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FORM 10-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1996
Commission File Number 0-22580
JPE, INC.
(Exact Name of Registrant as Specified in its Charter)
Michigan
(State of Incorporation)
38-2958730
(I.R.S. Employer Identification No.)
900 Victors Way, Suite 140
Ann Arbor, Michigan 48108
(Address of Principal Executive Offices)
Registrant's telephone number, including area code:
(313) 662-2323
Securities Registered Pursuant to Section 12(b) of the Act:
None
Securities Registered Pursuant to Section 12(g) of the Act:
Title of Class
Common Stock
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. [X]
The aggregate market value of the Registrant's Common Stock held by
non-affiliates of the Registrant on March 17, 1997 (based on the closing price
of $7.125 per share of the Registrant's Common Stock as reported on the Nasdaq
National Market on such date) was approximately $26,398,702.
Number of shares outstanding of the Registrant's Common Stock at March 17, 1997:
4,602,180 shares of Common Stock
Certain portions of the Registrant's Proxy Statement for the 1997 Annual Meeting
of Shareholders, scheduled to be held May 15, 1997, are incorporated by
reference into Part III of this Report on Form 10-K.
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<PAGE>
TABLE OF CONTENTS
Item Pages
- ---- -----
PART I
1. Business 3-11
2. Properties 12
3. Legal Proceedings 12
4. Submission of Matters to a Vote of Security Holders 12-13
Supplemental Item. Executive Officers of the Registrant
PART II
5. Market for Registrant's Common Equity and Related
Stockholder Matters 14
6. Selected Financial Data 15
7. Management's Discussion and Analysis of Financial
Condition and Results of Operations 16-20
8. Financial Statements and Supplementary Data 21-40
9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure 41
PART III
10. Directors and Executive Officers of the Registrant 41
11. Executive Compensation 41
12. Security Ownership of Certain Beneficial Owners
and Management 41
13. Certain Relationships and Related Transactions 42
PART IV
14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K 42-46
Signatures 47
FINANCIAL STATEMENT SCHEDULES
JPE, Inc. and Subsidiary Financial Statement Schedules 48
Exhibit Index 50-52
<PAGE>
PART I
ITEM 1. BUSINESS
GENERAL
JPE, Inc. (together with its consolidated subsidiaries, the "Company"), through
its six operating subsidiaries, manufactures and distributes automotive and
truck components to original equipment manufacturers ("OEMs") and to the
aftermarket. The Company's business strategy is to acquire, develop and operate
manufacturing and distribution businesses in the automotive components industry
which have significant potential for growth in sales and earnings. Since
December 1992, the Company has completed six acquisitions, which are described
below:
<TABLE>
<CAPTION>
Effective
Date of Product Primary Major
Acquisition Acquisition Classes Market Customers
- ----------- ----------- ------- ------ ---------
<S> <C> <C> <C> <C>
December Dayton Parts, Heavy-duty Heavy-duty Haygood Limited
1992 Inc. ("DPI") undercarriage truck and Inland Truck
parts trailer Parts
aftermarket ARC Remanu-
facturing
July 1994 Allparts, Inc. Brake systems Automotive Autozone
("Allparts") aftermarket
September SAC Corporation Exterior trim Automotive General Motors
1994 ("Starboard") and light truck Ford
OEM Chrysler
February Industrial & Fasteners Automotive Ford
1995 Automotive and light truck General Motors
Fasteners, OEM Chrysler
Inc. ("IAF")
March 1995 Plastic Trim, Exterior trim Automotive General Motors
Inc. ("PTI") and light truck Chrysler
OEM Ford
December Pebra Inc. Exterior trim Automotive General Motors
1996 ("JPE Canada") and light truck
OEM
</TABLE>
The following table sets forth information regarding the Company's sales in
certain classes of similar products as percentages of net sales for the periods
indicated.
<PAGE>
<TABLE>
<CAPTION>
Percentage of Net Sales
Year ended December 31,
-----------------------
Pro Forma
1993(1) 1994 1995 1996 1996(2)
------- ---- ---- ---- -------
<S> <C> <C> <C> <C> <C>
OEM:
Exterior Trim........................ -- 12.5% 44.2% 46.8% 61.1%
Fasteners............................ -- -- 15.8 16.2 11.8
Aftermarket:
Heavy-duty undercarriage parts....... 100.0% 81.3 33.7 30.4 22.3
Other................................ -- 6.2 6.3 6.6 4.8
------ ------ ------ ------ ------
100.0% 100.0% 100.0% 100.0% 100.0%
====== ====== ====== ====== ======
<FN>
(1) The Company purchased its first operation on December 31, 1992, as such
there were no sales in 1992.
2) Pro forma data for the year ended December 31, 1996, as if the Company's
acquisition of JPE Canada had been completed on January 1, 1996.
</FN>
</TABLE>
ORIGINAL EQUIPMENT
The Company's OEM group consists of four operations: Starboard, PTI, JPE Canada
and IAF. Starboard manufactures and supplies luster, powder coated and
co-extruded metallic decorative and functional exterior trim parts. PTI
manufactures and supplies decorative extruded plastic exterior trim. JPE Canada
manufactures and supplies plastic injection-molded fascias, rocker panels and
body-side moldings. Starboard, PTI and JPE Canada supply parts directly to OEMs
and to suppliers which sell to OEMs ("Tier 1 suppliers"). All of the parts
supplied are utilized in automotive and light truck applications.
IAF manufactures and supplies decorative, specialty and standard wheel nuts for
domestic OEMs and certain Japanese transplants. In addition, IAF uses its
proprietary process to manufacture stainless steel capped wheel nuts.
On December 23, 1996, the Company acquired certain assets of Pebra Inc., a
Canadian company which had filed for protection from creditors under the
Companies' Creditors Arrangement Act ("CCAA"). Pebra Inc. filed for protection
under the CCAA because the operations were experiencing excessive scrap,
production inefficiencies, quality issues and substantial losses which
management projected would continue under the existing operating structure. As a
result of these negative trends and the CCAA filing, the Company was able to
purchase certain assets of Pebra Inc. ("JPE Canada") at a substantial discount.
On the date of acquisition, the Company began to implement a detailed plan to
turn around the operations. This plan included a supplier agreement with JPE
Canada's major customer and a realignment of the existing sales and
administrative cost structure, both of which were executed as part of the
acquisition. With these two steps, the addition of certain essential capital
equipment and a revised management structure, the Company believes that it can
turn around the operational and financial results of JPE Canada.
The acquisition of JPE Canada provides the Company with the ability to injection
mold and paint large exterior trim parts, two technologies the Company did not
previously possess. As a result of this acquisition, the Company will be able to
provide OEM's with complete exterior trim systems which the Company believes is
a competitive advantage when being considered for future OEM sourcing decisions.
AFTERMARKET
The Company's aftermarket group consists of two operations: DPI and Allparts.
DPI manufactures and distributes springs and spring-related products and
distributes a variety of other undercarriage replacement parts for trucks and
trailers, consisting of wheel-end, suspension and steering products. Almost all
of DPI's springs and spring-related products are manufactured at its plant in
Harrisburg, Pennsylvania. Other products sold by DPI are purchased from third
party manufacturers. DPI sells products to the truck and trailer parts
independent aftermarket under the brand names "Stanley Springs" and "Dayton
Parts."
Allparts distributes hydraulic brake system products for the independent
automotive and light truck aftermarket. Currently, Allparts sells its brake
parts under the brand names of "Brakeware" and "Tru-Torque." Allparts also sells
a small percentage of parts under private label.
FORWARD LOOKING INFORMATION
This Annual Report on Form 10-K contains, and from time to time the Company
expects to make, certain forward-looking statements regarding its business,
financial condition and results of operations. In connection with the "Safe
Harbor" provisions of the Private Securities Reform Act of 1995 (the "Reform
Act"), the Company intends to caution investors that there are several important
factors that could cause the Company's actual results to differ materially from
those projected in its forward-looking statements, whether written or oral, made
herein or that may be made from time to time by or on behalf of the Company.
Investors are cautioned that such forward-looking statements are only
predictions and that actual events or results may differ materially. The Company
undertakes no obligation to publicly release the results of any revisions to the
forward-looking statements to reflect events or circumstances or to reflect the
occurrence of unanticipated events.
The Company wishes to ensure that any forward-looking statements are accompanied
by meaningful cautionary statements in order to comply with the terms of the
safe harbor provided by the Reform Act. Accordingly, the Company has set forth a
list of important factors that could cause the Company's actual results to
differ materially from those expressed in forward-looking statements or
predictions made herein and from time to time by the Company. Specifically, the
Company's business, financial condition and results of operations could be
materially different from such forward-looking statements and predictions as a
result of (i) customer pressures that could impact sales levels and product mix,
including customer sourcing decisions, customer evaluation of market pricing on
products produced by the Company and customer cost-cutting programs; (ii)
operational difficulties encountered during the launch of major new OEM
programs; and (iii) the availability of funds to the Company for strategic
acquisitions and capital investments to enhance existing production and
distribution capabilities (see "Liquidity and Capital Resources").
MANUFACTURING OPERATIONS
ORIGINAL EQUIPMENT
Starboard manufactures decorative exterior trim, functional stampings and
specialty products from stainless and galvanized steel. Starboard's primary
manufacturing processes include roll forming, stamping, bending, and
co-extrusion of steel and PVC. Decorative and functional parts produced by
Starboard are often plated, painted or heat treated by third parties before
final shipment to the customer. Decorative products are utilized in fascia, body
side, window trim and reveal, garnish and wheel well trim applications.
Starboard's functional stampings include shields, shims, spacers, rods,
strikers, brackets, hinges, window stabilizers, seat channels and bent tubes.
Specialty products produced by Starboard are primarily speaker grilles, luggage
racks, appliques, and lamp bezels.
PTI manufactures extruded plastic exterior trim products. These products are
manufactured primarily from PVC plastic which is extruded at high temperatures
into parts of varying dimensions. Once extruded, these parts are usually painted
or assembled by third party processors before being shipped to the customer. The
parts are used primarily for decorative and styling purposes in the production
of passenger cars, light trucks, minivans, and sport-utility vehicles. PTI
manufactures three primary products: (1) reveal moldings, which surround a
vehicle's windshield and backlight glass and cover the gap between the edge of
the glass and the car body; (2) body side moldings, which serve aesthetic and
functional purposes and are affixed to the side of a vehicle; and (3) bumper
fascia moldings, which are bright or colored decorative inserts attached to
plastic bumpers and bumper pads, and are primarily aesthetic in nature.
JPE Canada manufactures plastic injection molded parts which are both decorative
and functional in nature. These parts are produced utilizing plastic compound
which is injected into a product mold at high temperatures and then painted with
a high luster finish. These products consist of: (1) front and rear fascias,
which act as the integrated system of the grille, headlights/tail lamps and
bumper on the front or rear of a vehicle; (2) rocker panels, which function as a
guard directly below the door(s) and between the two wheels of the vehicle; and
(3) body-side moldings, which are styling aspects of the vehicle as well as
providing dent protection.
IAF manufactures decorative capped, specialty, and standard wheel nuts. The
manufacturing of wheel nuts is a highly automated repetitive process using cold
forming machines for the basic shapes and secondary machines for internal and
external threading, shaving, welding and crimping. IAF owns patents to secure
stainless steel caps to the wheel nut that provide an aesthetically sleek and
stylish appearance and serve as a rust shield.
AFTERMARKET
DPI manufactures springs, spring assemblies and spring-related products for the
heavy-duty truck and trailer aftermarket. The Company has the capability of
producing more than 17,000 spring types. These products require heating,
trimming, bending and final heat treatment prior to assembly and painting. This
manufacturing process is similar to the methods used by the OEM spring
manufacturers.
MARKETING, DISTRIBUTION AND CUSTOMERS
ORIGINAL EQUIPMENT
The Company's OEM business supplies products to domestic OEMs either directly or
through Tier 1 suppliers. In the year ended December 31, 1996, approximately 63%
of the Company's net sales were to OEM customers. With the acquisition of JPE
Canada, net sales to OEM customers would have been 73% on a pro forma basis.
Sales to significant customers for the year ending December 31, 1996 were as
follows:
<TABLE>
<CAPTION>
Actual Pro Forma*
------ ----------
<S> <C> <C>
General Motors 36% 53%
Chrysler Corporation 14% 10%
<FN>
*Pro forma amounts include the impact of the JPE Canada acquisition.
</FN>
</TABLE>
No other OEM customer accounts for more than 10% of the Company's net sales.
The Company sells its products through a direct sales force or agents that
specialize in the Company's product lines. The Company works directly with its
customers, including the three major U.S. automobile manufacturers, to design
and develop products to satisfy market demands. Most of the parts the Company
produces have lead times of one to four years from product award to production.
The Company has been awarded new business for each of the 1998-2000 model years.
Because the Company's OEM business supplies its customers on a "just-in-time"
basis, it does not currently maintain a backlog.
AFTERMARKET
The Company's aftermarket business distributes springs and spring-related
products manufactured by DPI, as well as other undercarriage replacement parts,
including wheel-end products (such as brake drums, cast spoke wheels, rotors and
calipers), suspension parts (such as hangers, bushings, shocks and suspension
kits) and steering components (such as king pin sets, ball joints, drag links
and tie rod ends). Allparts derives all of its sales through the distribution of
hydraulic brake parts to the independent aftermarket. As part of its
distribution process, a number of products sold by Allparts are packaged at its
distribution facility.
DPI uses its own sales force to sell products for heavy and medium-duty trucks
and trailers throughout the continental United States and parts of Canada to
approximately 700 customers with approximately 1,200 locations. Although most of
DPI's products are for the repair and maintenance needs of heavy and medium-duty
trucks, trailers and mobile equipment, DPI also sells some products for
light-duty trucks. In addition to on-the-road trucks and trailers, DPI
distributes undercarriage replacement parts for specialty vehicles such as
garbage trucks, cement trucks, construction equipment and farm equipment.
DPI sells its products primarily to spring service shops, fleet distributors,
warehouse distributors and wheel and rim distributors. These outlets in turn
sell parts to local truck fleets, redistribute parts to smaller outlets such as
local repair garages or install the parts themselves on the end-users' vehicles.
Allparts' sales and marketing efforts are directed through a network of
manufacturer's representative agencies. These agencies are directed by the
national sales manager of Allparts.
No one aftermarket customer accounts for more than 10% of the Company's annual
net sales. The aftermarket group ships most of its products in a short period of
time after receiving the related order and does not maintain a significant order
backlog.
SEASONALITY
The OEM business experiences seasonal fluctuations that are consistent with
those of other OEM suppliers. The Company typically experiences decreased sales
and operating income from its OEM business during the second half of each year
due to OEM model changeovers and vacation periods.
The aftermarket business is subject to minor seasonal fluctuations, with demand
for aftermarket parts tending to be higher in the second and third quarters
because end-users have tended to make more vehicle repairs at those times.
COMPETITION
ORIGINAL EQUIPMENT
The OEM supplier industry is highly competitive and comprised of many companies
of various sizes. Demand for parts and components sold to OEMs is driven by the
demand for sales of new vehicles. The Company believes that the number of such
competitors will decrease in response to the OEMs' pressure for supplier
consolidation. The Company's largest competitors for exterior trim include Magna
International Inc., Venture and Standard Products, and for fasteners include
MacLean-Fogg, Horizon and others. Many of the Company's competitors are
divisions or subsidiaries of companies which are substantially larger and more
diversified than the Company. In addition, many of the Company's competitors
have greater financial and other resources than the Company.
The Company competes for new business both at the beginning of the development
of new models and upon the redesign of existing models. Competitive factors in
the market for the Company's OEM products include quality, reliability, cost,
timely delivery, technical expertise and development capability.
AFTERMARKET
The automotive and truck parts aftermarket in which DPI and Allparts operate is
highly competitive. Both DPI and Allparts have numerous competitors. However,
the product lines of DPI and Allparts are narrow and focus on specific markets.
There is no one competitor that dominates any product line in which either DPI
or Allparts participates. Some of the Company's more significant competitors are
Triangle Auto Spring Co., Brake Axle and Tandem Company, Rockwell International
and Euclid Industries Inc. In addition, some of the Company's competitors are
well-established truck or automotive suppliers which have greater financial and
other resources than the Company. Among the primary competitive factors
affecting this market are price, product quality, breadth of product line and
customer service.
SUPPLIERS AND RAW MATERIALS
The principal raw materials used by DPI, Starboard and IAF in their
manufacturing operations are various types and grades of steel, all of which are
readily available. The principal raw materials used by PTI and JPE Canada are
acrylic foam tape, PVC, and thermo plastic olefin (TPO) and thermo plastic
urethane (TPU) compounds, all of which are readily available.
The Company purchases some of the products it distributes from many suppliers.
The Company's distribution business is affected by its ability to obtain an
adequate supply of the products it distributes, its relationships with its
suppliers and its ability to purchase products from those suppliers on favorable
terms.
Allparts purchases approximately 19,000 part numbers in bulk for the hydraulic
brake line. The Company believes that it has multiple sources for all product
part numbers from either domestic or offshore manufacturers.
INTELLECTUAL PROPERTY
The Company has a number of patents and patent applications pending in both the
United States and certain foreign jurisdictions for its stainless steel fastener
design and for processes related to its plastic injection molded products.
Notwithstanding its patent portfolio, the Company believes that the design,
quality and pricing of its products and its relations with its customers are
substantially more important to its business than patent protection.
There can be no assurance that patents will be issued from any pending
applications or that any claims allowed from existing or pending patents will be
sufficiently broad to protect the Company's technology. The Company believes
that it is not dependent to any material extent upon any one patent or group of
patents.
GOVERNMENTAL REGULATIONS
The Company is subject to various federal, state, provincial and local laws and
regulations relating to the operation of its businesses and the manufacture of
its products, including those relating to product safety guidelines; generation,
handling and disposal of waste; discharge and emission controls; and protection
of health and the environment. These laws include the Clean Water Act, the Clean
Air Act, the Resource Conservation and Recovery Act ("RCRA") and the
Comprehensive Environmental Response, Compensation and Liability Act in the
United States, together with implementing regulations and similar state laws and
regulations, as well as similar laws and regulations in Canada and Ontario. In
part, these laws and regulations govern the manner in which the Company handles
various wastes, discharges, emissions and environmental conditions at or
attributable to its operations or facilities.
Operations at some of the Company's facilities have been and continue to be
sources of emissions and discharges of various materials, including air
emissions from coating and painting operations and discharges of process
wastewaters. For example, various Company facilities have been the sites of
releases of polychlorinated biphenyl-contaminated oil, mineral spirits, fuel and
quench oils and, possibly, other materials. Some of these materials remain at
and about the sites of these facilities. Some of DPI's Harrisburg, Pennsylvania
facilities are believed to be located on a former municipal landfill because
materials associated with municipal landfills have been found at these
facilities. In addition, at various Company facilities, substances have been and
currently are used that are classified as hazardous under RCRA or as pollutants,
contaminants or hazardous, toxic or regulated substances under other applicable
laws. The parties from whom the Company acquired its operations have, to various
degrees, agreed to limited indemnification of the Company against some
environmental claims under the various acquisition agreements with the Company,
but there can be no assurance that these indemnities will be adequate to cover
all liabilities and expenses that may arise. Although the Company does not know
the amounts of any liabilities or expenses it may incur in the future in
connection with the investigation or remediation of materials or conditions in
connection with the control of emissions and discharges at its facilities, it
does not believe that these liabilities and expenses will have a material
adverse effect on its financial condition or results of operations (although
there could be such effects in particular periods).
Developments with regard to laws, regulations and enforcement policies could
result in additional, presently unquantifiable, costs or liabilities to the
Company or might in the future restrict the Company in ways that could require
it to modify, supplement or replace existing equipment and facilities and to
change or cease present methods of operation. Furthermore, laws, regulations and
governmental policies are subject to change and no assurance can be given that
existing laws, regulations and policies will not be amended or that new laws,
regulations and policies will not be adopted that will impose more extensive
regulation, cost or liability on the Company in the future.
RESEARCH AND DEVELOPMENT
During the year ended December 31, 1994, the Company did not make any
significant expenditures for research and development. For the years ended
December 31, 1996 and 1995, expenditures of approximately $1.7 million and $1.3
million, respectively, were incurred working with the Company's OEM customers on
product design and development.
EMPLOYEES
The Company had a total of approximately 1,420 employees on December 31, 1996,
approximately 870 of whom were located in the United States.
<PAGE>
ITEM 2. PROPERTIES
The following list indicates the Company's principal manufacturing, distribution
and administrative facilities by location. All owned U.S. facilities are subject
to liens under the Credit Agreement and all owned Canadian facilities are
subject to liens under the Canadian Credit Facility:
<TABLE>
<CAPTION>
Building Size
Primary Use (Approximate Owned
of the Facility Location Square Feet) or Leased
- --------------- -------- ------------ ---------
<S> <C> <C> <C>
Corporate headquarters Ann Arbor, MI 3,200 Leased
Manufacturing East Tawas and
Tawas, MI 141,000 Owned
Manufacturing and
administrative Royal Oak, MI 75,000 Owned
Manufacturing and
administrative Beavercreek, OH 105,000 Owned
Finishing and
distribution Jamestown, OH 90,000 Owned
Manufacturing Harrisburg, PA 100,000 Owned
Distribution and
administrative Harrisburg, PA 160,000 Leased
Packing and dis-
tribution facility Louisiana, MO 40,000 Owned
Manufacturing and
administrative Peterborough,
Ontario, Canada 220,000 Owned
Manufacturing and
warehousing Peterborough,
Ontario, Canada 191,000 Leased
Manufacturing Kitchener, Ontario,
Canada 94,000 Owned
</TABLE>
The Company's buildings, machinery and equipment are in adequate operating
condition, and are suitable and adequate for current production requirements.
ITEM 3. LEGAL PROCEEDINGS
Neither the Company nor any of its subsidiaries is a party to, nor are any of
its properties the subject of, any pending legal proceedings, other than certain
ordinary routine litigation incidental to their businesses, which in the opinion
of management is not material.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
<PAGE>
SUPPLEMENTAL ITEM. EXECUTIVE OFFICERS OF THE REGISTRANT
The current executive officers of the Company are identified below. Officers are
appointed by the Board of Directors and serve at its discretion.
<TABLE>
<CAPTION>
Name Age Position
- ---- --- --------
<S> <C> <C>
John Psarouthakis 64 Chairman of the Board, President, Chief
Executive Officer and Director
C. William Mercurio 57 President-OEM Group
Donna L. Bacon 45 Vice President, General Counsel and Secretary
James J. Fahrner 45 Vice President and Chief Financial Officer
</TABLE>
Dr. John Psarouthakis is the founder of the Company and has been Chairman of the
Board, Chief Executive Officer and a Director of the Company since it began
operations in late 1991 and assumed the position of President in July, 1996. In
1978, Dr. Psarouthakis organized J. P. Industries, Inc. ("JPI"), which became a
Fortune 500 transportation components manufacturing and distribution company,
where he served as Chairman, President and a Director until its sale in August
1990. After the sale of JPI, Dr. Psarouthakis was involved in various private
investments and professional activities until the Company began operations. Dr.
Psarouthakis is currently an Adjunct Professor teaching Acquisitions and Mergers
at the University of Michigan Graduate School of Business.
Mr. C. William Mercurio has been President of the Company's OEM Group since July
1996, prior to which he served as President of PTI since its acquisition by the
Company in April 1995. In November 1990, Mr. Mercurio and a group of investors
purchased PTI from its parent company, Protective Treatments, Inc. Mr. Mercurio
has held the position of President of PTI since 1990.
Ms. Donna L. Bacon has been Vice President, General Counsel and Secretary of the
Company since October 1994. From August 1991 to October 1994, Ms. Bacon was Vice
President, General Counsel and Secretary of The MEDSTAT Group, Inc., a provider
of healthcare information services. From 1987 to January 1991, Ms. Bacon was
General Counsel and Secretary of JPI.
Mr. James J. Fahrner has been Vice President and Chief Financial Officer of the
Company since June 1995. From November 1990 until June 1995, Mr. Fahrner served
as Vice President-Chief Financial Officer, Treasurer of Gelman Sciences Inc., a
manufacturer of microfiltration products. From December 1989 to October 1990,
Mr. Fahrner served as Vice President-Treasurer of JPI.
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock trades on the Nasdaq National Market tier of The
Nasdaq Stock MarketSM under the symbol "JPEI." The following table indicates the
high and low sale prices for the Company's Common Stock as reported on the
Nasdaq National Market for the last two years. Such over-the-counter market
quotations reflect inter-dealer prices, without retail mark-up, mark-down or
commission and may not necessarily represent actual transactions.
<TABLE>
MARKET PRICE
<CAPTION>
QUARTER 1995 1996
- ------- ---- ----
High Low High Low
---- --- ---- ---
<S> <C> <C> <C> <C>
First $14.00 $ 9.50 $11.25 $ 8.25
Second 16.25 13.50 11.13 9.00
Third 14.50 12.75 10.00 8.00
Fourth 13.50 8.75 9.00 6.88
</TABLE>
On March 17, 1997, there were approximately 159 holders of record of the
Company's Common Stock and approximately 2,500 beneficial shareholders.
The Company has never declared or paid any dividends on shares of Common Stock
and has no intention of declaring or paying any dividends on shares of Common
Stock in the foreseeable future. The Company intends to retain its earnings, if
any, for the development of its business, including possible future
acquisitions.
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below, as of and for the periods ended
December 31, 1992, 1993, 1994, 1995 and 1996, are derived from the Company's
financial statements, audited by Coopers & Lybrand L.L.P., independent
accountants, and should be read in conjunction with the Company's audited
financial statements and notes thereto included elsewhere in this Report on Form
10-K (the "Company's Financial Statements"). The selected financial data set
forth below should also be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included in Item 7 of
this Report on Form 10-K. Certain amounts from 1995 have been reclassified to
conform with the 1996 presentation.
<TABLE>
<CAPTION>
Years Ended December 31,
------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Income statement data:
Net sales $ -- $54,693 $70,073 $169,202 $201,453
Cost of goods sold -- 40,639 51,994 134,156 166,714
------- ------- ------- -------- --------
Gross profit -- 14,054 18,079 35,046 34,739
Charge for impairment
of goodwill -- -- -- -- 4,300
Selling, general and
administrative expenses 572 9,950 11,892 21,591 24,893
------- ------- ------- -------- --------
Operating profit (loss) (572) 4,104 6,187 13,455 5,546
Interest income (expense),
net 224 (844) (1,029) (6,226) (6,932)
------- ------- -------- -------- --------
Income (loss) before
income taxes (348) 3,260 5,158 7,229 (1,386)
Income tax expense -- 1,159 1,968 2,780 203
------- ------- ------- -------- --------
Net income (loss) $ (348) $ 2,101 $ 3,190 $ 4,449 $ (1,589)
======= ======= ======= ======== ========
Earnings (loss) per
common share $ (.15) $ .73 $ .83 $ 1.09 $ (.35)
======= ======= ======= ======== ========
Weighted average shares
outstanding 2,290 2,871 3,865 4,092 4,587
Balance sheet data
(at end of period):
Working capital $ 6,563 $15,617 $22,084 $ 39,955 $ 42,138
Total assets 28,168 34,891 66,492 145,229 174,725
Long-term debt (including
current maturities) 14,009 7,287 25,973 83,375 110,001
Total shareholders' equity 6,154 21,790 25,513 36,747 35,778
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the financial
statements and notes thereto to assist in understanding the Company's results of
operations, its financial position, cash flows, capital structure and other
relevant financial information.
RESULTS OF OPERATIONS
YEAR ENDED DECEMBER 31, 1996 COMPARED TO YEAR ENDED DECEMBER 31, 1995
Net sales for the year ended December 31, 1996 were $201,453,000 compared to
$169,202,000 for the previous year. The net sales increase of 19% is principally
attributable to the full year effect of the acquisition of two OEM businesses
completed in the first quarter of 1995, a stronger North American automotive
market than in 1995 and a rise in aftermarket orders. Additionally, the Company
began production and shipments of end formed plastic extruded body side
moldings, which is a proprietary technology that was purchased from another
company in late 1995. For the year ended December 31, 1996, net sales for the
Company were 63% to OEM customers and 37% to aftermarket customers.
Gross profit decreased to $34,739,000 for the year ended December 31, 1996
compared with $35,046,000 for the prior year. The gross margin percentages were
17.2% and 20.7% for 1996 and 1995, respectively. The decline in gross margin is
a result of production and launch difficulties at the Company's IAF and
Starboard facilities; a change in sales mix at IAF to products with lower gross
margins; and the impact of incentives associated with long-term OEM contract
pricing. These reductions are partially offset by the recovery of $890,000 in
costs related to the cancellation of a trim program from an OEM customer.
During the third quarter of 1996, management identified that a significant
change had occurred in the product mix of IAF since it was acquired in March
1995. In accordance with SFAS 121, "Accounting for Impairment of Long-Lived
Assets to be Disposed of," management recorded a $4,300,000 impairment writedown
of goodwill associated with the acquisition of IAF. The goodwill was originally
valued at $6,820,000 when IAF was acquired and, subsequent to the adjustment,
had a net unamortized carrying value of approximately $2,136,000 as of December
31, 1996, based on management's estimate of the current fair market value of the
IAF business which was acquired. This adjustment will reduce goodwill
amortization by $172,000 on an annual basis.
Selling, general and administrative expenses increased 15.3% to $24,893,000 for
the year ended December 31, 1996 compared to $21,591,000 for 1995. The increase
in spending is a result of the full year impact of two OEM acquisitions made in
the first three months of 1995 and an $850,000 charge related to the write-down
of an equity investment and severance costs for changes in senior management at
IAF and Starboard. Selling, general and administrative expense as a percentage
of sales was 12% and 13% for the years ending December 31, 1996 and 1995,
respectively. The decline in this percentage is attributable to management
efforts to contain costs in its Aftermarket and OEM businesses, the increasing
significance of the OEM business to the Company and a $342,000 non-recurring
charge recorded in 1995 for severance agreements of two senior executives.
Amortization of goodwill for the year ended December 31, 1996 was $1,267,000
versus $924,000 for the same period in 1995.
Interest expense increased to $6,932,000 in 1996 compared to $6,226,000 for the
year ended December 31, 1995. The increase is a result of funds borrowed to
finance two OEM supplier acquisitions in 1995 and a slightly higher debt level
as a result of capital additions to enhance existing production technologies and
capabilities. The average interest rate for 1996 and 1995 was 8%.
The effective tax rates for the years ended December 31, 1996 and 1995 were 15%
and 38.5%, respectively. The decline in tax rate is due to the Company
experiencing pre-tax losses for the year ending December 31, 1996. Even with
pre-tax losses in 1996, the Company was still subject to tax as a result of
non-deductible goodwill, the write-off of an equity investment in a joint
venture and losses that occurred in Michigan, whose tax is not income based.
Net loss for the year ended December 31, 1996 was $1,589,000 compared to net
income of $4,449,000 for the year ended December 31, 1995. Loss per share for
the year ended December 31, 1996 was $0.35 per share as compared to earnings per
share of $1.09 for the same period in 1995. These changes are a result of the
factors mentioned above. The weighted average shares for 1996 were 4,587,000 as
compared to 4,092,000 for 1995. During 1995 and 1996, the Company issued a total
of 794,362 shares through a public offering and its stock option plans.
On a pro forma basis, assuming the acquisitions of IAF, PTI and JPE Canada
occurred on January 1, 1995, the net sales for the year ended December 31, 1996
would have been approximately $275,860,000, an increase of approximately 5% over
1995 sales. The increase is attributable to higher new vehicle production, an
increase in the aftermarket industry in 1996 and other sales factors mentioned
above. On a pro forma basis, net loss would have been approximately $2.0 million
or $.43 per share for the year ended December 31, 1996.
The pro forma data does not purport to be indicative of the results which would
actually have been reported if these transactions had occurred on such dates or
which may be reported in the future. The pro forma data should be read in
conjunction with the historical financial statements.
YEAR ENDED DECEMBER 31, 1995 COMPARED TO YEAR ENDED DECEMBER 31, 1994
Net sales for the year ended December 31, 1995 were $169,202,000 compared to
$70,073,000 for the previous year. The net sales increase of 141% is principally
attributable to the acquisitions of two OEM businesses completed in the first
quarter of 1995 and the full year effect of the two acquisitions made in 1994.
For the year ended December 31, 1995, net sales for the Company were 60% to OEM
customers and 40% to aftermarket customers. The Company's only business which
was owned for the full twelve months of both 1994 and 1995 was Dayton Parts, the
Company's first acquisition. Sales for this business were flat in 1995 as
compared to the prior year, reflecting a slowdown due to customer inventory
adjustments and fewer miles driven in the truck industry.
Gross profit increased 94% to $35,046,000 for the year ended December 31, 1995
compared with $18,079,000 for the prior year. The gross margin percentages were
20.7% and 25.8% for 1995 and 1994, respectively. This decline in gross margin
reflects the impact of the acquired OEM businesses, which have lower gross
margins than aftermarket companies. However, the margins of the aftermarket
businesses are offset by higher selling and distribution costs.
Selling, general and administrative expenses increased 82% to $21,591,000 for
the year ended December 31, 1995 compared to $11,892,000 for 1994. Approximately
$7,500,000 of the increase represent selling, general and administrative
expenses from the Company's acquisitions in 1995 and 1994. The percentage of
selling, general and administrative expenses to net sales was 13% for 1995 as
compared to 17% for the year ended December 31, 1994. The decline in this
percentage is attributable to the increasing significance of the OEM business to
the Company. The increased level of spending also includes a $342,000
non-recurring accrual for severance agreements for two senior executives whose
employment terminated during the second quarter of 1995, and higher corporate
administrative costs for professional personnel required to manage and operate
the Company at its current size. Amortization of goodwill for the year ended
December 31, 1995 was $1,180,000, which on an annual basis will be approximately
$1.4 million.
Interest expense increased to $6,226,000 in 1995 compared to $1,029,000 for the
year ended December 31, 1994. The Company has financed the last three
acquisitions totaling approximately $79 million through its $110 million Credit
Agreement. The average interest rate on this facility during the past year was
8%.
The effective tax rates for the years ended December 31, 1995 and 1994 were
38.5% and 38.2%, respectively. The higher effective tax rate is attributable to
non-deductible goodwill resulting from the acquisitions of Allparts and
Starboard, which were stock purchases.
Net income for the year ended December 31, 1995 increased 39% to $4,449,000
compared to reported results of $3,190,000 for the year ended December 31, 1994.
Earnings per share increased 31% to $1.09 per share from $.83 per share. The
weighted average shares for 1995 were 4,092,000 as compared to 3,865,000 for
1994. During 1995, the Company issued a total of 685,812 shares through private
and public offerings, and its stock option plans.
On a pro forma basis assuming the acquisitions of Starboard, IAF and PTI
occurred on January 1, 1994, the net sales for the year ended December 31, 1995
would have been approximately $190,285,000, an increase of approximately 2% over
the comparable amount for 1994. On a pro forma basis, net income would have been
approximately $5.3 million or $1.28 per share for the year ended December 31,
1995.
The pro forma data does not purport to be indicative of the results which would
actually have been reported if these transactions had occurred on such dates or
which may be reported in the future. The pro forma data should be read in
conjunction with the historical financial statements.
LIQUIDITY AND CAPITAL RESOURCES
The Company's principal capital requirements are to fund business acquisitions,
working capital needs, and capital additions to enhance existing production
technologies and capabilities. Historically, the Company has used cash flows
generated by operations, borrowings under its credit agreements and equity
financing to meet these needs.
The Company's principal source of liquidity is the $110 million Third Amended
and Restated Credit Agreement dated December 31, 1996 (the "Credit Agreement").
This Agreement was amended several times during 1995 through December 1996 to
provide the Company with adequate capital resources for businesses that were
acquired. The Company has several borrowing rate options under the Agreement
based on, among other things, the bank's prime rate and LIBOR plus a variable
margin. The variable margin depends on the Company's cash flow and fixed charge
coverage ratios. The variable margin was 2.25% at December 31, 1996 and the
average rate on the outstanding borrowings was 7.8%. The Credit Agreement
expires on October 27, 1998 and has no principal repayment requirements prior to
expiration. The Credit Agreement is collateralized by all of the Company's
assets, with the exception of JPE Canada's assets. The Credit Agreement includes
various restrictive financial and other covenants. The Company was in compliance
with all covenants as of December 31, 1996.
The Company has an interest rate swap agreement on $30 million notional amount
of borrowings under the Credit Agreement. The swap agreement is effective
October 26, 1995 through October 26, 1998. This agreement exchanged the
three-month LIBOR rate for a fixed rate of 6.225%.
On December 20, 1996, JPE Canada entered into a Cdn. $28.7 million credit
agreement with a Canadian bank (the "Canadian Credit Facility"), primarily to
fund the acquisition of Pebra Inc. In addition to funding the acquisition of
Pebra Inc., the Canadian Credit Facility permits JPE Canada to borrow funds in
the form of advances for operating requirements and capital expenditures.
Repayment terms of borrowings under the facility vary based on the nature of the
advance. Advances under the Canadian Credit Facility are secured by
substantially all of the assets of JPE Canada. Interest rates on the advances
are computed at either the Canadian Prime Rate or the Base Rate, as defined in
the agreement. At December 31, 1996, the average interest rate was 5.5%.
During 1995, the Company acquired the assets of Industrial & Automotive
Fasteners, Inc. and all outstanding capital stock of Plastic Trim, Inc. The
total consideration for these two businesses was $66.6 million. The acquisitions
were financed principally from borrowings under the Credit Agreement and a $10
million short-term note to a former owner. This short-term note was repaid on
January 2, 1996 from borrowings under the Credit Agreement.
During 1996, the Company acquired certain assets and liabilities of Pebra Inc.
for a total consideration of Cdn. $29.6 million (U.S. $21.7 million). Pebra Inc.
filed for protection from creditors under the Companies' Creditors Arrangement
Act due to negative operating results prior to the acquisition. Due to the
nature of the acquisition, only certain assets (i.e., accounts receivable,
inventory and fixed assets) and the Canadian Auto Workers Union unfunded pension
liability were acquired from Pebra Inc. The acquisition was financed from
borrowings under the Canadian Credit Facility and the Credit Agreement.
During the second quarter of 1995, the Company sold 135,712 shares of Common
Stock at $14.00 per share for cash proceeds of approximately $1.9 million to
certain former shareholders of Plastic Trim, Inc. in a private transaction.
In November 1995, the Company sold 500,000 shares of Common Stock at $10.75 per
share through a public offering. The net proceeds of $4.6 million were used to
pay down borrowings under the Credit Agreement.
Working capital at December 31, 1996 increased to $42.1 million as compared to
$40.0 million at December 31, 1995. The increase in working capital was due
primarily to the acquisition of JPE Canada. Cash generated from operations was
$10.1 million for the year ended December 31, 1996. These funds were used for
additions to property, plant and equipment totaling $13.5 million. The Company
expects that it will be able to satisfy its debt service, working capital and
capital expenditure requirements through cash flow generated from operations
and, to the extent necessary, through borrowings under the Credit Agreement and
the Canadian Credit Facility.
<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
JPE, INC.
INDEX TO FINANCIAL STATEMENTS
Page
----
Report of Independent Accountants 22
Consolidated Balance Sheets as of December 31,
1995 and 1996 23
Consolidated Statements of Income for the
Years Ended December 31, 1994, 1995 and 1996 24
Consolidated Statements of Shareholders' Equity for
the Years Ended December 31, 1994, 1995 and 1996 25
Consolidated Statements of Cash Flows for the Years
Ended December 31, 1994, 1995 and 1996 26
Notes to Consolidated Financial Statements 27-40
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and
Shareholders of JPE, Inc.:
We have audited the accompanying consolidated balance sheets of JPE, Inc. as of
December 31, 1995 and 1996 and the related consolidated statements of income,
shareholders' equity, and cash flows for each of the three years in the period
ended December 31, 1996 and the financial statement schedule listed in Item
14(a)(2) of this Form 10-K. These financial statements and financial statement
schedule are the responsibility of the company's management. Our responsibility
is to express an opinion on these financial statements and financial statement
schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. 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 consolidated financial position of JPE, Inc. as of
December 31, 1995 and 1996, and the consolidated results of their operations and
their cash flows for each of the three years in the period ended December 31,
1996, in conformity with generally accepted accounting principles. In addition,
in our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
COOPERS & LYBRAND L.L.P.
Detroit, Michigan
February 25, 1997
<PAGE>
JPE, INC.
<TABLE>
CONSOLIDATED BALANCE SHEETS
at December 31,
(amounts in thousands, except share data)
<CAPTION>
ASSETS
1995 1996
---- ----
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 288 $ 1,316
Accounts receivable, net of
allowance for doubtful
accounts of $369 and $262
at December 31, 1995 and
1996, respectively 23,410 26,829
Inventory 32,597 37,963
Other current assets 4,754 8,688
-------- --------
Total current assets 61,049 74,796
Property, plant and equipment, net 47,978 69,281
Goodwill, net 32,635 27,068
Other assets 3,567 3,580
-------- --------
Total assets $145,229 $174,725
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 108 $ 323
Short term debt -- 8,120
Accounts payable 15,156 17,643
Accrued liabilities 5,656 6,190
Income taxes 174 382
-------- --------
Total current liabilities 21,094 32,658
Deferred income taxes 2,927 3,184
Other liabilities 1,194 1,547
Long-term debt, non-current 83,267 101,558
-------- --------
Total liabilities 108,482 138,947
-------- --------
Commitments and contingencies -- --
Shareholders' equity:
Preferred stock, no par value,
3,000,000 authorized, no
shares issued and outstanding -- --
Common stock, no par value,
15,000,000 authorized,
4,473,930 and 4,582,480 issued
and outstanding at December 31,
1995 and 1996, respectively 27,301 27,921
Retained earnings 9,446 7,857
-------- --------
Total shareholders' equity 36,747 35,778
-------- --------
Total liabilities and
shareholders' equity $145,229 $174,725
======== ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
<PAGE>
JPE, INC.
<TABLE>
CONSOLIDATED STATEMENTS OF INCOME
for the years ended December 31,
(amounts in thousands, except per share data)
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Net sales $70,073 $169,202 $201,453
Cost of goods sold 51,994 134,156 166,714
------- -------- --------
Gross profit 18,079 35,046 34,739
Charge for impairment of
goodwill (Note 11) -- -- 4,300
Selling, general and
administrative expenses 11,892 21,591 24,893
------- -------- --------
Operating profit 6,187 13,455 5,546
Interest expense, net 1,029 6,226 6,932
------- -------- --------
Income (loss) before income taxes 5,158 7,229 (1,386)
Income tax expense 1,968 2,780 203
------- -------- --------
Net income (loss) $ 3,190 $ 4,449 $ (1,589)
======= ======== ========
Earnings (loss) per common share $ .83 $ 1.09 $ (.35)
====== ====== =====
Weighted average shares outstanding 3,865 4,092 4,587
===== ===== =====
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
<PAGE>
JPE, INC.
<TABLE>
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
for the years ended December 31
(amounts in thousands, except share data)
<CAPTION>
Common Stock
------------
Shares Retained
Outstanding Amount Earnings Total
----------- ------ -------- -----
<S> <C> <C> <C> <C>
Balances, January 1, 1994 3,781,772 $19,983 $1,807 $21,790
Issuance of stock warrants 500 500
Employee Stock Plan 6,346 33 33
Net income 3,190 3,190
--------- ------- ------ ------
Balances, December 31, 1994 3,788,118 20,516 4,997 25,513
--------- ------- ------ -------
Issuance of stock 635,712 6,497 6,497
Employee Stock Plan 50,100 75 75
Tax benefit from exercised
stock options 213 213
Net income 4,449 4,449
--------- ------ -------
Balances, December 31, 1995 4,473,930 27,301 9,446 36,747
--------- ------- ------ -------
Employee Stock Plan 108,550 410 410
Tax benefit from exercised
stock options 210 210
Net loss (1,589) (1,589)
--------- -------- ------ -------
Balances, December 31, 1996 4,582,480 $ 27,921 $7,857 $35,778
========= ======== ====== =======
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements.
<PAGE>
JPE, INC.
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
for the years ended December 31,
(amounts in thousands)
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 3,190 $ 4,449 $ (1,589)
Adjustments to reconcile net income to
net cash provided by operating activities:
Charge for impairment of goodwill (Note 11) -- -- 4,300
Depreciation and amortization 1,782 5,822 7,416
Disposal of property and equipment 21 232 98
Changes in operating assets and liabilities:
Accounts receivable (864) 1,278 (936)
Inventory 711 (3,815) 729
Other assets (790) (2,940) (1,534)
Accounts payable (1,607) 530 2,487
Accrued liabilities (799) (852) (1,376)
Income taxes (1,255) 138 208
Deferred income taxes 529 1,057 257
------- ------- --------
Net cash provided by operating
activities 918 5,899 10,060
------- ------- --------
Cash flows from investing activities:
Purchase of property and equipment (1,563) (5,221) (13,150)
Purchase of patent -- -- (1,466)
Acquisition of Allparts, Inc. (7,723) -- --
Acquisition of Starboard Industries, Inc. (207) -- --
Acquisition of Industrial & Automotive
Fasteners, Inc. -- (15,638) --
Acquisition of Plastic Trim, Inc. -- (40,578) --
Acquisition of Pebra Inc. -- -- (21,662)
------- ------- --------
Net cash used by investing activities (9,493) (61,437) (36,278)
------- ------- --------
Cash flows from financing activities:
Repayments of promissory notes (1,940) (12,889) --
Sale of common stock, net 33 6,572 410
Repayments of term loans (2,874) (2,461) (10,100)
Net borrowings (repayments) under revolving loan 9,141 62,377 19,270
Net borrowings under Canadian credit facility -- -- 17,456
Payment of deferred financing costs (325) (278) --
Tax benefit from exercised stock options -- 213 210
------- ------- --------
Net cash provided by financing activities 4,035 53,534 27,246
------- ------- --------
Net increase (decrease) in cash (4,540) (2,004) 1,028
Cash and cash equivalents, beginning of period 6,832 2,292 288
------- ------- --------
Cash and cash equivalents, end of period $ 2,292 $ 288 $ 1,316
======= ======= ========
</TABLE>
The accompanying notes are an integral part
of the consolidated financial statements
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
BUSINESS - JPE, Inc. is a manufacturer and distributor of automotive and
truck components for the original equipment manufacturers and the
replacement parts markets sold principally in North America. Total sales
for the year ended December 31, 1996 were approximately 63% to the original
equipment manufacturers and 37% to the replacement parts markets. Including
the full year effect of the acquisition of Pebra Inc., as discussed in Note
10, the percentage of sales to original equipment manufacturers would have
been 73%
FINANCIAL STATEMENT PRESENTATION - The preparation of financial statements
in conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities at the date of the financial statements
and the reported amounts of revenues and expenses during the reporting
period. Actual results could differ from those estimates. Certain financial
statement items have been reclassified to conform to the current year's
format.
PRINCIPLES OF CONSOLIDATION - The accompanying consolidated financial
statements include the accounts of JPE, Inc. (the "Company"), and its
wholly-owned subsidiaries, Dayton Parts, Inc. ("Dayton Parts"), Allparts,
Inc. ("Allparts"), SAC Corporation ("Starboard"), Industrial & Automotive
Fasteners, Inc. ("IAF"), Plastic Trim, Inc. ("PTI") and JPE Canada Inc.
("JPE Canada"), from the dates of acquisition (the "Acquisitions"),
December 31, 1992, July 31, 1994, September 30, 1994, February 28, 1995,
March 31, 1995, and December 23, 1996, respectively. All significant
intercompany accounts and transactions with the consolidated subsidiaries
have been eliminated in the preparation of the consolidated financial
statements.
CONCENTRATION OF CREDIT RISK - Accounts receivable of the Company, which
represent the principal concentration of credit risk, result from sales to
companies in the automotive, light truck and heavy duty truck original
equipment and aftermarket industries. Credit is extended based upon an
evaluation of the customer's financial condition and collateral is not
required from customers.
INVENTORY - Inventory is valued at the lower of cost or market using the
first-in, first-out ("FIFO") cost method.
FOREIGN CURRENCY TRANSLATION - Translation gains and losses arising from
the settlement of foreign currency transactions are charged to the related
period's statement of operations. Translation adjustments arising from the
translation of foreign subsidiary financial statements are recorded as a
separate component of stockholders' equity.
PROPERTY, PLANT AND EQUIPMENT AND DEPRECIATION - Property, plant and
equipment are recorded at cost. Costs assigned to property, plant, and
equipment purchased as part of an acquisition are based on the fair value
of such assets on the date of the acquisition or an allocation of total
purchase price if the fair value of assets acquired exceeds the purchase
price. Improvements are capitalized, and expenditures for maintenance and
repairs are charged to operations as incurred. Gains or losses on sales and
retirements of properties are included in the determination of the results
of operations. Provisions for depreciation of property, plant, and
equipment have been computed using the straight-line method based on
estimated useful lives of the related assets.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES, continued:
GOODWILL - Costs in excess of net assets of acquired companies are
amortized over 25 years using the straight-line method. Accumulated
amortization at December 31, 1995 and 1996 was $1,070 and $2,337,
respectively.
DEFERRED FINANCING COSTS - Deferred financing costs associated with
borrowings are being amortized over their respective periods. Accumulated
amortization at December 31, 1995 and 1996 was $114 and $243, respectively.
EARNINGS PER COMMON SHARE - Earnings are divided by the sum of the weighted
average number of common shares and common stock equivalents outstanding
during the year to compute earnings per share.
STOCK BASED COMPENSATION - Statement of Financial Accounting Standards No.
123, "Accounting for Stock-Based Compensation," encourages, but does not
require companies to record compensation cost for stock-based employee
compensation plans at fair value. The Company has elected to continue to
measure compensation costs using the intrinsic value method prescribed in
Accounting Principles Board Opinion No. 25, "Accounting for Stock Issued to
Employees," and related Interpretations. Accordingly, compensation cost for
stock options is measured as the excess of the quoted market price of the
Company's stock at the date of grant over the amount an employee must pay
to acquire the stock.
CASH AND CASH EQUIVALENTS - Cash and cash equivalents include investments
in highly liquid instruments with a maturity of three months or less.
2. INVENTORY:
Inventory consisted of the following at December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Raw materials $10,780 $15,116
Work in process and components 2,630 4,811
Finished goods 16,607 15,457
Tooling 2,580 2,579
------- -------
$32,597 $37,963
======= =======
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
3. PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment consisted of the following at December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Land $ 2,304 $ 2,894
Buildings 12,464 15,015
Machinery and equipment 35,260 59,891
Furniture and fixtures 5,217 4,565
------- -------
55,245 82,365
Less accumulated depreciation (7,267) (13,084)
------- -------
$47,978 $69,281
======= =======
</TABLE>
4. ACCRUED LIABILITIES:
Accrued liabilities consisted of the following at December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Accrued compensation $ 714 $ 1,856
Accrued interest 1,558 876
Accrued employee benefits 1,998 1,381
Accrued taxes 326 530
Other 1,060 1,547
------- -------
$ 5,656 $ 6,190
======= =======
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
5. LONG-TERM DEBT:
Long-term debt consisted of the following at December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Revolving credit agreement with banks
due October 1998. $72,925 $ 92,200
Credit agreement between JPE Canada
Inc. and Canadian bank -- 16,357
Note payable to sellers of
Industrial & Automotive
Fasteners payable January 2,
1996, interest rate of 8 percent
per annum, refinanced January
1996 using funds available under
revolving credit agreement 10,000 --
Other 450 1,444
------- --------
Total long-term debt 83,375 110,001
Less short-term portion of
long-term debt -- 8,120
Less current portion of
long-term debt 108 323
------- --------
Long term debt, non-current $83,267 $101,558
======= ========
</TABLE>
At December 31, 1996, the Company's revolving credit agreement provided for
maximum borrowings of $110,000. Interest is computed under various options
available to the Company including prime and LIBOR plus a margin based on
leverage and fixed charge coverage ratios. At December 31, 1995 and 1996,
the average interest rate was 7.8%. The revolving credit agreement provides
for a facility fee which is payable quarterly in arrears. Facility fees
were $276 in 1995 and $241 in 1996.
All assets of the Company, with the exception of the assets of JPE Canada,
are collateralized by the lender under the revolving credit agreement. In
addition, the revolving credit agreement contains restrictive covenants
pertaining to payment of cash dividends, fixed charges and funded debt. The
revolving credit agreement was amended during 1996 to provide for separate
borrowings for JPE Canada and to change the fixed coverage ratio for the
effect of the impairment of an asset explained in Note 11. The Company was
in compliance with the covenants at December 31, 1995 and 1996.
The Company has an interest rate swap agreement on $30 million notional
amount of borrowings under the revolving credit agreement. The swap
agreement, which is held for other than trading purposes, is effective
October 26, 1995 through October 26, 1998. This agreement exchanged the
three-month LIBOR rate for a fixed rate of 6.225%. The interest rate swap
agreement has been entered into with a major financial institution which is
expected to fully perform under the terms of the agreement. The difference
in the interest rate between the swap agreement and the three-month LIBOR
rate is recorded as an increase or decrease to interest expense.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
5. LONG-TERM DEBT, continued:
On December 20, 1996, JPE Canada entered into a Cdn. $28.7 million credit
agreement with a Canadian bank, primarily to fund the acquisition of Pebra
Inc. See Note 10 for the discussion on the acquisition. Included in the
Cdn. $28.7 million credit agreement is Cdn. $12 million which can be
utilized towards the original purchase of working capital from Pebra Inc.
and future working capital needs. Borrowings under this section of the
credit agreement are payable on demand. At December 31, 1996, JPE Canada
had Cdn. $11,081 (U.S. $8,120) outstanding related to working capital
borrowings under the credit agreement. The credit agreement also allows JPE
Canada to borrow funds for other operating needs and capital expenditures.
Repayment terms on these borrowings vary based on the nature of the
borrowing. All borrowings under the credit agreement are secured by
substantially all of the assets of JPE Canada. Interest rates on the
borrowings are computed based on either the Canadian Prime Rate or the Base
Rate (for U.S. dollar borrowings), as defined in the agreement. At December
31, 1996, the average interest rate on all Canadian borrowings was 5.5%.
Maturities of long-term debt, including current portion for the years
following December 31, 1996 are as follows: $8,443 in 1997; $93,184 in
1998; $1,767 in 1999; $1,667 in 2000; and $4,940 thereafter. All debt
related amounts recorded in the accompanying balance sheets at December 31,
1996 and 1995 approximate the fair value of the related debt.
6. EMPLOYEE BENEFIT PLANS:
The Company has several different defined contribution plans consisting of
a 40l(k) plan and profit sharing plans which cover substantially all U.S.
based non-union employees. The Company's contribution is discretionary. The
charges to operations for the years ended December 31, 1994, 1995 and 1996
were $229, $1,183 and $1,639, respectively.
The Company sponsors a defined contribution money purchase plan for the
non-union employees of JPE Canada. There were no contributions made to this
plan in the year ended December 31, 1996.
The Company sponsors defined benefit pension plans for employees covered
under collective bargaining agreements at its PTI and JPE Canada
subsidiaries. The benefits are earned based on stated amounts for each
month of credited service. The Company's policy is to fund amounts as
allowed under applicable federal regulations. The assets of the plans are
invested in certificates of deposit, treasury notes and equity securities.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
6. EMPLOYEE BENEFIT PLANS, continued:
Pension information is as follows:
<TABLE>
Components of Net Periodic Pension Cost
<CAPTION>
Year Ending December 31,
1995 1996
---- ----
<S> <C> <C>
Service cost $ 89 $ 69
Interest cost 82 77
Actual return on assets (48) (91)
Net amortization and deferral (6) (10)
---- ----
Net cost $117 $ 45
==== ====
</TABLE>
No expense was recognized in the year ending December 31, 1996 for the JPE
Canada plan.
<TABLE>
Reconciliation of Funded Status
<CAPTION>
December 31, 1995 December 31, 1996
----------------- -----------------
PTI JPE Canada PTI
--- ---------- ---
<S> <C> <C> <C>
Actuarial present value of
benefit obligations
Vested $ 943 $1,144 $1,129
Unvested 17 23
Accumulated Benefit Obligation (ABO) 960 1,144 1,152
Projected Benefit Obligation (PBO) 960 1,144 1,152
Actual plan assets at fair value 1,078 650 1,344
Plan assets greater (less) than PBO 118 (494) 192
Unrecognized transition liability (98) (86)
Unrecognized net gain (90) (108)
Unrecognized prior service cost 67 62
Unamortized prior year's gain (46) (69)
------ ------ ------
Accrued pension cost recognized
in the balance sheet $ (49) $ (494) $ (9)
Major assumptions
Discount rate 7.75% 7.00% 8.00%
Rate of return on plan assets 7.00% 7.00% 8.00%
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
6. EMPLOYEE BENEFIT PLANS, continued:
The Company contributes to a multiemployer defined benefit plan for the IAF
employees covered under its collective bargaining agreement. This plan is
composed of hundreds of different participating employers and many
international and local unions. Pension benefits are determined on a
formula basis which recognize length of service and benefit units. One
benefit unit is credited for each 1,800 hours of service in covered
employment. The Company has charged to expense $86 and $122 for the years
ended December 31, 1995 and 1996, respectively.
The Company also provides health care and life insurance benefits for the
union employees of IAF. These employees become eligible for benefits if
they qualify for retirement while working for the Company. The following
table presents the plan's status at December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Accumulated postretirement benefit obligation
Retirees $ (152) $ (151)
Fully eligible active plan participants (259) (278)
Other active plan participants (585) (744)
------- -------
Accumulated postretirement benefit
obligation $ (996) $(1,173)
Unrecognized net loss 107 111
------- -------
Recorded accumulated postretirement
benefit obligation $ (889) $(1,062)
======= =======
</TABLE>
The following table presents net periodic benefit cost for the year ended
December 31:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Service cost $ 63 $ 117
Interest cost 56 72
------- -------
Net periodic benefit cost $ 119 $ 189
======= =======
</TABLE>
The accumulated postretirement benefit obligation was determined using an
assumed discount rate of 7.25% in 1995 and 1996. The assumed annual health
care cost trend rate was 7.5% and 7.0% for 1995 and 1996, respectively,
decreasing to 5% in 2001. A one percentage point increase in the assumed
health care cost trend rate would have increased the 1996 accumulated
postretirement cost by $45 and would have increased the accumulated
postretirement benefit obligation by $205.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
7. INCOME TAXES:
Income tax expense at December 31, 1994, 1995 and 1996 is as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Income (loss) before income tax
U.S. $5,158 $7,229 $(1,301)
Foreign -- -- (85)
Current payable (refundable):
Federal $1,219 $1,195 $ (395)
State 220 220 378
------ ------ -------
Total current payable (refundable) 1,439 1,415 (17)
------ ------ -------
Deferred:
Federal 432 1,375 96
State 97 (10) 157
Foreign -- -- (33)
------ ------ -------
Total deferred 529 1,365 220
------ ------ -------
Total income tax expense $1,968 $2,780 $ 203
====== ====== =======
</TABLE>
The 1994, 1995 and 1996 provision for income taxes differs from the amount
of income tax determined by applying the statutory U. S. federal income tax
rate to pretax income as a result of the following:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Statutory U. S. federal tax rate 34% 34% (34%)
State taxes, net of federal tax
benefit 4 3 26
Non-deductible write-off of
equity investment -- -- 10
Goodwill amortization 3 7 14
All other (3) (6) (1)
--- --- ---
Effective tax rate 38% 38% 15%
=== === ===
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
7. INCOME TAXES, continued:
Deferred income taxes reflect the estimated future tax effect of temporary
differences between the amount of the assets and liabilities for financial
reporting purposes and such amounts as measured by tax laws and
regulations. At December 31, 1995 and 1996, deferred tax assets and
liabilities are as follows:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Deferred tax assets:
Goodwill $ -- $1,089
Inventory 224 466
Allowance for doubtful accounts 142 96
Employee benefits 844 961
AMT tax credit -- 275
All other 81 74
------ ------
Total deferred tax assets 1,291 2,961
------ ------
Deferred tax liabilities:
Property and equipment 3,098 4,664
LIFO Inventory 276 230
Goodwill 158 --
------ ------
Total deferred tax liabilities 3,532 4,894
------ ------
Net deferred taxes $2,241 $1,933
====== ======
</TABLE>
8. STOCK OPTIONS AND WARRANTS:
The Company has granted certain officers, directors, key employees and
consultants stock options under the 1993 Stock Incentive Plan for Key
Employees of JPE, Inc. The options granted under this plan give the bearer
the right to purchase stock at a fixed price, determined at the date of
grant.
Under the JPE Stock Incentive Plan for Key Employees (the "Plan"), the
total number of shares of common stock that may be granted is 775,250. The
Plan provides that shares granted come from the Company's authorized but
unissued common stock and that the price of the options granted qualifying
as incentive options will not be less than 100 percent of the fair market
value of the shares on the date of the grant. All options that have been
granted under the Plan vest equally over a four year period and expire on
various dates, typically ten years after the date of grant.
Information regarding the Plan, the prior plan and the JPE Director Stock
Option Plan for 1994, 1995 and 1996 is as follows:
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
8. STOCK OPTIONS AND WARRANTS, continued:
<TABLE>
<CAPTION>
Weighted Weighted
Average Average
Exercise Options Exercise
Shares Price Exercisable Price
------ -------- ----------- --------
<S> <C> <C> <C> <C>
Balance, December 31, 1993 291,400 $ 6.04
Options exercised (6,346) 5.99
Options terminated and expired (20,704) 6.52
Options granted 135,000 10.56
-------
Balance, December 31, 1994 399,350 $ 7.54 197,600 $ 4.06
Options exercised (50,100) $ 1.50
Options terminated and expired (149,211) 12.05
Options granted 449,539 12.29
-------
Balance, December 31, 1995 649,578 $10.26 191,198 $ 6.33
Options exercised (108,550) $ 3.78
Options terminated and expired (597,418) 11.24
Options granted 537,000 7.67
-------
Balance, December 31, 1996 480,610 $ 7.61 168,981 $ 8.26
=======
</TABLE>
<TABLE>
<CAPTION>
1996 1995 1994
---- ---- ----
<S> <C> <C> <C>
Options available for grant
at end of year 294,640 125,672 176,000
Option price range at end
of year $3.26-$13.50 $3.26-$14.25 $1.50-$12.65
Option price range for
exercised shares $3.26-$4.01 $1.50 $5.99
Weighted average grant date
fair value of options granted $4.44
Weighted average remaining
contractual life 8 years
</TABLE>
On December 16, 1996, the Company elected to reprice 415,000 of the
outstanding options to the then fair market value of $7.25.
During 1994, the Company granted warrants to purchase 100,000 shares of
common stock at $9.50 per share. The warrants were exercisable on the grant
date. During 1993, the Company granted warrants to purchase 25,000 shares
of common stock for $13.80 per share.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
8. STOCK OPTIONS AND WARRANTS, continued:
The Company has elected to adopt the disclosure-only provisions of
Statement of Financial Accounting Standards No. 123, "Accounting for Stock
Based Compensation." Accordingly, no compensation cost has been recognized
for the stock option plan. Had compensation cost for the Company's plan
been determined based on the fair value at the grant date for awards in
1996 consistent with the provisions of SFAS No. 123, the Company's net
earnings per share would have been reduced to the pro forma amounts
indicated below:
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Net income (loss) - as reported $4,449 $(1,589)
Net income (loss) - pro forma $4,406 $(1,810)
Earnings (loss) per share - as reported $1.09 $(.35)
Earnings (loss) per share - pro forma $1.08 $(.40)
</TABLE>
The fair value of each option grant is estimated on the date of grant using
the Black-Scholes option pricing model with the following weighted-average
assumptions used for grants in 1995 and 1996: dividend yield of 0%;
expected volatility of 56%; risk-free interest rate of 6.3%; and expected
lives of 6 years.
The pro forma disclosures may not be representative of the effects on
reported net income and earnings per share because only stock options
granted beginning in 1995 and 1996 are reflected in the pro forma amounts.
Other factors that may impact pro forma disclosures in future years include
the vesting period of stock options, timing of additional grants and number
of additional shares granted.
9. COMMITMENTS AND CONTINGENCIES:
Various legal actions and other claims could be asserted against the
Company. Litigation is subject to many uncertainties. The outcome of
individual litigated matters is not predictable with assurance, and it is
reasonably possible that some of these matters may be decided unfavorably
to the Company. It is the opinion of management that the ultimate
liability, if any, with respect to these matters will not materially affect
the consolidated financial position, liquidity, or results of operations of
the Company at December 31, 1996.
10. ACQUISITIONS:
On December 23, 1996, the Company acquired substantially all of the assets
of JPE Canada. On February 28, 1995 and March 31, 1995, the Company
acquired the assets of IAF and all of the outstanding stock of PTI,
respectively. These acquisitions have been accounted for as purchases.
Accordingly, the purchase prices, which amounted to $26,015, $40,578 and
$21,662 for IAF, PTI and JPE Canada, respectively, were allocated to the
assets acquired and liabilities assumed. The values of the assets acquired
and liabilities assumed with the purchases of IAF and PTI were based on the
fair values at the respective dates of acquisition. The values of the
assets acquired and liabilities assumed with the purchase of JPE Canada
were based on the fair values at the date of acquisition with the exception
of fixed assets, which are valued at an amount lower than the fair value
due to the bargain purchase nature of the acquisition.
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
10. ACQUISITIONS, continued:
The value of assets and liabilities assumed for the purchases of IAF, PTI
and JPE Canada were comprised of the following on February 28, 1995, March
31, 1995, and December 23, 1996, respectively.
<TABLE>
<CAPTION>
JPE
IAF PTI Canada
--- --- ------
<S> <C> <C> <C>
Cash $ -- $ -- $ --
Accounts receivable and other assets 5,466 7,955 3,676
Inventory 6,377 5,701 6,095
Property, plant and equipment 10,443 17,517 14,154
Goodwill 6,820 15,237 --
Deferred tax asset 876 469 --
------- ------- -------
Total 29,982 46,879 23,925
Accounts payable and accrued
expenses (3,967) (6,301) (2,263)
------- ------- -------
Total, net $26,015 $40,578 $21,662
======= ======= =======
</TABLE>
The following unaudited pro forma summary for the years ended December 31,
1995 and 1996 assumes that the acquisitions of IAF, PTI and JPE Canada had
occurred on January 1, 1995. The significant adjustments relate to the
inclusion of amortization of goodwill, an increase in interest expense
based on an increase in long-term obligations, additional or reduced
depreciation on the revaluation of property, plant and equipment, and the
related income tax effects.
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Revenues $262,539 $275,860
Operating profit 24,486 6,524
Income (loss) before income taxes 13,012 (1,958)
Net income (loss) 8,120 (1,955)
Earnings (loss) per common share $1.98 ($0.43)
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
11. GOODWILL IMPAIRMENT:
During the third quarter of 1996, management identified that a significant
change had occurred in the product mix of its IAF subsidiary since its
purchase in March 1995. In accordance with SFAS 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of," management recorded a $4,300 impairment writedown of the goodwill
associated with the acquisition of IAF. The goodwill was originally valued
at $6,820 when IAF was acquired and, subsequent to the adjustment, had a
net unamortized carrying value of approximately $2,136 as of December 31,
1996. The writedown of $4,300 was calculated based on the estimated current
fair market value of the IAF business which was $21,300. As a result of
this writedown, goodwill amortization will be reduced by $172 on an annual
basis.
12. SUPPLEMENTAL CASH FLOW INFORMATION:
Selected cash payments and noncash activities for the years ended December
31, 1994, 1995 and 1996 were as follows:
<TABLE>
<CAPTION>
1994 1995 1996
---- ---- ----
<S> <C> <C> <C>
Cash paid for interest $ 1,050 $ 4,605 $ 6,780
Cash paid for income taxes 2,514 1,935 83
Noncash investing and financing activities:
Issuance of note payable in connection
with Starboard acquisition 11,625 -- --
Issuance of stock warrants in connection
with Starboard acquisition 500 -- --
Debt assumed in connection with
purchase of real property 490 -- --
Issuance of note payable in connection
with the acquisition of IAF -- 10,377 --
</TABLE>
<PAGE>
JPE, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands, except share data)
13. INDUSTRY SEGMENT AND GEOGRAPHIC AREA:
The Company operates principally in one segment, automotive and truck
components, which are sold to the original equipment manufacturers as well
as the replacement parts markets. The Company's sales to individual
customers in excess of 10% of total revenue were:
<TABLE>
<CAPTION>
Pro Forma*
1995 1996 1996
---- ---- ----
<S> <C> <C> <C>
General Motors Corporation 34% 36% 53%
Chrysler Corporation 12% 14% 10%
<FN>
*Including the impact of JPE Canada for all of 1996.
</FN>
</TABLE>
There were no customers to whom sales were in excess of 10% of total
revenue for the year ended December 31, 1994.
The Company had export sales of approximately $20.5 and $26.5 million,
principally to Canada, for the years ended December 31, 1995 and 1996,
respectively. Export sales for the year ended December 31, 1994 were less
than 10% of total revenues. The Company operates in the North American
geographic area.
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item 10 regarding executive officers of the
Company is included in the Supplemental Item in Part I of this Report and is
incorporated in this Item 10 by reference. The information required by this Item
10 regarding directors of the Company will be set forth under the captions
"Election of Directors" and "Other Information Relating to Nominees and
Directors" in the Company's Proxy Statement in connection with the 1997 Annual
Meeting of Shareholders scheduled to be held May 15, 1997 and is incorporated in
this Item 10 by reference. The Company is not required to make any disclosures
under Item 405 of Regulation S-K.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item 11 concerning executive compensation will
be set forth under the caption "Compensation of Executive Officers and
Directors" in the Company's Proxy Statement in connection with the 1997 Annual
Meeting of Shareholders scheduled to be held May 15, 1997 and (except for the
information set forth under the caption "Compensation of Executive Officers and
Directors -- Report of Compensation Committee") is incorporated in this Item 11
by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item 12 concerning security ownership of
certain beneficial owners and management will be set forth under the captions
"Voting Securities and Principal Holders Thereof" and "Election of Directors" in
the Company's Proxy Statement in connection with the 1997 Annual Meeting of
Shareholders scheduled to be held May 15, 1997 and is incorporated in this Item
12 by reference.
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Not applicable.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Listing of Documents
(1) FINANCIAL STATEMENTS
The Company's Consolidated Financial Statements included in
Item 8 hereof, as required at December 31, 1995 and 1996,
and for the years ended December 31, 1994, 1995 and 1996,
consist of the following:
o Report of Independent Accountants
o Consolidated Balance Sheets
o Consolidated Statements of Income
o Consolidated Statements of Shareholders' Equity
o Consolidated Statements of Cash Flows
o Notes to Consolidated Financial Statements
(2) FINANCIAL STATEMENT SCHEDULE
The financial statement schedule of the Company appended
hereto, as required for the years ended December 31, 1994,
1995 and 1996, consist of the following:
VIII. Valuation and Qualifying Accounts
<PAGE>
(3) EXHIBITS
Exhibit
Number Description
------ -----------
2.1 Asset Purchase Agreement dated December 31, 1992, among
Varity Corporation, a subsidiary of Varity Corporation
formerly known as Dayton Parts, Inc., the Registrant and JPE
Acquisition I, Inc., incorporated by reference to Exhibit 2
to the Registrant's Registration Statement on Form S-1 (File
No. 33-68544).
2.2 Stock Purchase Agreement dated December 13, 1994 by and
among JPE, Inc. and the Shareholders of SAC Corporation,
incorporated by reference to Registrant's Current Report on
Form 8-K dated December 28, 1994.
2.3 Asset Purchase Agreement dated February 28, 1995 among JPE
Acquisition II, Inc., Key Manufacturing Group Limited
Partnership and TTD Management, Inc., incorporated by
reference to Exhibit 2 to Registrant's Current Report on
Form 8-K dated March 14, 1995.
2.4 Acquisition Agreement dated as of April 6, 1995 among JPE,
Inc., PTI Acquisition Corp. and Plastic Trim, Inc.,
incorporated by reference to Exhibit 2 to Registrant's
Current Report on Form 8-K dated April 24, 1995.
2.5 Agreement of Purchase and Sale dated November 15, 1996
between JPE, Inc., in trust for 1203462 Ontario Inc., and
Pebra Inc., incorporated by reference to Registrant's
Current Report on Form 8-K dated January 6, 1997.
3.1 Articles of Incorporation, incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on
Form S-1 (File No. 33-68544).
3.2 Bylaws, incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1 (File No.
33-68544).
4 Form of Certificate for Shares of the Common Stock,
incorporated by reference to Exhibit 4 to the Registrant's
Registration Statement on Form S-1 (File No. 33-68544).
*10.1 Stock Option Agreement dated as of November 27, 1991,
between John F. Daly and the Registrant, incorporated by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544).
10.2 Shareholder Agreement (Conformed Copy), incorporated by
reference to Exhibit 10.6 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544).
<PAGE>
10.3 Indemnification Agreement dated September 1, 1993, between
the Registrant and Dr. John Psarouthakis, incorporated by
reference to Exhibit 10.7 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544).
10.4 Indemnification Agreement dated September 1, 1993, between
the Registrant and Dr. Otto Gago, incorporated by reference
to Exhibit 10.8 to the Registrant's Registration Statement
on Form S-1 (File No. 33-68544).
10.5 Indemnification Agreement dated September 1, 1993, between
the Registrant and John F. Daly, incorporated by reference
to Exhibit 10.9 to the Registrant's Registration Statement
on Form S-1 (File No. 33-68544).
10.6 Indemnification Agreement dated September 1, 1993, between
the Registrant and Donald R. Mandich, incorporated by
reference to Exhibit 10.10 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544).
10.7 JPE, Inc. Warrant to Purchase Common Stock issued by the
Registrant in favor of Roney & Co., incorporated by
reference to Exhibit 10.11 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544). Pursuant to its
terms, the foregoing Warrant was surrendered and exchanged
for substitute Warrants identical to the foregoing Warrant
in all respects except for the name of the substitute
Warrant holder and the number of shares of the Registrant's
Common Stock for which the substitute Warrants are
exercisable, which terms are as follows:
Number of Shares
of Common Stock for
Warrant Holder which Warrant is Exercisable
-------------- ----------------------------
Roney & Co. 10,000
John C. Donnelly 6,250
James C. Penman 6,250
Dan B. French, Jr. 2,500
10.8 Exclusive Distributor Agreement dated December 31, 1992,
between Dayton Walther Corporation ("DWC") and Dayton Parts,
incorporated by reference to Exhibit 10.14 to the
Registrant's Registration Statement on Form S-1 (File No.
33-68544).
10.9 Exclusive Distributor Agreement dated December 31, 1992,
between DWC and Dayton Parts, incorporated by reference to
Exhibit 10.15 to the Registrant's Registration Statement on
Form S-1 (File No. 33-68544).
10.10 Letter Agreement dated December 31, 1992, from Kelsey-Hayes
Company to Acquisition (now known as Dayton Parts),
incorporated by reference to Exhibit 10.16 to the
Registrant's Registration Statement on Form S-1 (File No.
33-68544).
<PAGE>
10.11 Lease Agreement dated May 3, 1993, between Central Storage
& Transfer Company of Harrisburg, Inc. ("CSTCH") and Dayton
Parts, as amended by First Addendum to Lease dated May 3,
1993, between CSTCH and Dayton Parts, incorporated by
reference to Exhibit 10.17 to the Registrant's Registration
Statement on Form S-1 (File No. 33-68544).
10.12 JPE, Inc. 1993 Stock Incentive Plan for Key Employees, as
amended, incorporated by reference to Exhibit 28 to the
Registrant's Registration Statement on Form S-8 (File No.
33-93326).
10.13 Form of JPE, Inc. Warrant to purchase an aggregate of
100,000 shares of Common Stock at $9.50 per share issued by
the Registrant in favor of the sellers of SAC Corporation,
incorporated by reference to Exhibit 4.a. to the
Registrant's Form 8-K dated December 28, 1994.
10.14 Third Amendment to JPE, Inc. 1993 Stock Incentive Plan for
Key Employees, incorporated by reference to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1995.
*10.15 Amendment to Stock Option Agreement dated as of November
27, 1991, between JPE, Inc. and John F. Daly, incorporated
by reference to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1995.
*10.16 JPE, Inc. Director Stock Option Plan, incorporated by
reference to Exhibit 28 to the Registrant's Registration
Statement on Form S-8 (File No. 33-93328).
10.17 Form of Indemnification Agreement dated February 8, 1995,
between the Registrant and Donna L. Bacon, incorporated by
reference to Exhibit 10.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995.
10.18 Form of Indemnification Agreement between the Registrant
and James J. Fahrner, incorporated by reference to Exhibit
10.3 to the Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1995.
10.19 Form of Indemnification Agreement between Registrant and C.
William Mercurio, filed with this report.
10.20 Third Amended and Restated Credit Agreement dated as of
December 31, 1996, by and among Comerica Bank, other
participants and JPE, Inc., filed with this report.
10.21 Credit Agreement dated as of December 20, 1996 between JPE
Canada Inc. and The Bank of Nova Scotia, filed with this
report.
21 Subsidiaries of the Registrant, filed with this report.
23 Consent of Coopers & Lybrand L.L.P.
* Indicates management contract or compensatory plan or arrangement.
<PAGE>
(b) Reports on Form 8-K
The Registrant did not file any Reports on Form 8-K during the
quarter ended December 31, 1996.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Report to be signed on
its behalf on March 26, 1997 by the undersigned, thereunto duly authorized.
JPE, INC.
By: /s/ John Psarouthakis
--------------------------------------
John Psarouthakis
Chairman of the Board,
Chief Executive Officer and Director
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
/s/ John Psarouthakis Chairman of the Board, March 26, 1997
John Psarouthakis Chief Executive Officer,
President and Director
(Principal Executive Officer)
/s/ James J. Fahrner Vice President and March 26, 1997
James J. Fahrner Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ C. William Mercurio President-OEM Group March 26, 1997
C. William Mercurio and Director
/s/ John F. Daly Director March 26, 1997
John F. Daly
/s/ Otto Gago Director March 26, 1997
Otto Gago
/s/ Donald R. Mandich Director March 26, 1997
Donald R. Mandich
<PAGE>
JPE, INC.
FINANCIAL STATEMENT SCHEDULES
PURSUANT TO ITEM 14(a)(2) OF FORM 10-K
ANNUAL REPORT TO THE SECURITIES AND EXCHANGE COMMISSION
The schedule, as required, for the years ended December 31, 1994, 1995 and 1996:
Pages
-----
VIII. Valuation and Qualifying Accounts 49
<PAGE>
JPE, INC.
<TABLE>
<CAPTION>
SCHEDULE VIII - VALUATION ACCOUNTS
for the years ended December 31, 1994, 1995 and 1996
Column A Column B Column C Column D Column E
- -------- -------- -------------------- -------- --------
Balance at Charges to Charges Balance
Beginning Costs and to Other at End
Description of Period Expenses Accounts Deductions of Period
- ----------- --------- -------- -------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Accounts receivable,
allowance for doubtful
accounts:
January 1, 1994 through
December 31, 1994 .... $199,000 $(97,000) $134,000 $ -- $236,000
======== ========= ======== ========== ========
January 1, 1995 through
December 31, 1995 .... $236,000 $186,000 $ 13,000 $ (66,000) $369,000
======== ========= ======== ========== ========
January 1, 1996 through
December 31, 1996 .... $369,000 $104,000 $ -- $(211,000) $262,000
======== ========= ======== ========== ========
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
2.1 Asset Purchase Agreement dated December 31, 1992, among Varity
Corporation, a subsidiary of Varity Corporation formerly known as
Dayton Parts, Inc., the Registrant and JPE Acquisition I, Inc.,
incorporated by reference to Exhibit 2 to the Registrant's
Registration Statement on Form S-1 (File No. 33-68544).
2.2 Stock Purchase Agreement dated December 13, 1994 by and among JPE,
Inc. and the Shareholders of SAC Corporation, incorporated by
reference to Registrant's Current Report on Form 8-K dated December
28, 1994.
2.3 Asset Purchase Agreement dated February 28, 1995 among JPE Acquisition
II, Inc., Key Manufacturing Group Limited Partnership and TTD
Management, Inc., incorporated by reference to Exhibit 2 to
Registrant's Current Report on Form 8-K dated March 14, 1995.
2.4 Acquisition Agreement dated as of April 6, 1995 among JPE, Inc., PTI
Acquisition Corp. and Plastic Trim, Inc., incorporated by reference to
Exhibit 2 to Registrant's Current Report on Form 8-K dated April 24,
1995.
2.5 Agreement of Purchase and Sale dated November 15, 1996 between JPE,
Inc., in trust for 1203462 Ontario Inc., and Pebra Inc., incorporated
by reference to Registrant's Current Report on Form 8-K dated January
6, 1997.
3.1 Articles of Incorporation, incorporated by reference to Exhibit 3.1 to
the Registrant's Registration Statement on Form S-1 (File No.
33-68544).
3.2 Bylaws, incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-1 (File No. 33-68544).
4 Form of Certificate for Shares of the Common Stock, incorporated by
reference to Exhibit 4 to the Registrant's Registration Statement on
Form S-1 (File No. 33-68544).
*10.1 Stock Option Agreement dated as of November 27, 1991, between John F.
Daly and the Registrant, incorporated by reference to Exhibit 10.4 to
the Registrant's Registration Statement on Form S-1 (File No.
33-68544).
10.2 Shareholder Agreement (Conformed Copy), incorporated by reference to
Exhibit 10.6 to the Registrant's Registration Statement on Form S-1
(File No. 33-68544).
<PAGE>
10.3 Indemnification Agreement dated September 1, 1993, between the
Registrant and Dr. John Psarouthakis, incorporated by reference to
Exhibit 10.7 to the Registrant's Registration Statement on Form S-1
(File No. 33-68544).
10.4 Indemnification Agreement dated September 1, 1993, between the
Registrant and Dr. Otto Gago, incorporated by reference to Exhibit
10.8 to the Registrant's Registration Statement on Form S-1 (File No.
33-68544).
10.5 Indemnification Agreement dated September 1, 1993, between the
Registrant and John F. Daly, incorporated by reference to Exhibit 10.9
to the Registrant's Registration Statement on Form S-1 (File No.
33-68544).
10.6 Indemnification Agreement dated September 1, 1993, between the
Registrant and Donald R. Mandich, incorporated by reference to Exhibit
10.10 to the Registrant's Registration Statement on Form S-1 (File No.
33-68544).
10.7 JPE, Inc. Warrant to Purchase Common Stock issued by the Registrant in
favor of Roney & Co., incorporated by reference to Exhibit 10.11 to
the Registrant's Registration Statement on Form S-1 (File No.
33-68544). Pursuant to its terms, the foregoing Warrant was
surrendered and exchanged for substitute Warrants identical to the
foregoing Warrant in all respects except for the name of the
substitute Warrant holder and the number of shares of the Registrant's
Common Stock for which the substitute Warrants are exercisable, which
terms are as follows:
Number of Shares
of Common Stock for
Warrant Holder which Warrant is Exercisable
-------------- ----------------------------
Roney & Co. 10,000
John C. Donnelly 6,250
James C. Penman 6,250
Dan B. French, Jr. 2,500
10.8 Exclusive Distributor Agreement dated December 31, 1992, between
Dayton Walther Corporation ("DWC") and Dayton Parts, incorporated by
reference to Exhibit 10.14 to the Registrant's Registration Statement
on Form S-1 (File No. 33-68544).
10.9 Exclusive Distributor Agreement dated December 31, 1992, between DWC
and Dayton Parts, incorporated by reference to Exhibit 10.15 to the
Registrant's Registration Statement on Form S-1 (File No. 33-68544).
10.10 Letter Agreement dated December 31, 1992, from Kelsey-Hayes Company
to Acquisition (now known as Dayton Parts), incorporated by reference
to Exhibit 10.16 to the Registrant's Registration Statement on Form
S-1 (File No. 33-68544).
<PAGE>
10.11 Lease Agreement dated May 3, 1993, between Central Storage & Transfer
Company of Harrisburg, Inc. ("CSTCH") and Dayton Parts, as amended by
First Addendum to Lease dated May 3, 1993, between CSTCH and Dayton
Parts, incorporated by reference to Exhibit 10.17 to the Registrant's
Registration Statement on Form S-1 (File No. 33-68544).
10.12 JPE, Inc. 1993 Stock Incentive Plan for Key Employees, as amended,
incorporated by reference to Exhibit 28 to the Registrant's
Registration Statement on Form S-8 (File No. 33-92236).
10.13 Form of JPE, Inc. Warrant to purchase an aggregate of 100,000 shares
of Common Stock at $9.50 per share issued by the Registrant in favor
of the sellers of SAC Corporation, incorporated by reference to
Exhibit 4.a. to the Registrant's Form 8-K dated December 28, 1994.
10.14 Third Amendment to JPE, Inc. 1993 Stock Incentive Plan for Key
Employees, incorporated by reference to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1995.
*10.15 Amendment to Stock Option Agreement dated as of November 27, 1991,
between JPE, Inc. and John F. Daly, incorporated by reference to
Registrant's Annual Report on Form 10-K for the year ended December
31, 1995.
*10.16 JPE, Inc. Director Stock Option Plan, incorporated by reference to
Exhibit 28 to the Registrant's Registration Statement on Form S-8
(File No. 33-93328).
10.17 Form of Indemnification Agreement dated February 8, 1995, between the
Registrant and Donna L. Bacon, incorporated by reference to Exhibit
10.1 to the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995.
10.18 Form of Indemnification Agreement between the Registrant and James J.
Fahrner, incorporated by reference to Exhibit 10.3 to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995.
10.19 Form of Indemnification Agreement between Registrant and C. William
Mercurio, filed with this report.
10.20 Third Amended and Restated Credit Agreement dated as of December 31,
1996, by and among Comerica Bank, other participants and JPE, Inc.,
filed with this report.
10.21 Credit Agreement dated as of December 20, 1996 between JPE Canada
Inc. and The Bank of Nova Scotia, filed with this report.
21 Subsidiaries of the Registrant, filed with this report.
23 Consent of Coopers & Lybrand L.L.P.
27 Financial Data Schedule, which is submitted electronically to the
Securities and Exchange Commission for information only and not filed.
* Indicates management contract or compensatory plan or arrangement.
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of July 1, 1996 between
JPE, Inc., a Michigan corporation ("Corporation"), and C. William Mercurio
("Officer").
Recitals
A. Officer is an officer of Corporation and Corporation desires Officer to
continue in such capacity. Officer is willing to continue Officer's
employment with Corporation if Officer receives the protections provided by
this Agreement.
B. Corporation's Bylaws obligate it to indemnify its directors and officers.
C. Corporation believes that (1) litigation against corporate directors and
officers, regardless of whether meritorious, is expensive and
time-consuming to defend; (2) there is a substantial risk of a large
judgment or settlement in litigation in which a corporate officer was
neither culpable nor profited personally to the detriment of the
corporation; (3) it is important for Officer to have assurance that
indemnification will be available if Officer acts in accordance with
reasonable business standards; and (4) because available directors and
officers liability insurance and the indemnification available from
Corporation are not adequate to fully protect Officer against the problems
discussed above, it is in the best interests of Corporation and its
shareholders for Corporation to contractually obligate itself to indemnify
Officer pursuant to this Agreement.
Therefore, Corporation and Officer agree as follows:
l. INDEMNIFICATION.
(a) Corporation will indemnify Officer to the fullest extent permitted
under applicable law if Officer was or is a party or threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding of any kind, whether civil, criminal, administrative or
investigative and whether formal or informal (including actions by or
in the right of Corporation and any preliminary inquiry or claim by
any person or authority), by reason of the fact that Officer is or was
a director, officer, partner, trustee, employee or agent of
Corporation or is or was serving at Corporation's request as a
director, officer, employee or agent of another corporation (including
a Subsidiary (as defined in paragraph 15 below)), limited liability
company, partnership, joint venture, trust, employee benefit plan or
other enterprise, whether or not for profit, or by reason of anything
done or not done by Officer in any such capacity (collectively,
"Covered Matters"). Such indemnification will cover all Expenses (as
defined in paragraph 2 below), liabilities, judgments (including
punitive and exemplary damages), penalties, fines (including excise
taxes relating to employee benefit plans and civil penalties) and
amounts paid in settlement which are incurred or imposed upon Officer
in connection with a Covered Matter (collectively, "Indemnified
Amounts").
(b) If Officer is entitled under this Agreement to indemnification for
less than all of the amounts incurred by Officer in connection with a
Covered Matter, Corporation will indemnify Officer for the
indemnifiable amount.
2. ADVANCE OF EXPENSES. Before final adjudication of a Covered Matter, upon
Officer's request pursuant to paragraph 3 below, Corporation will promptly
either advance Expenses directly or reimburse Officer for all Expenses to
the fullest extent permitted under applicable law. As used in this
Agreement, "Expenses" means all costs and expenses (including attorneys'
fees, expert fees, other professional fees and court costs) incurred by
Officer in connection with a Covered Matter other than judgments,
penalties, fines and settlement amounts.
3. CLAIMS FOR INDEMNIFICATION. Officer will give Corporation written notice of
any claim for indemnification under this Agreement. Payment requests will
include a schedule setting forth in reasonable detail the amount requested
and will be accompanied (or, if necessary, followed) by copies of the
relevant invoices or other documentation. Upon Corporation's request,
Officer will provide Corporation with a copy of the document or pleading,
if any, notifying Officer of the Covered Matter. To the extent practicable,
Corporation will pay Indemnified Amounts directly without requiring Officer
to make any prior payment.
4. DEFENSE OF CLAIM.
(a) Except as provided in paragraph 4(c) below, Corporation, jointly with
any other indemnifying party, will be entitled to assume the defense
of any Covered Matter as to which Officer requests indemnification.
(b) Counsel selected by Corporation to defend any Covered Matter will be
subject to Officer's advance written approval, which will not be
unreasonably withheld.
(c) Officer may employ Officer's own counsel in a Covered Matter and be
fully reimbursed therefor if (1) Corporation approves, in writing, the
employment of such counsel or (2) either (A) Officer has reasonably
concluded that there may be a conflict of interest between Corporation
and Officer or between Officer and other parties represented by
counsel employed by Corporation to represent Officer in such action or
(B) Corporation has not employed counsel reasonably satisfactory to
Officer to assume the defense of such Covered Matter promptly after
Officer's request.
(d) Neither Corporation nor Officer will settle any Covered Matter without
the other's written consent, which will not be unreasonably withheld.
5. D&O INSURANCE. The parties will cooperate to obtain advances of Expenses,
indemnification payments and consents from insurance carriers in any
Covered Matter to the full extent of any applicable directors and officers
liability insurance ("D&O Insurance"). Amounts paid directly to Officer
with respect to a Covered Matter by D&O Insurance carriers will be credited
to the amounts payable by Corporation to Officer under this Agreement.
6. RIGHTS NOT EXCLUSIVE. The indemnification provided to Officer under this
Agreement will be in addition to any indemnification provided to Officer by
any law, agreement, Board resolution, provision of the Articles of
Incorporation or Bylaws of Corporation or otherwise.
7. SUBROGATION. Upon payment of any Indemnified Amount under this Agreement,
Corporation will be subrogated to the extent of such payment to all of
Officer's rights of recovery therefor and Officer will take all reasonable
actions requested by Corporation (at no cost or penalty to Officer) to
secure Corporation's rights under this paragraph 7 including executing
documents.
8. CONTINUATION OF INDEMNITY. All of Corporation's obligations under this
Agreement will continue as long as Officer is subject to any actual or
possible Covered Matter, notwithstanding Officer's termination of service
as an officer of Corporation.
10. GOVERNING LAW. This Agreement will be governed by Michigan Law.
11. SUCCESSORS.
(a) This Agreement will be binding upon and inure to the benefit of the
parties and their respective heirs, legal representatives and assigns.
(b) Corporation will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially
all of the business or assets of the Corporation to assume all of
Corporation's obligations under this Agreement. Such assumption will
not release Corporation from its obligations under this Agreement.
12. SEVERABILITY. The provisions of this Agreement will be deemed severable,
and if any part of any provision is held illegal, void or invalid under
applicable law, such provision may be changed to the extent reasonably
necessary to make the provision, as so changed, legal, valid and binding.
If any provision of this Agreement is held illegal, void or invalid in its
entirety, the remaining provisions of this Agreement will not in any way be
affected or impaired but will remain binding in accordance with their
terms.
13. NOTICES. All notices given under this Agreement will be in writing and
delivered either personally, by registered or certified mail (return
receipt requested, postage prepaid), by recognized overnight courier or by
telecopy (if promptly followed by a copy delivered personally, by
registered or certified mail or overnight courier), as follows:
If to Officer: C. William Mercurio
2594 Lantz
Beavercreek, Ohio 45434
If to Corporation: JPE, Inc.
900 Victors Way, Suite 140
Ann Arbor, Michigan 48108
Attention: Secretary
or to such other address as either party furnishes to the other in writing.
14. COUNTERPARTS. This Agreement may be signed in counterpart.
15. SUBSIDIARIES. As used in this Agreement, the term "Subsidiary" means any
corporation in which Corporation owns a majority interest.
16. NO CONTRACT OF EMPLOYMENT. This Agreement does not confer upon Officer any
right with respect to continued employment with Corporation. Unless Officer
has a written employment agreement which expressly provides otherwise,
Officer's employment with Corporation and its Subsidiaries and affiliates
is "at will" and may be terminated by either Officer or Corporation (or any
Subsidiary or affiliate) at any time with or without cause, notice or
reason.
In witness whereof, the parties have executed this Agreement on the date set
forth in the introductory paragraph of this Agreement.
JPE, INC.
a Michigan corporation
By: /s/ John Psarouthakis
---------------------
John Psarouthakis
Its: Chairman and Chief Executive Officer
/s/ C. William Mercurio
- -----------------------
C. William Mercurio
President - OEM Group
================================================================================
THIRD AMENDED AND RESTATED
JPE, INC.
CREDIT AGREEMENT
DATED AS OF DECEMBER 31, 1996
COMERICA BANK, AS AGENT
================================================================================
Execution Copy
<PAGE>
EXHIBITS
A FORM OF REQUEST FOR REVOLVING CREDIT ADVANCE
B FORM OF REVOLVING CREDIT NOTE
C FORM OF NOTICE OF LETTERS OF CREDIT
D FORM OF REQUEST FOR SWING LINE ADVANCE
E FORM OF SWING LINE NOTE
F FORM OF SWING LINE PARTICIPATION CERTIFICATE
G PERCENTAGES
H FORM OF COVENANT COMPLIANCE AND INTEREST RATE
ADJUSTMENT REPORT
I FORM OF JOINDER AGREEMENT
J FORM OF PARTICIPATION ASSIGNMENT AGREEMENT
K FORM OF PAYOFF LETTER
SCHEDULES
1.9 Applicable Fee Percentage and Eurocurrency Margins
1.34 Existing Letters of Credit
1.45 List of Guarantors at Closing
1.79 Additional Permitted Liens
7.7 Shareholders of Subsidiaries
7.15 Litigation - Company
7.16 Litigation - Subsidiaries
7.20 Pension Plans
7.22 Environmental Matters
7.23 Contingent Obligations
7.24 Joint Ventures
9.5 Additional Permitted Indebtedness
9.9 Additional Permitted Investments
<PAGE>
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is made as
of the 31st day of December, 1996, by and among Comerica Bank, and the other
financial institutions from time to time parties hereto as lenders of the
Revolving Credit (individually, a "Revolving Credit Bank", and collectively the
"Revolving Credit Banks"), Comerica Bank, as lender of the Swing Line Credit
("Swing Line Bank" and together with Revolving Credit Banks, collectively
referred to as the "Banks") Comerica Bank, as agent for the Banks (in such
capacity, "Agent"), and JPE, Inc., a Michigan corporation ("Company").
WHEREAS, Company, the Prior Lenders and Agent entered into that certain
Second Amended and Restated Credit Agreement dated as of March 14, 1996 (the
"Prior Agreement") pursuant to which the Banks agreed to extend certain credit
facilities to Company;
WHEREAS, the Company has created a Canadian subsidiary, JPE Canada (as
defined below) which has or will acquire all or substantially all of the assets
of Pebra Inc., an Ontario corporation, and Company has requested that Banks
modify certain covenants in the Prior Agreement in connection therewith and
Banks are prepared to do so, but only upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, COMPANY, AGENT AND BANKS AGREE THAT THE PRIOR AGREEMENT IS
AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
1. DEFINITIONS
For the purposes of this Agreement the following terms will have the
following meanings:
1.1 "Account(s)" shall mean any account or account receivable as defined
under the UCC, including without limitation, with respect to any Person, any
right of such Person to payment for goods sold or leased or for services
rendered.
1.2 "Account Debtor" shall mean the party who is obligated on or under any
Account.
1.3 "Account Party(ies)" shall mean, with respect to any Letter of Credit,
the account party or parties (which shall be Company, individually, or a
Subsidiary (excluding JPE Canada) (jointly and severally with Company) named in
an application to the Agent for the issuance of such Letter of Credit.
1.4 "Advance(s)" shall mean Revolving Credit Advance(s) and Swing Line
Advance(s).
1.5 "Affiliate" shall mean, with respect to any Person, any other Person or
group acting in concert in respect of the first Person that, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with such first Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control with"), as used with respect to any
Person or group of Persons, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
1.6 "Agent" shall mean Comerica Bank, in its capacity as agent hereunder,
or any successor agent appointed in accordance with Section 13.4 hereof.
1.7 "Agent's Fees" shall mean those agency, letter of credit issuance and
other fees and expenses required to be paid by Company to Agent under Sections
3.5 and 13.7 hereof.
1.8 "Alternate Base Rate" shall mean, for any day, an interest rate per
annum equal to the Federal Funds Effective Rate in effect on such day, plus one
percent (1%).
1.9 "Applicable Fee Percentage" shall mean, as of any date of determination
thereof, the applicable percentage used to calculate the Letter of Credit Fees
due and payable hereunder, determined (based on the Company's ratio of Funded
Debt to EBITDA, on a Consolidated basis) by reference to the appropriate columns
in the pricing matrix attached to this Agreement as Schedule 1.9.
1.10 "Applicable Interest Rate" shall mean (i) in respect of a Revolving
Credit Advance, the Eurocurrency-based Rate or the Prime-based Rate, applicable
to such Advance (in the case of a Eurocurrency-based Advance, for the relevant
Interest Period), and (ii) in respect of a Swing Line Advance, the Prime-based
Rate or the Quoted Rate, applicable to such Advance, for the relevant Interest
Period, as selected by Company from time to time subject to the terms and
conditions of this Agreement.
1.11 "Banks" shall mean Comerica Bank, Bank One, Dayton, NA, National Bank
of Canada, NBD Bank, and Harris Trust and Savings Bank and such other financial
institutions from time to time parties hereto as lenders and shall include the
Revolving Credit Banks and the Swing Line Bank and any assignee which becomes a
Bank pursuant to Section 14.9 hereof.
1.12 "Business Day" shall mean any day on which commercial banks are open
for domestic and international business in Detroit, London and New York.
1.13 "Capitalization Percentage" shall mean as of any date of determination
a percentage expressed as a ratio the numerator of which shall equal the net
worth of JPE Canada as of such date and the denominator of which shall equal the
net worth of JPE Canada as of such date plus JPE Canada's Funded Debt as of such
date, all as determined in accordance with GAAP.
1.14 "Collateral" shall mean all property or rights in which a security
interest, mortgage, lien or other encumbrance for the benefit of the Banks is or
has been granted or arises or has arisen, under or in connection with this
Agreement, the Loan Documents or otherwise.
1.15 "Collateral Documents" shall mean the Company Collateral Documents and
the Guarantor Collateral Documents.
1.16 "Company" shall mean JPE, Inc., a Michigan corporation.
1.17 "Company Collateral Documents" shall mean the Company Security
Agreement, the Stock Pledges and all other security documents executed and
delivered by Company to the Agent, in accordance with the terms and conditions
of this Agreement, as the same may be amended, restated, supplemented or
replaced from time to time.
1.18 "Company Security Agreement" shall mean that certain security
agreement encumbering the Accounts, inventory, general intangibles, machinery,
equipment and all other tangible and intangible personal property of Company,
now owned or hereafter acquired, executed and delivered by Company to the Agent
any time before or after the date hereof as the same may be amended, restated,
supplemented or replaced from time to time.
1.19 "Consolidated" or "Consolidating" shall mean, when used with reference
to any financial term in this Agreement, the aggregate for two or more Persons
of the amounts signified by such term for all such persons determined on a
consolidated basis in accordance with GAAP. Unless otherwise specified herein,
references to Consolidated financial statements or data of Company includes
consolidation with its Subsidiaries in accordance with GAAP.
1.20 "Core Business" shall mean the manufacturing and distribution of truck
and automotive components for the original equipment market or aftermarket or
the manufacturing and distribution of other durable goods.
1.21 "Covenant Compliance and Interest Rate Adjustment Report" shall mean
the report to be furnished by Company to the Agent, in the form of attached
Exhibit "H" and certified by the chief financial officer of Company and pursuant
to Section 8.3, hereof (or in such officer's absence, a responsible senior
officer), in which report Company shall set forth, among other things, detailed
calculations and the resultant ratios or financial tests with respect to the
financial covenants contained in Sections 8.4 and 8.5 of this Agreement.
1.22 "Debt" shall mean, as of any applicable date of determination, all
items of indebtedness, obligation or liability of a Person, whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, that should be classified as liabilities on a
balance sheet and in accompanying footnotes in accordance with GAAP; provided,
however that for purposes of calculating the aggregate Debt of Company and its
Subsidiaries, the direct and indirect and absolute and contingent obligations of
Company and the Guarantors (whether direct or contingent) shall be determined
without duplication.
1.23 "De Minimis Matters" shall mean environmental or other matters, the
existence of which and any liability which may result therefrom, would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the financial condition or businesses of the Company and its
Subsidiaries (taken as a whole) or on the ability of the Company and
Subsidiaries (taken as a whole) to pay their Debts, as such Debts become due.
1.24 "Default" shall mean any event which with the giving of notice or the
passage of time, or both, would constitute an Event of Default under this
Agreement.
1.25 "Dollars" and the sign "$" shall mean lawful money of the United
States of America.
1.26 "EBIT" shall mean with respect to any period, net earnings (or loss)
of Company and its Consolidated Subsidiaries before interest expense and taxes
and before reflecting extraordinary gains (or losses), including without
limitation, the $5,000,000 write-off of charges recognized at September 30, 1996
relating to acquisitions permitted under Section 9.7 hereof; provided, however,
that for purposes of determining EBIT for any period, the net earnings (or loss)
of JPE Canada shall be included only if as of the date of determination JPE
Canada is not prohibited under any contract or agreement from paying dividends
on or making distributions to Company with respect to Company's shares of
capital stock or other equity interest in JPE Canada and further provided, that
in such case the net earnings (or loss) of JPE Canada so included in determining
EBIT shall not exceed an amount equal to the lesser of (i) the amount obtained
by multiplying the Capitalization Percentage by JPE Canada's net earnings (or
loss) for such period and (ii) the amount of dividends or distributions JPE
Canada may pay to Company as of such date of determination) and gains (or
losses) from discontinued operations for such period, as determined in
accordance with GAAP.
1.27 "EBITDA" shall mean with respect to any period, net earnings (or loss)
of Company and its Consolidated Subsidiaries before interest expense, taxes,
depreciation and amortization expense and before reflecting extraordinary gains
(or losses), including without limitation, a $5,000,000 write-off of charges
recognized at September 30, 1996 relating to acquisitions permitted under
Section 9.7 hereof; provided, however, that for purposes of determining EBIT for
any period, the net earnings (or loss) of JPE Canada shall be included only if
as of the date of determination JPE Canada is not prohibited under any contract
or agreement from paying dividends on or making distribution to Company with
respect to Company's shares of capital stock or other equity interest in JPE
Canada and further provided, that in such case the net earnings (or loss) of JPE
Canada so included in determining EBITDA shall not exceed an amount equal to the
lesser of (i) the amount obtained by multiplying the Capitalization Percentage
by JPE Canada's net earnings (or loss) for such period and (ii) the amount of
dividends or distributions JPE Canada may pay to Company as of such date of
determination) and gains (or losses) from discontinued operations for such
period, as determined in accordance with GAAP.
1.28 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, or any successor act or code and the regulations in effect
from time to time thereunder.
1.29 "Eurocurrency-based Advance" shall mean a Revolving Credit Advance
which bears interest at the Eurocurrency-based Rate.
1.30 "Eurocurrency-based Rate" shall mean, with respect to any
Eurocurrency-Interest Period, the per annum interest rate which is equal to the
sum of the Margin plus the quotient of:
(A) the per annum interest rate at which deposits in eurodollars are
offered to Agent's Eurocurrency Lending Office by other prime banks in
the eurodollar market in an amount comparable to the relevant
Eurocurrency-based Advance and for a period equal to the relevant
Eurocurrency-Interest Period at approximately 11:00 A.M. Detroit time
two (2) Business Days prior to the first day of such
Eurocurrency-Interest Period, divided by
(B) an amount equal to one minus the stated maximum rate (expressed as a
decimal) of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) that
is specified on the first day of such Eurocurrency-Interest Period by
the Board of Governors of the Federal Reserve System (or any successor
agency thereto) for determining the maximum reserve requirement with
respect to eurodollar funding (currently referred to as "eurocurrency
liabilities" in Regulation D of such Board) maintained by a member
bank of such System,
all as conclusively determined (absent manifest error) by the Agent, such sum to
be rounded upward, if necessary, to the nearest whole multiple of 1/16th of 1%.
1.31 "Eurocurrency-Interest Period" shall mean the Interest Period
applicable to a Eurocurrency-based Advance.
1.32 "Eurocurrency Lending Office" shall mean, (a) with respect to the
Agent, Agent's office located at Grand Cayman, British West Indies or such other
branch or branches of Agent, domestic or foreign, as it may hereafter designate
as a Eurocurrency Lending Office by notice to Company and the Banks, and (b) as
to each of the Banks, its office, branch or affiliate located at its address set
forth on the signature pages hereof (or identified thereon as a Eurocurrency
Lending Office), or at such other office, branch or affiliate of such Bank as it
may hereafter designate as its Eurocurrency Lending Office by notice to Company
and Agent.
1.33 "Event of Default" shall mean each of the Events of Default specified
in Section 10.1 hereof.
1.34 "Existing Letters of Credit" shall mean those letters of credit listed
on Schedule 1.33 hereto which were issued by the Agent for the account of the
Account Parties listed on such Schedule under the Prior Agreement, as such
letters of credit may be amended, modified, or supplemented from time to time in
accordance with the terms hereof and thereof.
1.35 "Facility Fee" shall mean the fee payable by Company to Agent for
distribution to the Banks based on their respective Percentages under Section
2.7 hereof.
1.36 "Federal Funds Effective Rate" shall mean, for any day, a fluctuating
interest rate per annum equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions
received by Agent from three Federal funds brokers of recognized standing
selected by it, all as conclusively determined by the Agent, such sum to be
rounded upward, if necessary, to the nearest whole multiple of 1/16th of 1%.
1.37 "Fees" shall mean, the Letter of Credit Fees, the Facility Fee, the
Agent's Fees and the other fees and charges payable by Company to the Banks or
Agent hereunder.
1.38 "Fixed Charge Coverage Ratio" shall mean as at any date of
determination, a ratio (i) the numerator of which shall be equal to EBIT for the
twelve month period ending on such date and (ii) the denominator of which shall
be the sum of Interest Expense for such period.
1.39 "Financial Statements" shall mean all those balance sheets, earnings
statements and other financial data (whether of the Company, the Guarantors or
otherwise) which have been furnished to the Agent or the Banks for the purposes
of, or in connection with, this Agreement and the transactions contemplated
hereby.
1.40 "Funded Debt" as of any date of determination shall mean all interest
bearing Debt (other than Subordinated Debt) whether current or long term, as
determined in accordance with GAAP.
1.41 "Funded Debt to EBITDA Ratio" shall mean as of any date of
determination, a ratio, the numerator of which shall equal the Funded Debt of
Company and its Consolidated Subsidiaries (excluding JPE Canada) as of such date
and the denominator of which shall equal EBITDA as of such date.
1.42 "GAAP" shall mean generally accepted accounting principles in the
United States of America, as in effect on the date hereof, consistently applied.
1.43 "Goodwill" shall mean goodwill as determined in accordance with GAAP.
1.44 "Governmental Obligations" means noncallable direct general
obligations of the United States of America or obligations the payment of
principal of and interest on which is unconditionally guaranteed by the United
States of America.
1.45 "Guarantor(s)" shall mean as of the date hereof, each Subsidiary of
the Company (excluding JPE Canada), and subsequent to the date hereof, each
Person otherwise becoming a Subsidiary of the Company, or otherwise entering
into the Guaranty (by joinder agreement or otherwise), from time to time and
shall as of the date of execution of this Agreement consist of the Subsidiaries
listed on Schedule 1.43 hereto.
1.46 "Guarantor Collateral Documents" shall mean the Guaranty and the
Guarantor Security Agreements and all other security documents executed by the
Guarantors and delivered to Agent at any time before or after the date hereof,
pursuant to or in accordance with the Collateral Documents, and with respect to
each Person which becomes a Subsidiary of Company after the date hereof, on the
effective date that it becomes a Subsidiary of Company, in each case in
connection with such guaranties or security agreements, this Agreement and any
of the other Loan Documents, as such collateral documents may be amended,
restated or replaced from time to time.
1.47 "Guarantor Security Agreements" shall mean those certain security
agreement(s) encumbering the Accounts, inventory, general intangibles,
machinery, equipment and all other tangible and intangible personal property of
Guarantors, now owned or hereafter acquired, executed and delivered at any time
before or after the date hereof, and with respect of any Person which becomes a
Subsidiary of Company after the date hereof, on the effective date that it
becomes a Subsidiary of Company, in each case as the same may be amended,
restated, supplemented or replaced from time to time and subject to Section 14.1
hereof.
1.48 "Guaranty" shall mean, collectively (unless the context indicates
otherwise), those joinder agreements or guaranties delivered by the Subsidiaries
(excluding JPE Canada) at any time before or after the date hereof and by any
Person at the time it becomes a Subsidiary of Company from time to time
subsequent hereto, for the benefit of the Banks and Agent, pursuant to this
Agreement, as amended, restated, supplemented or replaced from time to time.
1.49 "Hazardous Material" shall mean and include any hazardous, toxic or
dangerous waste, substance or material defined as such in (or for purposes of)
the Hazardous Material Laws.
1.50 "Hazardous Material Law(s)" shall mean all laws, codes, ordinances,
rules, regulations, orders, decrees and directives issued by any federal, state,
provincial, local, foreign or other governmental or quasi-governmental authority
or body (or any agency, instrumentality or political subdivision thereof)
pertaining to hazardous material or toxic or dangerous waste, substances or
material on or about any facilities owned, leased or operated by Company or any
of its Subsidiaries, or any portion thereof including, without limitation, those
relating to soil, surface, subsurface ground water conditions and the condition
of the ambient air; and any state and local laws and regulations pertaining to
such material and/or asbestos; any so-called "superfund" or "superlien" law; and
any other federal, state, provincial, foreign or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereafter in effect.
1.51 "Hedging Exposure" shall mean, on any date of determination for any
Hedging Transaction, the amount, as calculated in good faith and in a
commercially reasonable manner by the Bank or other Person that is Company's
counterpart for such Hedging Transaction, which such Bank or Person would pay to
a third party (such amount being expressed as a negative number) or receive from
a third party (such amount being expressed as a positive number) in an
arm's-length transaction as consideration for the third party's entering into a
new transaction with such Bank or Person in which: (a) such Bank or Person holds
the same position in the Hedging Transaction as it currently holds; (b) the
third party holds the same position as Company currently holds; and (c) the new
transaction has economic and other terms and conditions identical in all
respects to such Hedging Transaction except that (i) the date of calculation
shall be deemed to be the date of commencement of the new transaction and (ii)
all period end dates shall correspond to all period end dates, if any, for such
Hedging Transaction.
1.52 "Hedging Transaction" shall mean any interest rate swap transaction,
basis swap transaction, forward rate transaction, commodity swap transaction,
equity transaction, equity index transaction, foreign exchange transaction,
currently swap transaction or any other similar transaction (including any
option with respect to any of such transactions and any combination of any of
the foregoing) entered into by Company from time to time as otherwise permitted
under this Agreement.
1.53 "Hereof", "hereto", "hereunder" and similar terms shall refer to this
Agreement in its entirety and not to any particular paragraph or provision of
this Agreement.
1.54 "Indebtedness" shall mean all indebtedness and liabilities (including
without limitation interest, fees and other charges) arising under this
Agreement or the other Loan Documents, whether direct or indirect, absolute or
contingent, of Company or any Guarantor to the Banks or to the Agent, in any
manner and at any time, whether evidenced by the Notes, arising under the
Guaranty, or any of the other Loan Documents, due or hereafter to become due,
now owing or that may hereafter be incurred by Company or any Guarantor to, or
acquired by, the Banks or by Agent, and any judgments that may hereafter be
rendered on such indebtedness or any part thereof, with interest according to
the rates and terms specified, or as provided by law, and any and all
consolidations, amendments, renewals, replacements, substitutions or extensions
of any of the foregoing; provided, however that for purposes of calculating the
Indebtedness outstanding under the Notes or any of the Loan Documents, the
direct and indirect and absolute and contingent obligations of the Company and
the Guarantors (whether direct or contingent) shall be determined without
duplication.
1.55 "Interest Expense" shall mean as of any date of determination, with
respect to any period, the sum of the amount of interest paid or accrued in
respect of such period by Company and its Consolidated Subsidiaries (excluding
JPE Canada), as determined in accordance with GAAP.
1.56 "Interest Period" shall mean (i) with respect to a Eurocurrency-based
Advance, one (1), two (2), three (3), four (4), five (5), or six (6) months (or
any lesser or greater number of days agreed to in advance by Company, Agent and
the Revolving Credit Banks) as selected by Company pursuant to Section 2.3,
provided, however, that any Eurocurrency-Interest Period which commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month
and (ii) with respect to a Swing Line Advance, shall mean a period of one (1) to
thirty (30) days agreed to in advance by Company and Swing Line Bank as selected
by Company pursuant to Section 4.3. Each Interest Period which would otherwise
end on a day which is not a Business Day shall end on the next succeeding
Business Day or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day, and no Interest
Period which would end after the Revolving Credit Maturity Date shall be
permitted with respect to any Advance.
1.57 "Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated thereunder.
1.58 "Investment" shall mean any loan or advance by Company or any of its
Subsidiaries to, or any other loan, advance or investment by Company or any of
its Subsidiaries in, any Person (including without limitation, any Subsidiary of
Company), without offset, reduction or other adjustment, whether such loan,
advance or investment shall be in the nature of an investment in shares of stock
or other capital or securities, general or limited partnership or joint venture
interests, evidences of indebtedness or otherwise.
1.59 "Issuing Office" shall mean Agent's office located at One Detroit
Center, 500 Woodward Avenue, Detroit, Michigan 48275 or such other office as
Agent shall designate as its Issuing Office.
1.60 "Joinder Agreement" shall mean a joinder agreement in the form
attached to this Agreement as Exhibit "I", to be executed and delivered pursuant
to Section 8.18 of this Agreement by any Subsidiary created or acquired
subsequent to the date hereof.
1.61 "Joint Venture" shall mean any corporation, partnership, association,
joint stock company, business trust or other combined enterprise, of which
Company or one of its Subsidiaries owns not less than twenty percent (20%) nor
more than fifty percent (50%) of the outstanding voting Stock or other share
capital.
1.62 "JPE Canada" shall mean JPE Canada Inc. (f/k/a 1203462 Ontario Inc.),
an Ontario corporation.
1.63 "Letter(s) of Credit" shall mean any standby or documentary letters of
credit issued by Agent at the request of or for the account of an Account Party
or Account Parties pursuant to Article 3 hereof, including without limitation
the Existing Letters of Credit.
1.64 "Letter of Credit Agreement" shall mean, in respect of each Letter of
Credit, the application and related documentation satisfactory to the Agent of
an Account Party or Account Parties requesting Agent to issue such Letter of
Credit, as amended, replaced, supplemented or restated from time to time.
1.65 "Letter of Credit Fees" shall mean the fees payable to Agent for the
accounts of the Banks in connection with Letters of Credit pursuant to Section
3.4 hereof.
1.66 "Letter of Credit Maximum Amount" shall mean as of any date of
determination Fifteen Million Dollars ($15,000,000).
1.67 "Letter of Credit Obligation(s)" shall mean the obligation of an
Account Party or Account Parties under each Letter of Credit Agreement to
reimburse the Agent for each payment made by the Agent under the Letter of
Credit issued pursuant to such Letter of Credit Agreement, together with all
other sums, fees, charges and amounts which may be owing to the Agent under such
Letter of Credit Agreement.
1.68 "Letter of Credit Payment" shall mean any amount paid or required to
be paid by the Agent in its capacity hereunder as issuer of a Letter of Credit
as a result of a draft or other demand for payment under any Letter of Credit.
1.69 "Lien" shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, trust receipt, conditional sale
or title retaining contract, sale and leaseback transaction, financing statement
or comparable notice or other filing or recording, lessor's or lessee's interest
under any lease, subordination or any claim or right, or any other type of lien,
charge, encumbrance, preferential or priority arrangement or other claim or
right, whether based on common law or statute.
1.70 "Loan Documents" shall mean, collectively, this Agreement, the Notes,
the Letter of Credit Agreements, the Letters of Credit, the Collateral
Documents, and any other documents, certificates, instruments or agreements
executed pursuant to or in connection with any such document or this Agreement,
as such documents may be amended, replaced, supplemented or restated from time
to time.
1.71 "Majority Banks" shall mean at any time Banks holding not less than
sixty-one percent (61%) of the sum of the aggregate principal amount of the
Indebtedness then outstanding under the Revolving Credit Notes (or, if no
Indebtedness is then outstanding, Banks holding not less than sixty-one percent
(61%) of the Percentages).
1.72 "Margin" shall mean, as of any date of determination thereof, the
applicable interest rate margin component of the Eurocurrency-based Rate,
determined in accordance with the provisions of Section 5.1 hereof (based on the
ratio of Funded Debt to EBITDA and the Fixed Charge Coverage Ratio) by reference
to the appropriate columns in the pricing matrix attached to this Agreement as
Schedule 1.9.
1.73 "Maximum Funded Debt/EDITDA Ratio" shall have the meaning set forth in
Section 8.4 hereof.
1.74 "Notes" shall mean the Revolving Credit Notes and the Swing Line Note.
1.75 "Pebra Acquisition" shall mean the acquisition by JPE Canada of all or
substantially all of the assets of Pebra Inc., an Ontario corporation.
1.76 "Pension Plan(s)" shall mean all employee pension benefit plans of
Company or its Subsidiaries, as defined in Section 3(2) of ERISA.
1.77 "Percentage" shall mean, with respect to any Bank, its percentage
share, as set forth on Exhibit "G", hereto, of the Revolving Credit and its risk
participation in Letters of Credit as such Exhibit may be revised from time to
time by Agent in accordance with Section 14.9 hereof.
1.78 "Permitted Acquisitions" shall mean any acquisition by the Company or
any Subsidiary of all or substantially all of the assets of another Person, or
of a division or line of business of another Person or fifty one percent (51%)
or more of the shares of Stock or other ownership interests of another Person
which satisfies and/or is conducted in accordance with the following
requirements:
(i) each such acquisition shall, under GAAP, be required to be
consolidated by Company, and not treated by Company or any of its
Subsidiaries as an equity investment;
(ii) on the date of any such acquisition, all necessary
governmental, quasi-governmental, agency, regulatory or similar
approvals of applicable jurisdictions (or the respective agencies,
instrumentalities or political subdivisions, as applicable, of such
jurisdictions) and all necessary non-governmental and other
third-party approvals which, in each case, are material to such
acquisition have been obtained and are in effect, and Company and its
Subsidiaries are in full compliance thereunder, and all necessary
declarations, registrations or other filings with any court,
governmental or regulatory authority, securities exchange or any other
person have been made;
(iii) the acquisition target must be principally engaged in a
Core Business;
(iv) if an acquisition of Stock of an acquisition target, the
acquisition shall have been approved by the Board of Directors or all
of the shareholders whose Stock is being acquired of such acquisition
target not later than the date any Request for Advance is delivered to
Bank in connection with an Advance to be used to pay all or a portion
of the acquisition consideration and as of such date, no claim or
challenge has been asserted or threatened by any shareholder,
director, officer or employee of the acquisition target or by any
other person which would reasonably be expected to have a material
adverse effect on Company and its Consolidated Subsidiary (taken as a
whole);
(v) not less than fifteen (15) calendar days prior to the date of
such acquisition, the Company provides to Agent (A) written notice of
the proposed acquisition and (B) with respect to each acquisition
target having a purchase price of Five Million Dollars ($5,000,000) or
more, the Pro Forma Combined Projected Financial Information;
(vi) both before and after such acquisition, no Default or Event
of Default (whether or not related to such acquisition), has occurred
and is continuing under this Agreement, or any of the other Loan
Documents as evidenced by a certificate of an authorized officer of
Company; and
(vii) on the date of any such acquisition, Company shall have
caused to be furnished, executed and delivered to Agent as security
for all Indebtedness of Company, in form and substance satisfactory to
Agent and the Banks and supported by appropriate resolutions in
certified form authorizing same, (A) the Guarantor Collateral
Documents of the Subsidiary(ies) so acquired and (B) a Stock Pledge by
Company or a Subsidiary, as the case may be, with respect to all of
its stock in the Subsidiary(ies) so acquired; and, if required or
advisable under applicable law to perfect the liens granted thereby,
appropriate financing statements, collateral and other documents
covering such Collateral executed and delivered by the appropriate
parties, including without limitation, original certificates
evidencing any shares of stock pledged to Agent, under the Guarantor
Collateral Documents or Stock Pledge delivered pursuant to this
subparagraph (vii).
1.79 "Permitted Encumbrances" shall mean, with respect to any Person:
(a) the liens and encumbrances granted under or established by
this Agreement or the other Loan Documents;
(b) liens for taxes not yet due and payable or which are being
contested in good faith by appropriate proceedings diligently pursued,
provided that such provision for the payment of all such taxes known
to such Person has been made on the books of such Person as may be
required by GAAP;
(c) mechanics', materialmen's, carriers', warehousemen's and
similar liens and encumbrances arising in the ordinary course of
business and securing obligations of such Person that are not overdue
for a period of more than 60 days or are being contested in good faith
by appropriate proceedings diligently pursued, provided that in the
case of any such contest (i) any levy, execution or other enforcement
of such liens and encumbrances shall have been duly suspended; and
(ii) such provision for the payment of such liens and encumbrances has
been made on the books of such Person as may be required by GAAP;
(d) liens arising in connection with worker's compensation,
unemployment insurance, old age pensions (subject to the applicable
provisions of this Agreement) and social security benefits which are
not overdue or are being contested in good faith by appropriate
proceedings diligently pursued, provided that in the case of any such
contest (i) any levy, execution or other enforcement of such liens
shall have been duly suspended; and (ii) such provision for the
payment of such liens has been made on the books of such Person as may
be required by GAAP;
(e)(i) liens incurred in the ordinary course of business to
secure the performance of statutory obligations arising in connection
with progress payments or advance payments due under contracts with
the United States or any foreign government or any agency thereof
entered into in the ordinary course of business and (ii) liens
incurred or deposits made in the ordinary course of business to secure
the performance of statutory obligations, bids, leases, fee and
expense arrangements with trustees and fiscal agents and other similar
obligations (exclusive of obligations incurred in connection with the
borrowing of money, any lease-purchase arrangements or the payment of
the deferred purchase price of property), provided that full provision
for the payment of all such obligations set forth in clauses (i) and
(ii) has been made on the books of such Person as may be required by
GAAP; and
(f) those liens and encumbrances of the Company or its
Subsidiaries identified in Schedule 1.75, hereto.
1.80 "Permitted Investments" shall mean:
(i) Governmental Obligations;
(ii) Obligations of a state of the United States, the District of
Columbia or any possession of the United States, or any political
subdivision thereof, which are described in Section 103(a) of the
Internal Revenue Code and are graded in any of the highest three (3)
major grades as determined by at least one nationally recognized
rating agency; or secured, as to payments of principal and interest,
by a letter of credit provided by a financial institution or insurance
provided by a bond insurance company which itself or its debt is rated
in the highest three (3) major grades as determined by at least one
Rating Agency;
(iii) Banker's acceptances, commercial accounts, certificates of
deposit, or depository receipts issued by a bank, trust company,
savings and loan association, savings bank or other financial
institution whose deposits are insured by the Federal Deposit
Insurance Corporation and whose reported capital and surplus equal at
least $50,000,000;
(iv) Commercial paper rated at the time of purchase within the
two highest classifications established by not less than two
nationally recognized rating agencies, and which matures within 270
days after the date of issue;
(v) Secured repurchase agreements against obligations itemized in
paragraph (i) above, and executed by a bank or trust company or by
members of the association of primary dealers or other recognized
dealers in United States government securities, the market value of
which must be maintained at levels at least equal to the amounts
advanced; and
(vi) Any fund or other pooling arrangement which exclusively
purchases and holds the investments itemized in (i) through (iv)
above.
1.81 "Permitted Merger(s)" shall mean any merger of any Subsidiary into
Company or of any Subsidiary into any other Subsidiary which, in each case,
satisfies and/or is conducted in accordance with the following requirements:
(a) not less than ten (10) nor more than ninety (90) days prior
to the commencement of such proposed merger, Company provides written
notice thereof to Agent (with drafts of all material documents
pertaining to such proposed merger to be furnished to Agent not less
than ten (10) days prior to such proposed merger);
(b) immediately following and as the direct result of any such
merger, the surviving or successor entity has succeeded by operation
of applicable law (as confirmed by an opinion(s) of counsel in form
and substance reasonably satisfactory to the Majority Banks) to all of
the obligations of the non-surviving entity under this Agreement and
the other Loan Documents, and to all of the property rights of such
non-surviving entity subject to the applicable Loan Documents;
(c) concurrently with such proposed merger, the surviving entity
involved in such merger shall execute or cause to be executed, and
provide or cause to be provided to Agent, for the Banks, such
documents and instruments (including without limitation opinions of
counsel, amendments, acknowledgments and consents) as reasonably
requested by the Majority Banks; and
(d) both immediately before and immediately after such merger, no
Default or Event of Default (whether or not related to such
restructuring), has occurred and is continuing under this Agreement or
any of the other Loan Documents.
1.82 "Permitted Transfer(s)" shall mean any (i) sale, assignment, transfer
or other disposition of inventory in the ordinary course of business or (ii)
prior to the occurrence of an Event of Default, the sale, assignment, transfer
or other disposition of worn-out or obsolete machinery or equipment, (iii) prior
to the occurrence of an Event of Default, the sale, assignment, transfer or
other disposition of other machinery or equipment or real estate which no longer
is used by the Company or a Subsidiary in the operation of its business to the
extent not to exceed $5,000,000 in the aggregate (for Company and its
Subsidiaries) or (iv) any sale, assignment, transfer or other disposition of the
assets of JPE Canada.
1.83 "Person" shall mean an individual, corporation, partnership, trust,
incorporated or unincorporated organization, joint venture, joint stock company,
or a government or any agency or political subdivision thereof or other entity
of any kind.
1.84 "Prime Rate" shall mean the per annum rate of interest announced by
the Agent, at its main office from time to time as its "prime rate" (it being
acknowledged that such announced rate may not necessarily be the lowest rate
charged by the Agent, to any of its customers), which Prime Rate shall change
simultaneously with any change in such announced rate.
1.85 "Prime-based Advance" shall mean an Advance which bears interest at
the Prime-based Rate.
1.86 "Prime-based Rate" shall mean, for any day, that rate of interest
which is equal to the greater of (i) the Prime Rate, or (ii) the Alternate Base
Rate.
1.87 "Prior Agreement" shall mean that certain Amended and Restated JPE
Revolving Credit Agreement dated March 14, 1996, by and among Company, the Banks
and Comerica Bank, as Agent, as amended to date.
1.88 "Pro Forma Combined Projected Financial Information" shall mean, as to
any acquisition or equity offering, pro forma combined projected financial
information for the Company and its Consolidated Subsidiaries and the
acquisition target (if applicable), consisting of projected balance sheets as at
the effective date of the acquisition or the closing date of the equity offering
and as at the end of at least the next succeeding two (2) fiscal years of
Company following the acquisition or the equity offering and projected
statements of income for each of those years, including sufficient detail to
permit calculation of the amounts and the ratio described in Section 8.4, as
projected as of the effective date of the acquisition or closing date of any
equity offering and for those years and accompanied by (i) a statement setting
forth a calculation of the ratio described in Section 8.4, and (ii) a statement
in reasonable detail specifying all material assumptions underlying the
projections.
1.89 "Quoted Rate" shall mean the rate of interest per annum offered by the
Swing Line Bank in its sole discretion with respect to a Swing Line Advance.
1.90 "Quoted Rate Advance" means any Swing Line Advance which bears
interest at the Quoted Rate.
1.91 "Request for Revolving Credit Advance" shall mean a Request for
Revolving Credit Advance issued by Company under Section 2.3 of this Agreement
in the form annexed hereto as Exhibit "A".
1.92 "Request for Swing Line Advance" shall mean a Request for Swing Line
Advance issued by Company under Section 4.3 of this Agreement in the form
attached hereto as Exhibit "D".
1.93 "Revolving Credit" shall mean the revolving credit loan to be advanced
to the Company by the Revolving Credit Banks pursuant to Article 2 hereof, in an
aggregate amount (subject to the terms hereof), not to exceed, at any one time
outstanding, the Revolving Credit Aggregate Commitment.
1.94 "Revolving Credit Advance" shall mean a borrowing requested by Company
and made by Revolving Credit Banks under Section 2.1 of this Agreement,
including without limitation any readvance, refunding or conversion of such
borrowing pursuant to Section 2.3 hereof and any advance in respect of a Letter
of Credit under Section 3.6 hereof, and shall include, as applicable, a
Eurocurrency-based Advance and/or Prime-based Advance.
1.95 "Revolving Credit Aggregate Commitment" shall mean One Hundred Ten
Million Dollars ($110,000,000), subject to reduction or termination under
Section 2.8 or 10.2 hereof.
1.96 "Revolving Credit Banks" shall mean Comerica Bank, Bank One, Dayton,
NA, Harris Trust and Savings Bank, NBD Bank and National Bank of Canada and such
other financial institutions from time to time parties hereto as lenders of the
Revolving Credit.
1.97 "Revolving Credit Maturity Date" shall mean the earlier to occur of
(i) October 27, 1998, and (ii) the date on which the Revolving Credit Aggregate
Commitment shall be terminated pursuant to Section 2.8 or Section 10.2 hereof.
1.98 "Revolving Credit Notes" shall mean the revolving credit notes
described in Section 2.1 hereof dated March 14, 1996, made by Company to each of
the Revolving Credit Banks in the form annexed to this agreement as Exhibit "B",
as such notes may be amended or supplemented from time to time, and any other
notes issued in substitution, replacement or renewal thereof from time to time.
1.99 "Stock" shall mean all shares, options, warrants, interests,
participations or other equivalents (regardless of how designated) of or in a
corporation or equivalent entity, whether voting or nonvoting, including,
without limitation, common stock, preferred stock, or any other "equity stock"
(as such term is defined in rule 3a11-1 of the General Rules and Regulations
promulgated by the Securities and Exchange Commission under the Securities Act
of 1934, as amended).
1.100 "Stock Pledges" shall mean any of the Collateral Documents pursuant
to which Agent is granted a Lien for the benefit of the Banks in Stock of a
Subsidiary.
1.101 "Subordinated Debt" shall mean Debt of Company and/or its
Subsidiaries permitted under Section 9.5(e) hereof, which (i) is subordinated in
right of payment and distribution upon liquidation to the Indebtedness on terms
and conditions acceptable to the Majority Banks; (ii) has a final maturity
extending beyond the Revolving Credit Maturity Date; (iii) does not require any
payment of principal thereunder prior to the Revolving Credit Maturity Date;
(iv) has no financial covenants more restrictive than those set forth in
Sections 8.4 and 8.5 hereof or any other financial covenants in effect under
this Agreement at the time such Debt is issued (except as otherwise agreed to by
Majority Banks in their sole discretion); and (v) has other subordination
provisions otherwise satisfactory to Majority Banks.
1.102 "Subsidiary(ies)" shall mean any corporation, association, joint
stock company, or business trust of which fifty one percent (51%) or more of the
outstanding voting Stock or share capital is owned either directly or indirectly
by any Person or one or more of its Subsidiaries or by any Person and one or
more of its Subsidiaries, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by any
Person and/or its Subsidiaries. Unless otherwise specified to the contrary
herein, Subsidiary(ies) shall refer to the Company's Subsidiary(ies).
1.103 "Swing Line Bank" shall mean Comerica Bank, in its capacity as lender
under Article 4 of this Agreement, and its successors and assigns.
1.104 "Swing Line Note" shall mean the swing line note described in Section
4.1 hereof, dated March 14, 1996, made by Company to Swing Line Bank in the form
annexed hereto as Exhibit "E", as such Note may be amended or supplemented from
time to time, and any notes issued in substitution, replacement or renewal
thereof from time to time.
1.105 "Swing Line Advance" shall mean an Advance made by Swing Line Bank to
Company pursuant to Section 4.1 hereof.
1.106 "UCC" shall mean the Uniform Commercial Code, as in effect from time
to time in the State of Michigan.
2. REVOLVING CREDIT.
2.1 REVOLVING CREDIT COMMITMENT. Subject to the terms and conditions of
this Agreement, each Revolving Credit Bank severally and for itself alone agrees
to make Advances of the Revolving Credit to Company from time to time on any
Business Day during the period from the effective date hereof until (but
excluding) the Revolving Credit Maturity Date in an aggregate amount not to
exceed at any one time outstanding each such Revolving Credit Bank's Percentage
of the Revolving Credit Aggregate Commitment. All of such Advances hereunder
shall be evidenced by the Revolving Credit Notes, under which advances,
repayments and readvances may be made, subject to the terms and conditions of
this Agreement.
2.2 ACCRUAL OF INTEREST AND MATURITY. (a) The Revolving Credit Notes, and
all principal and interest outstanding thereunder, shall mature and become due
and payable in full on the Revolving Credit Maturity Date, and each Advance
evidenced by the Revolving Credit Notes from time to time outstanding hereunder
shall, from and after the date of such Advance, bear interest at its Applicable
Interest Rate. The amount and date of each Revolving Credit Advance, its
Applicable Interest Rate, its Interest Period (if any), and the amount and date
of any repayment shall be noted on Agent's records, which records will be
conclusive evidence thereof, absent manifest error; provided, however, that any
failure by the Agent to record any such information shall not relieve Company of
its obligation to repay the outstanding principal amount of such Advance, all
interest accrued thereon and any amount payable with respect thereto in
accordance with the terms of this Agreement and the other Loan Documents.
2.3 REQUESTS FOR ADVANCES AND REQUESTS FOR REFUNDINGS AND CONVERSIONS OF
REVOLVING CREDIT ADVANCES. Company may request a Revolving Credit Advance,
refund any Revolving Credit Advance in the same type of Revolving Credit Advance
or convert any Revolving Credit Advance to any other type of Revolving Credit
Advance only after delivery to Agent of a Request for Revolving Credit Advance
executed by an authorized officer of Company, subject to the following and to
the remaining provisions hereof:
(a) each such Request for Revolving Credit Advance shall set
forth the information required on the Request for Revolving Credit
Advance form annexed hereto as Exhibit "A", including without
limitation:
(i) the proposed date of Revolving Credit Advance, which must be
a Business Day;
(ii) whether the Revolving Credit Advance is a refunding or
conversion of an outstanding Revolving Credit Advance; and
(iii) whether such Revolving Credit Advance is to be a
Prime-based Advance, a Eurocurrency-based Advance, and,
except in the case of a Prime-based Advance, the first
Interest Period applicable thereto;
(b) each such Request for Revolving Credit Advance shall be
delivered to Agent by 3:00 p.m. (Detroit time) three (3) Business Days
prior to the proposed date of Revolving Credit Advance, except in the
case of a Prime-based Advance, for which the Request for Revolving
Credit Advance must be delivered by noon (Detroit time) on such
proposed date;
(c) the principal amount of such requested Revolving Credit
Advance, plus the principal amount of all other Advances then
outstanding hereunder, plus the aggregate undrawn portion of any
Letters of Credit which shall be outstanding as of the date of the
requested Revolving Credit Advance and the aggregate face amount of
Letters of Credit requested but not yet issued, plus the aggregate
amount of all outstanding Letter of Credit Obligations, less the
principal amount of any outstanding Swing Line Advance to be refunded
by the requested Revolving Credit Advance shall not exceed the then
applicable Revolving Credit Aggregate Commitment;
(d) the principal amount of such Revolving Credit Advance, plus
the amount of any other outstanding Indebtedness under this Agreement
to be then combined therewith having the same Applicable Interest Rate
and Interest Period, if any, shall be at least Three Million Dollars
($3,000,000) or a larger integral multiple of One Million Dollars
($1,000,000) and at any one time there shall not be in effect more
than fifteen (15) Interest Periods;
(e) each Request for Revolving Credit Advance, once delivered to
Agent, shall not be revocable by Company, and shall constitute and
include a certification by the Company as of the date thereof that:
(i) both before and after the Revolving Credit Advance, the
obligations of the Company and the Guarantors set forth in
this Agreement and the Loan Documents, as applicable, are
valid, binding and enforceable obligations of such parties;
(ii) to the best knowledge of Company all conditions to Advances
of the Revolving Credit (including, without limitation,
Section 6.9 hereof) have been satisfied;
(iii) both before and after the Advance, there is no Default or
Event of Default in existence; and
(iv) both before and after the Advance, the representations and
warranties contained in this Agreement and the Loan
Documents are true and correct in all material respects.
2.4 DISBURSEMENT OF REVOLVING CREDIT ADVANCES.
(a) Upon receiving any Request for Revolving Credit Advance from
Company under Section 2.3 hereof, Agent shall promptly notify each
Revolving Credit Bank by wire, telecopy, telex or by telephone
(confirmed by wire, telecopy or telex) of the amount of such Revolving
Credit Advance to be made and the date such Advance is to be made by
said Revolving Credit Bank pursuant to its Percentage of the Revolving
Credit Advance. Unless such Revolving Credit Bank's commitment to make
Revolving Credit Advances hereunder shall have been suspended or
terminated in accordance with this Agreement, each Revolving Credit
Bank shall send the amount of its Percentage of the Advance in same
day funds in Dollars to Agent at the office of Agent located at One
Detroit Center, Detroit, Michigan 48226 not later than 2:00 p.m.
(Detroit time) on the date of such Advance.
(b) Subject to submission of an executed Request for Revolving
Credit Advance by Company without exceptions noted in the compliance
certification therein and to the other terms and conditions hereof,
Agent shall make available to Company the aggregate of the amounts so
received by it from the Revolving Credit Banks under this Section 2.4,
in like funds, not later than 4:00 p.m. (Detroit time) on the date of
such Revolving Credit Advance by credit to an account of Company
maintained with Agent or to such other account or third party as
Company may reasonably direct.
(c) Unless Agent shall have been notified by any Revolving Credit
Bank prior to the date of any proposed Revolving Credit Advance that
such Revolving Credit Bank does not intend to make available to Agent
such Revolving Credit Bank's Percentage of such Revolving Credit
Advance, Agent may assume that such Revolving Credit Bank has made
such amount available to Agent on such date, as aforesaid and may, in
its sole discretion and without obligation to do so, in reliance upon
such assumption, make available to Company a corresponding amount. If
such amount is not in fact made available to Agent by such Revolving
Credit Bank in accordance with Section 2.4(a), as aforesaid, Agent
shall be entitled to recover such amount on demand from such Revolving
Credit Bank. If such Revolving Credit Bank does not pay such amount
forthwith upon Agent's demand therefor, the Agent shall promptly
notify Company, and Company shall pay such amount to Agent. Agent
shall also be entitled to recover from such Revolving Credit Bank or
from Company, as the case may be, interest on such amount in respect
of each day from the date such amount was made available by Agent to
Company to the date such amount is recovered by Agent, at a rate per
annum equal to:
(i) in the case of such Revolving Credit Bank, the Federal Funds
Effective Rate; or
(ii) in the case of Company, the rate of interest then applicable
to the Revolving Credit Advance.
The obligation of any Revolving Credit Bank to make any Revolving
Credit Advance hereunder shall not be affected by the failure of any
other Revolving Credit Bank to make any Revolving Credit Advance
hereunder, and no Bank shall have any liability to the Company, the
Agent, any other Bank, or any other party for another Bank's failure
to make any loan or Revolving Credit Advance hereunder.
2.5 PRIME-BASED ADVANCE IN ABSENCE OF ELECTION OR UPON DEFAULT. If, as to
any outstanding Eurocurrency-based Advance, Agent has not received payment on
the last day of the Interest Period applicable thereto, or does not receive a
timely Request for Revolving Credit Advance meeting the requirements of Section
2.3 hereof with respect to the refunding or conversion of such Advance, or,
subject to Section 5.6 hereof, if on such day a Default or Event of Default
shall have occurred and be continuing, the principal amount thereof which is not
then prepaid shall be converted automatically to a Prime-based Advance and the
Agent shall thereafter promptly notify Company and the Banks of said action.
2.6 FACILITY FEE. From the date hereof to the Revolving Credit Maturity
Date, the Company shall pay to the Agent, for distribution to the Revolving
Credit Banks pro rata, a Facility Fee equal to two hundred twenty five
thousandths percent (.225%) per annum times the Revolving Credit Aggregate
Commitment. The Facility Fee shall be payable quarterly in arrears commencing
April 1, 1996, and on the first day of each calendar quarter thereafter and at
the Revolving Credit Maturity Date, and shall be computed on the basis of a year
of three hundred sixty (360) days and assessed for the actual numbers of days
elapsed. Whenever any payment of the Facility Fee shall be due on a day which is
not a Business Day, the date for payment thereof shall be extended to the next
Business Day. Upon receipt of such payment, Agent shall make prompt payment to
each Bank of its share of the Facility Fee based upon its respective Percentage.
The Facility Fee shall not be refundable under any circumstances.
2.7 REDUCTION OF INDEBTEDNESS; REVOLVING CREDIT AGGREGATE COMMITMENT. If at
any time and for any reason the aggregate principal amount of Advances hereunder
to Company, plus the aggregate undrawn amount of any Letters of Credit which
shall be outstanding at such time, shall exceed the then applicable Revolving
Credit Aggregate Commitment, Company shall immediately reduce any pending
request for an Advance on such day by the amount of such excess and, to the
extent any excess remains thereafter, immediately repay an amount of the
Indebtedness equal to such excess and, to the extent such Indebtedness consists
of Letter of Credit obligations, provide cash collateral on the basis set forth
in Section 10.2 hereof. Company acknowledges that, in connection with any
repayment required hereunder, it shall also be responsible for the reimbursement
of any prepayment or other costs required under Section 12.1 hereof; provided,
however, that Company shall, in order to reduce any such prepayment costs and
expenses, first prepay such portion of the Indebtedness then carried as a
Prime-based Advance, if any.
2.8 OPTIONAL REDUCTION OR TERMINATION OF REVOLVING CREDIT AGGREGATE
COMMITMENT. The Company may, upon at least five (5) Business Days' prior written
notice to Agent, permanently reduce the Revolving Credit Aggregate Commitment in
whole at any time, or in part from time to time, without premium or penalty,
provided that: (i) each partial reduction of the Revolving Credit Aggregate
Commitment shall be in an aggregate amount equal to at least Ten Million Dollars
($10,000,000) or a larger integral multiple of One Million Dollars ($1,000,000);
(ii) each reduction shall be accompanied by the payment of the Facility Fee, if
any, accrued to the date of such reduction; (iii) the Company shall prepay in
accordance with the terms hereof the amount, if any, by which the aggregate
unpaid principal amount of Swing Line Advances and Revolving Credit Advances,
plus the aggregate amount of outstanding Letters of Credit, exceeds the amount
of the Revolving Credit Aggregate Commitment, taking into account the aforesaid
reductions thereof, together with accrued but unpaid interest on the principal
amount of such prepaid Advances to the date of prepayment; (iv) if the
termination or reduction of the Revolving Credit Aggregate Commitment requires
the prepayment of a Eurocurrency-based Advance or Quoted Rate Advance, the
termination or reduction may be made only on the last Business Day of the then
current Interest Period applicable to such Advance and (v) no reduction shall
reduce the amount of the Revolving Credit Aggregate Commitment to an amount
which is less than the sum of the aggregate undrawn amount of any Letters of
Credit outstanding at such time. Reductions of the Revolving Credit Aggregate
Commitment and any accompanying prepayments of the Revolving Credit Notes shall
be distributed by Agent to each Revolving Credit Bank in accordance with such
Bank's Percentage thereof, and will not be available for reinstatement by or
readvance to the Company and any accompanying prepayments of the Swing Line
Notes shall be distributed by Agent to the Swing Line Bank and will not be
available for reinstatement by or readvance to the Company. Any reductions of
the Revolving Credit Aggregate Commitment hereunder shall reduce each Revolving
Credit Bank's portion thereof proportionately (based upon the applicable
Percentages), and shall be permanent and irrevocable. Any payments made pursuant
to this Section shall be applied first to outstanding Prime-based Advances under
the Revolving Credit, next to the Prime-based Advances under the Swing Line
Credit, next to Quoted Rate Advances and then to Eurocurrency-based Advances.
2.9 REVOLVING CREDIT AS RENEWAL; APPLICATION OF ADVANCES THEREAFTER. The
Revolving Credit Notes issued by the Company shall constitute renewal and
replacement evidence of all present indebtedness of Company to the Banks and the
Agent outstanding as of the date hereof under the Prior Agreement, and the notes
issued pursuant thereto. Thereafter, Advances shall be available, subject to the
terms hereof, to fund working capital needs or other general corporate purposes
of the Company.
3. LETTERS OF CREDIT.
3.1 LETTERS OF CREDIT. Subject to the terms and conditions of this
Agreement, Agent may through its Issuing Office, at any time and from time to
time from and after the date hereof until thirty (30) days prior to the
Revolving Credit Maturity Date, upon the written request of an Account Party
accompanied by a duly executed Letter of Credit Agreement and such other
documentation related to the requested Letter of Credit as the Agent may
reasonably require, issue standby or documentary Letters of Credit for the
account of such Account Party, in an aggregate amount for all Letters of Credit
issued hereunder at any one time outstanding not to exceed the Letter of Credit
Maximum Amount. Each Letter of Credit shall be in a minimum face amount of One
Hundred Thousand Dollars ($100,000) and shall have an expiration date not later
than one (1) year from its date of issuance; provided that each Letter of Credit
(including any renewal thereof) shall expire not later than ten (10) Business
Days prior to the Revolving Credit Maturity Date in effect on the date of
issuance thereof. The submission of all applications and the issuance of each
Letter of Credit hereunder shall be subject in all respects to applicable
provisions of U.S. law and regulations, including without limitation, the
Trading With the Enemy Act, Export Administration Act, International Emergency
Economic Powers Act, and the Regulations of the Office of Foreign Assets Control
of the U.S. Department of the Treasury.
3.2 CONDITIONS TO ISSUANCE. No Letter of Credit shall be issued at the
request and for the account of any Account Party unless, as of the date of
issuance of such Letter of Credit:
(a) the face amount of the Letter of Credit requested, plus the
undrawn portion of all other outstanding Letters of Credit plus
the aggregate principal amount of all outstanding Letter of
Credit Obligations, does not exceed the Letter of Credit Maximum
Amount;
(b) the face amount of the Letter of Credit requested, plus the
aggregate principal amount of all Advances outstanding under the
Notes, plus the aggregate undrawn portion of all other
outstanding Letters of Credit, plus the aggregate principal
amount of all outstanding Letter of Credit Obligations do not
exceed the then applicable Revolving Credit Aggregate Commitment;
(c) the obligations of Company set forth in this Agreement and the
Loan Documents are valid, binding and enforceable obligations of
Company and the valid, binding and enforceable nature of this
Agreement and the Loan Documents has not been disputed by
Company;
(d) both immediately before and immediately after issuance of the
Letter of Credit requested, no Default or Event of Default
exists;
(e) the representations and warranties contained in this Agreement
and the Loan Documents are true in all material respects as if
made on such date;
(f) the execution of the Letter of Credit Agreement with respect to
the Letter of Credit requested will not violate the terms and
conditions of any material contract, agreement or other borrowing
of Company;
(g) the Account Party requesting the Letter of Credit shall have
delivered to Agent at its Issuing Office, not less than five (5)
Business Days prior to the requested date for issuance (or such
shorter time as the Agent, in its sole discretion, may permit),
the Letter of Credit Agreement related thereto, together with
such other documents and materials as may be reasonably required
pursuant to the terms thereof, and the terms of the proposed
Letter of Credit shall be satisfactory to Agent and its Issuing
Office in the exercise of its reasonable discretion;
(h) no order, judgment or decree of any court, arbitrator or
governmental authority shall purport by its terms to enjoin or
restrain Agent from issuing the Letter of Credit, or any Bank
from taking a participation therein pursuant to Section 3.6
hereof, and no law, rule, regulation, request or directive
(whether or not having the force of law) shall prohibit or
request that Agent refrain from issuing, or any Bank refrain from
taking a participation in, the Letter of Credit requested or
letters of credit generally;
(i) there shall have been no introduction of or change in the
interpretation of any law or regulation that would make it
unlawful or unduly burdensome for the Agent to issue the
requested Letter of Credit, no general suspension on trading on
the New York Stock Exchange or any other national securities
exchange, no declaration of a general banking moratorium by
banking authorities in the United States, Michigan or the
respective jurisdictions in which the Banks, the Account Party
and the beneficiary of the requested Letter of Credit are
located, and no establishment of any new restrictions on
transactions involving letters of credit or on banks materially
affecting the extension of credit by banks; and
(j) Agent shall have received the issuance fee required in connection
with the issuance of such Letter of Credit pursuant to Section
3.5 hereof.
Each Letter of Credit Agreement submitted to Agent pursuant hereto shall
constitute the certification by the Company and the Account Party of the matters
set forth in this Section 3.2 (a) through (f). The Agent shall be entitled to
rely on such certification without any duty of inquiry.
3.3 NOTICE. Agent shall give notice, substantially in the form attached as
Exhibit "C", to each Revolving Credit Bank of the issuance of each Letter of
Credit, not later than three (3) Business Days after issuance of each Letter of
Credit, specifying the amount thereof and the amount of such Bank's Percentage
thereof.
3.4 LETTER OF CREDIT FEES. Company shall pay to the Agent for distribution
to the Revolving Credit Banks in accordance with the Percentages, Letter of
Credit Fees as follows:
(a) a per annum Letter of Credit Fee with respect to the undrawn amount of
each Letter of Credit issued pursuant hereto in the amount of the Applicable Fee
Percentage (determined with reference to Schedule 1.9 of this Agreement),
exclusive of the issuance fee of one-eighth of one percentage point (1/8%) per
annum on the face amount thereof to be paid to Agent under Section 3.5 hereof.
(b) If any change in any law or regulation or in the interpretation thereof
by any court or administrative or governmental authority charged with the
administration thereof shall either (i) impose, modify or cause to be deemed
applicable any reserve, special deposit, limitation or similar requirement
against letters of credit issued by, or assets held by, or deposits in or for
the account of, Agent or the Banks or (ii) impose on Agent or the Banks any
other condition regarding this Agreement or the Letters of Credit, and the
result of any event referred to in clause (i) or (ii) above shall be to increase
in an amount deemed material by Agent or the Banks the cost or expense to Agent
or the Banks of issuing or maintaining or participating in any of the Letters of
Credit (which increase in cost or expense shall be determined by the Agent's or
such Bank's reasonable allocation of the aggregate of such cost increases and
expense resulting from such events), then, upon demand by the Agent or such
Bank, as the case may be, the Company shall, within ten days following demand
for payment, pay to Agent or such Revolving Credit Bank, as the case may be,
from time to time as specified by the Agent or such Bank, additional amounts
which shall be sufficient to compensate the Agent or such Revolving Credit Bank
for such increased cost and expense, together with interest on each such amount
from ten days after the date demanded until payment in full thereof at the
Prime-based Rate. A certificate as to such increased cost or expense incurred by
the Agent or such Revolving Credit Bank, as the case may be, as a result of any
event mentioned in clause (i) or (ii) above, shall be promptly submitted to the
Company and shall be conclusive, absent manifest error, as to the amount
thereof.
(c) All payments by the Company to the Agent or the Revolving Credit Banks
under this Section 3.4 shall be made in Dollars and in immediately available
funds at the Agent's Issuing Office or such other office of the Agent as may be
designated from time to time by written notice to the Company by the Agent. The
aforesaid fees shall be nonrefundable under all circumstances, shall be payable
annually in advance (or such lesser period, if applicable, for Letters of Credit
issued with stated expiration dates of less than one year) upon the issuance of
each such Letter of Credit, and shall be calculated on the basis of a 360 day
year and assessed for the actual number of days from the date of the issuance
thereof to the stated expiration thereof.
3.5 ISSUANCE FEES. In connection with the Letters of Credit, and in
addition to the Letter of Credit Fees, the Company and the applicable Account
Party shall pay, for the sole account of the Agent, (a) a letter of credit
issuance fee of one eighth percentage point (1/8%) to be retained by Agent for
its own account and (b) standard documentation, administration, payment and
cancellation charges assessed by Agent or its Issuing Office, at the times, in
the amounts and on the terms set forth or to be set forth from time to time in
the standard fee schedule of Agent's Issuing office in effect from time to time.
3.6 DRAWS AND DEMANDS FOR PAYMENT UNDER LETTERS OF CREDIT.
(a) The Company and each applicable Account Party agrees to pay to the
Agent, on the day on which the Agent shall honor a draft or other demand for
payment presented or made under any Letter of Credit, an amount equal to the
amount paid by the Agent in respect of such draft or other demand under such
Letter of Credit and all expenses paid or incurred by the Agent relative
thereto. Unless the Company or the applicable Account Party shall have made such
payment to the Agent on such day, upon each such payment by the Agent, the Agent
shall be deemed to have disbursed to the Company or the applicable Account
Party, and the Company or the applicable Account Party shall be deemed to have
elected to substitute for its reimbursement obligation, a Prime-based Advance
from the Banks in an amount equal to the amount so paid by the Agent in respect
of such draft or other demand under such Letter of Credit. Such Prime-based
Advance shall be disbursed notwithstanding any failure to satisfy any conditions
for disbursement of any Advance set forth in Article 2 hereof and, to the extent
of the Prime-based Advance so disbursed, the reimbursement obligation of the
Company or the applicable Account Party under this Section 3.6 shall be deemed
satisfied.
(b) If the Agent shall honor a draft or other demand for payment presented
or made under any Letter of Credit, the Agent shall provide notice thereof to
the Company and the applicable Account Party on the date such draft or demand is
honored, and to each Revolving Credit Bank on such date unless the Company or
applicable Account Party shall have satisfied its reimbursement obligation under
Section 3.6(a) by payment to the Agent on such date. The Agent shall further use
reasonable efforts to provide notice to the Company or applicable Account Party
prior to honoring any such draft or other demand for payment, but such notice,
or the failure to provide such notice, shall not affect the rights or
obligations of the Agent with respect to any Letter of Credit or the rights and
obligations of the parties hereto, including without limitation the obligations
of the Company or applicable Account Party under Section 3.6(a) hereof.
(c) Upon issuance by the Agent of each Letter of Credit hereunder, each
Revolving Credit Bank shall automatically acquire a pro rata risk participation
interest in such Letter of Credit and related Letter of Credit Payment based on
its respective Percentage. Each Revolving Credit Bank, on the date a draft or
demand under any Letter of Credit is honored, shall make its Percentage share of
the amount paid by the Agent, and not reimbursed by the Company or applicable
Account Party on such day, available in immediately available funds at the
principal office of the Agent for the account of the Agent. If and to the extent
such Bank shall not have made such pro rata portion available to the Agent, such
Bank, the Company and the applicable Account Party severally agree to pay to the
Agent forthwith on demand such amount together with interest thereon, for each
day from the date such amount was paid by the Agent until such amount is so made
available to the Agent at a per annum rate equal to the interest rate applicable
during such period to the related Advance disbursed under Section 3.6(a) in
respect of the reimbursement obligation of the Company and the applicable
Account Party. If such Bank shall pay such amount to the Agent together with
such interest, such amount so paid shall constitute a Prime-based Advance by
such Bank disbursed in respect of the reimbursement obligation of the Company or
applicable Account Party under Section 3.6(a) for purposes of this Agreement,
effective as of the date such amount was paid by the Agent. The failure of any
Revolving Credit Bank to make its pro rata portion of any such amount paid by
the Agent available to the Agent shall not relieve any other Revolving Credit
Bank of its obligation to make available its pro rata portion of such amount,
but no Bank shall be responsible for failure of any other Bank to make such pro
rata portion available to the Agent.
(d) Nothing in this Agreement shall be construed to require or authorize
any Bank to issue any Letter of Credit, it being recognized that the Agent shall
be the sole issuer of Letters of Credit under this Agreement.
3.7 OBLIGATIONS IRREVOCABLE. The obligations of Company and any Account
Party to make payments to Agent or the Revolving Credit Banks with respect to
Letter of Credit Obligations under Section 3.6 hereof, shall be unconditional
and irrevocable and not subject to any qualification or exception whatsoever,
including, without limitation:
(a) Any lack of validity or enforceability of any Letter of Credit or any
documentation relating to any Letter of Credit or to any transaction related in
any way to such Letter of Credit (the "Letter of Credit Documents");
(b) Any amendment, modification, waiver, consent, or any substitution,
exchange or release of or failure to perfect any interest in collateral or
security, with respect to any of the Letter of Credit Documents;
(c) The existence of any claim, setoff, defense or other right which the
Company or any Account Party may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), the Agent or any Bank or any
other person or entity, whether in connection with any of the Letter of Credit
Documents, the transactions contemplated herein or therein or any unrelated
transactions;
(d) Any draft or other statement or document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(e) Payment by the Agent to the beneficiary under any Letter of Credit
against presentation of documents which do not comply with the terms of the
Letter of Credit, including failure of any documents to bear any reference or
adequate reference to such Letter of Credit;
(f) Any failure, omission, delay or lack on the part of the Agent or any
Bank or any party to any of the Letter of Credit Documents to enforce, assert or
exercise any right, power or remedy conferred upon the Agent, any Bank or any
such party under this Agreement, any of the Loan Documents or any of the Letter
of Credit Documents, or any other acts or omissions on the part of the Agent,
any Bank or any such party; or
(g) Any other event or circumstance that would, in the absence of this
Section 3.7, result in the release or discharge by operation of law or otherwise
of Company or any Account Party from the performance or observance of any
obligation, covenant or agreement contained in Section 3.6.
No setoff, counterclaim, reduction or diminution of any obligation or any
defense of any kind or nature which Company or any Account Party has or may have
against the beneficiary of any Letter of Credit shall be available hereunder to
Company or any Account Party against the Agent or any Bank. Nothing contained in
this Section 3.7 shall be deemed to prevent Company or the Account Parties,
after satisfaction in full of the absolute and unconditional obligations of
Company and the Account Parties hereunder, from asserting in a separate action
any claim, defense, set off or other right which they (or any of them) may have
against Agent or any Bank.
3.8 RISK UNDER LETTERS OF CREDIT. (a) In the issuance and the handling of
Letters of Credit and any security therefor, or any documents or instruments
given in connection therewith, Agent shall have the sole right to take or
refrain from taking any and all actions under or upon the Letters of Credit.
(b) Subject to other terms and conditions of this Agreement, Agent shall
issue the Letters of Credit and shall hold the documents related thereto in its
own name and shall make all collections thereunder and otherwise administer the
Letters of Credit in accordance with Agent's regularly established practices and
procedures and, except pursuant to Section 13.3 hereof, Agent will have no
further obligation with respect thereto. In the administration of Letters of
Credit, Agent shall not be liable for any action taken or omitted on the advice
of counsel, accountants, appraisers or other experts selected by Agent with due
care and Agent may rely upon any notice, communication, certificate or other
statement from Company, any Account Party, beneficiaries of Letters of Credit,
or any other Person which Agent believes to be authentic. Agent will, upon
request, furnish the Banks with copies of Letter of Credit Agreements, Letters
of Credit and documents related thereto.
(c) In connection with the issuance and administration of Letters of Credit
and the assignments hereunder, Agent makes no representation and shall, subject
to Section 3.7 hereof, have no responsibility with respect to (i) the
obligations of Company or any Account Party or, the validity, sufficiency or
enforceability of any document or instrument given in connection therewith, (ii)
the financial condition of, any representations made by, or any act or omission
of Company, the applicable Account Party or any other Person, or (iii) any
failure or delay in exercising any rights or powers possessed by Agent in its
capacity as issuer of Letters of Credit in the absence of its gross negligence
or willful misconduct. Each of the Banks expressly acknowledge that they have
made and will continue to make their own evaluations of Company's and the
Account Parties' creditworthiness without reliance on any representation of
Agent or Agent's officers, agents and employees.
(d) If at any time Agent shall recover any part of any unreimbursed amount
for any draw or other demand for payment under a Letter of Credit, or any
interest thereon, Agent shall receive same for the pro rata benefit of the Banks
in accordance with their respective Percentage interests therein and shall
promptly deliver to each Revolving Credit Bank its share thereof, less such
Bank's pro rata share of the costs of such recovery, including court costs and
attorney's fees. If at any time any Revolving Credit Bank shall receive from any
source whatsoever any payment on any such unreimbursed amount or interest
thereon in excess of such Bank's Percentage share of such payment, such Bank
will promptly pay over such excess to Agent, for redistribution in accordance
with this Agreement.
3.9 INDEMNIFICATION. (a) The Company and each Account Party hereby
indemnifies and agrees to hold harmless the Banks and the Agent, and their
respective officers, directors, employees and agents, from and against any and
all claims, damages, losses, liabilities, costs or expenses of any kind or
nature whatsoever which the Banks or the Agent or any such person may incur or
which may be claimed against any of them by reason of or in connection with any
Letter of Credit, and neither any Bank nor the Agent or any of their respective
officers, directors, employees or agents shall be liable or responsible for: (i)
the use which may be made of any Letter of Credit or for any acts or omissions
of any beneficiary in connection therewith; (ii) the validity, sufficiency or
genuineness of documents or of any endorsement thereon, even if such documents
should in fact prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (iii) payment by the Agent to the beneficiary under any
Letter of Credit against presentation of documents which do not comply with the
terms of any Letter of Credit (unless such payment resulted from the gross
negligence or willful misconduct of the Agent), including failure of any
documents to bear any reference or adequate reference to such Letter of Credit;
(iv) any error, omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in connection with any
Letter of Credit; or (v) any other event or circumstance whatsoever arising in
connection with any Letter of Credit (unless such event or circumstance arose as
a result of the gross negligence or willful misconduct of the Agent); provided,
however, that Company and Account Parties shall not be required to indemnify the
Banks and the Agent and such other persons, and the Banks and Agent shall be
liable to the Company and the Account Parties to the extent, but only to the
extent, of any direct, as opposed to consequential or incidental, damages
suffered by Company and/or the Account Parties which were caused by the Agent's
gross negligence, willful misconduct or wrongful dishonor of any Letter of
Credit after the presentation to it by the beneficiary thereunder of a draft or
other demand for payment and other documentation strictly complying with the
terms and conditions of such Letter of Credit.
(b) It is understood that in making any payment under a Letter of Credit
the Agent will rely on documents presented to it under such Letter of Credit as
to any and all matters set forth therein without further investigation and
regardless of any notice or information to the contrary. It is further
acknowledged and agreed that Company or an Account Party may have rights against
the beneficiary or others in connection with any Letter of Credit with respect
to which the Banks are alleged to be liable and it shall be a condition of the
assertion of any liability of the Banks under this Section that Company or
applicable Account Party shall contemporaneously pursue all remedies in respect
of the alleged loss against such beneficiary and any other parties obligated or
liable in connection with such Letter of Credit and any related transactions.
3.10 RIGHT OF REIMBURSEMENT. Each Revolving Credit Bank agrees to reimburse
the Agent on demand, pro rata in accordance with their Percentages, for (i) the
out-of-pocket costs and expenses of the Agent to be reimbursed by Company or any
Account Party pursuant to any Letter of Credit Agreement or any Letter of
Credit, to the extent not reimbursed by Company or Account Party and (ii) any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, fees, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against Agent (in
its capacity as issuer of any Letter of Credit) in any way relating to or
arising out of this Agreement, any Letter of Credit, any documentation or any
transaction relating thereto, or any Letter of Credit Agreement, except to the
extent that such liabilities, losses, costs or expenses were incurred by Agent
solely as a result of Agent's gross negligence or willful misconduct or wrongful
dishonor of any Letter of Credit after the presentation to it by the beneficiary
thereunder of a draft or other demand for payment and other documentation
strictly complying with the terms and conditions of such Letter of Credit.
3.11 EXISTING LETTERS OF CREDIT. Each Existing Letter of Credit shall be
deemed for all purposes of this Agreement to be a Letter of Credit and each
application submitted in connection with each Existing Letter of Credit shall be
deemed for all purposes of this Agreement to be a Letter of Credit Application.
On the date of execution of this Agreement, the Agent shall be deemed
automatically to have sold and transferred, and each other Bank shall be deemed
automatically, irrevocably, and unconditionally to have purchased and received
from the Agent, without recourse or warranty, an undivided interest and risk
participation, to the extent of such other Bank's Percentage, in each Existing
Letter of Credit and the applicable Letter of Credit Obligations with respect
thereto and any security therefor or guaranty pertaining thereto.
4. SWING LINE CREDIT.
4.1 SWING LINE COMMITMENT. Swing Line Bank shall, on the terms and subject
to the conditions hereinafter set forth, make one or more advances (each such
advance being a "Swing Line Advance") to Borrower from time to time on any
Business Day during the period from the date hereof to (but excluding) the
Revolving Credit Maturity Date in an aggregate amount not to exceed Five Million
Dollars ($5,000,000) at any time outstanding; provided, however, that after
giving effect to all Swing Line Advances and all Revolving Credit Advances
requested to be made on such date, the aggregate principal amount of all
outstanding Advances shall not exceed the then applicable Revolving Credit
Aggregate Commitment. All Swing Line Advances shall be evidenced by the Swing
Line Note, under which advances, repayments and readvances may be made, subject
to the terms and conditions of this Agreement. Each Swing Line Advance shall
mature and the principal amount thereof shall be due and payable by Company on
the last day of the Interest Period applicable thereto. In no event whatsoever
shall any outstanding Swing Line Advance be deemed to reduce, modify or affect
any Bank's commitment to make Revolving Credit Advances based upon its
Percentage.
4.2 ACCRUAL OF INTEREST; MARGIN ADJUSTMENTS. Each Swing Line Advance shall,
from time to time after the date of such Advance, bear interest at its
Applicable Interest Rate. The amount and date of each Swing Line Advance, its
Applicable Interest Rate, its Interest Period, and the amount and date of any
repayment shall be noted on Agent's records, which records will be conclusive
evidence thereof, absent manifest error; provided, however, that any failure by
the Agent to record any such information shall not relieve Company of its
obligation to repay the outstanding principal amount of such Advance, all
interest accrued thereon and any amount payable with respect thereto in
accordance with the terms of this Agreement and the Loan Documents.
4.3 REQUESTS FOR SWING LINE ADVANCES. Company may request a Swing Line
Advance only after delivery to Swing Line Bank of a Request for Swing Line
Advance executed by an authorized officer of Company, subject to the following
and to the remaining provisions hereof:
(a) each such Request for Swing Line Advance shall set forth the
information required on the Request for Swing Line Advance form annexed hereto
as Exhibit "D", including without limitation:
(i) the proposed date of Swing Line Advance, which must be a Business
Day;
(ii) whether such Swing Line Advance is to be a Prime-based Advance or
Quoted Rate Advance; and
(iii) the duration of the Interest Period applicable thereto;
(b) each such Request for Swing Line Advance shall be delivered to Swing
Line Bank by 3:00 p.m. (Detroit time) on the proposed date of the Swing Line
Advance;
(c) the principal amount of such requested Swing Line Advance, plus the
principal amount of all other Advances then outstanding hereunder, plus the
aggregate undrawn portion of any Letter of Credit which shall be outstanding as
of the date of the requested Swing Line Advance, plus the aggregate face amount
of Letters of Credit requested but not yet issued, plus the aggregate amount of
all outstanding Letter of Credit Obligations shall not exceed the then
applicable Revolving Credit Aggregate Commitment;
(d) the principal amount of such Swing Line Advance shall be at least One
Hundred Thousand Dollars ($100,000) or any larger amount in multiples of Twenty
Five Thousand Dollars ($25,000);
(e) each Request for Swing Line Advance, once delivered to Swing Line Bank,
shall not be revocable by Company, and shall constitute and include a
certification by the Company as of the date thereof that:
(i) both before and after the Swing Line Advance, the obligations of
the Company and the Guarantors set forth in this Agreement and the Loan
Documents, as applicable, are valid, binding and enforceable obligations of
such parties;
(ii) to the best knowledge of Company all conditions to Advances
(including, without limitation, Section 6.9 hereof) have been satisfied;
(iii) both before and after the Advance, there is no Default or Event
of Default in existence; and
(iv) both before and after the Advance, the representations and
warranties contained in this Agreement and the Loan Documents are true and
correct in all material respects.
Swing Line Bank shall promptly deliver to Agent by telecopier a copy of any
Request for Swing Line Advance received.
4.4 DISBURSEMENT OF SWING LINE ADVANCES. Subject to submission of an
executed Request for Swing Line Advance by Company without exceptions noted in
the compliance certification therein and to the other terms and conditions
hereof, Swing Line Bank shall make available to Company the amount so requested,
in same day funds, not later than 4:00 p.m. (Detroit time) on the date of such
Swing Line Advance by credit to an account of Company maintained with Swing Line
Bank or to such other account or third party as Company may reasonably direct.
Swing Line Bank shall promptly notify Agent of any Swing Line Advance by
telephone, telex or telecopier.
4.5 REFUNDING OF OR PARTICIPATION INTEREST IN SWING LINE ADVANCES.
(a) The Agent, at any time in its sole and absolute discretion, may (or,
upon the request of the Swing Line Bank, shall) on behalf of the Company (which
hereby irrevocably directs the Agent to act on its behalf) request each
Revolving Credit Bank (including the Swing Line Bank in its capacity as a
Revolving Credit Bank) to make a Prime-based Advance of the Revolving Credit in
an amount equal to such Revolving Credit Bank's Percentage of the principal
amount of the Swing Line Advances (the "Refunded Swing Line Advances")
outstanding on the date such notice is given; provided that (i) at any time as
there shall be a Swing Line Advance outstanding for more than thirty days, the
Agent shall, on behalf of the Company (which hereby irrevocably directs the
Agent to act on its behalf), promptly request each Revolving Credit Bank
(including the Swing Line Bank) to make a Prime-based Advance of the Revolving
Credit in an amount equal to such Revolving Credit Bank's Percentage of the
principal amount of such outstanding Swing Line Advance and (ii) Swing Line
Advances shall be prepaid by the Borrower in accordance with the provisions of
Section 5.7 hereof. Unless any of the events described in Section 10.1(j) shall
have occurred (in which event the procedures of paragraph (b) of this Section
4.5 shall apply) and regardless of whether the conditions precedent set forth in
this Agreement to the making of a Revolving Credit Advance are then satisfied,
each Revolving Credit Bank shall make the proceeds of its Revolving Credit
Advance available to the Agent for the benefit of the Swing Line Bank at the
office of the Agent specified in Section 2.4(a) prior to 11:00 a.m. Detroit
time, in funds immediately available on the Business Day next succeeding the
date such notice is given. The proceeds of such Revolving Credit Advances shall
be immediately applied to repay the Refunded Swing Line Advances.
(b) If, prior to the making of a Revolving Credit Advances pursuant to
paragraph (a) of this Section 4.5, one of the events described in Section
10.1(j) shall have occurred, each Revolving Credit Bank will, on the date such
Revolving Credit Advance was to have been made, purchase from the Swing Line
Bank an undivided participating interest in each Refunded Swing Line Advance in
an amount equal to its Percentage of such Refunded Swing Line Advance. Each Bank
will immediately transfer to the Agent, in immediately available funds, the
amount of its participation and upon receipt thereof the Agent will deliver to
such Bank a Swing Line Bank Participation Certificate in the form of Exhibit "F"
dated the date of receipt of such funds and in such amount.
(c) Each Bank's obligation to make Revolving Credit Advances and to
purchase participation interests in accordance with clauses (a) and (b) above
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against Swing Line
Bank, the Company or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of any Default or Event of Default; (iii) any adverse
change in the condition (financial or otherwise) of the Company or any other
Person; (iv) any breach of this Agreement by the Company or any other Person;
(v) any inability of the Company to satisfy the conditions precedent to
borrowing set forth in this Agreement on the date upon which such participating
interest is to be purchased or (vi) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing. If any Bank does not
make available to the Agent the amount required pursuant to clause (a) or (b)
above, as the case may be, the Agent shall be entitled to recover such amount on
demand from such Bank, together with interest thereon for each day from the date
of non-payment until such amount is paid in full at the Federal Funds Effective
Rate.
5. MARGIN ADJUSTMENTS; INTEREST PAYMENTS
5.1 MARGIN ADJUSTMENTS. Adjustments in the Margin applicable to
Eurocurrency-based Advances, based on the Company's ratio of Funded Debt to
EBITDA and Fixed Charge Coverage Ratio (in each case on a Consolidated basis),
shall be implemented as follows:
(i) Such Margin adjustments shall be given prospective effect only,
effective upon (A) the required date of delivery of the financial
statements under Sections 8.3(b) and 8.3(c) hereof, (B) the
effective date of any Permitted Acquisition based upon the Pro
Forma Combined Financial Information delivered to Agent with
respect to such acquisition (if the Pro Forma Combined Financial
Information is required pursuant to Section 1.73(v) hereof) and
(C) the earlier of the date of delivery or the required date of
delivery of the Pro Forma Combined Financial Information required
pursuant to Section 8.19 hereof with respect to an equity
offering in each case establishing applicability of the
appropriate adjustment, and with no retroactivity or claw-back.
(ii) Such Margin adjustments under this Section 5.1 shall be made
irrespective of, and in addition to, any other interest rate
adjustments hereunder.
5.2 PRIME-BASED INTEREST PAYMENTS. Interest on the unpaid balance of all
Prime-based Advances from time to time outstanding shall accrue from the date of
such Advances to the Revolving Credit Maturity Date (and until paid), at a per
annum interest rate equal to the Prime-based Rate, and shall be payable in
immediately available funds monthly commencing on the first day of the month
next succeeding the month during which the initial Advance is made and on the
first day of each month thereafter. Interest accruing at the Prime-based Rate
shall be computed on the basis of a 360 day year and assessed for the actual
number of days elapsed, and in such computation effect shall be given to any
change in the interest rate resulting from a change in the Prime-based Rate on
the date of such change in the Prime-based Rate.
5.3 EUROCURRENCY-BASED INTEREST PAYMENTS. Interest on each
Eurocurrency-based Advance having a related Eurocurrency-Interest Period of 3
months or less shall accrue at its Eurocurrency-based Rate and shall be payable
in immediately available funds on the last day of the Interest Period applicable
thereto. Interest shall be payable in immediately available funds on each
Eurocurrency-based Advance outstanding from time to time having a
Eurocurrency-Interest Period of 6 months or longer, at intervals of 3 months
after the first day of the applicable Interest Period, and shall also be payable
on the last day of the Interest Period applicable thereto. Interest accruing at
the Eurocurrency-based Rate shall be computed on the basis of a 360 day year and
assessed for the actual number of days elapsed from the first day of the
Interest Period applicable thereto to, but not including, the last day thereof.
5.4 QUOTED RATE ADVANCE INTEREST PAYMENTS. Interest on each Quoted Rate
Advance shall accrue at its Quoted Rate and shall be payable in immediately
available funds on the last day of the Interest Period applicable thereto.
Interest accruing at the Quoted Rate shall be computed on the basis of a 360 day
year and assessed for the actual number of days elapsed from the first day of
the Interest Period applicable thereto to, but not including the last day
thereof.
5.5 INTEREST PAYMENTS ON CONVERSIONS. Notwithstanding anything to the
contrary in Sections 5.2 and 5.3, all accrued and unpaid interest on any
Revolving Credit Advance refunded or converted pursuant to Section 2.3 hereof
shall be due and payable in full on the date such Advance is refunded or
converted.
5.6 INTEREST ON DEFAULT. Notwithstanding anything to the contrary set forth
in Sections 5.2, 5.3 and 5.4, in the event and so long as any Event of Default
shall exist under this Agreement, interest shall be payable daily on the
principal amount of all Advances from time to time outstanding (and on all other
monetary obligations of Company hereunder and under the other Loan Documents) at
a per annum rate equal to the Applicable Interest Rate (and, with respect to
Eurocurrency-based Advances, calculated on the basis of the maximum Margin
chargeable hereunder, whether or not otherwise applicable) in respect of each
such Advance, plus, in the case of Eurocurrency-based Advances and Quoted Rate
Advances, three percent (3%) per annum for the remainder of the then existing
Interest Period, if any, and at all other such times and for all Prime-based
Advances, at a per annum rate equal to the Prime-based Rate, plus three percent
(3%).
5.7 PREPAYMENT. Company may prepay all or part of the outstanding balance
of any Prime-based Advance(s) (subject to not less than one (1) Business Day's
notice to Agent) at any time, provided that the amount of any partial prepayment
shall be at least Five Hundred Thousand Dollars ($500,000) and the aggregate
balance of Prime-based Advance(s) remaining outstanding under the Revolving
Credit Notes shall be at least Five Hundred Thousand Dollars ($500,000) and the
aggregate amount outstanding under all Swing Line Advances shall be at least
Five Hundred Thousand Dollars ($500,000). Company may prepay all or part of any
Eurocurrency-based Advance (subject to not less than three (3) Business Days'
notice to Agent) only on the last day of the Interest Period applicable thereto,
provided that the amount of any such partial prepayment shall be at least Five
Hundred Thousand Dollars ($500,000), and the unpaid portion of such Advance
which is refunded or converted under Section 2.3 shall be at least Three Million
Dollars ($3,000,000). Company may prepay Quoted Rate Advances only on the last
day of the Interest Period applicable thereto. Any prepayment made in accordance
with this Section shall be without premium, penalty or prejudice to the right to
reborrow under the terms of this Agreement. Any other prepayment of all or any
portion of the Revolving Credit, whether by acceleration, mandatory or required
prepayment or otherwise, shall be subject to Section 12.1 hereof, but otherwise
without premium, penalty or prejudice.
6. CONDITIONS.
The obligations of Banks to make Advances or loans pursuant to this
Agreement are subject to the following conditions:
6.1 EXECUTION OF NOTES AND THIS AGREEMENT. Company shall have executed and
delivered to Agent for the account of each Bank, the Revolving Credit Notes, the
Swing Line Note and this Agreement (including all schedules, exhibits,
certificates, opinions, financial statements and other documents to be delivered
pursuant hereto), and, as applicable, the Loan Documents, and such Revolving
Credit Notes, Swing Line Note, this Agreement, and the other Loan Documents
shall be in full force and effect.
6.2 CORPORATE AUTHORITY. Agent shall have received, with a counterpart
thereof for each Bank: (i) certified copies of resolutions of the Board of
Directors of Company evidencing approval of the form of this Agreement, the
other Loan Documents and the Notes and authorizing the execution and delivery
thereof and the borrowing of Advances hereunder and of each of Company and the
Guarantors evidencing approval of its entering into the Company Collateral
Documents, or the Guarantor Collateral Documents as the case may be; and (ii)
(A) certified copies of Company's, and each Guarantor's articles of
incorporation and bylaws or other constitutional documents certified as true and
complete as of a recent date by the appropriate official of the jurisdiction of
incorporation of each such entity; and (B) a certificate of good standing from
the state or other jurisdictions of Company's and each Guarantor's
incorporation, and from every state or other jurisdiction in which either
Company or any Guarantor is qualified to do business, if issued by such
jurisdictions, subject to the limitations (as to qualification and authorization
to do business) contained in Section 6.1 hereof.
6.3 COMPANY COLLATERAL DOCUMENTS. As security for all Indebtedness of
Company to the Banks hereunder, Company shall have furnished, executed and
delivered to the Agent, or caused to be furnished, executed and delivered to the
Agent, prior to or concurrently with the initial borrowing hereunder, in form
and substance satisfactory to the Agent and the Banks and supported by
appropriate resolutions in certified form authorizing same, the Company
Collateral Documents. In addition, if required or advisable under applicable law
to perfect the liens granted thereby, the Agent shall have received,
concurrently with or prior to the making of Advances hereunder, appropriate
financing statements, collateral and other documents covering such Collateral
executed and delivered by the appropriate parties, including without limitation,
original certificates evidencing any shares of stock pledged to Agent on behalf
of the Banks under the Company Collateral Documents.
6.4 GUARANTOR COLLATERAL DOCUMENTS. As security for all Indebtedness of
Company to the Banks hereunder, each of the Guarantors shall have furnished,
executed, and delivered to the Agent, or caused to be furnished, executed and
delivered to the Agent, prior to or concurrently with the initial borrowing
hereunder, in form and substance satisfactory to Agent and the Banks and
supported by appropriate resolutions in certified form authorizing same, the
Guarantor Collateral Documents. In addition, if required or advisable under
applicable law to perfect the liens granted thereby, the Agent shall have
received, concurrently with the making of Advances hereunder, appropriate
financing statements, collateral and other documents covering such Collateral
executed and delivered by the appropriate parties, including without limitation,
original certificates evidencing any shares of stock pledged to Agent on behalf
of the Banks under the Guarantor Collateral Documents.
6.5 LICENSES, PERMITS, ETC. The Agent shall have received, with a
counterpart for each Bank, copies of each authorization, license, permit,
consent, order or approval of, or registration, declaration or filing with, any
governmental authority or any securities exchange or other person (including
without limitation any securities holder) obtained or made by the Company, any
of its Subsidiaries (excluding JPE Canada), or any other Person (as of the
relevant date of Advance or loan hereunder) in connection with the transactions
contemplated by this Agreement or the Loan Documents.
6.6 REPRESENTATIONS AND WARRANTIES -- ALL PARTIES. The representations and
warranties made by Company, Guarantors or any other party to any of the Loan
Documents (excluding the Agent and Banks) under this Agreement or any of the
Loan Documents, and the representations and warranties of any of the foregoing
which are contained in any certificate, document or financial or other statement
furnished at any time hereunder or thereunder or in connection herewith or
therewith shall have been true and correct in all material respects when made
and shall be true and correct in all material respects on and as of the date of
the making of any Advance hereunder.
6.7 COMPLIANCE WITH CERTAIN DOCUMENTS AND AGREEMENTS. The Company and each
of the Guarantors (and any of their respective Subsidiaries or Affiliates) shall
have each performed and complied with all agreements and conditions contained in
this Agreement, the Loan Documents, or any agreement or other document executed
thereunder and required to be performed or complied with by each of them (as of
the applicable date) and none of such parties shall be in default in the
performance or compliance with any of the terms or provisions hereof or thereof.
6.8 OPINION OF COUNSEL. Company and each of the Guarantors shall furnish
Agent prior to the initial Advance under this Agreement, and with signed copies
for each Bank, opinions of counsel to the Company and each of the Guarantors,
dated the date hereof, and covering such matters as required by and otherwise
satisfactory in form and substance to the Agent and each of the Banks.
6.9 NO DEFAULT; NO MATERIAL ADVERSE CHANGE. No Default or Event of Default
shall have occurred and be continuing, and there shall have been no material
adverse change in the financial condition, properties, business, prospects of,
results or operations of the Company and its Subsidiaries, excluding JPE Canada,
(taken as a whole) (excluding any changes in prospects affecting the economy in
general which have not resulted in a material adverse change in the prospects of
the Company and its Subsidiaries, excluding JPE Canada, (taken as a whole)) from
September 30, 1996 to the date of the making of the first borrowing hereunder.
6.10 COMPANY'S CERTIFICATE. The Agent shall have received, with a signed
counterpart for each Bank, a certificate of a responsible senior officer of
Company dated the date of the making of Advances hereunder, stating that to the
best of his or her knowledge after due inquiry, the conditions of paragraphs
6.1, 6.5 through 6.7 and 6.14, hereof have been fully satisfied.
6.11 OTHER DOCUMENTS AND INSTRUMENTS. The Agent shall have received, with a
photocopy for each Bank, such other instruments and documents as each of the
Banks may reasonably request in connection with the making of loans hereunder,
and all such instruments and documents shall be satisfactory in form and
substance to the Banks in the exercise of their reasonable discretion.
6.12 CONTINUING CONDITIONS. The obligations of the Banks to make Advances
or loans under this Agreement shall be subject to the continuing conditions that
all documents executed or submitted pursuant hereto shall be satisfactory in
form and substance (consistent with the terms hereof) to Agent and its counsel
and to each of the Banks; Agent and its counsel and each of the Banks and their
respective counsel shall have received all information, and such counterpart
originals or such certified or other copies of such materials, as Agent or its
counsel and each of the Banks and their respective counsel may reasonably
request; and all other legal matters relating to the transactions contemplated
by this Agreement (including, without limitation, matters arising from time to
time as a result of changes occurring with respect to any statutory, regulatory
or decisional law applicable hereto) shall be satisfactory to counsel to Agent
and counsel to each of the Banks in the exercise of their reasonable discretion.
7. REPRESENTATIONS AND WARRANTIES.
Company represents and warrants and such representations and warranties
shall be deemed to be continuing representations and warranties until the
Revolving Credit Maturity Date and thereafter until final payment in full of the
Indebtedness and the performance by Company of all other obligations under this
Agreement:
7.1 CORPORATE AUTHORITY. Each of Company and its Subsidiaries is a
corporation duly organized and existing in good standing under the laws of the
applicable jurisdiction of organization, charter or incorporation; it is duly
qualified and authorized to do business as a corporation or foreign corporation
in each jurisdiction where the character of its assets or the nature of its
activities makes such qualification necessary, except where such failure to
qualify and be authorized to do business will not have a material adverse impact
on the Company or any of its Subsidiaries.
7.2 DUE AUTHORIZATION - COMPANY. Execution, delivery and performance of
this Agreement, the Company Collateral Documents, the other Loan Documents (to
the extent applicable) and any other documents and instruments required under or
in connection with this Agreement or the other Loan Documents (or to be so
executed and delivered), and the issuance of the Notes by Company are within its
corporate powers, have been duly authorized, are not in contravention of law or
the terms of Company's Articles of Incorporation or Bylaws, and, except as have
been previously obtained or as referred to in Section 7.17, below, do not
require the consent or approval, material to the transactions contemplated by
this Agreement or the Loan Documents, of any governmental body, agency or
authority not previously delivered under Section 6.5 hereof.
7.3 DUE AUTHORIZATION - GUARANTORS. Execution, delivery and performance of
the Guarantor Collateral Documents, the other Loan Documents (to the extent
applicable) and all other documents and instruments required of Guarantors under
or in connection with this Agreement or the Loan Documents (or to be so executed
and delivered) are within the corporate powers of the Guarantors, have been duly
authorized, are not in contravention of law or the terms of the Guarantor's
Articles of Incorporation or Bylaws, and, except as have been previously
obtained (or as referred to in Section 7.17, below), do not require the consent
or approval, material to the transactions contemplated by this Agreement, and
the Loan Documents, of any governmental body, agency or authority not previously
obtained and delivered to Agent under Section 6.5 hereof.
7.4 TITLE TO COLLATERAL - COMPANY. Company has good and valid title to the
property pledged, mortgaged or otherwise encumbered or to be encumbered under
the Company Collateral Documents.
7.5 TITLE TO COLLATERAL - GUARANTORS. Each of the Guarantors has good and
valid title to the property pledged, mortgaged or otherwise encumbered or to be
encumbered under the Guarantor Collateral Documents.
7.6 ENCUMBRANCES. There are no security interests in, liens, mortgages, or
other encumbrances on and no financing statements on file with respect to, any
of the property pledged, mortgaged or otherwise encumbered (or to be encumbered)
under the Collateral Documents, except for the Permitted Encumbrances.
7.7 CAPITAL STOCK; SHAREHOLDERS; SUBSIDIARIES. As of the date hereof, (a)
all present Subsidiaries of Company are set forth in the attached Schedule 7.7,
along with the percentage of the outstanding voting stock owned by Company or by
a Subsidiary of Company (and identifying that Subsidiary); and (b) other than as
disclosed on Schedule 7.7, there are no outstanding options, warrants or rights
to purchase, nor any agreement for the subscription, purchase or acquisition of,
any shares of the capital stock of any of Company's Subsidiaries.
7.8 TAXES. Each of Company and its Subsidiaries has filed on or before
their respective due dates, all federal, state and foreign tax returns which are
required to be filed or has obtained extensions for filing such tax returns and
is not delinquent in filing such returns in accordance with such extensions and
has paid all taxes which have become due pursuant to those returns or pursuant
to any assessments received by any such party, as the case may be, to the extent
such taxes have become due, except to the extent such tax payments are being
actively contested in good faith by appropriate proceedings and with respect to
which adequate provision has been made on the books of Company as may be
required by GAAP.
7.9 NO DEFAULTS. There exists no default under the provisions of any
instrument evidencing any Debt of the Company or any of its Subsidiaries which
is permitted hereunder or any Debt connected with any of the Permitted
Encumbrances, or of any agreement relating thereto.
7.10 ENFORCEABILITY OF AGREEMENT AND LOAN DOCUMENTS -- COMPANY. This
Agreement, each of the other Loan Documents to which Company is a party, and all
other certificates, agreements and documents executed and delivered by Company
under or in connection herewith or therewith have each been duly executed and
delivered by its duly authorized officers and constitute the valid and binding
obligations of Company, enforceable in accordance with their respective terms,
except as enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting the enforcement
of creditor's rights, generally and by general principles of equity.
7.11 ENFORCEABILITY OF LOAN DOCUMENTS -- GUARANTORS. The Loan Documents to
which each of the Guarantors is a party, and all certificates, documents and
agreements executed in connection therewith by the Guarantors have each been
duly executed and delivered by the respective duly authorized officers of the
Guarantors and constitute the valid and binding obligations of Guarantors,
enforceable in accordance with their respective terms, except as enforcement
thereof may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting the enforcement of creditor's rights,
generally and by general principles of equity.
7.12 COMPLIANCE WITH LAWS. The Company and its Subsidiaries each has
complied with all applicable laws, including without limitation, Hazardous
Material Laws, to the extent that failure to comply therewith would materially
interfere with the conduct of the business of the Company or any of its
Subsidiaries, or would have a material adverse effect upon Company and its
Subsidiaries (taken as a whole).
7.13 NON-CONTRAVENTION -- COMPANY. The execution, delivery and performance
of this Agreement and the other Loan Documents and any other documents and
instruments required under or in connection with this Agreement by Company are
not in contravention of the terms of any indenture, agreement or undertaking to
which Company or any of its Subsidiaries is a party or by which it or its
properties are bound or affected.
7.14 NON-CONTRAVENTION -- GUARANTORS. The execution, delivery and
performance of those Loan Documents signed by the Guarantors, and any other
documents and instruments required under or in connection with this Agreement by
the Guarantors are not in contravention of the terms of any indenture, agreement
or undertaking to which any Subsidiary or Company is a party or by which it or
its properties are bound or affected.
7.15 NO LITIGATION -- COMPANY. There is no suit, action, proceeding,
including, without limitation, any bankruptcy proceeding, or governmental
investigation pending against or affecting Company (other than any suit, action
or proceeding in which Company is the plaintiff and in which no counterclaim or
cross-claim against Company has been filed), nor has Company or any of its
officers or directors been subject to any suit, action, proceeding or
governmental investigation as a result of which any such officer or director is
or may be entitled to indemnification by Company, except in each case as
otherwise disclosed in Schedule 7.15 attached hereto and except for
miscellaneous suits, actions and proceedings (other than suits, actions or
proceedings commenced by any government or governmental authority) involving
less than $750,000 in the aggregate, which suits, if resolved adversely to
Company, would not in the aggregate have a material adverse effect on the
Company. Except as so disclosed, there is not outstanding against Company any
judgment, decree, injunction, rule, or order of any court, government,
department, commission, agency, instrumentality or arbitrator nor is Company in
violation of any applicable law, regulation, ordinance, order, injunction,
decree or requirement of any governmental body or court where such violation
would reasonably be expected to have a material adverse effect on Company.
7.16 NO LITIGATION -- SUBSIDIARIES. There is no suit, action, proceeding
(other than any suit, action or proceeding in which any such party is the
plaintiff and in which no counterclaim or cross-claim against any such party has
been filed), including, without limitation, any bankruptcy proceeding, or
governmental investigation pending against or affecting any of the Subsidiaries
of Company, nor has any such party or any of its officers or directors been
subject to any suit, action, proceeding or governmental investigation as a
result of which any such officer or director is or may be entitled to
indemnification by such party, except as otherwise disclosed in Schedule 7.16
attached hereto and except in each case for miscellaneous suits, actions and
proceedings (other than suits, actions or proceedings commenced by any
government or governmental authority) involving less than $1,000,000 in the
aggregate (for all such Subsidiaries), which suits, if resolved adversely to any
such Subsidiary, would not in the aggregate have a material adverse effect on
Company and its Subsidiaries (taken as a whole). Except as so disclosed, there
is not outstanding against any Subsidiary of Company any judgment, decree,
injunction, rule, or order of any court, government, department, commission,
agency, instrumentality or arbitrator nor is any such party in violation of any
applicable law, regulation, ordinance, order, injunction, decree or requirement
of any governmental body or court where such violation would reasonably be
expected to have a material adverse effect on Company and its Subsidiaries
(taken as a whole).
7.17 CONSENTS, APPROVALS AND FILINGS, ETC. Except as have been previously
obtained, no authorization, consent, approval, license, qualification or formal
exemption from, nor any filing, declaration or registration with, any court,
governmental agency or regulatory authority or any securities exchange or any
other person or party (whether or not governmental) is required in connection
with the execution, delivery and performance: (i) by Company of this Agreement,
any of the Loan Documents to which it is a party, or any other documents or
instruments to be executed and or delivered by Company in connection therewith
or herewith; and (ii) by any Guarantor, of any of the Loan Documents to which
any Guarantor is a party, and (iii) by Company and the Guarantors, of the liens,
pledges, mortgages, security interests or other encumbrances granted, conveyed
or otherwise established (or to be granted, conveyed or otherwise established)
by or under this Agreement or the Loan Documents. All such authorizations,
consents, approvals, licenses, qualifications, exemptions, filings, declarations
and registrations which have previously been obtained or made, as the case may
be, are in full force and effect and are not the subject of any attack, or to
the knowledge of Company threatened attack (in any material respect) by appeal
or direct proceeding or otherwise.
7.18 AGREEMENTS AFFECTING FINANCIAL CONDITION. Neither the Company nor any
of its Subsidiaries is party to any agreement or instrument or subject to any
charter or other corporate restriction which materially adversely affects the
financial condition or operations of the Company and its Subsidiaries (taken as
a whole).
7.19 NO INVESTMENT COMPANY OR MARGIN STOCK. Neither the Company nor any of
its Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. Neither the Company nor any of its Subsidiaries
is engaged principally, or as one of its important activities, directly or
indirectly, in the business of extending credit for the purpose of purchasing or
carrying margin stock. None of the proceeds of any of the Loans will be used by
the Company or any of its Subsidiaries to purchase or carry margin stock or will
be made available by the Company or any of its Subsidiaries in any manner to any
other Person to enable or assist such Person in purchasing or carrying margin
stock. Terms for which meanings are provided in Regulation U of the Board of
Governors of the Federal Reserve System or any regulations substituted therefor,
as from time to time in effect, are used in this paragraph with such meanings.
7.20 ERISA. Neither Company nor any of its Subsidiaries maintains or
contributes to any Pension Plan subject to Title IV of ERISA, except as set
forth on Schedule 7.20 hereto; and there is no accumulated funding deficiency
within the meaning of ERISA, or any existing liability with respect to any of
the Pension Plans owed to the Pension Benefit Guaranty Corporation or any
successor thereto, and no "reportable event" or "prohibited transaction", as
defined in ERISA, has occurred with respect to any Pension Plan, and all such
Pension Plans are in material compliance with the requirements of the Internal
Revenue Code and ERISA.
7.21 CONDITIONS AFFECTING BUSINESS OR PROPERTIES. Neither the respective
businesses nor the properties of Company or any of its Subsidiaries is affected
by any fire, explosion, accident, strike, lockout or other dispute, drought,
storm, hail, earthquake, embargo, Act of God or other casualty (whether or not
covered by insurance), which materially adversely affects, or if such event or
condition were to continue for more than ten (10) additional days would
reasonably be expected to materially adversely affect the businesses or
properties of Company and its Subsidiaries (taken as a whole).
7.22 ENVIRONMENTAL AND SAFETY MATTERS. (a) Each of the Company and its
Subsidiaries is in compliance with all federal, state and local laws, ordinances
and regulations relating to safety and industrial hygiene or to the
environmental condition, including without limitation all Hazardous Materials
Laws in jurisdictions in which the Company or its Subsidiaries owns or operates,
or has owned or operated, a facility or site, or arranges or has arranged for
disposal or treatment of hazardous substances, solid waste, or other wastes,
accepts or has accepted for transport any hazardous substances, solid wastes or
other wastes or holds or has held any interest in real property or otherwise,
except for De Minimis Matters or as otherwise disclosed on Schedule 7.22 hereto,
and as to such matters disclosed on such Schedule, none will have a material
adverse effect on the financial condition or businesses of the Company and its
Subsidiaries (taken as a whole).
(b) No demand, claim, notice, suit, suit in equity, action, administrative
action, investigation or inquiry whether brought by any governmental authority,
private person or entity or otherwise, arising under, relating to or in
connection with any applicable Hazardous Materials Laws is pending or, to the
best knowledge of Company, after due investigation, threatened against the
Company or any of its Subsidiaries, any real property in which the Company or
any of its Subsidiaries holds or has held an interest or any past or present
operation of the Company or any of its Subsidiaries, except as disclosed on
Schedule 7.22 hereto, and as to such matters disclosed on such Schedule, none
will have a material adverse effect on the financial condition or business of
the Company and its Subsidiaries (taken as a whole).
(c) Neither the Company nor any of its Subsidiaries (i) is, to the best
knowledge of Company, after due investigation, the subject of any federal or
state investigation evaluating whether any remedial action is needed to respond
to a release of any toxic substances, radioactive materials, hazardous wastes or
related materials into the environment, (ii) has received any notice of any
toxic substances, radioactive materials, hazardous waste or related materials
in, or upon any of its properties in violation of any applicable Hazardous
Materials Laws, or (iii) knows of any basis for any such investigation, notice
or violation, except as disclosed on Schedule 7.22 hereto, and as to such
matters disclosed on such Schedule, none will have a material adverse effect on
the financial condition or business of Company and its Subsidiaries (taken as a
whole).
(d) No release, threatened release or disposal of hazardous waste, solid
waste or other wastes is occurring or, to the best knowledge of Company after
due investigation, has occurred on, under or to any real property in which the
Company or any of its Subsidiaries holds any interest or on which performs any
of its operations, in violation of any Hazardous Material Law except as
disclosed on Schedule 7.22 hereto, and as to such matters disclosed on such
Schedule, none will have a material adverse effect on the financial condition or
business of the Company and its Subsidiaries (taken as a whole).
7.23 ACCURACY OF INFORMATION. Each of the Company's financial statements
previously furnished to Agent and the Banks prior to the date of this Agreement,
has been prepared in accordance with GAAP and is complete and correct in all
material respects and fairly presents the financial condition of Company and the
results of its operations for the periods covered thereby; since September 30,
1995 there has been no material adverse change in the financial condition of
Company or any of its Subsidiaries; to the best knowledge of Company, neither
Company nor any of its Subsidiaries has any contingent obligations (including
any liability for taxes) not disclosed by or reserved against in the September
30, 1995 balance sheets, as applicable, except as set forth on Schedule 7.23
hereof, and at the present time there are no unrealized or anticipated losses
from any present commitment of Company or any of its Subsidiaries.
7.24 JOINT VENTURES. As of the date hereof, (a) all of Company's and all of
the Subsidiaries' interest in Joint Ventures are set forth in the attached
Schedule 7.24 along with the percentage of Stock or other ownership interest of
Company or any such Subsidiary therein and (b) other than as disclosed on
Schedule 7.24, there are no outstanding options, warrants or rights to purchase,
nor any agreement for the subscription, purchase or acquisition of, any shares
of the Stock or other ownership interest of any of such Joint Ventures.
8. AFFIRMATIVE COVENANTS
Company covenants and agrees that it will, and, as applicable, it will
cause each of its Subsidiaries, until the Revolving Credit Maturity Date and
thereafter until final payment in full of the Indebtedness and the performance
by the Company of all other obligations under this Agreement and the other Loan
Documents, unless the Majority Banks shall otherwise consent in writing:
8.1 PRESERVATION OF EXISTENCE, ETC. Subject to the terms of this Agreement:
(i) preserve and maintain its existence and such of its rights, licenses, and
privileges as are material to the business and operations conducted by it; (ii)
qualify and remain qualified to do business in each jurisdiction in which such
qualification is material to its business and operations or ownership of its
properties; (iii) continue to conduct and operate its businesses substantially
as conducted and operated during the present and preceding fiscal years; (iv) at
all times maintain, preserve and protect all of its franchises and trade names
and preserve all the remainder of its property and keep the same in good repair,
working order and condition; and (v) from time to time make, or cause to be
made, all necessary or appropriate repairs, replacements, betterments and
improvements thereto such that the businesses carried on in connection therewith
may be properly and advantageously conducted at all times.
8.2 KEEPING OF BOOKS. Keep proper books of record and account in which full
and correct entries shall be made of all of its financial transactions and its
assets and businesses so as to permit the presentation of financial statements
prepared in accordance with GAAP.
8.3 REPORTING REQUIREMENTS. Furnish Agent with copies for each Bank:
(a) as soon as possible, and in any event within three Business Days
after becoming aware of the occurrence of any Default or Event of Default
or any other event or occurrence which has or would reasonably be expected
to have a materially adverse effect upon the business, property or
financial condition of Company and its Subsidiaries (taken as a whole), or
upon Company's or any Guarantor's ability to comply with its obligations
hereunder or under any of the other Loan Documents, a written statement of
a responsible senior officer of the Company setting forth details of such
Default, Event of Default or other event or occurrence and the action which
the Company has taken or has caused to be taken or proposes to take or
cause to be taken with respect thereto;
(b) as soon as available, and in any event within one hundred twenty
(120) days after and as of the end of each of Company's fiscal years,
beginning with the fiscal year ending December 31, 1995, (i) audited
financial statements of the Company on a Consolidated basis and financial
statements of the Company on a Consolidating basis containing the balance
sheet of the Company and its Consolidated Subsidiaries as of the close of
each such fiscal year, statements of income and retained earnings and a
statement of cash flows for each such fiscal year, and such financial
statements to be prepared in accordance with GAAP and certified by
independent certified public accountants of recognized standing selected by
Company and reasonably acceptable to the Majority Banks and containing
unqualified opinions as to the fairness of the statements therein
contained; and (ii) a Covenant Compliance and Interest Rate Adjustment
Report;
(c) as soon as available, and in any event within forty-five (45) days
after and as of the end of each fiscal quarter of Company (including the
last quarter of each fiscal year), commencing with its quarter ending
December 31, 1995, (i) the balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and related
statements of income, retained earnings and cash flows for the portion of
the fiscal year through the end of such period, each on a Consolidated and
Consolidating basis certified by a responsible financial officer of Company
as to the consistency with prior financial reports and accounting periods,
and as to accuracy and fairness of presentation and (ii) a Covenant
Compliance and Interest Rate Adjustment Report;
(d) as soon as available, and in any event within forty five (45) days
after and as of the last day of each of the sixth full month and the
twelfth full month following the effective date of any Permitted
Acquisition (i) the balance sheet of the Company and its Consolidated
Subsidiaries as of the last day of such month and related statements of
income, retained earnings and cash flows for the twelve month period ending
on the last day of such month, each on a Consolidated and Consolidating
basis certified by a responsible financial officer of Company as to the
consistency with prior financial reports and accounting periods, and as to
accuracy and fairness of presentation and (ii) a Covenant Compliance and
Interest Rate Adjustment Report;
(e) promptly upon receipt thereof, copies of all reports and
management letters prepared with respect to Company or any of its
Subsidiaries by any independent certified public accountants in connection
with any annual, interim or other audit or review of the books of Company
or its Subsidiaries, irrespective of the party requesting such an audit or
review;
(f) promptly upon becoming available, a copy of all financial
statements, reports, notices, proxy statements and other communications
sent by the Company or any of its Subsidiaries to their stockholders, and
all regular and periodic reports filed by the Company or any of its
Subsidiaries with any securities exchange, the Securities and Exchange
Commission, the Corporations and Securities Bureau of the Department of
Commerce of the State of Michigan (excluding annual reports) or any
governmental authorities succeeding to any or all of the functions of said
commission or bureau; and
(g) promptly, and in form and substance reasonably satisfactory to
Agent and the requesting Banks, such other information as Agent or the
Majority Banks (acting through Agent) may reasonably request from time to
time, including, without limitation, if requested by the Majority Banks
appraisals of the Collateral on a basis acceptable to the Majority Banks
and by an appraiser or appraisers acceptable to them (subject to the
provisions of Section 8.7 below), and additional Covenant Compliance and
Interest Rate Adjustment Reports.
8.4 MAINTAIN FUNDED DEBT TO EBITDA RATIO. Maintain at all times a Funded
Debt to EBITDA Ratio of not more than the Maximum Funded Debt to EBITDA Ratio.
"Maximum Funded Debt to EBITDA Ratio" initially shall mean 4.75 to 1.0. Upon the
effective date of any Permitted Acquisition which is made in accordance with
Section 9.7 hereof, the Maximum Funded Debt to EBITDA Ratio shall be 5.50 to
1.0, provided, however, that on the last day of the sixth full month following
such effective date, the Maximum Funded Debt to EBITDA Ratio shall be reduced to
5.125 to 1.0 and on the last day of the twelve full month following such
effective date, the Maximum Funded Debt to EBITDA Ratio shall be reduced to 4.75
to 1.0.
8.5 MAINTAIN FIXED CHARGE COVERAGE RATIO. On a Consolidated basis, maintain
at all times a Fixed Charge Coverage Ratio of not less than the following during
the periods set forth below:
From October 1, 1996 through June 30, 1997 1.5 to 1.0
From July 1, 1997 and thereafter 1.75 to 1.0
8.6 GOODWILL. Maintain at all times a ratio of Goodwill to total assets of
not more than .30 to 1.0, all as determined in accordance with GAAP.
8.7 TAXES. Pay and discharge all taxes and other governmental charges, and
all material contractual obligations calling for the payment of money, before
the same shall become overdue, unless and to the extent only that such payment
is being contested in good faith by appropriate proceedings and is reserved for,
as required by GAAP, on its balance sheet.
8.8 INSPECTIONS. Permit Agent and each Bank, through their authorized
attorneys, accountants and representatives to examine Company's and each
Subsidiaries' (excluding JPE Canada) books, accounts, records, ledgers and
assets and properties of every kind and description (including any and all
Collateral) wherever located at all reasonable times during normal business
hours, upon oral or written request of Agent or such Bank, which shall include
collateral audits at Company's sole cost and expense (provided that prior to the
occurrence of an Event of Default, Company shall not be required to reimburse
Agent or any Bank for the cost of more than one collateral audit per year); and
permit Agent and each Bank or their authorized representatives, at reasonable
times and intervals, to visit all of their respective offices, discuss their
respective financial matters with their respective officers and independent
certified public accountants, and, by this provision, Company authorizes such
accountants to discuss the finances and affairs of Company and its Subsidiaries
(provided that Company is given an opportunity to participate in such
discussions) and examine any of its or their books and other corporate records.
8.9 FURTHER ASSURANCES; FINANCING STATEMENTS. Furnish to the Agent, at
Company's sole expense, upon Majority Banks' (or Agent's) request, in form
satisfactory to the Majority Banks, assignments, lien instruments or other
security instruments, consents, acknowledgments, subordinations and financing
statements covering any or all of the Collateral pledged, assigned, or
encumbered pursuant to the Collateral Documents, of every nature and
description, whether now owned or hereafter acquired (by Company or any
Guarantor), to the extent that the Agent may reasonably require, and execute and
deliver or cause to be executed and delivered such other documents or
instruments as the Agent may reasonably require to effectuate more fully the
purposes of this Agreement or the other Loan Documents.
8.10 COMPLIANCE WITH LEASES. Comply with the material terms and conditions
of any leases covering any premises or property (real or personal) wherein any
of the Collateral pledged, assigned or encumbered pursuant to the Company
Collateral Documents, or the Guarantor Collateral Documents is located and any
orders, ordinances, laws or statutes of any city, state or other governmental
department having jurisdiction with respect to such premises or property, or the
conduct of business thereon.
8.11 INDEMNIFICATION. Indemnify and save Agent and each of the Banks
harmless from all loss, cost, damage, liability or expenses, including
reasonable attorneys' fees and disbursements, incurred by Agents and the Banks
by reason of an Event of Default, or, defending or protecting the security
interests or other liens granted hereby or under any of the Loan Documents or
the priority thereof or enforcing the obligations of Company or any Guarantor
under this Agreement or any of the other Loan Documents or in the prosecution or
defense of any action or proceeding concerning any matter growing out of or
connected with this Agreement or any of the Loan Documents, excluding, however,
any loss, cost, damage, liability or expenses arising solely as a result of the
gross negligence or willful misconduct of the party seeking to be indemnified
under this Section 8.11.
8.12 GOVERNMENTAL AND OTHER APPROVALS. Apply for, obtain and/or maintain in
effect, as applicable, all authorizations, consents, approvals, licenses,
qualifications, exemptions, filings, declarations and registrations (whether
with any court, governmental agency, regulatory authority, securities exchange
or otherwise) which are necessary in connection with the execution, delivery and
performance: (i) by Company, of this Agreement, the Loan Documents, or any other
documents or instruments to be executed and/or delivered by Company in
connection therewith or herewith; and (ii) by the Guarantor, of the Loan
Documents and the liens, pledges, mortgages, security interests or other
encumbrances granted, conveyed or otherwise established (or to be granted,
conveyed or otherwise established) by or under the Loan Documents.
8.13 INSURANCE. Maintain insurance coverage on its physical assets and
against other business risks in such amounts and of such types as are
customarily carried by companies similar in size and nature, and in the event of
acquisition of additional property, real or personal, or of occurrence of
additional risks of any nature, increase such insurance coverage in such manner
and to such extent as prudent business judgment and then current practice would
dictate; and in the case of all policies covering property subject to the
Collateral Documents, or property in which the Banks shall have a security
interest of any kind whatsoever, other than those policies protecting against
casualty liabilities to strangers, all such insurance policies shall conform to
the requirements set forth in the applicable collateral documents and shall
provide that the loss payable thereunder shall be payable to Company or
Guarantor, as applicable, and to the Agent; and with all said policies or copies
thereof, including all endorsements thereon and those required hereunder, to be
deposited with the Agent.
8.14 COMPLIANCE WITH LAWS.
(a) Comply in all material respects with all applicable laws, rules,
regulations and orders of any governmental authority, whether federal, state,
local or foreign (including without limitation Hazardous Materials Laws), in
effect from time to time.
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions necessary to clean-up and remove all
Hazardous Materials on or affecting any premises owned or occupied by Company or
any of its Subsidiaries, whether resulting from conduct of Company or any of its
Subsidiaries or any other Person, if required by Hazardous Material Laws, all
such actions to be taken in accordance with such laws, and the orders and
directives of all applicable federal, state and local governmental authorities;
and
(c) Defend, indemnify and hold harmless Agent and each of the Banks, and
their respective employees, agents, officers and directors from and against any
and all claims, demands, penalties, fines, liabilities, settlements, damages,
costs or expenses of whatever kind or nature arising out of or related to (i)
the presence, disposal, release or threatened release of any Hazardous Materials
on, from or affecting any premises owned or occupied by Company or any of its
Subsidiaries, (ii) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous Materials,
(iii) any lawsuit or other proceeding brought or threatened, settlement reached
or governmental order or decree relating to such Hazardous Materials, (iv) the
cost of removal of all Hazardous Materials from all or any portion of any
premises owned by Company or its Subsidiaries, (v) the taking of necessary
precautions to protect against the release of Hazardous Materials on or
affecting any premises owned by Company or any of its Subsidiaries, (vi)
complying with all Hazardous Material Laws and/or (vii) any violation of
Hazardous Material Laws, including without limitation, reasonable attorneys and
consultants fees, investigation and laboratory fees, environmental studies
required by Agent or any Bank, but with respect to environmental studies only
following a violation of Hazardous Material Laws, (whether before or after the
occurrence of any Default or Event of Default hereunder), court costs and
litigation expenses; and, if so requested by Agent or any Bank, Company shall
execute, and shall cause the Guarantors to execute, separate indemnities
covering the foregoing matters. The obligations of Company under this Section
8.14 shall be in addition to any and all other obligations and liabilities the
Company may have to Agent or any of the Banks at common law or pursuant to any
other agreement.
8.15 COMPLIANCE WITH ERISA. Comply in all material respects with all
requirements imposed by ERISA as presently in effect or hereafter promulgated or
the Internal Revenue Code, including, but not limited to, the minimum funding
requirements of any Pension Plan.
8.16 ERISA NOTICES. Promptly notify Agent and each of the Banks upon the
occurrence of any of the following events:
(a) the termination of any Pension Plan pursuant to Subtitle C of
Title IV of ERISA or otherwise;
(b) the appointment of a trustee by a United States District Court to
administer any Pension Plan;
(c) the commencement by the PBGC, or any successor thereto, of any
proceeding to terminate any Pension Plan;
(d) the failure of the Company or any Subsidiary to make any payment
in respect of any Pension Plan required under Section 412 of the Internal
Revenue Code;
(e) the withdrawal of the Company or any Subsidiary from any Pension
Plan, including, without limitation, any multiemployer plan; or
(f) the occurrence of a reportable event which is required to be
reported by the Company under the regulations, within the meaning of Title
IV of ERISA or a "prohibited transaction" (as defined in Section 406 of
ERISA or Section 4975 of the Internal Revenue Code) which could have a
material adverse effect on Company or any of its Subsidiaries.
8.17 POWER OF ATTORNEY. Company does hereby make, constitute and appoint
any officer or agent of Agent as its true and lawful attorney-in-fact, with
power, upon the occurrence of any Event of Default (exercisable only so long as
such Event of Default is continuing and with full power of substitution), to
endorse its name, or the names of any of its officers or agents, upon any notes,
checks, drafts, money orders, or other instruments of payment (including
payments payable under any policy of insurance) or Collateral that may come into
possession of the Agent in full or part payment of any amounts owing to the
Banks; to sign and endorse the name of Company, and/or any of its officers or
agents, upon any invoice, freight or express bill, bill of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications and
notices in connection with Accounts of the Company, and any instrument or
document relating thereto or to Company's rights therein; to request from any
insurance company providing insurance coverage in accordance with Section 8.12
hereof to issue certificates of insurance, at Company's expense, evidencing the
loss payable provisions required under Section 8.12 hereof; to execute on behalf
of Company any financing statements, amendments, subordinations or other filings
pursuant to this Agreement or any of the Loan Documents, granting unto Agent, as
the attorney-in-fact of Company, full power to do any and all things necessary
to be done in and about the Company's or any Subsidiary's (excluding JPE Canada)
premises as fully and effectually as Company might or could do, and hereby
ratifying all that any said attorney shall lawfully do or cause to be done by
virtue hereof. The power of attorney described herein shall be deemed coupled
with an interest and shall be irrevocable until the Revolving Credit Maturity
Date and thereafter until payment in full of all the Indebtedness and the
performance by Company and the Guarantors of all other obligations under this
Agreement and the Loan Documents; Agent may, at any time after the occurrence of
an Event of Default, notify Account Debtors that Collateral has been assigned to
Agent on behalf of the Banks and that payments shall be made directly to Agent.
Upon request of the Agent, Company will so notify such Account Debtors and will
indicate on all billings to such Account Debtors that their accounts must be
paid to or as directed by Agent. The Agent acting on behalf of the Banks shall
have full power to collect, compromise, endorse, sell or otherwise deal with the
Collateral or proceeds thereof in the name of the Agent or in the name of
Company, provided that Agent shall act in a commercially reasonable manner.
Company further shall cause the Guarantors to provide powers of attorney to
Agent on substantially the foregoing terms.
8.18 SUBSIDIARIES; GUARANTIES. With respect to each corporation which
becomes a Subsidiary subsequent to the date of this Agreement, within thirty
days of the date a new Subsidiary is created or acquired, as the case may be,
cause such Subsidiary to execute and deliver to Agent, for and on behalf of each
of the Banks, a Joinder Agreement whereby such Subsidiary becomes obligated as a
Guarantor under the Guaranty, together with such supporting documentation,
including without limitation corporate authority items, certificates and
opinions of counsel, as reasonably required by Agent and the Majority Banks.
8.19 EQUITY OFFERING. Not more than forty five (45) calendar days after the
closing date of any equity offering, deliver or cause to be delivered to Agent
the Pro Forma Combined Projected Financial Information.
8.20 JPE CANADA FUNDED DEBT. Promptly furnish Bank with copies of any and
all amendments or modifications of the loan documents executed and/or delivered
by JPE Canada to the holder of the indebtedness permitted under Section 9.5(g)
hereof.
9. NEGATIVE COVENANTS
Company covenants and agrees that, until the Revolving Credit Maturity Date
and thereafter until final payment in full of the Indebtedness and the
performance by Company and the Guarantors of all other obligations under this
Agreement and the other Loan Documents, without the prior written consent of the
Majority Banks it will not, and will not permit its Subsidiaries to:
9.1 CAPITAL STRUCTURE AND REDEMPTIONS. Purchase, acquire or redeem any of
its capital stock or make any material change in its capital structure other
than the issuance of additional capital stock; provided, however, Company may
redeem its capital stock having a fair market value not in excess of $10,000,000
in the aggregate so long as immediately before and immediately after giving
effect to any such redemption, the ratio of Funded Debt to EBITDA is less than
3.0 to 1.0.
9.2 BUSINESS PURPOSES. Make any material changes in its business objects or
purposes or, except to the extent of the additional investment permitted under
Section 9.9(d) hereof, engage in business other than the Core Business.
9.3 MERGERS OR DISPOSITIONS. Enter into any merger or consolidation, except
for any Permitted Merger, or sell, lease, transfer, relocate or dispose of all,
substantially all, or any material part of its assets, except for Permitted
Transfers.
9.4 GUARANTIES. Guarantee, endorse, or otherwise become liable for or upon
the obligations of others, except by endorsement of cash items for deposit in
the ordinary course of business and except for the Guaranty and except for the
guaranty obligations of Company as disclosed on Schedule 9.4 hereof and any
renewals or amendments thereto not exceeding the amount of such guaranty
obligations.
9.5 INDEBTEDNESS. Become or remain obligated for any Debt, except for:
(a) Indebtedness to Banks hereunder;
(b) current unsecured trade, utility or non-extraordinary accounts
payable arising in the ordinary course of Company's or any Subsidiary's
businesses;
(c) any of the following which shall not exceed Ten Million Dollars
($10,000,000) in the aggregate at any time outstanding:
(i) purchase money Debt for fixed assets (including capitalized
leases or other non-cancelable leases having a term of twelve months
or longer) not to exceed an aggregate amount, for the Company and its
Subsidiaries (in the aggregate) incurred (or with respect to such Debt
of an acquisition target, assumed) while in compliance with this
Agreement and the other Loan Documents; and
(ii) indebtedness incurred in connection with the issuance of
industrial development revenue bonds issued for the benefit of Company
or a Subsidiary;
(d) indebtedness of a Subsidiary (excluding JPE Canada) to Company
evidenced by promissory notes endorsed and delivered to Agent for the
benefit of the Banks as collateral security for the Indebtedness;
(e) (i) Hedging Transactions with any of the Banks, and
(ii) Hedging Transactions with any other Person,
but only to the extent that the aggregate Hedging Exposure for all such
Hedging Transactions in effect from time to time does not exceed the lesser
of: (x) the notional principal amount of all such Hedging Transactions and
(y) the Revolving Credit Aggregate Commitment;
(f) other unsecured Debt for borrowed money not to exceed Ten Million
Dollars ($10,000,000) in the aggregate;
(g) the Debt of JPE Canada to Bank of Nova Scotia incurred in
connection with the Pebra Acquisition, not to exceed Thirty Five Million
Canadian Dollars (CDN $35,000,000) in the aggregate; and
(h) indebtedness of JPE Canada to Company which shall not exceed Five
Million Canadian Dollars (CDN $5,000,000) in the aggregate at any time
outstanding.
9.6 LIENS. Permit or suffer any Lien to exist on any of its properties,
real, personal or mixed, tangible or intangible, whether now owned or hereafter
acquired, except:
(a) in favor of Agent, as security for the Indebtedness;
(b) purchase money security interests in fixed assets to secure the
purchase money indebtedness permitted in Section 9.5(c)(i) hereof, provided
that such security interest is (or was, to the extent such security
interest exists at the time of a Permitted Acquisition) created
substantially contemporaneously with the acquisition of such fixed assets
and does not extend to any property other than the fixed asset so financed
and provided further that the sum of all such purchase money indebtedness
outstanding at any time shall not exceed the aggregate amount set forth in
Section 9.5(c), hereof;
(c) any Lien securing the indebtedness permitted in Section 9.5(c)(ii)
provided that such Lien is limited to the real property being developed or
other personal property used on or in connection therewith;
(d) the Permitted Encumbrances;
(e) Liens in favor of one or more of the Banks to secure the
obligations of Company permitted under Section 9.5(e)(i) hereof; and
(f) Liens in favor of Bank of Nova Scotia on the assets of JPE Canada
to secure the indebtedness permitted under Section 9.5(g) hereof.
9.7 ACQUISITIONS. Purchase or otherwise acquire or become obligated for the
purchase of all or substantially all or any material portion of the assets or
business interests of any Person, firm or corporation, or any shares of stock
(or other ownership interests) of any corporation, trusteeship or association,
or any business or going concern, or in any other manner effectuate or attempt
to effectuate an expansion of present business by acquisition, except for (a)
the Pebra Acquisition, provided that each of the requirements set forth in
subparagraphs (i) through (vii) of the definition of Permitted Acquisition,
other than clause (a) of subparagraph (vii), have been satisfied and (b)
Permitted Acquisitions, provided, however, that Company shall not make any
Permitted Acquisition so long as the ratio of Funded Debt to EBITDA Ratio is
more than 4.75 to 1.0.
9.8 DIVIDENDS. Declare or pay any dividends on or make any other
distribution with respect to any shares of its capital stock or other equity
interests, whether by reduction of stockholders' equity or otherwise, except for
stock dividends by Company to its shareholders and dividends and other
distributions by Subsidiaries of the Company to Company.
9.9 INVESTMENTS. Make or allow to remain outstanding any Investment in, or
any loans or advances to, any Person, firm, corporation or other entity or
association, other than:
(a) any loan or other advance by Company or a Subsidiary, as the case
may be, to any and all of its officers or employees, as the case may be, in
the normal course of business, so long as the aggregate of all such loans
or advances by the Company and its Subsidiaries does not exceed Two Hundred
Fifty Thousand Dollars ($250,000) at any time outstanding, plus reasonable,
reimbursable business and travel expenses;
(b) Permitted Investments;
(c) Investments in Company's Subsidiaries (excluding JPE Canada)
existing as of the date of this Agreement or established subsequent to the
date hereof (in compliance with this Agreement);
(d) Permitted Acquisitions (excluding any Investments owned by the
target of the Permitted Acquisition not otherwise permitted by Section
9.9(f) below);
(e) the Investments set forth on Schedule 9.9, hereto;
(f) Investments in any Person owned by the target of a Permitted
Acquisition upon the effective date of such Permitted Acquisition and not
made in contemplation of such Permitted Acquisition, which shall not exceed
One Million Dollars ($1,000,000) in the aggregate outstanding at any time
for all such Investments;
(g) Investments in Joint Ventures not to exceed in the aggregate five
percent (5%) of Company's Consolidated total assets as determined in
accordance with GAAP;
(h) loans by Company to its Subsidiaries (excluding loans to JPE
Canada) which constitute permitted Debt under Section 9.5(d) hereof; and
(i) Investments by Company in JPE Canada which shall not exceed Ten
Million Canadian Dollars (CDN $10,000,000) in the aggregate at any time
outstanding and which shall include (and not be in addition to) loans by
Company to JPE Canada which constitute permitted Debt under Section 9.5(h)
hereof.
9.10 ACCOUNTS RECEIVABLE. Sell or assign any account, note or trade
acceptance receivable, except to Agent on behalf of the Banks or in the ordinary
course of business for collection.
9.11 TRANSACTIONS WITH AFFILIATES. Enter into any transaction with any of
its or their stockholders or officers or its or their affiliates, except in the
ordinary course of business and on terms not materially less favorable than
would be usual and customary in similar transactions between Persons dealing at
arm's length.
9.12 NO FURTHER NEGATIVE PLEDGES. Enter into or become subject to any
agreement (other than this Agreement or the Loan Documents) (i) prohibiting the
guaranteeing by the Company or any Subsidiary of any obligations, (ii)
prohibiting the creation or assumption of any lien or encumbrance upon the
properties or assets of the Company or any Subsidiary, whether now owned or
hereafter acquired, or (iii) requiring an obligation to become secured (or
further secured) if another obligation is secured or further secured. The
provisions of this Section 9.12 shall not apply to JPE Canada.
10. DEFAULTS
10.1 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an Event of Default hereunder:
(a) non-payment when due of (i) the principal or interest under any of
the Notes issued hereunder in accordance with the terms thereof, (ii) any
reimbursement obligation under Section 3.6 hereof, or (iii) any Fees, and
in the case of interest payments and Fees, continuance thereof for five (5)
Business Days;
(b) non-payment of any money by Company under this Agreement or by
Company or any Guarantor under any of the Loan Documents, other than as set
forth in subsection (a), above within five (5) Business Days after written
notice from Agent that the same is due and payable;
(c) default in the observance or performance of any of the conditions,
covenants or agreements of Company set forth in Sections 2.7, 3.6, 8.1, 8.3
through 8.6, 8.8, 8.11, 8.13, 8.15, 8.16, 8.17, 8.18, 8.19, 9 (in its
entirety), 13.7 or 14.25 hereof;
(d) default in the observance or performance of any of the other
conditions, covenants or agreements set forth in this Agreement by Company
and continuance thereof for a period of thirty (30) consecutive days;
(e) any representation or warranty made by Company or any Guarantor
herein or in any instrument submitted pursuant hereto or by any other party
to the Loan Documents proves untrue or misleading in any material adverse
respect when made;
(f) default in the observance or performance of or failure to comply
with any of the conditions, covenants or agreements of Company or any
Guarantor set forth in any of the other Loan Documents, and the continuance
thereof beyond any period of grace or cure specified in any such document;
(g) default in the payment of or failure to comply with the terms of
any other obligation of Company or any of its Subsidiaries (excluding JPE
Canada) for Debt of Company or any of its Subsidiaries in excess of Two
Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate which
with the giving of notice or passage of time or both would permit the
holder or holders thereto to accelerate the Debt or terminate its
commitment thereunder;
(h) the rendering of any judgment(s) for the payment of money in
excess of the sum of Two Million Five Hundred Thousand Dollars ($2,500,000)
individually or in the aggregate against Company or any of its
Subsidiaries, and such judgments shall remain unpaid, unvacated, unbonded
or unstayed by appeal or otherwise for a period of thirty (30) consecutive
days, except as covered by adequate insurance with a reputable carrier and
an action is pending in which an active defense is being made with respect
thereto;
(i) the occurrence of an "reportable event", as defined in ERISA,
which is determined to constitute grounds for termination by the Pension
Benefit Guaranty Corporation of any Pension Plan maintained or contributed
to by or on behalf of the Company or any of its Subsidiaries for the
benefit of any of its employees or for the appointment by the appropriate
United States District Court of a trustee to administer such Pension Plan
and such reportable event is not corrected and such determination is not
revoked within sixty (60) days after notice thereof has been given to the
plan administrator of such Pension Plan (without limiting any of Agent's or
any Bank's other rights or remedies hereunder), or the institution of
proceedings by the Pension Benefit Guaranty Corporation to terminate any
such Pension Plan or to appoint a trustee by the appropriate United States
District Court to administer any such Pension Plan;
(j) the Company or any of its Subsidiaries shall be dissolved or
liquidated other than as part of a Permitted Merger (or any judgment, order
or decree therefor shall be entered) or; if a creditors' committee shall
have been appointed for the business of Company or any of its Subsidiaries
(other than JPE Canada); or if Company or any of its Subsidiaries (other
than JPE Canada) shall have made a general assignment for the benefit of
creditors or shall have been adjudicated bankrupt, or shall have filed a
voluntary petition in bankruptcy or for reorganization or to effect a plan
or arrangement with creditors or shall fail to pay its debts generally as
such debts become due in the ordinary course of business (except as
contested in good faith and for which adequate reserves are made in such
party's financial statements); or shall file an answer to a creditor's
petition or other petition filed against it, admitting the material
allegations thereof for an adjudication in bankruptcy or for
reorganization; or shall have applied for or permitted the appointment of a
receiver or trustee or custodian for any of its property or assets; or such
receiver, trustee or custodian shall have been appointed for any of its
property or assets (otherwise than upon application or consent of Company
or any of its Subsidiaries (other than JPE Canada)); or if an order shall
be entered approving any petition for reorganization of Company or any of
its Subsidiaries (other than JPE Canada); or the Company or any of its
Subsidiaries (other than JPE Canada) shall take any action (corporate or
other) authorizing or in furtherance any of the actions described above in
this subsection;
(k) the occurrence of a material and adverse change in the business or
financial condition of the Company and its Subsidiaries, excluding JPE
Canada, (taken as a whole), in the reasonable judgment of the Majority
Banks;
(l) without the consent of the Majority Banks, any Person, who as of
the date hereof does not have the power to elect a majority of the Board of
Directors of Company, acquires the power to vote sufficient number of
shares of voting stock to enable such Person to elect a majority of the
Board of Directors of Company; or Company shall cease to own, directly or
indirectly the number of shares of the issued and outstanding Stock of each
Subsidiary that it owned on the date hereof with respect to the
Subsidiaries identified on Schedule 7.7, or, with respect to Permitted
Acquisitions, the number of shares of the issued and outstanding stock
acquired by or a Subsidiary of Company at the time of such acquisition; or
(m) the revocation or attempted revocation of any Guaranty or Joinder
Agreement.
10.2 EXERCISE OF REMEDIES. If an Event of Default has occurred and is
continuing hereunder: (v) the Agent shall, upon being directed to do so by the
Majority Banks, declare the Revolving Credit Aggregate Commitment (and any
commitment to increase the Revolving Credit Aggregate Commitment), terminated;
(w) the Agent shall, upon being directed to do so by the Majority Banks, declare
the entire unpaid principal Indebtedness, including the Notes, immediately due
and payable, without presentment, notice or demand, all of which are hereby
expressly waived by Company; (x) upon the occurrence of any Event of Default
specified in subsection 10.1(j), above, and notwithstanding the lack of any
declaration by Agent under preceding clause (w), the entire unpaid principal
Indebtedness, including the Notes, shall become automatically and immediately
due and payable, and the Revolving Credit Aggregate Commitment shall be
automatically and immediately terminated; (y) the Agent shall, upon being
directed to do so by the Majority Banks, demand immediate delivery of cash
collateral, and the Company and each Account Party agrees to deliver such cash
collateral upon demand, in an amount equal to the maximum amount that may be
available to be drawn at any time prior to the stated expiry of all outstanding
Letters of Credit, and (z) the Agent shall, if directed to do so by the Majority
Banks or the Banks, as applicable (subject to the terms hereof), exercise any
remedy permitted by this Agreement, the other Loan Documents or law.
10.3 RIGHTS CUMULATIVE. No delay or failure of Agent and/or Banks in
exercising any right, power or privilege hereunder shall affect such right,
power or privilege, nor shall any single or partial exercise thereof preclude
any other or further exercise thereof, or the exercise of any other power, right
or privilege. The rights of Agent and Banks under this Agreement are cumulative
and not exclusive of any right or remedies which Banks would otherwise have.
10.4 WAIVER BY COMPANY OF CERTAIN LAWS. To the extent permitted by
applicable law, Company hereby agrees to waive, and does hereby absolutely and
irrevocably waive and relinquish the benefit and advantage of any valuation,
stay, appraisement, extension or redemption laws now existing or which may
hereafter exist, which, but for this provision, might be applicable to any sale
made under the judgment, order or decree of any court, on any claim for interest
on the Notes, or any security interest or mortgage contemplated by or granted
under or in connection with this Agreement. These waivers have been voluntarily
given, with full knowledge of the consequences thereof.
10.5 WAIVER OF DEFAULTS. No Event of Default shall be waived by the Banks
except in a writing signed by an officer of the Agent in accordance with Section
14.12 hereof. No single or partial exercise of any right, power or privilege
hereunder, nor any delay in the exercise thereof, shall preclude any other or
further exercise of their rights by Agent or the Banks. No waiver of any Event
of Default shall extend to any other or further Event of Default. No forbearance
on the part of the Agent or the Banks in enforcing any of their rights shall
constitute a waiver of any of their rights. Company expressly agrees that this
Section may not be waived or modified by the Banks or Agent by course of
performance, estoppel or otherwise.
10.6 DEPOSITS AND ACCOUNTS.
Upon the occurrence and during the continuance of any Event of Default,
each Bank may at any time and from time to time, without notice to the Company
(any requirement for such notice being expressly waived by the Company) set off
and apply against any and all of the obligations of the Company now or hereafter
existing under this Agreement, whether owing to such Bank or any other Bank or
the Agent, any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company and any property of the
Company from time to time in possession of such Bank, irrespective of whether or
not such deposits held or indebtedness owing by such Bank may be contingent and
unmatured and regardless of whether any Collateral then held by Agent or any
Bank is adequate to cover the Indebtedness. Promptly following any such setoff,
such Bank shall give written notice to Agent and to Company of the occurrence
thereof. The Company hereby grants to the Banks and the Agent a lien on and
security interest in all such deposits, indebtedness and property as collateral
security for the payment and performance of all of the obligations of the
Company under this Agreement. The rights of each Bank under this Section 10.6
are in addition to the other rights and remedies (including, without limitation,
other rights of setoff) which such Bank may have.
11. PAYMENTS, RECOVERIES AND COLLECTIONS.
11.1 PAYMENT PROCEDURE.
(a) All payments by Company of principal of, or interest on, the
Notes, or any other Indebtedness, shall be made without setoff,
counterclaim or withholding on the date specified for payment under this
Agreement not later than 11:00 a.m. (Detroit time) in immediately available
funds to Agent, for the ratable account of the Banks, at Agent's office
located at One Detroit Center, Detroit, Michigan 48226, (care of Agent's
Eurocurrency Lending Office, for Eurocurrency-based Advances). Upon receipt
by the Agent of each such payment, the Agent shall make prompt payment in
like funds received to each Bank as appropriate, or, in respect of
Eurocurrency-based Advances, to such Bank's Eurocurrency Lending Office.
(b) Unless the Agent shall have been notified by Company prior to the
date on which any payment to be made by Company is due that Company does
not intend to remit such payment, the Agent may, in its sole discretion and
without obligation to do so, assume that the Company has remitted such
payment when so due and the Agent may, in reliance upon such assumption,
make available to each Bank on such payment date an amount equal to such
Bank's share of such assumed payment. If Company has not in fact remitted
such payment to the Agent each Bank shall forthwith on demand repay to the
Agent the amount of such assumed payment made available or transferred to
such Bank, together with the interest thereon, in respect of each day from
and including the date such amount was made available by the Agent to such
Bank to the date such amount is repaid to the Agent at a rate per annum
equal to (i) for Prime-based Advances, the Federal Funds Effective Rate
(daily average), as the same may vary from time to time, and (ii) with
respect to Eurocurrency-based Advances, Agent's aggregate marginal cost
(including the cost of maintaining any required reserves or deposit
insurance and of any fees, penalties, overdraft charges or other costs or
expenses incurred by Agent) of carrying such amount.
(c) Subject to the definition of Interest Period, whenever any payment
to be made hereunder shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in computing interest, if
any, in connection with such payment.
11.2 APPLICATION OF PROCEEDS OF COLLATERAL. Notwithstanding anything to the
contrary in this Agreement, after an Event of Default, the proceeds of any of
the Collateral, together with any offsets, voluntary payments by Company or any
Guarantor or others and any other sums received or collected in respect of the
Indebtedness, shall be applied, first, to the Notes (to the extent secured by
the Collateral in accordance with the Loan Documents) on a pro rata basis, next,
to any other Indebtedness on a pro rata basis, and then, if there is any excess,
to Company or the applicable Guarantor, as the case may be. The application of
such proceeds and other sums to the Revolving Credit Notes shall be based on
each Bank's Percentage of the aggregate of the loans.
11.3 PRO-RATA RECOVERY. If any Bank shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of offset or otherwise)
on account of principal of, or interest on, any of the Revolving Credit Notes in
excess of its pro rata share of payments then or thereafter obtained by all
Banks upon principal of and interest on all Revolving Credit Notes, such Bank
shall purchase from the other Banks such participations in the Revolving Credit
Notes held by them as shall be necessary to cause such purchasing Bank to share
the excess payment or other recovery ratably in accordance with the Percentage
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing holder,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
11.4 DEPOSITS AND ACCOUNTS. In addition to and not in limitation of any
rights of any Bank or other holder of any of the Notes under applicable law,
each Bank and each other such holder shall, upon acceleration of the
Indebtedness under the Notes and without notice or demand of any kind, have the
right to appropriate and apply to the payment of the Notes owing to it any and
all balances, credits, deposits, accounts or moneys of Company then or
thereafter with such Bank or other holder; provided, however, that any such
amount so applied by any Bank or other holder on any of the Notes owing to it
shall be subject to the provisions of Section 11.3, hereof.
12. CHANGES IN LAW OR CIRCUMSTANCES; INCREASED COSTS.
12.1 REIMBURSEMENT OF PREPAYMENT COSTS. If Company makes any payment of
principal with respect to any Eurodollar-based Advance or Quoted Rate Advance
(or converts or refunds, or attempts to convert or refund any such Advance) on
any day other than the last day of the Interest Period applicable thereto
(whether voluntarily, by acceleration, or otherwise), or if Company fails to
borrow, refund or convert any Eurocurrency-based Advance or Quoted Rate Advance
after notice has been given by Company to Agent in accordance with the terms
hereof requesting such Advance, or if Company fails to make any payment of
principal or interest in respect of a Eurocurrency-based Advance or Quoted Rate
Advance when due, Company shall reimburse Agent and each Bank, as the case may
be on demand for any resulting loss, cost or expense incurred by Agent and
Banks, as the case may be as a result thereof, including, without limitation,
any such loss, cost or expense incurred in obtaining, liquidating, employing or
redeploying deposits from third parties, whether or not Agent and Banks, as the
case may be shall have funded or committed to fund such Advance. Such amount
payable by Company to Agent and Banks, as the case may be may include, without
limitation, an amount equal to the excess, if any, of (a) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, refunded
or converted, for the period from the date of such prepayment or of such failure
to borrow, refund or convert, through the last day of the relevant Interest
Period, at the applicable rate of interest for said Advance(s) provided under
this Agreement, over (b) the amount of interest (as reasonably determined by
Agent and Banks, as the case may be) which would have accrued to Agent and
Banks, as the case may be on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank eurodollar market.
Calculation of any amounts payable to any Bank (including the Swing Line Bank)
under this paragraph shall be made as though such Bank shall have actually
funded or committed to fund the relevant Advance through the purchase of an
underlying deposit in an amount equal to the amount of such Advance and having a
maturity comparable to the relevant Interest Period; provided, however, that any
Bank may fund any Eurodollar-based Advance or Quoted Rate Advance, as the case
may be in any manner it deems fit and the foregoing assumptions shall be
utilized only for the purpose of the calculation of amounts payable under this
paragraph. Upon the written request of Company, Agent and Banks shall deliver to
Company a certificate setting forth the basis for determining such losses, costs
and expenses, which certificate shall be conclusively presumed correct, absent
manifest error.
12.2 AGENT'S EUROCURRENCY LENDING OFFICE. For any Advance to which the
Eurocurrency-based Rate is applicable, if Agent shall designate a Eurocurrency
Lending Office which maintains books separate from those of the rest of Agent,
Agent shall have the option of maintaining and carrying the relevant Advance on
the books of such Eurocurrency Lending Office.
12.3 CIRCUMSTANCES AFFECTING EUROCURRENCY-BASED RATE AVAILABILITY. If with
respect to any Interest Period, Agent or any of the Banks (after consultation
with Agent) shall determine that, by reason of circumstances affecting the
interbank markets generally, deposits in eurodollars in the applicable amounts
are not being offered to the Agent or such Bank for such Interest Period, then
Agent shall forthwith give notice thereof to the Company. Thereafter, until
Agent notifies Company that such circumstances no longer exist, the obligation
of Banks to make Eurocurrency-based Advances, and the right of Company to
convert an Advance to or refund an Advance as a Eurocurrency-based Advance shall
be suspended, and the Company shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such Eurocurrency-based
Advance covered hereby together with accrued interest thereon, any amounts
payable under Section 12.1, hereof, and all other amounts payable hereunder on
the last day of the then current Interest Period applicable to such Advance.
Upon the date for repayment as aforesaid and unless Company notifies Agent to
the contrary within two (2) Business Days after receiving a notice from Agent
pursuant to this Section, such outstanding principal amount shall be converted
to a Prime-based Advance as of the last day of such Interest Period.
12.4 LAWS AFFECTING EUROCURRENCY-BASED ADVANCE AVAILABILITY. In the event
that any applicable law, rule or regulation (whether domestic or foreign) now or
hereafter in effect and whether or not currently applicable to any Bank or the
Agent or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by the Agent or any of the Banks (or any of their respective
Eurocurrency Lending Offices) with any request or directive (whether or not
having the force of law) of any such authority, shall make it unlawful or
impossible for any of the Banks (or any of their respective Eurocurrency Lending
Offices) to honor its obligations hereunder to make or maintain any Advance with
interest at the Eurocurrency-based Rate, Agent shall so notify Company and the
right of Company to convert an Advance or refund an Advance as a
Eurocurrency-based Advance, shall be suspended and thereafter Company may select
as Applicable Interest Rates only those which remain available and which are
permitted to be selected hereunder, and if any of the Banks may not lawfully
continue to maintain an Advance to the end of the then current Interest Period
applicable thereto as a Eurocurrency-based Advance, Company shall immediately
prepay such Advance, together with interest to the date of payment, and any
amounts payable under Sections 12.1 with respect to such prepayment and the
applicable Advance shall immediately be converted to a Prime-based Advance and
the Prime-based Rate shall be applicable thereto.
12.5 INCREASED COST OF EUROCURRENCY-BASED ADVANCES. In the event that any
applicable law, rule or regulation (whether domestic or foreign) now or
hereafter in effect and whether or not currently applicable to any Bank or the
Agent or any interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Agent or any of the Banks with any
request or directive (whether or not having the force of law) made by any such
authority, central bank or comparable agency after the date hereof:
(a) shall subject the Agent or any of the Banks to any tax, duty or
other charge with respect to any Advance or any Note or shall change the
basis of taxation of payments to the Agent or any of the Banks of the
principal of or interest on any Advance or any Note or any other amounts
due under this Agreement in respect thereof (except for changes in the rate
of tax on the overall net income or revenues of the Agent or of any of the
Banks imposed by the United States of America or the jurisdiction in which
such Bank's principal executive office is located); or
(b) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by the Agent or any
of the Banks or shall impose on the Agent or any of the Banks or the
interbank markets any other condition affecting any Advance or any of the
Notes;
and the result of any of the foregoing is to increase the costs to the Agent or
any of the Banks of making, funding or maintaining any part of the Indebtedness
hereunder as a Eurocurrency-based Advance or to reduce the amount of any sum
received or receivable by the Agent or any of the Banks under this Agreement or
under the Notes in respect of a Eurocurrency-based Advance then Agent or Bank,
as the case may be, shall promptly notify the Company of such fact and demand
compensation therefor and, within fifteen (15) days after such notice, Company
agrees to pay to Agent or such Bank such additional amount or amounts as will
compensate Agent or such Bank or Banks for such increased cost or reduction. A
certificate of Agent or such Bank setting forth the basis for determining such
additional amount or amounts necessary to compensate or such Bank or Banks shall
be conclusively presumed to be correct save for manifest error.
12.6 [Reserved.]
12.7 OTHER INCREASED COSTS. In the event that after the date hereof the
adoption of or any change in any applicable law, treaty, rule or regulation
(whether domestic or foreign) now or hereafter in effect and whether or not
presently applicable to any Bank or Agent, or any interpretation or
administration thereof by any governmental authority charged with the
interpretation or administration thereof, or compliance by any Bank or Agent
with any guideline, request or directive of any such authority (whether or not
having the force of law), including any risk based capital guidelines, affects
or would affect the amount of capital required or expected to be maintained by
such Bank or Agent (or any corporation controlling such Bank or Agent) and such
Bank or Agent, as the case may be, determines that the amount of such capital is
increased by or based upon the existence of such Bank's or Agent's obligations
or Advances hereunder and such increase has the effect of reducing the rate of
return on such Bank's or Agent's (or such controlling corporation's) capital as
a consequence of such obligations or Advances hereunder to a level below that
which such Bank or Agent (or such controlling corporation) could have achieved
but for such circumstances (taking into consideration its policies with respect
to capital adequacy) by an amount deemed by such Bank or Agent to be material,
then the Company shall pay to such Bank or Agent, as the case may be, from time
to time, upon request by such Bank or Agent, additional amounts sufficient to
compensate such Bank or Agent (or such controlling corporation) for any increase
in the amount of capital and reduced rate of return which such Bank or Agent
reasonably determines to be allocable to the existence of such Bank's or Agent's
obligations or Advances hereunder. A statement as to the amount of such
compensation, prepared in good faith and in reasonable detail by such Bank or
Agent, as the case may be, shall be submitted by such Bank or by Agent to the
Company, reasonably promptly after becoming aware of any event described in this
Section 12.7 and shall be conclusive, absent manifest error in computation.
13. AGENT
13.1 APPOINTMENT OF AGENT. Each Bank and the holder of each Note
irrevocably appoints and authorizes the Agent to act on behalf of such Bank or
holder under this Agreement and the Loan Documents and to exercise such powers
hereunder and thereunder as are specifically delegated to Agent by the terms
hereof and thereof, together with such powers as may be reasonably incidental
thereto, including without limitation the power to execute or authorize the
execution of financing or similar statements or notices, and other documents. In
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Banks and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
Company. Each Bank agrees (which agreement shall survive any termination of this
Agreement) to reimburse Agent for all reasonable out-of-pocket expenses
(including house and outside attorneys' fees and disbursements) incurred by
Agent hereunder or in connection herewith or with an Event of Default or in
enforcing the obligations of Company under this Agreement or the Loan Documents
or any other instrument executed pursuant hereto, and for which Agent is not
reimbursed by Company, pro rata according to such Bank's Percentage. Agent shall
not be required to take any action under the Loan Documents, or to prosecute or
defend any suit in respect of the Loan Documents, unless indemnified to its
satisfaction by the Banks against loss, costs, liability and expense. If any
indemnity furnished to Agent shall become impaired, it may call for additional
indemnity and cease to do the acts indemnified against until such additional
indemnity is given.
13.2 DEPOSIT ACCOUNT WITH AGENT. Company hereby authorizes Agent, in
Agent's sole discretion, to charge its general deposit account(s), if any,
maintained with Agent for the amount of any principal, interest, or other
amounts or costs due under this Agreement when the same become due and payable
under the terms of this Agreement or the Notes.
13.3 SCOPE OF AGENT'S DUTIES. The Agent shall have no duties or
responsibilities except those expressly set forth herein, and shall not, by
reason of this Agreement or otherwise, have a fiduciary relationship with any
Bank (and no implied covenants or other obligations shall be read into this
Agreement against the Agent). Neither Agent nor any of its directors, officers,
employees or agents shall be liable to any Bank for any action taken or omitted
to be taken by it under this Agreement or any document executed pursuant hereto,
or in connection herewith or therewith with the consent or at the request of the
Majority Banks or in the absence of their own gross negligence or willful
misconduct, nor be responsible for or have any duties to ascertain, inquire into
or verify (a) any recitals or warranties herein or therein, (b) the
effectiveness, enforceability, validity or due execution of this Agreement or
any document executed pursuant hereto or any security thereunder, (c) the
performance by Company of its obligations hereunder or thereunder, or (d) the
satisfaction of any condition hereunder or thereunder, including without
limitation the making of any Advance or the issuance of any Letter of Credit.
Agent shall be entitled to rely upon any certificate, notice, document or other
communication (including any cable, telegraph, telex, facsimile transmission or
oral communication) believed by it to be genuine and correct and to have been
sent or given by or on behalf of a proper person. Agent may treat the payee of
any Note as the holder thereof. Agent may employ agents and may consult with
legal counsel (who may be counsel for Company), independent public accountants
and other experts selected by it and shall not be liable to the Banks (except as
to money or property received by them or their authorized agents), for the
negligence or misconduct of any such agent selected by it with reasonable care
or for any action taken or omitted to be taken by it in good faith in accordance
with the advice of such counsel, accountants or experts.
13.4 SUCCESSOR AGENT. Agent may resign as such at any time upon at least 45
days prior notice to Company and all Banks. If Agent at any time shall resign or
if the office of Agent shall become vacant for any other reason, Majority Banks
shall, by written instrument, appoint successor agent(s) satisfactory to such
Majority Banks, and, so long as no Default or Event of Default has occurred and
is continuing, to Company; provided, that Company shall be entitled to deal with
the Agent until receiving notice of appointment of a successor agent. Such
successor agent shall thereupon become the Agent hereunder, as applicable, and
shall be entitled to receive from the prior Agent such documents of transfer and
assignment as such successor Agent may reasonably request. Any such successor
Agent shall be a commercial bank organized under the laws of the United States
or any state thereof and shall have a combined capital and surplus of at least
$500,000,000. If a successor is not so appointed or does not accept such
appointment before the resigning Agent's resignation becomes effective, the
resigning Agent may appoint a temporary successor to act until such appointment
by the Majority Banks is made and accepted or if no such temporary successor is
appointed as provided above by the resigning Agent, the Majority Banks shall
thereafter perform all of the duties of the resigning Agent hereunder until such
appointment by the Majority Banks is made and accepted. Such successor Agent
shall succeed to all of the rights and obligations of the resigning Agent as if
originally named. The resigning Agent shall duly assign, transfer and deliver to
such successor Agent all moneys at the time held by the resigning Agent
hereunder after deducting therefrom its expenses for which it is entitled to be
reimbursed. Upon such succession of any such successor Agent, the provisions of
this Article 13 shall continue in effect for the benefit of the resigning Agent
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
13.5 LOANS BY AGENT. Comerica and its successors and assigns, in its
capacity as a Bank hereunder, shall have the same rights and powers hereunder as
any other Bank and may exercise or refrain from exercising the same as though it
were not the Agent. Comerica and its affiliates may (without having to account
therefor to any Bank) accept deposits from, lend money to, and generally engage
in any kind of banking, trust, financial advisory or other business with Company
(or the shareholders of Company) as if it were not acting as Agent hereunder,
and may accept fees and other consideration therefor without having to account
for the same to the Banks.
13.6 CREDIT DECISIONS. Each Bank acknowledges that it has, independently of
Agent and each other Bank and based on the financial statements of Company and
such other documents, information and investigations as it has deemed
appropriate, made its own credit decision to extend credit hereunder from time
to time. Each Bank also acknowledges that it will, independently of Agent and
each other Bank and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make its
own credit decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement or any document
executed pursuant hereto.
13.7 AGENT'S FEES. Commencing on November 1, 1996 and on November 1 of each
succeeding year until the Indebtedness has been repaid and no commitment to fund
any Advance hereunder is outstanding, Company shall pay to Agent an annual
agency fee and such other fees and charges as set forth in the letter agreement
dated January , 1996 between Company and Agent. The Agent's Fees described in
this Section 13.7 shall not be refundable under any circumstances.
13.8 AUTHORITY OF AGENT TO ENFORCE NOTES AND THIS AGREEMENT. Each Bank,
subject to the terms and conditions of this Agreement, authorizes the Agent with
full power and authority as attorney-in-fact to institute and maintain actions,
suits or proceedings for the collection and enforcement of the Notes and to file
such proofs of debt or other documents as may be necessary to have the claims of
the Banks allowed in any proceeding relative to Company, or any of its
Subsidiaries, or their respective creditors or affecting their respective
properties, and to take such other actions which Agent considers to be necessary
or desirable for the protection, collection and enforcement of the Notes, this
Agreement or the Loan Documents.
13.9 INDEMNIFICATION. The Banks agree to indemnify the Agent (to the extent
not reimbursed by Company, but without limiting any obligation of Company to
make such reimbursement), ratably according to their respective Percentages,
from and against any and all claims, damages, losses, liabilities, costs or
expenses of any kind or nature whatsoever (including, without limitation, fees
and disbursements of counsel) which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement, any
of the Loan Documents or the transactions contemplated hereby or any action
taken or omitted by the Agent under this Agreement or any of the Loan Documents;
provided, however, that no Bank shall be liable for any portion of such claims,
damages, losses, liabilities, costs or expenses resulting from the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
agrees to reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including, without limitation, fees and expenses of
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement or any of the Loan
Documents, to the extent that the Agent is not reimbursed for such expenses by
Company, but without limiting the obligation of Company to make such
reimbursement. Each Bank agrees to reimburse the Agent promptly upon demand for
its ratable share of any amounts owing to the Agent by the Banks pursuant to
this Section. If the indemnity furnished to the Agent under this Section shall,
in the judgment of the Agent, be insufficient or become impaired, the Agent may
call for additional indemnity from the Banks and cease, or not commence, to take
any action until such additional indemnity is furnished.
13.10 KNOWLEDGE OF DEFAULT. It is expressly understood and agreed that the
Agent shall be entitled to assume that no Event of Default has occurred and is
continuing, unless the officers of the Agent immediately responsible for matters
concerning this Agreement shall have been notified in a writing specifying such
Event of Default and stating that such notice is a "notice of default" by a Bank
or by Company. Upon receiving such a notice, the Agent shall promptly notify
each Bank of such Event of Default and provide each Bank with a copy of such
notice. Agent shall also furnish the Banks, promptly upon receipt, with copies
of all other notices or other information required to be provided by Company
hereunder.
13.11 AGENT'S AUTHORIZATION; ACTION BY BANKS. Except as otherwise expressly
provided herein, whenever the Agent is authorized and empowered hereunder on
behalf of the Banks to give any approval or consent, or to make any request, or
to take any other action on behalf of the Banks (including without limitation
the exercise of any right or remedy hereunder or under the other Loan
Documents), the Agent shall be required to give such approval or consent, or to
make such request or to take such other action only when so requested in writing
by the Majority Banks or the Banks, as applicable hereunder. Action that may be
taken by Majority Banks or all of the Banks, as the case may be (as provided for
hereunder) may be taken (i) pursuant to a vote at a meeting (which may be held
by telephone conference call) as to which all of the Banks have been given
reasonable advance notice, or (ii) pursuant to the written consent of the
requisite Percentages of the Banks as required hereunder, provided that all of
the Banks are given reasonable advance notice of the requests for such consent.
13.12 ENFORCEMENT ACTIONS BY THE AGENT. Except as otherwise expressly
provided under this Agreement or in any of the other Loan Documents and subject
to the terms hereof, Agent will take such action, assert such rights and pursue
such remedies under this Agreement and the other Loan Documents as the Majority
Banks or all of the Banks, as the case may be (as provided for hereunder), shall
direct; provided, however, that the Agent shall not be required to act or omit
to act if, in the judgment of the Agent, such action or omission may expose the
Agent to personal liability or is contrary to this Agreement, any of the Loan
Documents or applicable law. Except as expressly provided above or elsewhere in
this Agreement or the other Loan Documents, no Bank (other than the Agent,
acting in its capacity as agent) shall be entitled to take any enforcement
action of any kind under any of the Loan Documents.
14. MISCELLANEOUS
14.1 AMENDMENT AND RESTATEMENT. This Agreement amends, restates and
replaces in its entirety the Prior Agreement.
14.2 ACCOUNTING PRINCIPLES. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, it shall be done, unless otherwise specified herein,
in accordance with GAAP. Furthermore, all financial statements required to be
delivered hereunder shall be prepared in accordance with GAAP.
14.3 CONSENT TO JURISDICTION. Company and Banks hereby irrevocably submit
to the non-exclusive jurisdiction of any United States Federal or Michigan state
court sitting in Detroit in any action or proceeding arising out of or relating
to this Agreement or any of the other Loan Documents and Company and Banks
hereby irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in any such United States Federal or Michigan state
court. Company irrevocably consents to the service of any and all process in any
such action or proceeding brought in any court in or of the State of Michigan by
the delivery of copies of such process to Company at its address specified on
the signature page hereto or by certified mail directed to such address or such
other address as may be designated by Company in a notice to the other parties
that complies as to delivery with the terms of Section 14.7. Nothing in this
Section shall affect the right of the Banks and the Agent to serve process in
any other manner permitted by law or limit the right of the Banks or the Agent
(or any of them) to bring any such action or proceeding against Company or any
Guarantor or any of its or their property in the courts of any other
jurisdiction. Company hereby irrevocably waives any objection to the laying of
venue of any such suit or proceeding in the above described courts.
14.4 LAW OF MICHIGAN. This Agreement and the Notes have been delivered at
Detroit, Michigan, and shall be governed by and construed and enforced in
accordance with the laws of the State of Michigan, except to the extent that the
Uniform Commercial Code, other personal property law or real property law of a
jurisdiction where Collateral is located is applicable and except as and to the
extent expressed to the contrary in any of the Loan Documents. Whenever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
14.5 INTEREST. In the event the obligation of Company to pay interest on
the principal balance of the Notes is or becomes in excess of the maximum
interest rate which Company is permitted by law to contract or agree to pay,
giving due consideration to the execution date of this Agreement, then, in that
event, the rate of interest applicable with respect to such Bank's Percentage
shall be deemed to be immediately reduced to such maximum rate and all previous
payments in excess of the maximum rate shall be deemed to have been payments in
reduction of principal and not of interest.
14.6 CLOSING COSTS AND OTHER COSTS. Company agrees to pay, or reimburse the
Agent for payment of, on demand (a) all reasonable closing costs and expenses,
including, by way of description and not limitation, house and outside attorney
fees and advances, appraisal and accounting fees, and lien search fees incurred
by Agent (but not any of the other Banks) in connection with the commitment,
consummation and closing of the loans contemplated hereby or in connection with
the administration of this Agreement or any amendment, refinancing or
restructuring of the credit arrangements provided under this Agreement, (b) all
stamp and other taxes and fees payable or determined to be payable in connection
with the execution, delivery, filing or recording of this Agreement and the Loan
Documents and the consummation of the transactions contemplated hereby, and any
and all liabilities with respect to or resulting from any delay in paying or
omitting to pay such taxes or fees, (c) all reasonable costs and expenses of the
Agent or any of the Banks (including reasonable fees and expenses of counsel and
whether incurred through negotiations, legal proceedings or otherwise) in
connection with any Default or Event of Default or the amendment, waiver or
enforcement of this Agreement, or the Loan Documents or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement and (d) all reasonable costs and expenses of the Agent or any of the
Banks (including reasonable fees and expenses of counsel) in connection with any
action or proceeding relating to a court order, injunction or other process or
decree restraining or seeking to restrain the Agent or any of the Banks from
paying any amount under, or otherwise relating in any way to, any Letter of
Credit and any and all costs and expenses which any of them may incur relative
to any payment under any Letter of Credit. All of said amounts required to be
paid by Company, may, at Agent's option, be charged by Agent as a Prime-based
Advance against the Indebtedness.
14.7 NOTICES. Except as expressly provided otherwise in this Agreement, all
notices and other communications provided to any party hereto under this
Agreement or any other Loan Document shall be in writing and shall be given by
personal delivery, by mail, by reputable overnight courier, by telex or by
facsimile and addressed or delivered to it at its address set forth on the
signature pages hereof or at such other address as may be designated by such
party in a notice to the other parties that complies as to delivery with the
terms of this Section 14.7. Any notice, if personally delivered or if mailed and
properly addressed with postage prepaid and sent by registered or certified
mail, shall be deemed given when received or when delivery is refused; any
notice, if given to a reputable overnight courier and properly addressed, shall
be deemed given 2 Business Days after the date on which it was sent, unless it
is actually received sooner by the named addressee; and any notice, if
transmitted by telex or facsimile, shall be deemed given when received
(answerback confirmed in the case of telexes and receipt confirmed in the case
of telecopies). Agent may, but shall not be required to, take any action on the
basis of any notice given to it by telephone, but the giver of any such notice
shall promptly confirm such notice in writing or by telex or facsimile, and such
notice will not be deemed to have been received until such confirmation is
deemed received in accordance with the provisions of this Section set forth
above. If such telephonic notice conflicts with any such confirmation, the terms
of such telephonic notice shall control.
14.8 FURTHER ACTION. Company, from time to time, upon written request of
Agent will make, execute, acknowledge and deliver or cause to be made, executed,
acknowledged and delivered, all such further and additional instruments, and
take all such further action as may reasonably be required to carry out the
intent and purpose of this Agreement or the Loan Documents, and to provide for
Advances under and payment of the Notes, according to the intent and purpose
herein and therein expressed.
14.9 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
Company, the Agent and the Banks, and their respective successors and assigns.
(b) The foregoing shall not authorize any assignment by Company of its
rights or duties hereunder, and no such assignment shall be made (or effective)
without the prior written approval of the Banks.
(c) Each of the Banks may at any time and from time to time, subject to the
terms and conditions hereof, grant participations (but not assignments, except
as expressly permitted hereunder) in such Bank's rights and obligations
hereunder and under the other Loan Documents to any commercial bank, savings and
loan association, insurance company, pension fund, mutual fund, commercial
finance company or other similar financial institution, which institution is
approved in advance in writing by Company and Agent, such approval not to be
unreasonably withheld or delayed; provided, however, that (i) the approval of
Company shall not be required upon the occurrence and during the continuance of
a Default or Event of Default and (ii) the approval of Company and Agent shall
not be required for the grant of a participation by a Bank to its Affiliate, to
any other Bank or to any Federal Reserve Bank; and provided further that the
aggregate assignments and participation interests sold by a Bank (other than to
an Affiliate or pursuant to subparagraph (ii) of this Section 14.9(c)) do not
exceed fifty percent (50%) of its original interest under this Agreement and the
other Loan Documents. The Company authorizes each Bank to disclose to any
prospective participant, once approved by Company and Agent (if such approval is
required), any and all financial information in such Bank's possession
concerning the Company which has been delivered to such Bank pursuant to this
Agreement; provided that each such prospective participant shall execute a
confidentiality agreement consistent with the terms of Section 14.14, hereof. A
Bank shall not be permitted to assign or otherwise transfer (except by
participation according to the terms hereof) its rights and obligations
hereunder, except, (x) to an Affiliate of an assigning Bank or to any Bank or
(y) with the prior written consent of the Company and the Agent which shall not
be unreasonably withheld, to any other financial institution; provided that any
such assignment shall not be in an amount less than $5,000,000;
(d) Each assignment by a Bank of any portion of its rights and obligations
hereunder and under the other Loan Documents shall be made pursuant to an
Assignment Agreement substantially (as determined by Agent) in the form attached
hereto as Exhibit "I" (with appropriate insertions acceptable to Agent) and
shall be subject to the terms and conditions hereof, and to the following
restrictions:
(i) each assignment shall cover all of the Notes issued by Company
and its Subsidiaries hereunder, and shall be for a fixed and not
varying percentage thereof, with the same percentage applicable
to each such Note;
(ii) each assignment shall be in a minimum amount of Five Million
Dollars ($5,000,000);
(iii) no assignment shall violate any "blue sky" or other securities
law of any jurisdiction or shall require the Company or any other
Person to file a registration statement or similar application
with the United States Securities and Exchange Commission (or
similar state regulatory body) or to qualify under the "blue sky"
or other securities laws of any jurisdiction; and
(iv) no assignment shall be effective unless Agent has received from
the assignee (or from the assigning Bank) an assignment fee of
Three Thousand Dollars ($3,000) for each such assignment.
In connection with any assignment, Company and Agent shall be entitled to
continue to deal solely and directly with the assigning Bank in connection with
the interest so assigned until (x) the Agent shall have received a notice of
assignment duly executed by the assigning Bank and an Assignment Agreement (with
respect thereto) duly executed by the assigning Bank and each assignee; and (y)
the assigning Bank shall have delivered to the Agent the original of each Note
held by the assigning Bank under the Loan Agreements. From and after the date on
which the Agent shall notify Company and the assigning Bank that the foregoing
conditions shall have been satisfied and all consents (if any) required shall
have been given, the assignee thereunder shall be deemed to be a party to this
Agreement. To the extent that rights and obligations hereunder shall have been
assigned to such assignee as provided in such notice of assignment (and
Assignment Agreement), such assignee shall have the rights and obligations of a
Bank under this Agreement and the other Loan Documents (including without
limitation the right to receive fees payable hereunder in respect of the period
following such assignment). In addition, the assigning Bank, to the extent that
rights and obligations hereunder shall have been assigned by it as provided in
such notice of assignment (and Assignment Agreement), but not otherwise, shall
relinquish its rights and be released from its obligations under this Agreement
and the other Loan Documents.
In the event of an assignment by any Bank of any portion of its rights and
obligations hereunder and under the other Loan Documents, the assigning Bank
shall pay to its assignee a pro rata portion of all prepaid Letter of Credit
Fees received by the assigning Bank with respect to outstanding Letters of
Credit, based on the unexpired portion of the period for which such Letter of
Credit Fees have been prepaid.
Within five (5) Business Days following Company's receipt of notice from the
Agent that Agent has accepted and executed a notice of assignment and the duly
executed Assignment Agreement, Company shall, to the extent applicable, execute
and deliver to the Agent in exchange for any surrendered Note, new Note(s)
payable to the order of the assignee in an amount equal to the amount assigned
to it pursuant to such notice of assignment (and Assignment Agreement), and with
respect to the portion of the Indebtedness retained by the assigning Bank, to
the extent applicable, a new Note payable to the order of the assigning Bank in
an amount equal to the amount retained by such Bank hereunder shall be executed
and delivered by the Company and such amendments to the Collateral Documents as
Agent may require in order to evidence such assignment. Agent, the Banks and the
Company acknowledge and agree that any such new Note(s) shall be given in
renewal and replacement of the surrendered Notes and shall not effect or
constitute a novation or discharge of the Indebtedness evidenced by any
surrendered Note, and each such new Note shall contain a provision confirming
such agreement. In addition, promptly following receipt of such Notes, Agent
shall prepare and distribute to Company and each of the Banks a revised Exhibit
G to this Agreement setting forth the applicable new Percentages of the Banks
(including the assignee Bank), taking into account such assignment.
(e) Each Bank agrees that any participation agreement permitted hereunder
shall comply with all applicable laws and shall be subject to the following
restrictions (which shall be set forth in the applicable Participation
Agreement):
(i) such Bank shall remain the holder of its Notes hereunder,
notwithstanding any such participation;
(ii) except as expressly set forth in this Section 14.9(e) with
respect to rights of setoff and the benefits of Article 12
hereof, a participant shall have no direct rights or remedies
hereunder;
(iii) a participant shall not reassign or transfer, or grant any
sub-participations in its participation interest hereunder or any
part thereof; and
(iv) such Bank shall retain the sole right and responsibility to
enforce the obligations of the Company relating to the Notes and
Loan Documents, including, without limitation, the right to
proceed against any Guaranties, or cause Agent to do so (subject
to the terms and conditions hereof), and the right to approve any
amendment, modification or waiver of any provision of this
Agreement without the consent of the participant, except for
those matters covered by Section 14.12(a) through (e) hereof
(provided that a participant may exercise approval rights over
such matters only on an indirect basis, acting through such Bank,
and Company, Agent and the other Banks may continue to deal
directly with such Bank in connection with such Bank's rights and
duties hereunder), and shall otherwise be in form satisfactory to
Agent.
Company agrees that each participant shall be deemed to have the right of setoff
under Section 11.4 hereof (and under the comparable terms of the other Loan
Agreements), in respect of its participation interest in amounts owing under
this Agreement and the Loan Documents to the same extent as if the Indebtedness
were owing directly to it as a Bank under this Agreement, shall be subject to
the pro rata recovery provisions of Section 11.3 hereof (and under the
comparable terms of the other Loan Agreements), and that each participant shall
be entitled to the benefits of Article 12 hereof (and under the comparable terms
of the other Loan Agreements). The amount, terms and conditions of any
participation shall be as set forth in the participation agreement between the
issuing Bank and the Person purchasing such participation, and none of the
Company, the Agent and the other Banks shall have any responsibility or
obligation with respect thereto, or to any Person to whom any such participation
may be issued. No such participation shall relieve any issuing Bank of any of
its obligations under this Agreement or any of the other Loan Documents, and all
actions hereunder shall be conducted as if no such participation had been
granted.
(f) Nothing in this Agreement, the Loan Documents or the Notes, expressed
or implied, is intended to or shall confer on any Person other than the
respective parties hereto and thereto and their successors and assignees
permitted hereunder and thereunder any benefit or any legal or equitable right,
remedy or other claim under this Agreement, the Notes or the other Loan
Documents.
14.10 INDULGENCE. No delay or failure of Agent and the Banks in exercising
any right, power or privilege hereunder shall affect such right, power or
privilege nor shall any single or partial exercise thereof preclude any other or
further exercise thereof, nor the exercise of any other right, power or
privilege. The rights of Agent and the Banks hereunder are cumulative and are
not exclusive of any rights or remedies which Agent and the Banks would
otherwise have.
14.11 COUNTERPARTS. This Agreement may be executed in several counterparts,
and each executed copy shall constitute an original instrument, but such
counterparts shall together constitute but one and the same instrument.
14.12 AMENDMENT AND WAIVER. No amendment or waiver of any provision of this
Agreement or any other Loan Document, nor consent to any departure by Company
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks or, if this Agreement expressly so requires
with respect to the subject matter thereof, by all Banks (and, with respect to
any amendments to this Agreement or the other Loan Documents, by Company or the
Guarantors which are signatories thereto), and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all the Banks, do any of the following: (a)
subject the Banks to any additional obligations, (b) reduce the principal of, or
interest on, the Revolving Notes or any Fees or other amounts payable hereunder,
(c) postpone any date fixed for any payment of principal of, or interest on, the
Revolving Notes or any Fees or other amounts payable hereunder, (d) waive any
Event of Default specified in Sections 10.1(a) or (b) hereof, (e) release any
Guarantor, release or defer the granting or perfecting of a lien or security
interest in any Collateral or alter the required priority of any lien or
terminate or modify any indemnity provided to the Banks hereunder or under the
Loan Documents, except as shall be otherwise expressly provided in this
Agreement or any Loan Document, (f) take any action which requires the signing
of all Banks pursuant to the terms of this Agreement or any Loan Document, (g)
change the aggregate unpaid principal amount of the Notes which shall be
required for the Banks or any of them to take any action under this Agreement or
any Loan Document, or (h) change the definition of "Majority Banks" or this
Section 14.12; provided further, that no amendment, waiver or consent shall,
unless in writing signed by the Swing Line Bank do any of the following: (x)
reduce the principal of, or interest on, the Swing Line Note or (y) postpone any
date fixed for any payment of principal of, or interest on, the Swing Line Note;
and provided further, however, that no amendment, waiver, or consent shall,
unless in writing and signed by the Agent in addition to all the Banks, affect
the rights or duties of the Agent under this Agreement or any Loan Document. All
references in this Agreement to "Banks" or "the Banks" shall refer to all Banks,
unless expressly stated to refer to Majority Banks.
14.13 TAXES AND FEES. Should any documentary, stamp or similar tax (other
than a tax based upon the net income of any Bank or Agent imposed by the
jurisdiction in which such Bank or Agent have their respective principal
executive offices), or recording or filing fee become payable in respect of this
Agreement or any of the Loan Documents (or the execution, filing or recording
thereof) or any amendment, modification or supplement hereof or thereof, Company
agrees to pay the same together with any interest or penalties thereon and
agrees to hold the Agent and the Banks harmless with respect thereto.
14.14 CONFIDENTIALITY. Each Bank agrees that it will not disclose without
the prior written consent of Company (other than to its employees, to another
Bank or to its auditors or counsel) any information with respect to Company,
which is furnished pursuant to this Agreement or any of the Loan Documents;
provided that any Bank may disclose any such information (a) as has become
generally available to the public or has been lawfully obtained by such Bank
from any third party under no duty of confidentiality to Company, (b) as may be
required or appropriate in any report, statement or testimony submitted to, or
in respect to any inquiry, by, any municipal, state or federal regulatory body
having or claiming to have jurisdiction over such Bank, including the Board of
Governors of the Federal Reserve System of the United States, the Office of the
Comptroller of the Currency or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors, (c) as may be required or appropriate in respect to any summons or
subpoena or in connection with any litigation, (d) in order to comply with any
law, order, regulation or ruling applicable to such Bank, and (e) to any
permitted transferee or assignee or to any approved participant of, or with
respect to, the Notes, as aforesaid.
14.15 WITHHOLDING TAXES. If any Bank is not incorporated under the laws of
the United States or a state thereof, such Bank shall promptly deliver to the
Agent two executed copies of (i) Internal Revenue Service Form 1001 specifying
the applicable tax treaty between the United States and the jurisdiction of such
Bank's domicile which provides for the exemption from withholding on interest
payments to such Bank, (ii) Internal Revenue Service Form 4224 evidencing that
the income to be received by such Bank hereunder is effectively connected with
the conduct of a trade or business in the United States or (iii) other evidence
satisfactory to the Agent that such Bank is exempt from United States income tax
withholding with respect to such income. Such Bank shall amend or supplement any
such form or evidence as required to insure that it is accurate, complete and
non-misleading at all times. Promptly upon notice from the Agent of any
determination by the Internal Revenue Service that any payments previously made
to such Bank hereunder were subject to United States income tax withholding when
made, such Bank shall pay to the Agent the excess of the aggregate amount
required to be withheld from such payments over the aggregate amount actually
withheld by the Agent.
14.16 RELEASE OF COLLATERAL. Agent shall be entitled (for and on behalf of
itself and the Banks) to release any Collateral which Company or any of the
Guarantors is permitted to sell or transfer under the terms of this Agreement,
without notice to or any further action or consent of the Banks.
14.17 WAIVER OF JURY TRIAL. THE BANKS, THE AGENT AND THE COMPANY AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY
JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY
RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE BANKS, THE AGENT, NOR COMPANY
SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN
WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE
BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE BANKS AND THE AGENT OR
COMPANY EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
14.18 COMPLETE AGREEMENT; CONFLICTS. This Agreement, the Notes, any
Requests for Revolving Credit Advance and Requests for Swing Line Advance
hereunder, and the Loan Documents contain the entire agreement of the parties
hereto, superseding all prior agreements, discussions and understandings
relating to the subject matter hereof, and none of the parties shall be bound by
anything not expressed in writing. In the event of any conflict between the
terms of this Agreement and the other Loan Documents, this Agreement shall
govern.
14.19 SEVERABILITY. In case any one or more of the obligations of Company
under this Agreement, the Notes or any of the other Loan Documents shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining obligations of Company shall not in any way
be affected or impaired thereby, and such invalidity, illegality or
unenforceability in one jurisdiction shall not affect the validity, legality or
enforceability of the obligations of Company under this Agreement, the Notes or
any of the other Loan Documents in any other jurisdiction.
14.20 TABLE OF CONTENTS AND HEADINGS. The table of contents and the
headings of the various subdivisions hereof are for convenience of reference
only and shall in no way modify or affect any of the terms or provisions hereof.
14.21 CONSTRUCTION OF CERTAIN PROVISIONS. If any provision of this
Agreement or any of the Loan Documents refers to any action to be taken by any
Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person,
whether or not expressly specified in such provision.
14.22 INDEPENDENCE OF COVENANTS. Each covenant hereunder shall be given
independent effect (subject to any exceptions stated in such covenant) so that
if a particular action or condition is not permitted by any such covenant
(taking into account any such stated exception), the fact that it would be
permitted by an exception to, or would be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default or an Event of
Default.
14.23 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All terms, covenants,
agreements, representations and warranties of Company or any party to any of the
Loan Documents made herein or in any of the Loan Documents or in any
certificate, report, financial statement or other document furnished by or on
behalf of Company or any Guarantor in connection with this Agreement or any of
the Loan Documents shall be deemed to have been relied upon by the Banks,
notwithstanding any investigation heretofore or hereafter made by any Bank or on
such Bank's behalf, and those covenants and agreements of Company set forth in
Sections 3.9, 8.10, 8.13(c), 12.1, 12.6, 12.7 and 14.6 hereof (together with any
other indemnities of Company or any Guarantor contained elsewhere in this
Agreement or in any of the Loan Documents) and of Banks set forth in Section
14.14 hereof shall, notwithstanding anything to the contrary contained in this
Agreement, survive the repayment in full of the Indebtedness and the termination
of the Revolving Credit Aggregate Commitment.
14.24 EFFECTIVE UPON EXECUTIOn. This Agreement shall become effective upon
the execution hereof by Banks, Agent and Company and the issuance by Company of
the Revolving Credit Notes and the Swing Line Note hereunder, and shall remain
effective until the Indebtedness has been repaid and discharged in full and no
commitment to extend any credit hereunder or under any of the other Loan
Documents, whether optional or obligatory, remains outstanding.
14.25 PAYMENT OF CLOSING FEE AND OTHER FEES. Concurrent with the execution
and delivery of this Agreement, Company shall pay to the Agent all costs and
expenses required hereunder to be paid to Agent upon execution of this
Agreement.
<PAGE>
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, JPE, INC.
as Agent
By: /s/ James R. Grossett By: /s/ James J. Fahrner
James R. Grossett James J. Fahrner
Its: Vice President Its: Vice President and Chief
One Detroit Center Financial Officer
500 Woodward Avenue 900 Victor Way, Suite 140
9th Floor MC 3265 Ann Arbor, Michigan 48108
Detroit, Michigan 48226 Attn: James J. Fahrner
Attention: James R. Grossett Donna L. Bacon
Telephone (313) 662-2323
Facsimile No. (313) 662-0133
REVOLVING CREDIT BANKS:
Operations Contact: COMERICA BANK
Comerica Bank
One Detroit Center By: /s/ James R. Grossett
500 Woodward Ave. James R. Grossett
9th Floor MC 3289 Its: Vice President
Detroit, Michigan 48226 One Detroit Center
Attention: Sandra Fields 500 Woodward Avenue
Telephone No. (313) 222-5265 9th Floor, MC 3265
Detroit, Michigan 48226
Attention: James R. Grossett
Telephone: (313) 222-5502
Facsimile No. (313) 222-3776
Operations Contact: BANK ONE, DAYTON, NA
Bank One, Dayton, NA
Kettering Tower
40 N. Main By: /s/ Joey D. Williams
Dayton, Ohio 45401-1103 Joey D. Williams
Attention: Tracey Angie Its: Vice President
Telephone: (513) 449-8626 Kettering Tower
Facsimile: (513) 449-4885 40 N. Main
Dayton, OH 45402
Attention: James C. Koehler II
Telephone: (513) 449-8721
Facsimile No. (513) 449-4885
<PAGE>
Operations Contact: HARRIS TRUST AND SAVINGS BANK
Harris Trust and Savings Bank
111 W. Monroe, Floor 2W
Chicago, Illinois 60603 By: /s/ Peter J. Dancy
Attention: Arlett Hall Peter J. Dancy
Telephone: (312) 461-2786 Its: Vice President
Facsimile: (312) 461-2591 111 W. Monroe, Floor 2W
Chicago, Illinois 60670
Attention: Peter J. Dancy
Telephone: (312) 461-2735
Facsimile No. (312) 461-2591
Operations Contact: NBD BANK
NBD Bank
611 Woodward Avenue, 2nd Floor
Detroit, Michigan 48226 By: /s/ Erik W. Bakker
Attention: Sheryl Lopez Erik W. Bakker
Telephone: (313) 225-1686 Its: Vice President
Facsimile: (313) 225-2290 611 Woodward Avenue, 2nd Floor
Detroit, Michigan 48226
Attention: Erik Bakker
Telephone: (313) 225-2979
Facsimile No. (313) 225-2290
Operations Contact: NATIONAL BANK OF CANADA
National Bank of Canada
125 W. 55th Street
New York, NY 10019-8572 By: /s/ Jeffrey C. Angell
Telephone: (212) 632-8572 Jeffrey C. Angell
Facsimile: (212) 632-8509 Its: Vice President
and
By: /s/ Duane K. Bedard
Duane K. Bedard
Its: Vice President
27777 Franklin
Suite 1570
Southfield, Michigan 48034
Attention: Jeff Angell
Telephone: (810) 354-4800
Facsimile No. (810) 354-1768
<PAGE>
SWING LINE BANK:
Operations Contact: COMERICA BANK
Comerica Bank
One Detroit Center By: /s/ James R. Grossett
500 Woodward Ave. James R. Grossett
9th Floor MC 3289 Its: Vice President
Detroit, Michigan 48226 One Detroit Center
Attention: Sandra Fields 500 Woodward Avenue
Telephone No. (313) 222-5265 9th Floor, MC 3265
Detroit, Michigan 48226
Attention: James R. Grossett
Telephone: (313) 222-5502
Facsimile No. (313) 222-3776
THIS CREDIT AGREEMENT is made as of the 20th day of December, 1996.
B E T W E E N:
JPE CANADA INC.
(the "Borrower")
- and -
THE BANK OF NOVA SCOTIA,
(the "Lender")
RECITALS:
A. The Borrower requires credit facilities for general operating and corporate
purposes and for its acquisition of the property and assets of Pebra Inc.
pursuant to the Transaction.
B. By letter dated 11 December 1996, and accepted by the Borrower on 17
December, 1996 the Lender agreed to establish credits subject to, among
other things, the negotiation and execution of this Agreement.
C. The parties are entering into this Agreement to provide for the terms and
conditions of the credits.
NOW THEREFORE, for value received, and intending to be legally bound by
this Agreement, the parties agree as follows:
ARTICLE I
DEFINED TERMS
1.1 DEFINED TERMS
In this agreement, unless something in the subject matter or context is
inconsistent therewith:
1.1.1 "Advance" means a borrowing by the Borrower by way of Prime Rate
Advance, Base Rate Advance, acceptance of Bankers' Acceptances or issuance
of L/C's including deemed Advances and conversions, renewals and rollovers
of existing Advances, and any reference relating to the amount of Advances
shall mean the sum of all outstanding Prime Rate Advances and Base Rate
Advances plus the face amount of all outstanding Bankers' Acceptances and
L/C's.
1.1.2 "Agreement", "hereof", "herein", "hereto", "hereunder" or
similar expressions mean this Agreement and any Schedules hereto, as
amended, supplemented, restated and replaced from time to time.
1.1.3 "Agreement of Purchase and Sale" means without amendment, the
Agreement of Purchase and Sale dated November 15, 1996 made between Pebra
Inc. as Vendor and the Borrower as purchaser which agreement was referred
to in, and approved by, the Order of The Honourable Mr. Justice Houlden
dated November 20, 1996, in the matter of the Companies' Creditors
Arrangement Act and in the matter of a proposed plan of compromise or
arrangement for the creditors of Pebra Inc. and Pebra U.S. Incorporated.
1.1.4 "Bankers' Acceptance" means those drafts or bills of exchange in
Canadian Dollars drawn by the Borrower and accepted by the Lender pursuant
to this Agreement.
1.1.5 "Bankers' Acceptance Fee" means, on any day, the sum of:
(i) Lender's commercial Bankers' Acceptance fee, expressed
as a percentage, announced by the Lender on that day as a
reference fee for Bankers' Acceptances accepted or to be accepted
by the Lender; plus
(ii) the margin for the Bankers' Acceptances specified in
Section 7.2
and then multiplying the resultant sum by a fraction, the numerator of
which is the duration of its term on the basis of the actual number of
days to elapse from and including the date of acceptance of a Bankers'
Acceptance by the Lender up to but excluding the maturity date of the
Bankers' Acceptance, and the denominator of which is the number of
days in the calendar year in question.
1.1.6 "Base Rate" means, on any day, the greater of:
(a) the annual rate of interest (expressed as a percentage per
annum on the basis of a 360 day year) announced by the Lender on that
day as its reference rate for commercial loans made by it in Canada in
U.S. Dollars; and
(b) the Federal Funds Effective Rate plus 0.625% per annum.
1.1.7 "Base Rate Advance" means an Advance in U.S. Dollars bearing
interest based on the Base Rate.
1.1.8 "Borrower" means JPE Canada Inc., a corporation to which the
Ontario Business Corporations Act applies.
1.1.9 "Borrowing Base" means at any time, the aggregate of the
following amounts at that time:
(a) (i) 90% of accounts receivable owing to the Borrower by GM,
Ford Motor Company, Chrysler Corporation and all other automotive
original equipment manufacturers; plus
(ii) 75% of other good quality accounts receivable of the
Borrower (excluding the receivables referred to in (iii) below);
plus
(iii) 90% of the two tax receivables which are described as
Parcel 3 of the Agreement of Purchase and Sale, such receivables
being approximately $947,000 and $507,000 as of the date hereof;
(excluding from all such accounts receivable referred to in (i), (ii)
and (iii) above, accounts receivable outstanding for over 90 days,
accounts receivable in respect of tooling, accounts receivable due
from employees of the Borrower, amounts of off-sets and accounts
receivable due to the Borrower by a person related to, or affiliated
or associated with, or a partner or a joint venture of, the Borrower);
plus
(b) (i) 65% of the inventory and work-in-progress (excluding
tooling contracts) of the Borrower valued at the lower of the
Borrower's cost or the fair market value thereof; less
(ii) inventory which has been received from suppliers during
the 30 days immediately preceding that time, has not been paid
for and is in the same state as it was on delivery, less
(c) the amounts outstanding under Encumbrances over any of the
Property of the Borrower in favour of persons other than the Lender
which have or may have priority over the security in favour of the
Lender;
(provided that the amount in paragraph (b) shall not, in the
calculation of the Borrowing Base, exceed 50% of the amount of
paragraph (a), plus paragraph (b), less paragraph (c) provided further
that the proviso shall not apply until 90 days after the date hereof.)
1.1.10 "Branch of Account" means the Windsor Commercial Banking Centre
of the Lender at 388 Ouellette Avenue, P.O. Box 760, Windsor, Ontario,
Canada N9A 6P1.
1.1.11 "Business Day" means a day of the year, other than Saturday or
Sunday, on which the Lender is open for business at its executive offices
in Toronto, Ontario, at the Branch of Account, and, in respect of Base Rate
Advances, at its principal office in New York, New York.
1.1.12 "Canadian Dollars", "Cdn. Dollars", "Cdn. $" and "$" mean
lawful money of Canada.
1.1.13 "Change of Control" means, with respect to the Borrower the
Permitted Holder ceasing to beneficially own all of the capital stock of
the Borrower.
1.1.14 "Collateral" means cash, a bank draft or a letter of credit
issued by a Canadian chartered bank or US bank acceptable to the Lender,
all in a form satisfactory to the Lender.
1.1.15 "Constating Documents" means, with respect to a corporation,
its articles of incorporation, amalgamation or continuance or other similar
document as amended from time to time, and its by-laws, and with respect to
a partnership, its partnership agreement and any other relevant governing
documents.
1.1.16 "Contracts" means agreements, franchises, leases, easements,
servitudes, privileges and other rights acquired from Persons.
1.1.17 "Credit A" means the credit of Cdn. $12,000,000 or the U.S.
Dollar equivalent thereof in favour of the Borrower which is established by
this Agreement.
1.1.18 "Credit B" means the credit of Cdn. $2,000,000 or the U.S.
Dollar equivalent thereof in favour of the Borrower which is established by
this Agreement.
1.1.19 "Credit C" means the credit of Cdn. $12,740,000 in favour of
the Borrower which is established by this Agreement.
1.1.20 "Credit D" means the credit of Cdn. $2,000,000 in favour of the
Borrower which is established by this Agreement.
1.1.21 "Credit E" means the credit of Cdn. $20,000 in favour of the
Borrower which is established by this Agreement.
1.1.22 "Credits" means Credit A, Credit B, Credit C, Credit D and
Credit E.
1.1.23 "Credit Documents" means this Agreement and all other documents
relating to the Credit including, without limitation, the Security.
1.1.24 "Current Assets" on any date means with respect to a Person,
any Property of that Person that will be converted into cash in the normal
operation of the business of that Person within one year of that date as
disclosed in the financial statements of that Person prepared in accordance
with GAAP.
1.1.25 "Current Liabilities" means on any date with respect to a
Person, any liability of that Person that will be paid in the normal
operation of the business of that Person within one year of that date as
disclosed in the financial statements of that Person prepared in accordance
with GAAP.
1.1.26 "Debt" means, with respect to the Borrower, without duplication
and, without regard to any interest component thereof (whether actual or
imputed) that is not due and payable, the aggregate of the following
amounts, each calculated in accordance with GAAP:
(a) money borrowed (including, without limitation, by way of
overdraft) or indebtedness represented by notes payable, operating
agreements and drafts accepted representing extensions of credit;
(b) all obligations (whether or not with respect to the borrowing
of money) that are evidenced by bonds, debentures, notes or other
similar instruments, or that are not so evidenced but that would be
considered to be indebtedness for borrowed money;
(c) all liabilities upon which interest charges are customarily
paid by that person;
(d) any capital stock of the Borrower that, by its terms (or by
the terms of any security into which it is convertible or for which it
is exchangeable at the option of the holder), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking
fund obligation or otherwise, or is redeemable at the option of the
holder thereof, in whole or in part, on or prior to a Maturity Date
for cash or securities constituting Debt;
(e) all capital lease obligations and purchase money obligations;
(f) any guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of
business) in any manner of any part or all of an obligation included
in items (a) through (e) above, including contingent liabilities in
respect of letters of credit, letters of guarantee and surety bonds;
and
(g) any guarantee, loan or financial assistance provided by the
Borrower to or for the benefit of any Person;
but excluding trade payables and accrued liabilities that are Current
Liabilities incurred in the ordinary course of business.
1.1.27 "Debt to Tangible Net Worth Ratio" means at any time the ratio
of Debt plus Current Liabilities (less the non-current portion of deferred
Taxes and pension liability) of the Borrower at that time to the Tangible
Net Worth of the Borrower at that same time.
1.1.28 "Designated Account" means, in respect of any Advance, the
account or accounts maintained by the Borrower at the Branch of Account.
1.1.29 "Drawdown Date" means the date, which shall be a Business Day,
of any Advance.
1.1.30 "Encumbrance" means any mortgage, debenture, pledge, hypothec,
lien, charge, assignment by way of security, consignment, lease,
hypothecation, security interest (including a purchase money security
interest) or other security agreement, trust or arrangement having the
effect of security for the payment of any debt, liability or obligation,
and "Encumbrances", "Encumbrancer", "Encumber" and "Encumbered" shall have
corresponding meanings.
1.1.31 "Event of Default" has the meaning defined in Section 13.1.
1.1.32 "Exchange Rate" means, on any day, with respect to the exchange
of either of Canadian Dollars or U.S. Dollars (the "First Currency") into
the other of those currencies (the "Other Currency"), the spot buying rate
quoted by the Lender for purchases of the First Currency with the Other
Currency at noon (Toronto time) on such day, or if such rate is not or has
not yet been quoted on such day, such rate on the last day on which it was
quoted by the Lender except that, if the Exchange Rate is required to
determine the outstanding amount of Advances for a purpose that does not
involve the purchase of Canadian Dollars or U.S. Dollars, the Exchange Rate
shall be the noon spot rate of the Bank of Canada on that day.
1.1.33 "Excluded Taxes" means any Taxes now or hereafter imposed,
levied, collected, withheld or assessed on the Lender by Canada or any
other jurisdiction in which the Lender is subject to Tax as a result of the
Lender (i) carrying on a trade or business in such jurisdiction or being
deemed to do so, or having a permanent establishment in such jurisdiction;
(ii) being organized under the laws of such jurisdiction; (iii) being
resident or deemed to be resident in such jurisdiction or (iv) not dealing
at arm's length with the Borrower, but does not include any sales, goods or
services Tax payable under the laws of any such jurisdiction with respect
to any goods or services made available by the Lender to the Borrower under
this Agreement.
1.1.34 "Federal Funds Effective Date" means for any period, a
fluctuating interest rate per annum equal, for each day during such period,
to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, for any day on which that rate is not published for that day
by the Federal Reserve Bank of New York, the average of the quotations for
that day for such transactions received by the Lender from three Federal
Funds brokers of recognized standing.
1.1.35 "GAAP" means generally accepted accounting principles which are
in effect from time to time in Canada, as published in the handbook of the
Canadian Institute of Chartered Accountants.
1.1.36 "GM" means General Motors Corporation and/or General Motors of
Canada Limited.
1.1.37 "Guarantee" means a guarantee or indemnity or similar agreement
delivered to the Lender by a Guarantor in a form satisfactory to the
Lender.
1.1.38 "Guarantor" means JPE, Inc. or any other person who guarantees
payment or performance of the Obligations or a part thereof.
1.1.39 "Hazardous Materials" means any hazardous substance or any
pollutant or contaminant, toxic or dangerous waste, substance or material,
as defined in or regulated by any applicable law, regulation or
governmental authority from time to time, including, without limitation,
friable asbestos and poly-chlorinated biphenyls.
1.1.40 "Interest Payment Date" means (in connection with Prime Rate
Advances and Base Rate Advances) the 22nd day of each calendar month or if
that is not a Business Day, the Business Day next following.
1.1.41 "Lease" and "Lease Agreement" means a lease or conditional sale
contract between the Borrower as lessee and the Lender or Scotia Leasing as
lessor, and includes all supporting documentation required by the Lender or
Scotia Leasing in connection with the lease or conditional sale contract in
a form satisfactory to the Lender or Scotia Leasing.
1.1.42 "Lender" means The Bank of Nova Scotia.
1.1.43 "L/C" means, a commercial letter of credit or standby letter of
credit in a form satisfactory to the Lender issued by the Lender at the
request of the Borrower in favour of a third party to secure the payment or
performance of an obligation of the Borrower to the third party.
1.1.44 " Material Adverse Change" means a material adverse change (or
a series of adverse changes, none of which is material in and of itself,
but which cumulatively, result in a material adverse change) to the
financial condition, operations, assets, business, properties or prospects
of the person in relation to whom the term is used, to the ability of such
person to perform its obligations under any of the Credit Documents, to the
ability of the Lender to enforce any of such obligations or on the status
or priority of the Security on any of the Property of such person.
1.1.45 "Maturity Date" means:
(a) with respect to Credit A, the date on which the Lender
demands payment thereof;
(b) with respect to Credit B, the earlier of December 31, 1997
and the date on which the Lender demands payment thereof;
(c) with respect to Credit C, the earlier of December 20, 2001
and the date on which the Lender demands payment thereof in accordance
with the provisions of this Agreement;
(d) with respect to Credit D, the earlier of the maturity date
described in each Lease Agreement or the date on which the Lender or
Scotia Leasing demands payment thereof in accordance with the
applicable Lease Agreement; and
(e) with respect to Credit E, the earlier of the maturity date
described in the VISA Agreement or the date on which the Lender
demands payment thereof in accordance with the provisions of the VISA
Agreement.
1.1.46 "Obligations" means all obligations of the Borrower to the
Lender under or in connection with this Agreement, including but not
limited to all debts and liabilities, present or future, direct or
indirect, absolute or contingent, matured or not, at any time owing by the
Borrower to the Lender in any currency or remaining unpaid by the Borrower
to the Lender in any currency under or in connection with this Agreement,
whether arising from dealings between the Lender and the Borrower or from
any other dealings or proceedings by which the Lender may be or become in
any manner whatever a creditor of the Borrower under or in connection with
this Agreement, and wherever incurred, and whether incurred by the Borrower
alone or with another or others and whether as principal or surety, and all
interest, fees, legal and other costs, charges and expenses related to, or
incurred in connection with, the foregoing.
1.1.47 "Order" means the vesting order referred to in the definition
of Agreement of Purchase and Sale.
1.1.48 "Operating Cash Flow" means at any time in relation to the
Borrower for any period of time an amount equal to the net income or net
loss of the Borrower before:
(i) extraordinary items and unusual items for the period;
(ii) interest and financing charges on Debt for that period;
(iii) income taxes applicable to that period; and
(iv) depreciation and amortization for that period.
1.1.49 "Patent License Agreement" means the non-exclusive license
agreement between the Borrower and JPE, Inc. (the parent of the Borrower)
covering the intellectual property incorporating the right to licence to
make, have made, use and sell throughout the United States, its territories
and possessions, and Canada and Mexico, moulded parts using the plastic
injection moulding process that falls within the scope of one or more
claims of the patents and any other knowledge rights required by the
Borrower to continue its day-to-day operations from time to time.
1.1.50 "Pending Event of Default" means an event which would
constitute an Event of Default hereunder whether or not any requirement for
giving of notice, lapse of time, or both, or any other condition subsequent
to such event, has been satisfied.
1.1.51 "Permits" means governmental licenses, authorizations,
consents, registrations, exemptions, permits and other approvals required
by law.
1.1.52 "Permitted Encumbrances" means, with respect to any person, the
following:
(a) liens for taxes, rates, assessments or other governmental
charges or levies not yet due, or for which instalments have been paid
based on reasonable estimates pending final assessments, or if due,
the validity of which is being contested diligently and in good faith
by appropriate proceedings by that person in respect of which notice
has been given by the Borrower to the Lender and in respect of which
Collateral has been delivered to the Lender if requested by the
Lender;
(b) undetermined or inchoate liens, rights of distress and
charges incidental to current operations which have not at such time
been filed or exercised and of which the Lender has been given notice,
or which relate to obligations not due or payable, or if due, the
validity of which is being contested diligently and in good faith by
appropriate proceedings by that person and in respect of which notice
has been given by the Borrower to the Lender and in respect of which
Collateral has been delivered to the Lender if requested by the
Lender;
(c) reservations, limitations, provisos and conditions expressed
in any original grants from the Crown or other grants of real or
immovable property, or interests therein, which do not in the opinion
of the Lender affect the use of the affected land for the purpose for
which it is used by that person;
(d) licenses, easements, rights-of-way and rights in the nature
of easements (including, without limiting the generality of the
foregoing, licenses, easements, rights-of-way and rights in the nature
of easements for sidewalks, public ways, sewers, drains, gas, steam
and water mains or electric light and power, or telephone and
telegraph conduits, poles, wires and cables) which will not in the
reasonable opinion of the Lender impair the use of the affected land
for the purpose for which it is used by that person;
(e) title defects or irregularities and restrictive covenants
which are of a minor nature and which in the aggregate will not in the
reasonable opinion of the Lender impair the use of the affected
property for the purpose for which it is used by that person;
(f) the right reserved to or vested in any municipality or
governmental or other public authority by the terms of any lease,
license, franchise, grant or permit acquired by that person or by any
statutory provision to terminate any such lease, license, franchise,
grant or permit, or to require annual or other payments as a condition
to the continuance thereof;
(g) the Encumbrance resulting from the deposit of cash or
securities in connection with contracts, tenders or expropriation
proceedings, or to secure workmen's compensation, unemployment
insurance, surety or appeal bonds, costs of litigation when required
by law, liens and claims incidental to current construction,
mechanics', warehousemen's, carriers' and other similar liens, and
public, statutory and other like obligations incurred in the ordinary
course of business;
(h) security given to a public utility or any municipality or
governmental authority when required by such utility or authority in
connection with the operations of that person in the ordinary course
of its business;
(i) the following security interests which are registered as of
this date in favour of Municipal Financial Leasing Corporation (for
office machines); AT & T Capital Canada Inc., for a photocopier and
sorter; Xerox Canada Ltd. for Xerox equipment; Newcourt Financial Ltd.
and Newcourt Credit Group Inc. for certain Nissan motor vehicles; and
GMAC Leaseco Ltd. for a motor vehicle;
(j) the "Kitchener Permitted Encumbrances" with respect to the
Real Property known as 675 Trillium Drive, Kitchener, Ontario and the
"Peterborough Permitted Encumbrances" with respect to the Real
Property known as 775 Technology Drive, Peterborough, Ontario, as
those terms are defined in the Order; and
(k) other Encumbrances agreed to in writing by the Lender.
1.1.53 "Permitted Holder" means JPE, Inc., a Michigan corporation.
1.1.54 "Person" or "person" means any individual, corporation,
company, partnership, unincorporated association, trust, joint venture,
estate or other judicial entity or any governmental body or other entity of
any kind.
1.1.55 "Prime Rate" means, on any day, the greater of:
(a) the annual rate of interest expressed as a percentage per
annum announced by the Lender on that day as its reference rate for
commercial loans made by it in Canada in Canadian Dollars; and
(b) the average rate for 30 day Canadian Dollar bankers'
acceptances that appears on the Reuters Screen CDOR Page at 10:00 a.m.
Toronto time on that day, plus 3/4% per annum.
The Lender shall on request give notice to the Borrower of the Prime Rate
from time to time and such notice shall be conclusive and binding for all
purposes absent manifest error.
1.1.56 "Prime Rate Advance" means an Advance in Canadian Dollars
bearing interest based on the Prime Rate.
1.1.57 "Property" means, with respect to any person, all of its
present and future undertaking, property and assets.
1.1.58 "Real Property" means the real property described in Section
8.1 and all buildings and improvements thereon.
1.1.59 "Requirement of Law" means, as to any person, any law, treaty,
regulation, ordinance, decree, judgment, order or similar requirement made
or issued under sovereign or statutory authority and applicable to or
binding upon that person, or to which that person or any of its Property is
subject.
1.1.60 "Revolving Period" has the meaning defined in Section 2.2.
1.1.61 "Scotia Lease Base Rate" means on any day, the annual rate of
interest expressed as a percentage per annum announced by the Scotia
Leasing on that date as its reference rate for commercial lease or
conditional sale contract loans made by Scotia Leasing in Canada in
Canadian dollars.
1.1.62 "Scotia Leasing" means the business carried on by the Lender
under the name "Scotia Leasing".
1.1.63 "Section" means the designated section of this Agreement.
1.1.64 "Security" means the security held from time to time by or for
the Lender receiving or intended to secure repayment or performance of the
Obligations or a part thereof, including the security described in Section
8.1.
1.1.65 "Taxes" means all taxes, levies, imposts, stamp taxes, duties,
deductions and similar impositions (other than withholding taxes) payable,
levied, collected or assessed as of the date of this Agreement or at any
time in the future, and "Tax" shall have a corresponding meaning.
1.1.66 "Tangible Net Worth" means at any time in relation to the
Borrower, the sum of the following at that time:
(a) share capital, earned and contributed surplus and funds
payment of which are formally postponed or subordinated to payment in
full of the Obligations, less the sum of
(b) (i) amounts due from officers and affiliates of the Borrower;
plus
(ii) investments in affiliates of the Borrower; and plus
(iii) intangible assets of the Borrower as defined by the
Lender from time to time.
1.1.67 "Transaction" means the purchase by the Borrower of
substantially all of the assets of Pebra Inc. pursuant to the Agreement of
Purchase and Sale.
1.1.68 "U.S. Dollars" and "U.S. $" mean lawful money of the United
States of America.
1.1.69 "VISA Agreement" means the Lender's standard form of cardholder
agreement from time to time entered into between the Borrower or a holder
to whom, or on behalf of whom a visa card is issued, and the Lender.
ARTICLE II
CREDIT A
2.1 AMOUNT AND AVAILMENT OPTIONS
Upon and subject to the terms and conditions of this Agreement, the Lender
agrees to provide a credit for the use of the Borrower in the amount of Cdn.
$12,000,000 or the U.S. Dollar equivalent thereof. At the option of the Borrower
prior to the Maturity Date, Credit A may be used by requesting Prime Rate
Advances to be made by the Lender, by requesting Base Rate Advances to be made
by the Lender, by presenting drafts or bills of exchange to the Lender for
acceptance as Bankers' Acceptances, and by requesting that an L/C be issued by
the Lender up to an aggregate amount of Advances by way of L/C's outstanding at
any time of not more than Cdn.$1,000,000.
2.2 REVOLVING CREDIT A
Credit A is a revolving credit available at the sole discretion of the
Lender and is subject to periodic review and to no Material Adverse Change
occurring in the financial condition or the environmental condition of the
Borrower or any Guarantor. The principal amount of any Advance under Credit A
that is repaid during the Revolving Period may be reborrowed during the
Revolving Period from time to time, subject to the terms of this Agreement.
2.3 USE OF CREDIT A
Credit A shall only be used for general operating purposes of the Borrower
including assisting the Borrower in its purchase of the assets of Pebra Inc.
2.4 TERM AND REPAYMENT
All Obligations under Credit A shall, in any event, be repaid in full on or
before the Maturity Date.
2.5 EXCHANGE RATE FLUCTUATIONS
If fluctuations in rates of exchange in effect between Canadian Dollars and
U.S. Dollars cause the amount of Advances (expressed in Canadian Dollars based
on the Exchange Rate in effect from time to time) to the Borrower to exceed the
amount of Credit A, the Borrower shall pay the Lender forthwith such amount as
is necessary to repay the entire excess. If the Borrower is unable to
immediately pay that amount because Bankers' Acceptances have not matured, the
Borrower shall, forthwith, make a deposit of cash with the Lender in the amount
of the excess, and deliver an irrevocable undertaking to the Lender to use the
cash to repay the Bankers' Acceptances immediately at the end of the maturity of
the applicable Bankers' Acceptances, if the excess continues to exist at that
time. Nothing in this Section shall, however, entitle the Borrower to obtain
Advances (through rollovers, conversions or otherwise) if, after such Advances
were made, the aggregate amount of Advances outstanding would exceed the amount
of Credit A.
ARTICLE III
CREDIT B
3.1 AMOUNT AND AVAILMENT OPTIONS
Upon and subject to the terms and conditions of this Agreement, and the
delivery of a Guarantee by JPE, Inc. the Lender agrees to provide a credit for
the use of the Borrower in the amount of Cdn. $2,000,000 or the U.S. Dollar
equivalent thereof. At the option of the Borrower prior to the Maturity Date,
Credit B may be used by requesting Prime Rate Advances to be made by the Lender,
by requesting Base Rate Advances to be made by the Lender, or by presenting
drafts or bills of exchange to the Lender for acceptance as Bankers'
Acceptances.
3.2 REVOLVING CREDIT B
Credit B is a revolving credit. Subject to Section 3.4 and to the other
terms of this Agreement, the principal amount of any Advance under Credit B that
is repaid may be reborrowed from time to time.
3.3 USE OF CREDIT
Credit B shall only be used to finance the Borrower's peak operating
requirements.
3.4 TERM AND REPAYMENT
All Obligations under Credit B shall, in any event, be repaid in full on or
before the Maturity Date.
3.5 EXCHANGE RATE FLUCTUATIONS
If fluctuations in rates of exchange in effect between Canadian Dollars and
U.S. Dollars cause the amount of Advances (expressed in Canadian Dollars based
on the Exchange Rate in effect from time to time) to the Borrower to exceed the
amount of Credit B, the Borrower shall pay the Lender forthwith such amount as
is necessary to repay the entire excess. If the Borrower is unable to
immediately pay that amount because Bankers' Acceptances have not matured, the
Borrower shall forthwith make a deposit of cash with the Lender in the amount of
the excess, and deliver an irrevocable undertaking to the Lender to use the cash
to repay Bankers' Acceptances immediately at the end of the applicable maturity
of the applicable Bankers' Acceptances, if the excess continues to exist at that
time. Nothing in this Section shall, however, entitle the Borrower to obtain
Advances (through rollovers, conversions or otherwise) if, after such Advances
were made, the aggregate amount of Advances outstanding would exceed the amount
of Credit B.
ARTICLE IV
CREDIT C
4.1 AMOUNT
Upon and subject to the terms and conditions of this Agreement, the Lender
agrees to provide a credit for the use of the Borrower in the amount of Cdn.
$12,740,000. Credit C may be used by requesting Prime Rate Advances to be made
by the Lender.
4.2 NON-REVOLVING CREDIT C
Credit C is a non-revolving credit. The principal amount of any Advance
under Credit C that is repaid may not be reborrowed.
4.3 USE OF CREDIT C
Credit C shall only be used to finance the purchase by the Borrower of the
assets of Pebra Inc.
4.4 TERM AND REPAYMENT
Subject to the terms and conditions of this Agreement, Credit C is
available up to but not after January 31, 1997. The amount of Credit C undrawn
on January 31, 1997 iscancelled. The aggregate principal amount of Advances
under Credit C shall be repaid as follows:
(a) on the first day of the tenth month (in this paragraph the
"First Payment Date") after the month of the first Advance and on the
first day of each month after the First Payment Date for the next
succeeding fourteen months, the Borrower shall pay the Lender Cdn.
$100,000;
(b) on the first day of the fifteenth month after the First
Payment Date for the next succeeding thirty-five months, the Borrower
shall pay the Lender Cdn. $189,000; and
(c) on the first day of the sixtieth month after the first
Advance, the Borrower shall by pay the Lender the full amount of the
Obligations outstanding under Credit C.
4.5 PREPAYMENTS
Subject to giving two days' prior written notice to the Lender, the
Borrower may from time to time repay Advances outstanding under Credit C, in
whole or in part, without penalty. Prepayments of principal shall be applied
against installments of principal in the inverse order of their maturities.
ARTICLE V
CREDIT D
5.1 AMOUNT
Upon and subject to the terms and conditions of this Agreement, the Lender
agrees to provide a credit for the use of the Borrower in the amount of Cdn.
$2,000,000. Credit D may be used by requesting Prime Rate Advances to be made by
the Lender in amounts of not less than Cdn. $500,000 and by the Borrower
entering into a Lease Agreement. Equipment to be subject to a Lease Agreement
under this Credit D must first be acceptable to the Lender in its sole
discretion.
5.2 NON-REVOLVING CREDIT D
Credit D is a non-revolving Credit. The principal amount of any Advance
under Credit D that is repaid may not be reborrowed.
5.3 USE OF CREDIT D
Credit D shall only be used to finance the Borrower's 1997 capital
expenditure program a copy of which has been previously delivered to the Lender
in connection with the Credits.
5.4 TERM AND REPAYMENT
Subject to the terms and conditions of this Agreement, Credit D is
available up to but not after December 31, 1997. The amount of Credit D undrawn
on December 31, 1997 is cancelled. The principal amount of Advances under Credit
D shall be repaid on the earlier of the Maturity Date and the repayment
provisions contained in the applicable Lease Agreements. The term of a Lease
Agreement under Credit D shall not exceed five years.
5.5 PREPAYMENTS
The Borrower shall not have the right to prepay any Advances made under
Credit D in advance of the date on which payments are due in accordance with the
applicable Lease Agreement.
ARTICLE VI
CREDIT E AND ADDITIONAL FACILITY
6.1 AMOUNT
Upon and subject to the terms and conditions of this Agreement, the Lender
agrees to provide a credit for the use of the Borrower in the amount of Cdn.
$20,000. Credit E may be used only by the Borrower entering into a VISA
Agreement.
6.2 TERM AND REPAYMENT
Subject to the terms and conditions of this Agreement, Advances under
Credit E are available only during the period of time that Advances under Credit
A are available.
6.3 ADDITIONAL FACILITY
Subject to availability and the execution by the Borrower of an interest
swap agreement in a form satisfactory to the Lender incorporating the applicable
terms and conditions of this Agreement and the Credit Documents including the
Security and incorporating other applicable terms acceptable to the Lender, the
Borrower shall have the option until December 31, 1997, provided no Pending
Event of Default or Event of Defaulthas occurred, to enter into interest rate
swap transactions. Any such transactions shall be limited to Canadian and U.S.
dollars only, for terms not exceeding five years, with the aggregate amounts of
all outstanding transactions at any one time not to exceed Cdn. $12,740,000 or
U.S. dollar equivalent.
ARTICLE VII
ADVANCES BY THE LENDER,
INTEREST RATES AND FEES
7.1 ADVANCES BY THE LENDER
As more particularly described in Section 2.1 with respect to Credit A,
Section 3.1 with respect to Credit B, Section 4.1 with respect to Credit C,
Section 5.1 with respect to Credit D and Section 6.1 with respect to Credit E
and subject to the terms and conditions of this Agreement, the Lender will make
Advances to the Borrower by way of Prime Rate Advances, Base Rate Advances, the
acceptance of Bankers' Acceptances and the issuance of L/C's.
7.2 INTEREST RATES AND BANKERS' ACCEPTANCE FEES
Interest shall be payable as follows:
(a) on Prime Rate Advances:
(i) at the Prime Rate plus 0.625% per annum with respect to
Prime Rate Advances under Credit A;
(ii) at Prime Rate plus 1.50% per annum with respect to
Prime Rate Advances under Credit B;
(iii) at Prime Rate plus 0.875% per annum with respect to
Prime Rate Advances under Credit C and Credit D; and
(iv) at the rate set out in the VISA Agreement from time to
time with respect to Advances under Credit E;
(b) on Base Rate Advances:
(i) at the Base Rate plus 0.625% per annum with respect to
Base Rate Advances under Credit A; and
(ii) at the Base Rate plus 1.50% per annum with respect to
Base Rate Advances under Credit B;
The margin for the Bankers' Acceptance Fee calculation shall be:
(c) 0.625% per annum with respect to Bankers' Acceptances under
Credit A and;
(d) 1.50% per annum with respect to Bankers' Acceptances under
Credit B.
Notwithstanding the foregoing, after the first anniversary of the first
Advance the margin on the interest rate and Bankers' Acceptance Fees applicable
to Credit A shall be adjusted to the following:
<TABLE>
<CAPTION>
Debt to Tangible Margin on Prime Rate Margin on Bankers'
Net Worth Ratio and Base Rate Advances Acceptance Fee
- --------------- ---------------------- --------------
<S> <C> <C>
Under 3.0 to 1 0.500% 0.500%
Under 2.0 to 1 0.250% 0.250%
</TABLE>
and the margin on the interest rate applicable to Credit C shall be adjusted to
the following:
<TABLE>
<CAPTION>
Debt to Tangible Net Worth Ratio Margin on Prime Rate Advances
- -------------------------------- -----------------------------
<S> <C>
Under 3.0 to 1 0.750%
Under 2.0 to 1 0.375%
</TABLE>
All percentage figures above represent percent per annum. Interest on Prime
Rate Advances and Base Rate Advances shall be the Prime Rate and Base Rate,
respectively, plus the relevant figure shown under the heading "Margin on Prime
Rate and Base Rate Advances" or Margin on Prime Rate Advances" above,
respectively. The margin used in the calculation of the Bankers' Acceptance Fee
shall be the relevant figure shown under "Margin on Bankers' Acceptance Fee"
above.
Every increase or decrease in the interest rate or fees resulting from a
change in the Debt to Tangible Net Worth Ratio shall be effective as of the date
on which a certificate from the Borrower satisfactory to the Lender concerning
the calculation of the ratio was due in accordance with Section 12.2, except
that if a certificate from the Borrower is late in being delivered to the
Lender, any resulting decrease shall be effective only as of the date that a
certificate satisfactory to the Lender is actually received by the Lender. Fees
relating to Bankers' Acceptances advanced before the effective date of the
decrease will not be adjusted. Notwithstanding the foregoing, the Borrower shall
pay the Lender a minimum fee of $100 per transaction involving Advances by way
of Bankers Acceptance.
7.3 FIXED RATE OPTION
The Borrower shall have the option to fix the interest rate under any Lease
Agreement entered into under Credit D for the balance of the term of that Lease
Agreement provided:
(a) no Event of Default or Pending Event of Default has occurred;
(b) written notice of the exercise of the option is delivered to
the Lender by the Borrower before the commencement of the last third
of that Lease Agreement; and
(c) the Lender's fee, to be set by the Lender from time to time,
is paid to the Lender by the Borrower at the time of the exercise of
the option.
Upon the exercise of the option, in accordance with the foregoing, the interest
rate applicable to Advances under the Lease Agreement in respect of which the
option is being exercised, shall be the Scotia Lease Base Rate in effect at the
time of the exercise of the option plus 1.750% per annum, calculated and payable
monthly, and the new rate shall be effective:
(i) from and after the next regular payment date (herein the
"Next Date") as provided for under the applicable Lease Agreement
(provided the Next Date is at least ten days after the receipt by
the Lender of the notice); or
(ii) from and after the regular payment date after the Next
Date (if the Next Date is less than ten days after the receipt of
the Lender of the notice).
7.4 L/C FEES
Fees shall be payable in respect of L/C's (which are standby letters of
credit) issued under Credit A at a rate of 1.625%, subject to the Lender's
minimum fee applicable from time to time. Fees shall be payable in respect of
L/C's (which are commercial letters of credit) issued under Credit A at rates to
be agreed from time to time between the Borrower and the Lender in advance of
the issuance of any such L/C's provided that such rates will not exceed the
rates applicable to L/C's which are standby letters of credit. Fees shall be
calculated on the face amount of the L/C's based on increments of thirty days'
or multiples thereof, from and including the issuance date, with periods of less
than thirty days being calculated as periods of thirty days. Fees are to be paid
on the issuance date of the L/C's.
7.5 FEES
The Borrower shall pay to the Lender a non-refundable fee of Cdn. $1,000:
(a) on each occasion on which the Borrower is late in providing
information to the Lender in accordance with Section 12.2.1 of this
Agreement; and
(b) on each occurrence of an Event of Default.
The fees shall be paid under paragraph (a) forthwith on each such occasion and
under paragraph (b) on the first day of the month following the occurrence of an
Event of Default and the fees shall continue to be paid on the first day of each
month thereafter while the particular occurrence continues.
The payment and collection of such fees shall not constitute an express or
implied waiver by the Lender of any provision of this Agreement or the Credit
Documents or the enforcement by the Lender or the right to enforce by the
Lender, of either this Agreement or any of the Credit Documents.
ARTICLE VIII
SECURITY
8.1 SECURITY
The Security includes the following, all in a form and substance
satisfactory to the Lender:
(a) first ranking registered general assignment of book debts of
the Borrower;
(b) first ranking security by the Borrower under Section 427 of
the Bank Act;
(c) first ranking registered demand debenture of the Borrower in
the principal amount of $35,000,000 secured by a first fixed charge
over real estate located at 775 Technology Drive (formerly Neal
Drive), Peterborough, Ontario and 675 Trillium Drive, Kitchener,
Ontario and over all equipment machinery, vehicles and other tangible
personal property and by a floating charge over all other assets;
(d) first ranking registered general security agreement over all
Property of the Borrower;
(e) first ranking registered assignment of the Patent License
Agreement including the right of the Lender, on default by the
Borrower, to assign the Patent License Agreement to a third party
purchaser without consent to permit the third party purchaser the
right to use the intellectual property for a perpetual period at a
nominal consideration of 11/2% of the net selling price of all parts
pertaining to the patent rights relating to the "Blow-out Vent Valve"
and "Self-contained Gas Injector" referred to in Section 9.1.1 (k),
sold by or on behalf of the Licensee with an annual minimum royalty,
regardless of sales levels of such parts, of $25,000;
(f) insurance covering fire (whether by accident or arson) theft,
water damage, collapse and all other perils and risks in respect of
all of the Property of the Borrower for full replacement value with
loss payable to the Lender as its interest may appear as a first
ranking creditor and containing a mortgage clause satisfactory to the
Lender and naming the Lender as an additional named insured;
(g) comprehensive general liability and umbrella insurance in an
aggregate amount acceptable to the Lender and in an amount of not less
than $2,000,000 with respect to each occurrence for equipment under
each Lease Agreement with the umbrella to follow the form of the
comprehensive general liability portion of the policy;
(h) an operating credit line agreement with respect to Credit A,
in the Lender's standard form;
(i) a reimbursement agreement with respect to L/C's which are
standby letters of credit, in the Lender's standard form;
(j) an agreement for commercial letters of credit, in the
Lender's standard form;
(k) a Guarantee by JPE, Inc. in the principal amount of Cdn.
$2,000,000 or U.S. Dollar equivalent in a form acceptable to the
Lender with respect to, and as additional security for, Advances under
Credit B;
(l) Lease Agreements with respect to each Advance under Credit D;
(m) a Bankers' Acceptance agreement in the Lender's standard
form;
(n) an agreement of JPE, Inc. to deliver the JPE, Inc. financial
statements and certificate of JPE, Inc. referred to under Section
12.2.1 (g) and (h) to the Borrower and the Lender in a form acceptable
to the Lender; and
(nn) a postponement agreement for Cdn. $2,000,000 by JPE, Inc. in
respect of a Cdn. $2,000,000 loan by JPE, Inc. to the Borrower,
together with delivery to the Lender of the note evidencing the loan;
(o) such other documents as the Lender may or its solicitor
reasonably require;
ARTICLE IX
DISBURSEMENT CONDITIONS
9.1 DISBURSEMENT CONDITIONS
9.1.1 At or before the time of the first Advance under this Agreement,
and in any event by January 31, 1997, the Lender shall have received the
following, each in full force and effect and in form and substance
satisfactory to the Lender and its solicitors:
(a) the latest consolidated financial statements if available for
the Borrower;
(b) certified copies of the Constating Documents of the Borrower,
a certificate of incumbency of the Borrower and a certificate as to
the identity and title of the officer of each other person executing
the Credit Documents;
(c) a certified copy of the corporate proceedings taken by the
Borrower authorizing it to execute, deliver and perform its
obligations under the Credit Documents to which it is a party;
(d) evidence or documents satisfactory to the Lender which
disclose that the Encumbrances affecting the Property of the Borrower
are limited to the Permitted Encumbrances;
(e) evidence satisfactory to the Lender that all applicable fees
payable to the Lender have been paid in full;
(f) a certified copy of a Phase I and Phase II Environmental
Report with respect to the Real Property confirming, to the
satisfaction of the Lender in its sole discretion that there are no
material adverse environmental issues affecting the Real Property;
(g) a certificate of the Borrower that the Agreement of Purchase
and Sale has been completed, or will be completed, coincident with the
first Advance under this Agreement, in accordance with all of the
terms of the Agreement of Purchase and Sale without amendment or
waiver of any terms and conditions or with amendments and waivers
which have been approved in writing prior to the completion of the
Agreement of Purchase and Sale by GM and by the Lender;
(h) the certificates referred to in paragraphs 3(a), 3(d) and
3(e) of the Order and delivery of copies of the bill of sale and deeds
referred to in paragraphs 3(b) and 3(c) of the Order;
(i) confirmation, satisfactory to the Lender, that the provisions
of the Bulk Sales Act have been complied with respect to the
completion of the Agreement of Purchase and Sale or that the
Transaction is exempt from such provisions;
(j) evidence satisfactory to the Lender and its solicitors that
the Security has been delivered and registered as requested by the
Lender except that until Advances are requested under Credit B, the
Guarantee of JPE, Inc. is not required to have been delivered;
(k) a certificate of the Borrower that the Agreement of Purchase
and Sale entered into between JPE Inc and Pebra GmbH Paul Braunik with
respect to the title to all world-wide intellectual property rights
relating to the "Blow-Out Vent Valve" and "Self-contained Gas
Injector" has been completed and that JPE, Inc. is the beneficial
owner thereof and has agreed to promptly register such ownership
wherever required to reflect such ownership following the completion
of the Transaction and in any event within 90 days thereof and that
the Patent License Agreement is in full force and effect unamended;
(l) certified true copies of the written verification and
confirmation of GM referred to in paragraph 6.5 of the Agreement of
Purchase and Sale;
(m) evidence satisfactory to the Lender that there has been no
appeal of the Order; and
(n) evidence satisfactory to the Lender that the Borrower has
entered into a long term supply contract with GM which supports, in a
manner satisfactory to the Lender, the projections and pro-forma
financial statements previously supplied by the Borrower to the Lender
in connection with the Credits and a certified true copy of the said
contract;
(o) a certificate of JPE, Inc. that it is the registered and
beneficial owner of all of the issued and outstanding shares in the
capital stock of the Borrower;
(p) evidence satisfactory to the Lender that all commitment fees
payable to the Lender in connection with the Credits have been paid in
full;
(q) a certificate of the Borrower as to the Borrowing Base in a
form and substance satisfactory to the Lender;
(r) an opening draft balance sheet of the Borrower reflecting
actual values of the Property acquired under the Agreement of Purchase
and Sale;
(s) the opinions of counsel to the Borrower and addressed to the
Lender and to Messrs. Borden & Elliot, substantially in the form
attached as Schedule A;
(t) the opinion of Messrs. Borden & Elliot, addressed to the
Lender in a form satisfactory to the Lender; and
(u) all other documents reasonably required by the Lender to give
effect to the terms of this Agreement including the Security.
9.1.2 The obligation of the Lender to make the first Advance is
subject to the Lender being satisfied that no Material Adverse Change has
occurred in the financial position or condition of the Borrower.
9.1.2.1 The obligation of the Lender to make the first Advance under
Credit B is subject to the disbursement conditions contained in Section
9.1.1 having been met to the Lender's satisfaction, the Lender having
satisfied that no Material Adverse Change has occurred in the financial
position or condition of the Borrower or of the Guarantor and to the
Lender's having received the following, each in full force and effect, and
in form and substance satisfactory to the Lender and its solicitors:
(a) the Guarantee of JPE, Inc. referred to in Section 8.1 (l);
(b) certified copies of the Constating Documents of the
Guarantor, a certificate of incumbency of the Borrower and a
certificate as to the identity and title of the officer of each other
person executing the Credit Documents;
(c) a certified copy of the corporate proceedings taken by the
Guarantor authorizing it to execute, deliver and perform its
obligations under the Guarantee;
(d) opinions of counsel to the Guarantor addressed to the Lender,
the Lender's United States counsel and to Messrs. Borden & Elliot, in
a form satisfactory to the Lender's United States counsel and to
Messrs. Borden & Elliot;
(e) all other documents reasonably required by the Lender to give
effect to the Guarantee.
9.1.3 CONDITIONS PRECEDENT TO ALL ADVANCE
The obligation of the Lender to make any Advance is subject to the
conditions precedent that:
(a) no Event of Default or Pending Event of Default has occurred
and is continuing on the Drawdown Date, or would result from making
the Advance;
(b) the Lender has received timely notice as required under
Section 10.4 (except only with respect to the first Advance); and
(c) all other terms and conditions of this Agreement upon which
the Borrower may obtain an Advance are fulfilled.
ARTICLE X
ADVANCES
10.1 PRIME RATE AND BASE RATE ADVANCES
Upon timely fulfilment of all applicable conditions as set forth in this
Agreement, the Lender, in accordance with the procedures set forth in Section
10.4, will make the requested amount of a Prime Rate Advance or Base Rate
Advance available to the Borrower on the Drawdown Date requested by the Borrower
by crediting the Designated Account with such amount. The Borrower shall pay
interest to the Lender at the Branch of Account on any such Advances outstanding
from time to time hereunder at the applicable rates of interest specified in
Section 7.2.
Interest on Prime Rate Advances and Base Rate Advances shall be payable
monthly in arrears on each Interest Payment Date. All interest shall accrue from
day to day and shall be payable in arrears for the actual number of days elapsed
from and including the date of Advance or the previous date on which interest
was payable, as the case may be, to, but excluding the date, on which interest
is payable, both before and after maturity, default and judgment, with interest
on overdue interest at the same rate payable on demand.
Interest calculated with reference to the Prime Rate shall be calculated
monthly on the basis of a calendar year. Interest calculated with reference to
the Base Rate shall be calculated monthly on the basis of a year of 360 days.
Each rate of interest which is calculated with reference to a period (the
"deemed interest period") that is less than the actual number of days in the
calendar year of calculation is, for the purposes of the Interest Act (Canada),
equivalent to a rate based on a calendar year calculated by multiplying such
rate of interest by the actual number of days in the calendar year of
calculation and dividing by the number of days in the deemed interest period.
10.2 EVIDENCE OF INDEBTEDNESS
The indebtedness of the Borrower resulting from Prime Rate Advances and
Base Rate Advances made by the Lender shall be evidenced by records maintained
by the Lender. The Lender shall also maintain records relating to Bankers'
Acceptances that it has accepted. The records maintained by the Lender shall
constitute, in the absence of manifest error, prima facie evidence of the
indebtedness of the Borrower to the Lender and all details relating thereto. The
failure of the Lender to correctly record any such amount or date shall not,
however, adversely affect the obligation of the Borrower to pay amounts due
hereunder to the Lender in accordance with this Agreement.
10.3 CONVERSIONS
Subject to the other terms of this Agreement including, without limitation
terms applicable to the minimum amount of each Advance, the Borrower may from
time to time convert all or any part of the outstanding amount of any Advance
under one of the Credits into another form of Advance permitted by this
Agreement under the same Credit.
10.4 NOTICE OF ADVANCES
The Borrower shall give the Lender irrevocable written notice of any
request for any Advance under the Credits. The written notice with respect to
any request for any Advance under Credit D shall contain all reasonable details
of the purpose of such advance.
Notice shall be given at least two Business Days prior to the date of any
Advance of Cdn. $5,000,000 or over except that Notice shall be given in respect
of an Advance by way of L/C at such earlier time as the Lender may reasonably
require so that it has sufficient time to review the proposed form of L/C.
Notices shall be given not later than 11:00 a.m. (Toronto time) on the date
for notice. If a notice is not given or made by that time, it shall be deemed to
have been given or made on the next Business Day.
10.5 PREPAYMENTS
The Borrower may only repay Advances outstanding under the Credits without
penalty as permitted under this Agreement. Bankers' Acceptances and L/C's may
not be paid prior to their maturity dates.
10.6 FORM OF BANKERS' ACCEPTANCES
To facilitate the acceptance of Bankers' Acceptances hereunder, the
Borrower shall from time to time as required by the Lender, provide the Lender
with an appropriate number of executed drafts drawn in blank by the Borrower and
satisfactory to the Lender. Any such draft or Bankers' Acceptance may be dealt
with by the Lender to all intents and purposes and shall bind the Borrower as if
issued by the Borrower, and the Borrower shall hold the Lender harmless and
indemnified against all loss, costs, damages and expenses arising out of the
payment or negotiation of any such draft or Bankers' Acceptance. The Lender
shall not be liable for its failure to accept a Bankers' Acceptance as required
hereunder if the cause of such failure is, in whole or in part, due to the
failure of the Borrower to provide executed drafts to the Lender on a timely
basis.
The receipt by the Lender of a request for an Advance by way of Bankers'
Acceptances shall be the Lender's sufficient authority to complete, and the
Lender shall, subject to the terms and conditions of this Agreement, complete
the pre-signed forms of drafts in accordance with such request and the drafts so
completed shall thereupon be deemed to have been presented for acceptance.
10.7 SALE OF BANKERS' ACCEPTANCES
Subject to the option of the Lender to purchase the Borrower's drafts which
it has accepted, it shall be the responsibility of the Borrower to arrange, in
accordance with normal market practice, for the sale or distribution on each
Drawdown Date of the Bankers' Acceptances issued by the Borrower.
The Borrower shall advise the Lender as soon as possible and in any event
not later than 11:00 a.m. (Toronto time) on the Drawdown Date of the price
payable for each such Bankers' Acceptance by the purchaser thereof and the
person who will be paying such price to and taking delivery of such Bankers'
Acceptances from the Lender. The Lender is hereby authorized to release each
Bankers' Acceptance accepted by it to such person on receipt of an amount equal
to such price.
The Lender will make the net proceeds of the requested Advance by way of
Bankers' Acceptances received by it available to the Borrower on the Drawdown
Date by crediting the Designated Account with such amount.
10.8 SIZE AND MATURITY OF BANKERS' ACCEPTANCES AND ROLLOVERS
Each Advance of Bankers' Acceptances shall be in an aggregate amount of not
less than $100,000 and in a whole multiple of $100,000 and each Bankers'
Acceptance shall be in the amount of $100,000 or U.S. $100,000 or whole
multiples thereof. Each Bankers' Acceptance shall have a term of 30 days or more
up to 180 days after the date of acceptance of the draft by the Lender subject
to market availability, but no Bankers' Acceptance may mature on a date which is
not a Business Day or on a date which is later than the applicable Maturity
Date. The face amount at maturity of a Bankers' Acceptance, may be renewed as a
Bankers' Acceptance or converted into another form of Advance permitted by this
Agreement.
10.9 ISSUANCE AND MATURITY OF L/C'S
A request for an Advance by way of L/C shall be made by the Borrower to the
Lender in accordance with Section 10.4. A request shall include the details of
the L/C to be issued. The Lender shall notify the Borrower of any comment
concerning the form of the L/C requested by the Borrower and shall, if the
Borrower is otherwise entitled to an Advance, issue the L/C to the Borrower at
the Branch of Account or as soon as the Lender is satisfied with the form of L/C
to be issued.
Each L/C issued under this Agreement shall have a term which is not more
than 360 days after its issuance date or renewal date. An L/C may be renewed by
the Borrower subject to complying with the terms of this Agreement applicable to
an Advance by way of L/C.
10.10 PROHIBITED USE OF BANKERS' ACCEPTANCES AND L/C'S
The Borrower shall not enter into any agreement or arrangement of any kind
with any person to whom Bankers' Acceptances or L/C's have been delivered
whereby the Borrower undertakes to replace such Bankers' Acceptances or L/C's on
a continuing basis with other Bankers' Acceptances or L/C's, nor shall the
Borrower directly or indirectly take, use or provide Bankers' Acceptances or
L/C's as security for loans or Advances from any other person.
10.11 PAYMENT OF BANKERS' ACCEPTANCES
The Borrower shall provide for the payment to the Lender at the Branch of
Account of the full face amount of each Bankers' Acceptance on the earlier of
(i) its date of maturity and (ii) the date on which the Lender gives notice to
the Borrower pursuant to Section 13.2. The Lender shall be entitled to recover
interest from the Borrower at a rate of interest per annum equal to the rate
applicable to Prime Rate Advances under Credit A, compounded monthly, upon any
amount payment of which has not been provided for by the Borrower in accordance
with this Section, with respect to Bankers' Acceptances. Interest shall be
calculated from and including the date of maturity of such Bankers' Acceptance
up to but excluding the date such payment, and all interest thereon, both before
and after demand, default and judgment, is provided for by the Borrower.
10.12 PAYMENT OF L/C'S
The Borrower shall provide for the payment to the Lender at the Branch of
Account for the account of the Lender of the full face amount of each L/C (or
the amount actually paid in the case of a partial payment) on the earlier of (i)
the date on which the Lender makes a payment to the beneficiary of an L/C, and
(ii) the date on which the Lender gives notice to the Borrower pursuant to
Section 13.2. The Lender shall be entitled to recover interest from the Borrower
at a rate of interest per annum equal to the rate applicable to Prime Rate
Advances under Credit A, compounded monthly, upon any amount payment of which
has not been provided for by the Borrower in accordance with this Section.
Interest shall be calculated from and including the date on which the Lender
makes a payment to the beneficiary of an L/C, up to but excluding the date such
payment, and all interest thereon, both before and after demand, default and
judgment, is provided for by the Borrower.
The obligation of the Borrower to reimburse the Lender for a payment to a
beneficiary of an L/C shall be absolute and unconditional, except for matters
arising from the Lender's wilful misconduct or negligence, and shall not be
reduced by any demand or other request for payment of an L/C (hereinafter called
a "Demand") paid or acted upon in good faith and in conformity with Canadian
laws, regulations or customs applicable thereto being invalid, insufficient,
fraudulent or forged, nor shall the Borrower's obligation be subject to any
defence or be affected by any right of set-off, counterclaim or recoupment which
the Borrower may now or hereafter have against the beneficiary, the Lender or
any other person for any reason whatsoever, including the fact that the Lender
paid a Demand or Demands (if applicable) aggregating up to the amount of the L/C
notwithstanding any contrary instructions from the Borrower to the Lender or the
occurrence of any event including, but not limited to, the commencement of legal
proceedings to prohibit payment by the Lender of a Demand. Any action, inaction
or omission taken or suffered by the Lender under or in connection with an L/C
or any Demand, if in good faith and in conformity with Canadian laws,
regulations or customs applicable thereto shall be binding on the Borrower and
shall not place the Lender under any resulting liability to the Borrower.
Without limiting the generality of the foregoing, the Lender may receive,
accept, or pay as complying with the terms of the L/C, any Demand otherwise in
order which may be signed by, or issued to, any administrator, executor, trustee
in bankruptcy, receiver or other person or entity acting as the representative
or in place of, the beneficiary.
If the Borrower provides cash in response to a notice given under Section
13.2, the Borrower shall be entitled to receive interest on the cash provided in
accordance with Section 14.13 as long as the cash is held as Collateral.
10.13 DEEMED ADVANCE
Except for amounts which are paid from the proceeds of rollovers of a
Bankers' Acceptance, any amount which the Lender pays to any third party on or
after the date of maturity of a Bankers' Acceptance in satisfaction thereof or
which is owing to the Lender in respect of such a Bankers' Acceptance on or
after the date of maturity of such a Bankers' Acceptance, shall be deemed to be
a Prime Rate Advance to the Borrower under Credit A under this Agreement. Except
for amounts which have been funded by the Borrower, any amount which the Lender
pays to any third party in respect of an L/C in satisfaction or partial
satisfaction; thereof shall be deemed to be a Prime Rate Advance under Credit A.
Interest shall be payable all on such Prime Rate Advances in accordance with the
terms applicable to Prime Rate Advances.
10.14 WAIVER
The Borrower shall not claim from the Lender any days of grace for the
payment at maturity of any Bankers' Acceptances presented and accepted by the
Lender pursuant to this Agreement. The Borrower waives any defence to payment
which might otherwise exist if for any reason a Bankers' Acceptance shall be
held by the Lender in its own right at the maturity thereof, and the doctrine of
merger shall not apply to any Bankers' Acceptance that is at any time held by a
Lender in its own right.
10.15 DEGREE OF CARE
Any executed drafts to be used as Bankers' Acceptances which are delivered
to the Lender shall be held in safekeeping with the same degree of care as if
they were the Lender's own property, and shall be kept at the place at which
such drafts are ordinarily held by the Lender.
10.16 INDEMNITY
The Borrower shall indemnify and hold the Lender harmless from any loss or
expense with respect to any Bankers' Acceptance dealt with by the Lender, or any
of them, but shall not be obliged to indemnify the Lender for any loss or
expense caused by the negligence or wilful misconduct of the Lender.
10.17 OBLIGATIONS ABSOLUTE
The obligations of the Borrower with respect to Bankers' Acceptances under
this Agreement 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:
(i) any lack of validity or enforceability of any draft
accepted by the Lender as a Bankers' Acceptance; or
(ii) the existence of any claim, set-off, defence or other
right which the Borrower may have at any time against the holder
of a Bankers' Acceptance, the Lender or any other person or
entity, whether in connection with this Agreement or otherwise.
10.18 SHORTFALL ON DRAWDOWNS, ROLLOVERS AND CONVERSIONS
The Borrower agrees that:
(a) the difference between the amount of an Advance requested by
the Borrower by way of Bankers' Acceptances and the actual proceeds of
the Bankers' Acceptances;
(b) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to pay a maturing Bankers'
Acceptance if a Bankers' Acceptance is being rolled over; and
(c) the difference between the actual proceeds of a Bankers'
Acceptance and the amount required to repay any Advance which is being
converted to a Bankers' Acceptance;
shall be funded and paid by the Borrower from its own resources, by 11:00 a.m.
on the day of the Advance or may be advanced as a Prime Rate Advance under the
Credits if the Borrower is otherwise entitled to an Advance under the Credits.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
(a) the Borrower is a duly incorporated or amalgamated, as the
case may be, and validly existing corporation and has the corporate
power and authority to enter into and perform its obligations under
any Credit Documents to which it is a party from time to time, to own
its Property and to conduct the business in which it is currently
engaged;
(b) the Borrower holds all Permits required to enter into,
perform and comply with its obligations under any Credit Documents to
which it is a party, to own its Property and to conduct the business
in which it is engaged, the Permits are valid and subsisting and the
Borrower is in compliance with all provisions thereof and not in
violation of any material provisions thereof;
(c) the entering into and the performance by the Borrower of the
Credit Documents to which it is a party from time to time (i) have
been or will be duly authorized by all necessary corporate action on
its part, and (ii) do not or will not violate its Constating
Documents, any Requirement of Law, or any Contract to which it is a
party does not require the consent or concurrence of any person who
has not consented or concurred;
(d) the Constating Documents of the Borrower (which include a
sole shareholders agreement) do contain restrictions on the power of
its directors to borrow money or give financial assistance by way of
guarantee and the provisions of the agreement have been complied with
in connection with this Agreement and the Credit Documents;
(e) the Credit Documents to which the Borrower is a party from
time to time have been or will be duly executed and delivered by it
and constitute legal, valid and binding obligations enforceable
against it in accordance with their respective terms, subject to the
availability of equitable remedies, the effect of bankruptcy,
insolvency and similar laws affecting the rights of creditors
generally;
(f) as of the date of execution of this Agreement, there are no
litigation, arbitration or administrative proceedings outstanding and
there are no proceedings pending or threatened, against the Borrower
which could materially and adversely affect the ability of the
Borrower to perform its obligations under the Credit Documents;
(g) no Event of Default or Pending Event of Default has occurred
and is continuing;
(h) it is not in violation of any term of its Constating
Documents and is not in violation of any Permit, Requirement of Law or
Contract and the execution, delivery and performance of any Credit
Documents to which the Borrower is a party from time to time will not
result in any such violation;
(i) all of its quarterly and annual financial statements as and
when they are furnished to the Lender in connection with this
Agreement are complete and fairly present the financial position of
the subject thereof as of the dates referred to therein and have been
prepared in accordance with GAAP;
(j) (i) as of the date of execution of this Agreement, it has no
liabilities (contingent or other) or other obligations of the
type required to be disclosed in accordance with GAAP which are
not fully disclosed on its financial statements provided to the
Lender other than liabilities and obligations incurred in the
ordinary course of its business and the Obligations;
(ii) it has no liabilities (contingent or other) or other
obligations of the type required to be disclosed in accordance
with GAAP which are not fully disclosed on its financial
statements provided to the Lender for its latest fiscal year and
on its unaudited financial statements provided to the Lender for
its latest fiscal period, other than liabilities and obligations
incurred in the ordinary course of its business and the
Obligations;
(k) no Property of the Borrower is subject to an Encumbrance
except a Permitted Encumbrance and the Borrower is not in default
under any of the Permitted Encumbrances relating to it;
(l) (i) there are no Hazardous Materials located on, above or
below the surface of any land which it occupies or controls,
except those being stored in compliance with applicable laws, or
contained in the soil or water constituting such land; and
(ii) no release, spill, leak, emission, discharge, leaching,
dumping or disposal of Hazardous Materials has occurred on or
from such land which, in any such case, could materially and
adversely affect the financial condition of the Borrower or the
ability of the Borrower to perform its obligations under the
Credit Documents to which it is a party from time to time;
(m) its business and Property are being operated in substantial
compliance with applicable laws intended to protect the environment
(including, without limitation, laws respecting the disposal or
emission of Hazardous Materials) and there are no breaches thereof and
no enforcement actions in respect thereof are threatened or pending
which could affect the ability of the Borrower or any Subsidiary to
perform its obligations under the Credit Documents to which it is a
party from time to time;
(n) the Borrower is conducting its operation, business or
activities in substantial compliance with all applicable laws and as
permitted by, and in accordance with, its respective Constating
Documents;
(o) there is no fact that it has not been disclosed to the Lender
in writing that adversely affect the ability of the Borrower to
perform its obligations under the Credit Documents to which it is a
party from time to time;
(p) as of the date of execution of this Agreement, the Borrower
has no credit facilities with banks or similar lending institutions,
or other lenders apart from the Credits and the Permitted Encumbrances
described in Section 1.1.52 (i);
(q) since the date of the first Advance and except as disclosed
to the Lender in writing, the Borrower has not entered into any
transaction or agreement with any person other than on commercially
reasonable terms and within the limitation of this Agreement and the
Credit Agreements;
(r) attached to this Agreement as Schedule "C" is a list of every
trademark, trademark application, trade name, certification mark,
patent, patent application, copyright and industrial design
(collectively, "Intellectual Property") which will in the future be
used by the Borrower in its business and the offices (if any) in which
the same is registered (being the only offices where such registration
is necessary to preserve the rights thereto) and the applicable expiry
dates of any registrations as well as the name of each Person who is a
registered holder of any of the Intellectual Property and the
Intellectual Property listed in Schedule "C" and all other
Intellectual Property which is being or will be used by the Borrower
in its business, is owned by the Borrower with the sole and exclusive
right to use the same, except as noted on Schedule "C", the conduct of
the business of the Borrower does not infringe the Intellectual
Property of any other Person;
(s) the only pension plans (the "plans") provided by the Borrower
are those referred to in Schedule "D" and:
(i) the plans are or will be within 30 days of the
completion of the Transaction registered under and are in
compliance with the Income Tax Act (Canada), the Pension Benefits
Act (Ontario) and all other Requirement of Law and all reports,
returns and filings required to be made thereunder have been
made;
(ii) the plans have been at all times administered in
accordance with the terms and the provisions of the Requirement
of Law;
(iii) except for the plan covering the members of Locals
1987 and 1524 of the Canadian Autoworkers Union, there areno
unfunded liabilities under the plans and, without limiting the
generality of the foregoing, there is no going concern unfunded
actuarial liability, past service unfunded actuarial liability or
insolvency deficiency; and
(iv) the Borrower has not received any payment of surplus
from any of the plans;
(t) the Borrower has provided to the Lender all information
which, acting reasonably, the Borrower determined is material relating
to the financial condition, business and prospects (including
forecasts and budgets) of the Borrower and all such information is
true, accurate and complete in all material respects and omits no
material fact necessary to make such information not misleading and
the forecasts and budgets provided to the Lender in connection with
its approval of this Agreement are in the judgment of the directors
and senior management prepared prudently and upon reasonable
assumptions;
(u) the Borrower has:
(i) delivered, or caused to be delivered, all required
income tax returns, sales, property, franchise and value-added
tax returns and other tax returns to the appropriate governmental
bodies; and
(ii) withheld and collected all Taxes required to be
withheld and collected by it and remitted such Taxes when due to
the appropriate governmental bodies; and no assessment, appeal or
claim is, as far as the Borrower is aware, being asserted or
processed with respect to such claim, Taxes or obligations;
(v) all of the issued and outstanding shares in the capital stock
of the Borrower are beneficially owned by JPE, Inc.
11.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Unless expressly stated to be made as of a specific date, the
representations and warranties made in this Agreement shall survive the
execution of this Agreement and all other Credit Documents, and shall be deemed
to be repeated each and every day while any of the Obligations are outstanding,
subject to modifications which may be made by the Borrower to the Lender in
writing and accepted in writing by the Lender. The Lender shall be deemed to
have relied upon such representations and warranties as a condition of making an
Advance hereunder or continuing to extend the Credits hereunder.
ARTICLE XII
COVENANTS AND CONDITIONS
12.1 POSITIVE COVENANTS
12.1.1 During the term of this Agreement, the Borrower shall:
(a) duly and punctually pay the Obligations at the times and
places and in the manner required by the terms thereof;
(b) keep proper books of account and record, maintain its
corporate status in all jurisdictions where it carries on business and
operate its business and Property in accordance with sound business
practice and in substantial compliance with all applicable
Requirements of Law and Contracts, and promptly provide the Lender
with all information reasonably requested by the Lender from time to
time concerning its financial condition;
(c) at all times and with reasonable frequency upon notice,
permit representatives of the Lender to inspect any of its Property
and to examine its financial books, accounts and records and to
discuss its financial condition with its senior officers and its
auditors, the expense of all of which shall be paid by the Borrower;
(d) keep insured with financially sound insurance companies
acceptable to the Lender all of its Property in amounts and against
losses, including property damage, public liability and business
interruption, to the extent that such Property and assets are usually
insured or as the Lender may otherwise require, and cause the policies
of insurance referred to above to contain a standard mortgage clause
and other customary endorsements for the benefit of the Lender, all in
a form acceptable to the Lender, and a provision that such policies
will not be amended in any manner which is prejudicial to the Lender
or be cancelled without thirty days prior written notice being given
to the Lender by the issuers thereof, cause the Lender to be named as
an additional insured with respect to public liability and cause all
of the proceeds of insurance under the policies to be paid to the
Lender to the extent of the Obligations;
(e) provide the Lender promptly with such evidence of the
insurance as the Lender may from time to time reasonably require;
(f) obtain, as and when required, all Permits and Contracts which
may be required to permit it to acquire, own, operate and maintain its
business and Property and perform its obligations under the Credit
Documents to which it is a party, preserve and maintain those Permits
and Contracts and all such Permits and Contracts now held by it in
good standing;
(g) pay all Taxes as they become due and payable unless they are
being contested in good faith by appropriate proceedings and it has
made arrangements satisfactory to the Lender in respect of payment of
the contested amount including the lodging of Collateral with the
Lender;
(h) immediately notify the Lender of any Event of Default or
Pending Event of Default of which it becomes aware;
(i) immediately notify the Lender on becoming aware of the
occurrence of any litigation, dispute, arbitration, proceeding or
other circumstance affecting the Borrower in respect of which there is
a possibility of a result materially adverse to the Borrower that
could have a material adverse effect on the financial condition of the
Borrower, or the ability of the Borrower to perform its obligations
under the Credit Documents to which it is a party from time to time,
and from time to time provide the Lender with all information
requested by the Lender concerning the status thereof;
(j) immediately notify the Lender (including in the notification
the intended action to be taken by the Borrower); upon:
(i) learning of any environmental claim, complaint, notice
or order affecting it;
(ii) learning of the existence of Hazardous Materials
located on, above or below the surface of any land which it
occupies or controls (except those being stored, used or
otherwise handled in compliance with applicable Requirements of
Law), or contained in the soil or water constituting such land;
and
(iii) the occurrence of any reportable release, spill, leak,
emission, discharge, leaching, dumping or disposal of Hazardous
Materials that has occurred on or from such land which, as to
either (i), (ii) or (iii), could have a material adverse effect
on the financial condition of the Borrower, or the ability of the
Borrower to perform its obligations under this Agreement, or the
Credit Documents to which it is a party from time to time;
(iv) any change in business activity conducted by the
Borrower which involves the use or handling of Hazardous
Materials or wastes or increases the environmental liability of
the Borrower in any material manner;
(v) any proposed change in the use or occupation of the
Property of the Borrower which may cause a material adverse
environmental impact;
(jj) conduct all environmental material activities which a
commercially reasonable person would perform in similar circumstances
to meet its environmental responsibilities and to undertake, at the
Borrower's expense, any environmental investigations, assessments or
remedial activities with respect to any Property of the Borrower that
the Lender may reasonably request;
(k) immediately notify the Lender upon becoming aware of any
proposed change or change in name or jurisdiction of incorporation or
amalgamation of the Borrower or of any proposed change or change in
the senior operating manager of the Borrower;
(l) provide the Lender immediately upon the filing or delivery
thereof with copies of all reports, notices and all other documents
filed with or delivered to any securities commission or stock
exchange;
(m) pay to the Lender upon the closing of the disposition of
Property which is comprised of fixed assets (i) valued at more than
Cdn. $25,000 for any one disposition and (ii) valued at more than Cdn.
$250,000 in the aggregate during a fiscal year of the Borrower, the
proceeds thereof which amounts shall be applied by the Lender to
reduce Advances outstanding first under Credit C and which amount
shall have the effect of permanently reducing the amount of Credit C
by an equal amount, unless the Borrower first demonstrates to the
Lender that all such proceeds are being reinvested directly into fixed
assets, satisfactory to the Lender, of the Borrower;
(n) upon the request of the Lender, use its best efforts to
provide the Lender with such other documents, opinions, consents,
acknowledgments and agreements as are reasonably necessary to
implement, and monitor compliance with, this Agreement from time to
time;
(o) conduct all of its banking services business with the Lender
provided such services are provided at competitive pricing; and
(p) shall have bank accounts only with the Lender, except for a
payroll account used only for payroll purposes currently at another
banking institution, which account the Borrower has agreed to move
within six months from the date hereof to the Lender, provided the
Lender's payroll services are provided at competitive prices.
12.1.1.1 If the Borrower notifies the Lender of any specified activity
or change or provides the Lender with any information pursuant to Section
12.1.1(j) or if the Lender receives any environmental information from
other sources, the Lender, in its sole discretion, may decide that an
adverse change in environmental condition of the Borrower or any of the
Property or business activities of the Borrower has occurred which decision
will constitute in the absence of manifest error, conclusive evidence of
the adverse change. Following this decision being made by the Lender, the
Lender shall notify the Borrower of the Lender's decision concerning the
adverse change.
If the Lender decides or is required to incur expenses in compliance
or to verify the Borrower's compliance with applicable environmental or
other regulations, the Borrower shall indemnify the Lender in respect of
such expenses, which will constitute further Prime Rate Advances under
Credit A by the Lender to the Borrower under this Agreement.
12.1.2 During the term of this Agreement, the Borrower shall ensure:
(a) that its Tangible Net Worth is maintained at a minimum of
Cdn. $5,000,000 at all times;
(b) that the ratio of its Current Assets to Current Liabilities
is maintained at not less than 0.95 to 1 or better at the end of each
month from and after the date of this Agreement and improving to, and
is maintained at, not less than 1 to 1 at the end of each month
commencing December 1, 1997 and at the end of each month thereafter;
and
(c) that its Debt to Tangible Net Worth Ratio does not exceed
6.50 to 1, improving to 4.50 to 1 by December 31, 1997 and improving
to 3 to 1 by December 31, 1998;
For the purpose of this Section 12.2, the amounts used to determine whether
the financial covenants are being maintained shall be the monthly and
yearly financial statements to be provided by the Borrower under Section
12.2.1 provided such statements are in a form and substance satisfactory to
the Lender and have been prepared according to GAAP.
12.1.3 During the term of this Agreement, the Borrower shall ensure
that at any time the amount of Advances outstanding under Credit A do not
exceed the Borrowing Base at that time.
12.2 REPORTING REQUIREMENTS
12.2.1 During the term of this Agreement, the Borrower shall:
(a) by February 10, 1997 cause to be prepared and delivered an
opening balance sheet reflecting actual values of the Property
acquired under the Agreement of Purchase and Sale;
(b) as soon as practicable and in any event within 40 days of the
end of each month up to June 30, 1997 and within 30 days of the end of
each month thereafter, cause to be prepared and delivered to the
Lender, in comparative form and in a form satisfactory to the Lender,
the interim unaudited financial statements of the Borrower as at the
end of such month including, without limitation, balance sheet,
statement of income and retained earnings and statement of changes in
financial position, all of which shall be prepared in accordance with
GAAP;
(c) as soon as possible and in any event within 40 days of the
end of each month up to June 30, 1997 and within 30 days of the end of
each month thereafter:
(i) cause to be prepared and delivered to the Lender in a
form satisfactory to the Lender a statement of security in the
Lender's usual form with information on the Borrower's inventory,
accounts receivable and accounts payable;
(ii) cause to be prepared and delivered to the Lender in a
form satisfactory to the Lender monthly aged listing of accounts
receivable and payable of the Borrower; and
(iii) if requested by the Lender, cause to be prepared and
delivered to the Lender in a form satisfactory to the Lender a
report containing details of releases from GM and other customers
for the ensuing month;
(d) as soon as practicable and in any event within 90 days after
the end of each of its respective fiscal years, cause to be prepared
and delivered to the Lender, in comparative form and in a form
satisfactory to the Lender, the signed annual financial statements of
the Borrower which shall be audited by an internationally recognized
accounting firm including, without limitation, balance sheet,
statement of income and retained earnings and statement of changes in
financial position for such fiscal year-end, profit and loss
statement, all of which shall be prepared in accordance with GAAP;
(e) concurrently with the delivery of its monthly and annual
financial statements, provide the Lender with a compliance certificate
in the form annexed hereto as Schedule B;
(f) concurrently with the delivery of its annual financial
statements, provide the Lender with an annual cash flow projection and
capital expenditure projection for its next succeeding fiscal year in
a form satisfactory to the Lender;
(g) cause to be delivered within 120 days of each year-end of
JPE, Inc., the signed audited financial statements of JPE, Inc.;
(h) cause to be delivered within 45 days of the end of each
quarter, a certificate of JPE, Inc. signed by the Chief Financial
Officer of JPE, Inc. certifying that JPE, Inc. is not in default or
contravention of any of the terms and conditions of JPE, Inc.'s credit
agreement with Comerica Bank.
If there is any material change in a subsequent period from the accounting
policies, practices and calculation methods used by the Borrower in
preparing its financial statements, or components thereof, the Borrower
shall provide the Lender with all information which the Lender reasonably
requires to ensure that reports provided to the Lender after any change are
comparable to previous reports.
12.3 NEGATIVE COVENANTS
12.3.1 During the term of this Agreement, the Borrower shall not,
without the prior written consent of the Lender:
(a) sell, lease, alienate or otherwise dispose of the whole or
any part of its Property other than in the ordinary course of its
business except in compliance with Section 12.1.1 (m);
(b) amend its Constating Documents, consolidate, amalgamate or
merge with any other person, enter into any corporate reorganization
or other transaction intended to effect or otherwise permit a change
in its existing corporate or capital structure, liquidate, wind-up or
dissolve itself, or permit any liquidation, winding-up or dissolution;
(c) change its name without providing the Lender with 30 days
prior written notice thereof;
(d) create, incur, assume, cause or permit any Encumbrance upon
or in respect of any of its Property, except for Permitted
Encumbrances and except for purchase money security interests which
may be required by the Borrower to finance the acquisition of
equipment or fixed assets if the Lender is unable to match pricing on
such financing, provided the acquisition is in compliance with all
other terms and conditions of this Agreement;
(e) except as may be permitted under this Agreement, create,
incur, assume or permit any Debt to remain outstanding, other than the
Obligations;
(f) (i) pay royalties, dividends, issue bonuses on capital stock,
redeem or purchase capital stock, or engage in any other method
of returning capital to shareholders of the Borrower;
(ii) make loans, advances or other distributions of funds to
shareholders of the Borrower;
except that royalties, dividends, bonuses on capital stock,
redemptions or purchases of capital stock or other methods of
returning capital to shareholders, loans, advances or other
distributions of funds to shareholders and royalties may be made
or paid provided;
(iii) no Event of Default or Pending Event of Default has
occurred or is continuing, or would occur as a result;
(iv) the Debt to Tangible Net Worth Ratio is less than 3 to
1 based on the latest year-end audited financial statements of
the Borrower; and
(v) the Borrower has demonstrated to the Lender's
satisfaction in the Lender's sole discretion, an ability to
continue to meet all of the terms and conditions of the Credits
during the next ensuing year based upon the Borrower's
projections and provided residual;
(vi) dividend payments, if permitted by the Lender, shall
not exceed the lesser of:
(x) Borrower's Operating Cash Flow for the said latest
year-end less, taxes other than deferred taxes, all
interest, principal debt repayments and capital
expenditures, plus or minus (as the case may be) increases
or decreases (as the case may be) working capital for the
said latest year-end; and
(y) 30% of net income after payment of taxes based on
the Borrower's latest audited year-end financial statement,
all in accordance with GAAP; and
(vii) if the Debt to Tangible Net Worth Ratio is more than 3
to 1 based on the latest year end audited financial statements of
the Borrower, royalties of a maximum of $100,000 per year are
permitted if the provisions of sub-paragraph (iii) and (v) of
this paragraph (f) are met at the time of the proposed payment;
(g) effect any material change in the general nature or conduct
of its business;
(h) guarantee, endorse or otherwise become liable for, or provide
a guarantee or financial assistance in any form, notwithstanding any
other provision of this Agreement (including without limitation the
definition of Debt);
(i) use any of the Credits for a purpose other than permitted
under this Agreement;
(j) do or permit anything to adversely affect the ranking or
validity of the Security;
(k) change its fiscal year-end;
(l) change its auditors to other than an internationally
recognized auditing firm; or
(m) incur any capital expenditures in excess of an aggregate of
$25,000 per year, including capital leases unless first approved in
writing by the Lender (it being acknowledged that the Lender has
approved of the Borrower's capital expenditure budget as presented to
the Lender by the Borrower for the Borrower's 1997 fiscal year).
ARTICLE XIII
DEFAULT
13.1 EVENTS OF DEFAULT
Each of the following events shall constitute an Event of Default under
this Agreement:
(a) the Borrower fails to pay any amount of principal (including
any amount relating to a Bankers' Acceptance or L/C); or
(b) the Borrower or any of the person that is a party to any of
the Credit Documents makes any representation or warranty under any of
the Credit Documents which is materially incorrect or incomplete when
made or deemed to be made; or
(c) the Borrower or a Guarantor ceases or threatens to cease to
carry on its business or admits its inability, or fails, to pay its
debts generally; or
(d) the Borrower:
(i) permits any default under one or more agreements or
instruments relating to any of its indebtedness or obligations;
or
(ii) permits any other event to occur and to continue after
any applicable grace period specified in such agreements or
instruments; or
(iii) permits any other event to accelerate the date on
which any such indebtedness or obligations of the Borrower
becomes due; or
(e) the Borrower or a Guarantor becomes bankrupt (voluntarily or
involuntarily), or becomes subject to any proceeding seeking
liquidation, arrangement, monitorship, relief of creditors or the
appointment of a receiver or trustee over, or any judgment or order
which has or might have an adverse effect on, any of its Property, and
such proceeding, if instituted against the Borrower, or a Guarantor or
such judgment or order, is not contested diligently, in good faith and
on a timely basis and dismissed or stayed within 60 days of its
commencement or issuance; or
(f) the Borrower or a Guarantor denies its obligations under the
Credit Documents or claims any of the Credit Documents to be invalid
or withdrawn in whole or in part; or any of the Credit Documents is
invalidated by any act, regulation or governmental action or is
determined to be invalid by a court or other judicial entity and such
determination has not been stayed pending appeal; or
(g) a final judgment, writ of execution, garnishment or
attachment or similar process is issued or levied against any of the
Property of the Borrower or a Guarantor and such judgment, writ,
execution, garnishment, attachment or similar process is not released,
bonded, satisfied, discharged, vacated or stayed within five Business
Days after its entry, commencement or levy; or
(h) an Encumbrancer takes possession of any of the Property of
the Borrower, by appointment of a receiver, receiver and manager, or
otherwise; or
(i) there is a breach of any of the provisions of this Agreement,
or any of the provisions of the Credit Documents including the
Security; or
(j) there is any Change in Control; or
(k) the Borrower's or Guarantor's financial statements contain a
qualified audit opinion which is unacceptable to the Lender in its
reasonable opinion;
(l) there is in the Lender's sole opinion a Material Adverse
Change in the financial condition of the Borrower or Guarantor; or
(m) there is in the Lender's sole opinion a Material Adverse
Change in the environmental condition of the Borrower or the Guarantor
or the Property or business activities of the Borrower or the
Guarantor.
13.2 ACCELERATION AND TERMINATION OF RIGHTS
If any Event of Default occurs, the Lender shall not be under any further
obligation to make Advances or to accept drafts or bills of exchange as Bankers'
Acceptances or issue L/C's and the Lender may give notice to the Borrower (i)
declaring the Lender's obligations to make Advances to be terminated, whereupon
the same shall forthwith terminate, (ii) declaring the Obligations or any of
them to be forthwith due and payable, whereupon they shall become and be
forthwith due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the Borrower, and/or
(iii) demanding that the Borrower deposit forthwith with the Lender for the
Lender's benefit Collateral equal to the full principal amount at maturity of
all Bankers' Acceptances and L/C's , then outstanding for the Borrower's
account.
Notwithstanding the preceding paragraph, if the Borrower becomes a bankrupt
(voluntarily or involuntarily), or institutes any proceeding seeking
liquidation, rearrangement, monitorship relief of debtors or creditors or the
appointment of a receiver or trustee over any part of its Property, then without
prejudice to the other rights of the Lender as a result of any such event,
without any notice or action of any kind by the Lender, and without presentment,
demand or protest, the Lender's obligation to make Advances shall immediately
terminate, the Obligations shall immediately become due and payable and the
Borrower shall be obligated to deposit forthwith with the Lender for the
Lender's benefit Collateral equal to the full principal amount of maturity of
all Banker's Acceptances and L/C's then outstanding for the Borrower's account.
13.3 PAYMENT OF BANKERS' ACCEPTANCES
Immediately upon the occurrence of any event obligating the Borrower to
deposit Collateral with the Lender under Section 13.2, the Borrower shall,
without necessity of further act or evidence, be and become thereby
unconditionally obligated to deposit forthwith with the Lender Collateral equal
to the full principal amount at maturity of all Bankers' Acceptances and L/C's
then outstanding for the Borrower's account and the Borrower hereby
unconditionally promises and agrees to deposit with the Lender immediately upon
such demand Collateral in the amount so demanded. The Borrower authorizes the
Lender, or any of them, to debit its account with the amount required to pay
such L/C's, and to pay Bankers' Acceptances, notwithstanding that such Bankers'
Acceptances may be held by the Lender in its own right at maturity. Amounts paid
to the Lender pursuant to such a demand in respect of Bankers' Acceptances and
L/C's shall be applied against, and shall reduce the obligations of the Borrower
to pay amounts then or thereafter payable under Bankers' Acceptances and L/C's
at the times the amounts become payable thereunder.
The Borrower shall be entitled to receive interest on cash held as
Collateral in accordance with Section 14.13.
13.4 REMEDIES
Upon the making of a declaration contemplated by Section 13.2, the Lender
may take such action or proceedings as it in its sole discretion deems expedient
to enforce payment of the Obligations, all without any additional notice,
presentment, demand, protest or other formality, all of which are hereby
expressly waived by the Borrower.
13.5 PERFORM OBLIGATIONS
If an Event of Default has occurred and is continuing and if the Borrower
has failed to perform any of its covenants or agreements in the Credit
Documents, the Lender, may perform any such covenants or agreements in any
manner deemed fit by the Lender without thereby waiving any rights to enforce
the Credit Documents.
13.6 THIRD PARTIES
No person dealing with the Lender or any agent of the Lender shall be
concerned to inquire whether the powers which the Lender are purporting to
exercise have become exercisable, or whether any Obligations remain outstanding.
13.7 REMEDIES CUMULATIVE
The rights and remedies of the Lender under the Credit Documents are
cumulative and are in addition to and not in substitution for any rights or
remedies provided by law. Any single or partial exercise by the Lender of any
right or remedy for a default or breach of any term, covenant, condition or
agreement herein contained shall not be deemed to be a waiver of or to alter,
affect, or prejudice any other right or remedy or other rights or remedies to
which the Lender may be lawfully entitled for the same default or breach. Any
waiver by the Lender of the strict observance, performance or compliance with
any term, covenant, condition or agreement herein contained, and any indulgence
granted by the Lender shall be deemed not to be a waiver of any subsequent
default.
13.8 SET-OFF OR COMPENSATION
In addition to and not in limitation of any rights now or hereafter granted
under applicable law, if repayment is accelerated pursuant to Section 13.2, the
Lender may at any time and from time to time without notice to the Borrower or
any other person, any notice being expressly waived by the Borrower, set-off and
compensate and apply any and all deposits, general or special, time or demand,
provisional or final, matured or unmatured, and any other indebtedness at any
time owing by the Lender to or for the credit of or the account of the Borrower,
against and on account of the Obligations notwithstanding that any of them are
contingent or unmatured.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 HEADINGS AND TABLE OF CONTENTS
The headings of the Articles and Sections and the Table of Contents are
inserted for convenience of reference only and shall not affect the construction
or interpretation of this Agreement.
14.2 ACCOUNTING TERMS
Each accounting term used in this Agreement, unless otherwise defined
herein, has the meaning assigned to it under GAAP.
14.3 CAPITALIZED TERMS
All capitalized terms used in any of the Credit Documents (other than this
Agreement) which are defined in this Agreement shall have the meaning defined
herein unless otherwise defined in the other document.
14.4 SEVERABILITY
Any provision of this Agreement which is or becomes prohibited or
unenforceable in any relevant jurisdiction shall not invalidate or impair the
remaining provisions hereof which shall be deemed severable from such prohibited
or unenforceable provision and any such prohibition or unenforceability in any
such jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. Should this Agreement fail to provide for any relevant
matter, the validity, legality or enforceability of this Agreement shall not
thereby be affected.
14.5 NUMBER AND GENDER
Unless the context otherwise requires, words importing the singular number
shall include the plural and vice versa, words importing any gender include all
genders and references to agreements and other contractual instruments shall be
deemed to include all present or future amendments, supplements, restatements or
replacements thereof or thereto.
14.6 AMENDMENT, SUPPLEMENT OR WAIVER
No amendment, supplement or waiver of any provision of the Credit
Documents, nor any consent to any departure by the Borrower therefrom, shall in
any event be effective unless it is in writing, makes express reference to the
provision affected thereby and is signed by the Lender and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No waiver or act or omission of the Lender shall extend
to or be taken in any manner whatsoever to affect any subsequent Event of
Default or breach by the Borrower of any provision of the Credit Documents or
the rights resulting therefrom.
14.7 GOVERNING LAW
Each of the Credit Documents, except for those which expressly provide
otherwise, shall be conclusively deemed to be a contract made under, and shall
for all purposes be governed by and construed in accordance with, the laws of
the Province of Ontario and the laws of Canada applicable in Ontario. Each party
to this Agreement hereby irrevocably and unconditionally attorns to the
non-exclusive jurisdiction of the courts of Ontario and all courts competent to
hear appeals therefrom.
14.8 THIS AGREEMENT TO GOVERN
In the event of any direct and material conflict between the provisions of
this Agreement and the provisions of any other Credit Document, the provisions
of this Agreement shall govern to the extent necessary to remove the conflict,
provided that the Borrower acknowledges that specific provisions of the Credit
Documents, which are not also provided for in this Agreement, are in addition to
and not in substitution for the provisions of this Agreement.
14.9 PERMITTED ENCUMBRANCES
The designation of an Encumbrance as a Permitted Encumbrance is not, and
shall not be deemed to be, an acknowledgment by the Lender that the Encumbrance
shall have priority over the claims of the Lender against the Borrower or the
Borrower's Property.
14.10 CURRENCY
All payments made hereunder shall be made in the currency in respect of
which the obligation requiring such payment arose. Unless the context otherwise
requires, all amounts expressed in this Agreement in terms of money shall refer
to Canadian Dollars.
Except as otherwise expressly provided in this Agreement, wherever this
Agreement contemplates or requires the calculation of the equivalent in Canadian
Dollars of an amount expressed in U.S. Dollars, or vice versa, the calculation
shall be made on the basis of the Exchange Rate at the effective date of the
calculation.
14.11 EXPENSES AND INDEMNITY
All statements, reports, certificates, opinions, appraisals and other
documents or information required to be furnished to the Lender by the Borrower
under this Agreement shall be supplied without cost to the Lender. The Borrower
shall pay on demand all third party costs and expenses of the Lender, or any of
them (including, without limitation, the fees and expenses of counsel for the
Lender on a solicitor and his own client basis), incurred in connection with (i)
the preparation, execution, delivery, administration, periodic review and
enforcement of the Credit Documents; (ii) any syndication of the Credits; (iii)
obtaining advice as to its rights and responsibilities in connection with the
Credits and the Credit Documents; and (iv) other matters relating to the
Credits. Such costs and expenses shall be payable whether or not an Advance is
made under this Agreement and may upon the Lender giving one Business Day's
advance notice to the Borrower, be charged to the Borrower's deposit account
when incurred or submitted.
The Borrower shall indemnify the Lender against any liability, obligation,
loss (other than loss of profit) or expense which it may sustain or incur as a
consequence of (i) any representation or warranty made herein by the Borrower or
in a Credit Document by any other Person, which was incorrect at the time it was
made or deemed to have been made, (ii) a default by the Borrower in the payment
of any sum due from it (irrespective of whether an Advance is deemed to be made
to the Borrower to pay the amount that the Borrower has failed to pay),
including, but not limited to, all sums (whether in respect of principal,
interest or any other amount) paid or payable to lenders of funds borrowed by
the Lender in order to fund the amount of any such unpaid amount to the extent
the Lender is not reimbursed pursuant to any other provisions of this Agreement,
(iii) the failure of the Borrower to complete any Advance or make any payment
after notice therefor has been given under this Agreement, (iv) the failure of a
purchaser of Bankers' Acceptances to pay for and take delivery of them in
accordance with the advice given by the Borrower under Section 10.4 and (v) any
other default by the Borrower hereunder. A certificate of the Lender as to the
amount of any such liability, obligation loss or expense shall be prima facie
evidence as to the amount thereof, in the absence of manifest error.
In addition, the Borrower shall indemnify the Lender and its directors,
officers, employees and representatives from and against any and all actions,
proceedings, claims, losses, damages, liabilities, expenses and obligations of
any kind that may be incurred by or asserted against any of them as a result of
or in connection with the Credits, other than through the gross negligence or
wilful misconduct of the Lender.
The agreements in this Section shall survive the termination of this
Agreement and repayment of the Obligations.
14.12 INCREASED COSTS ETC.
If after the date hereof the introduction of or any change in or in the
interpretation of, or any change in its application to the Borrower of, any law
or any regulation or guideline from any central bank or other governmental
authority (whether or not having the force of law), including but not limited to
any reserve or special deposit requirement or any Tax (other than Excluded Taxes
and withholding taxes imposed under the Income Tax Act (Canada)) or any capital
requirement, has due to the Lender's compliance therewith the effect, directly
or indirectly, of (i) increasing the cost to the Lender performing its
obligations hereunder; (ii) reducing any amount received or receivable by the
Lender hereunder or its effective return hereunder or on its capital; or (iii)
causing the Lender to make any payment or to forego any return based on any
amount received or receivable by the Lender, or any of them, hereunder, then
upon demand from time to time the Borrower shall pay such amount as shall
compensate the Lender for any such cost, reduction, payment or foregone return
that is not fully offset by an increase in the applicable interest rate or rates
or fees hereunder. Any certificate of a Lender in respect of the foregoing will
be prima facie evidence of the foregoing, except for manifest error, provided
that the Lender determines the amounts owing to it in good faith and provides a
detailed description of its calculation of the amounts owing to it.
If the Lender demands compensation under this Section, the Borrower may at
any time, upon at least four Business Days' prior notice to that Lender, which
notice shall be irrevocable, prepay in full, without penalty but subject to the
limitations on repayments contained herein, the then outstanding Obligations
owing to the Lender, including all compensation to the date of repayment. The
Credits shall thereupon be cancelled.
14.13 INTEREST ON MISCELLANEOUS AMOUNTS
If the Borrower fails to pay any amount payable hereunder (other than
principal, interest thereon or interest upon interest which is payable as
otherwise provided in this Agreement) on the due date, the Borrower shall, on
demand, pay interest on such overdue amount to the Lender from and including
such due date up to but excluding the date of actual payment, both before and
after demand, default or judgment, at a rate of interest per annum equal to 1%
per annum less than the Prime Rate per annum, compounded monthly.
If the Borrower deposits with the Lender cash as Collateral pursuant to a
requirement under this Agreement, the Lender shall pay the Borrower interest on
the cash while it continues to be held as Collateral at the rate offered by the
Lender from time to time for deposits in the relevant currency of comparable
size and term.
14.14 CURRENCY INDEMNITY
In the event of a judgment or order being rendered by any court or tribunal
for the payment of any amounts owing to the Lender under this Agreement or for
the payment of damages in respect of any breach of this Agreement or under or in
respect of a judgment or order of another court or tribunal for the payment of
such amounts or damages, such judgment or order being expressed in a currency
("the Judgment Currency") other than the currency payable hereunder or
thereunder ("the Agreed Currency"), the party against whom the judgment or order
is made shall indemnify and hold the Lender harmless against any deficiency in
terms of the Agreed Currency in the amounts received by the Lender arising or
resulting from any variation as between (i) the Exchange Rate at which the
Agreed Currency is converted into the Judgment Currency for the purposes of such
judgment or order, and (ii) the Exchange Rate at which the Lender is able to
purchase the Agreed Currency with the amount of the Judgment Currency actually
received by the Lender on the date of such receipt. The indemnity in this
Section shall constitute a separate and independent obligation from the other
obligations of the Borrower hereunder, shall apply irrespective of any
indulgence granted by the Lender, and shall be secured by the Security.
14.15 ADDRESS FOR NOTICE
Notice to be given under the Credit Documents shall, except as otherwise
specifically provided, be in writing addressed to the party for whom it is
intended and, unless the law deems a particular notice to be received earlier, a
notice shall not be deemed received until actual receipt thereof by the other
party. The addresses of the parties hereto for the purposes hereof shall be the
addresses specified beside their respective signatures to this Agreement, or
such other mailing or telecopier addresses as each party from time to time may
notify the other as aforesaid.
14.16 TIME OF THE ESSENCE
Time shall be of the essence in this Agreement.
14.17 FURTHER ASSURANCES
The Borrower shall, at the request of the Lender, do all such further acts
and execute and deliver all such further documents as may be necessary or
desirable in order to fully perform and carry out the purpose and intent of the
Credit Documents.
14.18 TERM OF AGREEMENT
Except as otherwise provided herein, this Agreement shall remain in full
force and effect until the payment and performance in full of all of the
Obligations.
14.19 PAYMENTS ON BUSINESS DAY
Whenever any payment or performance under the Credit Documents would
otherwise be due on a day other than a Business Day, such payment shall be made
on the following Business Day, unless the following Business Day is in a
different calendar month, in which case the payment shall be made on the
preceding Business Day.
14.20 COUNTERPARTS AND FACSIMILE
This Agreement may be executed in any number of counterparts, each of which
when executed and delivered shall be deemed to be an original, and such
counterparts together shall constitute one and the same agreement. For the
purposes of this Section, the delivery of a facsimile copy of an executed
counterpart of this Agreement shall be deemed to be valid execution and delivery
of this Agreement, but the party delivering a facsimile copy shall deliver an
original copy of this Agreement as soon as possible after delivering the
facsimile copy.
14.21 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
concerning the matters addressed in this Agreement, and cancel and supersede any
prior agreements, undertakings, declarations or representations, written or
verbal, in respect thereof.
14.22 SUCCESSORS AND ASSIGNS
The Credit Documents shall be binding upon and enure to the benefit of the
Lender, the Borrower and its successors and assigns, except that the Borrower
shall not assign any rights or obligations with respect to this Agreement or any
of the other Credit Documents.
14.23 DATE OF AGREEMENT
This Agreement may be referred to as being dated 20 December, 1996,
notwithstanding the actual date of execution.
IN WITNESS OF WHICH, the parties have executed this Agreement on 20
December, 1996.
Address For Notice
- ------------------
THE BANK OF NOVA SCOTIA
The Bank of Nova Scotia
Windsor Commercial
Banking Centre,
388 Ouellette Avenue
P.O. Box 760,
Windsor, Ontario
N9A 6PI By: /s/ Peter Bilodeau
L4L 4Y8 Peter Bilodeau
Deputy Manager
Attention: Assistant General and Manager Commercial Banking
Manager and Centre Manager
Fax No.: (519) 973-5332
JPE Canada Inc. JPE CANADA INC.
775 Technology Drive
Peterborough, Ontario
K9I 6Z8
By: /s/ Donna L. Bacon
Donna Bacon
Secretary
Attention: President
Fax No.: (705) 742-4046
<PAGE>
SCHEDULES
Schedule A Miller Thomson Legal Opinions
Schedule B Compliance Certificate
Schedule C Patents
Schedule D List of Pension Plans
SUBSIDIARIES OF THE REGISTRANT
SUBSIDIARY STATE/PROVINCE OF INCORPORATION
Allparts, Inc. Missouri
Dayton Parts, Inc. Michigan
Industrial & Automotive Fasteners, Inc. Michigan
JPE Canada Inc. Ontario, Canada
Plastic Trim, Inc. Ohio
SAC Corporation Michigan
Starboard Industries, Inc., Michigan
a subsidiary of SAC Corporation
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statements of
JPE, Inc. on Form S-8 (File Nos. 33-86060, 33-93326, and 33-93328), of our
report dated February 25, 1997, on our audits of the consolidated financial
statements and financial statement schedule of JPE, Inc. as of December 31, 1995
and 1996, and for the years ended December 31, 1994, 1995 and 1996 which report
is included in this Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Detroit, Michigan
March 25, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,316
<SECURITIES> 0
<RECEIVABLES> 27,091
<ALLOWANCES> 262
<INVENTORY> 37,963
<CURRENT-ASSETS> 74,796
<PP&E> 82,365
<DEPRECIATION> 13,084
<TOTAL-ASSETS> 174,725
<CURRENT-LIABILITIES> 32,658
<BONDS> 0
0
0
<COMMON> 27,921
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 174,725
<SALES> 201,453
<TOTAL-REVENUES> 201,453
<CGS> 166,714
<TOTAL-COSTS> 191,607
<OTHER-EXPENSES> 4,300
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,932
<INCOME-PRETAX> (1,386)
<INCOME-TAX> 203
<INCOME-CONTINUING> (1,589)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,589)
<EPS-PRIMARY> (0.35)
<EPS-DILUTED> (0.35)
</TABLE>
