agreement and of the rights and powers herein
granted, including, without limitation, the filing of any financing or
continuation statements under the Uniform Commercial Code in effect in
any jurisdiction with respect to the Liens created hereby. Such
Grantor also hereby authorizes the Agent to file any such financing or
continuation statement without the signature of such Grantor to the
extent permitted by applicable law. A carbon, photographic or other
reproduction of this Security Agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
(b) Pledge of Instruments and Chattel Paper. If any amount
in excess of $10,000 payable under or in connection with any of the
Collateral shall be or become evidenced by any Instrument or Chattel
Paper, such Instrument or Chattel Paper shall be immediately delivered
to the Agent, duly endorsed by such Grantor in a manner satisfactory
to the Agent, to be held as Collateral pursuant to this Security
Agreement.
(c) Indemnification. Such Grantor agrees to pay, and to save
the Agent and the Banks harmless from, any and all liabilities, costs
and expenses (including, without
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8
limitation, legal fees and expenses) (i) with respect to, or resulting
from, any delay in paying, any and all excise, sales or other taxes
which may be payable or determined to be payable with respect to any
of the Collateral, (ii) with respect to, or resulting from, any delay
in complying with any Requirement of Law applicable to any of the
Collateral or (iii) in connection with any of the transactions
contemplated by this Security Agreement. In any suit, proceeding or
action brought by the Agent or any Bank under any of the Accounts for
any sum owing thereunder, or to enforce any provisions of any such
Account, such Grantor will save, indemnify and keep the Agent and such
Bank harmless from and against all expense, loss or damage suffered by
reason of any defense, setoff, counterclaim, recoupment or reduction
or liability whatsoever of the account debtor or obligor thereunder,
arising out of a breach by such Grantor of any obligation thereunder
or arising out of any other agreement, indebtedness or liability at
any time owing to or in favor of such account debtor or obligor or its
successors from such Grantor.
(d) Maintenance of Records. Such Grantor will keep and
maintain at its own cost and expense satisfactory and complete
records of the Collateral, including, without limitation, a record of
all payments received and all credits granted with respect to the
Accounts. Such Grantor will mark its books and records pertaining to
the Collateral to evidence this Security Agreement and the security
interests granted hereby. For the Agent's and the Banks' further
security, the Agent, for the ratable benefit of the Banks, shall have
a security interest in all of such Grantor's books and records
pertaining to the Collateral, and, subject to subsection 11.10 of the
Credit Agreement, such Grantor shall turn over any such books and
records to the Agent or to its representatives during normal business
hours at the request of the Agent.
(e) Right of Inspection. The Agent and the Banks shall at
all times have full and free access during normal business hours to
all the books, correspondence and records of such Grantor, and the
Agent and the Banks and their respective representatives may examine
the same, take extracts therefrom and make photocopies thereof, and
such Grantor agrees to render to the Agent and the Banks, at such
Grantor's cost and expense, such clerical and other assistance as may
be reasonably requested with regard thereto. The Agent and the Banks
and their respective representatives shall, upon reasonable notice and
at any reasonable time, also have the right to enter into and upon any
premises where any of the Inventory or Equipment is located for the
purpose of inspecting the same, observing its use or otherwise
protecting its interests therein.
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9
(f) Compliance with Laws, etc. Such Grantor will comply in
all material respects with all Requirements of Law applicable to the
Collateral or any part thereof or to the operation of such Grantor's
business; provided that such Grantor may contest any Requirement of
Law in any reasonable manner which shall not, in the sole opinion of
the Agent, adversely affect the Agent's or the Banks' rights or the
priority of their Liens on the Collateral.
(g) Compliance with Terms of Contracts, etc. Such Grantor
will perform and comply in all material respects with all its
obligations under the Contracts and all its other Contractual
Obligations relating to the Collateral.
(h) Payment of Obligations. Such Grantor will pay promptly
when due all taxes, assessments and governmental charges or levies
imposed upon the Collateral or in respect of its income or profits
therefrom, as well as all claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or with
respect to such Collateral, except that no such charge need be paid if
(i) the validity thereof is being contested in good faith by
appropriate proceedings, and such charge is adequately reserved
against on such Grantor's books in accordance with GAAP, (ii) such
proceedings do not involve any danger of the sale, forfeiture or loss
of any of such Collateral or any interest therein.
(i) Limitations on Liens on Collateral. Such Grantor will
not create, incur or permit to exist, will defend the Collateral
against, and will take such other action as is necessary to remove,
any Lien or claim on or to such Collateral, other than the Liens
created hereby or Liens permitted under subsection 8.3 of the Credit
Agreement, and will defend the right, title and interest of the Agent
and the Banks in and to any of such Collateral against the claims and
demands of all Persons whomsoever.
(j) Limitations on Dispositions of Collateral. Such Grantor
will not sell, transfer, lease or otherwise dispose of any of the
Collateral, or attempt, offer or contract to do so except for
dispositions of assets permitted by subsection 8.6 of the Credit
Agreement.
(k) Limitations on Modifications, Waivers, Extensions of the
Contracts and Agreements Giving Rise to Accounts. Such Grantor will
not (i) amend, modify, terminate or waive any provision of any
Contract or any agreement giving rise to any of the Accounts in any
manner which could reasonably be expected to materially adversely
affect the value of any such Contract or Account as Collateral, (ii)
fail to exercise promptly and diligently each and every material right
which it may have under each agreement giving rise to
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10
the Accounts (other than any right of termination) or (iii) fail to
deliver to the Agent a copy of each material demand, notice or
document received by it relating in any way to any Contract or any
agreement giving rise to an Account.
(l) Limitations on Discounts, Compromises, Extensions of
Accounts. Other than in the ordinary course of business as generally
conducted by the Grantor over a period of time, such Grantor will not
grant any extension of the time of payment of any of the Accounts,
compromise, compound or settle the same for less than the full amount
thereof, release, wholly or partially, any Person liable for the
payment thereof, or allow any credit or discount whatsoever thereon.
(m) Maintenance of Equipment. Such Grantor will maintain
each material item of the Equipment useful and necessary in its
business in good operating condition, ordinary wear and tear and
immaterial impairments of value and damage by the elements excepted,
and will provide all maintenance, service and repairs necessary for
such purpose.
(n) Maintenance of Insurance. Such Grantor will maintain,
with financially sound and reputable companies, insurance policies (i)
insuring the Inventory and Equipment against loss by fire, explosion,
theft and such other casualties as may be reasonably satisfactory to
the Agent and (ii) insuring such Grantor, the Agent and the Banks
against liability for personal injury and property damage relating to
the Inventory and Equipment, such policies to be in the form and
amounts and having such coverage as may be reasonably satisfactory to
the Banks with losses payable to such Grantor and the Agent as their
respective interests may appear. All such insurance shall (i) contain
a breach of warranty clause in favor of the Agent, (ii) provide that
no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after
receipt by the Agent and the Banks of written notice thereof, (iii)
name the Agent and the Banks as insured parties and (iv) be reasonably
satisfactory in all other respects to the Agent. Such Grantor shall
deliver to the Agent and the Banks a report of a reputable insurance
broker with respect to such insurance as the Agent may from time to
time reasonably request.
(o) Further Identification of Collateral. Upon the
reasonable request of the Agent, such Grantor will furnish to the
Agent and the Banks from time to time statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral, all in reasonable detail.
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11
(p) Notices. Such Grantor will advise the Agent and the
Banks promptly, in reasonable detail, at their respective addresses
set forth in the Credit Agreement, (i) of any Lien (other than Liens
created hereby or permitted under the Credit Agreement) on, or claim
asserted against, any of the Collateral and (ii) of the occurrence of
any other event which could reasonably be expected to have a material
adverse effect on the aggregate value of the Collateral or on the
Liens created hereunder.
(q) Changes in Locations, Name, etc. Such Grantor will not
(i) change the location of its chief executive office/chief place of
business from that specified in paragraph 4(f) or remove its books and
records from the location specified in paragraph 4(c), (ii) permit any
of the Inventory or Equipment to be kept at a location other than
those listed on Schedules IV-A through G or (iii) change its name,
identity or corporate structure to such an extent that any financing
statement filed by the Agent in connection with this Security
Agreement could become seriously misleading.
6. Agent's Appointment as Attorney-in-Fact. (a) Powers.
Each Grantor hereby irrevocably constitutes and appoints the Agent and any
officer or agent thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Grantor and in the name of such Grantor or in its own name,
from time to time in the Agent's discretion, for the purpose of carrying out
the terms of this Security Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement, and, without
limiting the generality of the foregoing, each Grantor hereby gives the Agent
the power and right, on behalf of such Grantor, without notice to or assent by
such Grantor, to do the following:
(i) upon the occurrence and during the continuance of
any Event of Default, in the name of such Grantor or its own name, or
otherwise, to take possession of and indorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Accounts, Instruments, General Intangibles or any
Contract or with respect to any other of the Collateral and to file
any claim or to take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Agent for the
purpose of collecting any and all such moneys due under any such
Account, Instrument or General Intangible or Contract or with respect
to any other such Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or
placed on or threatened against the Collateral, to effect
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12
any repairs or any insurance called for by the terms of this Security
Agreement and to pay all or any part of the premiums therefor and the
costs thereof; and
(iii) upon the occurrence and during the continuance of
any Event of Default, (A) to direct any party liable for any payment
under any of the Collateral to make payment of any and all moneys due
or to become due thereunder directly to the Agent or as the Agent
shall direct; (B) to ask or demand for, collect, receive payment of
and receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any of the
Collateral; (C) to sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and prosecute
any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any thereof and to
enforce any other right in respect of any such Collateral; (E) to
defend any suit, action or proceeding brought against such Grantor
with respect to any Collateral; (F) to settle, compromise or adjust
any suit, action or proceeding described in clause (E) above and, in
connection therewith, to give such discharges or releases as the Agent
may deem appropriate; and (G) generally, to sell, transfer, pledge and
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though the Agent were the
absolute owner thereof for all purposes, and to do, at the Agent's
option and such Grantor's expense, at any time, or from time to time,
all acts and things which the Agent deems necessary to protect,
preserve or realize upon the Collateral and the Agent's and the Banks'
Liens thereon and to effect the intent of this Security Agreement, all
as fully and effectively as the Grantor might do.
Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) Other Powers. Each Grantor also authorizes the Agent and
the Banks, at any time and from time to time, to execute, in connection with
the sale provided for in Section 9 hereof, any endorsements, assignments or
other instruments of conveyance or transfer with respect to the Collateral.
(c) No Duty on Agent or Banks' Part. The powers conferred on
the Agent and the Banks hereunder are solely to protect the Agent's and the
Banks' interests in the Collateral and shall not impose any duty upon the Agent
or any Bank to exercise any such powers. The Agent and the Banks shall be
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13
accountable only for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure
to act hereunder, except for their own gross negligence or willful misconduct.
7. Performance by Agent of Grantor's Obligations. If any
Grantor fails to perform or comply with any of its agreements contained herein
and the Agent, as provided for by the terms of this Security Agreement, shall
itself perform or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of the Agent incurred in connection with such
performance or compliance, together with interest thereon at a rate per annum
2% above the ABR, shall be payable by such Grantor to the Agent on demand and
shall constitute Obligations secured hereby.
8. Proceeds. If an Event of Default shall occur and be
continuing:
(a) all Proceeds received by any Grantor consisting of cash,
checks and other near-cash items shall be held by such Grantor in
trust for the Agent and the Banks, segregated from other funds of the
Grantor, and shall, forthwith upon receipt by such Grantor, be turned
over to the Agent in the exact form received by such Grantor (duly
indorsed by such Grantor to the Agent, if required) and
(b) any and all such Proceeds received by the Agent (whether
from any Grantor or otherwise) may, in the sole discretion of the
Agent, be held by the Agent for the ratable benefit of the Banks as
collateral security for, and/or then or at any time thereafter may be
applied by the Agent against, the Obligations (whether matured or
unmatured), such application to be in such order as the Agent shall
elect. Any balance of such Proceeds remaining after the Obligations
shall have been paid in full and the Commitments shall have been
terminated shall be paid over to the Grantors or to whomsoever may be
lawfully entitled to receive the same.
9. Remedies. If an Event of Default shall occur and be
continuing, the Agent, on behalf of the Banks, may exercise, in addition to all
other rights and remedies granted to them in this Security Agreement and in any
other instrument or agreement securing, evidencing or relating to the
Obligations or any Obligations, all rights and remedies of a secured party
under the Code. Without limiting the generality of the foregoing, the Agent,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Grantors or any other Person (all and each of which
demands,
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14
defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon any
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
an option or options to purchase, or otherwise dispose of and deliver any
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange or broker's
board or office of the Agent or any Bank or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Agent and each Bank shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or
sales, to purchase the whole or any part of any Collateral so sold, free of any
right or equity of redemption in the Grantors, which right or equity is hereby
waived or released. Each Grantor further agrees, at the Agent's request, to
assemble the Collateral and make it available to the Agent at places which the
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
The Agent shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred therein or incidental to the care or
safekeeping of any of such Collateral or in any way relating to such Collateral
or the rights of the Agent and the Banks hereunder, including, without
limitation, attorneys' fees and disbursements, to the payment in whole or in
part of the Obligations, in such order as the Agent may elect, and only after
such application and after the payment by the Agent of any other amount
required by any provision of law, including, without limitation, Section
9-504(1)(c) of the Code, need the Agent account for the surplus, if any, to the
Grantors. To the extent permitted by applicable law, the Grantor waives all
claims, damages and demands it may acquire against the Agent or any Bank
arising out of the exercise by them of any rights hereunder. If any notice of
a proposed sale or other disposition of Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least ten days
before such sale or other disposition. Each Grantor shall remain liable for
any deficiency if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the Obligations and the fees and
disbursements of any attorneys employed by the Agent or any Bank to collect
such deficiency.
10. Limitation on Duties Regarding Preservation of
Collateral. The Agent's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Agent deals with similar property for its own account. Neither the Agent, any
Bank, nor any of their respective directors, officers, employees or agents
shall be liable for failure to demand, collect or realize upon all or any part
of the Collateral or for any delay
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15
in doing so or shall be under any obligation to sell or otherwise dispose of
any Collateral upon the request of any Grantor or otherwise.
11. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
12. Severability. Any provision of this Security Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
13. Section Headings. The Section headings used in this
Security Agreement are for convenience of reference only and are not to affect
the construction hereof or be taken into consideration in the interpretation
hereof.
14. No Waiver; Cumulative Remedies. Neither the Agent nor
any Bank shall by any act (except by a written instrument pursuant to Section
15 hereof), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any Default or Event of
Default or in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Agent or any Bank,
any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Agent or any Bank of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Agent or such Bank would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or
remedies provided by law.
15. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Security Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by each Grantor and the Required Banks; provided that any provision of
this Security Agreement may be waived by the Agent in a written letter or
agreement executed by the Agent or by telecopy from the Agent. This Security
Agreement shall be binding upon the successors and assigns of each Grantor and
shall inure to the benefit of the Agent and the Banks and their respective
successors and assigns. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND
<PAGE> 181
16
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
16. Notices. All notices, requests and demands to or upon
the Agent, any Bank or any Grantor to be effective shall be in writing (or by
telegraph or telecopy confirmed in writing) and shall be deemed to have been
duly given or made (a) when delivered by hand or (b) if given by mail, when
deposited in the mails by certified mail, return receipt requested or (c) if by
telegraph or telecopy, when sent and receipt has been confirmed, addressed at
its address or transmission number for notices provided in subsection 11.2 of
the Credit Agreement or Section 12 of the Subsidiary and Affiliate Guarantee.
The Agent, each Bank and the Grantor may change its address and transmission
numbers for notices by notice in the manner provided in this Section.
17. Authority of Agent. Each Grantor acknowledges that the
rights and responsibilities of the Agent under this Security Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Security Agreement shall, as
between the Agent and the Banks, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Agent and each Grantor, the Agent shall be
conclusively presumed to be acting as agent for the Banks with full and valid
authority so to act or refrain from acting, and each Grantor shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
18. Release of Liens. In the event that any Grantor conveys,
sells, leases, assigns, transfers or otherwise disposes of any portion of the
Collateral in accordance with subsection 8.6 of the Credit Agreement or grants
a Lien with respect to any of the Collateral which Lien is permitted pursuant
to subsection 8.3(m) of the Credit Agreement, and so long as no Default or
Event of Default shall have occurred and be continuing, the Agent shall
promptly take such action as may be reasonably requested by such Grantor to
release, to the extent necessary, any Liens created by this Security Agreement
in respect of such Collateral.
<PAGE> 182
17
19. Counterparts. This Security Agreement may be executed by
one or more of the parties to this Security Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the counterparts of this
Security Agreement signed by all the parties hereto shall be lodged with the
Agent.
IN WITNESS WHEREOF, each of the undersigned has caused this
Security Agreement to be duly executed and delivered as of the date first above
written.
LEAR SEATING CORPORATION
By:______________________________
Title:
LS ACQUISITION CORP. NO. 14
By:______________________________
Title:
LEAR SEATING HOLDINGS CORP. NO. 50
By:______________________________
Title:
PROGRESS PATTERN CORP.
By:______________________________
Title:
LEAR PLASTICS CORP.
By:______________________________
Title:
<PAGE> 183
18
LS ACQUISITION CORPORATION NO. 24
By:______________________________
Title:
FAIR HAVEN INDUSTRIES, INC.
By:______________________________
Title:
CHEMICAL BANK, as Agent
By:______________________________
Title:
<PAGE> 184
SCHEDULE I-A
LEAR SEATING CORPORATION
Contracts
None.
<PAGE> 185
SCHEDULE I-B
LS ACQUISITION CORP. NO. 14
Contracts
None.
<PAGE> 186
SCHEDULE I-C
LEAR SEATING HOLDINGS CORP. NO. 50
Contracts
None.
<PAGE> 187
SCHEDULE I-D
PROGRESS PATTERN CORP.
Contracts
None.
<PAGE> 188
SCHEDULE I-E
LEAR PLASTICS CORP.
Contracts
None.
<PAGE> 189
SCHEDULE I-F
LS ACQUISITION CORPORATION. NO. 24
Contracts
None.
<PAGE> 190
SCHEDULE I-G
FAIR HAVEN INDUSTRIES, INC.
Contracts
None.
<PAGE> 191
SCHEDULE II-A
LEAR SEATING CORPORATION
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Kentucky 1. Secretary of State
2. Kentucky 2. Jefferson County
3. Michigan 3. Secretary of State
4. Michigan 4. St. Joseph County
5. Michigan 5. Genesse County
6. Michigan 6. Oakland County
7. Michigan 7. Wayne County
8. Tennessee 8. Secretary of State
9. Tennessee 9. Hamblen County
10. Ohio 10. Secretary of State
11. Ohio 11. Lorain County
12. Texas 12. Secretary of State
13. Texas 13. El Paso County
14. Wisconsin 14. Secretary of State
15. Wisconsin 15. Rock County
16. Indiana 16. Secretary of State
17. Indiana 17. Lake County
18. South Carolina 18. Secretary of State
19. South Carolina 19. Spartanburg County
20. Georgia 20. Clayton County
21. Missouri 21. Secretary of State
22. Missouri 22. St. Louis County
</TABLE>
<PAGE> 192
SCHEDULE II-B
LS ACQUISITION CORP. NO. 14
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. Oakland County
</TABLE>
<PAGE> 193
SCHEDULE II-C
LEAR SEATING HOLDINGS CORP. NO. 50
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. Oakland County
</TABLE>
<PAGE> 194
SCHEDULE II-D
PROGRESS PATTERN CORP.
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. Oakland County
</TABLE>
<PAGE> 195
SCHEDULE II-E
LEAR PLASTICS CORP.
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. St. Joseph County
</TABLE>
<PAGE> 196
SCHEDULE II-F
LS ACQUISITION CORPORATION. NO. 24
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. Oakland County
</TABLE>
<PAGE> 197
SCHEDULE II-G
FAIR HAVEN INDUSTRIES, INC.
Financing Statements Filed
<TABLE>
<CAPTION>
State Location
----- --------
<S> <C> <C> <C>
1. Michigan 1. Secretary of State
2. Michigan 2. St. Clair County
</TABLE>
<PAGE> 198
SCHEDULE III-A
LEAR SEATING CORPORATION
Location of Records Concerning Accounts
1. 21557 Telegraph Road
Southfield, Michigan 48034
2. 4600 Nancy Avenue
Detroit, Michigan 48212
3. 36300 Eureka Road
Romulus, Michigan 48174
4. 36310 Eureka Road
Romulus, Michigan 48174
5. 340 Fenway Drive
Fenton, Michigan 48430
6. 236 West Clark Street
Mendon, Michigan 49072
7. 325 Industrial Avenue
Morristown, Tennessee 37814
8. 5521 Jeffery Lane
Morristown, Tennessee 37814
9. 7425 Industrial Parkway
Building One
Lorain, Ohio 44053
10. 12600 Westport Road
Building One
Louisville, Kentucky 40245
11. 3708 Enterprise Drive
Janesville, Wisconsin 53545
12. 2060 Boorheit Avenue
Grand Rapids, Michigan 49504
13. 45 Corporate Woods Drive
Bridgeton, Missouri 63044
14. 1401 165th Street
Hammond, Indiana 46320
<PAGE> 199
2
15. 200 Russell Street
Hammond, Indiana 46320
(temporary location)
16. 4100 Henry Ford II Avenue, S.W.
Atlanta, Georgia 30321
(temporary location)
17. 4361 International Boulevard
Hapeville, Georgia 30354
18. 1825 East Main Street
Duncan, South Carolina 29334
<PAGE> 200
SCHEDULE III-B
LS ACQUISITION CORP. NO. 14
Location of Records Concerning Accounts
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 201
SCHEDULE III-C
LEAR SEATING HOLDINGS CORP. NO. 50
Location of Records Concerning Accounts
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 202
SCHEDULE III-D
PROGRESS PATTERN CORP.
Location of Records Concerning Accounts
21555 Telegraph Road
Southfield, Michigan 48034
<PAGE> 203
SCHEDULE III-E
LEAR PLASTICS CORP.
Location of Records Concerning Accounts
236 West Clark Street
Mendon, Michigan 49072
<PAGE> 204
SCHEDULE III-F
LS ACQUISITION CORPORATION. NO. 24
Location of Records Concerning Accounts
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 205
SCHEDULE III-G
FAIR HAVEN INDUSTRIES, INC.
Location of Records Concerning Accounts
7455 Mayer Road
Fair Haven, Michigan 48023
<PAGE> 206
SCHEDULE IV-A
LEAR SEATING CORPORATION
Location of Inventory and Equipment
1. 21557 Telegraph Road
Southfield, Michigan 48034
2. 4600 Nancy Avenue
Detroit, Michigan 48212
3. 36300 Eureka Road
Romulus, Michigan 48174
4. 36310 Eureka Road
Romulus, Michigan 48174
5. 340 Fenway Drive
Fenton, Michigan 48430
6. 236 West Clark Street
Mendon, Michigan 49072
7. 325 Industrial Avenue
Morristown, Tennessee 37814
8. 5521 Jeffery Lane
Morristown, Tennessee 37814
9. 7470 Industrial Parkway
Lorain, Ohio 44053
10. 12600 Westport Road
Building One
Louisville, Kentucky 40245
11. 3708 Enterprise Drive
Janesville, Wisconsin 53545
12. 2060 Boorheit Avenue
Grand Rapids, Michigan
13. 15 Leigh Fisher
Suite 400
El Paso, Texas 79006
14. 1401 165th Street
Hammond, Indiana 46320
<PAGE> 207
2
15. 200 Russell Street
Hammond, Indiana 46320
(temporary location)
16. 4361 International Boulevard
Hapeville, Georgia 30354
(temporary location)
17. 4100 Henry Ford II Avenue, S.W.
Atlanta, Georgia 30321
18. 1725 East Main Street
Duncan, South Carolina 29334
19. 45 Corporate Woods Drive
Bridgeton, Missouri 63044
<PAGE> 208
SCHEDULE IV-B
LS ACQUISITION CORP. NO. 14
Locations of Inventory and Equipment
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 209
SCHEDULE IV-C
LEAR SEATING HOLDINGS CORP. NO. 50
Locations of Inventory and Equipment
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 210
SCHEDULE IV-D
PROGRESS PATTERN CORP.
Locations of Inventory and Equipment
21555 Telegraph Road
Southfield, Michigan 48034
<PAGE> 211
SCHEDULE IV-E
LEAR PLASTICS CORP.
Locations of Inventory and Equipment
236 West Clark Street
Mendon, Michigan 49072
<PAGE> 212
SCHEDULE IV-F
LS ACQUISITION CORPORATION. NO. 24
Locations of Inventory and Equipment
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 213
SCHEDULE IV-G
FAIR HAVEN INDUSTRIES, INC.
Locations of Inventory and Equipment
7445 Mayer Road
Fair Haven, Michigan 48023
<PAGE> 214
SCHEDULE V-A
LEAR SEATING CORPORATION
Chief Executive Office
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 215
SCHEDULE V-B
LS ACQUISITION CORP. NO. 14
Chief Executive Office
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 216
SCHEDULE V-C
LEAR SEATING HOLDINGS CORP. NO. 50
Chief Executive Office
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 217
SCHEDULE V-D
PROGRESS PATTERN CORP.
Chief Executive Office
21555 Telegraph Road
Southfield, Michigan 48034
<PAGE> 218
SCHEDULE V-E
LEAR PLASTICS CORP.
Chief Executive Office
236 West Clark Street
Mendon, Michigan 49072
<PAGE> 219
SCHEDULE V-F
LS ACQUISITION CORPORATION. NO. 24
Chief Executive Office
21557 Telegraph Road
Southfield, Michigan 48034
<PAGE> 220
SCHEDULE V-G
FAIR HAVEN INDUSTRIES, INC.
Chief Executive Office
7445 Mayer Road
Fair Haven, Michigan 48023
<PAGE> 221
EXHIBIT G
FORM OF
BORROWING CERTIFICATE
Pursuant to subsection 5.2(f) of the Second Amended and
Restated Credit Agreement, dated as of November 29, 1994, among Lear Seating
Corporation (the "Borrower"), the several financial institutions parties
thereto, Chemical Bank, as Agent, and Bankers Trust Company, The Bank of Nova
Scotia, Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing Agents
(as amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the "Credit Agreement"), each of the undersigned hereby
certifies as follows:
1. The representations and warranties made by the
Borrower and each of its Subsidiaries in the Loan Documents are true
and correct in all material respects on and as of the date hereof with
the same effect as if made on the date hereof.
2. No Default or Event of Default has occurred and is
continuing on the date hereof or after giving effect to the Loans
requested to be made and the Letters of Credit requested to be issued
on the date hereof.
3. Since the Closing Date, there has been no material
adverse change in the business, operations, assets, financial or other
condition of the Borrower and its Subsidiaries taken as a whole.
Capitalized terms used herein and not otherwise defined shall
have the meanings given to them in the Credit Agreement.
LEAR SEATING CORPORATION
By:________________________
Title:
Date: _______________, 199_
<PAGE> 222
EXHIBIT H
FORM OF
SWING LINE LOAN PARTICIPATION CERTIFICATE
______________, 199_
[Name of Bank]
[Address]
Dear Sirs:
Pursuant to subsection 2.4(d) of the Second Amended and
Restated Credit Agreement, dated November 29, 1994 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used and not otherwise defined herein shall have the meanings
given to them in the Credit Agreement) among LEAR SEATING CORPORATION, the
several financial institutions parties thereto, CHEMICAL BANK, as Agent, and
BANKERS TRUST COMPANY, THE BANK OF NOVA SCOTIA, CITICORP USA, INC. and LEHMAN
COMMERCIAL PAPER INC., as Managing Agents, the undersigned hereby acknowledges
receipt from you on the date hereof of _______ DOLLARS ($_______) as payment
for a participating interest in the following Swing Line Loan:
Date of Swing Line Loan: _______________
Principal Amount of Swing Line Loan: _______________
Very truly yours,
CHEMICAL BANK
By:___________________________
Title:
<PAGE> 223
EXHIBIT I
FORM OF
COMMITMENT TRANSFER SUPPLEMENT
COMMITMENT TRANSFER SUPPLEMENT, dated as of the date set forth
in Item 1 of Schedule I hereto, among the Transferor Bank set forth in Item 2
of Schedule I hereto (the "Transferor Bank"), each Purchasing Bank set forth in
Item 3 of Schedule I hereto (individually, a "Purchasing Bank"; collectively,
the "Purchasing Banks"), and CHEMICAL BANK, as administrative agent for the
Banks under the Credit Agreement described below (in such capacity, the
"Agent").
W I T N E S S E T H :
WHEREAS, this Commitment Transfer Supplement is being executed
and delivered in accordance with subsection 11.6(c) of the Second Amended and
Restated Credit Agreement, dated as of November 29, 1994, among Lear Seating
Corporation (the "Borrower"), the Transferor Bank and the other Banks parties
thereto, the Agent, and Bankers Trust Company, The Bank of Nova Scotia,
Citicorp USA, Inc. and Lehman Commercial Paper Inc., as Managing Agents (as
amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the "Credit Agreement"; capitalized terms used and not
otherwise defined herein shall have the meanings given to them in the Credit
Agreement);
WHEREAS, each Purchasing Bank (if it is not already a Bank
party to the Credit Agreement) wishes to become a Bank party to the Agreement;
and
WHEREAS, the Transferor Bank is selling and assigning to each
Purchasing Bank, rights, obligations and commitments under the Credit
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Upon receipt by the Agent of five counterparts of
this Commitment Transfer Supplement, to each of which is attached a fully
completed Schedule I and Schedule II, and each of which has been executed by
the Transferor Bank, each Purchasing Bank (and any other person required by the
Credit Agreement to execute this Commitment Transfer Supplement), the Agent
will transmit to the Borrower, the Transferor Bank and each Purchasing Bank a
Transfer Effective Notice, substantially in the form of Schedule III to this
Commitment Transfer Supplement (a "Transfer Effective Notice"). Such Transfer
Effective Notice shall set forth, inter alia, the date on which the transfer
effected by this Commitment
<PAGE> 224
2
Transfer Supplement shall become effective (the "Transfer Effective Date"),
which date shall be the fifth Business Day following the date of such Transfer
Effective Notice. From and after the Transfer Effective Date each Purchasing
Bank shall be a Bank party to the Credit Agreement for all purposes thereof.
2. At or before 12:00 Noon, local time of the Transferor
Bank, on the Transfer Effective Date, each Purchasing Bank shall pay to the
Transferor Bank, in immediately available funds, an amount equal to the
purchase price, as agreed between the Transferor Bank and such Purchasing Bank
(the "Purchase Price"), of the portion being purchased by such Purchasing Bank
(such Purchasing Bank's "Purchased Percentage") of the outstanding Loans and
other amounts owing to the Transferor Bank under the Credit Agreement, the
Notes and the Letters of Credit. Effective upon receipt by the Transferor Bank
of the Purchase Price from a Purchasing Bank, the Transferor Bank hereby
irrevocably sells, assigns and transfers to such Purchasing Bank, without
recourse, representation or warranty, and such Purchasing Bank hereby
irrevocably purchases, takes and assumes from the Transferor Bank, such
Purchasing Bank's Purchased Percentage of the Commitments and the presently
outstanding Loans and other amounts owing to the Transferor Bank under the
Credit Agreement, the Notes and the Letters of Credit together with all
instruments, documents and collateral security pertaining thereto.
3. The Transferor Bank has made arrangements with each
Purchasing Bank with respect to (a) the portion, if any, to be paid, and the
date or dates for payment, by the Transferor Bank to such Purchasing Bank of
any fees heretofore received by the Transferor Bank pursuant to the Credit
Agreement prior to the Transfer Effective Date and (b) the portion, if any, to
be paid, and the date or dates for payment, by such Purchasing Bank to the
Transferor Bank of fees or interest received by such Purchasing Bank pursuant
to the Credit Agreement from and after the Transfer Effective Date.
4. (a) All principal payments that would otherwise be
payable from and after the Transfer Effective Date to or for the account of the
Transferor Bank pursuant to the Credit Agreement, the Notes and the Letters of
Credit shall, instead, be payable to or for the account of the Transferor Bank
and the Purchasing Banks, as the case may be, in accordance with their
respective interests as reflected in this Commitment Transfer Supplement.
(b) All interest, fees and other amounts that would otherwise
accrue for the account of the Transferor Bank from and after the Transfer
Effective Date pursuant to the Credit Agreement, the Notes and the Letters of
Credit shall, instead, accrue for the account of, and be payable to, the
Transferor Bank and the Purchasing Banks, as the case may be, in accordance
with their respective interests as reflected in this Commitment
<PAGE> 225
3
Transfer Supplement. In the event that any amount of interest, fees or other
amounts accruing prior to the Transfer Effective Date was included in the
Purchase Price paid by any Purchasing Bank, the Transferor Bank and such
Purchasing Bank will make appropriate arrangements for payment by the
Transferor Bank to such Purchasing Bank of such amount upon receipt thereof
from the Borrower.
5. On or prior to the Transfer Effective Date, the
Transferor Bank will deliver to the Agent its Revolving Credit Note. On or
prior to the Transfer Effective Date, the Borrower will deliver to the Agent
Revolving Credit Notes for each Purchasing Bank and the Transferor Bank, in
each case in principal amounts reflecting, in accordance with the Credit
Agreement, their respective Commitments (as adjusted pursuant to this
Commitment Transfer Supplement). As provided in subsection 11.6(c) of the
Credit Agreement, each such new Revolving Credit Note shall be dated the
Closing Date. Promptly after the Transfer Effective Date, the Agent will send
to each of the Transferor Bank and the Purchasing Banks its new Revolving
Credit Note and will send to the Borrower the superseded Revolving Credit Note
of the Transferor Bank, marked "Cancelled".
6. Concurrently with the execution and delivery hereof,
the Transferor Bank will provide to each Purchasing Bank (if it is not already
a Bank party to the Credit Agreement) copies of all documents delivered to the
Transferor Bank on the Closing Date in satisfaction of the conditions precedent
set forth in the Credit Agreement.
7. Each of the parties to this Commitment Transfer
Supplement agrees that at any time and from time to time upon the written
request of any other party, it will execute and deliver such further documents
and do such further acts and things as such other party may reasonably request
in order to effect the purposes of this Commitment Transfer Supplement.
8. By executing and delivering this Commitment Transfer
Supplement, the Transferor Bank and each Purchasing Bank confirm to and agree
with each other and the Agent and the Banks as follows: (a) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned hereby free and clear of any adverse claim, the
Transferor Bank makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Notes, the Letters of Credit or any other Loan Document or other
instrument or document furnished pursuant thereto; (b) the Transferor Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement, the Notes,
the
<PAGE> 226
4
Letters of Credit or any other Loan Document or other instrument or document
furnished pursuant thereto; (c) each Purchasing Bank confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in subsection 6.1, the financial statements delivered
pursuant to subsection 7.1, if any, and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Commitment Transfer Supplement; (d) each Purchasing Bank will,
independently and without reliance upon the Agent, the Transferor Bank or any
other Bank 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 the Credit Agreement; (e) each Purchasing Bank appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under the Credit Agreement as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto, all in accordance with Section 10 of the Credit Agreement; and (f)
each Purchasing Bank agrees that it will perform in accordance with their terms
all of the obligations which by the terms of the Credit Agreement are required
to be performed by it as a Bank.
9. Each party hereto represents and warrants to and
agrees with the Agent that it is aware of and will comply with the provisions
of subsection 11.6(g) of the Credit Agreement.
10. Schedule II hereto sets forth the revised Commitments
and Commitment Percentages of the Transferor Bank and each Purchasing Bank as
well as administrative information with respect to each Purchasing Bank.
11. THIS COMMITMENT TRANSFER SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Transfer Supplement to be executed by their respective duly
authorized officers on Schedule I hereto as of the date set forth in Item 1 of
Schedule I hereto.
<PAGE> 227
SCHEDULE I
TO
COMMITMENT
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR COMMITMENT
TRANSFER SUPPLEMENT
Re: Second Amended and Restated Credit Agreement, dated
November __, 1994 with Lear
Seating Corporation as Borrower.
Item 1 (Date of Commitment [Insert date of Commitment
Transfer Supplement): Transfer Supplement]
Item 2 (Transferor Bank): [Insert name of Transferor Bank]
Item 3 (Purchasing Bank[s]): [Insert name[s] of Purchasing
Bank[s]]
Item 4 (Signatures of Parties
to Commitment Transfer
Supplement): _______________________, as
Transferor Bank
By:_________________________
Title:
_______________________, as
Purchasing Bank
By:_________________________
Title:
_______________________, as
Purchasing Bank
By:_________________________
Title:
<PAGE> 228
2
CONSENTED TO AND ACKNOWLEDGED:
LEAR SEATING CORPORATION
By:_________________________
Title:
CHEMICAL BANK, as Agent
By:_________________________
Title:
[Consents required only when
Purchasing Bank is not already
a Bank or Affiliate thereof]
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Agent
By:_________________________
Title:
<PAGE> 229
SCHEDULE II
TO COMMITMENT
TRANSFER
SUPPLEMENT
LIST OF LENDING OFFICES, ADDRESSES
FOR NOTICES AND COMMITMENT AMOUNTS
[Name of Transferor
Bank] Revised Commitment Amount: $________
-------------------------
Revised Commitment Percentage: ________
-----------------------------
[Name of Purchasing
Bank] New Commitment Amount: $________
---------------------
New Commitment Percentage: ________
-------------------------
Address for Notices:
-------------------
[Address]
Attention:
Telephone:
Telecopier:
<PAGE> 230
SCHEDULE III
TO COMMITMENT
TRANSFER
SUPPLEMENT
Form of
Transfer Effective Notice
To: Lear Seating Corporation
[Insert names of Transferor Bank and
each Purchasing Bank]
The undersigned, as Agent [delegate of the Agent performing
administrative functions of the Agent] under the Second Amended and Restated
Credit Agreement, dated as of November 29, 1994, among Lear Seating
Corporation, the Banks parties thereto, Chemical Bank, as Agent, and Bankers
Trust Company, The Bank of Nova Scotia, Citicorp USA, Inc. and Lehman
Commercial Paper Inc., as Managing Agents, acknowledges receipt of five
executed counterparts of a completed Commitment Transfer Supplement, as
described in Schedule I hereto. [Note: attach copy of Schedule I from
Commitment Transfer Supplement.] Terms defined in such Commitment Transfer
Supplement are used herein as therein defined.
1. Pursuant to such Commitment Transfer Supplement, you
are advised that the Transfer Effective Date will be _________. [Insert fifth
Business Day following date of Transfer Effective Notice.]
2. Pursuant to such Commitment Transfer Supplement, the
Transferor Bank is required to deliver to the Agent on or before the Transfer
Effective Date its Note.
3. Pursuant to such Commitment Transfer Supplement, the
Borrower is required to deliver to the Agent on or before the Transfer
Effective Date the following Revolving Credit Notes, each dated November ,
1994:
[Describe each new Revolving Credit Note for Transferor Bank
and each Purchasing Bank as to principal amount and payee.]
4. Pursuant to such Commitment Transfer Supplement, each
Purchasing Bank is required to pay its Purchase Price to the Transferor Bank at
or before 12:00 Noon on the Transfer Effective Date in immediately available
funds.
<PAGE> 231
2
5. Pursuant to such Commitment Transfer Supplement,
promptly after the Transfer Effective Date, the undersigned will send to the
Borrower the superseded Revolving Credit Note of the Transferor Bank, marked
"Cancelled".
Very truly yours,
CHEMICAL BANK
By:_________________________
Title:
<PAGE> 1
EXHIBIT 10.26
---------------------------------------------------------------------
---------------------------------------------------------------------
DEVELOPMENT AUTHORITY OF CLAYTON COUNTY
AND
LEAR SEATING CORPORATION
-------------------------------------------------
LOAN AGREEMENT
-------------------------------------------------
Dated as of September 1, 1994
---------------------------------------------------------------------
---------------------------------------------------------------------
The interest of the Development Authority of Clayton County (the
"Issuer") in this Loan Agreement has been assigned (except for amounts payable
under Sections 4.2(b), 7.2 and 8.4 hereof) pursuant to the Indenture, of Trust
dated as of the date hereof from the Issuer to NBD Bank, N.A., as trustee (the
"Trustee"), and is subject to the security interest of the Trustee thereunder.
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.2 Effect of Headings and Table of Contents . . . . . . . . . . . . 7
SECTION 1.3 Date of Loan Agreement . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.4 Severability Clause . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1.7 References to Letter of Credit and
Related Terms . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 2
Representations, Covenants and Warranties
SECTION 2.1 Representations, Covenants and Warranties
of the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.2 Representations, Covenants and Warranties
of the Company . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.3 Tax-Exempt Status of the Bonds . . . . . . . . . . . . . . . . . 9
SECTION 2.4 Notice of Determination of Taxability . . . . . . . . . . . . . . 9
ARTICLE 3
Acquisition and Construction
of the Project;
Issuance of the Bonds
SECTION 3.1 Agreement to Acquire, Construct,
Improve and Equip the Project . . . . . . . . . . . . . . . . . . 10
SECTION 3.2 Agreement to Issue the Bonds;
Application of Bond Proceeds . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Disbursements from the Construction Fund . . . . . . . . . . . . 10
SECTION 3.4 Furnishing Documents to the Trustee . . . . . . . . . . . . . . . 10
SECTION 3.5 Establishment of Completion Date . . . . . . . . . . . . . . . . 11
SECTION 3.6 Company Required to Pay in Event
Construction Fund Insufficient . . . . . . . . . . . . . . . . . 12
SECTION 3.7 Special Arbitrage Certification . . . . . . . . . . . . . . . . . 12
ARTICLE 4
Loan Provisions
SECTION 4.1 Loan of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.2 Basic Payments . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.3 Additional Payments . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.4 Overdue Payments . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.5 Unconditional Obligation of Company . . . . . . . . . . . . . . . 15
ARTICLE 5
Concerning the Bonds,
the Indenture and the Trustee
SECTION 5.1 Assignment of Loan Agreement . . . . . . . . . . . . . . . . . . 16
SECTION 5.2 Redemption of Bonds . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.3 Amendment of Indenture . . . . . . . . . . . . . . . . . . . . . 16
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SECTION 5.4 Special Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.5 Effect of Full Payment of Indebtedness . . . . . . . . . . . . . 16
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ARTICLE 6
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SECTION 6.1 Maintenance and Other Operating Expenses . . . . . . . . . . . . 18
SECTION 6.2 Taxes, Assessments, Etc. . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.3 Improvements, Alterations, Etc. . . . . . . . . . . . . . . . . . 18
SECTION 6.4 Assignment, etc. . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.5 Company's Personal Property and Fixtures . . . . . . . . . . . . 18
SECTION 6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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ARTICLE 7
Special Covenants
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SECTION 7.1 No Warranty of Condition
or Suitability by Issuer . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.2 Issuer and Company Representatives . . . . . . . . . . . . . . . 20
SECTION 7.3 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.4 Inspection of Records . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.5 Indemnity of Issuer and Trustee . . . . . . . . . . . . . . . . . 20
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ARTICLE 8
Remedies
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SECTION 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.2 Remedies on Default . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 8.3 No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.4 Agreement to Pay Attorneys'
Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.5 No Additional Waiver Implied by One Waiver . . . . . . . . . . . 23
SECTION 8.6 Remedies Subject to Applicable Law . . . . . . . . . . . . . . . 23
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ARTICLE 9
Prepayment under Agreement
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SECTION 9.1 Option to Prepay Basic Payment Amounts Under
Agreement in Whole in Certain Events . . . . . . . . . . . . . . 24
SECTION 9.2 Other Options to Prepay Basic Payment
Amounts Under Agreement . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.3 Obligation to Prepay Basic Payment Amounts
Under Agreement Under Certain Circumstances . . . . . . . . . . . 25
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ARTICLE 10
Miscellaneous
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SECTION 10.1 Issuer's Liabilities Limited . . . . . . . . . . . . . . . . . . 27
SECTION 10.2 Corporate Existence of Issuer . . . . . . . . . . . . . . . . . . 27
SECTION 10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.4 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.5 Benefits of Loan Agreement . . . . . . . . . . . . . . . . . . . 28
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Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
EXHIBIT A - Project Site
EXHIBIT B - Project Equipment
EXHIBIT C - Form of Requisition
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of September 1, 1994, among DEVELOPMENT
AUTHORITY OF CLAYTON COUNTY, a public body corporate and politic created and
existing under the laws of the State of Georgia (the "Issuer"), LEAR SEATING
CORPORATION, a Delaware corporation (the "Company");
W I T N E S S E T H:
WHEREAS, the Issuer has created pursuant to the provisions of an act
of the General Assembly of the State of Georgia (O.C.G.A. Section 36-62), as
amended (the "Act"), and its directors have been appointed as provided therein
and are currently acting in that capacity; and
WHEREAS, the Issuer has been created to develop and promote for the
public good and general welfare trade, commerce, industry and employment
opportunities and to promote the general welfare of the State of Georgia; the
Act empowers the Issuer to issue its revenue obligations, in accordance with
the applicable provisions of the Act, in furtherance of the public purpose for
which it was created; and
WHEREAS, the Issuer, by due corporate action, has authorized the
financing of the acquisition, construction and equipping of a manufacturing
facility in Clayton County, Georgia (the "Project"), pursuant to plans and
specifications therefor, such Project to include certain land, buildings and
related real property together with certain equipment and related personal
property, which Project is to be financed by the Issuer for the benefit of the
Company pursuant to this Loan Agreement; and
WHEREAS, after careful study and investigation of the nature of the
proposed Project, the Issuer has determined that, in assisting with the
financing of the Project, it will be acting in furtherance of the public
purposes intended to be served by the Act; and
WHEREAS, the Issuer has been advised by the Company that the amount
necessary to finance the cost of the acquisition, construction and equipping of
the Project, including expenses incidental thereto, is not less than $9,500,000
and, by proper corporate action, the Issuer has authorized the issuance and
sale of $9,500,000 in aggregate principal amount of Development Authority of
Clayton County Industrial Development Revenue Bonds (Lear Seating Corporation
Project), Series 1994 (the "Bonds"), the proceeds of which will be used to
finance the cost of the acquisition, construction and equipping of the Project;
and
WHEREAS, pursuant to the terms of this Agreement, the Issuer has
agreed to finance the cost of acquiring, constructing and equipping the Project
through the issuance of the Bonds and, in consideration thereof, the Company
has agreed to pay to the Issuer moneys sufficient to pay the principal of, and
the redemption
<PAGE> 5
premium (if any) and the interest on, the Bonds as the same become due and
payable and to pay certain administrative expenses in connection with the
Bonds; and
WHEREAS, the Bonds shall be limited obligations of the Issuer payable
solely from the amounts payable under this Loan Agreement and other amounts
specifically pledged therefor under the hereinafter defined Indenture (the
"Pledged Revenues"); and
WHEREAS, as security for the payment of the Bonds, the Company will
cause Chemical Bank (in its capacity as issuer of the initial letter of credit
referred to below, herein called the "Credit Obligor") to issue an irrevocable
letter of credit in favor of the Trustee to enable the Trustee to pay Debt
Service on the Bonds and the purchase price of Bonds tendered (or deemed
tendered) for purchase in accordance with the terms of the Indenture (the
initial letter of credit so delivered to the Trustee and any substitute letter
of credit delivered to the Trustee pursuant to the Indenture are herein
referred to as the "Letter of Credit"); and
WHEREAS, the Letter of Credit will be issued by the Credit Obligor
pursuant to an Amended and Restated Credit Agreement, dated as of October 25,
1993 (the "Credit Agreement") between and among the Company, the Credit Obligor
and others, whereby the Company will agree, among other things, to reimburse
the Credit Obligor for all amounts drawn by the Trustee pursuant to the Letter
of Credit; and
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants hereinafter contained, the parties hereto covenant, agree and
bind themselves as follows:
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ARTICLE 1
Definitions and Other Provisions
of General Application
SECTION 1.1 Definitions
For all purposes of this Loan Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) Capitalized terms not otherwise defined herein shall have the
meaning assigned to them in the Indenture.
(2) The terms defined in this Article shall have the meanings
assigned to them in this Article. Singular terms shall include the plural as
well as the singular, and vice versa.
(3) The definitions in the recitals to this instrument are for
convenience only and shall not affect the construction of this instrument.
(4) All accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for shall be
made, in accordance with generally accepted accounting principles. All
references herein to "generally accepted accounting principles" refer to such
principles as they exist at the date of application thereof.
(5) All references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections and
subdivisions of this instrument as originally executed.
(6) The terms "herein", "hereof" and "hereunder" and other words
of similar import refer to this Loan Agreement as a whole and not to any
particular Article, Section or other subdivision.
(7) The term "person" shall include any individual, corporation,
partnership, joint venture, association, trust, unincorporated organization and
any government or any agency or political subdivision thereof.
(8) The following words and phrases shall have the following meanings:
"Authorized Company Representative" means the person at the time
designated to act on behalf of the Company by written certificate furnished to
the Issuer and the Trustee containing the specimen signature of such person and
signed on behalf of the Company by the chairman of the board, president or vice
president of the Company. Such certificate may designate an alternate or
alternatives.
"Capital Expenditures" means capital expenditures within the meaning
of Section 144(a)(4) of the Code, and the Income Tax Regulations relating
thereto.
<PAGE> 7
"Cost" with respect to the Project shall be deemed to include all
items permitted to be financed under the provisions of the Act, including, but
not limited to:
(i) all costs which the Issuer or the Company shall be
required to pay under the terms of any contract or contracts for the
acquisition, construction, improving, or equipping of the Project;
(ii) obligations of the Company incurred for labor and
materials (including obligations payable to the Company) in connection
with the acquisition, construction, improving or equipping of the
Project, including reimbursement to the Company for all advances and
payments made in connection with the Project prior to or after
delivery of the Bonds;
(iii) the cost of performance or other bonds and any and
all types of insurance that may be necessary or appropriate to have in
effect during the course of construction of the Project;
(iv) all costs of engineering and architectural services,
including the costs of the Company for test borings, surveys,
estimates, plans and specifications and preliminary investigations
therefor, and for supervising construction, as well as for the
performance of all other duties required by or consequent to the
proper construction of the Project;
(v) subject to the two percent (2.0%) limitation set
forth in the Internal Revenue Code, all expenses incurred in
connection with the issuance of the Bonds, including but not limited
to, reasonable compensation, fees and expenses of the Issuer, the
Trustee and the Tender Agent, including reasonable counsel fees,
compensation to any financial consultant, underwriters or placement
agents, legal fees and expenses, costs of printing and engraving,
recording and filing fees and costs of title insurance, if any, and
Letter of Credit fees and facility fees payable under the Credit
Agreement;
(vi) any sums required to reimburse the Company for
advances made by the Company for any of the above items or for any
other costs incurred which are properly chargeable to the Project; and
(vii) the reimbursement of the Credit Obligor for any
amounts drawn under the Letter of Credit to pay interest on the Bonds
prior to the completion of construction of the Project.
"Default" means any Default under this Agreement as specified
in and defined by Section 8.1 hereof.
"Indenture" means the Trust Indenture dated as of this date
between the Issuer and the Trustee, pursuant to which the Bonds are
authorized to be issued, and any amendments and supplements thereto.
"Issuance Costs" means all costs that are treated as costs of
issuing or carrying the Bonds under existing Treasury Department
regulations and rulings, including, but not limited to:
<PAGE> 8
(a) underwriter's spread (whether realized directly or
derived through purchase of the Bonds at a discount below the price at
which they are expected to be sold to the public);
(b) counsel fees (including bond counsel, underwriter's
counsel, Issuer's counsel, Company's counsel, as well as any other
specialized counsel fees incurred in connection with the issuance of
the Bonds);
(c) financial adviser fees incurred in connection with
the issuance of the Bonds;
(d) rating agency fees;
(e) Trustee fees incurred in connection with the issuance
of the Bonds;
(f) paying agent and certifying and authenticating agent
fees related to issuance of the Bonds;
(g) accountant fees related to the issuance of the Bonds;
(h) printing costs of the Bonds and of the preliminary
and final offering materials;
(i) publication costs associated with the financing
proceedings; and
(j) costs of engineering and feasibility studies
necessary to the issuance of the Bonds.
provided, that bond insurance premiums and certain credit enhancement fees, to
the extent treated as interest expense under applicable regulations, shall not
be treated as "Issuance Costs."
"Plans and Specifications" means the plans and specifications for the
Project prepared by C. H. Moss & Associates, Inc., engineer, for Morgan
Contracting, as developer, dated June 13, 1994, copies of which are on file
with the Company.
"Project" means the Project Building, Project Equipment and the
Project Site.
"Project Building" means the structures intended to be acquired,
constructed and installed on the Project Site.
"Project Equipment" means the property which is described generally in
Exhibit B hereto, and any items of machinery, equipment, or other personal
property acquired in substitution for, or as a renewal or replacement of or a
modification or improvement to, said property.
"Project Site" means the real estate described in Exhibit A hereto.
"Qualified Project Costs" means costs and expenses of the Project
which constitute land costs or costs for property of a
<PAGE> 9
character subject to the allowance for depreciation excluding specifically
working capital and inventory costs, provided, however, that (i) costs or
expenses paid or incurred prior to March 17, 1994, shall not be deemed to be
Qualified Project Costs; (ii) Issuance Costs shall not be deemed to be
Qualified Project Costs; (iii) interest during the Construction Period shall be
allocated between Qualified Project Costs and other costs and expenses to be
paid from the proceeds of the Bonds; (iv) interest following the Construction
Period shall not constitute a Qualified Project Cost; (v) letter of credit fees
and municipal bond insurance premiums which represent a transfer of credit risk
shall be allocated between Qualified Project Costs and other costs and expenses
to be paid from the proceeds of the Bonds; and (vi) letter of credit fees and
municipal bond insurance premiums which do not represent a transfer of credit
risk shall not constitute Qualified Project Costs.
"Requisition" means a written request for a disbursement from the
Construction Fund, signed by an Authorized Company Representative,
substantially in the form attached hereto as Exhibit C and satisfactorily
completed as contemplated by said form.
"State" means the State of Georgia.
"Term of Agreement" means the term of this Agreement as specified in
Section 11.1 hereof.
SECTION 1.2 Effect of Headings and Table of Contents
The Article and Section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.3 Date of Loan Agreement
The date of this Loan Agreement is intended as and for a date for the
convenient identification of this Loan Agreement and is not intended to
indicate that this Loan Agreement was executed and delivered on said date.
SECTION 1.4 Severability Clause
If any provision in this Loan Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.5 Governing Law
This Loan Agreement shall be construed in accordance with and governed
by the laws of the State of Georgia.
SECTION 1.6 Counterparts
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.7 References to Letter of Credit and Related Terms
<PAGE> 10
During any period in which no Letter of Credit is in effect and no
amounts remain unreimbursed to the Credit Obligor with respect thereto, any
references to the Credit Obligor, Credit Agreement or Letter of Credit shall be
disregarded and shall have no effect.
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ARTICLE 2
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2.1 Representations, Covenants and Warranties of the Issuer.
The Issuer represents, covenants and warrants that:
(a) The Issuer is a public body corporate and politic and an
instrumentality of the State of Georgia. Under the provisions of the
Act, the Issuer is authorized to enter into the transactions
contemplated by this Agreement and the Indenture and to carry out its
obligations hereunder and thereunder. The Issuer has been duly
authorized to execute and deliver this Agreement and the Indenture.
(b) The Issuer covenants that it will not pledge the amounts
derived from this Agreement other than as contemplated by the
Indenture.
SECTION 2.2 Representations, Covenants and Warranties of the Company.
The Company represents, covenants and warrants that:
(a) The Company is a corporation validly organized and
existing under the laws of the State of Delaware. The Company is not
in violation of any provision of its Articles of Incorporation, as
amended, has the corporate power to enter into this Agreement, and has
duly authorized the execution and delivery of this Agreement.
(b) Neither the execution and delivery of this Agreement, the
Remarketing Agreement or the Credit Agreement, nor the consummation of
the transactions contemplated hereby and thereby, nor the fulfillment
of or compliance with the terms and conditions hereof or thereof
conflicts with or results in a material breach of any material terms,
conditions, or provisions of any material agreement or instrument to
which the Company is now a party or by which the Company is bound, or
constitutes a default under any of the foregoing.
(c) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court, public
board or body, known to be pending or threatened against or affecting
the Company or any of its officers, nor to the best knowledge of the
Company is there any basis therefor, wherein an unfavorable decision,
ruling, or finding would materially adversely affect the transactions
contemplated by this Agreement or which would adversely affect, in any
way, the validity or enforceability of the Bonds, this Agreement, the
Credit Agreement, the Remarketing Agreement, or any agreement or
instrument to which the Company is a party, used or contemplated for
use in the consummation of the transactions contemplated hereby.
(d) The Project is of the type authorized and permitted by
the Act, and its estimated Cost is not less than $9,500,000.
(e) The proceeds from the sale of the Bonds will be used only
for payment of Cost of the Project.
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(f) The Company will use due diligence to cause the Project
to be operated in accordance with the laws, rulings, regulations and
ordinances of the State and the departments, agencies and political
subdivisions thereof. The Company has obtained or caused to be
obtained all requisite approvals of the State and of other federal,
state, regional and local governmental bodies for the acquisition,
construction, improving and equipping of the Project which would
customarily be obtained at this stage of completion of the Project.
(g) The Company will fully and faithfully perform all the
duties and obligations which the Issuer has covenanted and agreed in
the Indenture to cause the Company to perform and any duties and
obligations which the Company is required in the Indenture to perform.
The foregoing shall not apply to any duty or undertaking of the Issuer
which by its nature cannot be delegated or assigned.
(h) The issuance of the Bonds by the Issuer and the
lending of the proceeds thereof to the Company to enable the Company
to acquire, construct and install the Project have induced the Company
to locate the Project in the County, which will directly result in an
increase in employment opportunities in the County.
SECTION 2.3 Tax-Exempt Status of the Bonds. The Company hereby
acknowledges and confirms the representations, warranties and covenants set
forth in that certain Company's Tax Certificate and Compliance Agreement, dated
as of the date of issuance and delivery of the Bonds, which representations,
warranties and covenants are incorporated herein by this reference thereto and
made a part hereof as fully as though set forth herein in their entirety.
SECTION 2.4 Notice of Determination of Taxability. Promptly after the
Company first becomes aware of any Determination of Taxability, the Company
shall give written notice thereof to the Issuer and the Trustee.
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ARTICLE 3
ACQUISITION AND CONSTRUCTION
OF THE PROJECT; ISSUANCE OF THE BONDS
SECTION 3.1 Agreement to Acquire, Construct, Improve and Equip
the Project. The Company agrees to make all contracts and do all things
necessary for the acquisition, construction, improving, and equipping of the
Project, with or without advertising for bids, and the Company agrees that it
will cause the Project Building to be constructed, improved and equipped on the
Project Site substantially in accordance with the Plans and Specifications, and
that it will cause the Project Equipment to be acquired and installed therein.
Notwithstanding the foregoing, the Company may modify, supplement, amend or
revise the Plans and Specifications, in its sole discretion, without notice to
or the consent of the Issuer, the Credit Obligor or the Trustee, so long as the
Project continues to qualify as a "project" within the meaning of the Act.
The Company further agrees that it will acquire, construct, improve,
and equip the Project with all reasonable dispatch and use its best efforts to
cause acquisition, construction, improving, equipping, and occupancy of the
Project to be completed by June 1, 1995, or as soon thereafter as may be
practicable, delays caused by force majeure as defined in Section 8.1 hereof
only excepted; but if for any reason such acquisition, construction, improving
and equipping is not completed by said date there shall be no resulting
liability on the part of the Company and no diminution in or postponement of
the payments required in Section 4.2 hereof to be paid by the Company.
SECTION 3.2 Agreement to Issue the Bonds; Application of Bond
Proceeds. In order to provide funds for the payment of the Cost of the
Project, the Issuer, concurrently with the execution of this Agreement, will
issue, sell, and deliver the Bonds and deposit the net proceeds thereof with
the Trustee in the Construction Fund.
SECTION 3.3 Disbursements from the Construction Fund. The Issuer
has, in the Indenture, authorized and directed the Trustee to make
disbursements from the Construction Fund to pay the Costs of the Project, or to
reimburse the Company for any Cost of the Project paid by the Company. The
Trustee shall not make any disbursement from the Construction Fund until the
Company shall have provided the Trustee with a Requisition.
SECTION 3.4 Furnishing Documents to the Trustee. The Company agrees
to cause such Requisitions to be directed to the Trustee as may be necessary to
effect payments out of the Construction Fund in accordance with Section 3.3
hereof.
SECTION 3.5 Establishment of Completion Date.
(a) The Completion Date shall be evidenced to the Issuer and
the Trustee by a certificate signed by an Authorized Company Representative
stating that, except for amounts retained by the Trustee at the Company's
direction to pay any Cost of the Project not then due and payable, (i)
construction of the Project has been completed and all costs of labor,
services, materials and supplies used in such construction have been paid, (ii)
all equipment for the Project has been installed, such equipment so installed
is
<PAGE> 14
suitable and sufficient for the operation of the Project, and all costs and
expenses incurred in the acquisition and installation of such equipment have
been paid, and (iii) all other facilities necessary in connection with the
Project have been acquired, constructed, improved, and equipped and all costs
and expenses incurred in connection therewith have been paid. Notwithstanding
the foregoing, such certificate shall state that it is given without prejudice
to any rights against third parties which exist at the date of such certificate
or which may subsequently come into being. Forthwith upon completion of the
acquisition, construction, improving, and equipping of the Project, the Company
agrees to cause such certificate to be furnished to the Issuer and the Trustee.
Upon receipt of such certificate, the Trustee shall retain in the Construction
Fund a sum equal to the amounts necessary for payment of the Cost of the
Project not then due and payable according to such certificate. If any such
amounts so retained are not subsequently used, prior to any transfer of said
amounts to the Bond Fund as provided below, the Trustee shall give notice to
the Company of the failure to apply said funds for payment of the Cost of the
Project. Any amount not to be retained in the Construction Fund for payment of
the Cost of the Project, and all amounts so retained but not subsequently used,
shall be transferred by the Trustee into the Bond Fund.
(b) If at least ninety-five percent (95%) of the net proceeds
of the sale of the Bonds have not been used for Qualified Project Costs, any
amount (exclusive of amounts retained by the Trustee in the Construction Fund
for payment of Cost of the Project not then due and payable) remaining in the
Construction Fund shall be transferred by the Trustee into the Bond Fund and
used by the Trustee (a) to redeem Bonds on the earliest redemption date
permitted by the Indenture without a premium, (b) to purchase Bonds on the open
market prior to such redemption date at prices not in excess of one hundred
percent (100%) of the principal amount of such Bonds, or (c) for any other
purpose provided that the Trustee is furnished with an opinion of Bond Counsel
to the effect that such use is lawful under the Act and will not require that
interest on the Bonds be included in gross income for federal income tax
purposes. Until used for one or more of the foregoing purposes, such
segregated amount may be invested as permitted by the Indenture provided that
prior to any such investment the Trustee is provided with an opinion of Bond
Counsel to the effect that such investment will not require that interest on
the Bonds be included in gross income for federal income tax purposes.
SECTION 3.6 Company Required to Pay in Event Construction Fund
Insufficient. In the event the moneys in the Construction Fund available for
payment of the Costs of the Project should not be sufficient to pay the Costs
of the Project in full, the Company agrees to complete the Project and to pay
that portion of the Costs of the Project in excess of the moneys available
therefor in the Construction Fund. The Issuer does not make any warranty,
either express or implied, that the moneys paid into the Construction Fund and
available for payment of the Costs of the Project will be sufficient to pay all
of the Costs of the Project. The Company agrees that if after exhaustion of
the moneys in the Construction Fund, the Company should pay any portion of the
Costs of the Project pursuant to the provisions of this Section, the Company
<PAGE> 15
shall not be entitled to any reimbursement therefor from the Issuer, the
Trustee or the Owners of any of the Bonds, nor shall the Company be entitled to
any diminution of the amounts payable under Section 4.2 hereof.
SECTION 3.7 Special Arbitrage Certifications. The Company and the
Issuer covenant not to cause or direct any moneys on deposit in any fund or
account to be used in a manner which would cause the Bonds to be classified as
"arbitrage bonds" within the meaning of Section 148 of the Code, and the
Company certifies and covenants to and for the benefit of the Issuer and the
Owners of the Bonds that so long as there are any Bonds Outstanding, moneys on
deposit in any fund or account in connection with the Bonds, whether such
moneys were derived from the proceeds of the sale of the Bonds or from any
other sources, will not be used in a manner which will cause the Bonds to be
classified as "arbitrage bonds" within the meaning of Section 148 of the Code.
Without limiting the generality of the foregoing, the Company hereby agrees to
comply with the terms and conditions set forth in that certain "Company's Tax
Certificate and Compliance Agreement", dated the date of issuance and delivery
of the Bonds, including, without limitation, the provisions set forth therein
pertaining to the rebate of investment earnings to the United States.
<PAGE> 16
ARTICLE 4
LOAN PROVISIONS
SECTION 4.1 Loan Of Proceeds. The Issuer agrees, upon the terms
and conditions contained in this Agreement and the Indenture, to lend to the
Company the proceeds received by the Issuer from the sale of the Bonds. Such
proceeds shall be disbursed to or on behalf of the Company as provided in
Section 3.3 hereof.
SECTION 4.2 Basic Payments
(a) The Company shall make basic payments ("Basic Payments") to
the Trustee, for the account of the Issuer, at times and in amounts as follows:
on or before any Bond Payment Date for the Bonds or any other date that any
payment of interest, premium, if any, or principal or purchase price is
required to be made in respect of the Bonds pursuant to the Indenture, until
the principal of, premium, if any, and interest on the Bonds shall have been
fully paid or provision for the payment thereof shall have been made in
accordance with the Indenture, in immediately available funds, a sum which,
together with any other moneys available for such payment in any account of the
Bond Fund, will enable the Trustee to pay the amount payable on such date as
purchase price or principal of (whether at maturity or upon redemption or
acceleration or otherwise), premium, if any, and interest on the Bonds as
provided in the Indenture; provided, however, that the obligation of the
Company to make any payment hereunder shall be deemed satisfied and discharged
to the extent of the corresponding payment made by the Credit Obligor to the
Trustee under the Letter of Credit.
(b) In accordance with the Indenture, on each Bond Payment Date
the Trustee shall, without regard to the amount then on deposit in the Bond
Fund, make a draw on the Letter of Credit in an amount equal to the amount of
Debt Service due on such Bond Payment Date on Bonds other than Pledged Bonds.
No draw shall be made under the Letter of Credit with respect to Debt Service
on Pledged Bonds. If money is, at the time of such draw, on deposit in the
Bond Fund and available for the payment of Debt Service on Bonds other than
Pledged Bonds, such available money shall, to the extent of the amount drawn
pursuant to the Letter of Credit, be paid to the Credit Obligor.
(c) In accordance with the Indenture, on each Tender Date the
Trustee shall, without making any prior claim or demand on the Company for
Basic Payments with respect to the purchase price of Bonds, and without taking
into account any proceeds anticipated from the remarketing of Bonds by the
Remarketing Agent, make a draw under the Letter of Credit in an amount equal
to the purchase price of all Bonds to be purchased on such Tender Date. The
Company shall receive a credit against Basic Payments under subsection (a)(3)
for the amount so drawn.
(d) The Company shall cause all Basic Payments to be made in funds
immediately available to the Trustee at its Principal Office by 1:45 P.M., New
York City time, on the related Bond Payment Date
<PAGE> 17
or Tender Date, as the case may be, or such earlier time as may be required by
the Securities Depository.
(e) If any Basic Payment is due on a day which is not a Business
Day, the Company shall cause such payment to be made on the first succeeding
day which is a Business Day with the same effect as if made on the day such
payment was due.
(f) Income or profits received from the investment of money in the
Bond Fund shall be credited against the Basic Payments required by subsection
(a)(1) and (2) of this Section.
(g) The Company acknowledges that Basic Payments required by this
Section are intended to provide amounts which will be sufficient to pay Debt
Service on the Bonds as the same matures and comes due. If on any Bond Payment
Date the amount on deposit in the Bond Fund is not sufficient to pay Debt
Service on the Bonds due and payable on such date, the Company shall
immediately deposit the amount of such deficiency in the Bond Fund.
SECTION 4.3 Additional Payments
(a) The Company shall make additional payments ("Additional
Payments") to the Issuer, the Trustee or the Tender Agent, as the case may be,
as follows:
(1) the acceptance fee of the Trustee and the reasonable
annual (or other regular) fees, charges and expenses of the Trustee,
Tender Agent and Remarketing Agent;
(2) any amount to which the Trustee may be entitled under
Section 13.07 of the Indenture; and
(3) the reasonable expenses of the Issuer incurred at the
request of the Company, or in the performance of its duties under the
Indenture, or in connection with any litigation which may at any time
be instituted involving the Project, the Bonds, or in the pursuit of
any remedies under the Indenture.
(b) All Additional Payments shall be due and payable within 10
days after receipt by the Company of an invoice therefor.
SECTION 4.4 Overdue Payments
Any overdue Basic Payment shall bear interest from the related Bond
Payment Date until paid at the Post-Default Rate for overdue Debt Service
payments. Any overdue Additional Payment shall bear interest from the date due
until paid at the Post-Default Rate for such Additional Payments specified in
the Indenture.
SECTION 4.5 Unconditional Obligation of Company
Subject to Section 10.6 hereof, the Company's obligation to make
Payments and to perform and observe the other agreements and covenants on its
part herein contained shall be absolute and unconditional, irrespective of any
rights of set-off, recoupment or counterclaim it might otherwise have against
the Issuer or the Trustee. The Company will not suspend or discontinue any
such Payment or fail to perform and observe any of its other agreements and
covenants contained herein or terminate this Loan Agreement for any cause
whatsoever, including, without limiting the generality of
<PAGE> 18
the foregoing, (i) failure to complete the Project, (ii) any acts or
circumstances that may constitute an eviction or constructive eviction, (iii)
failure of consideration or commercial frustration of purpose, (iv) the
invalidity of any provision of this Loan Agreement, (v) any damage to or
destruction of the Project or any part thereof, (vi) the taking by eminent
domain of title to, or the use of, all or any part of the Project, (vii) any
change in the laws or regulations of the United States of the United States of
America, the State of Georgia or any other government authority, or (viii) any
failure of any of the Financing Participants to perform and observe any
agreement or covenant, whether express or implied, to be performed or observed
by them under any of the Financing Documents.
<PAGE> 19
ARTICLE 5
Concerning the Bonds,
the Indenture and the Trustee
SECTION 5.1 Assignment of Loan Agreement
(a) The parties hereto agree that pursuant to the Indenture, the
Issuer shall assign to the Trustee, in order to secure payment of the Bonds,
all of the Issuer's right, title and interest in and to this Agreement (except
for certain rights personal to the Issuer).
SECTION 5.2 Redemption of Bonds
(a) The Issuer will redeem any or all of the Bonds in accordance
with the scheduled mandatory redemption provisions of the Bonds and the
Indenture and upon the occurrence of any event or contingency requiring the
mandatory redemption of Bonds, all in accordance with the applicable provisions
of the Bonds and the Indenture.
(b) If no Loan Default exists, the Issuer will exercise any right
of optional redemption with respect to the Bonds only upon the written request
of the Company.
SECTION 5.3 Amendment of Indenture
The Issuer will not cause or permit the amendment of the Indenture or
the execution of any amendment or supplement to the Indenture without the prior
written consent of the Company.
SECTION 5.4 Special Funds
(a) If no Loan Default exists, the Issuer shall cause any money
held as part of a Special Fund to be invested or reinvested by the Trustee in
accordance with the terms of the Indenture and the instructions of the Company.
(b) The Company shall be solely responsible for (i) determining
that any such investment of Special Funds under the Indenture complies with the
arbitrage limitations imposed by Section 148 of the Internal Revenue Code,
including without limitation the provisions of Section 148(d)(3) of the
Internal Revenue Code relating to investment of "gross proceeds" of bonds, and
(ii) calculating the amount of, and making payment of, any rebate due to the
United States under Section 148(f) of the Internal Revenue Code.
SECTION 5.5 Effect of Full Payment of Indebtedness
(a) After the Indenture Indebtedness is Fully Paid, all references
in this Loan Agreement to the Bonds, the Indenture and the Trustee shall be
ineffective and neither the Trustee nor the Holders of the Bonds shall
thereafter have any rights hereunder, except those rights that shall have
theretofore vested.
(b) After the Credit Obligor Indebtedness is Fully Paid, (i) all
references in this Loan Agreement to the Credit Obligor shall be ineffective
and thereafter the Credit Obligor shall have no rights hereunder, except those
rights that shall have theretofore vested, and (ii) all references in this Loan
Agreement
<PAGE> 20
to the Credit Agreement and the Letter of Credit shall be ineffective.
(c) After all Indebtedness is Fully Paid, any money or investments
remaining in the Special Funds shall be delivered to the Company.
<PAGE> 21
ARTICLE 6
SECTION 6.1 Maintenance and Other Operating Expenses
The Company will, at its own expense, cause the Project to be
maintained and kept in good condition, repair and working order.
SECTION 6.2 Taxes, Assessments, Etc.
The Company will pay or cause to be paid as they become due and
payable all taxes, assessments and other governmental charges lawfully levied
or assessed or imposed upon the Project or any part thereof or upon any income
therefrom.
SECTION 6.3 Improvements, Alterations, Etc.
The Company may, at its own expense, make changes, additions,
improvement or alterations to the buildings, structures and other improvements
constituting a part of the Project.
SECTION 6.4 Assignment, etc.
Subject to the receipt of the prior written consent of the Issuer, the
Company may assign its rights in this Loan Agreement and may sell or lease the
Project or any part thereof, subject to the following limitations:
(1) the Company shall continue to be primarily liable for the
performance and observance of the agreements and covenants to be performed and
observed by its under this Loan Agreement, and no such assignment or lease
shall in any way diminish or abate the obligations of the Company hereunder
(unless the transferee assumes all of the Company's obligations hereunder);
(2) no such assignment or lease shall permit or result in the use
of the Project for any purpose that would not be permitted for facilities
financed under the Enabling Act; and
(3) within 30 days after the delivery of any such assignment or
lease, the Company shall deliver a copy thereof to the Issuer and to the
Trustee.
SECTION 6.5 Company's Personal Property and Fixtures
The Company may, at its own expense, install at the Project any
personal property or fixtures which, in the Company's judgment, are necessary
or desirable for the conduct of the business carried on by the Company at the
Project.
SECTION 6.6 Insurance
The Company will at all times keep the Project insured against such
risks as are customarily insured against by businesses of like size and type,
paying as the same become due all premiums in respect thereto.
<PAGE> 22
ARTICLE 7
SPECIAL COVENANTS
SECTION 7.1 No Warranty of Condition or Suitability by Issuer.
THE ISSUER MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE PROJECT OR
THE CONDITION THEREOF, OR THAT THE PROJECT WILL BE SUITABLE FOR THE PURPOSES OR
NEEDS OF THE COMPANY. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, THAT THE COMPANY WILL HAVE QUIET AND PEACEFUL POSSESSION OF THE
PROJECT. THE ISSUER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO THE MERCHANTABILITY, CONDITION OR WORKMANSHIP OF ANY PART OF
THE PROJECT OR ITS SUITABILITY FOR THE COMPANY'S PURPOSES.
SECTION 7.2 Issuer and Company Representatives. Whenever under
the provisions of this Agreement the approval of the Issuer or the Company are
required or the Issuer or the Company are required to take some action at the
request of the other, such approval or such request shall be given for the
Issuer by an Issuer Representative and for the Company by an Authorized Company
Representative. The Trustee shall be authorized to act on any such approval or
request.
SECTION 7.3 Further Assurances The Company will do, execute,
acknowledge and deliver such further acts, financing statements and assurances
as the Issuer or the Trustee shall require for accomplishing the purposes of
the Financing Documents.
SECTION 7.4 Inspection of Records
The Company will at any and all times, upon the written request of the
Issuer or the Trustee and with reasonable notice, permit the Issuer or the
Trustee by their representatives to inspect the Project and any books, records,
reports and other papers of the Company relating to the Project, and to make
copies therefrom, and will afford and procure a reasonable opportunity to make
any such inspection, and the Company will furnish to the Issuer and the Trustee
any and all information as the Issuer or the Trustee may reasonably request
with respect to the performance by the Company of its covenants in this Loan
Agreement.
SECTION 7.5 Indemnity of Issuer and Trustee
If the Issuer or the Trustee, or any director, member or officer of
agent thereof (collectively the "Indemnified Persons") is made a party
defendant to any litigation concerning the Project or any part thereof, or
concerning the occupancy thereof by the Company, or concerning the issuance of
the Bonds, the Company agrees to indemnify, defend and hold Indemnified Persons
harmless from and against any and all liability by reason of such litigation,
including reasonable attorneys' fees and expenses incurred by the Indemnified
Persons, whether or not any such litigation is prosecuted to judgment. If the
Issuer commences an action against the Company to enforce any of the terms of
any of the documents executed in connection with the Bonds, or for the breach
by the Company of any such terms, the Company shall pay to
<PAGE> 23
the Issuer reasonable attorneys' fees and expenses in connection with such
action, and the right to such attorneys' fees and expenses shall be enforceable
whether or not such action is prosecuted to judgment. If the Company breaches
any term of any of the documents executed in connection with the Bonds, the
Issuer may employ an attorney or attorneys to protect its rights, and in the
event of such employment following any such breach by the Company, the Company
shall pay the reasonable attorneys' fees and expenses of the Issuer so
incurred, whether or not any action is actually commenced against the Company
by reason of such breach.
It is the intention of the parties that the Indemnified Persons shall
not incur pecuniary liability by reason of the terms of this Agreement or by
reason of the undertakings of the Indemnified Persons required hereunder in
connection with the issuance of the Bonds or execution of this Agreement or the
Indenture or in connection with the performance of any act by the Indemnified
Persons requested by the Company or in any way arising from the transaction
with which this Agreement is a part arising in any manner in connection with
the Project or financing of the Project; nevertheless, if any of the
Indemnified Persons should incur any such pecuniary liability, then in such
event the Company shall indemnify and hold the Indemnified Persons harmless
against all claims by and on behalf of any person arising out of the same, and
all costs incurred in connection with any claim, action or proceeding brought
thereon, and upon notice from the Issuer, the Company shall defend the
Indemnified Persons in any such action, or proceeding in consultation with
counsel for the Issuer. In the event any proceeding shall be initiated against
any of the Indemnified Persons, the Company shall furnish a defense to the
Indemnified Persons, shall be permitted to control, in the exercise of its
reasonable judgment, the defense of any such action or proceeding, and pay all
fees of counsel to the Issuer. Any settlement of litigation that involves the
Issuer shall require the consent of the Issuer.
Notwithstanding anything to the contrary contained herein, the Company
shall have no liability to indemnify the Issuer or the Trustee against claims
or damages resulting from the Issuer's or the Trustee's own gross negligence or
willful misconduct.
<PAGE> 24
ARTICLE 8
Remedies
SECTION 8.1 Events of Default
Any one or more of the following shall constitute an event of default
(a "Loan Default") under this Loan Agreement (whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any Basic Payment when such
Basic Payment becomes due and payable; or
(2) default in the performance, or breach, of any
covenant or warranty of the Company in this Loan Agreement (other than
a covenant or warranty, a default in the performance or breach of
which is elsewhere in this Section specifically dealt with), and the
continuance of such default or breach for a period of 90 days after
there has been given, by registered or certified mail, to the Company
and the Credit Obligor by the Issuer or by the Trustee a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "notice of default"
hereunder; provided, however, that if the alleged breach or
nonperformance is of such a nature that it cannot reasonably be cured
within such period, such breach or nonperformance shall not constitute
a Loan Default so long as the Company institutes and is pursuing with
due diligence corrective action with respect thereto; or
(3) the occurrence of an Event of Default under the
Indenture.
SECTION 8.2 Remedies on Default
If a Loan Default occurs and is continuing, the Credit Obligor (or, if
the Credit Obligor Indebtedness has been Fully Paid, the Issuer) may exercise
any of the following remedies:
(1) declare all amounts for the remainder of the term of
this Loan Agreement to be immediately due and payable in an amount not
to exceed the principal amount of all Outstanding Bonds, plus the
redemption premium (if any) payable with respect thereto, plus the
interest accrued thereon to the date of such declaration; and
(2) take whatever legal proceedings may appear necessary
or desirable to collect the Payments then due, whether by declaration
or otherwise, or to enforce any obligation or covenant or agreement of
the Company under the Loan Agreement or by law.
<PAGE> 25
SECTION 8.3 No Remedy Exclusive
No remedy herein conferred upon or reserved to the Issuer, the Credit
Obligor or the Trustee is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Loan Agreement or
now or hereafter existing at law or in equity or by statute. No delay or
omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof but any
such right or power may be exercised from time to time and as often as may be
deemed expedient.
SECTION 8.4 Agreement to Pay Attorneys' Fees and Expenses
If the Company should default under any of the provisions of this Loan
Agreement and the Issuer, the Credit Obligor or the Trustee should employ
attorneys or incur other expenses for the collection of Basic Payments or the
enforcement of performance or observance of any agreement or covenant on the
part of the Company herein contained, the Company will on demand therefor pay
to the Issuer, the Credit Obligor or the Trustee (as the case may be) the
reasonable fees of such attorneys and such other expenses so incurred.
SECTION 8.5 No Additional Waiver Implied by One Waiver
In the event any agreement contained in this Loan Agreement should be
breached by either party and thereafter waived by the other party, such waiver
shall be limited to the particular breach so waived and shall not be deemed to
waive any other breach hereunder.
SECTION 8.6 Remedies Subject to Applicable Law
All rights, remedies and powers provided by this Article may be
exercised only to the extent the exercise thereof does not violate any
applicable provision of law in the premises, and all the provision of this
Article are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Loan Agreement invalid or
unenforceable.
<PAGE> 26
ARTICLE 9
PREPAYMENT UNDER AGREEMENT
SECTION 9.1 Option to Prepay Basic Payment Amounts Under Agreement in
Whole in Certain Events. The Company shall have, and is hereby granted, the
option to prepay the basic payment amounts required to be made under Section
4.2 and to cancel or terminate this Agreement if any of the following shall
have occurred:
(a) the Project shall have been damaged or destroyed to such
an extent that, in the judgment of the Company, (i) it cannot be
reasonably restored within a period of twelve (12) consecutive months
to the condition thereof immediately preceding such damage or
destruction, (ii) the Company is thereby prevented from carrying on
its normal operations at the Project for a period of twelve (12)
consecutive months, or (iii) it would not be economically feasible for
the Company to replace, repair, rebuild or restore the same;
(b) title in and to, or the temporary use of, all or
substantially all of the Project shall have been taken under the
exercise of the power of eminent domain by any governmental authority,
or person acting under governmental authority (including such a taking
as, in the judgment of the Company, results in the Company being
prevented thereby from carrying on its normal operations at the
Project for a period of twelve (12) consecutive months); or
(c) as a result of any changes in the Constitution of the
State or the Constitution of the United States of America or by
legislative or administrative action (whether State or Federal) or by
final decree, judgment, decision or order of any court or
administrative body (whether State or Federal), this Agreement shall
have become void or unenforceable or impossible of performance in
accordance with the intent and purposes of the parties as expressed
herein.
To exercise such option, the Company (i) shall, within ninety (90) days
following the event giving rise to the Company's desire to exercise such
option, deliver to the Issuer and to the Trustee a certificate, executed by a
duly authorized representative of the Company , stating (A) the event giving
rise to the exercise of such option, (B) that the Company has directed the
Trustee to redeem all of the Bonds in accordance with the provisions of the
Indenture, and (C) the date upon which such prepayment is to be made, which
date shall not be less than forty-five (45) days nor more than ninety (90) days
from the date such notice is mailed; and (ii) shall make arrangements
satisfactory to the Trustee for the giving of the required notice of
redemption.
The prepayment price which shall be paid to the Trustee by the Company
on or prior to its exercise of the option granted in this Section shall be the
sum of the following:
(1) an amount of money which, when added to the amount then
on deposit in the Bond Fund, will be sufficient to pay
<PAGE> 27
and redeem all of the then outstanding Bonds on the earliest
applicable redemption date including, without limitation, principal
plus accrued interest thereon to said redemption date, plus
(2) an amount of money equal to the Trustee's and paying
agents' fees and expenses under the Indenture accrued and to accrue
until such final payment and redemption of the Bonds.
The amount of any drawing under the Letter of Credit on any redemption
date specified above shall be credited against the prepayment price required to
be paid by the Company, and the use of any other moneys for the payment of
principal and interest on the Bonds shall be subject to the limitations set
forth in the Indenture.
SECTION 9.2 Other Options to Prepay Basic Payment Amounts Under
Agreement. The Company shall have, and is hereby granted, the option to prepay
the basic payment amounts required to be made under Section 4.2 in whole, at
any time, or in part on any Bond Payment Date (as defined in the Indenture), by
(i) depositing irrevocably with the Trustee in accordance with Article 16 of
the Indenture sufficient moneys pursuant to the Indenture, to pay the principal
of and interest on all of the Bonds due and to become due on or prior to the
redemption date (if the Bonds are to be redeemed) or maturity thereof, (ii)
paying to the Trustee all Trustee's fees and expenses due in connection with
the payment or redemption of any such Bonds, and (iii) if any Bonds are to be
redeemed on any date prior to their maturity, giving the Trustee irrevocable
instructions to redeem such Bonds on such date and either evidence satisfactory
to the Trustee that all redemption notices required by the Indenture have been
given or irrevocable power authorizing the Trustee to give such redemption
notices.
SECTION 9.3 Obligation to Prepay Basic Payment Amounts Under
Agreement Under Certain Circumstances. If there occurs a Determination of
Taxability, the Company shall be obligated to prepay as promptly as practical
all payments required to be made under Section 4.2 and shall pay to the Trustee
for deposit in the Bond Fund, the principal amount of such Bonds plus accrued
interest to such redemption date.
Said accelerated payments shall also include expenses of redemption
and the fees and expenses of the Trustee and the paying agent(s) accrued and to
accrue until such final payment and redemption of the Bonds.
The amount of any drawing under the Letter of Credit on such
redemption date shall be credited against the payments required to be made by
the Company on such redemption date.
The Company shall give prompt written notice to the Issuer, the Credit
Obligor and the Trustee of its receipt of any oral or written advice from the
Internal Revenue Service that an Event of Taxability has occurred.
Promptly upon receipt of written notice of the occurrence of a
Determination of Taxability, the Trustee shall cause notice thereof to be given
to the bondholders in the same manner as is provided in the Indenture for
notices of redemption. In such notice to bondholders, the Trustee may make
provisions for obtaining advice from bondholders, in such form as shall be
deemed
<PAGE> 28
appropriate, respecting relevant assessments made on such bondholders by the
Internal Revenue Service, so as to be able, if appropriate, to verify the
existence, present or future, of a Determination of Taxability.
The Company shall immediately instruct the Trustee to apply the
accelerated payments made by the Company as a result of such Determination of
Taxability, together with any moneys then held by the Trustee, in the order of
priority set forth in Section 504 of the Indenture, on the earliest possible
date after the giving of the required notice of redemption under the Indenture,
to the redemption of Bonds or to the payment to the holders of Bonds which will
mature or will be redeemed prior to the redemption date contemplated by this
Section, all in accordance with the requirements hereinbefore set forth in this
Section. A copy of such instructions shall be forwarded by the Company to the
Issuer.
Upon the redemption date contemplated by this Section, provided there
has been deposited with the Trustee the total amount as required, such amount
shall constitute the total compensation due the Issuer and the holders of the
Bonds as a result of an occurrence of such Determination of Taxability and the
Company shall not be deemed to be in default hereunder by reason of the
occurrence of such Determination of Taxability.
Upon the occurrence of a Determination of Taxability, any other option
of the Company to prepay the basic payment amounts required to be made under
Article 4 shall be superseded by its prepayment of the basic payment amounts
required to be made under Article 4 under this Section for the amounts herein
set forth.
The provisions of this Section shall survive the termination of this
Agreement.
<PAGE> 29
ARTICLE 10
Miscellaneous
SECTION 10.1 Issuer's Liabilities Limited
(a) The covenants and agreements contained in this Loan Agreement
shall never constitute or give rise to a personal or pecuniary liability or
charge against the general credit of the Issuer, and in the event of a breach
of any such covenant or agreement, no personal or pecuniary liability or charge
payable directly or indirectly from the general assets or revenues of the
Issuer shall arise therefrom. Nothing contained in this Section, however,
shall relieve the Issuer from the observance and performance of the covenants
and agreements on its part contained herein.
(b) No recourse under or upon any covenant or agreement of this
Loan Agreement shall be had against any past, present or future incorporator,
officer or member of the Board of Directors of the Issuer, or of any successor
corporation, either directly or through the Issuer, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Loan Agreement
is solely a corporate obligation, and that no personal liability whatever shall
attach to, or is or shall be incurred by, any incorporator, officer or member
of the Board of Directors of the Issuer or any successor corporation, or any of
them, under or by reason of the covenants or agreements contained in this Loan
Agreement.
SECTION 10.2 Corporate Existence of Issuer
The Issuer shall not consolidate with or merge into any other
corporation or transfer its property substantially as an entirety, except as
provided in Section 10.7 of the Indenture.
SECTION 10.3 Notices
(a) Any request, demand, authorization, direction, notice,
consent, or other document provided or permitted by this Loan Agreement to be
made upon, given or furnished to, or filed with, the Issuer, the Company, the
Trustee or the Credit Obligor shall be sufficient for every purpose hereunder
if in writing and (except as otherwise provided in this Loan Agreement) either
(i) delivered personally to the party or, if such party is not an individual,
to an officer, partner or other legal representative of the party to whom the
same is directed (provided that any document delivered personally to the
Trustee must be delivered at its Principal Office during normal business hours)
at the hand delivery address specified in Section 17.01 of the Indenture or
(ii) mailed by first-class, registered or certified mail, postage prepaid,
addressed as specified in Section 17.01 of the Indenture, or (iii) sent by
telex or telecopy to the number specified in Section 17.01 of the Indenture.
Any of such parties may change the address for receiving any such notice or
other document by giving notice of the change to the other parties as provide
in this Section.
(b) Any such notice or other document shall be deemed delivered
when actually received by the party to whom directed (or, if such party is not
an individual, to an officer, partner or other
<PAGE> 30
legal representative of the party) at the address specified pursuant to this
Section, or, if sent by mail, 3 days after such notice or document is deposited
in the United States mail, addressed as provided above.
SECTION 10.4 Successors and Assigns
All covenants and agreements in this Loan Agreement by the Issuer or
the Company shall bind their respective successors and assigns, whether so
expressed or not.
SECTION 10.5 Benefits of Loan Agreement
Nothing in this Loan Agreement, express or implied, shall give to any
person, other than the parties hereto and their successors hereunder, the
Trustee and the Holders of the Bonds, any benefit or any legal or equitable
right, remedy or claim under this Loan Agreement.
<PAGE> 31
IN WITNESS WHEREOF, the Issuer and the Company have caused this
Agreement to be executed in their respective corporate names and their
respective corporate seals to be hereunto affixed and attested by their duly
authorized officers, all as of the date first above written.
(SEAL) DEVELOPMENT AUTHORITY OF CLAYTON COUNTY
Attest: By: /s/ C.S. Conklin
------------------------------
Chairman
/s/ Thomas B. Clonts
---------------------------
Secretary
<PAGE> 32
(SEAL) LEAR SEATING CORPORATION
Attest: By: /s/ Donald J. Stebbins
------------------------------
Title:
By: /s/ Joseph F. McCarthy
------------------------
Title:
<PAGE> 33
LEAR SEATING CORPORATION
LEGAL DESCRIPTION OF REAL ESTATE
EXHIBIT A
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 21 of the
13th District of Clayton County, Georgia, and being more particularly described
as follows:
BEGINNING at a point on the southwestern right-of-way of International
Parkway (60' R/W) which point is located 1,148.67 feet southeast from the
intersection of the southwestern right-of-way of International Parkway and the
southern right-of-way of Service Road "B"; run thence partial along
International Parkway an arc distance of 442.31 feet (said arc being subtended
by a chord bearing South 63 degrees 21 minutes 20 seconds East and having a
length of 436.78 feet); running thence South 10 degrees 55 minutes 25 seconds
West a distance of 126.25 feet to an iron pin set; running thence South 00
degrees 26 minutes 11 seconds East a distance of 634.18 feet to an iron pin
set; running thence South 18 degrees 08 minutes 47 seconds West a distance of
104.22 feet to an iron pin set on the northern right-of-way of I-285; thence
running North 71 degrees 16 minutes 50 seconds West a distance of 395.20 feet
an iron pin set; thence running North 62 degrees 48 minutes 47 seconds West a
distance of 283.48 feet to an iron pin set; thence North 63 degrees 25 minutes
33 seconds West a distance of 27.63 feet to an iron pin set; thence leaving the
right-of-way of I-285 running North 22 degrees 00 minutes 29 seconds East a
distance of 174.28 feet to an iron pin set; thence running North 52 degrees 22
minutes 41 seconds West a distance of 268.41 feet to an iron pin set; thence
running North 45 degrees 02 minutes 40 seconds East a distance of 649.48 feet
to an iron pin set, which point is the POINT OF BEGINNING.
The above described property contains 12.841 acres, more or less, and
is shown on and described according to that certain Property Survey prepared
for Lear Seating Corporation and Chicago Title Insurance Company by Rochester &
Associates, Inc., dated April 19, 1994, last revised May 11, 1994.
TOGETHER with those easements and other rights provided to "Owners" of
real property that are set forth in the Declaration of Protective Covenants for
Atlanta Tradeport by Atlanta Tradeport Associates recorded in Deed Book 1508,
Page 308, records of Clayton County, Georgia, as amended by that certain First
Amendment dated January 25, 1989, recorded at Deed Book 1529, page 590,
aforesaid records, and as further amended by that certain Second Amendment
dated May 6, 1991, recorded at Deed Book 1705, Page 46, aforesaid records
(collectively the "Declaration") to the extent the same benefit the parcel of
land described above. However, nothing contained shall be construed as a
A-1
<PAGE> 34
LEAR SEATING CORPORATION
LEGAL DESCRIPTION OF REAL ESTATE
conveyance by Atlanta Tradeport Associates of any of its other easements or
rights under the Declaration (including its rights as the "Declarant"
thereunder or as an "Owner" of other parcels or any easements or rights of the
"Association" under the Declaration) or any other easements or rights
benefitting any other parcel of land that is subject to the Declaration.
A-2
<PAGE> 35
EXHIBIT B
LEAR SEATING CORPORATION
MACHINERY AND EQUIPMENT LIST ($000'S)
<TABLE>
<CAPTION>
PRODUCTION
QTY EACH AMOUNT TOTAL
--- ---- ------ -----
<S> <C> <C> <C> <C>
FRONT SEAT MARRIAGE FIXTURE 20 11 220
HALO FIXTURES 8 11 90
REAR 40/60 FIXTURES 8 7.5 60
R8C COMPRESSION FIXTURES 8 5 40
FSB FRAME ASSM 2 5 10
FSB TRIM TO FOAM 2 2 4
FSB CLOSE-OUT 2 2 4
FSC TRIM TO FOAM 2 3 6
FSC CLOSE-OUT 2 11 22
FSC TRACK FIXTURE 2 4 8
NUTRUNNERS 60 6 380
HOG RING GUNS 15
MISC. POWER TOOLS 50
BENCHES 17
REAR KITTING PALLETS 150 0.08 10
FRONT SEAT MANIPULATORS 10 11 110
BELT CONVEYOR OVER/UNDER 20
FRONT SEAT LINE CONVEYOR 637
REAR SEAT LINE 200
FINISHED GOODS 324
PALLET RETURN 175
SHIPPING SYSTEM 550
SOCIAL (LOCKERS TABLES) 70
SELF PIERCING RIVET GUN 3 12 36 $3038
---
MATERIALS
PART PRESENTATION TILT RACKS 6 10 60
TILT TABLES 3 3 9
RACKS ROLLERS/WAREHOUSE RACKS 60
SCALES 1 4 4
CELLULAR PHONES 2 1 2
TWO WAY RADIOS 20 1 20
END EFFECTORS 3 20 60
TRIM CARTS 20 3 60
CAGING 20
STRETCH WRAP 8
---
$303
</TABLE>
B-1
<PAGE> 36
EXHIBIT B
LEAR SEATING CORPORATION
MACHINERY AND EQUIPMENT LIST ($000'S)
<TABLE>
<CAPTION>
QTY EACH AMOUNT TOTAL
--- ---- ------ -----
<S> <C> <C> <C> <C>
COMPRESSOR 2 65 130
BOILER 2 30 60
OVEN 2 40 80
STEAM PIPING 50
AIR PIPING 200
ELECTRICAL 200
INSTALL 200
GENERATOR 274
TELEPHONE 75
COMPACTOR 2 25 50
---
$1319
MAINTENANCE
BAND SAW 8
DRILL PRESS 3
CUT-OFF SAW 4
HAND TOOLS 5
MIG WELDER 7
ACETYLENE TORCH 1
CABINETS/SHELVES 12
SWEEPER 15
BENCHES 5
---
$60
QUALITY
H-POINT/CONTOUR BUCKS 3 30 90
OSCAR 20
SHAKE TEST UNIT 195
VERNIERS/CALIPERS 2
BLUE PRINT FILES 2
LAYOUT TABLE 7
---
$316
OFFICE EQUIPMENT
PACKAGE ADMINISTRATION 150
SYSTEMS
QUALITY
HUMAN RESOURCES
ENGINEERING
MATERIALS
PRODUCTION
SIGN/SECURITY 1 30 30
$180
----
GRAND TOTAL $5,216
======
</TABLE>
B-2
<PAGE> 37
EXHIBIT C
REQUISITION NO.
----
Amount Requested:
Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested is
described in reasonable detail in Exhibit A hereto together with the name and
address of the person, firm or corporation to whom payment is due.
2. The bills, invoices or statements of account for each obligation
referenced in Exhibit A are attached hereto as Exhibit B.
3. The Company hereby certifies that:
(a) each obligation mentioned in Exhibit A has been properly
incurred, is a proper charge against the Construction Fund and has not
been the basis of any previous disbursement;
(b) the expenditure of the amount requested under this Requisition,
when added to all disbursements under previous Requisitions, will result
in at least ninety-five percent (95%) of the total of such disbursements,
other than disbursements for reasonable expenses incurred in connection
with the issuance of the Bonds, having been used (i) for the acquisition,
construction, reconstruction or improvement of land or property of a
character subject to the allowance for depreciation under the Code, or
(ii) for payment of amounts which are, for federal income tax purposes,
chargeable to the Project's capital account or would be so chargeable
either with a proper election by the Company or but for a proper
election by the Company to deduct such amounts; and
(c) the expenditures of the amount requested under this
Requisition, when added to all disbursements under previous Requisitions,
will result in no more than two percent (2%) of the aggregate face
amount of the Bonds being used for payment of Issuance Costs.
4. All capitalized terms herein shall have the meanings assigned
to them in the Loan Agreement dated as of September 1, 1994 among Development
Authority of Clayton County and Lear Seating Corporation.
This _______ day of ___________, 19____.
By:
------------------------------
Company Representative
C-1
<PAGE> 1
EXHIBIT 10.27
LOAN AGREEMENT
BETWEEN
CITY OF HAMMOND, INDIANA
AND
LEAR SEATING CORPORATION
--------------------------------------
$9,500,000
City of Hammond, Indiana
Adjustable Rate Economic Development Revenue Bonds of 1994
(Lear Seating Corporation Project)
Dated
as of
July 1, 1994
<PAGE> 2
INDEX
(This Index is not a part of the Agreement
but rather is for convenience of reference only)
<TABLE>
<CAPTION>
Preambles Page
--------- ----
<S> <C> <C>
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.4. Captions and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.5. References to Bank, Letter of Credit or Reimbursement Agreement
Ineffective During Certain Periods . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . . . . . . . . 6
Section 2.1. Representations, Warranties and Covenants of the Issuer . . . . . . . . . . 6
Section 2.2. Representations, Warranties and Covenants of the Borrower . . . . . . . . . 7
ARTICLE III ISSUANCE OF THE PROJECT BONDS . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1. Issuance of the Project Bonds; Application of Proceeds . . . . . . . . . . . 9
Section 3.2. Disbursements from the Construction Fund. . . . . . . . . . . . . . . . . . 9
Section 3.3. Investment of Fund Moneys . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.4. Arbitrage Rebate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.5. Borrower Required to Pay Costs in Event Construction Fund Insufficient . . . 12
Section 3.6. Completion Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PAYMENTS . . . . . . . . . . . . . . . . . . . 14
Section 4.1. Loan Repayment; Delivery of Notes . . . . . . . . . . . . . . . . . . . . . 14
Section 4.2. Additional Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.3. Place of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.4. Obligations Unconditional . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.5. Assignment of Agreement and Revenues . . . . . . . . . . . . . . . . . . . . 16
Section 4.6. Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
ARTICLE V ADDITIONAL AGREEMENTS AND COVENANTS . . . . . . . . . . . . . . . . . . . 17
Section 5.1. Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.2. Sale, Lease or Grant of Use by Borrower . . . . . . . . . . . . . . . . . 17
Section 5.3. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5.4. Borrower Not to Adversely Affect Exclusion from Gross Income of
Interest on Project Bonds . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 5.5. Assignment by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.6. Borrower's Performance Under Indenture . . . . . . . . . . . . . . . . . . 19
ARTICLE VI REDEMPTION OF PROJECT BONDS . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.1. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.2. Extraordinary Optional Redemption . . . . . . . . . . . . . . . . . . . . 20
Section 6.3. Mandatory Redemption of Project Bonds . . . . . . . . . . . . . . . . . . 21
Section 6.4. Actions by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.5. Required Deposits for Optional Redemption . . . . . . . . . . . . . . . . 22
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 7.2. Remedies on Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 7.3. No Remedy Exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses . . . . . . . . . . . . . . 25
Section 7.5. No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.6. Remedies Subject to Bank's Direction . . . . . . . . . . . . . . . . . . . 25
ARTICLE VIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.1. Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.3. Extent of Covenants of the Issuer; No Personal Liability . . . . . . . . . 26
Section 8.4. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.5. Amendments and Supplements . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.6. Execution Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.7. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.8. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.9. Act Promptly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
EXHIBIT A PROJECT NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B DESCRIPTION OF PROJECT . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C> <C>
EXHIBIT C COMPLETION CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
EXHIBIT D FORM OF DISBURSEMENT REQUEST . . . . . . . . . . . . . . . . . . . . . . . . D-1
</TABLE>
iii
<PAGE> 5
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of July 1, 1994
between the CITY OF HAMMOND, INDIANA, a municipal corporation, duly organized
and validly existing under the laws of the State of Indiana (the "Issuer"), and
LEAR SEATING CORPORATION, a Delaware corporation (the "Borrower"), under the
circumstances summarized in the following recitals (the capitalized terms not
defined above or in the recitals being used therein as defined in or pursuant
to Article I hereof):
A. Pursuant to the provisions of the laws of the State,
including the Act, the Issuer has now determined to provide financing for costs
of certain economic development facilities (the "Project").
B. The Borrower and the Issuer have full right and lawful
authority to enter into this Agreement and to perform and observe the
provisions hereof on their respective parts to be performed and observed.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto covenant, agree and bind
themselves as follows (provided that any obligation of the Issuer created by or
arising out of this Agreement shall not be a general debt on its part but shall
be payable solely out of the Revenues):
<PAGE> 6
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. Words and terms
defined in the Indenture shall have the same meanings when used herein, unless
the context or use clearly indicates another meaning or intent. In addition,
the words and terms set forth in Section 1.2 hereof shall have the meanings set
forth therein unless the context or use clearly indicates another meaning or
intent.
Section 1.2. Definitions. As used herein:
"Additional Payments" means the amounts required to be paid by the
Borrower pursuant to the provisions of Section 4.2 hereof.
"Agreement" means this Loan Agreement, as amended or supplemented from
time to time.
"Authorized Borrower Representative" means the President, any Vice
President or other officer of the Borrower authorized by the President or any
Vice President of the Borrower to act as the Borrower's representative under
this Agreement, the Indenture, the Remarketing Agreement and the Purchase
Contract.
"Co-Trustee" means the Co-Trustee at the time acting as such under the
Indenture, originally Calumet National Bank, Hammond, Indiana, as Co-Trustee,
and any successor Co-Trustee as determined or designated under or pursuant to
the Indenture.
"Event of Default" means any of the events described as an Event of
Default in Section 7.1 hereof.
"Force Majeure" means any of the causes, circumstances or events
described as constituting Force Majeure in Section 7.1 hereof.
"Indenture" means the Trust Indenture, dated as of even date herewith,
among the Issuer, the Trustee and the Co-Trustee, as amended or supplemented
from time to time.
"Loan" means the loan by the Issuer to the Borrower of the proceeds
received from the sale of the Project Bonds.
"Loan Payment Date" means any date on which any of the Loan Payments
are due and payable, whether at maturity, upon acceleration, call for
redemption or prepayment, or otherwise.
2
<PAGE> 7
"Loan Payments" means the amounts required to be paid by the Borrower
in repayment of the Loan pursuant to the provisions of the Notes and of Section
4.1 hereof.
"Notes" means the Project Note and any Additional Notes.
"Notice Address" means:
<TABLE>
<S> <C>
(a) As to the Issuer:
5925 Calumet Avenue
Hammond, IN 46320
Attention: Treasurer
cc: Carol M. Green, Esq.
McHie, Myers, McHie & Enslen
53 Muenich Ct.
Hammond, Indiana 46320-1798
(b) As to the Borrower:
Lear Seating Corporation
21557 Telegraph Road
Southfield, MI 48034
Attention: Donald Stebbins
cc: Joseph McCarthy
Lear Seating Corporation
21557 Telegraph Road
Southfield, MI 48034
(c) As to the Trustee:
NBD Bank, N.A.
One Indiana Square
Indianapolis, IN 46266
Attention: Corporate Trust Department, Suite 836
(d) As to the Co-Trustee:
Calumet National Bank
5231 Hohman Avenue
Hammond, IN 46325
Attention: Cletus Epple
</TABLE>
3
<PAGE> 8
<TABLE>
<S> <C>
(e) As to the Remarketing Agent:
William Blair & Company
222 West Adams Street
Chicago, IL 60606
Attention: Peter Raphael
</TABLE>
or such additional or different address, notice of which is given under Section
8.2 hereof.
"Project" means the Project as set forth in Exhibit B hereof.
"Project Bonds" means the City of Hammond, Indiana Adjustable Rate
Economic Development Revenue Bonds of 1994 (Lear Seating Corporation Project)
authorized in the Indenture, in the original principal amount of $9,500,000.
"Project Note" means the promissory note of the Borrower, dated as of
even date with the Project Bonds, in the form attached hereto as Exhibit A and
in the principal amount of $9,500,000 evidencing the obligation of the Borrower
to make Loan Payments.
"Remarketing Agreement" means the Remarketing Agreement of even date
herewith among the Borrower, the Issuer and William Blair & Company, as
Remarketing Agent, as amended and supplemented from time to time.
"Tax Certificate" means the Tax Representation Certificate of the
Borrower delivered in connection with the initial issuance and delivery of the
Project Bonds.
"Trustee" means the Trustee at the time acting as such under the
Indenture, originally NBD Bank, N.A., Indianapolis, Indiana, as Trustee, and
any successor Trustee as determined or designated under or pursuant to the
Indenture.
"Unassigned Issuer's Rights" means all of the rights of the Issuer to
receive Additional Payments under Section 4.2 hereof, to be held harmless and
indemnified under Section 5.3 hereof, to be reimbursed for attorney's fees and
expenses under Section 7.4 hereof, and to give or withhold consent to
amendments, changes, modifications, alterations and termination of this
Agreement under Section 8.5 hereof.
Section 1.3. Interpretation. Any reference herein to the Issuer, to
the Issuing Authority or to any member or officer of either includes entities
or officials succeeding to their respective functions, duties or
responsibilities pursuant to or by operation of law or lawfully performing
their respective functions.
Any reference to a section or provision of the Constitution of the
State or the Act, or to a section, provision or chapter of the Indiana Code or
to any statute of the United States of
4
<PAGE> 9
America, includes that section, provision, chapter or statute as amended,
modified, revised, supplemented or superseded from time to time; provided, that
no amendment, modification, revision, supplement or superseding section,
provision, chapter or statute shall be applicable solely by reason of this
provision if it constitutes in any way an impairment of the rights or
obligations of the Issuer, the Holders, the Trustee, the Bank or the Borrower
under this Agreement.
Unless the context indicates otherwise, words importing the singular
number include the plural number, and vice versa; the terms "hereof", "hereby",
"herein", "hereto", "hereunder" and similar terms refer to this Agreement; and
the term "hereafter" means after, and the term "heretofore" means before, the
date of delivery of the Project Bonds. Words of any gender include the
correlative words of the other genders, unless the sense indicates otherwise.
Section 1.4. Captions and Headings. The captions and headings in
this Agreement are solely for convenience of reference and in no way define,
limit or describe the scope or intent of any Articles, Sections, subsections,
paragraphs, subparagraphs or clauses hereof.
Section 1.5. References to Bank, Letter of Credit or Reimbursement
Agreement Ineffective During Certain Periods. During any period in which no
Letter of Credit is in effect and no amounts remain unreimbursed to the Bank
under the Reimbursement Agreement, references in this Agreement to the Bank,
the Letter of Credit and the Reimbursement Agreement shall be disregarded and
shall have no effect.
(End of Article I)
5
<PAGE> 10
ARTICLE II
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representations, Warranties and Covenants of the Issuer.
The Issuer represents and warrants that:
(a) It is a duly organized and validly existing
municipal corporation under the laws of the State;
(b) It has full legal right, power and authority to (i)
enter into this Agreement, the Purchase Contract, the Remarketing
Agreement, the Letter of Representations and the Indenture, (ii)
issue, sell and deliver the Project Bonds and (iii) carry out and
consummate all other transactions contemplated by this Agreement, the
Purchase Contract, the Remarketing Agreement, the Letter of
Representations and the Indenture.
(c) It has duly authorized (i) the execution, delivery and
performance of its obligations under this Agreement, the Project
Bonds, the Purchase Contract, the Remarketing Agreement, the Letter of
Representations and the Indenture, and (ii) the taking of any and all
such actions as may be required on the part of the Issuer to carry
out, give effect to and consummate the transactions contemplated by
such instruments.
(d) This Agreement, the Purchase Contract, the Remarketing
Agreement, the Letter of Representations and the Indenture constitute
legal, valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms; this Agreement, the Purchase
Contract, the Remarketing Agreement, the Letter of Representations and
the Indenture have been duly authorized and executed by the Issuer;
and, when authenticated by the Trustee in accordance with the
provisions of the Indenture, the Project Bonds will have been duly
authorized, executed, issued and delivered and will constitute legal,
valid and binding special obligations of the Issuer in conformity with
the provisions of the Act and the Constitution of the State.
(e) There is no action, suit, proceeding, inquiry, or
investigation at law or in equity or before or by any court, public
board or body, pending or, to the best of the knowledge of the Issuer,
threatened against the Issuer, nor to the best of the knowledge of the
Issuer is there any basis therefor, which in any manner questions the
validity of the Act, the powers of the Issuer referred to in paragraph
(b) above or the validity of any proceedings taken by the Issuer in
connection with the issuance of the Project Bonds or wherein any
unfavorable decision, ruling or finding could materially adversely
affect the transactions contemplated by this Agreement or which, in
any way, would adversely affect the validity or enforceability of the
Project Bonds, the Indenture, the Purchase Contract, the Remarketing
Agreement, the Letter of Representations or this Agreement (or of any
other instrument required or contemplated for use in consummating the
transactions contemplated thereby and hereby).
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(f) The execution and delivery by the Issuer of this
Agreement, the Project Bonds, the Purchase Contract, the Remarketing
Agreement, the Letter of Representations and the Indenture in
compliance with the provisions of each of such instruments will not
conflict with or constitute a breach of, or default under, any
material commitment, agreement or other instrument to which the Issuer
is a party or by which it is bound, or under any provision of the Act,
the Constitution of the State or any existing law, rule, regulation,
ordinance, judgment, order or decree to which the Issuer is subject.
(g) The Issuer will do or cause to be done all things
necessary, so far as lawful, to preserve and keep in full force and
effect its existence or to assure the assumption of its obligations
under this Agreement, the Indenture, the Remarketing Agreement, the
Letter of Representations and the Bonds by any successor public body.
(h) There are no existing liens, claims, charges or
encumbrances on or rights to the Pledged Taxes which are senior to, or
on a parity with, the claims of the Trustee pursuant to the Indenture
and the TIF Resolution. The Issuer has not entered into any contract
or arrangements of any kind and there is no existing, pending,
threatened or anticipated event or circumstances that might give rise
to any lien, claim, charge or encumbrance on or right to the Pledged
Taxes which would be prior to, or on a parity with, the claims of the
Trustee pursuant to the Indenture and the TIF Resolution. Under
current law and procedure, the Issuer is lawfully entitled to receive,
pledge and assign the Pledged Taxes as security for the payment of the
principal of and interest on the Project Bonds.
(i) Under current law, regulation and procedure, the
Issuer is lawfully entitled to receive, pledge and assign the Pledged
Taxes as security for the payment of the principal of and interest on
the Bonds as more fully set forth in the TIF Resolution.
Section 2.2 Representations, Warranties and Covenants of the Borrower.
The Borrower represents, warrants and covenants that:
(a) The Borrower is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware, is duly qualified to conduct business in the State and has
full corporate power and authority to execute, deliver and perform
this Agreement, the Purchase Contract, the Reimbursement Agreement,
the Remarketing Agreement, the Letter of Representations and the
Project Note and to enter into and carry out the transactions
contemplated by those documents; that execution, delivery and
performance do not, and will not, violate any provision of law
applicable to the Borrower or its Articles of Incorporation or By-laws
and do not, and will not, conflict with or result in a material
default under any agreement or instrument to which the Borrower is a
party or by which the Borrower is bound. This Agreement, the Purchase
Contract, the Reimbursement Agreement, the Remarketing Agreement, the
Letter of Representations and the Project Note, by proper corporate
action, have been duly authorized, executed and delivered by the
Borrower and are valid and binding obligations of the Borrower.
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(b) The Project is expected to create jobs and employment
opportunities within the jurisdiction of the Issuer, and the Project
will be operated and maintained in such manner as to conform in all
material respects with all applicable zoning, planning, building,
health, environmental and other applicable governmental rules and
regulations and as to be consistent with the Act.
(c) The representations contained in the Tax Certificate
(which is incorporated herein by this reference thereto) are true and
correct in all material respects and the Borrower will observe the
covenants contained therein as fully as if set forth herein.
(d) The Borrower is not in default in the payment of
principal of, or interest on, any of the Borrower's indebtedness for
borrowed money, or in default under any instrument under which, or
subject to which, any indebtedness has been incurred, and no event has
occurred and is continuing under the provisions of any agreement
involving the Borrower that, with the lapse of time or the giving of
notice, or both, would constitute an event of default thereunder,
which default would individually or in the aggregate have a material
and adverse effect upon the business or assets of the Borrower or
would materially and adversely affect the operation of the Project,
the validity of this Agreement, the Purchase Contract, the
Reimbursement Agreement, the Remarketing Agreement, the Letter of
Representations and the Project Note or the performance of the
Borrower's obligations thereunder or the transactions contemplated
hereby.
(e) No litigation at law or in equity nor any proceeding
before any governmental agency or other tribunal involving the
Borrower is pending or, to the knowledge of the Borrower, threatened,
in which any liability of the Borrower is not adequately covered by
insurance or in which any judgment or order would have a material and
adverse effect upon the business or assets of the Borrower or would
materially and adversely affect the operation of the Project, the
validity of this Agreement, the Purchase Contract, the Reimbursement
Agreement, the Remarketing Agreement, the Letter of Representations
and the Project Note or the performance of the Borrower's obligations
thereunder or the transactions contemplated hereby.
(f) The Borrower has not made and will not make any
changes to the Project or to the operation thereof which would affect
the qualification of the Project under the Act or impair the exclusion
from gross income for federal income tax purposes of the interest on
the Project Bonds.
(End of Article II)
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ARTICLE III
ISSUANCE OF THE PROJECT BONDS
Section 3.1. Issuance of the Project Bonds; Application of Proceeds.
To provide funds to make the Loan for purposes of financing the costs of the
Project, the Issuer will issue, sell and deliver the Project Bonds as required
by the provisions of the Purchase Contract. The Project Bonds will be issued
pursuant to the Indenture in the aggregate principal amount, will bear
interest, will mature and will be subject to redemption as set forth therein.
The Borrower hereby approves the terms and conditions of the Indenture and the
Project Bonds, and the terms and conditions under which the Project Bonds will
be issued, sold and delivered.
The proceeds from the sale of the Project Bonds shall be loaned to the
Borrower by depositing such proceeds with the Co-Trustee which shall deposit
them in the Construction Fund and thereafter transferring them as provided
herein and in the Indenture.
At the request of the Borrower, and for the purposes and upon
fulfillment of the conditions specified in the Indenture, the Issuer, in its
sole discretion, may provide for the issuance, sale and delivery of Additional
Bonds and loan the proceeds from the sale thereof to the Borrower.
Section 3.2. Disbursements from the Construction Fund..
(a) The Issuer has, in the Indenture, authorized
and directed the Co-Trustee, provided no Event of Default has
occurred and is continuing, to make disbursements from the
Construction Fund, to reimburse the Borrower or any person
designated by the Borrower for the following:
(i) Costs incurred directly or
indirectly for or in connection with the acquisition,
construction, improvement, installation or equipping
of the Project including, but not limited to, those
for preliminary planning and studies, architectural,
legal, engineering and supervisory services, labor,
services, materials, fixtures, and equipment;
(ii) Premiums attributable to all
insurance required to be taken out with respect to
the Project, the premium on each surety bond, if any,
required with respect to work on the Project, and
taxes, assessments and other charges in respect of
the Project, that may become due and payable;
(iii) Costs incurred directly or
indirectly in seeking to enforce any remedy against
any contractor, subcontractor, materialman or other
agent in respect of any default under any contract
relating to the Project;
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(iv) Financing, legal, accounting,
printing and engraving fees, charges and expenses,
and all other such fees, charges and expenses
incurred in connection with the authorization, sale,
issuance and delivery of the Project Bonds and the
preparation and delivery of this Loan Agreement and
related documents, the fees and expenses of the
Trustee, Co-Trustee, Registrar and Paying Agent,
properly incurred in connection with the execution
and delivery of the Indenture and of the Bank in
connection with the issuance of the Letter of Credit
and the execution and delivery of the Reimbursement
Agreement; and
(v) Any other incidental and necessary
costs including without limitation, expenses, fees
and charges relating to the acquisition,
construction, improvement, installation or equipping
of the Project; title charges, surveys, commitment
fees, appraisal fees and recording fees.
(b) Nothing contained herein permits or shall be
construed to permit the expenditure of any moneys in the
Construction Fund for, or in reimbursement of payments made
for, costs of issuance of the Project Bonds to the extent such
costs of issuance exceed 2% of the net proceeds of the Project
Bonds allocable to the Project within the meaning of Section
147(g) of the Code or for provision of working capital.
(c) All moneys in the Construction Fund
(including moneys earned thereon by investment thereof)
remaining after the completion of the acquisition,
construction, installation, equipment and improvement of the
Project and payment, or provision for payment in full of the
costs provided for in the preceding subsections of this
Section, then due and payable, shall promptly be (i) paid to
the Trustee for deposit into the Bond Fund to be used for the
redemption of the Project Bonds, or a portion thereof, at the
earliest possible date; provided that amounts approved in
writing by the Borrower shall be retained by the Co-Trustee in
the Construction Fund for payment of such costs not then due
and payable, or (ii) used to acquire, construct, install,
improve and equip such additional real and personal property
in connection with the Project as are designated by the
Authorized Borrower Representative, the acquisition,
construction, installation, improvement and equipping of which
will be such as is permitted under both the Act and the Code,
or (iii) used for a combination of any or all of the foregoing
as is provided in such direction.
(d) Disbursements from the Construction Fund for
the items described in the foregoing subsections 3.2(a)
through (c) shall be in the amount of such items. All
disbursements from the Construction Fund for the items
described in the foregoing subsections 3.2(a) through (c)
shall be made only upon the written order of the Authorized
Borrower Representative and the following conditions shall
have been satisfied with respect to such disbursement:
(A) There shall have been delivered
to the Co-Trustee a certificate of the
Authorized Borrower Representative in the
form of
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<PAGE> 15
Exhibit D attached hereto certifying, with
respect to such disbursement, (1) the
specific items, amounts and payees thereof,
(2) that none of the items for which the
disbursement is proposed to be made formed
the basis for any disbursement theretofore
made from the Construction Fund, (3) that
each item for which the disbursement is
proposed to be made is or was necessary in
connection with the Project, (4) that the
items requested qualify for such disbursement
under the provisions of subsections (i)
through (v) of Section 3.2(a), and (5) that
all construction on the Project thereto
performed is in accordance with the plans and
specifications for the Project; and
(B) There shall be in existence no
Event of Default or situation which, upon the
giving of notice or the passage of time or
both would become an Event of Default;
(e) Should the Borrower be unable to request final
disbursement from the Construction Fund as described above prior to a
date which is three (3) years from the Closing Date of the Project
Bonds, such funds remaining in the Construction Fund shall be
considered to be moneys remaining in the Construction Fund after
completion of the Project and shall be paid to the Trustee for deposit
into the Bond Fund and expended as described in this Section 3.2
unless the Borrower delivers to the Co-Trustee and the Trustee an
opinion of Bond Counsel that such treatment is not necessary to retain
the tax-exempt status of the Project Bonds.
Section 3.3. Investment of Fund Moneys. At the written or
oral request (promptly confirmed in writing) of the Authorized Borrower
Representative, any moneys held as part of the Bond Fund (except moneys held in
the Bond Fund from draws on the Letter of Credit for purposes of paying the
Bonds pursuant to Section 5.03 of the Indenture or defeasing the Project Bonds
pursuant to Article IX of the Indenture), the Construction Fund, the
Remarketing Reimbursement Fund or the Tax Increment Fund shall be invested or
reinvested by the Trustee or the Co-Trustee, as applicable in Eligible
Investments. The Issuer and the Borrower each hereby covenants that it will
restrict that investment and reinvestment and the use of the proceeds of the
Project Bonds in such manner and to such extent, if any, as may be necessary,
after taking into account reasonable expectations at the time of delivery of
and payment for the Project Bonds, so that the Project Bonds will not
constitute arbitrage bonds under Section 148 of the Code.
The Borrower shall provide the Issuer with, and the Issuer may
base its certifications as authorized by the Bond Legislation on, a certificate
of the Borrower for inclusion in the transcript of proceedings for the Project
Bonds, setting forth the reasonable expectations of the Borrower on the date of
delivery of and payment for the Project Bonds regarding the amount and use of
the proceeds of the Project Bonds and the facts, estimates and circumstances on
which those expectations are based.
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Section 3.4. Arbitrage Rebate. The Borrower agrees to compute and
make such payments to the United States of America as are required of it under
Section 5.11 of the Indenture. The obligation of the Borrower to make such
payments shall remain in effect and be binding upon the Borrower
notwithstanding the release and discharge of the Indenture.
The Borrower covenants to the owners of the Project Bonds
that, notwithstanding any other provision of this Agreement or any other
instrument, it shall take no action, nor shall the Borrower direct the Trustee
or Co-Trustee to take or approve the Trustee's or Co-Trustee's taking any
action, or direct the Trustee or Co-Trustee to make or approve the Trustee's or
Co-Trustee's making any investment or use of proceeds of the Project Bonds or
any other moneys which may arise out of or in connection with this Agreement,
the Indenture or the Project, which would cause the Project Bonds to be treated
as "arbitrage bonds" within the meaning of Section 148 of the Code. In
addition, the Borrower covenants and agrees to comply with the requirements of
Section 148(f) of the Code as it may be applicable to the Project Bonds or the
proceeds derived from the sale of the Project Bonds or any other moneys which
may arise out of, or in connection with, this Agreement, the Indenture or the
Project throughout the term of the Project Bonds. No provision of this
Agreement shall be construed to impose upon the Trustee or Co-Trustee any
obligation or responsibility for compliance with arbitrage regulations, except
as provided in the Indenture.
Section 3.5. Borrower Required to Pay Costs in Event Construction Fund
Insufficient. In the event that money in the Construction Fund is not
sufficient to pay all costs of providing the Project the Borrower shall,
nonetheless, complete the Project in order to fulfill the public purposes of
the Act and shall pay all costs of such completion in full from its own funds.
The Borrower shall not be entitled to any reimbursement for such completion
costs from the Issuer or any Trustee, Co-Trustee, Registrar or Paying Agent,
nor shall it be entitled to any abatement, diminution or postponement of Loan
Payments.
Section 3.6. Completion Date. The Completion Date of any additions or
improvements to the Project shall be evidenced to the Issuer, the Co-Trustee
and the Trustee by a certificate signed by the Authorized Borrower
Representative substantially in the form attached hereto as Exhibit C, stating:
(a) the date on which the additions or improvements to the
Project were substantially complete,
(b) that all other facilities necessary in connection with
such additions or improvements have been acquired, constructed,
improved, installed and equipped,
(c) that such additions and improvements have been
completed in such a manner as to conform with all applicable zoning,
planning, building, environmental and other similar governmental
regulations,
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(d) that all costs of such additions or improvements then
due and payable have been paid, and
(e) the amounts which the Co-Trustee should retain in the
Construction Fund for the payment of costs not yet due or the
liability for which the Borrower is contesting or which otherwise
should be retained and the reasons such amounts should be retained.
The Authorized Borrower Representative shall include with such
certificate a statement specifically describing all items of personal property
and fixtures acquired and installed as part of the Project.
(End of Article III)
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ARTICLE IV
LOAN BY ISSUER; REPAYMENT OF THE LOAN;
LOAN PAYMENTS AND ADDITIONAL PAYMENTS
Section 4.1. Loan Repayment; Delivery of Notes. Upon the terms and
conditions of this Agreement, the Issuer will make the Loan to the Borrower.
In consideration of and in repayment of the Loan, the Borrower shall make, as
Loan Payments, payments sufficient in time and amount in collected funds to pay
when due all Bond Service Charges, all as more particularly provided in the
Project Note and any Additional Note. The Project Note shall be executed and
delivered by the Borrower concurrently with the execution and delivery of this
Agreement. All Loan Payments shall be paid to the Trustee in accordance with
the terms of the Notes for the account of the Issuer and shall be held and
applied in accordance with the provisions of the Indenture and this Agreement.
To the extent of payments made with respect to Bond Service Charges pursuant to
draws upon the Letter of Credit or funds on deposit in the Bond Fund that have
been transferred from the Tax Increment Fund, the Borrower shall receive a
credit against its obligation to make Loan Payments under this Agreement and
the Project Note.
In connection with the issuance of any Additional Bonds, the Borrower
shall execute and deliver to the Trustee one or more Additional Notes in a form
substantially similar to the form of the Project Note. All such Additional
Notes shall:
(a) provide for payments of interest equal to the
payments of interest on the corresponding Additional Bonds;
(b) require payments of principal and prepayments and any
premium equal to the payments of principal, redemption payments and
sinking fund payments and any premium on the corresponding Additional
Bonds;
(c) require all payments on any such Additional Notes to
be made no later than the due dates for the corresponding payments to
be made on the corresponding Additional Bonds; and
(d) contain by reference or otherwise optional and
mandatory prepayment provisions and provisions in respect of the
optional and mandatory acceleration or prepayment of principal and any
premium corresponding with the redemption and acceleration provisions
of the corresponding Additional Bonds.
All Notes shall secure equally and ratably all outstanding Bonds,
except that, so long as no Event of Default described in paragraph (a), (b),
(c), (g) or (h) of Section 7.01 of the Indenture has occurred and is
continuing, payments by the Borrower on the Project Note shall be used by the
Trustee to reimburse the Bank for drawings on the Letter of Credit used to pay
Bond Service Charges on the Project Bonds.
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Upon payment in full, in accordance with the Indenture, of the Bond
Service Charges on any series of Bonds, whether at maturity or by redemption or
otherwise, or upon provision for the payment thereof having been made in
accordance with the provisions of the Indenture, (i) the Notes issued
concurrently with those corresponding Bonds, of the same maturity, bearing the
same interest rate and in an amount equal to the aggregate principal amount of
the Bonds so surrendered and canceled or for the payment of which provision has
been made, shall be deemed fully paid, the obligations of the Borrower
thereunder shall be terminated, and any such Notes shall be surrendered by the
Trustee to the Borrower, and shall be canceled by the Borrower, or (ii) in the
event there is only one of those Notes, an appropriate notation shall be
endorsed thereon by the Trustee evidencing the date and amount of the principal
payment or prepayment equal to the Bonds so paid, or with respect to which
provision for payment has been made, and that Note shall be surrendered by the
Trustee to the Borrower for cancellation if all Bonds shall have been paid (or
provision made therefor) and canceled as aforesaid. The Trustee shall promptly
provide the Borrower with a copy of each endorsement notation evidencing a
principal payment or prepayment. Unless the Borrower is entitled to a credit
under express terms of this Agreement or the Notes, all payments on each of the
Notes shall be in the full amount required thereunder.
Except for such interest of the Borrower and the Bank as may hereafter
arise pursuant to Section 5.07 or 5.08 of the Indenture, the Borrower and the
Issuer each acknowledge that neither the Borrower nor the Issuer has any
interest in the Bond Fund and any moneys deposited therein shall be in the
custody of and held by the Trustee in trust for the benefit of the Holders and,
to the extent of amounts due under the Reimbursement Agreement, the Bank.
Section 4.2. Additional Payments. The Borrower shall pay to the
Issuer, as Additional Payments hereunder, any and all reasonable costs and
expenses incurred or to be paid by the Issuer in connection with the issuance
and delivery of the Project Bonds and any Additional Bonds or otherwise related
to actions taken by the Issuer under this Agreement or the Indenture.
The Borrower shall pay to the Trustee, the Co-Trustee, the Registrar
and any Paying Agent or Authenticating Agent, their reasonable fees, charges
and expenses for acting as such under the Indenture.
The Borrower also shall pay the Remarketing Agent reasonable
remarketing fees in respect of the Project Bonds as provided in the Remarketing
Agreement.
Any payments under this Section not paid when due in the ordinary
course shall bear interest at the Interest Rate for Advances.
Section 4.3. Place of Payments. The Borrower shall make all Loan
Payments directly to the Trustee at its principal corporate trust office.
Additional Payments shall be made directly to the person or entity to whom or
to which they are due.
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Section 4.4. Obligations Unconditional. The obligations of the
Borrower to make Loan Payments, Additional Payments and any payments required
of the Borrower under Section 6.03 of the Indenture shall be absolute and
unconditional, and the Borrower shall make such payments without abatement,
diminution or deduction regardless of any cause or circumstances whatsoever
including, without limitation, any defense, set-off, recoupment or counterclaim
which the Borrower may have or assert against the Issuer, the Trustee, the
Co-Trustee any Paying Agent or Authenticating Agent, the Remarketing Agent, the
Bank or any other Person; provided that the Borrower may contest or dispute the
amount of any such obligation (other than Loan Payments) so long as such
contest or dispute does not result in an Event of Default under the Indenture.
Section 4.5. Assignment of Agreement and Revenues. To secure the
payment of Bond Service Charges, the Issuer shall assign to the Trustee, by the
Indenture, all its right, title and interest in and to the Revenues, the
Agreement (except for Unassigned Issuer's Rights) and the Project Note. The
Borrower hereby agrees and consents to that assignment.
Section 4.6. Letter of Credit. Simultaneously with the initial
delivery of the Project Bonds pursuant to the Indenture and the Purchase
Contract, the Borrower shall cause the Bank to issue and deliver the Letter of
Credit to the Trustee. The Letter of Credit may be replaced by an Alternate
Letter of Credit complying with the provisions of Section 5.10 of the
Indenture. The Borrower shall take whatever action may be necessary to
maintain the Letter of Credit or an Alternate Letter of Credit in full force
and effect during the period required by the Indenture. The Borrower shall
take whatever action may be necessary to maintain the Letter of Credit or an
Alternate Letter of Credit (the issuance of which will not cause a mandatory
tender for purchase of the Project Bonds) during any period that the Project
Bonds are not subject to optional redemption or are subject to optional
redemption at a redemption price in excess of 100% of the principal amount
thereof plus accrued interest to the Redemption Date; provided, that the
foregoing requirement shall apply only if the Project Bonds were remarketed for
such period as if secured by the Letter of Credit. The Borrower shall take
whatever action may be necessary to comply with all material terms of the
Reimbursement Agreement, including the timely payment to the Bank of all
amounts due and payable under the Reimbursement Agreement, and shall not permit
an event of default thereunder to occur. In no event, however, shall the
provisions of this Section 4.6 be construed to require the Borrower to secure
the Project Bonds with a Letter of Credit upon the conversion to the Fixed
Interest Rate or the Intermediate Interest Rate.
(End of Article IV)
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ARTICLE V
ADDITIONAL AGREEMENTS AND COVENANTS
Section 5.1. Right of Inspection. Subject to reasonable security and
safety regulations and upon 48 hours notice, the Trustee, the Co-Trustee and
their respective agents, shall have the right during normal business hours to
inspect the Project for any purpose relating to the validity of the Project
Bonds or the exclusion from gross income of the interest thereon for purposes
of federal income taxation.
Section 5.2. Sale, Lease or Grant of Use by Borrower. Subject to the
provisions of any agreement to which the Borrower is a party or by which it is
bound, the Borrower may sell, lease or grant the right to occupy and use the
Project, in whole or in part, to others, provided that:
(a) There shall be delivered to the Trustee an opinion of
Bond Counsel addressed to the Trustee, in form and substance
reasonably acceptable to the Trustee, to the effect that such sale,
assignment or leasing shall not adversely affect the tax- exempt
status of the interest payable on the Project Bonds then outstanding
or the validity of the Project Bonds under the Act; and
(b) The Borrower shall not be released from its
obligations under this Agreement unless the purchaser, assignee,
lessee or transferee shall assume in writing all obligations of the
Borrower under this Agreement and the Reimbursement Agreement.
Section 5.3. Indemnification. The Borrower releases the Issuer from,
agrees that the Issuer shall not be liable for, and shall indemnify the Issuer
against, all liabilities, claims, costs and expenses, including attorneys fees
and expenses, imposed upon, incurred or asserted against the Issuer by reason
of the Issuer's capacity as issuer of the Project Bonds and in connection with
this Agreement on account of: (a) any loss or damage to property or injury to
or death of or loss by any person that may be occasioned by any cause
whatsoever pertaining to the construction, maintenance, operation and use of
the Project; (b) any breach or default on the part of the Borrower in the
performance of any covenant or agreement of the Borrower under this Agreement,
the Reimbursement Agreement, the Project Note or any related document, or
arising from any act or failure to act by the Borrower, or any of the
Borrower's agents, contractors, servants, employees or licensees; (c) the
authorization, issuance, sale, trading, redemption or servicing of the Project
Bonds, and the provision of any information or certification furnished in
connection therewith concerning the Project Bonds, the Project or the Borrower
including, without limitation, the Preliminary Official Statement and the
Official Statement (each as defined in the Purchase Contract), any information
furnished by the Borrower for, and included in, or used as a basis for
preparation of, any certifications, information statements or reports furnished
by the Issuer, and any other information or certification obtained from the
Borrower to assure the exclusion of the interest on the Project Bonds from
gross income of the Holders thereof for federal income tax purposes; (d) the
Borrower's failure to comply with any requirement of this
17
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Agreement, the Code pertaining to such exclusion of that interest, including
the covenants in Section 5.4 hereof; and (e) any claim, action or proceeding
brought with respect to the matters set forth in (a), (b), (c), or (d) above.
The Borrower agrees to indemnify the Trustee and the Co-Trustee,
respectively, for, and to hold them harmless against, all liabilities, claims,
costs and expenses incurred without negligence or willful misconduct on the
part of the Trustee or the Co-Trustee on account of any action taken or omitted
to be taken by the Trustee or the Co-Trustee in accordance with the terms of
this Agreement, the Bonds, the Reimbursement Agreement, the Letter of Credit,
the Notes or the Indenture, or any action taken at the request of or with the
consent of the Borrower, including the costs and expenses of the Trustee or the
Co-Trustee in defending itself against any such claim, action or proceeding
brought in connection with the exercise or performance of any of its powers or
duties under this Agreement, the Bonds, the Indenture, the Reimbursement
Agreement, the Letter of Credit or the Notes.
In case any action or proceeding is brought against the Issuer, the
Co-Trustee or the Trustee in respect of which indemnity may be sought
hereunder, the party seeking indemnity promptly shall give notice of that
action or proceeding to the Borrower, and the Borrower upon receipt of that
notice shall have the obligation and the right to assume the defense of the
action or proceeding; provided, that failure of a party to give that notice
shall not relieve the Borrower from any of the Borrower's obligations under
this Section unless that failure materially prejudices the defense of the
action or proceeding by the Borrower. The Issuer, the Co-Trustee and the
Trustee agree to reasonably cooperate in good faith with the Borrower's defense
of any such action or defense. An indemnified party may employ separate
counsel and participate in the defense, if such indemnified party is advised in
a written opinion of counsel that there may be legal defenses available to such
indemnified party which are adverse to or in conflict with those available to
the Borrower, or that the defense of such indemnified party should be handled
by separate counsel under applicable standards of attorney ethics, the Borrower
shall be responsible for the reasonable fees and expenses of counsel retained
by such indemnified party in assuming its own defense; provided that the
counsel selected is approved by Borrower, which approval shall not be
unreasonably withheld. The Borrower shall not be liable for any settlement
made without the Borrower's consent.
The indemnification set forth above is intended to and shall include
the indemnification of all affected officials, directors, officers and
employees of the Issuer by reason of the Issuer's capacity as issuer of the
Project Bonds and in connection with this Agreement, the Co-Trustee and the
Trustee, respectively. That indemnification is intended to and shall be
enforceable by the Issuer, the Co-Trustee and the Trustee, respectively, to the
full extent permitted by law. Notwithstanding anything herein, no indemnity
shall be required hereunder for damages that result from the gross negligence
or willful misconduct on the part of the party seeking indemnity.
Section 5.4. Borrower Not to Adversely Affect Exclusion from Gross
Income of Interest on Project Bonds. The Borrower hereby represents that the
Borrower has taken and caused to
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<PAGE> 23
be taken, and covenants that the Borrower will take and cause to be taken, all
actions that may be required of the Borrower, alone or in conjunction with the
Issuer, for the interest on the Project Bonds to be and remain excluded from
gross income for federal income tax purposes, and represents that the Borrower
has not taken or permitted to be taken on the Borrower's behalf, and covenants
that the Borrower will not take or permit to be taken on the Borrower's behalf,
any actions that would adversely affect such exclusion under the provisions of
the Code. The Borrower hereby expressly incorporates herein the representative
covenants and warranties found in its Tax Certificate.
Section 5.5. Assignment by Issuer. Except for the assignment of this
Agreement to the Trustee and the Co-Trustee, the Issuer shall not attempt to
further assign, transfer or convey its interest in the Revenues or this
Agreement or create any pledge or lien of any form or nature with respect to
the Revenues or the payments hereunder.
Section 5.6. Borrower's Performance Under Indenture. The Borrower
has examined the Indenture and approves the form and substance of, and agrees
to be bound by, its terms. The Borrower, for the benefit of the Issuer and
each Bondholder, shall do and perform all acts and things required or
contemplated in the Indenture to be done or performed by the Borrower. The
Borrower is a third party beneficiary of certain provisions of the Indenture,
and Section 8.05 of the Indenture is hereby incorporated herein by reference.
(End of Article V)
19
<PAGE> 24
ARTICLE VI
REDEMPTION OF PROJECT BONDS
Section 6.1. Optional Redemption. At any time in the case of an
optional redemption of the Project Bonds in whole, or provided no Event of
Default shall have occurred and be continuing in the case of a partial optional
redemption of the Project Bonds, the Borrower may deliver moneys to the Trustee
in addition to Loan Payments or Additional Payments required to be made and
direct the Trustee to use the moneys so delivered for the purpose of purchasing
Project Bonds or of reimbursing the Bank for drawings on the Letter of Credit
used to redeem Project Bonds called for optional redemption in accordance with
and subject to the limitations set forth in the applicable provisions of the
Indenture.
Section 6.2. Extraordinary Optional Redemption. The Borrower shall
have, subject to the conditions hereinafter imposed, the option to direct the
redemption of the entire unpaid principal balance of the Project Bonds in
accordance with the applicable provisions of the Indenture upon the occurrence
of any of the following events:
(a) The Project shall have been damaged or destroyed to
such an extent that (1) it cannot reasonably be expected to be
restored, within a period of nine months, to the condition thereof
immediately preceding such damage or destruction or (2) its normal use
and operation is reasonably expected to be prevented for a period of
nine consecutive months;
(b) Title to, or the temporary use of, all or a
significant part of the Project shall have been taken under the
exercise of the power of eminent domain (1) to such extent that the
Project cannot reasonably be expected to be restored within a period
of nine months to a condition of usefulness comparable to that
existing prior to the taking or (2) as a result of the taking, normal
use and operation of the Project is reasonably expected to be
prevented for a period of nine consecutive months;
(c) As a result of any changes in the Constitution of the
State, the constitution of the United States of America, or state or
federal laws, or as a result of legislative or administrative action
(whether state or federal) or by final decree, judgment or order of
any court or administrative body (whether state or federal) entered
after the contest thereof by the Issuer, the Trustee or the Borrower
in good faith, this Agreement shall have become void or unenforceable
or impossible of performance in accordance with the intent and purpose
of the parties as expressed in this Agreement, or if unreasonable
burdens or excessive liabilities shall have been imposed with respect
to the Project or the operation thereof, including, without
limitation, federal, state or other ad valorem, property, income or
other taxes not being imposed on the date of this Agreement other than
ad valorem taxes presently levied upon privately owned property used
for the same general purpose as the Project; or
20
<PAGE> 25
(d) Changes in the economic availability of raw
materials, operating supplies, energy sources or supplies, or
facilities (including, but not limited to, facilities in connection
with the disposal of industrial wastes) necessary for the operation of
the Project shall have occurred or technological or other changes
shall have occurred which in the Borrower's reasonable judgment
render the operation of the Project uneconomic.
The Borrower also shall have the option, in the event that title to or
the temporary use of a portion of the Project shall be taken under the exercise
of the power of eminent domain, even if the taking is not of such nature as to
permit the exercise of the redemption option upon an event specified in clause
(b) above, to direct the redemption, at a redemption price of 100% of the
principal amount thereof prepaid, plus accrued interest to the redemption date,
of that part of the outstanding principal balance of the Project Bonds as may
be payable from the proceeds received by the Borrower (after the payment of
costs and expenses incurred in the collection thereof) in the eminent domain
proceeding, provided that any such optional redemption shall be in a principal
amount of $5,000 or any integral multiple thereof, and provided further that
the Borrower shall furnish to the Issuer and the Trustee a certificate of an
Engineer stating that (1) the property comprising the part of the Project taken
is not essential to continued operations of the Project in the manner existing
prior to that taking, (2) the Project has been restored to a condition
substantially equivalent to that existing prior to the taking, or (3) other
improvements have been acquired or made which are suitable for the continued
operation of the Project.
To exercise any option under this Section, the Borrower within 90 days
following the event authorizing the exercise of that option, or at any time
during the continuation of the condition referred to in clause (d) of the first
paragraph of this Section, shall give notice to the Issuer and to the Trustee
specifying the date of redemption, which date shall be not more than ninety
days from the date that notice is mailed, and shall make arrangements
satisfactory to the Trustee for the giving of the required notice of
redemption.
The rights and options granted to the Borrower in this Section may be
exercised whether or not the Borrower is in default hereunder; provided, that
such default will not relieve the Borrower from performing those actions which
are necessary to exercise any such right or option granted hereunder.
Section 6.3. Mandatory Redemption of Project Bonds. If, as provided
in the Project Bonds and the Indenture, the Project Bonds become subject to
mandatory redemption for any reason the Borrower shall deliver or cause to be
delivered to the Trustee, upon the date requested by the Trustee, moneys
sufficient to pay in full the Project Bonds in accordance with the mandatory
redemption provisions relating thereto set forth in the Indenture.
Section 6.4. Actions by Issuer. At the request of the Borrower or
the Trustee, the Issuer shall take all steps required of it under the
applicable provisions of the Indenture or the Bonds to effect the redemption of
all or a portion of the Bonds pursuant to this Article VI.
21
<PAGE> 26
Section 6.5. Required Deposits for Optional Redemption. Except with
the prior written consent of the Bank, if required pursuant to the
Reimbursement Agreement, the Trustee shall not give notice of call to the
Holders pursuant to the optional redemption provisions of Section 4.01 of the
Indenture and Sections 6.1 and 6.2 hereof unless prior to the date by which the
call notice is to be given there shall be on deposit with the Trustee funds,
which, assuming no Event of Default pursuant to Section 7.1(b) hereof will
occur prior to the date fixed for redemption, on the date fixed for redemption
will constitute Eligible Funds, sufficient to redeem at the redemption price
thereof, including interest accrued to the redemption date and premium, if any,
all Project Bonds for which notice of redemption is to be given.
All amounts paid by the Borrower pursuant to this Article which are
used to pay principal of, premium, if any, or interest on the Bonds, or to
reimburse the Bank for moneys drawn under the Letter of Credit and used for
such purposes, shall constitute prepaid Loan Payments. No moneys drawn under
the Letter of Credit shall be used to pay any portion of the premium on the
Project Bonds.
(End of Article VI)
22
<PAGE> 27
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.1. Events of Default. Each of the following shall be an
Event of Default:
(a) The Borrower shall fail to observe and perform any
material agreement, term or condition contained in this Agreement, and
the continuation of such failure for a period of 60 days after notice
thereof shall have been given to the Borrower by the Trustee, or for
such longer period as the Trustee may agree to in writing (which
agreement shall not be reasonably withheld); provided, that if the
failure is other than the payment of money and is of such nature that
it can be corrected but not within the applicable period, that failure
shall not constitute an Event of Default so long as the Borrower
institutes curative action within the applicable period and diligently
pursues that action to completion; and provided further that no such
failure shall constitute an Event of Default solely because it results
in a Determination of Taxability;
(b) The Borrower shall: (i) admit in writing its
inability to pay its debts generally as they become due; (ii) have an
order for relief entered in any case commenced by or against it under
the federal bankruptcy laws, as now or hereafter in effect; (iii)
commence a proceeding under any other federal or state bankruptcy,
insolvency, reorganization or similar law, or have such a proceeding
commenced against it and either have an order of insolvency or
reorganization entered against it or have the proceeding remain
undismissed and unstayed for 90 days; (iv) make an assignment for the
benefit of creditors; or (v) have a receiver or trustee appointed for
it or for the whole or any substantial part of its property;
(c) There shall occur an "Event of Default" as defined in
Section 7.01 of the Indenture.
Notwithstanding the foregoing, if, by reason of Force Majeure, the
Borrower is unable to perform or observe any agreement, term or condition
hereof which would give rise to an Event of Default under subsection (a)
hereof, the Borrower shall not be deemed in default during the continuance of
such inability. However, the Borrower shall promptly give notice to the
Trustee and the Issuer of the existence of an event of Force Majeure and shall
use its best efforts to remove the effects thereof; provided that the
settlement of strikes or other industrial disturbances shall be entirely within
the Borrower's discretion.
The term Force Majeure shall mean, without limitation, the following:
(i) acts of God; strikes; lockouts or other
industrial disturbances; acts of public enemies; orders or
restraints of any kind of the government of the United States
of America or of the State or any of their departments,
agencies, political subdivisions or officials, or any civil or
military authority; insurrections;
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<PAGE> 28
civil disturbances; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; tornados; storms; droughts;
floods; arrests; restraint of government and people;
explosions; breakage, malfunction or accident to facilities,
machinery, transmission pipes or canals; partial or entire
failure of utilities; shortages of labor, materials, supplies
or transportation; or
(ii) any cause, circumstance or event not
reasonably within the control of the Borrower.
The declaration of an Event of Default under subsection (b) above, and
the exercise of remedies upon any such declaration, shall be subject to any
applicable limitations of federal bankruptcy law affecting or precluding that
declaration or exercise during the pendency of or immediately following any
bankruptcy, liquidation or reorganization proceedings.
Section 7.2. Remedies on Default. Subject to the provisions of
Section 7.6 hereof, whenever an Event of Default shall have happened and be
continuing, any one or more of the following remedial steps may be taken:
(a) If and only if acceleration of the principal amount
of the Bonds has been declared pursuant to Section 7.03 of the
Indenture, the Trustee shall declare all Loan Payments and Notes to be
immediately due and payable, whereupon the same shall become
immediately due and payable;
(b) The Bank or the Trustee may have access to, inspect,
examine and make copies of the books, records, accounts and financial
data of the Borrower pertaining to the Project; and
(c) The Issuer or the Trustee may pursue all remedies now
or hereafter existing at law or in equity to collect all amounts then
due and thereafter to become due under this Agreement, the Letter of
Credit or the Notes or to enforce the performance and observance of
any other obligation or agreement of the Borrower under those
instruments.
Notwithstanding the foregoing, the Issuer shall not be obligated to
take any step which in its opinion will or might cause it to expend time or
money or otherwise incur liability unless and until a satisfactory indemnity
bond has been furnished to the Issuer at no cost or expense to the Issuer. Any
amounts collected as Loan Payments or applicable to Loan Payments and any other
amounts which would be applicable to payment of Bond Service Charges collected
pursuant to action taken under this Section shall be paid into the Bond Fund
and applied in accordance with the provisions of the Indenture or, if the
outstanding Bonds have been paid and discharged in accordance with the
provisions of the Indenture, shall be paid as provided in Section 5.08 of the
Indenture for transfers of remaining amounts in the Revenue Fund and the Bond
Fund.
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The provisions of this section are subject to the further limitation
that the rescission by the Trustee of its declaration that all of the Bonds are
immediately due and payable also shall constitute an annulment of any
corresponding declaration made pursuant to paragraph (a) of this Section and a
waiver and rescission of the consequences of that declaration and of the Event
of Default with respect to which that declaration has been made, provided that
no such waiver or rescission shall extend to or affect any subsequent or other
default or impair any right consequent thereon.
Section 7.3. No Remedy Exclusive. No remedy conferred upon or
reserved to the Issuer or the Trustee by this Agreement is intended to be
exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement, the Letter of Credit or any Note, or now or hereafter
existing at law, in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair that right or power or
shall be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. In order
to entitle the Issuer or the Trustee to exercise any remedy reserved to it in
this Article, it shall not be necessary to give any notice, other than any
notice required by law or for which express provision is made herein.
Section 7.4. Agreement to Pay Attorneys' Fees and Expenses. If an
Event of Default should occur and the Issuer or the Trustee should incur
expenses, including attorneys' fees, in connection with the enforcement of this
Agreement, the Letter of Credit or any Note or the collection of sums due
thereunder, the Borrower shall reimburse the Issuer and the Trustee, as
applicable, for the reasonable expenses so incurred upon demand.
Section 7.5. No Waiver. No failure by the Issuer or the Trustee to
insist upon the strict performance by the Borrower of any provision hereof
shall constitute a waiver of their right to strict performance and no express
waiver shall be deemed to apply to any other existing or subsequent right to
remedy the failure by the Borrower to observe or comply with any provision
hereof.
Section 7.6. Remedies Subject to Bank's Direction. Except in the
case of an Event of Default pursuant to Section 7.01(g) or (h) of the
Indenture, the Bank shall have the right to direct the remedies to be exercised
by the Trustee, whether under Article VII of this Agreement or under Article
VII of the Indenture.
(End of Article VII)
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<PAGE> 30
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Term of Agreement. This Agreement shall be and remain
in full force and effect from the date of initial delivery of the Project Bonds
until such time as all of the Bonds shall have been fully paid (or provision
made for such payment) pursuant to the Indenture and all other sums payable by
the Borrower under this Agreement and the Notes shall have been paid, except
for obligations of the Borrower under Sections 3.4, 4.2 and 5.3 hereof, which
shall survive any termination of this Agreement.
Section 8.2. Notices. All notices, certificates, requests or other
communications hereunder shall be in writing and shall be deemed to be
sufficiently given when mailed by first class mail, postage prepaid, and
addressed to the appropriate Notice Address. A duplicate copy of each notice,
certificate, request or other communication given hereunder to the Issuer, the
Borrower, the Remarketing Agent, the Co-Trustee or the Trustee shall also be
given to the others. The Borrower, the Issuer, the Remarketing Agent, the
Co-Trustee and the Trustee, by notice given hereunder, may designate any
further or different addresses to which subsequent notices, certificates,
requests or other communications shall be sent.
Section 8.3. Extent of Covenants of the Issuer; No Personal
Liability. All covenants, obligations and agreements of the Issuer contained
in this Agreement or the Indenture shall be effective to the extent authorized
and permitted by applicable law. No such covenant, obligation or agreement
shall be deemed to be a covenant, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer in other than his
official capacity, and neither the Common Council members of the Issuer nor any
official executing the Bonds shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of the issuance
thereof or by reason of the covenants, obligations or agreements of the Issuer
contained in this Agreement or in the Indenture.
Section 8.4. Binding Effect. This Agreement shall inure to the
benefit of and shall be binding in accordance with its terms upon the Issuer,
the Borrower and their respective successors and assigns; provided that this
Agreement may not be assigned by the Borrower (except pursuant to Section 5.2
hereof) and may not be assigned by the Issuer except to the Trustee pursuant to
the Indenture or as otherwise may be necessary to enforce or secure payment of
Bond Service Charges. This Agreement may be enforced only by the parties,
their assignees and others who may, by law, stand in their respective places.
Section 8.5. Amendments and Supplements. Except as otherwise
expressly provided in this Agreement, any Note or the Indenture, subsequent to
the issuance of the Project Bonds and prior to all conditions provided for in
the Indenture for release of the Indenture having been met, this Agreement or
any Note may not be effectively amended, changed, modified, altered or
terminated except in accordance with the applicable provisions of Article XI of
the Indenture.
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<PAGE> 31
Section 8.6. Execution Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be regarded as an original
and all of which shall constitute but one and the same instrument.
Section 8.7. Severability. If any provision of this Agreement, or
any covenant, obligation or agreement contained herein, is determined by a
court of competent jurisdiction to be invalid or unenforceable, that
determination shall not affect any other provision, covenant, obligation or
agreement, each of which shall be construed and enforced as if the invalid or
unenforceable portion were not contained herein. That invalidity or
unenforceability shall not affect any valid and enforceable application
thereof, and each such provision, covenant, obligation or agreement shall be
deemed to be effective, operative, made, entered into or taken in the manner
and to the full extent permitted by law.
Section 8.8. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
Section 8.9. Act Promptly. The Issuer and the Borrower each agree to
act promptly in taking any action required to be taken on its part in
accordance with the terms of this Agreement.
(End of Article VIII)
27
<PAGE> 32
IN WITNESS WHEREOF, the Issuer and the Borrower have caused this
Agreement to be duly executed in their respective names, all as of the date
first above written.
CITY OF HAMMOND, INDIANA
By: /s/ Duane W. Dedelow, Jr.
-----------------------------------
Duane W. Dedelow, Jr., Mayor
(SEAL)
Attest:
/s/ Gerald Bobos
------------------------------------
Gerald Bobos, Clerk
28
<PAGE> 33
LEAR SEATING CORPORATION
By: /s/ Donald J. Stebbins
----------------------------------
Donald J. Stebbins, Vice President
29
<PAGE> 34
EXHIBIT A
PROJECT NOTE
$9,500,000 July 1, 1994
Lear Seating Corporation, a Delaware corporation (the "Borrower"), for
value received, promises to pay to NBD Bank, N.A., Indianapolis, Indiana as
trustee (the "Trustee") under the Indenture hereinafter referred to, the
principal sum of
Nine Million Five Hundred Thousand Dollars
($9,500,000)
and to pay (i) interest on the unpaid balance of such principal sum from and
after the date of this Note at the interest rate borne by the Project Bonds
from time to time and (ii) interest on overdue principal, and to the extent
permitted by law, on overdue interest, at the interest rate provided under the
terms of the Project Bonds.
This Note has been executed and delivered by the Borrower pursuant to
a certain Loan Agreement (the "Agreement"), dated as of July 1, 1994, between
the City of Hammond, Indiana (the "Issuer") and the Borrower. Terms used but
not defined herein shall have the meanings ascribed to such terms in the
Agreement and the Indenture, as defined below.
Under the Agreement, the Issuer has loaned the Borrower the proceeds
received from the sale of the $9,500,000 aggregate principal amount of City of
Hammond, Indiana Adjustable Rate Economic Development Revenue Bonds of 1994
(Lear Seating Corporation Project), dated the date of their initial delivery
(the "Project Bonds"), to be applied to the acquisition, construction and
equipping of a manufacturing facility located in Hammond, Indiana. The
Borrower has agreed to repay such loan by making Loan Payments at the times and
in the amounts set forth in this Note. The Project Bonds have been issued,
concurrently with the execution and delivery of this Note, pursuant to, and are
secured by, the Trust Indenture (the "Indenture"), dated as of July 1, 1994,
among the Issuer, the Trustee and Calumet National Bank, as Co-Trustee.
To provide funds to pay the Bond Service Charges on the Project Bonds
as and when due, or to reimburse the Bank for draws under the Letter of Credit
to make such payments, the Borrower hereby agrees to and shall make Loan
Payments as follows: on each Interest Payment Date the amount equal to
interest due on the Project Bonds on such Interest Payment Date, and on each
July 1 the amount equal to the principal due and payable on the Project Bonds
on such date (if any) pursuant to the Indenture or upon maturity of the Project
Bonds (each such day being a "Loan Payment Date"). In addition, to provide
funds to pay the Bond Service Charges on the Project Bonds as and when due at
any other time, the Borrower hereby agrees to and shall make Loan Payments on
any other date on which any Bond Service Charges on the Project
A-1
<PAGE> 35
Bonds shall be due and payable, whether at maturity, upon acceleration, call
for redemption or otherwise.
If payment or provision for payment in accordance with the Indenture
is made in respect of the Bond Service Charges on the Project Bonds from moneys
other than Loan Payments, this Note shall be deemed paid to the extent such
payments or provision for payment of Bond Service Charges has been made. The
Borrower shall receive a credit against its obligation to make Loan Payments
hereunder to the extent of the moneys delivered to the Trustee under and
pursuant to the Letter of Credit and any other amounts on deposit in the Bond
Fund and available to pay Bond Service Charges on the Project Bonds pursuant to
the Indenture, including the Pledged Taxes. Subject to the foregoing, all Loan
Payments shall be in the full amount required hereunder.
All Loan Payments shall be payable in lawful money of the United
States of America and shall be made to the Trustee in immediately available
funds at its corporate trust office for the account of the Issuer, deposited in
the Bond Fund and used as provided in the Indenture.
The obligation of the Borrower to make the payments required hereunder
shall be absolute and unconditional and the Borrower shall make such payments
without abatement, diminution or deduction regardless of any cause or
circumstances whatsoever including, without limitation, any defense, set-off,
recoupment or counterclaim which the Borrower may have or assert against the
Issuer, the Trustee, the Co- Trustee, the Remarketing Agent, the Bank or any
other person.
This Note is subject to optional, extraordinary optional and mandatory
prepayment, in whole or in part, upon the same terms and conditions, on the
same dates and at the same prepayment prices, and subject to the same
limitations as the Project Bonds are subject to optional, extraordinary
optional and mandatory redemption. Any optional or extraordinary optional
prepayment is also subject to satisfaction of any applicable notice, deposit or
other requirements set forth in the Agreement or the Indenture.
Whenever an Event of Default under Section 7.01 of the Indenture shall
have occurred and, as a result thereof, the principal of and any premium on all
Bonds then outstanding, and interest accrued thereon, shall have been declared
to be immediately due and payable pursuant to Section 7.03 of the Indenture,
the unpaid principal amount of and any premium and accrued interest on this
Note also shall be due and payable on the date on which the principal of and
premium and interest on the Project Bonds shall have been declared due and
payable; provided that the annulment of a declaration of acceleration with
respect to the Bonds shall also constitute an annulment of any corresponding
declaration with respect to this Note.
A-2
<PAGE> 36
IN WITNESS WHEREOF, the Borrower has signed this Note as of July 1,
1994.
LEAR SEATING CORPORATION
By: -----------------------------------
Donald J. Stebbins, Vice President
A-3
<PAGE> 37
EXHIBIT B
DESCRIPTION OF PROJECT
The Project will consist of an approximate 98,600 square foot
manufacturing and assembly facility housed in a structure approximately 580
feet by 170 feet. Offices will be housed in an adjacent 40 foot by 210 foot
structure consisting of approximately 12,760 square feet. The
manufacturing/assembly facility will have an approximate 20 to 22 foot ceiling
access and 19 truck loading docks. A ring road will encircle the entire Plant
to provide access for incoming and outgoing trucks. An on-site parking lot
will have parking spaces for approximately 220 cars and 15 trailers. Estimated
cost of constructing the Plant is approximately $3.8 million. Estimated
investment for machinery and equipment to be located at the Plant is
approximately $5.62 million.
B-1
<PAGE> 38
EXHIBIT C
COMPLETION CERTIFICATE
To: Calumet National Bank, Co-Trustee
and NBD Bank, N.A., Trustee
City of Hammond, Indiana, Issuer
From: Authorized Borrower Representative
Subject: $9,500,000 City of Hammond, Indiana Adjustable Rate Economic
Development Revenue Bonds (Lear Seating Corporation Project)
The undersigned hereby certifies in connection with the Project,
financed with the proceeds of the above-described Project Bonds issued by the
City of Hammond, Indiana (the "Issuer") pursuant to the Trust Indenture dated
as of July 1, 1994 (the "Indenture") among the Issuer, NBD Bank, N.A. (the
"Trustee") and Calumet National Bank (the "Co-Trustee"), the proceeds of which
have been loaned to Lear Seating Corporation (the "Borrower") pursuant to the
Loan Agreement between the Borrower and the Issuer dated as of July 1, 1994
(the "Loan Agreement") (words capitalized herein have the meaning ascribed to
them in the Loan Agreement):
1. The acquisition, improvement, construction, installation and
equipping of the Project was substantially completed as of
__________________________, 19_______ (the "Completion Date").
2. All other facilities necessary in connection with the Project
have been acquired, constructed, improved, installed and equipped.
3. The Project has been completed in such manner as to conform
with all applicable zoning, planning, building, environmental, food handling
and other similar governmental regulations.
4. All costs of the Project have been paid in full except for
those not yet due and payable or being contested, which are described below and
for which money for payment thereof is being held and should be retained in the
Construction Fund:
C-1
<PAGE> 39
(a) Costs of the Project not yet due and payable:
Description Amount
(b) Payments being contested:
Description Amount
5. The money in the Construction Fund in excess of the total set
forth in 4(a) and (b) above represents the surplus proceeds of the Project
Bonds and the Co-Trustee under the Indenture is hereby authorized and directed
to transfer such money to the Trustee for deposits of such money to the Bond
Fund to be used to redeem the principal amount of outstanding Project Bonds at
the earliest possible time.
6. Attached hereto is a statement of the Authorized Borrower
Representative listing and specifically describing all items of personal
property and fixtures acquired and installed as part of the Project.
This certificate is given without prejudice to any rights against
third parties which exist at the date hereof or which may subsequently come
into being.
---------------------------------------------
Authorized Borrower Representative
Date: 19
---------------, -------
C-2
<PAGE> 40
EXHIBIT D
FORM OF DISBURSEMENT REQUEST
STATEMENT NO. _________ REQUESTING DISBURSEMENT OF FUNDS
FROM CONSTRUCTION FUND PURSUANT TO SECTION 3.2 OF THE
LOAN AGREEMENT BETWEEN THE CITY OF HAMMOND, INDIANA
AND LEAR SEATING CORPORATION
Pursuant to Section 3.2 of the Loan Agreement (the "Agreement")
between the City of Hammond, Indiana (the "Issuer") and Lear Seating
Corporation (the "Borrower") dated as of July 1, 1994, the undersigned
Authorized Borrower Representative hereby requests and authorizes Calumet
National Bank, as co-trustee (the "Co-Trustee"), as depository of the
Construction Fund created by the Indenture to pay to the Borrower or to the
person(s) listed on the Disbursement Schedule attached hereto as Exhibit A out
of the moneys deposited in the Construction Fund the aggregate sum of
$9,500,000 to pay such person(s) or to reimburse the Borrower in full, as
indicated on Exhibit A, for advances, payments and expenditures made by it in
connection with the items listed on Exhibit A.
Amount Requested:
Total Disbursements to Date:
1. Each obligation for which a disbursement is hereby requested
is described in reasonable detail in Exhibit A hereto together with the name
and address of the person, firm or corporation to whom payment is due.
2. The bills, invoices or statements of account for each
obligation referenced in Exhibit A are attached hereto as Exhibit B.
3. The Borrower hereby certifies that:
(a) each obligation referenced in Exhibit A has been
properly incurred, is a proper charge against the Construction Fund
and has not been the basis of any previous disbursement;
(b) the expenditure of the amount requested under this
Requisition, when added to all disbursements under previous
Requisitions, will result in at least ninety-five percent (95%) of the
total of such disbursements, having been used (i) for the acquisition,
construction, reconstruction or improvement of land or property of a
D-1
<PAGE> 41
character subject to the allowance for depreciation under the Code, or
(ii) for payment of amounts which are, for federal income tax
purposes, chargeable to the Project's capital account or would be so
chargeable either with a proper election by the Borrower or but for a
proper election by the Borrower to deduct such amounts and are to be
used for qualified purposes. (For purposes of this paragraph,
expenses incurred in connection with the issuance of the Project Bonds
shall not be included as a Project expense which would count toward
the representation of having used 95% of the total of such
disbursement for the stated purposes).
(c) no Event of Default has occupied and is continuing
under the hereinafter mentioned Loan Agreement.
(d) each obligation referenced in Exhibit A which is an
expense incurred in the issuance of the Bonds, when added to all
disbursements under previous Requisitions for expense incurred in the
issuance of the Bonds, does not exceed an amount equal to 2% of the
face amount of the Bonds allocable to the Project.
4. The Bank's approval of this requested disbursement from the
Construction Fund is not required under the Reimbursement Agreement with the
Bank.
5. All capitalized terms herein shall have the meanings assigned
to them in the Loan Agreement dated as of July 1, 1994, between the City of
Hammond, Indiana and Lear Seating Corporation.
LEAR SEATING CORPORATION
By:
----------------------------------------
Dated:
---------------------------
D-2
<PAGE> 42
EXHIBIT A
DISBURSEMENT SCHEDULE NO.
--------
<TABLE>
<CAPTION>
Payee TIN Address Purpose for Disbursement Amount
----- --- ------- ------------------------ ------
<S> <C> <C> <C> <C> <C>
1.
2.
3.
4.
5.
6.
--------------
TOTAL $
--------------
</TABLE>
D-3
<PAGE> 1
EXHIBIT 10.28
LEAR SEATING CORPORATION
PENSION EQUALIZATION PROGRAM
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Pension Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Supplemental Preretirement Death Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Supplemental Post Retirement Death Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Time Of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Form of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Income Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Social Security/Medicare Payroll Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Income Tax Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ERISA Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Employment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Incompetent Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
<S> <C>
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Amendment/Termination of the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Plan Survives Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Claims Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
-ii-
<PAGE> 4
1. PREAMBLE
An investor group purchased Lear Siegler Seating
Corporation on September 30, 1988 from Lear Seating
Diversified Holdings Corporation. Lear Siegler Seating
Corporation was subsequently renamed Lear Seating
Corporation. At the time of the purchase, certain highly
paid employees of Lear Siegler Seating Corporation were
covered by a nonqualified deferred compensation plan known
as the Supplemental Pension Plan for Officers of Lear
Siegler, Inc.
Following this purchase, the board of directors of Lear
Seating Corporation voted not to continue the Supplemental
Pension Plan For Officers Of Lear Siegler, Inc. as that
plan applied to its employees. In accordance with section
6.2 of the Supplemental Pension Plan For Officers Of Lear
Siegler, Inc., the board of directors voted to terminate
that plan with respect to employees of Lear Seating
Corporation and its subsidiaries. As a result of this
plan termination, the rights of all employees (with the
sole exception of Kenneth Way) under that plan were
completely extinguished.
Effective January 1, 1995, Lear Seating Corporation
established the Lear Seating Corporation Pension
Equalization Program. This Plan
-1-
<PAGE> 5
is not a successor to the Supplemental Pension Plan For
Officers Of Lear Siegler, Inc. The rights of employees
under this Plan are determined without regard to that
plan.
2. PURPOSE OF PLAN
The Qualified Pension Plan is designed to provide a
certain level of retirement income for employees of Lear
Seating. However, the Qualified Pension Plan is subject
to certain rules in the Internal Revenue Code that
restrict the level of retirement income that can be
provided to certain higher paid employees under that plan.
The purpose of the Plan is to supplement the pensions of
higher paid employees under the Qualified Pension Plan to
the extent these pensions are subject to these legal
restrictions, thereby providing these employees with a
level of retirement income comparable to that of other
employees. The board of directors believes that these
pension supplements are necessary in order to recruit and
retain senior executives.
-2-
<PAGE> 6
3. ELIGIBILITY
An employee of Lear Seating is eligible for a benefit
under the Plan if the employee satisfies all the
requirements described in this section.
(a) RETIREMENT AFTER 1994 The employee must separate
from service with Lear Seating after December 31,
1994, after completing 20 years of service and
after satisfying the requirements for early,
normal or disability retirement under the
Qualified Pension Plan.
(b) PARTICIPANT IN QUALIFIED PENSION Plan The
employee must have a vested right to an accrued
benefit under the Qualified Pension Plan.
(c) MEMBER OF TOP HAT GROUP The employee must be a
highly compensated employee or member of
management whose annual compensation exceeds
$150,000 and who belongs to the "top hat group"
as defined in the Employee Retirement Income
Security Act of 1974.
-3-
<PAGE> 7
(d) DESIGNATED BY BOARD OF DIRECTORS The employee
must be designated by the Compensation Committee
of the Board of Directors of Lear Seating as
eligible for the Plan.
4. VESTING
An employee has a vested right to a benefit under the Plan
as provided in this section. If an employee separates
from service with Lear Seating before vesting, the
employee forfeits any right to a benefit under the Plan.
(a) 20 YEARS OF SERVICE An employee has a vested
right to a benefit under the Plan as of the date
the employee completes 20 years of service with
Lear Seating or Lear Siegler, Inc. Years of
service are calculated in the same manner as
under the Qualified Pension Plan.
(b) ELIGIBILITY FOR RETIREMENT An employee with less
than 20 years of service has a vested right to a
benefit under the Plan as of the date the
employee satisfies the requirements for early,
normal or disability retirement under the
Qualified
-4-
<PAGE> 8
Pension Plan, except that the employee has not
separated from service with Lear Seating.
(c) CRIMINAL MISCONDUCT An employee who has vested
forfeits any right to a benefit under the Plan if
Lear Seating terminates the employee because of
fraud, embezzlement, misappropriation or other
criminal misconduct involving moral turpitude
committed in connection with employment with Lear
Seating.
5. PENSION SUPPLEMENT
An employee's benefit under the Plan is a pension
supplement equal to the difference between the employee's
actual vested accrued pension benefit under the Qualified
Pension Plan and the pension benefit the employee would
have accrued under the Qualified Pension Plan if the
Qualified Pension Limits were disregarded.
6. SUPPLEMENTAL PRERETIREMENT DEATH BENEFIT
A supplemental preretirement death benefit is paid to a
surviving spouse who is eligible for a preretirement
surviving spouse benefit under the Qualified Pension Plan.
This death benefit is paid only if,
-5-
<PAGE> 9
upon the death of the employee, the following requirements
have been met:
(a) death occurs subsequent to the employee becoming
eligible for Plan participation pursuant to
Section 3,
(b) death occurs subsequent to December 31, 1994,
(c) death occurs prior to the employee's date of
retirement under the Qualified Pension Plan, and
(d) death occurs while the employee is actively
employed by Lear Seating.
The supplemental preretirement death benefit is equal to
the difference between the actual preretirement surviving
spouse benefit under the Qualified Pension Plan and the
preretirement surviving spouse benefit that would be
available under the Qualified Pension Plan if the
Qualified Pension Limits were disregarded.
-6-
<PAGE> 10
7. SUPPLEMENTAL POST RETIREMENT DEATH BENEFIT
A supplemental post retirement death benefit is paid to
any individual who is a surviving spouse of an employee
who is eligible for the Plan and who is eligible for a
survivor's benefit under the Qualified Pension Plan. The
supplemental post retirement death benefit is equal to the
difference between the actual survivor's benefit under the
Qualified Pension Plan and the survivor's benefit that
would be available under the Qualified Pension Plan if the
Qualified Pension Limits were disregarded.
8. TIME OF PAYMENT
An individual's benefit under the Plan is paid at the same
time as the individual's benefit is paid under the
Qualified Pension Plan. However, an employee electing to
retire before age 65 under the Qualified Pension Plan must
provide Lear Seating with written notice of such election
at least 18 months prior to such retirement date.
-7-
<PAGE> 11
9. FORM OF PAYMENT
An individual's benefit under the Plan is paid in the same
form as the individual's benefit under the Qualified
Pension Plan. However, Lear Seating may, in its
discretion, elect to pay any benefit under the Plan in a
single lump sum that is the actuarial equivalent of the
benefit. Actual equivalence is determined using the GAM
1983 mortality table (adjusted to reflect a 50% male and
50% female population) and the annual interest rate on
30-year Treasury securities for the month prior to the
month of distribution.
10. INCOME TAX TREATMENT
This Plan is intended to be a nonqualified plan of
deferred compensation under which the benefits are not
subject to income tax until the year actually paid to
employees.
11. SOCIAL SECURITY/MEDICARE PAYROLL TAXES
Benefits under the Plan are wages for purposes of social
security and medicare payroll taxes. Benefits are subject
to payroll taxes in the year employees accrue the right to
the benefit or, if later, vest in the benefits.
-8-
<PAGE> 12
12. INCOME TAX WITHHOLDING
Lear Seating shall deduct from all payments under the Plan
the amount of federal and state income taxes it is
required to withhold.
13. FUNDING
The Plan is not funded. The liability for benefits under
the Plan consists of an entry in Lear Seating's financial
records. Payments to employees and beneficiaries are made
in cash from Lear Seating's general assets. In the event
Lear Seating seeks protection under the federal bankruptcy
laws, all persons are unsecured general creditors of Lear
Seating with respect to benefits derived from the Plan.
Lear Seating may in its discretion fund its liabilities
with respect to the Plan through a Rabbi Trust.
14. ERISA STATUS
The Plan is an unfunded promise to pay deferred
compensation. It is not intended to comply with section
401(a) of the Internal Revenue Code. Participation in the
Plan is limited to a select group of management and highly
compensated employees and the Plan is intended to qualify
for the top hat exemptions contained in sections
-9-
<PAGE> 13
201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement
Income Security Act of 1974.
15. ASSIGNMENT
Except to the extent required by law, Lear Seating will
not recognize any assignment, pledge, collateralization or
attachment of benefits under the Plan.
16. EMPLOYMENT RIGHTS
The Plan is not an employment contract and it creates no
right in any person to continue employment with Lear
Seating for any length of time.
17. PLAN ADMINISTRATOR
The Employee Benefits Committee of Lear Seating is the
plan administrator. Lear Seating has the authority to do
all things necessary to administer the Plan, including
construing its language and determining eligibility for
benefits. Lear Seating has the authority to equitably
adjust employees' rights under the Plan or the amount of
an employee's benefit. Lear Seating may adopt any rules
necessary to administer the Plan which are not
inconsistent with its
-10-
<PAGE> 14
terms. The board of directors may delegate the authority
to administer the Plan.
18. INCOMPETENT PERSONS
If Lear Seating finds that any person entitled to a
benefit under the Plan is unable to manage his or her
affairs because of legal incompetence, Lear Seating, in
its discretion, may pay the benefit due to such person to
an individual deemed by Lear Seating to be responsible for
the maintenance of such person. Any such payment
constitutes a complete discharge of the Lear Seating's
liability under the Plan.
19. EXPENSES
Lear Seating is responsible for the cost of administering
the Plan.
20. AMENDMENT/TERMINATION OF THE PLAN
Lear Seating may amend or terminate the Plan by resolution
of its board of directors or any duly authorized committee
of the board at any time. An amendment or plan
termination cannot reduce or eliminate the benefits
employees have accrued under the Plan as of the date of
the amendment is executed or the date the Plan is
terminated.
-11-
<PAGE> 15
21. PLAN SURVIVES CHANGE IN CONTROL
The obligations of Lear Seating under the Plan are binding
on any organization succeeding to substantially all the
assets and/or business of Lear Seating by sale or
otherwise. Lear Seating is obligated under the Plan to
make appropriate provision for the preservation of
employees' rights under any agreement or plan which it may
enter into or that effects a merger, consolidation,
reorganization, reincorporation, change of name or
transfer of company assets.
22. GOVERNING LAW
The validity and construction of the Plan is governed by
the laws of the State of Michigan, without giving effect
to the principles of conflicts of law.
23. CONSTRUCTION
The following principles apply to the construction of the
Plan.
(a) The plan administrator shall, in its discretion,
construe the language of the Plan and resolve all
questions concerning the administration and the
interpretation of the Plan document.
-12-
<PAGE> 16
(b) In the event any provision of the Plan is
declared invalid, in whole or in part, by any
legal authority, the remaining provisions of the
Plan are unaffected and remain in full force and
effect.
(c) A provision of the Plan which is invalid in any
jurisdiction remains in effect and is enforceable
in all jurisdictions in which the provision is
valid.
(d) Lear Seating may, in its discretion, construe a
provision of the Plan which is declared to be
invalid in such a manner that it is valid.
24. CLAIMS PROCEDURE
The claims procedure set forth in this paragraph is the
exclusive method of resolving disputes that arise under
the Plan.
(a) Written Claim Any claim that a person makes
under the Plan must be in writing. All claims
must be submitted to Lear Seating within six
months of the date on which the claimant
-13-
<PAGE> 17
contends he or she first had a right to receive a benefit
under the Plan.
(b) DENIAL OF CLAIM Where Lear Seating denies a
claim, in whole or in part, it must furnish the
claimant with a written notice of the denial
setting forth the following information, in a
manner calculated to be understood by the
claimant.
(1) A statement of the specific reasons for
the denial of the claim.
(2) References to the specific provisions of
the Plan on which the denial is based.
(3) A description of any additional material
or information necessary to perfect the
claim with an explanation of why such
material or information is necessary.
(4) An explanation of the claims review
procedure with a statement that the
claimant must request review of the
decision denying the claim within 90 days
following the
-14-
<PAGE> 18
date on which such notice was received by
the claimant.
The written notice of denial must be mailed to
the claimant within 90 days following the date on
which the claim was received by Lear Seating. If
special circumstances require an extension of
time for processing a claim, the written notice
may be mailed to the claimant not more than 180
days following the date on which the claim was
received by Lear Seating. Within the initial 90
day period, the claimant must be notified in
writing of the extension, of the special
circumstances requiring the extension and of the
date by which the claimant will be furnished with
written notice of the decision concerning the
claim.
(c) REVIEW OF DENIAL The claimant may request
review of the denial of a claim. A request for
review must be mailed to Lear Seating within 90
days of the date on which the written notice of
denial is received by the claimant and must set
forth the following information.
-15-
<PAGE> 19
(1) The date on which the notice of denial of
the claim was received by the claimant.
(2) The specific portions of the denial of
the claim that the claimant disputes.
(3) A statement by the claimant setting forth
the basis upon which the claimant
believes Lear Seating should reverse the
denial of the claim for benefits under
the Plan.
(4) Written material (included as exhibits)
that the claimant desires Lear Seating to
examine.
(d) DECISION ON REVIEW Lear Seating must afford the
claimant an opportunity to review documents
pertinent to the claim and must conduct a full
and fair review of the claim and its denial.
Lear Seating's decision on review must be
furnished to the claimant in writing in a manner
calculated to be understood by the claimant. The
decision must include a statement of the reasons
for the decision with references to the specific
-16-
<PAGE> 20
provisions of the Plan upon which the decision is
based. The decision on review must be mailed to
the claimant within 90 days following the date on
which the request for review is received by Lear
Seating. If special circumstances require an
extension of time to consider a request for
review, Lear Seating's written review of the
claim may be mailed to the claimant not more than
180 days after Lear Seating received the request
for review. Within the initial 90 day period,
Lear Seating must notify the claimant in writing
of the extension, the special circumstances
requiring the extension and of the date by which
the claimant will be furnished with written
notice of the decision reviewing the claim.
(e) TRANSMISSION OF DOCUMENTS All written documents
required by these claim procedures must be sent
by first-class certified mail (return receipt
requested) through the United States Postal
Service. The date on which any document is
mailed is determined by the postmark affixed to
the document by the United States Postal Service.
The date on which any document is received is
determined by the date on the signed receipt for
certified mail. Notices to a claimant must be
mailed
-17-
<PAGE> 21
to the claimant's last known address. Notices
to Lear Seating must be mailed to:
Vice President of Human Resources
Lear Seating Corporation
21557 Telegraph Road
Southfield, Michigan 48034
25. DEFINITIONS
(a) LEAR SEATING Lear Seating Corporation.
(b) PLAN The Lear Seating Corporation Pension
Equalization Program.
(c) QUALIFIED PENSION LIMITS The qualified pension
limits are the restriction on compensation that
can be taken into account under tax qualified
pension plans is in section 401(a)(17) of the
Internal Revenue Code and the annual dollar limit
on pensions that can accrue under tax qualified
pension plans is in section 415 of the Internal
Revenue Code. Such amounts are adjusted from
time to time by the Commissioner of Internal
Revenue to reflect increases in the cost of
living.
-18-
<PAGE> 22
(d) QUALIFIED PENSION PLAN The Lear Seating
Corporation Pension Plan.
-19-
<PAGE> 23
EXECUTION
WHEREFORE, Lear Seating Corporation has executed the Plan on the day of
__________________, 1995.
LEAR SEATING CORPORATION
By
Its
ATTEST:
__________________
END
-20-
<PAGE> 1
Exhibit 11.1
COMPUTATION OF NET INCOME (LOSS) PER SHARE
(in millions, except share information)
<TABLE>
<CAPTION>
For the Year Ended For the Year Ended For the Six Months Ended
December 31, 1994 December 31, 1993 December 31,1993
---------------------------- ------------------------- -----------------------------
Primary Fully Diluted Primary Fully Diluted(3) Primary Fully Diluted(3)
------------ --------------- ---------- ------------- ----------- --------------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before
extraordinary items $ 59.8 $ 59.8 $ (2.1) $ (2.1) $ (23.0) $ (23.0)
Extraordinary items 0.0 0.0 (11.7) (11.7) (11.7) (11.7)
------------ ----------- ---------- ----------- ------------ -----------
Net income (loss) $ 59.8 $ 59.8 $ (13.8) $ (13.8) $ (34.7) $ (34.7)
============ =========== ========== =========== =========== ===========
Weighted Average Shares:
Common shares outstanding 42,602,167 42,602,167 35,500,014 35,500,014 35,500,014 35,500,014
Exercise of stock options(1) 3,321,954 3,443,913 - 2,801,372 - 2,801,372
Exercise of warrants(2) 1,514,356 1,514,356 - 3,300,000 - 3,300,000
------------ ----------- ---------- ----------- ----------- -----------
Common and equivalent shares
outstanding 47,438,477 47,560,436 35,500,014 41,601,386 35,500,014 41,601,386
============ =========== ========== =========== =========== ===========
Per Common and Equivalent
Share:
Income (loss) before
extraordinary items $ 1.26 $ 1.26 $ (0.06) $ (0.05) $ (0.65) $ (0.55)
Extraordinary items - - (0.33) (0.28) (0.33) (0.28)
------------ ----------- ---------- ----------- ----------- -----------
Net income (loss) $ 1.26 $ 1.26 $ (0.39) $ (0.33) $ (0.98) $ (0.83)
============ =========== ========== =========== =========== ===========
<CAPTION>
For the Year Ended
June 30, 1993
-----------------------------
Primary Fully Diluted
--------- -------------
<S> <C> <C>
Income (loss) before
extraordinary items $ 10.1 $ 10.1
Extraordinary items 0.0 0.0
--------- -------------
Net income (loss) $ 10.1 $ 10.1
========== =============
Weighted Average Shares:
Common shares outstanding 35,166,747 35,166,747
Exercise of stock options(1) 1,582,317 1,582,317
Exercise of warrants(2) 3,300,000 3,300,000
--------- -------------
Common and equivalent shares
outstanding 40,049,064 40,049,064
========== =============
Per Common and Equivalent
Share:
Income (loss) before
extraordinary items $ 0.25 $ 0.25
Extraordinary items - -
--------- -------------
Net income (loss) $ 0.25 $ 0.25
========== =============
<CAPTION>
For the Year Ended For the Year Ended For the Six Months Ended
June 30, 1992 June 30, 1991 June 30, 1990
----------------------------- ------------------------------ ----------------------------
Primary Fully Diluted(3) Primary Fully Diluted (3) Primary Fully Diluted(3)
--------- ---------------- --------- ----------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Income (loss) before
extraordinary items $ (17.1) $ (17.1) $ (33.2) $ (33.2) $ (20.6) $ (20.6)
Extraordinary items $ (5.1) $ (5.1) $ 0.0 $ 0.0 $ 0.0 $ 0.0
----------- ---------- ----------- ------------ ----------- -----------
Net income (loss) $ (22.2) $ (22.2) $ (33.2) $ (33.2) $ (20.6) $ (20.6)
=========== =========== =========== ============ =========== ===========
Weighted Average Shares:
Common shares
outstanding 27,768,312 27,768,312 16,493,499 16,493,499 16,500,000 16,500,000
Exercise of stock
options(1) - 1,582,317 - 1,339,404 - 1,339,404
Exercise of warrants(2) - 3,300,000 - 3,300,000 - 3,300,000
---------- ----------- ----------- ------------ ----------- -----------
Common and equivalent
shares outstanding 27,768,312 32,650,629 16,493,499 21,132,903 16,500,000 21,139,404
=========== =========== =========== ============ =========== ===========
Per Common and Equivalent
Share:
Income (loss) before
extraordinary items $ (0.62) $ (0.52) $ (2.01) $ (1.57) $ (1.25) $ (0.97)
Extraordinary items (0.18) (0.16) - - - -
----------- ------------- ----------- ------------ ----------- -----------
Net income (loss) $ (0.80) $ (0.68) $ (2.01) $ (1.57) $ (1.25) $ (0.97)
=========== =========== =========== ============ =========== ===========
</TABLE>
------------------------
(1) Amount represents the number of shares issued assuming exercise of stock
options, reduced by the number of shares which could have been
purchased with the proceeds from the exercise of such options.
(2) Amount represents the number of common shares issued assuming exercise
of warrants outstanding.
(3) This calculation is submitted in accordance with Regulation S-K item
601(b)(11) although not required by footnote 2 to paragraph 14 of the
APB Opinion No. 15 because of the antidlutitive effect on net loss per
share.
<PAGE> 1
Exhibit 21.1
SUBSIDIARIES OF THE COMPANY
Central de Industrias S.A. de C.V. (99.6%) (Mexico)
Equipos Automotrices Totales S.A. de C.V. (Mexico)
Fair Haven Industries, Inc. (Michigan)
Favesa S.A. de C.V. (Mexico)
General Seating of Canada (35%) (Canada)
General Seating of America (35%) (Delaware)
Industrias Cousin Freres S.L. (49.9%) (Spain)
Intertrim S.A. de C.V (99.5%) (Mexico)
Lear France E.U.R.L (France)
Lear Plastics Corporation (Delaware)
Lear Seating (Thailand) Corp., Ltd. (49%) (Thailand)
Lear Seating (U.K.) Ltd. (United Kingdom)
Lear Seating Australia Pty., Ltd. (Australia)
Lear Seating Austria Autositze (Austria)
Lear Seating Austria Autositze GmbH & Co. KG (Austria)
Lear Seating Canada Ltd. (Canada)
Lear Seating GmbH (Germany)
Lear Seating GmbH & Co. KG (Germany)
Lear Seating Holdings Corp. No. 50 (Delaware)
Lear Seating Industries Holdings B.V. (Netherlands)
Lear Seating International Ltd. (Barbados)
Lear Seating Italia S.r.L. (Italy)
Lear Seating Poland Sp. Z o.o. (Poland)
Lear Seating Sweden, AB (Sweden)
Logmex S.A. de C.V. (49%) (Mexico)
LS Acquisition Corp. No. 14 (Delaware)
LS Acquisition Corporation No. 24 (Delaware)
Markol Otomotiv Yan Sanayi Ve Ticaret Anonim Sirketi (35%) (Turkey)
No Sag Drahtfedern GmbH (Germany)
No Sag Drahtfedern Spitzer & Co. KG (Austria)
NS Beteilgungs GmbH (Germany)
Pacific Trim Corporation Ltd. (20%) (Thailand)
Probel S.A. (30.86%) (Brazil)
Progress Pattern Corporation (Delaware)
SEPI S.p.A. (Italy)
SEPI Sud S.p.A. (Italy)
Societe No Sag Francaise (56%) (France)
Souby S.A. (France)
Spitzer GmbH (62.5%) (Austria)
All Subsidiaries are wholly-owned unless otherwise indicated.
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation of our reports included in this Form 10-K, into Lear
Seating Corporation's previously filed Registration Statements on Form
S-8 File Nos. 33-55783 and 33-57237, and Form S-3 File Nos. 33-51317
and 33-47867.
ARTHUR ANDERSEN LLP
Detroit, Michigan
March 22, 1995.
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<CASH> 32
<SECURITIES> 0
<RECEIVABLES> 580
<ALLOWANCES> 0
<INVENTORY> 127
<CURRENT-ASSETS> 818
<PP&E> 505
<DEPRECIATION> 150
<TOTAL-ASSETS> 1715
<CURRENT-LIABILITIES> 981
<BONDS> 419
<COMMON> 0
0
0
<OTHER-SE> 213
<TOTAL-LIABILITY-AND-EQUITY> 1715
<SALES> 3148
<TOTAL-REVENUES> 3148
<CGS> 2884
<TOTAL-COSTS> 2884
<OTHER-EXPENSES> 102
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 47
<INCOME-PRETAX> 115
<INCOME-TAX> 55
<INCOME-CONTINUING> 60
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 60
<EPS-PRIMARY> 1.26
<EPS-DILUTED> 1.26
</TABLE>
