UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File No. 1-11474
BREED TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2767118
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5300 Old Tampa Highway
Lakeland, Florida 33811
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (941) 668-6000
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
------------------- -------------------
Common Stock, $.01 par value New York Stock Exchange
Securities registered pursuant to section 12(g) of the act: None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes_X_ No___
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
As of July 31, 1997, the approximate aggregate market value of the voting and
non-voting stock held by non-affiliates of the registrant was $263,834,000 based
on the last reported sale price of the Company's Common Stock on the New York
Stock Exchange as of the close of business on July 31, 1997. There were
31,679,217 shares of Common Stock outstanding as of July 31, 1997.
DOCUMENTS OR PARTS INCORPORATED BY REFERENCE
Form 10K Part into Which the
Document Document is Incorporated
- -------- ------------------------
Proxy Statement Part III
relating to Registrant's Annual Meeting
of Stockholders to be held on November 20, 1997
<PAGE>
PART I
ITEM 1. BUSINESS
BREED Technologies, Inc. (the "Company" or "BREED") designs, develops,
manufactures and sells a complete range of occupant safety systems and other
components including electronic and electromechanical sensors, airbag modules,
inflators, steering wheels, and plastic exterior and interior components. The
Company's reed switch and silicon micro sensor products are used in a wide
variety of automotive as well as industrial sensor and switching applications.
Headquartered in Lakeland, Florida, BREED is one of the world's leading
suppliers of automotive occupant safety systems and steering wheels, providing
its global automotive customers with research and development, engineering and
manufacturing support through its global network of facilities in 13 countries.
BREED employs more than 11,100 people at its 57 facilities worldwide.
BREED has acquired nine companies in the past three years, five in the area of
electronic components and subassemblies and four in the area of steering wheels,
interior/exterior components and automotive accessories. Throughout the world,
BREED subsidiaries - A(2)M, BREED Italia, Custom Trim, Force Imaging, Gallino
Plasturgia, Hamlin, Italtest, MOMO, United Steering Systems and VTI Hamlin -
provide leading technologies to automotive, industrial and commercial markets.
Recent Developments
Recent acquisitions provide BREED with strategic vertical and horizontal
integration, and strengthen our position as a major global supplier of fully
integrated occupant safety systems. BREED completed several strategic
acquisitions in fiscal 1997, including:
o In July 1996, the steering wheel and plastic exterior and interior components
business of the Gallino Group.
o In October 1996, the steering wheel business of United Technologies
Automotive, renamed United Steering Systems, which provided additional patented
technologies and expanded BREED's customer base, and;
o In March 1997, Custom Trim Ltd., the automobile industry's primary supplier of
leather-wrapped steering wheels and shift knobs.
These acquisitions, combined with the Company's acquisition of MOMO, established
BREED as the world's largest supplier of steering wheels. This position enables
BREED to bid on global steering wheel contracts and provides an entry point for
bidding other global supply agreements in the area of occupant safety. To better
integrate these acquisitions, and to enhance customer support and focus product
development in the Company's core business, BREED restructured its business in
three product divisions during the year. The new structure reflects the
significant shift in BREED's product mix toward integrated occupant safety
systems. The new business units are Electronics/Sensors, Steering Wheels &
Interiors, and Air Bags/Inflators.
On August 27, 1997, BREED entered into an Asset Purchase Agreement with
AlliedSignal, Inc. to acquire its automotive safety restraint business.
AlliedSignal Safety Restraint Systems has annual sales in excess of $900 million
and employs 7,700 people in 14 plants in seven countries. It is the largest
supplier of seatbelts and third largest supplier of airbags in the United
States. Management believes that this strategic combination will make BREED an
even stronger global competitor in fully integrated occupant safety systems. The
transaction is expected to be completed following regulatory review, as well as
other legal requirements in various countries where these businesses operate.
Products
Electronic Products
The Company's principal electronic product line consists of its component
products, including sensors for airbag and non-airbag applications and other
reed switch and reed relay products.
In the airbag sensor market, the Company sells a range of electromechanical
(EMS) sensors, which are based on its proprietary technology. These EMS sensor
products include both ball-in-tube designs and reed switch designs which are
used in vehicles sold in Europe and North America. The Company has manufactured
and sold in excess of 90 million EMS sensors since 1987, and continues to
maintain a significant market position in EMS sensors. These sensors are used as
both complete sensing systems (typically two or three EMS sensors coupled with a
diagnostic module) and in conjunction with electronic sensors (typically one or
two EMS sensors per vehicle).
Many vehicle manufacturers are considering and/or commencing the use of
electronic sensing diagnostic systems (located in the occupant compartment of a
vehicle). Increased use of electronic sensing diagnostic systems will reduce the
use of EMS components in the crash sensing market. In response to this industry
trend, the Company has completed development, and
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<PAGE>
commenced marketing a series of electronic airbag sensing diagnostic modules
(SDM) which include electronic discriminating sensors, electromechanical safing
sensors and diagnostic circuitry. These SDM products are designed to meet
vehicle manufacturer requirements for passenger compartment electronic sensing.
Planned for this next model year is the 'next generation' BREED SDM, offering
greater functionality while reducing costs.
In order to maintain the Company's rigid cost and quality standards, BREED has
vertically integrated the next generation of electronic sensors through Hamlin,
VTI Hamlin and A2M (Enhanced Algorithm Capabilities). This enables the Company
to control sourcing for the most critical components of its SDM. In non-airbag
applications, the Company sells reed switch and silicon capacitive sensors for
use in an increasing number of automotive and non-automotive (e.g., industrial
and medical) products. Reed switch sensor products are used to sense position or
proximity in a wide range of commercial equipment (photocopy machines, exercise
equipment, security systems, cellular phones, etc.). The Company's silicon
sensor products, which include designs to sense acceleration, pressure or
angular rate changes, are used in automotive applications such as electronically
controlled suspension, antilock braking, fuel vapor recovery and manifold
absolute pressure products.
In April 1996 the Company acquired Italtest. This company has high-quality
electronics manufacturing capabilities and is currently making sensing
diagnostic modules for BREED Italia's airbag systems.
In May 1996 the Company acquired Force Imaging Technologies, Inc. (FIT). This
company has a unique patented technology of variable force sensors that have
many applications, including multi-funtion steering wheel capabilities, occupant
sensing and automated seat belt tensioning.
In November 1996 the Company acquired A2M. This company specializes in algorithm
development and signal processing techniques.
Airbag Systems and Components (Inflators, Modules and AMS)
The Company produces driver-side, passenger-side, and side impact airbag
systems. The Company has been supplying mechanically initiated inflators and
modules since 1989, electronically initiated inflators and modules since 1994
and passenger side inflators and modules since 1995. The Company offers
inflators for use in full size airbag systems (US requirement), its smaller
FacebagTM systems (European requirement) and side impact systems. These inflator
products include inflators using sodium azide-based propellants, hybrid
(compressed gas and propellant), "Eco-safe" non-sodium azide-based propellant,
and stored gas designs.
Steering Wheel/Leather Wrapping
The Company acquired Gallino (July 1, 1996) and MOMO (April 15, 1996), steering
wheel suppliers to OEMs in Europe, Asia and the U.S. On October 25, 1996, the
Company acquired the North American and United Kingdom steering wheel business
of United Technologies. This acquisition allows the Company to supply steering
wheels to OEMs in the United States, Canada, Mexico and the United Kingdom. It
further enhances the Company's ability to provide complete integrated airbag
steering wheels to OEMs. Additionally, the Company acquired the stock of BTI
Investments, whose principal business is conducted under the trade name of
Custom Trim. It primarily provides leather wrapping services for steering wheels
and other automotive accessories.
Customers
BREED's future success in the airbag business will depend in large part on its
ability to supply complete occupant protection systems (crash sensors, airbag
modules, steering wheels and integrated airbag/steering wheels) to meet the
changing requirements of automobile manufacturers.
Sales by the Company to Ford for fiscal 1995, 1996 and 1997 accounted for 37%,
33% and 25%, respectively, of the Company's total net sales for these periods.
Sales by the Company to GM and Delphi (including Delco) for fiscal 1995, 1996
and 1997 accounted for 40%, 26% and 13%, respectively, of the Company's total
net sales for these periods. Sales by the Company to the Fiat Group for fiscal
1996 and 1997 accounted for 14% and 32% , respectively, of the Company's sales.
The Company supplies its sensor products primarily to vehicle OEMs, such as
Ford, Fiat, Nissan, Mazda, and to Tier 1 suppliers, such as Delphi (through
Delco). Although the Company has multi-year EMS supply agreements with Ford and
Delphi (through Delco), these contracts do not commit such customers to purchase
any specified quantities of products from the Company, and each of the
agreements is subject to termination under certain conditions. Ford and GM are
replacing EMS sensors with electronic sensors; however, BREED's EMS sensors are
being used as auxiliary sensors in certain vehicles. BREED has expanded its
product lines to include down-sized EMS sensors, electronic SDMs and silicon
microsensors, as well as additional EMS sensors designed for use in SDMs. In
order to meet the demands of the increasing electronic sensor market, the
Company has micromachining manufacturing, electronic assembly capabilities and
algorithm technology. As the EMS sensor market shifts
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to electronic, BREED is adversely affected since there can be no assurance that
these new products will achieve as broad a market position for the Company as it
achieved with its current EMS sensor products; however, additional product lines
including electronic sensing and steering wheels are favorably impacting BREED.
The Company supplies Fiat, Ford of Australia, Chrysler, Jaguar, Proton, and
Ssangyong with airbag modules, and Delphi, Mazda and Suzuki with inflators. The
Company has entered into a multi-year supply agreement with Fiat, Delphi, Proton
and Nihon Plast under which the Company supplies inflators and airbag modules;
these supply agreements are subject to termination under certain conditions. In
addition, the Company supplies Fiat electronic sensing diagnostic modules.
BREED has positioned itself through the acquisitions of MOMO, Gallino and United
Steering Systems as the world's largest supplier of steering wheels. The
Company's wood and leather steering wheels, light alloy wheels and other
high-end car accessories are sold primarily to OEMs such as Ferrari,
Lamborghini, Jaguar, Porsche, Honda, Fuji Heavy and Nissan. In addition, the
Company sells these products to the aftermarket through its distribution
centers. High-volume steering wheel customers include Ford, the Fiat Group,
Chrysler and Nissan. Ford has changed their agreement structure from long-term
agreements to Total Cost Management ("TCM") agreements. The major customers for
the Company's leather wrapping business are TRW, Delphi, Petri, Toyota Gosei and
Centoco.
The Company sells its reed switch and silicon sensor products to a large number
of manufacturers of equipment sold for automotive and non-automotive
applications. Significant customers include Delphi (including Delco),
Morton/Autoliv, Siemens, Bosch, Temic, TRW, Xerox, SMP and Nordic Track, as well
as vehicle OEM customers, including Mitsubishi, Toyota and GM.
Sales and Engineering Support
The Company's customers require early involvement of their suppliers in the
design and engineering aspects of product development. Automobile manufacturers
seek the Company's assistance in airbag sensor and system design and calibration
and the Company has assumed engineering responsibility for the development of
certain components of these sensor airbag systems, including the performance
testing necessary to ensure compliance with the standards and specifications.
The Company has dedicated certain of its engineering staff to the support of its
major customers.
Suppliers and Raw Materials
The Company purchases many of the components for its products (including certain
plastic parts, certain stampings, magnets, precision steel balls, contacts,
certain electronic assemblies, certain wire harnesses, airbag doors/covers,
printed wire boards, certain ignitor assemblies, labels, aluminum propellant
cups, rubber/silicon seals, aluminum, leather) as finished components, and
purchases raw materials (including chemicals for the production of inflator
propellent, resin and hardener for potting compound, impacted aluminum blanks,
steel rod, raw stampings to be welded, airbag fabric, and wire harness
sub-components) from third parties pursuant to supply agreements.
The Company has agreements to purchase most or all of its requirements for
certain components from single sources, typically when the tooling for such is
reimbursed by the OEM customer. Examples include certain plastic parts, certain
stampings, magnets, contacts, certain electronic assemblies, certain wire
harnesses, airbag doors/covers, certain ignitor assemblies, aluminum propellent
cups and resin and hardener for the potting compound. The Company believes that
alternative sources for these single source items are available at competitive
prices. No significant supply problems have been encountered in recent years,
and relationships with suppliers have generally been good.
Patents, Trademarks and Licenses
The Company currently owns a significant number of United States and related
foreign patents in certain countries, which expire on varying dates from 1997
through 2016. It also has trademarked several corporate icons. While the Company
considers its patents and trademarks to be valuable assets, it does not believe
that its competitive position is dependent on patent and/or trademark protection
or that its operations are dependent on any individual patent.
The Company has granted licenses to specified portions of the Company's
technology in exchange for ongoing royalties and other payments. The Company's
licensees include Sensor Technology Co. Ltd., Tokai Rika and Oki. The Company
pays royalties to United Technologies Corporation in connection with the sale
and licensing of certain of the Company's EMS airbag sensor products.
Backlog
For automotive customers, the Company does not manufacture or ship products
until it has received a purchase order and material release which specifies the
quantity ordered and specific delivery dates. Generally these orders are shipped
within two weeks of receipt of the final material release. The Company's
non-automotive products are produced for stock based on sales forecasts and
historical demand. The backlog at June 30, 1997 is not significant.
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Engineering Research and Development
The Company places significant emphasis on new product and technology
development and has increased its research and development activities in each of
the last three years. During fiscal 1995, 1996 and 1997, engineering, research
and development expenses were approximately $18.5 million, $23.6 million and
$36.1 million, respectively.
The Company's research and development activities are focused on development of
new airbag sensor, inflator and module products including integrated airbag,
steering wheels with multifunction membrane sensors and enhancements or cost
improvements for existing products. New airbag sensor products and technology
which are subjects of this research and development activity include a series of
electronic sensing diagnostic modules, down-sized spring-bias electromechanical
sensors, and side impact and predictive sensing systems. New inflator and module
products and technologies which are subjects of this research and development
activity include mechanically and electrically initiated passenger-side systems,
non-sodium azide-based products and side impact systems. The Company also is
developing a new series of down-sized silicon capacitive sensors for
acceleration, pressure and angular rate applications as well as membrane sensors
for accessory function and occupant detection systems. In addition, the company
is also working on developing micro machined and ultrasonic sensors for occupant
detection systems.
Competition
The Company competes with independent suppliers of steering wheels, airbag
sensors, systems and their components. In addition, many of the Company's
customers are integrated manufacturers which produce or could produce a
substantial portion of their own requirements for certain airbag components. The
Company competes primarily on the basis of its product quality, price,
reliability, engineering support and production capabilities.
The Company principally competes for new steering wheel sensor, inflator and
leather wrapping business at the beginning of the development of new vehicle
models. The Company also competes for new business upon the redesign of existing
models by its customers or, in the case of inflators and modules, as a
replacement supplier for existing models. The development of new models and
redesign of existing models generally begin three to five years and two to three
years, respectively, prior to the marketing of such models to the public.
Airbag Sensors
The Company's principal competitor in the market for electromechanical sensors
is TRW. The Company's sensors also compete with electronic sensors currently
offered or under development by competitors such as TRW, Robert Bosch GmbH
("Bosch"), Siemens, Morton/Autoliv, Temic, Nippondenso and Delphi (through
Delco) and the internal electronics divisions of Ford.
Inflators
The current market for airbag inflators is dominated by a small number of
companies, most of which have significant financial and other resources. The
Company's principal competitors in the sale of inflators are Autoliv/Morton, TRW
and Takata, which offer inflator products on a worldwide basis, and Temic, which
offers inflator products in Europe. In addition, a number of competitors,
including AlliedSignal, Inc., Magna, Morton/Autoliv and OEA Inc., have joint
ventures for the development and sale of alternative inflator technologies. The
Company's ability to compete effectively in the sale of inflator products may be
limited by pre-existing contractual relationships between its competitors and
certain automobile manufacturers.
Airbag Systems
The Company believes that its AMS systems are the only currently available
airbag system using mechanical sensing and initiation. In selling these systems,
the Company competes with independent suppliers of electrically initiated airbag
systems and components and, in Japan, the Company's licensees, STC and Tokai
Rika. The Company's competitors with respect to complete electrically initiated
airbag systems include TRW, Takata Inc., Morton/Autoliv, AlliedSignal, Inc.,
Morton, Magna, Temic and manufacturers of airbag components for customers
assembling their own airbag systems.
Reed Switch Products
The primary competition for the sale of reed switches are Phillips, N.V. and
Oki. In addition, there are a number of small regional reed switch producers in
North America, Europe and Asia. For value-added reed switch products such as
position sensors, there are also several small regional competitors. For reed
relay products, the primary competitors are C.P. Claire and Coto-Wabash.
Silicon Sensor Products
There exists a significant number of competitors in the market for various kinds
of silicon microsensors, some of which have broad product offerings comparable
to or greater than those of the Company. These include such companies as Texas
Instruments, Inc., Motorola, Inc., Analog Devices, Inc., E.G.& G/IC Sensors,
Inc., Sensonor, and the internal operations of certain vehicle and equipment
manufacturers. However, the Company's sensor designs are proprietary and unique
to the
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Company, and only a limited number of the Company's silicon sensor competitors
offer capacitive technology.
Steering Wheels and Road Wheels
The North American steering wheel operations competes on sales to OEMs with TRW,
Petri, Centoco, Toyota Gosei and Neaton. The European steering wheel companies
compete in OEM sales with Morton/Autoliv, Dalphi Metal, Delphi and Petri. The
luxury steering wheels of the Company compete with NARDI. In Italy, competitors
for road wheels include Fondmetal, OZ, and Speedline. Other competitors include
BBS and ATS in Germany, Boid in the United States, and Taneisha in Japan.
Government Regulations
Automotive Regulations
Airbag systems installed in automobiles sold in the United States must comply
with government regulations. The Company's customers are required to
self-certify that airbag systems installed in vehicles sold in the United States
satisfy these requirements.
Environmental Regulations
The Company uses various hazardous and toxic substances in its manufacturing
processes including certain solvents, lubricants, sodium azide and other
pyrotechnic materials. The Company's operations are subject to numerous Federal,
state and local laws, regulations and permit requirements relating to the
handling, storage, disposal and transportation of certain of these substances.
The Company's foreign operations are also subject to various environmental and
transportation-related statutes and regulations. Generally, these foreign
requirements tend to be no more restrictive than those in effect in the United
States. The Company believes that it is in substantial compliance with existing
laws and regulations and has obtained or applied for the necessary permits to
conduct its business operations. Compliance by the Company with applicable
environmental laws has not had a material adverse effect on the Company's
financial condition or competitive position to date. Although no assurances can
be given, the Company does not believe that compliance with existing
environmental or other governmental laws or regulations will have a material
adverse effect in the future.
Product Liability
The sale of airbag systems and components entails an inherent risk of product
liability claims. Although the Company maintains product liability insurance,
there can be no assurance that the coverage limits of the Company's insurance
policies will be adequate. Such insurance can be expensive and in the future may
not be available on acceptable terms, if at all. A successful claim brought
against the Company resulting in a recovery in excess of its insurance coverage
could have a material adverse effect on the Company's financial condition and
results of operations. However, there are no lawsuits pending against the
Company which the Company believes at this time, to be material. With regard to
the pending acquisition of AlliedSignal's Safety Restraint Systems Division, the
Company will not be responsible for any pending product liability matters.
Employees
As of September 1, 1997, the Company has approximately 11,100 full time
employees worldwide. The Company's United States employees are unionized in two
locations, representing approximately 26% of the domestic workforce. The
Company's hourly employees in Mexico, Italy and Finland are represented by labor
unions. The Company has not experienced any legal work stoppages and considers
its relations with its employees to be good. Wages are negotiated under the
Company's Mexican union agreements in December of each year, with the full
contract negotiation every two years.
Executive Officers of the Registrant
Information regarding the Executive Officers of the Company are set forth as
follows:
Allen K. Breed 70 Chairman of the Board of Directors
Johnnie Cordell Breed 53 Co-Chairman and Chief Executive Officer
Charles J. Speranzella, Jr. 41 Vice Chairman
Fred J. Musone 53 President, Chief Operating Officer
Robert M. Rapone 41 Executive Vice President,
Operations Worldwide
Frank J. Gnisci 47 Executive Vice President,
Chief Financial Officer
Arthur R. Schauffert, Jr. 46 Treasurer
Lizanne Guptill 42 Secretary
Mr. Breed, founder of the Company, has been Chairman of the Company since its
inception. Mr. Breed served as Chief Executive
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Officer through August, 1997. Mr. Breed is also Chairman, President and owner of
BREED Corporation, a real estate holding Company. Mr. Breed is the husband of
Johnnie Cordell Breed.
Mrs. Breed was elected Co-Chairman of the Board and Chief Executive Officer of
the Company on August 27, 1997 and has been a director of the Company since its
inception. Mrs. Breed served as President and Chief Operating Officer from
September, 1995. Mrs. Breed also serves as Vice President of BREED Corporation.
In 1982, Mrs. Breed co-founded Transcor, Inc., a provider of transportation
travel services. She is currently the Secretary, Treasurer and sole stockholder
of Transcor, Inc. Mrs. Breed is the wife of Allen K. Breed.
On August 27, 1997, Mr. Speranzella was elected Vice Chairman of the Company.
Mr. Speranzella joined the Company as General Counsel and Assistant Secretary in
September, 1994. He became Managing Senior Vice President, General Counsel and
Assistant Secretary in February, 1995. Mr. Speranzella was elected Corporate
Secretary in May, 1995. He was promoted to Executive Vice President, General
Counsel and Secretary in July, 1995. Mr. Speranzella became President of BREED
European Holdings, Inc. in June 1996. From 1979 until joining the Company, he
held various senior positions at Matra Hachette's Fairchild Space and Defense
Corporation and Martin Marietta.
Mr. Musone joined the Company on September 2, 1997 as President and Chief
Operating Officer. Prior to joining the Company, Mr. Musone was President and
Chief Operating Officer of Morton International ASP/Autoliv, Inc., a
manufacturer of automotive safety products, since 1995. He held various
management positions with Federal Mogul Corporation from 1972 through 1995, the
most recent position being President of Worldwide Manufacturing Operations.
Mr. Rapone joined the Company as Executive Vice President, Operations Worldwide
on September 2, 1997. Since 1995, Mr. Rapone was Vice President of Operations
for Morton International ASP/Autoliv, Inc., a manufacturer of automotive safety
products. From 1989-1995, Mr. Rapone was employed by Federal Mogul Corporation,
serving most recently as Director of Connectivity. From 1983-1989, Mr. Rapone
was employed by Texas Instruments in various management positions.
Mr. Gnisci joined the Company as Executive Vice President, Chief Financial
Officer on September 8, 1997. Prior to joining the Company, Mr. Gnisci was Vice
President of Finance for Terex Corporation, a manufacturer of heavy duty
construction vehicles and equipment, since 1994. From 1991-1994, Mr. Gnisci was
Vice President of Finance for Babcock Industries, Inc., a manufacturer of
conveyor systems. Mr. Gnisci was employed by Gold Fields Mining Corporation from
1987-1991 as Vice President and Controller. From 1979-1987, Mr. Gnisci was
employed by Chicago Pneumatic Tool Company in various financial positions,
including Assistant Controller and Director of Corporate Audit.
Mr. Schauffert joined the Company in 1993 as Treasurer. Prior to that time, he
was Treasurer and Assistant Secretary of Moog Automotive, Inc. He joined Moog in
1988 from St. Joe Minerals Corporation, where he held various positions,
including Treasurer, from 1980 until 1987.
Ms. Guptill joined the Company in 1993 as a Legal Assistant to the General
Counsel, specializing in corporate and business law. Prior to joining the
Company, Ms. Guptill was a Legal Assistant with the Corporate Legal Department
of Marriott International, Inc. since 1990. Ms. Guptill was employed as a Legal
Assistant with the General Corporate division of Hayt, Hayt & Landau in Miami
from 1984 - 1990.
Financial Information About Foreign and Domestic Operations and Export Sales
The information required by this Item is contained in the Company's financial
statement footnote 9 under the heading "Information Related to Customers and
Operations in Different Geographic Areas" on page F-11 appearing elsewhere in
this report.
ITEM 2. PROPERTIES
The following table provides certain information regarding the Company's
significant facilities (in excess of 25,000 square feet):
<TABLE>
<CAPTION>
Approximate Type of
Location Square Footage Interest Description of Use Name of Company
- -------- -------------- -------- ------------------ ---------------
<S> <C> <C> <C> <C>
Lakeland, Florida 195,000 Owned Corporate Headquarters BREED Technologies, Inc.
Manufacturing and Engineering
Brownsville, Texas 51,000 Owned Distribution and Administration BREED Manufacturing of Texas, Inc.
Farmington Hills, Michigan 25,452 Leased Technical Center: BREED Technologies, Inc.
Engineering, Sales, Customer USS, Inc.
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Support and Research & A2M
Development
Valle Hermoso, Mexico 139,000 Owned Manufacturing BREED Mexicana, S.A. de C.V.
Matamoros, Mexico 103,000 Owned Manufacturing PEBAC
Grabill, Indiana 174,000 Owned Manufacturing USS, Inc.
Niles, Michigan 173,000 Leased Manufacturing USS, Inc.
Santa Catarina, Mexico 45,000 Leased Manufacturing USS, Inc.
Birmingham, England 150,000 Owned Manufacturing USS, Clifford Ltd.
Lake Mills, Wisconsin 70,000 Owned Manufacturing, Sales and Hamlin, Inc.
Engineering
Aqua Prieta, Mexico 34,000 Owned Manufacturing Hamlin, S.A. de C.V.
Diss, England 44,000 Owned Vacant-Facility is for sale Hamlin Electronics Europe, Ltd.
Diss, England 61,000 Owned Manufacturing H.E.E.L.
Torino, Italy 50,000 Leased Manufacturing BREED Italia, S.r.L.
Milan, Italy 57,000 Owned Manufacturing and MOMO SpA
Engineering
Tregnago, Italy 371,000 Owned Manufacturing DUE LM Srl.
Torino, Italy 52,000 Owned Manufacturing Gallino AG International
Torino, Italy 82,000 Leased Manufacturing Gallino Rivalta
Torino, Italy 56,000 Owned Manufacturing Gallino San Benigno
Milano, Italy 50,000 Leased Manufacturing Gallino Macchi Renate 1
Milano, Italy 70,000 Leased Manufacturing Gallino Macchi Renate 2
Torino, Italy 160,000 Owned Manufacturing Gallino Copiano
Milano, Italy 52,000 Leased Manufacturing Gallino AutoAvio
Frosinone, Italy 113,000 Owned Manufacturing Gallino A.P. Co.
Waterloo, Ontario 100,000 Leased Manufacturing Custom Trim Ltd.
Matamoros, Mexico 120,000 Owned Manufacturing Auto Trim de Mexico (ATM)
Tamaulipas, Mexico 40,000 Leased Manufacturing Custom Trim de Mexico (CTM1)
</TABLE>
ITEM 3. LEGAL PROCEEDINGS
There are no material pending legal proceedings, other than ordinary routine
litigation incidental to the business, to which the registrant or any of its
subsidiaries is a party.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of the year ended June 30, 1997.
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's stock is traded on the New York Stock Exchange under the symbol
BDT. There were 1,160 stockholders of record of the Company's stock as of July
31, 1997. On August 31, 1994, the Board of Directors declared a quarterly
dividend of 5 cents per share on its common stock, the first dividend since
becoming a public Company in November 1992. Additional information required by
this Item is contained in the Company's financial statement footnote 10
"Quarterly Financial Information (Unaudited)" on page F-12 appearing elsewhere
in this report.
ITEM 6. SELECTED FINANCIAL DATA
The selected consolidated financial data presented below as of and for the five
years in the period ended June 30, 1997, have been derived from the consolidated
financial statements of the Company, which financial statements have been
audited by Ernst & Young LLP, independent certified public accountants.
SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
In thousands, except per share data 1997 1996 1995 1994 1993
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Operational Data
Net sales..................................................... $794,880 $431,689 $400,972 $324,673 $191,564
Cost of sales................................................. 631,283 277,044 244,551 206,828 133,869
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit.................................................. 163,597 154,645 156,421 117,845 57,695
Selling, general and administrative........................... 70,583 38,243 33,098 28,872 22,814
Engineering research and development.......................... 36,121 23,588 18,506 14,755 9,592
Amortization of intangibles................................... 6,310 2,001 286 -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Operating income.............................................. 50,583 90,813 104,531 74,218 25,289
Interest income (expense), net................................ (24,460) (1,137) 704 529 (1,135)
Other income (expense), net................................... 3,524 8,662 4,898 (1,738) 3,484
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings before income taxes.................................. 29,647 98,338 110,133 73,009 27,638
Income taxes.................................................. 14,800 35,300 37,800 28,386 9,334
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings.................................................. $ 14,847 $ 63,038 $ 72,333 $ 44,623 $ 18,304
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock Data
Earnings per share............................................ $ .47 $ 2.00 $ 2.30 $ 1.43 $ .62
Cash dividends................................................ $ 8,864 $ 7,575 $ 6,292 -- --
Dividends per share........................................... $ .28 $ .24 $ .20 -- --
Average shares outstanding.................................... 31,648 31,550 31,434 31,247 29,555
Balance Sheet Data
Current assets................................................ $315,524 $266,623 $131,975 $137,188 $ 94,216
Current liabilities........................................... $362,728 $176,452 $ 56,488 $ 42,498 $ 30,523
Working capital (deficiency).................................. $(47,204) $ 90,171 $ 75,487 $ 94,690 $ 63,693
Current ratio................................................. .9 to 1 1.5 to 1 2.3 to 1 3.2 to 1 3.1 to 1
Property, plant and equipment, net............................ $276,450 $171,653 $127,577 $ 66,631 $ 51,106
Total assets.................................................. $877,153 $503,802 $278,698 $206,340 $147,503
Long-term debt................................................ $231,700 $ 42,123 $ 1,868 $ 11,126 $ 10,846
Stockholders' equity.......................................... $266,419 $275,080 $218,721 $151,248 $104,671
Other Data
Capital expenditures.......................................... $ 75,851 $ 45,370 $ 69,268 $ 23,601 $ 16,978
Depreciation and amortization................................. $ 48,534 $ 20,091 $ 13,895 $ 8,890 $ 7,484
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The following discussion and analysis should be read in conjunction with the
audited Consolidated Financial Statements and accompanying notes thereto
appearing elsewhere in this report.
9
<PAGE>
OVERVIEW
During fiscal 1997, BREED continued to implement its strategic plan to
reposition the Company as a world leader in fully integrated vehicle occupant
safety systems and automotive steering wheels. Three major acquisitions were
made during the year. In July 1996, the Company acquired the Gallino group, an
Italian based manufacturer of steering wheels and plastic instrument panels and
bumpers. In October 1996, the Company acquired the steering wheel operations of
united technologies. The company, United Steering Systems (USS), produces
steering wheels, airbag covers, horn pads and related molded products in the
U.S., Mexico and England. Additionally, in February 1997, the Company acquired
the Custom Trim group. These operations, located in Canada and Mexico, produce
leather wrapped steering wheels and other automotive leather wrapped products.
the Company acquired MOMO, an original equipment manufacturer and aftermarket
supplier of luxury steering wheels and alloy wheels, in the fourth quarter of
fiscal 1996. The revenues and operating results of BREED were significantly
impacted by the results of operations and the costs related to the integration
of these acquired companies and, as a result, comparison of 1997 to 1996 results
are not as meaningful as in prior years.
RESULTS OF OPERATIONS
1997 Compared to 1996
Net sales increased by $363 million in 1997 due to $435 million of net
sales related to the acquisitions made during the year and the fourth quarter of
fiscal 1996. This increase was partially offset by a $61 million decrease in
electromechanical sensor sales as a major customer shifted to "in-house"
electronic sensors. Consolidated gross profit decreased to 20.6% in 1997 from
35.8% in 1996. Gross profit on the sales of steering wheel products to original
equipment manufacturers are lower as a percent of sales compared to margins on
the Company's sensor products and complete airbag systems. Additionally, plant
consolidation costs contributed to the decrease in gross profit. Operating
expenses increased primarily as a result of the acquisitions and to increased
research and development spending related to new product development for
non-azide/reduced sized inflators, electronic sensing (including occupant,
weight and horn) and side impact technology. Net interest expense increased $23
million primarily as a result of borrowings used to finance recent acquisitions
and to the existing debt of the acquired companies. Other income (expense), net
decreased as a result of a reduction in royalty income from its Japanese
licencees. The higher effective tax rate of 49.9% in 1997 compared to 35.9% in
1996 was primarily due to the amortization of goodwill without tax benefit and
higher foreign tax rates. 1996 also included a benefit related to a reduction in
taxes provided in prior years.
1996 Compared to 1995
The increase in net sales was due primarily to MOMO, acquired in April
1996, and to increases in sales of complete airbag systems. Unit sales for
airbag systems increased from 396,000 in 1995 to 700,000 in 1996, due primarily
to increased sales to Ford and Fiat. Emphasis on worldwide opportunities and
global expansion in 1996 resulted in international sales growth outpacing the
domestic growth rate. Significant contributions from operations outside the
United States as well as export activities underscored the Company's expanded
presence in international markets. The decrease in gross profit percent was
primarily due to a shift to a lower margin product mix and higher costs related
to new customer product launches. The increased engineering, research and
development expense was primarily related to the development and testing of
electronic sensors products, including occupant sensing and accelerometer
development; the next generation inflator family, including non-azide and
down-sized inflators; new side-impact products; and the development of
technologies related to modules, steering wheels, airbag material and associated
components. Other income (expense), net increased primarily as a result of
foreign currency exchange gains. The higher effective tax rate of 35.9% in 1995
compared to 34.3% in 1995 was primarily due to the absence of a current tax
benefit for losses of certain foreign entities.
LIQUIDITY AND CAPITAL RESOURCES
Cash provided by operating activities was a primary source of liquidity and
amounted to $89 million in 1997, $41 million in 1996, and $69 million in 1995.
Cash provided by operations have been used primarily to finance capital
expenditures, provide working capital, support research and development
activities, and pay dividends. In 1997, the company invested $76 million in
property, plant and equipment to expand capacity and tool new products.
Investments continue to be made in new equipment throughout the Company to
support productivity improvements, cost reduction programs, and to add capacity
for existing and new products. Working capital needs included higher levels of
accounts receivable relating to higher sales volume, and increased inventory
levels to support sales growth and to maintain service levels during facility
relocations undertaken as part of the Company's restructuring actions.
As discussed in note 12 of the Notes to Consolidated Financial Statements, on
August 27, 1997 the Company entered into an agreement to acquire the worldwide
automotive occupant restraint systems of AlliedSignal Inc., for $710 million in
cash. The Company is considering various methods of financing the transaction,
including additional bank borrowings and the private placement of equity and/or
debt securities.
10
<PAGE>
The Company restructured its worldwide credit facilities during 1997
resulting in the refinancing of domestic and international debt with a
combination of short-term revolving credit lines and longer-term debt. The
Company has relationships with foreign and domestic banks that have provided
$450 million under two credit agreements, expiring through April 2002, to fund
fluctuations in working capital and acquisitions. As of June 30, 1997, $92
million was available for borrowing under the facilities. Bank debt has been
used primarily to finance acquisitions. The Company is actively seeking
acquisition candidates that complement or support the Company's core
competencies and, depending upon the size and structure of such acquisitions,
additional financing may be required.
The Company has historically relied upon cash generated from operations and
bank credit lines to satisfy its capital needs and finance its growth. The
Company believes that cash from operations and available bank credit lines will
be sufficient to satisfy its working capital and capital expenditure needs for
1998. The Company also believes it can access additional financing and equity
capital to finance major transactions beyond its normal working capital and
capital expenditure requirements.
ACQUISITIONS
During 1997, the Company completed three acquisitions. In July 1996, the
Gallino group, an Italian manufacturer of steering wheels and automotive
plastics interior and exterior parts, was acquired for $74 million in cash and
$52 million of debt and personnel-related liabilities. In October 1996, the
Company completed the acquisition of certain assets and the assumption of
certain liabilities of the North American steering wheel operations of United
Technologies and all of the outstanding shares of United Technologies
Automotive, U.K. for $154 million. The companies produce steering wheels, airbag
covers, horn pads and related molded products. In February 1997, the Company
acquired the Custom Trim group of companies for $70 million. The acquired
operations produce leather-wrapped steering wheels, shift knobs and boots,
injection molded levers and leather sewing of armrests, headrests and seating.
ENVIRONMENTAL MATTERS
The Company believes it is substantially in compliance with all applicable
environmental laws and regulations and that the cost of maintaining compliance
with such laws and regulations will not be material to its financial results.
DIVIDENDS
In 1997, the Company declared cash dividends of $.28 per share, or $8.9
million. These dividends represent 60 percent of net earnings in 1997 compared
to dividends representing 12 percent of net earnings in 1996. Debt covenants
permit the Company to continue paying dividends at the current rate provided
that the Company demonstrates compliance with the minimum net worth covenant
prior to and following the declaration of any such dividends.
SAFE HARBOR STATEMENT
Except for the historical information contained herein, certain matters
discussed in this annual report are "forward-looking statements" as defined in
the Private Securities Litigation Reform Act of 1995, which involve risks and
uncertainties, and are subject to change based on various important factors. The
forward-looking statements in this document are intended to be subject to the
safe harbor protection provided by Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. For a discussion identifying
some important factors that could cause actual results to vary materially from
those anticipated in the forward-looking statements, such as the economic,
currency, regulatory, legal, technological, and competitive changes which may
affect the Company's operations, products and markets, see the Company's
Securities and Exchange Commission filings.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements listed in Item 14(a)(1) are included in this report
beginning on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
None.
11
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information required by this Item is incorporated herein by reference to the
information under the heading " Nominees for Election as Directors" in the
Company's definitive Proxy Statement to be used in connection with the Company's
1997 Annual Meeting of Stockholders, which has been filed with the Commission.
Information concerning executive officers of registrant are set forth in Item I
of this 10K.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated herein by reference to the
information under the heading "Compensation of Executive Officers" in the
Company's definitive Proxy Statement to be used in connection with the Company's
1997 Annual Meeting of Stockholders, which will be filed with the Commission.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated herein by reference to the
information under the heading "Stock Ownership of Certain Beneficial Owners and
Management" in the Company's definitive Proxy Statement to be used in connection
with the Company's 1997 Annual Meeting of Stockholders, which has been filed
with the Commission.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to the
information under the heading "Certain Transactions" in the Company's definitive
Proxy Statement to be used in connection with the Company's 1997 Annual Meeting
of Stockholders, which has been filed with the Commission.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this report:
(1) Financial Statements.
Consolidated Balance Sheets at June 30, 1996 and 1997 F-1
Consolidated Statements of Earnings for the years
ended June 30, 1995, 1996 and 1997 F-2
Consolidated Statements of Stockholders' Equity
for the years ended June 30, 1995, 1996 and 1997 F-3
Consolidated Statements of Cash Flows for the years
ended June 30, 1995, 1996 and 1997 F-4
Notes to Consolidated Financial Statements F-5
Report of Certified Public Accountants F-12
(2) Financial statements schedules. None. The required information is
either not applicable or is included in the financial statements
or notes thereto.
(3) Exhibits. The Exhibits listed in the Exhibit Index immediately
preceding such Exhibits are filed as part of this Annual Report
on Form 10-K
(b) Reports on Form 8-K filed during the last quarter of fiscal 1997: None
12
<PAGE>
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
June 30,
In thousands 1997 1996
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS
Current Assets
Cash and cash equivalents............................................................................... $ 18,707 $ 95,830
Accounts receivable, principally trade.................................................................. 207,951 110,656
Inventories............................................................................................. 75,347 52,890
Prepaid expenses........................................................................................ 13,519 7,247
- ------------------------------------------------------------------------------------------------------------------------------------
Total Current Assets...................................................................................... 315,524 266,623
- ------------------------------------------------------------------------------------------------------------------------------------
Property, Plant and Equipment
Land.................................................................................................... 15,206 10,805
Buildings............................................................................................... 106,122 73,342
Machinery and equipment................................................................................. 212,542 126,947
Construction in progress................................................................................ 28,013 14,417
- ------------------------------------------------------------------------------------------------------------------------------------
361,883 225,511
Less accumulated depreciation........................................................................... (85,433) (53,858)
- ------------------------------------------------------------------------------------------------------------------------------------
276,450 171,653
- ------------------------------------------------------------------------------------------------------------------------------------
Intangible Assets......................................................................................... 220,956 45,053
Net Assets Held For Sale.................................................................................. 52,620 --
Investments and Other Assets.............................................................................. 11,603 20,473
- ------------------------------------------------------------------------------------------------------------------------------------
Total Assets.............................................................................................. $877,153 $503,802
====================================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Notes payable and current portion of long-term debt..................................................... $191,744 $120,688
Accounts payable........................................................................................ 121,505 33,940
Employee compensation and benefits...................................................................... 16,818 13,844
Accrued expenses........................................................................................ 32,661 7,980
- ------------------------------------------------------------------------------------------------------------------------------------
Total Current Liabilities................................................................................. 362,728 176,452
Long-Term Debt............................................................................................ 231,700 42,123
Other Long-Term Liabilities............................................................................... 16,306 10,147
- ------------------------------------------------------------------------------------------------------------------------------------
Total Liabilities......................................................................................... 610,734 228,722
- ------------------------------------------------------------------------------------------------------------------------------------
Stockholders' Equity
Common stock............................................................................................ 317 316
Additional paid-in capital.............................................................................. 77,470 76,652
Retained earnings....................................................................................... 207,964 201,981
Foreign currency translation adjustments................................................................ (18,843) (2,927)
Unearned compensation................................................................................... (489) (942)
- ------------------------------------------------------------------------------------------------------------------------------------
Total Stockholders' Equity................................................................................ 266,419 275,080
- ------------------------------------------------------------------------------------------------------------------------------------
Total Liabilities and Stockholders' Equity................................................................ $877,153 $503,802
====================================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements
F-1
<PAGE>
CONSOLIDATED STATEMENTS OF EARNINGS
<TABLE>
<CAPTION>
Year ended June 30,
In thousands, except for per share data 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Sales.................................................................................. $794,880 $431,689 $400,972
Cost of sales.............................................................................. 631,283 277,044 244,551
- ------------------------------------------------------------------------------------------------------------------------------------
Gross profit............................................................................... 163,597 154,645 156,421
- ------------------------------------------------------------------------------------------------------------------------------------
Selling, general and administrative........................................................ 70,583 38,243 33,098
Engineering, research and development...................................................... 36,121 23,588 18,506
Amortization of intangibles................................................................ 6,310 2,001 286
- ------------------------------------------------------------------------------------------------------------------------------------
Operating income........................................................................... 50,583 90,813 104,531
Interest income (expense), net............................................................. (24,460) (1,137) 704
Other income (expense), net................................................................ 3,524 8,662 4,898
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings before income taxes............................................................... 29,647 98,338 110,133
Income taxes............................................................................... 14,800 35,300 37,800
- ------------------------------------------------------------------------------------------------------------------------------------
Net Earnings............................................................................... $ 14,847 $ 63,038 $ 72,333
====================================================================================================================================
Earnings per Share......................................................................... $ 0.47 $ 2.00 $ 2.30
====================================================================================================================================
Cash Dividends per Share................................................................... $ 0.28 $ 0.24 $ 0.20
====================================================================================================================================
Average Shares Outstanding................................................................. 31,648 31,550 31,434
====================================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements
F-2
<PAGE>
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Foreign
Additional Currency
Common Stock Paid-In Retained Translation Unearned
In thousands, except for per share data Shares Amount Capital Earnings Adjustments Compensation
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at June 30, 1994........................ 31,342,033 $313 $71,395 $ 80,477 $ (937) $ --
Shares issued under Stock Option Plans........ 52,024 1 686 -- -- --
Shares sold under Employee Stock
Purchase Plan............................... 51,843 -- 1,054 -- -- --
Shares terminated under Stock Incentive
Plan, net of granted shares................. 69,490 1 1,927 -- -- (1,927)
Compensation expense.......................... -- -- -- -- -- 296
Net earnings.................................. -- -- -- 72,333 -- --
Translation adjustments....................... -- -- -- -- (606) --
Cash dividends--$.24 per share................ -- -- -- (6,292) -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at June 30, 1995........................ 31,515,390 315 75,062 146,518 (1,543) (1,631)
Shares issued under Stock Option Plans........ 67,561 1 786 -- -- --
Shares sold under Employee Stock
Purchase Plan............................... 60,906 -- 1,038 -- -- --
Shares terminated under Stock Incentive
Plan, net of granted shares................. (17,200) -- (459) -- -- 459
Compensation expense.......................... -- -- -- -- -- 230
Tax benefit from exercise of stock options.... -- -- 225 -- -- --
Net earnings.................................. -- -- -- 63,038 -- --
Translation adjustments....................... -- -- -- -- (1,384) --
Cash dividends--$.24 per share................ -- -- -- (7,575) -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at June 30, 1996........................ 31,626,657 316 76,652 201,981 (2,927) (942)
Shares issued under Stock Option Plans........ 38,695 1 537 -- -- --
Shares sold under Employee Stock
Purchase Plan............................... 27,082 -- 529 -- -- --
Shares terminated under Stock Incentive
Plan, net of granted shares................. (12,992) -- (364) -- -- 364
Compensation expense.......................... -- -- -- -- -- 89
Tax benefit from exercise of stock options.... -- -- 116 -- -- --
Net earnings.................................. -- -- -- 14,847 -- --
Translation adjustments....................... -- -- -- -- (15,916) --
Cash dividends--$.28 per share................ -- -- -- (8,864) -- --
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at June 30, 1997........................ 31,679,442 $317 $77,470 $207,964 $(18,843) $ (489)
====================================================================================================================================
</TABLE>
Preferred stock: Authorized 5,000,000 shares, par value $.001 per share. To
date, none of these shares has been issued. Common stock: Authorized 50,000,000
shares, par value $.01 per share.
See Notes to Consolidated Financial Statements.
F-3
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year ended June 30,
In thousands 1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Cash Flows from Operating Activities
Net earnings............................................................................ $ 14,847 $ 63,038 $ 72,333
Adjustments:
Depreciation of plant and equipment................................................... 42,224 18,090 13,609
Amortization of intangible assets..................................................... 6,310 2,001 286
Deferred income taxes................................................................. 1,157 1,665 (1,550)
Loss (gain) from sale of assets....................................................... 634 (1,517) (1,349)
Compensation related to stock plan.................................................... 89 230 296
Changes in operating assets and liabilities, net of effects from acquisitions:
Accounts receivable................................................................. (16,284) (30,667) (5,473)
Inventories......................................................................... 2,234 (1,548) (6,526)
Prepaid expenses.................................................................... (720) (717) (334)
Accounts payable.................................................................... 37,047 843 1,915
Accrued expenses.................................................................... (7,597) (9,215) (3,173)
Other assets and liabilities........................................................ 9,418 (1,000) (891)
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash provided by operating activities............................................... 89,359 41,203 69,143
- ------------------------------------------------------------------------------------------------------------------------------------
Cash Flows from Investing Activities
Purchases of property, plant and equipment.............................................. (75,851) (45,370) (69,268)
Sale (purchases) of short-term investments, net......................................... -- 10,601 12,386
Cost of acquisitions, net of cash acquired.............................................. (291,922) (48,507) (6,941)
Deposit on Gallino acquisition.......................................................... -- (10,299) --
Investment in and advances to affiliates................................................ (874) -- (6,376)
Proceeds from sale of assets............................................................ 1,382 2,742 1,349
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities................................................... (367,265) (90,833) (68,850)
- ------------------------------------------------------------------------------------------------------------------------------------
Cash Flows from Financing Activities
Proceeds from short-term borrowings..................................................... 577,688 86,957 5,486
Repayments of long-term debt and other borrowings....................................... (412,830) (6,356) (9,333)
Proceeds from long-term debt............................................................ 45,441 45,000 --
Cash dividends paid..................................................................... (8,861) (6,938) (4,715)
Common stock issued--options and stock plans............................................. 1,182 2,050 1,741
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash provided by (used in) financing activities..................................... 202,620 120,713 (6,821)
Effect of Exchange Rate Changes on Cash................................................. (1,837) (1,608) (587)
- ------------------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents.................................... (77,123) 69,475 (7,115)
Cash and cash equivalents at beginning of year.......................................... 95,830 26,355 33,470
- ------------------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at end of year................................................ $ 18,707 $ 95,830 $ 26,355
====================================================================================================================================
Supplemental Disclosures of Cash Flow Information Cash paid during the year for:
Interest.............................................................................. $ 20,776 $ 2,347 $ 1,794
Income taxes.......................................................................... 12,914 32,230 39,520
Cost of Acquisitions:
Working capital (deficiency), net of cash acquired.................................... $ (23,534) $ 125 $ 6,824
Property, plant and equipment......................................................... (144,995) (18,021) (4,483)
Patents............................................................................... (16,000) -- (5,272)
Cost in excess of net assets of businesses acquired................................... (158,073) (35,718) (3,634)
Other assets.......................................................................... (2,231) (3,066) (451)
Long-term debt and other long-term liabilities........................................ 52,911 8,173 75
- ------------------------------------------------------------------------------------------------------------------------------------
Net cost of acquisitions.............................................................. $(291,922) $(48,507) $ (6,941)
====================================================================================================================================
</TABLE>
See Notes to Consolidated Financial Statements.
F-4
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The consolidated financial statements include the accounts of BREED
Technologies, Inc. (the Company) and its wholly-and majority-owned subsidiaries.
All intercompany balances and transactions have been eliminated in
consolidation. The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined
primarily using the first-in, first-out method for inventories in North America
and primarily using the average cost method for inventories in Europe.
Property, Plant and Equipment
Property, plant and equipment are stated at cost. Depreciation is computed
using the straight-line method applied to individual items based on estimated
useful lives of the assets which range from 5 to 40 years for buildings and
improvements, and 3 to 10 years for machinery, computer and office equipment.
Replacements and betterments that extend the lives of assets are capitalized,
while maintenance and repairs are expensed as incurred.
Intangible Assets
Cost in excess of net assets of businesses acquired (goodwill) is being
amortized on a straight-line basis over a period of 3 to 40 years and is stated
net of accumulated amortization of $6,247,000 and $895,000 at June 30, 1997 and
1996, respectively. Goodwill is reevaluated when business events and
circumstances indicate that the carrying amount may not be recoverable.
Reevaluation is based on projections of undiscounted future cash flows.
Patents are stated at cost less accumulated amortization of $1,271,000 and
$527,000 at June 30, 1997 and 1996, respectively. These items, which were
acquired in connection with the VTI Hamlin OY (VTI) and USS acquisitions, as
discussed in Note 3, are capitalized and amortized on a straight-line basis over
the average remaining life of the related patents.
Translation of Foreign Currencies and
Foreign Exchange Contracts
All assets and liabilities in the balance sheets of foreign subsidiaries
whose functional currency is other than the U.S. dollar are translated at
year-end exchange rates except stockholders' equity which is translated at
historical rates. Translation gains and losses are accumulated as a separate
component of stockholders' equity. Foreign currency transaction gains and losses
are included in determining net earnings.
The Company uses foreign exchange contracts to hedge certain foreign
denominated payables and receivables and also to hedge firm sales and purchase
commitments. Realized and unrealized gains and losses are deferred and
recognized as the related transactions are settled. The Company does not enter
into foreign exchange contracts for trading purposes. At June 30, 1997, the
Company had outstanding Canadian contracts to buy $43 million, maturing through
January 1999 and to sell $9 million, maturing through August 1997. At June 30,
1996, the Company had outstanding contracts to sell 10.5 million German marks,
maturing through June 1997.
Earnings Per Share
Earnings per share is computed by dividing net earnings by the weighted
average shares of common stock outstanding during the year. The effect on
earnings per share resulting from the assumed exercise of outstanding options is
not material.
F-5
<PAGE>
Reclassifications
Certain amounts in the prior years' Consolidated Financial Statements have
been reclassified to conform to the current year's presentation.
2. FINANCIAL INSTRUMENTS AND CONCENTRATIONS OF CREDIT RISK
Financial instruments consist primarily of cash equivalents, short-term
investments, accounts receivable, accounts payable and bank debt. At June 30,
1997, the fair value of these financial instruments approximates the carrying
amount because of the short-term maturity of these items.
The Company has entered into various agreements with three major customers
to secure certain long-term sales contracts, however these do not commit the
customers to purchase specific quantities of products from the Company. The
agreement with Ford expires at the end of the 1999 model year. The Company is in
the process of negotiating its long-term contract through the model year 2000
with Delco-GM. In addition, a long-term sales agreement with Fiat expires on
December 31, 1999. Sales by the Company to Fiat in 1997 and 1996, accounted for
32% and 14%, respectively, of the Company's sales for such years. Sales by the
Company to Ford in 1997, 1996 and 1995, accounted for 25%, 33% and 37%,
respectively, of the Company's sales for such years. Sales by the Company to
Delco-GM in 1997, 1996 and 1995, accounted for 13%, 26% and 40%, respectively,
of the Company's sales for such years.
Concentrations of credit risk with respect to trade accounts receivable are
limited due to the strong financial condition of the Company's customer base.
However, as of June 30, 1997,
the Company's receivables from Fiat, Ford, and Delco-GM amounted to 38%, 12% and
8% respectively, of total trade accounts receivable.
3. ACQUISITIONS
During the three years ended June 30, 1997, the Company made the
acquisitions set forth below. The Hamlin merger was accounted for as a pooling
of interests. All of the other acquisitions were accounted for by the purchase
method of accounting; accordingly, the purchased assets and liabilities have
been recorded at their estimated fair value at the date of acquisition, and the
consolidated financial statements include the operating results of each business
from the date of acquisition.
Fiscal 1995
Hamlin
On August 31, 1994, the Company completed a merger with Hamlin,
Incorporated (Hamlin), a manufacturer of crash sensors and reed switch products,
with operations in the United States, Mexico and Europe. The Company issued
838,324 shares of common stock for all of the outstanding common stock of
Hamlin. There were no adjustments necessary to conform the companies' methods of
accounting. There were no significant transactions between the companies prior
to the merger.
VTI
In June 1995, the Company acquired VTI, a Finnish company that designs and
manufactures silicon capacitive micro machined acceleration, angular rate and
differential pressure sensors, for $1.7 million in cash. Additionally, the
Company issued stock warrants to certain of the former stockholders of VTI which
enable the holders to purchase up to 100,000 shares of common stock between
July 1, 1998 and June 30, 2000, at a purchase price of $25.75 ($2 above the
market value of the Company's common stock at the date of acquisition). The
purchase price exceeded the fair value of the net assets acquired by
approximately $4.5 million. The resulting goodwill is being amortized on a
straight-line basis over seven years. Concurrent with the purchase, the Company
acquired, for $5.3 million in cash, technology rights to use awarded and pending
patents and related intellectual property.
Fiscal 1996
MOMO
On April 15, 1996, the Company acquired all of the outstanding shares of
MOMO S.p.A. And G. Holding, S.r.l. (collectively "MOMO"), an original equipment
manufacturer and aftermarket supplier of luxury steering wheels and alloy
wheels, for $45.2 million in cash. The purchase price exceeded the fair value of
the net assets acquired by $31.1 million. The resulting goodwill is being
amortized over 40 years.
Italtest
On April 22, 1996, the Company acquired all of the outstanding shares of
Italtest S.r.l., an Italian manufacturer of printed circuit boards for the
automotive, computer and telecommunications markets for $1.8 million in cash.
The purchase price exceeded the fair value of the net assets acquired by $1.8
million. The resulting goodwill is being amortized over 10 years.
F-6
<PAGE>
Force Imaging Technologies, Inc.
On May 31, 1996, the Company acquired all of the outstanding shares of
Force Imaging Technologies, Inc., a manufacturer of thin-profile variable force
sensors for multi-function automotive capabilities for $3 million in cash. The
purchase price exceeded the fair value of the net assets acquired by $2.8
million. The resulting goodwill is being amortized over 5 years.
The pro forma unaudited results of operations for the years ended June 30,
1996 and 1995, assuming the purchase of the acquisitions had been consummated as
of July 1, 1994, are as follows:
In thousands, except per share data 1996 1995
- --------------------------------------------------------------
Net sales........................... $493,845 $482,885
Net earnings........................ $ 59,768 $ 65,377
Net earnings per share.............. $ 1.89 $ 2.08
Fiscal 1997
Gallino
On July 1, 1996, the Company completed the acquisition of Gallino
Plasturgia, S.r.l. and affiliates ("Gallino") from IAO Industrie Riunite S.p.A.
Gallino manufactures steering wheels, instrument panels, bumpers and other
plastic trim components used in automotive original equipment and aftermarket
applications. The aggregate purchase price was $126 million, comprised of cash
of $74 million and liabilities assumed of $52 million. The acquisition was
financed through borrowings on the Company's revolving credit agreements. The
purchase price exceeded the fair value of net assets acquired by approximately
$40 million. The resulting goodwill is being amortized on a straight-line basis
over 40 years.
United Steering Systems (USS)
On October 25, 1996, the Company completed the acquisition of certain
assets and the assumption of certain liabilities of the "North American Steering
Wheels Operation" of United Technologies and all of the shares of United
Technologies Automotive Clifford Limited. USS produces steering wheels, airbag
covers, horn pads and related molded products in the
U.S., Mexico and England. The purchase price was $154 million, financed through
borrowings under the Company's Revolving Credit Agreements. The purchase price
exceeded the fair value of net assets acquired by approximately $75 million. The
resulting goodwill is being amortized on the straight-line basis over 40 years.
Custom Trim
On February 25, 1997, the Company completed the acquisition of the stock of
BTI Investments, Inc. ("BTI"), a holding company that owned the Custom Trim
group of companies, for $70 million. Additionally, up to $5 million may be paid
on September 1, 2002, contingent upon BTI attaining certain operating profit
targets for each of the years subsequent to the acquisition date. The acquired
operations produce leather-wrapped steering wheels, shift knobs and shift boots,
injection molded levers and leather/vinyl cloth sewing of armrests, headrests
and seating in Canada and Mexico. The funds used by the Company to acquire BTI
were obtained from borrowings under the Company's Revolving Credit Agreements.
The purchase price exceeded the fair market value of net assets acquired by $48
million. The allocation of the purchase price is subject to change pending
completion of the Company's integration plans. The resulting goodwill is being
amortized on a straight-line basis over 40 years.
The pro forma unaudited results of operations for the years ended June 30,
1997 and 1996, assuming the purchase of the acquisitions had been consummated as
of July 1, 1995, are as follows:
In thousands, except per share data 1997 1996
- --------------------------------------------------------------
Net sales........................... $901,058 $1,056,588
Net earnings........................ $ 20,965 $ 45,897
Net earnings per share.............. $ .66 $ 1.45
4. NET ASSETS HELD FOR SALE
The Company acquired Gallino in July 1996 primarily for the steering wheel
business. However, in order to acquire the steering wheel business it was
necessary to also acquire Gallino's instrument panel, bumper and other plastic
trim component business (non-steering wheel business). In 1997, the Company
evaluated whether the non-steering wheel business of Gallino could be integrated
into the core business of the Company.
During the fourth quarter of fiscal 1997, the Company committed to a plan
to dispose of Gallino's instrument panel, bumper and other plastic trim
component business (non-steering wheel business). In July 1997, the Company
signed a letter of intent to sell approximately 65 percent of substantially all
of the net assets of Gallino's non-steering wheel business.
The Company is negotiating with other prospective buyers for the remaining
portion of Gallino's non-steering wheel business. For financial reporting
purposes, the assets and liabilities attributable to all of Gallino's
non-steering wheel business, which are recorded at amounts approximating their
net realizable value, have been classified in the consolidated balance sheet as
"Net assets held for sale" and consist of the following at June 30, 1997:
F-7
<PAGE>
In thousands
- -----------------------------------------------------------------
Current assets.................................... $ 42,221
Property, plant and equipment, net................ 62,739
Other noncurrent assets........................... 977
- -----------------------------------------------------------------
Total assets.................................... 105,937
- -----------------------------------------------------------------
Current liabilities............................... 31,661
Other liabilities................................. 21,656
- -----------------------------------------------------------------
Total liabilities............................... 53,317
Net assets held for sale.......................... $ 52,620
=================================================================
5. INCOME TAXES
The components of earnings before income taxes are as follows:
In thousands 1997 1996 1995
- -------------------------------------------------------------
Domestic....................... $23,699 $98,285 $107,521
Foreign........................ 5,948 53 2,612
- -------------------------------------------------------------
$29,647 $98,338 $110,133
=============================================================
The components of income tax expense are as follows:
In thousands 1997 1996 1995
- -------------------------------------------------------------
Current
Federal...................... $ 6,442 $30,818 $ 37,214
Foreign...................... 6,434 2,001 750
State........................ 767 816 1,386
- -------------------------------------------------------------
Total current.............. 13,643 33,635 39,350
Deferred
Federal...................... 1,501 1,665 (1,550)
Foreign...................... (344) -- --
- -------------------------------------------------------------
Total deferred............. 1,157 1,665 (1,550)
Income taxes................... $14,800 $35,300 $ 37,800
=============================================================
A provision for income taxes has not been made for the undistributed
earnings of foreign subsidiaries of approximately $10 million at June 30, 1997,
which have been or are intended to be permanently reinvested in expanded foreign
business operations.
The provision for income taxes differs from the expected federal tax
provision as follows:
In thousands 1997 1996 1995
- ---------------------------------------------------------------
Tax at U.S. statutory rate...... $10,260 $34,418 $38,547
State taxes, net of Federal
tax benefit................... 498 530 900
Change in valuation allowance... 1,816 2,161 (2,115)
Amortization of goodwill, without
tax benefit................... 1,300 -- --
Foreign rate differential....... 677 -- --
Reduction of taxes provided in
prior years................... -- (1,154) --
Other........................... 249 (655) 468
- ---------------------------------------------------------------
$14,800 $35,300 $37,800
===============================================================
The temporary differences that give rise to significant portions of the
deferred tax assets and liabilities as of June 30, 1997 and 1996, respectively,
are presented below.
F-8
<PAGE>
In thousands 1997 1996
- ---------------------------------------------------------------
Deferred tax assets
Accrued expenses.................... $ 5,132 $ 1,842
Net operating losses................ 3,977 --
Other............................... 923 961
Valuation allowance................. (3,977) --
- ---------------------------------------------------------------
6,055 2,803
- ---------------------------------------------------------------
Deferred tax liabilities
Depreciation and amortization....... (7,845) (892)
Acquisition related asset
basis differences................. -- (2,544)
- --------------------------------------------------------------
(7,845) (3,436)
- --------------------------------------------------------------
$(1,790) $ (633)
==============================================================
Management has determined, based on the Company's history of domestic
taxable income and its expectation of the future, that domestic operating income
of the Company will likely be sufficient to fully recognize the net deferred tax
assets.
At June 30, 1997, the Company has foreign net operating loss carryforwards
(NOLs) for tax purposes of $11.7 million of which $6.1 million expires in the
year 2006 and $1.7 million expires in the year 2007. The remaining NOLs have no
expiration date. For financial reporting purposes, a valuation allowance of $4.0
million has been recognized to reduce the deferred tax assets related to those
NOLs.
6. NOTES PAYABLE AND LONG-TERM DEBT
During 1997, the Company replaced its $200 million unsecured domestic
credit agreement. The Company now maintains two multi-currency credit agreements
totaling $450 million that expire on April 29, 1998 ($250 million) and April 30,
2002 ($200 million). The amount outstanding under the new agreements at June 30,
1997, was $358 million of which $200 million is due April 30, 2002. The interest
rate under the agreements is at or below the prime rate or, at the Company's
option, LIBOR plus a margin. The weighted average interest rate on the
outstanding borrowings at June 30, 1997, was 6.7%. A commitment fee of between
.125% and .3% per year is paid on the unused portion of the commitment dependent
upon the Company's level of leverage as set forth in the agreements. Under the
terms of the agreements, the Company must maintain acceptable ratios, such as
leverage ratio, minimum net worth, and interest coverage ratio. At June 30,
1997, the Company was in compliance with all covenants.
The Company's subsidiaries outside of the United States have short-term
lines of credit aggregating approximately $100 million from various banks
worldwide. Most of these arrangements are reviewed periodically for renewal. The
amounts outstanding under these lines of credit with banks at June 30, 1997 and
1996 were $27.3 million and $34.1 million, respectively. Interest rates are
generally based on the prevailing bank prime rate in the various countries in
which the Company has operations. Additionally, the subsidiaries have
outstanding mortgage and equipment financing loans amounting to $38.1 million.
7. OTHER FINANCIAL DATA
The components of inventories consist of the following:
In thousands 1997 1996
- ---------------------------------------------------
Finished goods.................. $ 24,832 $19,439
Work in process................. 23,385 14,417
Raw materials................... 27,130 19,034
- ---------------------------------------------------
$ 75,347 $52,890
===================================================
Other income (expense), net consists of the following:
In thousands 1997 1996 1995
- ---------------------------------------------------------------
Foreign exchange gain (loss), net $ 2,161 $ 2,385 $ (352)
Gain (loss) on disposition of
property, plant and equipment. (634) 1,517 1,349
Royalty income.................. 93 3,976 3,483
Government grant................ 1,000 -- --
Other, net...................... 904 784 418
- ---------------------------------------------------------------
$ 3,524 $ 8,662 $4,898
===============================================================
F-9
<PAGE>
8. EMPLOYEE BENEFIT PLANS
The Company's Omnibus Stock Plan provides for the granting of 2,500,000
shares of Common Stock for awards of options under the Company's 1992 Stock
Option Plan, the 1992 Employee Stock Purchase Plan, and the 1994 Stock Incentive
Plan.
Under the 1992 Stock Option Plan, options to purchase up to 1,500,000
shares of common stock may be granted to officers, employees and consultants to
the Company. The Company may grant options that are either qualified (Incentive
Stock Options) or nonqualified under the Internal Revenue Code of 1986, as
amended. Options under the Plan will generally vest over a three-year period and
the option term may not exceed ten years. Total options granted under this plan
amounted to 48,313 in 1997 and 45,000 in 1996.
The Company's 1992 Employee Stock Purchase Plan provides that eligible
employees may contribute up to 10% of their base earnings toward the semiannual
purchase of the Company's common stock, at a price equal to 85% of the lower of
the market value of the common stock on the first and last day of the applicable
period. There are limitations on the number of shares that can be purchased in
any period. Total shares issued under this plan were 27,082 in 1997 and 60,906
in 1996. Since the plan is noncompensatory, no charges to operations have been
recorded.
The 1994 Stock Incentive Plan permits the issuance of options of common
stock in the form of incentive stock options, nonstatutory stock options, stock
appreciation rights, performance shares, restricted stock or unrestricted stock
to selected employees of the Company. Options under the plan vest over a
four-year period. Stock appreciation rights entitle recipients to receive an
amount determined in whole or in part by appreciation in the fair market value
of the stock between the date of the award and the date of exercise. Performance
share awards entitle recipients to acquire shares of stock upon attainment of
specified performance goals. Restricted stock awards entitle recipients to
acquire shares of stock, subject to the right of the Company to repurchase under
certain circumstances all or part of the shares at their purchase price (or to
require forfeiture of such shares if purchased at no cost) from the recipient.
Restricted shares vest over a five-year period. Unearned compensation,
representing the fair market value of the shares at the date of issuance, is
charged to earnings over the vesting period. Total options granted under this
plan amounted to 63,744 in 1997 and 648,873 in 1996. No stock appreciation
rights or performance shares were granted in 1997 or 1996.
In addition to the above plans, the Company's 1992 Director Stock Option
Plan provides for the grant of nonqualified stock options to the Company's
nonemployee directors. The total number of shares to be issued under this plan
may not exceed 50,000 shares. Options granted under the 1992 Director Stock
Option Plan have an exercise price equal to the fair market value of the common
stock on the date of the grant and a term equal to ten years. Total options
granted under this plan amounted to 5,310 in 1997 and 14,600 in 1996.
Following is a summary of the option and warrant transactions for the years
1997 and 1996:
Shares Price
- ---------------------------------------------------------------------------
Balance at June 30, 1995.......... 622,028 $ 3.14 - $32 1/4
Granted......................... 708,473 16 3/4 - 20 3/8
Exercised....................... (67,561) 3.14 - 24
Canceled........................ (113,704) 12 - 28 3/8
- ---------------------------------------------------------------------------
Balance at June 30, 1996.......... 1,149,236 12 - 32 1/4
Granted......................... 117,367 21 3/8 - 28 1/4
Exercised....................... (38,695) 19 3/4 - 28
Canceled........................ (127,547) 16 3/4 - 28 5/8
- ---------------------------------------------------------------------------
Balance at June 30, 1997.......... 1,100,361 12 - 32 1/4
Exercisable at June 30, 1997...... 318,996 12 - 32 1/4
Shares reserved for future issuance 2,175,262
===========================================================================
The Company maintains a 401(k) retirement plan which covers substantially
all full-time U.S. employees. Under the plan, the Company will match employee
contributions at rates which are determined annually by management. Employer
contributions for the years ended June 30, 1997, 1996 and 1995 amounted to
$762,000, $911,000 and $669,000, respectively.
The Company adopted Statement of Financial Accounting Standard No. 123
("SFAS 123"), "Accounting for Stock-Based Compensation," in fiscal 1997, but
elected to continue to measure compensation cost using the intrinsic value
method, in accordance with APB Opinion No 25 ("APB 25"), "Accounting for Stock
Issued to Employees." Accordingly, no compensation cost for stock options has
been recognized. If compensation cost had been determined based on the estimated
fair value of options granted in 1997 and 1996, consistent with the methodology
in SFAS 123, the pro forma effects on the Company's net earnings and income per
share would not have been material.
F-10
<PAGE>
9. INFORMATION RELATED TO CUSTOMERS AND OPERATIONS IN DIFFERENT GEOGRAPHIC AREAS
The Company operates in one principal industry segment: the design,
manufacture, and sale of automotive occupant safety systems--which represents
more than 90% of consolidated net sales. The following financial information
relates to operations in different geographic areas. Net sales to unaffiliated
customers is based on the location of Company's operating entity. Transfers
between geographic areas are recorded at amounts above cost and in accordance
with the rules and regulations of the respective governing tax authorities.
Identifiable assets of geographic areas are those assets used in the Company's
operations in each area. Corporate assets include cash and cash equivalents,
intangibles, long-term investments, and deferred income taxes.
In thousands 1997 1996 1995
- --------------------------------------------------------------------------------
Net sales to unaffiliated customers:
North America................. $379,270 $324,565 $345,640
Europe........................ 415,610 107,124 55,332
- --------------------------------------------------------------------------------
Total net sales................. $794,880 $431,689 $400,972
- --------------------------------------------------------------------------------
Transfers between geographic areas
(eliminated in consolidation):
North America................. $ 42,809 $ 51,057 $ 27,018
Europe........................ 35,043 21,832 22,689
- --------------------------------------------------------------------------------
Total transfers................. $ 77,852 $ 72,889 $ 49,707
- --------------------------------------------------------------------------------
Earnings before income taxes
Operating income:
North America................. $ 46,597 $ 90,372 $100,800
Europe........................ 3,986 2,442 4,017
Other income (expense), net..... (20,936) 7,525 5,602
- --------------------------------------------------------------------------------
Earnings before income taxes.... $ 29,647 $ 98,338 $110,133
- --------------------------------------------------------------------------------
Identifiable assets:
North America................. $447,076 $196,776 $185,574
Europe........................ 410,577 219,340 38,410
Corporate assets.............. 19,500 87,686 54,714
- --------------------------------------------------------------------------------
Total assets.................... $877,153 $503,802 $278,698
================================================================================
The Company also had foreign export sales from the United States amounting
to $34,559,000, $27,354,000 and $24,515,000 for the years ended June 30, 1997,
1996 and 1995, respectively.
The Company operates its Mexican manufacturing facilities under the
"Maquiladora" program. Pursuant to this program, materials and components owned
by the Company are transferred to the Mexican subsidiaries where they are used
to produce finished goods. The finished goods are returned to the United States
and the Company reimburses the Mexican subsidiaries for their manufacturing
costs without any intended significant profit or loss of consequence.
Accordingly, the Mexican sales, transfers, and income amounts are excluded from
the above geographic area information.
10. COMMITMENTS AND CONTINGENCIES
The Company is the subject of various lawsuits, claims and environmental
contingencies. In the opinion of management, the expected liability resulting
from these matters is adequately covered by amounts accrued, and will not have a
material adverse effect on the Company's consolidated financial position or
future results of operations.
F-11
<PAGE>
11. QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
The following tables set forth selected quarterly financial information.
<TABLE>
<CAPTION>
First Second Third Fourth Total
In thousands, except per share data Quarter Quarter Quarter Quarter Year
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
1997
Net sales................................. $158,671 $182,567 $209,409 $244,233 $794,880
Gross profit.............................. 41,648 36,690 37,955 47,304 163,597
Operating income.......................... 18,210 9,330 7,128 15,915 50,583
Net earnings.............................. 7,846 3,150 1,501 2,350 14,847
Earnings per share........................ .25 .10 .05 .07 .47
Cash dividends per share.................. .07 .07 .07 .07 .28
Market price range........................ 18 1/2-27 7/8 22 5/8-28 1/2 19 1/4-27 1/4 17 3/8-23 17 3/8-28 1/2
1996
Net sales................................. $ 92,601 $105,655 $103,927 $129,506 $431,689
Gross profit.............................. 34,864 42,844 35,841 41,096 154,645
Operating income.......................... 19,446 26,854 19,671 24,842 90,813
Net earnings.............................. 12,601 17,842 14,892 17,703 63,038
Earnings per share........................ .40 .57 .47 .56 2.00
Cash dividends per share.................. .05 .05 .07 .07 .24
Market price range........................ 19 1/8-24 1/4 17-20 1/4 16 3/8-19 5/8 18 3/4-24 1/4 16 3/8-24 1/4
1995
Net sales................................. $ 87,359 $ 99,001 $109,876 $104,736 $400,972
Gross profit.............................. 28,999 39,016 44,846 43,560 156,421
Operating income.......................... 17,538 26,488 31,759 28,746 104,531
Net earnings.............................. 11,231 18,191 21,984 20,927 72,333
Earnings per share........................ .36 .58 .70 .66 2.30
Cash dividends per share.................. .05 .05 .05 .05 .20
Market price range........................ 25 1/4-33 3/4 25 1/2-36 3/8 20 1/4-29 18 3/8-24 1/4 18 3/8-36 3/8
</TABLE>
The Company recognized a charge during the fourth quarter of 1997 which
decreased net income by $2.2 million. This charge increased income tax expense
to reflect an increase in the effective tax rate for the year due to loss
carryforwards in foreign countries that could not be utilized as management had
originally anticipated. This adjustment reduced fourth quarter net income per
share by $.07.
12. SUBSEQUENT EVENT
On August 27, 1997, the Company entered into an Asset Purchase Agreement
with Allied Signal, Inc. ("Allied") to acquire substantially all of the assets
and certain liabilities of Allied's worldwide automotive occupant restraint
products and systems (the "Division"). These products include seat belt and
airbag assemblies and components. The purchase price is $710 million in cash and
is subject to post-closing adjustments based on the net asset value of the
Division as of the closing date. Consummation of the acquisition is subject to
several conditions, including clearance of the transaction by appropriate
government agencies, consent of certain customers, and customary conditions to
closing. Management is confident that the contingencies will be resolved
favorably. The Company is considering various methods of financing the
transaction, including additional bank borrowings and the private placement of
equity and/or debt securities. For the year ended December 31, 1996, the
Division had unaudited revenues of $951 million and unaudited operating income
of $86 million.
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
BREED Technologies, Inc.
We have audited the accompanying consolidated balance sheets of BREED
Technologies, Inc. and subsidiaries as of June 30, 1997 and 1996, and the
related consolidated statements of earnings, stockholders' equity, and cash
flows for the years then ended. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits. We did not audit the
financial statements of MOMO S.p.A., a wholly-owned subsidiary acquired April
15, 1996, which statements reflect total assets of $106,398,000 as of June 30,
1997 and net sales of $73,093,000 for the year then ended. Those statements were
audited by other auditors whose report has been furnished to us, and our
opinion, insofar as it relates to data included for MOMO S.p.A., is based solely
on the report of the other auditors. The consolidated financial statements of
BREED Technologies, Inc. and subsidiaries for the year ended June 30, 1995, were
audited by other auditors whose report dated July 21, 1995, expressed an
unqualified opinion on those statements.
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, based on our audits and the report of other auditors, the
1997 and 1996 consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of BREED
Technologies, Inc. and subsidiaries at June 30, 1997 and 1996, and the
consolidated results of their operations and their cash flows for the years then
ended in conformity with generally accepted accounting principles.
/s/Ernst & Young LLP
July 31, 1997, except for Note 12,
as to which the date is August 27, 1997
Tampa, Florida
F-12
<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 by the undersigned, thereunto duly authorized.
BREED TECHNOLOGIES, INC.
Date: September 25, 1997 By: /s/ Charles J. Speranzella, Jr.
Charles J. Speranzella, Jr.
Vice Chairman
Pursuant to the requirement 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.
<TABLE>
<S> <C> <C>
/s/ Allen K. Breed Chairman of the Board of September 25, 1997
- -------------------------- Directors
Allen K. Breed
/s/ Johnnie Cordell Breed Co-Chairman and Chief Executive September 25, 1997
------------------------- Officer (Principal Executive
Johnnie Cordell Breed Officer)
/s/ Frank J. Gnisci Executive Vice President September 25, 1997
- -------------------------- and Chief Financial Officer
Frank J. Gnisci (Principal Financial Officer)
/s/ Thomas F. Dugan Corporate Controller September 25, 1997
- -------------------------- (Principal Accounting Officer)
Thomas F. Dugan
/s/ Peter A. Lewis Director September 25, 1997
- --------------------------
Peter A. Lewis
/s/ Larry W. McCurdy Director September 25, 1997
- --------------------------
Larry W. McCurdy
</TABLE>
<PAGE>
EXHIBIT INDEX
2.1 Agreement and Plan of Merger dated August 3, 1994 relating to Hamlin,
Inc. (filed as Exhibit 3 to the Company's Form 8-K, filed September 15,
1994 and incorporated herein by reference)
2.2 Stock Purchase Agreement - MOMO S.p.A. and G. Holding S.r.l., dated March
29, 1996, and Stock Purchase Agreement - LANEBROOK LTD., dated March 29,
1996, (filed as Exhibits 2.1 and 2.2 to the Company's Form 8-K/A, filed
June 28, 1996, and incorporated herein by reference)
2.3 Stock Purchase Agreement, dated April 22, 1996, between the Company and
Alberto Zucchelli and Andrea Zucchelli for the acquisition of Italtest
S.r.l. and Italtest Due S.r.l. (filed as Exhibit 2.3 to the Company's
Form 10K filed on September 23, 1996, and incorporated herein by
reference)
2.4 Stock Purchase Agreement, dated May 31, 1996, between the Company and
Felt Products Mfg. Co. for the acquisition of Force Imaging Technologies,
Inc. (filed as Exhibit 2.4 to the Company's Form 10K filed on September
23, 1996, and incorporated herein by reference)
2.5 Master Agreement dated July 1, 1996 related to the "Gallino Group"
acquisition.
2.6 Amended and Restated Purchase Agreement, dated as of October 25, 1996
among UT Automotive, Inc., United Technologies Automotive Systems, Inc.,
United Technologies Automotive Systems de Mexico A.A. de C.V., IPCO, Inc.
and BREED Technologies, Inc. (filed as an Exhibit to the Company's Form
8K dated November 7, 1996, and incorporated herein by reference)
2.7 Stock Purchase Agreement dated January 3, 1997, as amended February 25,
1997, between BREED Technologies, Inc. and BTI Investments, Inc. (filed
as an Exhibit to the Company's Form 8K dated March 5, 1997, and
incorporated herein by reference)
3.1 Second Restated Certificate of Incorporation of the Company (filed as
Exhibit 4.1 to the Company's Registration Statement on Form S-8 (File No.
33-54988) (the "Form S-8") and incorporated herein by reference)
3.2 Amended and Restated By-Laws of the Company (filed as Exhibit 3.3 to the
Company's Registration Statement on Form S-1 (File No. 33-51868 (the Form
S-1") and incorporated herein by reference)
4.1 Specimen Certificate of Common Stock of the Company (filed as Exhibit 4.1
to the Form S-1 and incorporated herein by reference)
4.2 Description of Capital Stock (contained in the Second Restated
Certificate of Incorporation of the Company filed as Exhibit 4.1 to the
Form S-8 and incorporated herein by reference)
10.1 Company's 1992 Stock Option Plan (filed as Exhibit 10.12 to the Form S-1
and incorporated herein by reference)
10.2 Company's 1992 Director Stock Option Plan (filed as Exhibit 10.13 to the
Form S-1 and incorporated herein by reference)
10.3 Company's 1992 Employee Stock Purchase Plan, as amended (filed as Exhibit
28 to the Form S-8 and incorporated herein by reference)
10.4 Company's Employees' Retirement Savings Plan (filed as Exhibit 10.15 to
the Form S-1 and incorporated herein by reference)
10.5 Company's Employee Incentive Program (filed as Exhibit 10.16 to the Form
S-1 and incorporated herein by reference)
10.6 Company's 1994 Stock Incentive Plan filed with the Form S-8, dated
February 25, 1997
10.7 Five-Year Credit Agreement and 364 day credit agreement dated April 30,
1997 and First Amendments to Five-Year Credit Agreement and 364 day
credit agreement dated June 28, 1997 among First Union National Bank of
Florida (Administrative Agent), The Chase Manhattan Bank
(Documentation Agent) and certain other financial institution lenders.
21 Subsidiaries of the Company
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors
23.2 Consent of Ernst & Young LLP, Independent Auditors
23.3 Opinion of KPMG Peat Marwick LLP, Tampa, Independent Auditors
23.4 Opinion of KPMG Peat Marwick LLP, Milan, Independent Auditors
27 Financial Data Schedule
This MASTER AGREEMENT entered into as of the 1st day of July, 1996 among
IAO - Industrie Riunite S.p.A., an Italian corporation with offices at
Strada Torino, 23 - BEINASCO (ITALY) represented by Mr. Giovanni Rigamonti
GALLINO COMPONENTI PLASTICI S.p.A., an Italian corporation with offices at
Strada Torino 23, BEINASCO (ITALY) represented by Mr. Giovanni Rigamonti
CARIFIN S.p.A., an Italian corporation with offices at Via Quintiliano 40 -
Milano, represented by Mr. Giovanni Rigamonti
MACCHI ARTURO S.r.l. - an Italian limited liability company with offices at
Via Concordia, 49 - RENATE (ITALY) represented by Mr. Aldo Besozzi
GRUPPO PLASTICO INDUSTRIALE S.r.l., an Italian limited liability company
with offices at Via Mario Leoni, 10 - TORINO (ITALY) represented by Mr. Vittorio
Maltempi
EMILIO CAZZANIGA, an Italian individual, represented by Mr. Ermanno Piana
his attorney-in-fact (hereafter jointly referred to as the "VENDORS")
and
BREED TECHNOLOGIES, INC., a Delaware corporation, with offices at 5300 Old
Tampa Highway, Lakeland, FL 33811 - USA represented by Charles J. Speranzella,
Jr. (hereinafter referred to as "BREED")
<PAGE>
WITNESSETH:
WHEREAS, VENDORS own, directly or indirectly, 100% of the shares or quotas
constituting the entire capital of: FAS S.p.A., an Italian corporation with
registered office at FERENTINO (Frosinone) Via Asse Attrezzato, 216 (FAS),
AUTOAVIO S.r.l., an Italian limited liability company with registered office at
GUARDAMIGLIO (Milano), Via (027) maggio, 8 (AUTOAVIO), A.P.CO.-Advanced Plastic
Company S.r.l., an Italian limited liability company with registered office at
ANAGNI (Frosinone), Via della Riserva I tronco (A.P.CO.), AG INTERNATIONAL
S.r.l., an Italian limited liability company with registered office at TORINO,
Via Susa, 35 (AG), IRON SUD S.r.l., an Italian corporation with registered
office at LIMATOLA (Benevento), Localita Aia Annunziata (IRON SUD), and 51% of
the quotas of ARAS S.r.l., an Italian limited liability company with registered
office at GIAVENO (Torino), Via Beale, 40 (ARAS), (hereinafter jointly referred
to as the "Companies"); the GALLINO trademark, the real property hereafter
listed as well as the business and assets constituting the business carried out
by GPC; and
WHEREAS, the parties have agreed to enter into a series of agreements whereby,
through purchase of GALLINO trademark, business of GCP on a going concern basis,
the purchase of shares/quotas of the Companies and the purchase of real
property, BREED directly or indirectly through its designee/s (as from time to
time identified in the relevant agreements herewith enclosed) will carry out the
business previously carried out by GCP and control each of the Companies in the
same percentage and/or proportion previously held by the VENDORS;
NOW, THEREFORE, the parties agree as follows:
1. As of the 1st day of July 1996, the parties have entered into this
MASTER AGREEMENT.
2. PRIOR TO CLOSING ACTIONS
2.1 Prior to the Closing, as hereafter defined, the VENDORS have taken or
cause to be taken the following actions: 2.1.1 The resignation of the
Sole Director of GALLINO PLASTURGIA; 2.1.2 The election of a Sole
Director designated by BREED; 2.1.3 The sale to BREED (and/or to its
designee) of 100% of the quotas representing the outstanding capital of
GALLINO PLASTURGIA S.r.l. (GP) for the purchase
price set forth on Exhibit "1" hereto;
2.1.4 the grant of the Power(s) of Attorney and other corporate
actions necessary to sign all required documents, agreements
and deeds to be executed at the Closing on behalf of GP, the
VENDORS, the Companies or any of them.
<PAGE>
3. CLOSING
3.1 Except for the San Benigno and Renate-Via Concordia 55- property, the
conclusion of the transactions provided for or contemplated herein will
take place on July 1, 1996 at the offices of Notary Giovanni M. Marocco
in Turin, Italy or at such other time and place as the parties may
agree in writing (the "Closing"). The closing on San Benigno and Renate
properties shall occur by July 31, 1996.
4. CLOSING ACTIONS
4.1 At the Closing, the VENDORS shall - or shall cause the Companies
concerned, through its or their authorized representatives - and BREED
and/or its designees shall:
4.1.1 execute and deliver the Representations and Warranties
Agreement in the text annexed hereto as Exhibit "1";
4.1.2 execute and deliver the Agreement for the sale of GALLINO
trademark to GP in the text annexed hereto as Exhibit "3" and
pay the purchase price as set forth in the Exhibit "1" hereto;
4.1.3 execute and deliver the Notarial deed of transfer of the
Business of GCP on a going concern basis, in the text annexed
hereto as Exhibit "4" and pay the purchase price as set forth
in the Exhibit "1" hereto;
4.1.4 execute and deliver the notarial deeds of transfer of real
property hereafter listed and pay the purchase price for each
as set forth in the Exhibit "2" hereto. The real property is
summarily described in Exhibit "5" hereto. The exact
description to be contained in the Notarial Deeds of Transfer
shall be prepared by Notary Antonio M. Marocco of Turin;
4.1.5 execute the agreement of sale of the shares of stock
constituting 100% of the capital of IRON SUD and FAS in the
text annexed hereto as Exhibit "6" and pay the purchase price
for each as set forth in the Exhibit "1" hereto; endorse the
share certificates to BREED's designee and record the transfer
on the shareholders' registers of IRON SUD and FAS;
4.1.6 execute and deliver the notarial deeds of transfer of the
quotas representing 51% of the capital of ARAS and 100% of the
capital of AG, AUTO AVIO and A.P.CO. in the text of Exhibit
"7" hereto together with such further documents as may be
required by law before the Notary Antonio M. Marocco and pay
the purchase price for each as set forth in the Exhibit "1"
hereto.
4.2 The real properties to be transferred pursuant to Section 4.1.4 shall
be transferred free and clear of all mortgages, liens and encumbrances
except for those listed in Exhibit "8".
4.3 With the exception of FAS, the shares and quotas to be transferred
pursuant to Sections 4.1.5 and 4.1.6 shall be transferred free and
clear of all mortgages, pledges, liens, encumbrances, security
interests, charges, claims, restrictions and options.
4.4 The signatures of the Deeds and/or Agreements of Transfer of the shares,
quotas,
<PAGE>
trademarks and real property provided for herein, the payment of the
purchase price(s) and the performance of obligations further thereto
shall not prejudice or effect the validity and enforceability of any of
the provisions of this Agreement and of the Representations and
Warranties Agreement executed contemporaneously herewith, all of which
will survive the Closing and which will prevail over any of the
provisions of said Deeds or Agreements of Transfer.
4.5 The deposit of sixteen billion Lire (Lit.16,000,000,000) made by the
Purchaser on May 16, 1996 shall be applied in accordance with Exhibit
4.5.
5. OTHER ACTS
5.1 Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, consents, certificates, instruments
and documents as the other party hereto reasonably may request in order
to carry out the intent and accomplish the purposes of this Agreement
and the consummation of the transactions contemplated hereby.
5.2 In particular, at or immediately after the Closing, the VENDORS shall
cause the Directors and Auditors (if any) of each of the Companies to
resign in order to allow the election of new corporate bodies composed
by BREED's designees.
5.3 BREED represents to VENDORS that, prior to the execution hereof, it has
filed the communication required by law with the Italian Anti-Trust
Authority (Autorita Garante della Concorrenza e del Mercato).
BREED represents to VENDOR that the above mentioned communication has
been drafted on the basis of the information made available by each of
the parties involved in the transaction. BREED has used its best
efforts to prepare the communication in a due and complete form.
Nonetheless, the parties acknowledge that the denial of approval by the
Italian Anti Trust Authority to the transaction described in the
Exhibit 1 through 8 hereto, may require the rescission of the
transaction. Consequently if the Italian Anti Trust Authority does not
approve the transaction as agreed, the parties undertake in good faith
to consider and adopt the action required to make it acceptable to the
Anti Trust Authority. If however the amendments to the transaction are
not agreed upon and/or are not acceptable to the Italian Anti Trust
Authority, all the transfers and other obligations will be rescinded
with retroactive effect as of the Closing.
5.4 BREED hereby undertakes that within the period of six (6) months
following the Closing it shall obtain the release of the guarantees
granted by IAO and/or by Rigamonti personally to secure the loan
executed between GCP and Cassa di Risparmio di Parma e Piacenza
transferred on a going concern basis to GP together with the assets of
GCP as described in Exhibit 4 to this Master Agreement.
6. NON COMPETITION
<PAGE>
6.1 After the Closing, the VENDORS shall not compete directly or indirectly
with the business carried out by BREED, directly through each of the
Companies and/or through GALLINO PLASTURGIA, for the period of five
years.
7. CONFIDENTIALITY
7.1 Neither party to this Agreement will make any public disclosure or
publicity release in respect of the subject matter contained herein
without the written consent of the other parties until the fulfilment
of the Closing Actions provided for in Article 4 above.
8. GOVERNING LAW
8.1 The laws of Italy shall govern the interpretation, validity and
performance of this Agreement. This Agreement has been executed in an
English language text. Should a translation hereof or of any Exhibit
hereto be prepared and/or executed-also in order to comply with
mandatory provisions of the Italian laws-in the Italian language, the
English text shall prevail. In case of controversy on the meaning of
the Agreement, the Parties shall make reference to the English text in
order to interpret the same.
9. ARBITRATION
9.1 Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of arbitration, the VENDORS will
constitute a sole party. The party wishing to submit to Arbitration
shall appoint its Arbitrator and give notice to the other party of its
appointment. Within fifteen (15) days of receipt of this notice, the
other party shall appoint its Arbitrator and shall give notice to the
first party of its appointment. Within fifteen (15) days of the
appointment of the second Arbitrator, the two Arbitrators so appointed
shall agree upon the appointment of a third Arbitrator. If no agreement
is reached, the third Arbitrator shall be appointed, upon application
of the most diligent party, by the President of the Court of Appeal of
Milan. Similarly, if the party to whom the notice of the appointment of
an Arbitrator has been given does not, in turn, appoint its Arbitrator,
said Arbitrator shall also be appointed together with the third
Arbitrator by the President of the Court of Appeal of Milan, which will
also provide for the substitution of any Arbitrator who dies or
resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
10. NOTICES
10.1 All notices, in connection with this Agreement, shall be dated and in
writing, delivered by personal delivery, by registered mail, telegram,
telecopier or courier service to the address set forth below or such
other address as such party may specify for the purpose by notice to
the other.
<PAGE>
Each notice shall be effective when delivered at the following
addresses: If to VENDORS:
IAO INDUSTRIE RIUNITE S.p.A.
Strada Torino, 23
BEINASCO
If to BREED:
BREED TECHNOLOGIES, INC.
5300 Old Tampa Highway
Lakeland, FL 33811 USA
with a further copy to:
Bruno R. Pavia, Esq.
PAVIA e ANSALDO
Via dell'Annunciata, 7
20121 Milan, Italy
Fax: 02 653306
11. EXPENSES
11.1 Each party hereto shall pay its legal and other expenses
incurred in connection with this Agreement. Notarial fees and
expenses shall be for the account of BREED.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
date first above written.
BREED TECHNOLOGIES, INC.
By:
IAO INDUSTRIE REUNITE S.p.A.
By:
GALLINO COMPONENTI PLASTICI S.p.A.
By:
CARIFIN S.p.A.
By:
MACCHI ARTURO S.r.l.
By:
GRUPPO PLASTICO INDUSTRIALE S.r.l.
BY: /s/Emilio Cazzaniga
EMILIO CAZZANIGA
<PAGE>
LIST OF EXHIBITS
1 (A) Purchase price and (B) application of deposit 2 Representations and
Warranties Agreement 3 Sale of GALLINO trademark 4 Deed of sale of GCP's
business on a going concern basis 5 Deed of transfer of real properties 6 Deed
of transfer of shares of IRON SUD-FAS 7 Deed of transfer of quotas of ARAS, A.G.
INTERNATIONAL, AUTO AVIO, A.P.CO. 8 List of mortgages, liens, encumbrances
Exhibit 1
A. PURCHASE PRICE (Net of VAT)
TRANSFER OF GALLINO PLASTURGIA Lit 100,000,000
SALE OF GALLINO TRADEMARK Lit 1,000,000,000
GCP BUSINESS ON A GOING CONCERN BASIS Lit 38,740,122,642
TRANSFER OF NICHELINO REAL ESTATE Lit 9,739,880,000
TRANSFER OF COPIANO REAL ESTATE Lit 6,075,600,000
TRANSFER OF RIVALTA REAL ESTATE Lit 10,448,800,000
TRANSFER OF RENATE, via Concordia 55 Lit 3,544,380,000
TRANSFER OF RENATE, via Concordia 49 Lit 2,710,300,000
TRANSFER OF SAN BENIGNO, via Concordia 49 Lit 13,571,400,000
TRANSFER OF APCO QUOTAS, via Concordia 49 Lit 16,500,000,000
TRANSFER OF FAS SHARES, via Concordia 49 Lit 11,500,000,000
TRANSFER OF IRON SUD, via Concordia 49 Lit 3,400,000,000
TRANSFER OF AG QUOTAS, via Concordia 49 Lit 15,500,000,000
TRANSFER OF ARAS, via Concordia 49 Lit 100,000,000
TRANSFER OF AUTOAVIO, via Concordia 49 Lit 100,000,000
--------------------
Lit
B. APPLICATION OF Lit 16,000,000,000 DEPOSIT
SALE OF GALLINO TRADEMARK Lit 1,190,000,000
TRANSFER OF IRON SUD SHARES Lit 3,400,000,000
TRANSFER OF SAN BENIGNO REAL ESTATE Lit 5,229,497,600
TRANSFER OF NICHELINO Lit 1,850,577,200
TRANSFER OF COPIANO Lit 1,154,364,000
TRANSFER OF RIVALTA Lit 1,985,272,000
TRANSFER OF RENATE, via Concordia 49 Lit 514,957,000
TRANSFER OF RENATE, via Concordia 55 Lit 675,332,200
--------------------
Lit 16,000,000,000
<PAGE>
<TABLE>
<CAPTION>
ACQUISITION OF GALLINO GROUP OF COMPANIES
DETERMINATION OF PURCHASE PRICE-REAL ESTATE
(Amounts in Lire)
Purchase Price Less Mortgage :equals Net Proceeds
<S> <C> <C> <C>
Rivalta 10,448,800,000 0 10,448,800,000
Renate (Macchi) 3,554,380,000 (2,213,000,000) 1,341,380,000
Renate (GCP) 2,710,300,000 0 2,710,300,000
Nichelino 9,739,880,000 (4,726,000,000) 5,013,880,000
Copiano 6,075,600,000 (4,571,000,000) 1,504,600,000
San Benigno 13,571,400,000 0 13,571,400,000
Total-Real Estate 46,100,360,000 (11,510,000,000 34,590,360,000
</TABLE>
<TABLE>
<CAPTION>
DETERMINATION OF PURCHASE PRICE-SIX SISTER COMPANIES
(In billions of Lire)
A B C D E
12/31/95 Appraised 12/31/95 Market in Appraised 12/31/95 Market in Total
Equity of Value Book excess of Value Book value Excess of Value
Company Real value real NBV-RE M&E M&E NBV-M&E (Rounded)
Estate estate (B-C) (B-C) (A+D)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
APCO 10.7 10.2 4.8 5.3 17.2 16.8 0.4 16.5
FAS 10.3 6.3 7.0 (0.6) 10.6 8.8 1.9 11.5
FAS Rome 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0
Total FAS 10.3 6.3 7.0 (0.6) 10.6 8.8 1.9 11.5
IRON SUD 3.9 2.4 1.3 1.1 4.1 5.7 (1.6) 3.4
AG INTER. 7.8 N/A N/A 0.0 8.7 1.0 7.7 15.5
ARAS 0.1 N/A N/A 0.0 N/A N/A 0.0 0.1
AUTO AVIO 0.1 N/A N/A 0.0 N/A N/A 0.0 0.1
TOTALS 32.9 18.9 13.1 5.8 40.6 32.2 8.4 47.1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
GOING-CONCERN BUSINESS OF GALLINO COMPONENTI PLASTICI, S.p.A. ("GCP")
Value
Description of GCP Assets Acquired In Lire In US$ Comments
<S> <C> <C> <C>
Inventory 33,684,324,746 21,872,938 Capped at Lit 35 Billion-Final value determined by audit
Gallino M&E (Rivalta, Nichelino HQ) 27,837,400,000 18,076,234 Advanced values-AA
GPI M&E (S Ben, Copiano, Grugliasco) 40,484,800,000 26,288,831 Final value determined by appraisal
Additional Fixed asset Purchases 3,407,257,000 2,212,505 Capped at Lit. 8 Billion-Final value determined by audit
Other 1,929,091,257 1,252,657 INAIL, Employee advance, prepaid INAIL, supplier advance
Provision (10,843,060,000) (7,040,948)
Macchi Machinery and Equipment 4,720,500,000 3,065,260 Appraised-AA
Goodwill 5,000,000,000 3,246,753
Intellectual Property 1,000,000,000 649,351
--------------------- ----------------
Total Assets 107,220,313,003 $69,623,580
Value as of 5/31/96
Less Specific Liabilities Assumed: In Lire In US$
Accrued INAIL (503,248,587) (326,785) Advances to employees
TFR and other personnel liabilities (33,059,593,688) 21,467,269) Final value determined by audit
Cassa di Risparmio (33,465,863,014) (21,731,080) Final value determined by audit
Sabatini loan (1,451,485,072) (942,523) Final value determined by audit
----------------------------- ------------------------
Total Liabilities Assumed (68,480,190,361) (44,467,656)
----------------------------- ------------------------
Net Purchase Price 38,740,122,642 $25,155,924
............................. ........................
Exchange Rate (Lit./US$) 1,540
</TABLE>
<PAGE>
EXHIBIT 2
REPRESENTATIONS AND WARRANTIES AGREEMENT
This REPRESENTATIONS AND WARRANTIES AGREEMENT (the "Agreement") entered into as
of July 1st, 1996 among:
Breed Technologies, Inc., a Delaware corporation, with principal office at 5300
Old Tampa Highway, Lakeland, FL 33807-3050, represented by Charles J.
Speranzella Jr. (hereinafter "Breed")
Gallino Plasturgia Srl, an Italian corporation with principal office at Strada
Torino 23, Beinasco, represented by Charles J. Speranzella Jr. (herinafter
"Gallino")
(Jointly the "Purchaser")
-on one part-
and
IAO-Industrie Riunite SpA, an Italian corporation with registered office at
Strada Torino 23, 10092 Beinasco (To), represented by Mr. Giovanni Rigamonti
("IAO");
Gallino Componenti Plastici SpA, an Italian corporation with registered office
at Strada Torino 23, 10092 Beinasco (To), represented by Mr. Giovanni Rigamonti
("GCP")
Carifin SpA, an Italian corporation with registed office at vai Quintiliano 40
Milano represented by Mr. Giovanni Rigamonti ("Carifin")
Gruppo Plastico Industriale Srl, an Italian limited liability company with
registered office at via Mario Leoni, 10 Torino, represented by Mr. Vittorio
Maltempi ("GPI")
Emilio Cazzaniga, represented by Mr. Ermanno Piana ("EC")
Macchi Arturo Srl, an Italian limited liability company with registered office
at via Concordia 49 Renate (Milano), represented by Mr. Aldo Besozzi ("Macchi")
Giovanni Rigamonti ("GR", as a guarantor (collectively, the "Sellers")
-on the other part-
WHEREAS, IAO owns the 99% of the capital of GCP, while the remaining 1% is owned
by Carifin; and
WHEREAS, IAO, directly or indirectly, controls the Sellers; and
WHEREAS, pursuant to a certain Master Agreement, entered into as of July 1, 1996
(the "Master
<PAGE>
Agreement"), the Purchaser will purchase on a going concern basis from GCP
certain assets and assume certain liabilities of the business carried out by
GCP; and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiary
will purchase the shares of stock constituting 100% of the capital of FAS SpA,
an Italian stock corporation with registered office at via Asse Attrezzato 216 -
Ferentino (Frosinone) ("FAS") and Iron Sud SpA, an Italian stock corporation
with registered office at Localita Aia Annunziata - Limatola (Benevento) ("Iron
Sud") (the "Companies"); and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiary
will purchase the quotas representing 51% of the capital of ARAS Srl, an Italian
limited liability company with registered office at via Beale 40 - Giaveno
(Torino) ("ARAS") and quotas representing 100% of the capital of AG
International Srl, an Italian limited liability company with registered office
at via Susa 35 - Torino ("AG"), AutoAvio Srl, an Italian limited liability
company with registered office at via 1 maggio 8 - Guardamiglio (Milano) ("Auto
Avio") and A.P. CO. - Advanced Plastic Company Srl, an Italian limited liability
company with registered office at via della Riserva I tronco - Anagni
(Frosinone) ("A.P. CO.") (the "Limited Liability Companies") ; and
WHEREAS, pursuant to the Master Agreement, Purchaser's designated subsidiaries
will purchase real property owned by Sellers located at Rivalta, Renate,
Nichelino Copiano and San Benigno; and
WHEREAS, in the absence of audited financial statements or due diligence reports
and to induce Purchaser to enter into the Master Agreement and to perform the
obligations provided for thereunder, including the payment of the purchase price
as set forth in Exhibit "1" to the Master Agreement, each of the Sellers,
jointly and severally represent and warrant to the Purchaser and agree with the
Purchaser as follows:
1.1 Organization and Good Standing
Each of the Sellers, except for EC and Gr, is a corporation, duly
organized, validity existing, and in good standing under the laws of
Italy.
1.2 Except as set forth in Exhibit 1.2 hereto, each of the Sellers has all
requisite corporate power and authority to enter into and deliver the
Master Agreement and this Agreement and to consummate the transactions
completed thereunder . The execution, delivery and performance by
Sellers of the Master Agreement and this Agreement , the transfer of
Real Property, the Sale of the Business of GCP on a Going Concern
Basis, the transfer of the Shares of the Companies and of the Quotas
of the Limited Liability Companies will not result in a breach or
violation of, or a default under, the certificate of incorporation or
bylaws of Sellers or any agreement or instrument to which Sellers are
a party or by which Sellers or their properties are bound or any
statute, rule, regulation or judgement, injunction, order or decree of
any court, governmental or administrative agency to which Sellers or
their assets or property are subject, or require the obtaining by
Sellers of any consent, approval, authorization, permit or license
from, or filling with, any governmental or administrative authority or
other person. The Master Agreement,
<PAGE>
the agreements, deeds and transfers executed thereunder and this
Agreement constitute the legal, valid and binding obligation of
Sellers, enforceable in accordance with their terms.
1.3 Litigation
Except as set forth in Exhibit 1.3 hereto, no action or proceeding is
pending or threatened by any court, tribunal or governmental body, and
no claim or demand has been made against Sellers seeking to restrain or
prohibit or to obtain substantial damages or other relief in connection
with the consummation of the transactions contemplated hereby.
1.4 Existence of Good Standing
Each of the Companies and the Limited Liability Companies is a
corporation, duly organized, validity existing, and in good standing
under the laws of Italy.
1.5 Authority ; No Conflict
Except as set forth in Exhibit 1.5 hereto, each of the Companies and
the Limited Liability Companies and GCP has all requisite corporate
power and authority to: (a) own, lease or operate its properties and
assets and to carry on its businesses as presently conducted; (b) enter
into and deliver the Master Agreement and this Agreement; and (c)
consummate the transactions contemplated therein and therein including,
without limitation, to sell and transfer the Shares and Quotas, the
Real Property to Purchaser and its designee, as well as transfer to
Purchaser the business of GCP on a going concern basis. The execution,
delivery and performance of such transfers will not result in a breach
or violation of, or a default under, the certificate of incorporation
or by-laws of either of the Companies, the Limited Liability Companies
or GCP or any agreement or instrument to which any of them are their
properties are bound, result in the acceleration of , or cause them to
become obligated to repay or prepay any obligations or claims which
otherwise are not now due and owing , or violate or breach any statute,
rule, regulation or judgement, injunction, order or decree of any court
or governmental or administrative agency to which any of them or their
assets or properties is subject , nor require the obtaining by any such
party of any consent, approval, authorization, permit or license from,
or filing with, any governmental or administrative authority or other
person except for the Anti Trust communication performed by the
Purchaser.
1.6 Corporate Action
Each of the Sellers has, in accordance with Italian Law taken all
corporate action necessary to propose and resolve the transfer of the
Shares, Quotas and Real Property contemplated hereby and by the Master
Agreement, as well as the transfer of business of GCP on a going
concern basis; each of the Sellers has duly waived its respective
preemptive rights (if any) to purchase.
1.7 Capitalization
Except as set forth in Exhibit 1.7 hereto, there are nooutstanding
resolutions of Shareholders' or Quotaholders' Meetings of the Companies
or the Limited Liability Companies authorizing the increase of capital
or issuance of any class of Shares or
<PAGE>
Quotas. All of the Shares and Quotas are duly authorized, validly
issued and fully paid, and are free and clear of any pledge,
burden or enforcement proceeding.
1.8 Option and Other Share Rights
(a) There are no existing options, warrants, calls, commitments,
agreements or rights requiring, nor any convertible or
exchangeable Shares, Quotas, bonds or debentures outstanding
which, upon exercise or conversion, would require the issuance
or sale of any additional Shares of the Companies' stock or
Quotas of the Limited Liability Companies or any securities
convertible into capital or the purchase, return or redemption
of capital or other securities;
(b) there are no existing subscription or preemptive rights
affecting or relating to the capital stock of the Companies or
Quotas of the Limited Liability Companies or, to the extent
such preemptive rights exist in connection herewith, the same
have been waived, relinquished or not exercised.
1.9 Compliance with Organizational Documents, Laws and Contracts
Except as set forth in Exhibit 1.9 hereto, none of the Sellers, the
Companies or the Limited Liability Companies is in violation of its
certificate or articles of incorporation or by-laws, or other
organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to either of them or of any
decree of any court or governmental agency or body having jurisdiction
over them, or in default in any material respect in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note, or any other evidence of indebtedness, including short
term and medium term loan agreements, contracts for the sale of goods,
or in any material agreements, including, without limitation, any
contracts for the sale of goods pursuant to Law No. 1329 of November
28, 1965, as amended (the "Sabatini Law")' or customer or supplier
contracts, indentures, leases or other instruments to which either of
them is a party or by which either of them or any of their respective
properties may be bound. All loan payments, debt and contract
obligations are current and are being paid in a timely manner, before
default, in the ordinary course of business.
1.10 Title to Assets
Except as set forth in Exhibit 1.10 hereto, the Companies, the Limited
Liability Companies and GCP have good and marketable title to the
property and assets owned by them, as shown on their respective
Financial Statements as at December 31, 1995, free and clear of all
pledges , liens, burdens or enforcement proceedings, and except for
property and assets which may have been disposed of by them in the
ordinary course of business since the date of their respective
Financial Statements.
1.11 Financial Statements
The Financial Statements of the Companies and the Limited Liability
Companies as at December 31, 1995 enclosed hereto as Exhibits 1.11 a,
b, c, d, e and f have been prepared in accordance with generally
accepted Italian accounting principles consistently applied. They are
true, complete and correct in all material respects and fairly
represent the properties, assets, liabilities, financial position and
results of operations for the period
<PAGE>
stated. There are no facts, circumstances or conditions that will give
rise to a liability or obligation of any kind and nature whatsoever
which is not reflected or disclosed in the Financial Statements.
1.12 Events Subsequent to December 31, 1995 Since December 31, 1995
and through the date hereof, there has not been any material
adverse change in the business, financial condition, operations,
results of operations or future prospects of the Companies, the
Limited Liability Companies and/or GCP. Without limiting the
generality of the foregoing, except in connection with effecting
the transactions contemplated by the Master Agreement and this
Agreement, since that date, the Companies, the Limited Liability
Companies and/or GCP have not: (a) relocated, removed from their
facilities, disposed of, sold , leased, transferred or assigned
any of their assets, tangible or intangible, other than in the
ordinary course of business; (b) entered into any agreement,
contract or lease (or series of related agreements, contracts,
leases and licenses) outside the ordinary course of business; (c)
accelerated, terminated, modified or canceled in any respect any
material agreement, contract, lease or license (or series of
related agreements, contracts, leases and licenses) involving
more than Lit 100,000,000 to which they are a party or by which
they are bound, except in the ordinary course of business; (d)
voluntarily attached or voluntarily permitted any pledge, lien,
burden or enforcement proceeding to be attached to any of its
properties or assets, tangi- ble or intangible; (e) made any
capital expenditure (or series of related capital expenditures)
since May 16, 1996 either involving more than Lit. 150,000,000 or
outside the ordinary course of business; (f) delayed or postponed
the payment of any accounts payable or other liabilities outside
the ordinary course of business; (g) experienced any material
damage, destruction or loss (whether or not covered by
insurance), on any of its properties or assets, including any of
its manufacturing facilities, in excess of Lit. 150,000,000; (h)
entered into any new agreements with its employees, written or
oral, or modified the terms of any such existing contract or
agreement in any material respect, outside the ordinary course of
business; (i) granted any increase in the base compensation or
benefits of any of its employees outside the ordinary course of
business; (k) (i) depleted its inventory of raw materials or
supplies below normal operating levels (ii) intentionally
increased the volume, outside the ordinary course of business, of
such raw materials or supplies, or (iii) built up its inventory
of finished goods from normal operating levels; (l) to the
present knowledge of the Sellers there has not been any other
material occurrence, event, incident, action, failure to act or
transaction outside of the ordinary course of business which had,
or is reasonably likely to have, a material adverse effect on the
Companies, the Limited Liability Companies and /or GCP; (m)
resolved to pay or have paid dividends or any other distribution
to their
<PAGE>
shareholders or quotaholders; (n) booked any accounts receivable for
which the revenue has not been realised or properties have not been
sold or shipped.
1.13 Undisclosed Contingent Liabilities
None of the Companies , the Limited Liability Companies nor GCP has any
liability which would be required to be set forth in a balance sheet
prepared in accordance with generally accepted Italian accounting
principles consistently applied, including a liability for taxes,
except for (a) liabilities set forth on the face of the balance sheets
as of December 31, 1995 and (b) liabilities which have arisen after
December 31, 1995 in the ordinary course of business, and none of which
result from, arise out of, relate to, is in the nature of , or was
caused by any breach of contract, breach of warranty, tort,
infringement or violation of law. None of the Companies , the Limited
Liability Companies nor GCP have any contingent liabilities or claims,
including, without limitation, any arising out of or resulting from the
sale or purchase of any business or interest in any business previously
owned and sold, or not owned but acquired, by any of them. None of them
has incurred any liability or obligation, direct or contingent, or
entered into any transaction, not in the ordinary course of business,
that is material to them and there has not been any change in the
capital stock or material increase in the short-term or long-term debt
of the Companies or the Limited Liability Companies or any material
adverse change, or a development involving, or which may be reasonably
expected to involve, a prospective material adverse change in their
condition, financial or otherwise, business, net worth or results of
operations. None of them are parties to any contracts, agreements or
arrangements in which they reasonably expect or anticipate they will
suffer pecuniary loss, damages, or a diminution in value, or from which
it can reasonably be expected that any of the foregoing shall result.
1.14 Broker's Fees
Neither the Purchaser or the Sellers has any liability to pay any fees
or commissions to any broker, finder or agent with respect to the
transactions contemplated by the Master Agreement and this Agreement.
1.15 Intellectual Property
(a) The Companies, the Limited Liability Companies and the business of
GCP own or have the right to use, pursuant to license, sublicense,
agreement or permission, all intellectual property (which includes all
patents, trademarks, copyrights, trade secrets and other proprietary
rights) reasonably necessary for the operation of their business as
presently conducted. All intellectual property owned or used by them
immediately prior to the date hereof will be available for use immediately
hereafter on identical terms and conditions and there is not now asserted
any charge, complaint or claim alleging that any of them interferes with,
infringes upon or has misappropriated any third party rights in any
intellectual property.
(b) The List attached as Exhibit 1.15 hereto identifies each patent,
design patent or trademark which has been used or registered in the name of
the Companies, the Limited Liability Companies and/or GCP, and identifies
each license, agreement or other permission which either of them has
granted to any third party with respect to any of its intellectual
property.
<PAGE>
(c) No third party has interfered with, infringed upon or
misappropriated any intellectual property rights of the Companies, the
Limited Liability Companies and/or GCP in any material respect and , to the
Seller's knowledge, the Companies, the Limited Liability Companies and/or
GCP have not interfered with, infringed upon or misappropriated any
intellectual property rights of any third parties.
1.16 Condition of Tangible Assets
As of the date hereof, substantially all of the assets of the
Companies, the Limited Liability Companies and/or GCP, including both
tangible and intangible, are in good operating condition and repair,
subject to normal wear and tear and are usable in the regular and
ordinary course of business as presently conducted.
1.17 Tax Matters
(a) The Companies and/or the Limited Liability Companies have filed
all of the tax returns required to be filed by them. All such tax returns
were correct and complete in all respects. All taxes owed by them as shown
on said tax returns have been paid or accrued on their books. None of them
currently is the beneficiary of any extension of time within which to file
income tax returns. No claim has been asserted by any authority in any
jurisdiction where any of them has not filed tax returns that it is subject
to taxation by that jurisdiction. There are no pledges, liens or
encumbrances on any of the assets of the Companies or the Limited Liability
Companies imposed in connection with any failure, or alleged failure, to
pay any tax.
(b) The Companies and the Limited Liability Companies have withheld
and paid all taxes required to have been withheld and paid in connection
with amounts paid to any employee, independent contractor, consultant,
creditor, stockholder or other third party.
(c) No authority is expected to asses any additional taxes for any
period for which income tax returns have been filed previously. There is no
dispute or claim concerning any tax liability for either of the Companies
and the Limited Liability Companies, either (i) claimed or raised by any
authority in writing, or (ii) based upon personal contact with any agent of
such authority. The Sellers have delivered to Breed correct and complete
copies of all income tax returns, examination reports and statements of
deficiencies assessed against or agreed to by the Companies and the Limited
Liability Companies since 1994. (d) The Companies and the Limited Liability
Companies have not waived any statute of limitation in respect of taxes or
agreed to an extension of time with respect to income tax assessments or
deficiencies.
(e) The unpaid income taxes of the Companies and the Limited Liability
Companies for the year ending December 31, 1995, did not exceed the reserve
for tax liability.
(f) Subject to acceptance of tax returns as filed, all tax losses as
shown on each of the Companies' and the Limited Liability Companies' most
recent tax returns can be carried forward to their current or subsequent
fiscal years and can be utilized to offset future gains, in accordance with
applicable laws.
<PAGE>
1.18 Material Contracts
Except as set forth in Exhibit 1.18 hereto, none of the Companies, the
Limited Liability Companies and/or GCP is bound by (a) any material
leases, (b) any material agreement, contract or commitment relating to
the employment of any person, (c) any agreement , contract or
commitment limiting the freedom of them to engage in any line of
business or to compete with any other person, (d) any agreement,
contract or commitment not entered into in the ordinary course of
business which involves payment of Lit. 150,000,000 or more in any
calendar year and is not cancelable without penalty within 30 days, (e)
any intercompany agreements with related parties, including any of
their affiliates, subsidiaries or shareholders, or (f) any contract
with a customer where the price charged for its product sold is fixed,
either absolutely or by a specific formula, for a period of six months
or longer. Neither of the Companies, the Limited Liability Companies
nor GCP has violated any term or condition of any material contract or
agreement in any material respect . Contracts made in the ordinary
course of business involving an obligation or commitment of less than
Lit. 150,000,000 in any calendar year shall be deemed not to be
material for purposes of this section. The Sellers, the Companies, the
Limited Liability Companies and/or GCP have obtained all the consents
coming from third parties as to the transfer to the Purchaser of Shares
and quotas, real property, business relationships and agreements
transferred pursuant to the Master Agreement.
1.19 Inventory
All inventory of each of the Companies, the Limited Liability Companies
and/or GCP is accounted for or stated in the Companies' Financial
Statements, and as to GCP, on the list attached to the Deed of Transfer
of Business on a going concern basis in accordance with the generally
accepted U.S. accounting principles. All of the inventory of each of
them consists of readily merchantable and saleable goods and products
which are in conformity with existing industry standards for quality;
is not in obsolete, slow moving unsaleable or unusable condition; is
valued at reasonable amounts based on the ordinary course of business
during the past six months; and is not subject to any write down or
write off.
1.20 Notes and Accounts Receivable
All notes and accounts receivable of the Companies and the Limited
Liability Companies are accounted for or stated on the Companies'
Financial Statements, in accordance with generally accepted Italian
accounting principles consistently applied. The accounts receivable of
each of the Companies and the Limited Liability Companies are valid and
genuine; have arisen solely out of bona fide sales and deliveries of
goods, performance of services and other business transactions in the
ordinary course of business consistent with past practice; are not
subject to valid defenses or counterclaims; and are collectible after
billing at the full recorded amount thereof less, in the case of
accounts receivable appearing on the Financial Statement, the recorded
allowance for collection losses
<PAGE>
thereon. The allowance for collection losses on the Financial
Statements has been determined in accordance with generally accepted
Italian accounting principles.
1.21 Illegal Payments or Arrangements
None of the Companies, the Limited Liability Companies or GCP nor any
employee or agent has made any payments or received or retained any
funds in violation of any law, rule or regulation, and none of the
Companies, the Limited Liability Companies or GCP has entered into any
illegal or unauthorized contractual arrangements or agreements or is a
party to any criminal litigation.
1.22 Permits and Licenses
Each of the Companies, the Limited Liability Companies and GCP has such
permits, licenses, franchises and authorizations from governmental of
regulatory authorities ("Permits") as are necessary to own their
respective properties and to conduct their business in the ordinary
course, except where the failure to have any such permit would not have
a material adverse effect on the condition (financial or otherwise) ,
business, properties, net worth or results of operations of the
Companies, of the Limited Liability Companies an/or GCP; each of them
has fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred which allows , or
after notice or lapse of time would allow, revocation or termination
thereof or results in any material impairment of the rights of the
holder of any such Permits and no such Permits contain any restrictions
that are materially burdensome to any of the Companies, the Limited
Liability Companies and/or GCP.
1.23 Financial Condition of the Companies
The Companies, the Limited Liability Companies and/or GCP are solvent
and, prior hereto, have not commenced bankruptcy or other insolvency
proceedings, either voluntarily or involuntarily, under any applicable
Italian law or procedures. With the exception of AUTO AVIO, the Sellers
do not expect the Companies and/or the Limited Liability Companies to
need additional capital to meet their operational needs or financial
requirements now or for the foreseeable future. The Sellers do not
intend or anticipate causing the Companies, the Limited Liability
Compaies and/or GCP to commence or file bankruptcy or other insolvency
proceedings and no creditor has threatened to commence such proceedings
against any of them.
1.24 Environmental Health and Safety Laws
Except as set forth in Exhibit 1.24 hereto, the Companies,
the Limited Liability Companies and/or GCP:
(a) are in substantial compliance with any and all applicable EC,
Italian governmental, regional, provincial and municipal laws and
regulations relating to the protection of human health and safety, to the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") and there is no soil or ground water
contamination at any of their sites;
(b) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws including, without limitation,
certificates of fire and accident prevention;
<PAGE>
(c) are in compliance with the terms and conditions of any such
permit, license or approval, except where such noncompliance
with the terms and conditions of such permits, licenses or
approvals, will not, singularly or in the aggregate, have a
material adverse effect on the condition (financial or
otherwise), business, properties, net worth or operations of
either of the Companies or the Limited Liability Companies;
and
(d) are not required to make any further significant
interventions to abate or correct any environmental conditions or
to bring their facilities or properties into substantial
compliance with any applicable laws and regulations relating to
Environmental Laws, and are not the subject of any open claims
being asserted by USSL, the regional health authority. The
associated costs and liabilities to the Companies, the Limited
Liability Companies and/or GCP(including, without limitation, any
capital or operating expenditure for interventions required for
clean-up, closure of properties or compliance with Environmental
Laws or any permit, license or any related constraints on
operating activities and potential liabilities to third parties)
do not, singularly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), business,
properties, net worth or results of their operations taken as a
whole.
1.25 Litigation
Except as set forth in Exhibit 1.25, the Companies, the Limited
Liability Companies and/or GCP:
(a) are not subject to any outstanding injunction, judgement,
order, decree or ruling;
(b) are not a party to , or threatened to be made a party to, any
action, suit , proceeding, hearing, investigation of, in or
before any court or judicial or administrative agency or any
regional, local or municipal jurisdiction or before any
arbitrator; or are a party, or threatened to be made party to,
any action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against either of them arising out of
any injuries to individuals or property as a result of the
ownership, possession or use of a product manufactured, sold,
leased, distributed or delivered by any of them. The potential
risk or liability that could result to the Companies, the Limited
Liability Companies and/or GCP from each of the claims disclosed
in Exhibit 1.25 has been accurately estimated by the Companies ,
the losses therefrom, if adversely determined, would not exceed
such estimates. The losses therefrom, if adversely determined
would have a material adverse affect on their business, financial
condition, operation or results of operations.
1.26 Product Warranty
Each product manufactured ,sold leased or delivered by the Companies,
the Limited Liability Companies and/or GCP is in conformity with
applicable contractual commitments and all express and implied
warranties, and none of them has any liability for recall, replacement
or repair thereof or other damages in connections therewith,
<PAGE>
subject only to the reserve for product warranty claims.
1.27 Product Liability
None of the Companies, the Limited Liability Companies nor GCP has any
liability arising out of any injury to any individual or property as a
result of the ownership, possession or use of any of the products
manufactured, sold, leased or delivered by any of them prior to the
date hereof.
1.28 Employee Claims
Except as set forth in Exhibit 1.28 hereto, there are no collective
bargaining agreements or labor agreements to which any of the
Companies, the Limited Liability Companies and/or GCP is a party,
covering any of their employees. None of them has any strikes,
discrimination claims, retaliatory discharge claims, sexual harassment
claims, claims of unfair labor practices, collective bargaining
disputes, unpaid wage claims or other labor/employee disputes pending
against them in any court administrative agency.
1.29 Insurance
Each of the Companies, the Limited Liability Companies and/or GCP has
in place and is maintaining in effect policies of insurance protecting
their interests and their properties as is customary for like similar
businesses. Without limiting the generality of the foregoing, they have
in effect, and shall continue to have in effect through the Closing,
the policies set forth in Exhibit 1.29.
Upon request, each of the Companies, the Limited Liability Companies
and/or GCP shall furnish Purchaser, at the Closing, copies of such
policies or certificates of insurance evidencing the existence and
continuation of such insurance coverage to and through the Closing.
1.30 Real Estate, Leases
(a) Except as disclosed in the December 31, 1995 Financial
Statements, with respect to each parcel of real property
transferred pursuant to the Master Agreement: (i) the Sellers
have good and marketable title to such real property, free and
clear of any mortgage, pledge, lien, burden or enforcement
proceeding, easement, covenant or other restriction, and recorded
easements, covenants and other restrictions which do not impair
the current use, occupancy, marketability of title, of the
property subject thereto; (ii) there are no leases, subleases,
licenses, concessions or other agreements granting to any party
or parties the right to use or occupy any portion of the real
property; (iii) there are no outstanding options or rights of
first refusal to purchase the real property, or any portion
thereof or interest therein; and (iv) there are no parties (other
than the Companies, the Limited Liability Companies and/or GCP)
in possession of the real property.
(b) The Companies, the Limited Liability Companies and/or
GCP are parties to various leases and subleases. With
respect to each such lease and sublease: (i) such lease or
sublease is valid, legal, binding, enforceable and in full
force and effect; and (ii) all facilities leased or
subleased thereby are supplied with such
<PAGE>
utilities and other services as are necessary for the proper
operation and use of said facilities.
1.31 Employment
The Sellers have delivered to Purchaser a full list of names of all of
the Companies', the Limited Liability Companies' and/or GCP's
employees, with their employment level, personal code , date of birth,
date of commencement of employment, and current compensation. - There
is no agreement or arrangement with respect to cessation of employment
or
retirement;
- there are no amounts owing to any present or former employee
other than renumeration accrued due or for reimbursement of
business expenses other then those recorded in the books of
account;
- the Companies, the Limited Liability Companies and/or GCP have
at all times complied in all material respects with all
regulations relating to workers' representatives, trade union
representatives, health and security committee and the Italian
local health authorities;
- there are no disputes or judicial proceedings or claims
pending or threatened against the Companies, the Limited
Liability Companies and/or GCP concerning employment, service
or consultancy agreements, the breach or termination thereof
and/or the right to be on the payroll of the Companies, the
Limited Liability Companies and/or GCP;
- all social security contributions due pursuant to the law and
the terms of employment have been paid and fully cover the
pension contributions to which the employees are entitled,
based on their services. The Companies, the Limited Liability
Companies and/or GCP have duly made all other contributions
required by law to be paid on behalf of their employees;
- the Companies, the Limited Liability Companies and/or GCP have
received no notice of assessment or proposed assessment of any
additional pension or social security contributions;
- the termination reserve ('TFR") accrued for employees fully
cover their obligations under Italian law to the date hereof.
1.32 Cassa integrazione guadagni
The Sellers have filed a request for the grant to GCP of the benefits
of temporary suspension (Cassa integrazione guadagni) for ___ employees
as set forth in Exhibit 1.32 hereto. The benefit applied for will be
granted and there shall be no prejudice to Purchaser by reason of the
application or of its denial. Consequently, all costs and negative
consequences resulting from the filing of the application as well as to
its denial for the period ending June 30, 1996 shall be exclusively
borne by the Sellers.
2. Disclosure
The representations and warranties contained in this Agreement do not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in the Master Agreement and in this Agreement
<PAGE>
not misleading.
3. Purchase Price
3.1 The purchase price of the Companies and the Limited Liability Companies
was arrived at by adding or reducing to the Equity as of December 31,
1995 of each the excess or deficiency (if any) of the Appraised Value
of the tangible fixed assets owned by it as regards the book value of
the tangible fixed assets. The Equity as listed in Exhibit 3.1 hereto
are true and correct and calculated in accordance with Italian
Generally Accepted Accounting Principles. Since December 31, 1995 there
has been no reduction in excess of five percent ( 5%) of the Aggregate
Equity.
3.2 The parties agree that upon determination of the final equity,
excluding intangibles and fixed assets, as of June 30, 1996 as
determined by audit in accordance with Italian generally accepted
accounting principles (Italian GAAP), the net purchase price may be
negatively adjusted if the fiscal equity is reduced in excess of five
per cent (5%) as set forth in 3.1
3.3 The Business transferred on a going concern basis, pursuant to the Deed
of Sale of Business on a going concern basis, include all the assets
necessary for the continuing operation of the Business in the same
manner as previously conducted.
4. INDEMNIFICATION
4.1 General Indemnity
Except for EC and CARIFIN who shall warrant and indemnify the Purchaser
within the limit of their pro-rata participation respectively into FAS
and AUTO AVIO, each of the Sellers, jointly and severally, (the
"Indemnifying Party") shall indemnify, defend and hold harmless the
Purchaser (the "Indemnified Party") and all of their respective
affiliates, officers, directors, employees and shareholders (
collectively "Indemnified Persons") from, and will pay to them the
amount of any claim, liability, obligation, loss, damage, assessment,
judgement, cost and expense (including, without limitation, reasonable
attorney fees and accountant fees and costs and expenses reasonably
incurred in investigating, preparing, defending against or prosecuting
any litigation, arbitration or claim, action, suit, proceedings or
demand) of any kind or character (and without giving effect to any tax
benefit to the Indemnified Party) arising out of or in any manner
incident, relating or attributable to (a) any inaccuracy in any
representation or breach of any warranty of the Indemnifying Party
contained in this Agreement, or (b) any failure by the Indemnifying
Party to perform or observe, or to have performed or observed, in full,
any covenant, agreement or condition to be performed or observed by
such party under the Master Agreement and this Agreement.
4.2 Sellers will have no liability for indemnification until the total
amount of claims exceed one hundred million Lire (Lit. 100,000,000) for
each sales or transfer provided for in article 4 of the Master
Agreement.
<PAGE>
4.3 Guarantee
The total amount of indemnification pursuant to article 4 shall not
exceed the sum of twenty-five billion Lire (Lit. 25,000,000,000).
However, Sellers and Purchaser agree that a special reserve of ten
billion eight hundred and forty-three million sixty thousand Lire
(Lit.10,843,060,000) has been established. They further agree that any
claims made in accordance with 4.1 and 4.2 above shall be deducted from
the reserve until the reserve is totally depleted. Also, the parties
agree that, in the event that the Purchaser obtains an Italian
government subsidy under an application filed 28 November 1990
deliberazione n' 7143, such subsidy amount will be applied to any
claims made in excess of the special reserve. All claims in excess of
the amounts of the special reserve and subsidy (if received ) shall be
promptly paid by the Sellers within thirty (30) days of written demand.
The Seller shall have the right to participate in the defense,
settlement and remediation of all claims at the Sellers' expense.
4.5 Survival of Indemnification
The indemnity obligation contained in Article 4, hereof shall remain
operative and in full force and effect regardless of (a) the
termination or expiration of this Agreement, (b) any investigation made
by or on behalf of or knowledge held by, any indemnified person, and
(c) the consummation of the transactions contemplated hereby provided,
however, that claims for indemnification shall be made by notice not
later than December 31, 2001 for matters of a tax nature and not later
than five years from the date hereof for all other claims.
4.6 Cooperation
The Sellers and the Indemnified Party will, upon reasonable request and
at the expense of the Indemnifying Party, cooperate with the
Indemnified Party in the defense of any matter asserted by a third
party which may give rise to a claim for indemnification.
5. REPRESENTATION AND WARRANTIES OF PURCHASER
Each of the Purchaser, jointly and severally, represent and warrant and
agree with the Sellers as follows:
5.1 Organization and Good Standing
Each of the Purchaser is a corporation duly organized, validly existing
and in good standing under the law of their State of occupation. Each
of the Purchaser has all requisite corporate power and authority to
enter into and deliver the Master Agreement and this Agreement and to
consummate the transactions contemplated hereunder. The execution,
delivery and performance by the Purchaser of the Master Agreement, this
Agreement, the purchase of Real Property, the purchase of the Business
of GCP on a Going Concern Basis, the transfer of the shares of the
Companies and of the quotas of the Limited Liability Companies will not
result in a breach or a violation of or a default under, the
certificate of incorporation or By-Laws of the Purchaser or any
agreement or instrument by which they or their properties are bound or
any statement, rule, regulation or judgement, injunction, order or
decree of any court, governmental or administrative agency to which
Purchaser or their assets or property are subject or require the
obtaining
<PAGE>
of any consent, approval or authorization, permit or license from or
filing with, any governmental administrative authority or any other
person. The Master Agreement, the agreements, deeds and transfers
executed thereunder and this Agreement constitute the legal, valid and
binding obligations of the Purchaser, enforceable in accordance with
their terms.
5.2 Relationships with the Employees
In connection with the purchase on a going concern basis from GCP as
per the deed of sale annexed as Exhibit 4 to the Master Agreement, in
the event that all or some of the employees - whose Employment
contracts are transferred together with the GCP Business under the
terms of the mentioned sale of business on a going concern basis- do
not give, as provided by the Italian law, their consent to the transfer
so releasing GCP from the obligation to pay them the TFR accrued up to
June 30, 1996, Purchaser hereby acknowledges that it has to be the sole
responsible for the payment of such TFR and consequently undertakes to
keep harmless GCP from possible claims of any of the Employees in
respect of the payment of TFR accrued up to June 30, 1996.
6. ASSIGNMENT AND REVOCATION
6.1 None of the parties hereto shall:
(a) transfer or assign this Agreement or their interest herein to
pay any other party, except that a transfer to an affiliated
party or related party is permitted hereby ; or
(b) cancel, terminate or revoke this Agreement or any Agreement
made in connection herewith.
7. MISCELLANEOUS
7.1 Survival of Covenants
The representations, warranties and covenants of the parties hereto
shall survive the consummation of the transactions contemplated hereby
without limitation.
7.2 Amendment and Waiver
This Agreement may be amended only by a writing signed by the Sellers
and Purchaser. Any provision of this Agreement may be waived if in
writing signed by the party or parties affected.
7.3 Binding Effect
This Agreement and all the provisions hereof shall be binding upon and
inure to the benefit of the parties hereto, their respective successors
and any permitted assigns of their rights hereunder.
7.4 Counterparts
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which shall constitute
one and the same instrument.
7.5 Language - Applicable Law The Laws of Italy shall govern the
interpretation, validity and performance of this
<PAGE>
Agreement. This Agreement has been executed in an English text. If an
Italian version is prepared, the English Language text shall prevail.
In case of controversy on the meaning of the Agreement, the parties
shall make reference to the English text in order to interpret the
same.
7.6 Further Assurances
Each party hereto shall do and perform or cause to be done and
performed all such further acts and things and shall execute and
deliver all such other agreements, cerficates, instruments and
documents as any other party hereto reasonably may request in order to
carry out the intent and accomplish the purposes of the Master
Agreement and this Agreement and the consummation of the transactions
contemplated hereby.
7.7 Arbitration
Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of arbitration, the Sellers will
constitute a sole party, as will the Purchaser. The party wishing to
submit to Arbitration shall appoint its Arbitrator and give notice to
the other party of its appointment. Within fifteen (15) days of receipt
of this notice, the other party shall appoint its Arbitrator and shall
give notice to the first party of its appointment. Within fifteen (15)
days of the appointment of the second Arbitrator, the two Arbitrators
so appointed shall agree upon the appointment of a third Arbitrator. If
no agreement is reached, the third Arbitrator shall be appointed, upon
application of the most diligent party, by the President of the Milan
Court of Appeal. Similarly, if the party to whom the notice of the
appointment of an Arbitrator has been given does not, in turn, appoint
its Arbitrator, said Arbitrator shall also be appointed, together with
the third Arbitrator, by the President of the Milan Court of Appeal,
which will also provide for the substitution of any Arbitrator who dies
or resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
7.8 Notices
All notices, in connection with this Agreement, shall be dated and in
writing, delivered by personal delivery, by registered mail, telegram,
telecopier or courier service to the address set forth below or such
other address as such party may specify for the purpose by notice to
the other. Each notice shall be effective when delivered at the
following addresses:
If to Purchaser:
Breed Technologies, Inc.
5300 Old Tampa Highway
Lakeland, FL 33807-3050
Attn..: Charles J. Speranzella Jr.
Fax: 001 941 6686039
with a copy to:
Gallino Plasturgia S.r.l.
<PAGE>
c/o
Attn. :
Fax:
If to Sellers:
IAO Industrie Riunite S.p.A.
Strada Torino, 23
10092 Beinasco To
Attn.:
Fax:
With a copy to:
Bruno R. Pavia, Esq.
PAVIA e ANSALDO
Via dell'Annunciata, 7
20121 Milan, Italy
Fax: 02 653306
7.9 Legal and Other Expenses
Each party hereto shall pay its legal and other expenses incurred in
connection with this Agreement.
7.10 Captions
The Article and Section captions used herein are for reference purpose
only, and shall not in any way affect the meaning of interpretation of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
of the year first above written.
Breed Technologies, Inc. IAO Industrie Riunite S.p.A.
By By
Gallino Plasturgia S.r.l. Gallino Componenti Plastici S.p.A.
By By
Carifin S.p.A.
By
Gruppo Plastico Industriale S.r.l.
By
Emilio Cazzaniga
Macchi Arturo S.r.l.
By
Giovanni Rigamonti
<PAGE>
EXHIBIT 3
AGREEMENT
by and between
IAO - Industrie Riunite S.p.A. having registered office in Beinasco ( To),
Strada Torino 23, social capital Lit. 47,500,000,000 registered at the Turin
Court n. 4770/86 Fiscal Code 05163550014 represented by its President Giovanni
Rigamonti (hereinafter referred to as IAO); and GALLINO PLASTURGIA S.r.l.,
having registered office in Beinasco. Strada Torino 23, registered at the Turin
Court n. 516615/1996 Fiscal Code 07102360018 represented by Bruno Pavia, its
attorney in fact pursuant to a special power of attorney by means of Notaio
Marocco deed dated June 28, 1996 (hereinafter referred to as GP)
WHEREAS
- - IAO is the owner of the trademark name GALLINO described in Exhibit 3 and duly
registered (hereinafter referred to as the TRADEMARK); - GP is considering the
purchase of the business, on a going concern basis, carried out by GALLINO
COMPLEMENTI PLASTICI S.p.A., an Italian company controlled by IAO; - as a matter
of fact GP already exploits without any consideration the TRADEMARK with the
consent of IAO and now desires to purchase the ownership of the GALLINO
trademark name, and IAO willing to sell such name; NOW THEREFORE, IT IS HEREBY
AGREED AS FOLLOWS
1. PREAMBLE AND EXHIBITS
1.1 The preamble and exhibits are an essential part of this agreement.
2. OBJECT
2.1 IAO sells and transfers to G.P. who accepts the full ownership of the
TRADEMARK described in detail - also in respect of the existing
intellectual property registrations - in the Exhibit 3 without
restrictions and complete of all the rights and obligations pertinent
to the same.
3. CONSIDERATION
3.1 As consideration for the transfer of the TRADEMARK GP will pay to IAO
the amount of one billion Lira (Lit. 1,000,000,000).
3.2 The payment of the above specified consideration is made simultaneously
with the execution of this agreement. IAO acknowledges the receipt of
the consideration and deliver to GP the relevant invoice.
4. REPRESENTATIONS OF IAO
4.1 In addition to the contents of the Representations and Warranties
Agreement attached as Exhibit 2 to the Master Agreement executed
between, among others, the parties the same date hereof, IAO in
connection with purchase contemplated herein, represents and
<PAGE>
states to have all right to use, sell and license the TRADEMARK. In
particular the past use of the TRADEMARK by IAO and/or by GCP S.p.A.
(or by any other entity being party of IAO's Group) has been conducted
in due form and with the consent of all interested parties. IAO
represents and state as well that there is not now asserted any charge,
complaint or claim alleging that any of the entities using the
TRADEMARK has infringed upon or has misappropriated any third party
rights. IAO represents and state that no third party has interfered
with, infringed upon or misappropriated any right on the TRADEMARK.
5. OBLIGATIONS OF IAO
5.1 As of the execution of the present Agreement, IAO will immediately
cease to use directly and/or indirectly under whatever firm - the
TRADEMARK.
5.2 The parties expressly agree that G.P. maintains since the date hereof
the possibility to fully exploit as the owner the TRADEMARK,
irrespective to the time necessary to fulfil the steps referred to the
amendments in the registration at the Italian or foreign public
offices.
6. CONDITION
6.1 Since the transfer of the TRADEMARK is to be considered as an element
of the global transfer of GCP's business as a going concern as provided
in the deed of sale attached as Exhibit 4 to the Master Agreement, the
effectiveness of this agreement will be subject to the condition of the
actual transfer of GCP's business to GP. If such a transfer is not
fulfilled by July 2, 1996, the present agreement will be null and void
as of the date hereof.
7. COSTS AND TAXES
7.1 All procedures and expenses necessary to obtain the registration of
this Agreement at the relevant Italian or foreign offices are
exclusively borne by GP.
7.2 Since the transfer is subject to VAT, this Agreement has to be
registered "in misura fissa" in accordance with Article 40 D.P.R.
26/4/1986 n.131.
7.3 The parties ask to the Notary to keep this Agreement into his files.
8. ARBITRATION
Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this Agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). The party wishing to submit to Arbitration shall
appoint its Arbitrator and give notice to the other party of its
appointment. Within fifteen (15) days of receipt of the notice, the
other party shall appoint its Arbitrator and shall give notice to the
first party of its appointment. Within fifteen (15) days of the
appointment of the second Arbitrator, the two Arbitrators so appointed
shall agree upon the appointment of a third Arbitrator, who will be the
President of the Arbitration Panel. If no agreement is
<PAGE>
reached, the third Arbitrator shall be appointed, upon application of
the most diligent party, by the President of the Milan Court of Appeal.
Similarly, if the party to whom the notice of the appointment of an
Arbitrator has been given does not, in turn, appoint its Arbitrator,
said Arbitrator shall also be appointed, together with the third
Arbitrator, by the President of the Milan Court of Appeal, which will
also provide for the substitution of any Arbitrator who dies or
resigns. Arbitration shall be conducted in the Italian language and
take place in Milan.
IAO GP
- Exhibit A -
GALLINO TRADEMARK NAME REGISTRATIONS
- Italian Trademark "GALLINO", Granted to IAO, classes
11-12-17-20, dep. 10.18.72.Expiration date 9.07.2002.
- International Trademark "GALLINO",granted to IAO, classes
12-17, valid in : Austria, Benelux,Switzerland, Croatia,
Czech Republic, Egypt, Spain, Liechtenstein, France, RTF,
Morocco, Monaco, Portugal, Romania, Slovenia, S. Marino,
Slovakia, Hungary, Yugoslavia; dep. 10.18.72, expiration
date 10.18.2012.
EXHIBIT 4
DEED OF SALE OF BUSINESS ON A GOING CONCERN BASIS
Between
- Gallino Componenti Plastici SpA, with registered office at
Strada Torino 23, 10092 Beinasco, Torino, represented by Mr.
Giovanni Rigamonti, (hereinafter the "Seller")
and
- Gallino Plasturgia Srl, with registered office at Strada
Torino 23, 10092 Beinasco, Torino, represented by Mr.
Charles J. Speranzella, its sole director (hereinafter the
"Purchaser")
* * *
DEFINITIONS
In this Agreement and its Exhibits, the words and expressions which
follow will have the following meanings:
<PAGE>
A. "Business": the business of the Seller conducted in
Rivalta, Nichelino, Renate, Copiano, San Benigno and
Castello, Italy consisting in the design , manufacture and
sale of steering wheels, instrument panels, consoles,
interior trims, bumpers and exterior trims and other
automotive parts and accessories;
B. "Liabilities"
(i) liabilities to Employees starting from the date
hereof for severance pay ("TFR"), unpaid salaries,
accruals and holidays not taken, other personnel
liabilities as to "Tredicesima" and
"Quattordicesima", matured debt towards INAIL all of
which are listed in the Financial Statement as of May
31, 1996 attached as Exhibit "A" hereto;
(ii) the principal and interest accrued to date due to
Cassa di Risparmio di Parma e Piacenta SpA pursuant
to Loan Agreement entered into on September 12, 1994,
as listed in Exhibit "A" hereto;
(iii) the sum representing the balance due on the purchase
of machinery, title to which subject to a reservation
of title, pursuant to the "Sabatini" Law, as well as
the deferred credit of the contributions as listed in
Exhibit "A" hereto;
(iv) the value for "fondo rischi e rinnovamento impianti"
as agreed and shown in Exhibit A hereto.
C. Assets
(i) "Intellectual Property": the know-how used in the
Business, as well as the design patents, patents, the value
of which is shown under the item "Brevetti" in the Exhibit
"A" hereto;
(ii) "Fixed Assets": the items of fixed assets such as
machinery, equipment, tools, molds and tooling, vehicles and
other chattels used in the Business as at April 1, 1996 the
value of which is shown in Exhibit "A" hereto;
(iii) "Inventory": the inventory of raw materials, work in
process and finished products, the value of which is shown
in Exhibit "A" hereto;
(iv) "Goodwill" referred to the Business the value of which
is shown in Exhibit "A" hereto;
(v) the other items of the assets listed together with the
value relevant to in Exhibit "A" hereto.
D. "Agreements": the on-going contracts, leases and
relationships entered into by Seller which relate to the
Business;
F. "Employee Agreements": employment agreements with the
Employees;
G. "Employees": the employees of the Seller at the date hereof as
recorded in the registers as provided by the applicable law;
WHEREAS
- - Seller desires to sell and Purchaser desires to acquire the Business. Now,
therefore, it is
<PAGE>
agreed as follows:
1. SALE OF PART OF BUSINESS
1.1 The Seller hereby sells the Business to the Purchaser on the terms and
conditions herein set forth. The Purchaser shall not succeed in any
obligation, debt, account payable or receivable, asset or liability of
Seller which is not specifically transferred to the Purchaser to this
Agreement and listed in Exhibits "A" hereto.
2. PRICE AND PAYMENT
2.1 The price for the purchase and the sale has been agreed to in
accordance with the Financial Statement as of May 31, 1996 attached as
Exhibit "A". The price shall be adjusted in accordance with the results
of the audit of the adjustment categories set forth in 2.3 below.
2.2 All purchase price adjustments shall be completed no later than October
31,1996 and payments for the adjustments shall be made not later than
November 15,1996 or fifteen days after mutual agreements on the
adjustments if sooner than October 31, 1996.
2.3 Adjustments shall apply to the following:
A. INVENTORY to be determined in accordance with U.S.
Generally Accepted Accounting Principles;
B. FIXED ASSETS additions for the month of June 1996 the
value to be determined at cost;
C. PERSONNEL LIABILITIES (TFR, vacation, holiday) through
June 30, 1996 as determined in accordance with Italian law;
D. ACCRUALS AND PREPAYMENT OF INTERESTS on the assumed
LOAN and SABATINI LOANS through June 30, 1996: the value to
be accrued in accordance with U.S. Generally Accepted
Accounting Principles.
E. OTHER ASSETS totaling one billion nine hundred and
twenty-nine million ninety one thousand two hundred and
fifty-seven Lire (Lit.1,929,091,257) for employee
advances, supplier advances and prepaid expenses as
listed in Exhibit "A": will be determined in accordance
with U.S. Generally Accepted Accounting Principles.
3 REPRESENTATIONS AND WARRANTIES
The Seller represents and warrants to the Purchaser as follows:
3.1 Assets and Liabilities
The fixed Assets are in good condition, unencumbered (apart for the
Sabatini liens) and operate satisfactorily for the purpose to which
they are used in the Business and there are no liabilities, except for
the Liabilities.
3.2 Inventory
<PAGE>
The inventory of Products is in good and sellable or useable condition,
valued on a FIFO basis, taking into account slow moving, obsolete or
unusable or unsaleable products, raw materials, parts or work in
progress. Tooling to be sold to customers shall be valued in accordance
with the stage of completion method.
3.3 Agreements
The Agreements are in full force and effect and have been duly
performed by the Seller up to the date hereof.
3.4 Employees
There are no employees of the Business except for the Employees as
identified in the definition Employees hereinabove. The levels of
employment and salaries of the Employees are in accordance with the
duties actually performed and are in accordance with the provisions of
the applicable national collective labor agreement. The Seller has duly
performed all its obligations to the Employees for salary, social
contributions, withholdings and other obligations relating to their
employment up to the date hereof and there are no other liabilities to
Employees except the liabilities listed in Exhibit "A".
3.5 Tax and Social Security Compliance
The Seller has duly performed all its obligations of a tax and Social
Security nature. The Seller has not received notice of assessments for
taxes due nor are there pending before any judicial or administrative
authority actions or proceedings relating to its tax or social security
obligations.
3.6 Intellectual Property
The Seller has full title to the patents and the know-how as referred
in the definition "Intellectual Property" hereinabove and their use and
transfer does not violate the rights of any third party.
4. Purchaser undertakes to use its best efforts to obtain within 120 days
hereof the consent of the Unions and of each of the Employees as to the
substitution of the Purchaser for the Seller as the sole responsible
for the payment of TFR to the Employees. In the event such a consent is
not obtained for all or part of the Employees, the Purchaser undertakes
to keep harmless the Seller.
5. NON COMPETITION
5.1 The Seller undertakes, pursuant to Art. 1381 C.C., not to compete,
directly or through companies which are under its control or common
control with its shareholders, for a period of 5 years from the date
hereof with the Business.
6. GENERAL PROVISIONS
6.1 Purchaser shall have access, through its duly authorized qualified
representatives to all of the Seller's books of account, payroll and
sales records, stock and other information relating to customers and
suppliers, correspondence, files, whether on paper or in other form,
which relate to the Business.
<PAGE>
6.2 No modification of this agreement shall be valid unless it shall be in
writing.
6.3 All notices provided for or permitted by this agreement shall be given
-in addition to registered offices of the GCP and GP- also to the
addresses hereafter set forth or to the addresses which may be
hereafter given by notice in writing. Notices shall be sent to Charles
J. Speranzella Jr., Breed Technologies Inc., 5300 Old Tampa Highway,
Lakeland, Florida 33807-3050, fax 941 - 6686039 and to Bruno R. Pavia,
Esq., Pavia e Ansaldo, Via dell'Annunciata 7, 20121 Milan, Italy.
6.4 All costs and expenses further hereto (including stamp tax,
registration tax [principal and supplemental] and notarial fees)
relating to the execution of this agreement shall be borne by the
Purchaser.
6.5 The civil and tax effects of this sale shall be from 00:01 hours
on July 1, 1996.
7. ARBITRATION 7.1 Any dispute arising between the parties in
connection with the validity, termination, interpretation or
performance of this agreement shall be submitted to the decision of a
Panel of three (3) Arbitrators, which shall decide in accordance with
the law ("in via rituale e secondo diritto"). The party wishing to
submit to arbitration shall appoint its arbitrator and give notice to
the other party of its appointment. Within fifteen (15) days of
receipt of this notice, the other party shall appoint its arbitrator
and shall give notice to the first party of its appointment.
Within fifteen (15) days of the appointment of the second arbitrator,
the two arbitrators so appointed shall agree upon the appointment of a
third arbitrator. If no agreement is reached, the third arbitrator
shall be appointed, upon application of the most diligent party, by the
president of the Milan Court of Appeal. Similarly, if the party to whom
the notice of the appointment of an arbitrator has been given does not,
in turn, appoint its arbitrator; said arbitrator shall also be
appointed together with the third arbitrator by the President of the
Milan Court of Appeal, which will also provide for the substitution of
any arbitrator who dies, or resigns. Arbitration shall be conducted in
the Italian language and take place in Milan.
Turin, June 28, 1996
Gallino Componenti Plastici S.p.A. Gallino Plasturgia S.r.l.
By By
<PAGE>
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Charles J. Speranzella Jr. (hereinafter
referred to as BREED) on the one part and GALLINO COMPONENTI PLASTICI
S.p.A., an Italian company represented by Mr. Giovanni Rigamonti
(hereinafter referred to as GCP) on the other WHEREAS -GCP is the
owner of 95,55% of the issued and outstanding capital of FAS S.p.A., a
joint stock company incorporated and existing under laws of Italy,
with registered office at Ferentino (Frosinone) having an issued and
outstanding paid in capital of three billion three hundred and
sixty-seven million Lire(Lit. 3,367,000,000), represented by three
million three hundred thousand shares each of them of a par value of
one thousand Lire (Lit. 1,000)(the Shares), (hereinafter referred to
as FAS)
Now , therefore the parties hereby agree
1. GCP sells to BREED the Shares of FAS and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 3,217,000 95,55% 3,217,000,000
The SHARES are transferred today in Turin at the offices of Casa Risparmio Parma
e Piacenza, through execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of ten billion, nine hundred
eighty-seven million one hundred thousand Lire (Lit. 10,987,100,000). The price
will be paid to the SELLER by BREED the date hereof of this Deed of Transfer at
the pro-rata of their participation.
Turin, July 1996
BREED EUROPEAN HOLDINGS LTD.
GALLINO COMPONENTI PLASTICI S.p.A.
<PAGE>
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Charles J. Speranzella Jr. (hereinafter
referred to as BREED) -BREED TECHNOLOGIES Inc., a U.S. company
represented by it's Executive Vice-President Charles J. Speranzella
Jr. (hereinafter referred to as BTI) on the one part and EMILIO
CAZZANIGA, an Italian citizen represented by his attorney-in-fact Mr.
Ermanno Piana (hereinafter referred to as EC) on the other part
WHEREAS -EC is the owner of 4,45% of the issued and outstanding
capital of FAS S.p.A., a joint stock company incorporated and existing
under laws of Italy, with registered office at Ferentino having an
issued and outstanding paid in capital of three billion three hundred
and sixty-seven million Lire(Lit. 3,367,000,000), represented by three
million three hundred thousand shares each of them of a par value of
one thousand Lire (Lit. 1,000)(the Shares), (hereinafter referred to
as FAS)
Now , therefore the parties hereby agree
1. EC sells to the PURCHASER the Shares of FAS and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 82660 2,45% 82,660,000
BTI 67340 2% 67,340,000
The SHARES are transferred today at the offices of Notary A. Morocco, through
execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of five hundred twelve million, nine
hundred thousand Lire (Lit. 512,900,000). The price is paid to the SELLER by
BREED and BTI the date hereof at the pro-rata of their participation.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS LTD.
BREED TECHNOLOGIES INC
EMILIO CAZZANIGA
<PAGE>
EXHIBIT 6
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company
represented by its Director Charles J. Speranzella Jr. (hereinafter
referred to as BREED) -BREED TECHNOLOGIES Inc., a U.S. company
represented by it's Executive Vice-President Charles J. Speranzella
Jr. (hereinafter referred to as BTI) and jointly referred to as
PURCHASER on the one part and IAO Industrie Riunite S.p.A., an Italian
company represented by Mr. Giovanni Rigamonti (hereinafter referred to
as IAO) on the other WHEREAS - the seller is the owner of 100% of the
issued and outstanding capital of IRON SUD S.p.A., a joint stock
company incorporated and existing under the laws of Italy, with
registered office at Limatola having an issued and outstanding paid in
capital of two hundred billion and three hundred million Lire(Lit.
2,300,000,000), represented by two hundred and thirty thousand shares
each of them of a par value of ten thousand Lire (Lit. 10,000)(the
Shares), (hereinafter referred to as IRON)
Now , therefore the parties hereby agree
1. IAO sells to the PURCHASER the Shares of IRON and namely:
SHAREHOLDER SHARES %OF CAPITAL NOMINAL VALUE
BREED 225,400 98% 2,254,000,000
BTI 4,600 2% 46,000,000
The SHARES are transferred today at the offices of Notary A. Morocco, through
execution of the endorsement on the Shares certificates.
2.The SHARES are transferred at a price of three billion four hundred million
Lire (Lit. 3,400,000,000). The price will be paid to the SELLER by BREED and by
BTI the date hereof at the pro-rata of their participation.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
IAO Industrie Riunite S.p.A.
<PAGE>
EXHIBIT 7
Deed of Transfer - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by
its Director Charles J. Speranzella Jr. (hereinafter referred to as BREED)
- -BREED TECHNOLOGIES Inc., a U.S. company represented by it's Executive
Vice-President Charles J. Speranzella Jr. (hereinafter referred to as BTI) and
jointly referred to as PURCHASER on the one part and GRUPPO PLASTICO INDUTRIALE
S.r.l., an Italian company represented by Mr. Vittorio Maltempi (hereinafter
referred to as GPI) on the other WHEREAS - GPI is the owner of 100% of the
issued and outstanding capital of AG INTERNATIONAL S.r.l., a limited liability
company incorporated and existing under the laws of Italy, with registered
office at Torino, having an issued and outstanding paid in capital of eleven
billion Lire(Lit. 11,000,000,000), represented by one quota the par value of
which is Lit......(the Quota), (hereinafter referred to as AG INTERNATIONAL)
Now , therefore the parties hereby agree
1. GPI sells to the PURCHASER the quota of AG INTERNATIONAL and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 10,780,000,000
BTI 2 2% 220,000,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No.310 of August 12,1993). The entry in the Register of
quotaholders will take place within the terms set out in para.3 of Art.2479 of
the Civil Code (as modified by Art.1 of Law No. 310 of August 12,1993).
2.The QUOTA will be transferred at a price of fifteen billion five hundred
million Lire (Lit. 15,500,000,000). The price will be paid to the SELLER by
BREED and BTI the date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996 BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc
GRUPO PLASTICO INDUSTRIALE S.r.l.
<PAGE>
EXHIBIT 7
Deed of Transfer
- - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Charles J.Speranzella Jr. (hereinafter referred to as BREED)
on the one part
and
GALLINO COMPONENTI PLASTICI S.p.A., an Italian company represented by Giovanni
Rigamonti (hereinafter referred to as GCP) on the other
WHEREAS
- - GCP is the owner of 51% of the issued and outstanding capital of ARAS S.r.l.,a
limited liability company incorporated and existing under the laws of Italy,
with registered office at Giaveno having an issued and outstanding paid in
capital of ninety million Lire(Lit. 90,000,000), represented by one quota the
par value of which is Lit......(the Quota) (hereinafter referred to as ARAS)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of ARAS and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 51% 45,900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quota holders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of one hundred million Lire (Lit.
100,000,000). The price will be paid to the SELLER by BREED the date hereof.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
BREED.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
GALLINO COMPONENTI PLASTICI S.p.A.
<PAGE>
EXHIBIT 7
Deed of Transfer
- -BREED TECHNOLOGIES Inc., a U.S. company represented by its Executive
Vice-President Charles J. Speranzella Jr. (hereinafter referred to as BTI)
on the one part
and
CARIFIN S.p.A., an Italian company represented by Giovanni Rigamonti
(hereinafter referred to as CARIFIN) on the other
WHEREAS
- - CARIFIN is the owner of 1% of the issued and outstanding capital of AUTO AVIO
S.r.l., a limited liability company incorporated and existing under the laws of
Italy, with registered office at Guardamiglio having an issued and outstanding
paid in capital of ninety million Lire(Lit. 90,000,000), represented by one
quota the par value of which is Lit......(the Quota) (hereinafter referred to as
AUTO AVIO)
Now , therefore the parties hereby agree
1. CARIFIN sells to the PURCHASER the quota of AUTO AVIO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BTI 1 1% 900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quotaholders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of one million Lire
(Lit. 1,000,000). The price will be paid to the SELLER by BTI the date hereof.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
BREED.
Turin, 1 July, 1996
BREED TECHNOLOGIES Inc.
CARIFIN S.p.A.
<PAGE>
EXHIBIT 7
Deed of Transfer
- - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Charles J.Speranzella Jr. (hereinafter referred to as BREED)
- -BREED TECHNOLOGIES Inc., a U.S. company represented by it's Executive
Vice-PresidentCharles J. Speranzella Jr. (hereinafter referred to as BTI)
on the one part
and
GALLINO COMPONENTI PLASTICI S.p.A., an Italian company represented by Giovanni
Rigamonti. (hereinafter referred to as GCP) on the other
WHEREAS
- - GCP is the owner of 99% of the issued and outstanding capital of AUTO AVIO
S.r.l., a limited liability company incorporated and existing under the laws of
Italy, with registered office at Guardamiglio having an issued and outstanding
paid in capital of ninety million Lire(Lit. 90,000,000), represented by one
quota the par value of which is Lit......(the Quota) (hereinafter referred to as
AUTO AVIO)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of AUTO AVIO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 88,200,000
BTI 1 1% 900,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quotaholders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of ninety-nine million Lire
(Lit. 99,000,000). The price will be paid to the SELLER by BREED and BTI the
date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996 BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
GALLINO COMPONENTI PLASTICI S.p.A.
<PAGE>
EXHIBIT 7
Deed of Transfer
- - BREED EUROPEAN HOLDINGS Ltd., a U.K. Company represented by its Director
Charles J.Speranzella Jr. (hereinafter referred to as BREED)
- -BREED TECHNOLOGIES INC., a U.S. company represented by it's Executive
Vice-President Charles J. Speranzella Jr. (hereinafter referred to as BTI)
and jointly referred to as the PURCHASER on the one part
and
GALLINO COMPONENTI PLASTICI S.p.A., an Italian company represented by Giovanni
Rigamonti. (hereinafter referred to as GCP) on the other
WHEREAS
- - GCP is the owner of 100% of the issued and outstanding capital of APCO S.r.l.,
a limited liability company incorporated and existing under the laws of Italy,
with registered office at ........ having an issued and outstanding paid in
capital of eight billion one hundred million Lire(Lit. 8,100,000,000),
represented by one quota the par value of which is Lit......(the Quota)
(hereinafter referred to as APCO)
Now , therefore the parties hereby agree
1. GCP sells to the PURCHASER the quota of APCO and namely:
QUOTA HOLDER QUOTA %OF CAPITAL NOMINAL VALUE
BREED 1 98% 7,938,000,000
BTI 2 2% 162,000,000
The QUOTA is transferred today at the offices of Notary A. Morocco, through
execution of the Deed of Transfer, which will be authenticated by the Notary and
filed in accordance with and for the purpose of Art.2479 of the Civil Code (as
modified by Art.1 of Law No. 310 of August 12,1993). The entry in the Register
of quota holders will take place within the terms set out in para. 3 of Art.2479
of the Civil Code (as modified by Art.1 of Law No. 310 of August 12, 1993).
2.The QUOTA will be transferred at a price of sixteen billion five hundred
million Lire (Lit. 16,500,000,000). The price will be paid to the SELLER by
BREED and by BTI the date hereof at the pro-rata of their participation.
3.Every cost and expense relating to the present Deed of Transfer, including
stamp duties and fees relating to registration, are for the sole account of
PURCHASER.
Turin, 1 July, 1996
BREED EUROPEAN HOLDINGS Ltd.
BREED TECHNOLOGIES Inc.
GALLINO COMPONENTI PLASTICI S.p.A.
<PAGE>
CONSULTING SERVICES AGREEMENT
by and between
- - IAO INDUSTRIE RIUNITE S.p.A., an Italian corporation having registered office
at Strada Torino 23, Beinasco represented by Mr. Giovanni Rigamonti (hereinafter
referred to as IAO)
- on the one part
- GALLINO PLASTURGIA S.r.l., an Italian limited liability company having
registered office at Strada Torino 23, Beinasco represented by Mr. Charles J.
Speranzella Jr. (hereinafter referred to as GP); also on behalf of :
- FAS S.p.A., an Italian corporation having registered office at via Asse
Attrezzato 216 Ferentino (Frosinone), (hereinafter referred to as FAS);
- AG INTERNATIONAL S.r.l., an Italian limited liability company having
registered office at via Susa 35 Torino (hereinafter referred to as AG);
- A.P.CO S.r.l., an Italian corporation having registered office at via
della Riserva I tronco Anagni (Frosinone), (hereinafter referred to as A.P.CO);
- on the other part
WHEREAS
- - IAO and BREED TECHNOLOGIES INC., directly or through different entities
parties of their respective group, have entered into agreements
providing for the transfer from IAO Group to BREED TECHNOLOGIES Group
of the Business carried out in the field of automotive parts supply; in
connection with the above referred agreements arises the need for the
Purchasers to obtain certain consulting services from the Sellers;
Now therefore, the parties agree as follows:
1.OBJECT
1.1 IAO hereby undertakes to supply, directly or through a company being
party of IAO Group designated by IAO, to GALLINO PLASTURGIA, FAS, AG, A.P.CO the
following consulting services:
-management services
-technical advice
-assistance in negotiations with major customers
-advice on matters of taxation
1.2. The above mentioned consulting services will be rendered upon request
of GP,FAS, AG, A.P.CO., or any of them. In any event it is expressly
agreed that neither IAO nor its designees shall have authority to act
on behalf of GP, FAS, AG, A.P.CO., - or of any of them - IAO agrees
that it will not hold itself out to any third party as having any such
authority except where such authority has been granted in writing.
2.TERM
2.1 This agreement shall be effective starting from July 1, 1996 and will
last for one year.
<PAGE>
3.FEES AND COSTS
3.1 In consideration of the services to be rendered by IAO or by its
designees, GP - directly or through FAS, AG, A.P.CO, shall pay to IAO a
fee in the fixed amount of three billion eight hundred million Lire
(Lit.3,800,000,000). Such amount will be payable in one installment at
the date of expiration of the present agreement upon issuance of the
relevant invoice/s by IAO. IAO will specify in the invoice the
allocation of the payment in respect of the services rendered to GP,
FAS, AG, A.P.CO..
4.CONFIDENTIALITY
4.1 IAO and/or its designees shall not at any time whether during the
continuance of this agreement or at any time thereafter divulge to any
third party whatsoever, except as insofar as may be necessary to do so
in performance of its duties hereunder, the matters of a confidential
nature which it receives by reason of the services rendered hereunder.
5.ARBITRATION
5.1 Any dispute arising between the parties in connection with the
validity, termination, interpretation or performance of this agreement
shall be submitted to the decision of a Panel of three (3) Arbitrators,
which shall decide in accordance with the law ("in via rituale e
secondo diritto"). To the ends of Arbitration, IAO and/or its designees
will constitute a sole party as will GP, FAS, AG, A.P.CO. The party
wishing to submit to arbitration shall appoint its arbitrator and give
notice to the other party of its appointment.Within fifteen (15) days
of receipt of this notice, the other party shall appoint its arbitrator
and shall give notice to the first party of its appointment. Within
fifteen (15) days of the appointment of the second arbitrator, the two
arbitrators so appointed shall agree upon the appointment of a third
arbitrator. If no agreement is reached , the third arbitrator shall be
appointed , upon application of the most diligent party, by the
president of the Milan Court of Appeal. Similarly, if the party to whom
the notice of the appointment of an arbitrator has been given does not,
in turn, appoint its arbitrator, said arbitrator shall also be
appointed together with the third arbitrator by the President of the
Milan Court of Appeal, which will also provide for the substitution of
any arbitrator who dies or resigns. Arbitration shall be conducted in
the Italian language and take place in Milan.
IAO INDUSTRIE RIUNITE S.p.A.
GALLINO PLASTURGIA S.r.l.
By
FAS S.p.A.
By
<PAGE>
AG INTERNATIONAL S.r.l.
By
A.P.CO. S.r.l.
By
, 1996
BREED TECHNOLOGIES INC.
We refer to the transaction under which through several
agreements our company, directly or through entities being
party of its Group, has transferred to your Group the business
carried out by GALLINO COMPONENTI PLASTICI S.p.A.
By means of this letter we irrevocably confirm our undertaking
to allow GALLINO PLASTURGIA S.r.l., transferee of the business
previously carried out by GALLINO COMPONENTI PLASTICI, the use
free of charge of the land and building located respectively
in San Benigno, Via Chivasso, 120 and in Renate, Via
Concordia, 55 as previously used by GALLINO COMPONENTI
PLASTICI.
Such free use, for which no consideration has to be paid, will
last until the due execution of the notarial deed of transfer
for the real estates located in San Benigno and in Renate to
be transferred and paid promptly upon IAO request.
IAO INDUSTRIE RIUNITE S.p.A.
<PAGE>
July 1, 1996
IAO INDUSTRIE RIUNITE S.p.A.
Strada Torino, 23'
Beinasco
The undersigned Charles J. Speranzella as Executive Vice-President of Breed
Technologies Inc. as well as Director of Breed European Holdings Limited taking
into consideration as well the Certificate of Authority issued on June 21, 1996,
undertakes to transfer or cause to be transferred within one year from the date
of this letter the real property located in Rome owned by FAS to IAO INDUTRIE
RIUNITE S.p.A. against payment of three billion eight hundred million Lire (Lit.
3,800,000,000). Such consideration shall be in complete satisfaction of the
payment obligations under the Consulting Services Agreement of even date
herewith. Charles J. Speranzella Jr. on behalf of BREED TECHNOLOGIES Inc. and
BREED EUROPEAN HOLDINGS Ltd. does hereby waive any right to dispute the value of
the services to be provided under said Consulting Services Agreement of even
date. IAO undertakes to purchase the above mentioned real property and pay three
billion eight hundred million Lire (Lit. 3,800,000,000) as and for the purchase
price.
Charles J. Speranzella
Agreed
IAO Industrie Riunite S.p.A.
<PAGE>
Turin, July 1, 1996
The undersigned Giovanni Rigamonti and Charles J. Speranzella
Jr. in connection with the Master Agreement and relevant
exhibits thereto entered into on July 1, 1996 between BREED
TECHNOLOGIES Inc. (directly of through entities of it's group)
and IAO (directly or through entities of it's group), hereby
acknowledge that the exhibits to the "Representations and
Warranties Agreement" (exhibit 2 to the "Master Agreement")
are not yet complete. The parties undertake to complete the
exhibits to the "Representations and Warranties Agreement"
before the end of the month of July 1996. The mentioned
exhibit shall be prepared by IAO GROUP, subject to the
agreement of BREED GROUP. In particular the undersigned
acknowledge that the exhibit to be prepared shall not disclose
new information which has a material adverse effect on the
value of the assets, business and companies concerned.
Giovanni Rigamonti Charles J. Speranzella Jr.
BREED Technologies, Inc.
1994 STOCK INCENTIVE PLAN
Section 1. Purpose
The purpose of this Stock Incentive Plan (the "Plan") is to advance
the interests of Breed Technologies, Inc. by enhancing its ability to attract
and retain key employees, consultants and others who are in a position to
contribute to the Company's future growth and success.
Section 2. Definitions
"Award" means any Option, Stock Appreciation Right, Performance
Share, Restricted Stock or Unrestricted Stock awarded under the Plan.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Committee" means a committee of not less than two members of the
Board appointed by the Board to administer the Plan, provided that at any time
when the Common Stock is registered under Section 12 of the Securities
Exchange Act of 1934, each member of the Committee shall be a "disinterested
person" within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934 ("Rule 16b-3").
"Common Stock" or "Stock" means the Common Stock, $.01 par value per
share, of the Company.
"Company" means Breed Technologies, Inc. and, except where the
content otherwise requires, all present and future subsidiaries of the
Company as defined in Sections 424(f) of the Code.
"Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due or
exercise rights of the Participant in the event of the Participant's death. In
the absence of an effective designation by a Participant, Designated
Beneficiary shall mean the Participant's estate.
"Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as
<PAGE>
determined by the Board in good faith or in the manner established by the
Board from time to time.
"Incentive Stock Option" means an Option to purchase shares of Common
Stock awarded to a Participant under Section 6 which is intended to meet the
requirements of Section 422 of the Code or any successor provision.
"Nonstatutory Stock Option" means an Option to purchase shares of
Common Stock awarded to a Participant under Section 6 which is not intended to
be an Incentive Stock Option.
"Option" means an Incentive Stock Option or a Nonstatutory Stock
Option.
"Participant" means a person selected by the Board to receive an
Award under the Plan.
"Performance Shares" mean shares of Common Stock which may be earned
by the achievement of performance goals awarded to a Participant under Section
8.
"Reporting Person" means a person subject to Section 16 of the
Securities Exchange Act of 1934 or any successor provision.
"Restricted Period" means the period of time selected by the Board
during which shares subject to a Restricted Stock Award may be repurchased by
or forfeited to the Company.
"Restricted Stock" means shares of Common Stock awarded to a
Participant under Section 9.
"Stock Appreciation Right" or "SAR" means a right to receive any
excess in Fair Market Value of shares of Common Stock over the exercise price
awarded to a Participant under Section 7.
"Unrestricted Stock" means shares of Common Stock awarded to a
Participant under Section 9(c).
The Plan will be administered by the Board. The Board shall have
authority to make Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem
advisable from time to time, and to interpret the provisions of the Plan. The
Board's decisions shall be final and binding. No member of the Board shall be
liable for any action or determination relating to the Plan made in good
faith. To the extent permitted by applicable law, the Board may delegate to
one or more executive officers of the Company the power to make Awards to
Participants who are not Reporting Persons
<PAGE>
and all determinations under the Plan with respect thereto, provided that the
Board shall fix the maximum amount of such Awards to be made by such executive
officers and a maximum amount for any one Participant. To the extent permitted
by applicable law, the Board may appoint a Committee to administer the Plan
and, in such event, all references to the Board in the Plan shall mean such
Committee or the Board. All decisions by the Board or the Committee pursuant
to the Plan shall be final and binding on all persons having or claiming any
interest in the Plan or in any Award.
Section 4. Eliqibilitv
All of the Company's employees, officers, directors, consultants and
advisors who are expected to contribute to the Company's future growth
and success, other than persons who have irrevocably elected not to be
eligible, are eligible to be Participants in the Plan. Incentive Stock
Options may be awarded only to persons eligible to receive Incentive Stock
Options under the Code.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b) below, Awards may be
made under the Plan for up to that number of shares of Common Stock equal to
(i) 2,5OO,OOO less (ii) the sum of (X) the number of shares as to which
Options have previously been granted under the Company's 1992 Stock Option
Plan (the "1992 Plan"), as such number shall be reduced to the extent shares
become reavailable for issuance under the 1992 Plan pursuant to Section 4
thereof, and (Y) the number of shares as to which Options are then outstanding
under the Company's 1992 Employee Stock Purchase Plan (the "Purchase Plan")
and the number of shares previously sold under the Purchase Plan. If any Award
in respect of shares of Common Stock expires or is terminated unexercised or
is forfeited, in whole or in part, for any reason, the shares subject to such
Award, to the extent of such expiration, termination or forfeiture, shall
again be available for award under the Plan, subject, however, in the case of
Incentive Stock Options, to any limitation required under the Code. If shares
of Stock are tendered to the Company in payment of the exercise price of an
Option pursuant to Section 6(a)(iv) or in satisfaction of tax withholding
requirements pursuant to Section lO(g), such tendered shares shall again be
available for subsequent Awards under the Plan; provided, however, that in no
event shall the total number of shares issued pursuant to the exercise of
Incentive Stock Options under the Plan, on a cumulative basis, exceed the
maximum number of shares authorized for issuance under the Plan exclusive of
shares made available for issuance pursuant to this sentence. Shares issued
under the Plan may consist in
<PAGE>
whole or in part of authorized but unissued shares or treasury shares.
(b) In the event that the Board, in its sole discretion, determines
that any stock dividend, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination or
other similar transaction affects the Common Stock such that an adjustment is
required in order to preserve the benefits or potential benefits intended to
be made available under the Plan, then the Board, subject, in the case of
Incentive Stock Options, to any limitation required under the Code, shall
equitably adjust any or all of (i) the number and kind of shares in respect of
which Awards may be made under the Plan, (ii) the number and kind of shares
subject to outstanding Awards, and (iii) the award, exercise or conversion
price with respect to any of the foregoing, and if considered appropriate, the
Board may make provision for a cash payment with respect to an outstanding
Award, provided that the number of shares subject to any Award shall always be
a whole number.
(c) The Board may grant Awards under the Plan in substitution for
stock and stock based awards held by employees of another corporation who
concurrently become employees of the Company as a result of a merger or
consolidation of the employing corporation with the Company or a Subsidiary or
the acquisition by the Company or a subsidiary of property or stock of the
employing corporation. The substitute Awards shall be granted on such terms
and conditions as the Board considers appropriate in the circumstances.
Section 6. Stock Options
(a) General.
(i) Subject to the provisions of the Plan, the Board may
award Incentive Stock Options and Nonstatutory Stock Options, and determine
the number of shares to be covered by each Option, the Option price therefor
and the conditions and limitations applicable to the exercise of the Option.
The terms and conditions of Incentive Stock Options shall be subject to and
comply with Section 422 of the Code, or any successor provision, and any
regulations thereunder.
(ii) The Board shall establish the exercise price at the
time each Option is awarded. In the case of Incentive Stock Options, such
price shall not be less than 100% of the Fair Market Value of the Common Stock
on the date of award.
(iii) Each Option shall be exercisable at such times and
subject to such terms and conditions as the Board may specify in the
applicable Award or thereafter. The Board may impose such
<PAGE>
conditions with respect to the exercise of Options, including conditions
relating to applicable federal or state securities laws as it considers
necessary or advisable.
(iv) Options granted under the Plan may provide for the
payment of the exercise price by delivery of cash or check in an amount equal
to the exercise price of such Options or, to the extent permitted by the Board
at or after the award of the Option, by (A) delivery of shares of Common Stock
owned by the Optionee for at least six months (or such shorter period as is
approved by the Board), valued at their Fair Market Value, (B) delivery of a
promissory note of the Optionee to the Company on terms determined by the
Board, (C) delivery of an irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise price or delivery
of irrevocable instructions to a broker to deliver promptly to the Company
cash or a check sufficient to pay the exercise price, (D) payment of such
other lawful consideration as the Board may determine, or (E) any combination
of the foregoing.
(v) The Board may provide for the automatic award of an
Option upon the delivery of shares to the Company in payment of the exercise
price of an Option for up to the number of shares so delivered.
(vi) The Board may at any time accelerate the time at which
all or any part of an Option may be exercised.
(b) Incentive Stock Options.
Options granted under the Plan which are intended to be
Incentive Stock Options shall be subject to the following additional terms and
conditions:
(i) All Incentive Stock Options granted under the Plan
shall, at the time of grant, be specifically designated as such in the Option
agreement covering such Incentive Stock Options. The Option exercise period
shall not exceed ten years from the date of grant.
(ii) If any employee to whom an Incentive Stock Option is to
be granted under the Plan is, at the time of the grant of such Option, the
owner of stock possessing more than 1O% of the total combined voting power of
all classes of stock of the Company (after taking into account the attribution
of stock ownership rule of Section 424(b) and of the Code), then the following
special provisions shall be applicable to the Incentive Stock Option granted
to such individual:
(x) The purchase price per share of the Common
Stock subject to such Incentive Stock Option shall not be
<PAGE>
less than llO% of the Fair Market Value of one share of Common
Stock at the time of grant; and
(y) The Option exercise period shall not exceed five years
from the date of grant.
(iii) For so long as the Code shall so provide, Options
granted to any employee under the Plan (and any other incentive stock Option
plans of the Company) which are intended to constitute Incentive Stock Options
shall not constitute Incentive Stock Options to the extent that such Options,
in the aggregate, become exercisable for the first time in any one calendar
year for shares of Common Stock with an aggregate Fair Market Value
(determined as of the respective date or dates of grant) of more than
$1OO,OOO.
(iv) No Incentive Stock Option may be exercised unless, at
the time of such exercise, the Participant is, and has been continuously since
the date of grant of his or her Option, employed by the Company, except that:
(x) an Incentive Stock Option may be exercised within the
period of three months after the date the Participant ceases to be an employee
of the Company (or within such lesser period as may be specified in the
applicable Option agreement), provided, that the agreement with respect to
such Option may designate a longer exercise period and that the exercise after
such three-month period shall be treated as the exercise of a Nonstatutory
Stock Option under the Plan;
(y) if the Participant dies while in the employ of the
Company, or within three months after the Participant ceases to be such an
employee, the Incentive Stock Option may be exercised by the Participant's
Designated Beneficiary within the period of one year after the date of death
(or within such lesser period as may be specified in the applicable Option
agreement); and
(z) if the Participant becomes disabled (within the meaning
of Section 22(e)(3) of the Code or any successor provision thereto) while in
the employ of the Company, the Incentive Stock Option may be exercised within
the period of one year after the date of death (or within such lesser period
as may be specified in the Option agreement).
For all purposes of the Plan and any Option granted hereunder, "employment"
shall be defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no Incentive Stock Option may be exercised after its
expiration date.
<PAGE>
(v) Incentive Stock Options shall not be assignable or
transferable by the person to whom they are granted, either voluntarily or by
operation of law, except by will or the laws of descent and distribution, and,
during the life of the Optionee, shall be exercisable only by the Optionee.
Section 7. Stock Appreciation Rights
(a) The Board may grant Stock Appreciation Rights entitling
recipients on exercise of the Stock Appreciation Right to receive an amount,
in cash or Stock or a combination thereof (such form to be determined by the
Board), determined in whole or in part by reference to appreciation in the
Fair Market Value of the Stock between the date of the Award and the exercise
of the Award. A Stock Appreciation Right shall entitle the Participant to
receive, with respect to each share of Stock as to which the Stock
Appreciation Right is exercised, the excess of the share's Fair Market Value
on the date of exercise over its Fair Market Value on the date the Stock
Appreciation Right was granted. The Board may also grant Stock Appreciation
Rights that provide that, following a change in control of the Company (as
defined by the Board at the time of the Award), the holder of such Stock
Appreciation Right will be entitled to receive, with respect to each share of
Stock subject to the Stock Appreciation Right, an amount equal to the excess
of a specified value (which may include an average of values) for a share of
Stock during a period preceding such change in control over the Fair Market
Value of a share of Stock on the date the Stock Appreciation Right was
granted.
(b) Stock Appreciation Rights may be granted in tandem with, or
independently of, Options granted under the Plan. A Stock Appreciation Right
granted in tandem with an Option which is not an Incentive Stock Option may be
granted either at or after the time the Option is granted. A Stock
Appreciation Right granted in tandem with an Incentive Stock Option may be
granted only at the time the Option is granted.
(c) When Stock Appreciation Rights are granted in tandem with
Options, the following provisions will apply:
(i) The Stock Appreciation Right will be exercisable only at
such time or times, and to the extent, that the related Option is exercisable
and will be exercisable in accordance with the procedure required for exercise
of the related Option.
(ii) The Stock Appreciation Right will terminate and no longer
be exercisable upon the termination or exercise of the related Option, except
that a Stock Appreciation Right granted with respect to less than the full
number of shares covered by an Option will not be reduced until the number of
shares as to which
<PAGE>
the related Option has been exercised or has terminated exceeds the number of
shares not covered by the Stock Appreciation Right.
(iii) The Option will terminate and no longer be exercisable
upon the exercise of the related Stock Appreciation Right.
(iv) The Stock Appreciation Right will be transferable only
with the related Option.
(v) A Stock Appreciation Right granted in tandem with an
Incentive Stock Option may be exercised only when the market price of the
Stock subject to the Option exceeds the exercise price of such Option.
(d) A Stock Appreciation Right not granted in tandem with an Option
will become exercisable at such time or times, and on such conditions, as the
Board may specify.
(e) The Board may at any time accelerate the time at which all or any
part of the Stock Appreciation Right may be exercised.
Section 8. Performance Shares
(a) The Board may make Performance Share Awards entitling recipients
to acquire shares of Stock upon the attainment of specified performance goals.
The Board may make Performance Share Awards independent of or in connection
with the granting of any other Award under the Plan. The Board in its sole
discretion shall determine the performance goals applicable under each such
Award, the periods during which performance is to be measured, all other
limitations and conditions applicable to the awarded Performance Shares;
provided, however, that the Board may rely the performance goals and other
standards applicable to other performance plans of the Company in setting the
standards for Performance Share Awards under the Plan.
(b) Performance Share Awards and all rights with respect to such
Awards may not be sold, assigned, transferred, pledged or otherwise
encumbered.
(c) A Participant receiving a Performance Share Award shall have the
rights of a stockholder only as to shares actually received by the Participant
under the Plan and not with respect to shares subject to an Award but not
actually received by the Participant A Participant shall be entitled to
receive a stock certificate evidencing the acquisition of shares of Stock
under a Performance Share Award only upon satisfaction of all conditions
specified in the agreement evidencing the Performance Share Award.
<PAGE>
(d) The Board may at any time accelerate or waive any or all of the
goals, restrictions or conditions imposed under any Performance Share Award.
Section 9. Restricted and Unrestricted Stock
(a) The Board may grant Restricted Stock Awards entitling recipients
to acquire shares of Stock, subject to the right of the Company to repurchase
all or part of such shares at their purchase price (or to require forfeiture
of such shares if purchased at no cost) from the recipient in the event that
conditions specified by the Board in the applicable Award are not satisfied
prior to the end of the applicable Restricted Period or Restricted Periods
established by the Board for such Award. Conditions for repurchase (or
forfeiture) may be based on continuing employment or service or achievement of
pre-established performance or other goals and objectives.
(b) Shares of Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered, except as permitted by the
Board, during the applicable Restricted Period. Shares of Restricted Stock
shall be evidenced in such manner as the Board may determine. Any certificates
issued in respect of shares of Restricted Stock shall be registered in the
name of the Participant and, unless otherwise determined by the Board,
deposited by the Participant, together with a stock power endorsed in blank,
with the Company (or its designee). At the expiration of the Restricted
Period, the Company (or such designee) shall deliver such certificates to the
Participant or if the Participant has died, to the Participant's Designated
Beneficiary.
(c) The Board may, in its sole discretion, grant (or sell at a
purchase price determined by the Board, which shall not be lower than 85% of
Fair Market Value on the date of sale) to Participants shares of Stock free of
any restrictions under the Plan ("Unrestricted Stock").
(d) The purchase price for each share of Restricted Stock and
Unrestricted Stock shall be determined by the Board of Directors and may not
be less than the par value of the Common Stock. Such purchase price may be
paid in the form of past services or such other lawful consideration as is
determined by the Board.
(e) The Board may at any time accelerate the expiration of the
Restricted Period applicable to all, or any particular, outstanding shares of
Restricted Stock.
<PAGE>
Section 10. General Provisions Applicable to Awards
(a) Applicability of Rule 16b-3. Those provisions of the Plan which
make an express reference to Rule 16b-3 shall apply to the Company only at
such time as the Company's Common Stock is registered under the Securities
Exchange Act of 1934, or any successor provision, and then only to Reporting
Persons.
(b) Reporting Person Limitations. Notwithstanding any other provision
of the Plan, to the extent required to qualify for the exemption provided by
Rule 16b-3, (i) any Option, SAR, Performance Share Award or other similar
right related to an equity security issued under the Plan to a Reporting
Person shall not be transferable other than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Code or Title I or the Employee Retirement Income Security Act (" ERISA"),
or the rules thereunder, and shall be exercisable during the Participant's
lifetime only by the Participant or the Participant's guardian or legal
representative, and (ii) the selection of a Reporting Person as a Participant
and the terms of his or her Award shall be determined only in accordance with
the applicable provisions of Rule 16b-3.
(c) Documentation. Each Award under the Plan shall be evidenced by an
instrument delivered to the Participant specifying the terms and conditions
thereof and containing such other terms and conditions not inconsistent with
the provisions of the Plan as the Board considers necessary or advisable. Such
instruments may be in the form of agreements to be executed by both the
Company and the Participant, or certificates, letters or similar documents,
acceptance of which will evidence agreement to the terms thereof and of this
Plan.
(d) Board Descretion. Each type of Award may be made alone in addition to or
in relation to any other type of Award. The terms of each type of Award need not
be identical, and the Board need not treat Participants uniformly. Except as
otherwise provided by the Plan or a particular Award, any determination with
respect to an Award may be made by the Board at the time of award or at any time
thereafter.
(e) Termination of Status. Subject to the provisions of Section 6 (b) (iv),
the Committee shall determine the effect on an Award of the disability, death,
retirement, authorized leave of absence or termination of employment or other
status of a Participant and the extent to which, and the period during which,
the Participant's legal representative, guardian or Designated Beneficiary may
exercise rights under such Award.
(f) Merqers, Etc. In the event of a consolidation, merger or other
reorganization in which all of the outstanding shares of
<PAGE>
Common Stock are exchanged for securities, cash or other property of any other
corporation or business entity (an "Acquisition"), or in the event of a
liquidation of the Company, the Board of Directors of the Company, or the
board of directors of any corporation assuming the obligations of the Company,
may, in its discretion, take any one or more of the following actions as to
outstanding Awards: (i) provide that such Awards shall be assumed, or
substantially equivalent Awards shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof) on such terms as the Board
determines to be appropriate, (ii) upon written notice to Participants,
provide that all unexercised Options or SARs will terminate immediately prior
to the consummation of such transaction unless exercised by the Participant
within a specified period following the date of such notice, (iii) in the
event of an Acquisition under the terms of which holders of the Common Stock
of the Company will receive upon consummation thereof a cash payment for each
share surrendered in the Acquisition (the " Acquisition Price"), make or
provide for a cash payment to Participants equal to the difference between (A)
the Acquisition Price times the number of shares of Common Stock subject to
outstanding Options or SARs (to the extent then exercisable at prices not in
excess of the Acquisition Price) and (B) the aggregate exercise price of all
such outstanding Options or SARs in exchange for the termination of such
Options and SARs, and (iv) provide that all or any outstanding Awards shall
become exercisable or realizable in full prior to the effective date of such
Acquisition.
(g) Withholdinq. The Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law
to be withheld in respect of Awards under the Plan no later than the date of
the event creating the tax liability. In the Board's discretion, and subject
to such conditions as the Board may establish, such tax obligations may be
paid in whole or in part in shares of Common Stock, including shares retained
from the Award creating the tax obligation, valued at their Fair Market Value.
The Company may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
(h) Foreiqn Nationals. Awards may be made to Participants who are
foreign nationals or employed outside the United States on such terms and
conditions different from those specified in the Plan as the Board considers
necessary or advisable to achieve the purposes of the Plan or comply with
applicable laws.
(i) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the same
or a different type, changing the date of exercise or realization and
converting an Incentive Stock Option to a Nonstatutory Stock Option, provided
that the
<PAGE>
Participant's consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would not
materially and adversely affect the Participant.
(j) Cancellation and New Grant of Options. The Board of Directors
shall have the authority to effect, at any time and from time to time, with
the consent of the affected Optionees, (i) the cancellation of any or all
outstanding Options under the Plan and the grant in substitution therefor of
new Options under the Plan covering the same or different numbers of shares of
Common Stock and having an Option exercise price per share which may be lower
or higher than the exercise price per share of the cancelled Options or (ii)
the amendment of the terms of any and all outstanding Options under the Plan
to provide an Option exercise price per share which is higher or lower than
the then current exercise price per share of such outstanding Options.
(k) Conditions on Deliverv of Stock. The Company will not be
obligated to deliver any shares of Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan (i) until all
conditions of the Award have been satisfied or removed, (ii) until, in the
opinion of the Company's counsel, all applicable federal and state laws and
regulations have been complied with, (iii) if the outstanding Stock is at the
time listed on any stock exchange, until the shares to be delivered have been
listed or authorized to be listed on such exchange upon official notice of
notice of issuance, and (iv) until all other legal matters in connection with
the issuance and delivery of such shares have been approved by the Company's
counsel. If the sale of Stock has not been registered under the Securities Act
of 1933, as amended, the Company may require, as a condition to exercise of the
Award, such representations or agreements as the Company may consider
appropriate to avoid violation of such Act and may require that the certificates
evidencing such Stock bear an appropriate legend restricting transfer. Section
11. Miscellaneous
(a) No Riqht To Employment or other Status. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or service
for the Company. The Company expressly reserves the right at any time to
dismiss a Participant free from any liability or claim under the Plan, except
as expressly provided in the applicable Award.
(b) No Riqhts As Stockholder. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any
rights as a stockholder with respect to any shares of Common Stock to be
distributed under the Plan until he or she becomes the record holder thereof.
<PAGE>
(c) Exclusion from Benefit Computations. No amounts payable upon
exercise of Awards granted under the Plan shall be considered salary, wages or
compensation to Participants for purposes of determining the amount or nature
of benefits that Participants are entitled to under any insurance, retirement
or other benefit plans or programs of the Company.
(d) Effective Date and Term.
(i) Effective Date. The Plan shall become effective when
adopted by the Board of Directors, but no Incentive Stock Option granted under
the Plan shall become exercisable unless and until the Plan shall have been
approved by the Company's stockholders. If such stockholder approval is not
obtained within twelve months after the date of the Board's adOption of the
Plan, no Options previously granted under the Plan shall be deemed to be
Incentive Stock Options and no Incentive Stock Options shall be granted
thereafter. Amendments to the Plan not requiring stockholder approval pursuant
to Section ll(e) below shall become effective when adopted by the Board of
Directors; amendments requiring stockholder approval shall become effective
when adopted by the Board of Directors, but no Incentive Stock Option granted
after the date of such amendment shall become exercisable (to the extent that
such amendment to the Plan was required to enable the Company to grant such
Incentive Stock Option to a particular Optionee) unless and until such
amendment shall have been approved by the Company's stockholders. If such
stockholder approval is not obtained within twelve months of the Board's
adOption of such amendment, any Incentive Stock Options granted on or after
the date of such amendment shall terminate to the extent that such amendment
to the Plan was required to enable the Company to grant such Option to a
particular Optionee. Subject to the limitations set forth in this Section
ll(d), Awards may be made under the Plan at any time after the effective date
and before the date fixed for termination of the Plan.
(ii) Termination. The Plan shall terminate upon the earlier
of (i) the close of business on the day next preceding the tenth anniversary
of the date of its adOption by the Board of Directors or (ii) the date on
which all shares available for issuance under the Plan shall have been issued
pursuant to Awards under the Plan. Awards outstanding on such date shall
continue to have force and effect in accordance with the provisions of the
instruments evidencing such Awards.
<PAGE>
(e) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, provided that no amendment shall be
made without stockholder approval if such approval is necessary to comply with
any applicable tax or regulatory requirement, including any requirements for
compliance with Rule 16b-3. Prior to any such approval, Awards may be made
under the Plan expressly subject to such approval.
Adopted by the Board of Directors
On August 31, 1994
<PAGE>
FIVE-YEAR CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 30th day of April, 1997, by and among
BREED TECHNOLOGIES, INC., a corporation organized under the laws of Delaware
("BREED"), and the Subsidiaries thereof designated as Borrowers herein, as
Borrowers (collectively, including BREED, the "Borrowers"), BREED, as Guarantor
(the "Guarantor"), the Lenders who are or may become a party to this Agreement
(collectively, the "Lenders"), FIRST UNION NATIONAL BANK OF FLORIDA, a national
banking association, as Administrative Agent for the Lenders (the
"Administrative Agent"), and THE CHASE MANHATTAN BANK, a national banking
association, as Documentation Agent for the Lenders (the "Documentation Agent").
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement.
BREED, as parent of the other Borrowers, will benefit directly and
indirectly from the extension of such credit facilities to such other Borrowers.
As a precondition to making any extensions of credit hereunder, the Lenders have
required, and BREED has agreed, to execute this Agreement as Guarantor on the
terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"364-Day Credit Agreement" means the 364-Day Credit Agreement of even
date herewith by and among the Borrowers, the Guarantor, the Lenders, the
Administrative Agent and the Documentation Agent, as amended, restated,
supplemented or otherwise modified from time to time.
<PAGE>
"A/C Borrowers" means the Borrowers listed as such on Schedule 1.1(a)
attached hereto.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Correspondent" means First Union National Bank,
London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternative Currency Loans.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise; provided that Integrated Sensor Solutions,
Inc., a California corporation, shall not be deemed to be an Affiliate of BREED
for the purposes of this Agreement.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Two Hundred Million Dollars ($200,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Alternative Currency" means Pounds Sterling, Italian Lire, Deutsche
Marks and, except as otherwise expressly excluded under the terms of this
Agreement, Finnish Marks, and, with the prior written consent of the
Administrative Agent and the Lenders, which consent shall not be unreasonably
withheld, any other lawful
<PAGE>
currency (other than Dollars) which is readily transferable and convertible into
Dollars in the United States currency market and readily available to all of the
Lenders in the London interbank deposit market. Except as otherwise expressly
set forth herein, any reference to an "Alternative Currency" shall include
Finnish Marks.
"Alternative Currency Amount" means with respect to each Loan made or
continued (or to be made or continued) in an Alternative Currency, the amount of
such Alternative Currency which is equivalent to the principal amount in Dollars
of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent to be available to its London branch at approximately 11:00
a.m. (Charlotte time) two (2) Business Days before such Loan is made or
continued (or to be made or continued). When used with respect to any other sum
expressed in Dollars, "Alternative Currency Amount" shall mean the amount of
such Alternative Currency which is equivalent to the amount so expressed in
Dollars at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it at the relevant time.
"Alternative Currency Commitment" means Fifty Million Dollars
($50,000,000), as such amount may be reduced or modified at any time or from
time to time pursuant to the terms hereof.
"Alternative Currency Loan" means (i) any Revolving Credit Loan
denominated in an Alternative Currency and (ii) except as otherwise expressly
set forth herein, any Finnish Mark Loan.
"Applicable Law" means all applicable provisions of consti tutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in
Section 3.1(c).
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 13.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corre sponding change or changes in the Prime
Rate or the Federal Funds Rate.
<PAGE>
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 3.1(a).
"Borrowers" means the collective reference to BREED and the
other A/C Borrowers.
"BREED" means BREED Technologies, Inc., a corporation organized under
the laws of Delaware, and its successors.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina are open for the conduct of their
domestic and international commercial banking business, and (b) with respect to
all notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day (i) that is a Business Day described
in clause (a) and that is also a day for trading by and between banks in
deposits for the applicable Permitted Currency in the London interbank market
and (ii) on which banks are open for the conduct of their domestic and
international banking business in the place where the Administrative Agent or
the Administrative Agent's Correspondent shall make available Loans in such
Permitted Currency.
"Capital Lease" means, with respect to BREED and its Subsidiaries, any
lease of any property that should, in accordance with GAAP, be classified and
accounted for as a capital lease on a Consolidated balance sheet of BREED and
its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in
Section 11.1(i).
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means any assets pledged by BREED or any of its
Subsidiaries to the Administrative Agent, for the ratable benefit of itself and
the Lenders, in order to secure the Obligations or any portion thereof.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Loans to the Borrowers hereunder in an aggregate
<PAGE>
principal or face amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1(b) hereto, as the same may be
reduced or modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of BREED and its Subsidiaries, such statements or
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Contingent Obligation" means, with respect to BREED and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that, except to the extent
Breed or any of its Subsidiaries shall be advised or required to establish or
maintain reserves therefor, the term Contingent Obligation shall not include (i)
endorsements for collection or deposit in the ordinary course of business, (ii)
warranty obligations in the ordinary course of business related to products
supplied by BREED and its Subsidiaries, including defense and indemnity
obligations pursuant thereto and (iii) Contingent Obligations incurred in the
ordinary course of business for which a specific dollar amount of liability
cannot be determined but which, in the aggregate, would not have a Material
Adverse Effect.
"Convertible Preferred Stock" means any preferred stock issued by a
Subsidiary of BREED formed pursuant to Section 9.4(e) that is otherwise
permitted hereunder, for so long as such preferred stock is not accounted for
under stockholder's equity in the Consolidated financial statements of BREED;
provided that such Convertible
<PAGE>
Preferred Stock shall be subject to the satisfaction of each of the conditions
set forth in subsections (i) through (iii) below:
(i) Under the terms and conditions of the Convertible
Preferred Stock, the applicable Subsidiary shall have the right, in its
sole discretion, to defer payment of interest or dividends on the
Convertible Preferred Stock for up to twenty (20) consecutive quarters
(the "Deferral Period");
(ii) GAAP shall not require that the Convertible
Preferred Stock be included as a liability on the Consolidated
financial statements of BREED; and
(iii) If a Subsidiary elects to defer payment of interest or
dividends, after any such deferral at least five (5) quarters shall
remain in the Deferral Period;
In the event any of the above conditions is not satisfied, the
Convertible Preferred Stock shall thereafter constitute
Subordinated Debt and not preferred stock.
"Credit Facility" means the revolving credit facility established
pursuant to Article II hereof.
"Credit Facility Termination Date" means the earliest of the dates
referred to in Section 2.8.
"Debt" means, with respect to any Person and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person (including,
without limitation, all obligations under non-competition agreements), except
trade payables arising in the ordinary course of business not more than one
hundred twenty (120) days past due, (c) all obligations of any such Person as
lessee under Capital Leases, (d) all Debt of any other Person secured by a Lien
on any asset of any such Person, (e) all Contingent Obligations of any such
Person, (f) all obligations, contingent or otherwise, of any such Person
relative to the face amount of letters of credit, whether or not drawn,
including, without limitation, any banker's acceptances issued for the account
of any such Person and (g) all obligations to redeem, repurchase,
<PAGE>
exchange, defease or otherwise make payments in respect of capital stock or
other securities of such Person.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Deutsche Marks or DEM" means, at any time of determination, the then
official currency of Germany.
"Documentation Agent" means The Chase Manhattan Bank in its
capacity as Documentation Agent hereunder.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or continued
(or to be made or continued) in Dollars, the principal amount thereof and (b)
with respect to each Loan made or continued (or to be made or continued) in an
Alternative Currency, the amount of Dollars which is equivalent to the principal
amount of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent at approximately 11:00 a.m. (Charlotte time) two (2)
Business Days before such Loan is made or continued (or to be made or
continued). When used with respect to any other sum expressed in an Alternative
Currency, "Dollar Amount" shall mean the amount of Dollars which is equivalent
to the amount so expressed in such Alternative Currency at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it
at the relevant time.
"Domestic Subsidiary" means any Subsidiary of BREED organized under the
laws of any State of the United States or the District of Columbia.
"EBIT" means, with respect to BREED and its Subsidiaries for any
period, the sum of (a) Net Income for such period, plus (b) the sum of the
following to the extent deducted in the determination of Net Income: (i) income
and franchise taxes and (ii) Interest Expense.
"EBITDA" means, with respect to BREED and its Subsidiaries for any
period, the sum of (a) Net Income for such period, plus (b) the sum of the
following to the extent deducted in the determination of Net Income: (i) income
and franchise taxes, (ii) Interest Expense
<PAGE>
and (iii) amortization, depreciation and other non-cash charges (including
amortization of goodwill, transaction expenses, covenants not to compete and
other intangible assets). EBITDA shall be adjusted in a manner reasonably
satisfactory to the Administrative Agent to include on a pro forma basis as of
the first day of any calculation period any acquisition consummated during such
period and exclude on a pro forma basis as of the first day of any calculation
period any Subsidiary or assets sold during such period.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by BREED
(unless an Event of Default has occurred and is continuing) and the
Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained for employees of BREED or
any ERISA Affiliate.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
<PAGE>
"Equity Issuance" means the issuance, sale or other disposition by
BREED or any of its Subsidiaries of its capital stock, any rights, warrants or
options to purchase or acquire any shares of its capital stock, or any other
security or instrument representing, convertible into or exchangeable for an
equity interest in BREED or any of its Subsidiaries other than Convertible
Preferred Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with BREED is treated
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b) of ERISA.
"Event of Default" means any of the events specified in Section 11.1;
provided, that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Existing Credit Agreement" means the Revolving Credit Agreement dated
as of December 7, 1995 by and among BREED, as Borrower, Chemical Bank, as agent
and lender, NBD Bank, as lender, and First Union National Bank of Florida, as
lender, as amended, modified or supplemented.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Finnish Mark Aggregate Commitment" means the aggregate amount of the
Finnish Mark Commitments of the Finnish Mark Lenders, as such amount may be
reduced or modified at any time or from time to
<PAGE>
time pursuant to the terms hereof. On the Closing Date, the
Finnish Mark Aggregate Commitment shall be Ten Million Dollars
($10,000,000).
"Finnish Mark Commitment" means, as to any Finnish Mark Lender, the
obligation of such Finnish Mark Lender to make Finnish Mark Loans to the A/C
Borrowers hereunder in an aggregate Dollar Amount at any time outstanding not to
exceed the amount set forth opposite such Finnish Mark Lender's name on Schedule
1.1(c) hereto, as the same may be reduced or modified at any time or from time
to time pursuant to the terms hereof.
"Finnish Mark Commitment Percentage" means, as to any Finnish Mark
Lender at any time, the ratio of (a) the amount of the Finnish Mark Commitment
of such Finnish Mark Lender to (b) the Finnish Mark Aggregate Commitment of all
of the Finnish Mark Lenders.
"Finnish Mark Lenders" means each Lender listed on Schedule 1.1(c) in
its capacity as a Finnish Mark lender hereunder.
"Finnish Mark Loans" means the Loans in Finnish Marks made by the
Finnish Mark Lenders to the applicable A/C Borrower or A/C Borrowers pursuant to
Section 2.2.
"Finnish Mark Notes" means the separate Finnish Mark Notes made by the
applicable A/C Borrowers indicated on Schedule 1.1(a) payable to the order of
each Finnish Mark Lender, substantially in the form of Exhibit A-2 hereto, and
any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Finnish Mark Note" means any of such Finnish Mark Notes.
"Finnish Marks or FIM" means, at any time of determination, the then
official currency of Finland.
"First Union" means First Union National Bank of Florida, a national
banking association, and its successors.
"Fiscal Year" means the fiscal year of BREED and its Subsidiaries
ending on June 30.
"Foreign Subsidiary" means any Subsidiary of BREED not organized under
the laws of any State of the United States or the District of Columbia.
<PAGE>
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for BREED and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of BREED and, to the extent each
Subsidiary was a Subsidiary of BREED, each such Subsidiary.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital owner ship or otherwise, by any of the foregoing.
"Guaranteed Obligations" shall have the meaning assigned
thereto in Section 10.1.
"Guarantor" means BREED in its capacity as guarantor under
Article X.
"Guaranty" means the unconditional guaranty agreement of BREED
set forth in Article X.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance, a trespass
or pose a health or safety hazard to persons or neighboring properties, (f)
which are materials consisting of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde
<PAGE>
foam insulation, petroleum hydrocarbons, petroleum derived substances or waste,
crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrowers under this Agreement, and
any confirming letter executed pursuant to such hedging agreement, all as
amended, restated, supplemented or otherwise modified from time to time.
"Intercompany Trust Debt" shall mean Debt of BREED issued to any
Subsidiary referred to in Section 9.4(e) in consideration of the issuance of
Convertible Preferred Stock (which Debt may or may not be convertible into
common stock of BREED) and which is subordinate to the Obligations; provided
that such Debt shall not be deemed Intercompany Trust Debt if at any time it is
distributed to any person other than BREED or a Subsidiary.
"Interest Expense" means, with respect to BREED and its Subsidiaries
for any period, the gross interest expense (including, without limitation,
interest expense attributable to Capital Leases, all net obligations pursuant to
Hedging Agreements and all interest paid under or in connection with the
Convertible Preferred Stock) of BREED and its Subsidiaries, all determined for
such period on a Consolidated basis and, except as otherwise set forth in this
definition, in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in
Section 3.1(b).
"Italian Lire or ITL" means, at any time of determination, the then
official currency of Italy.
"Lender" means each Person executing this Agreement as a lender
(including, as applicable, each Finnish Mark Lender) set forth on the signature
pages hereto and each Person that hereafter becomes a party to this Agreement as
a lender pursuant to Section 13.10.
"Lending Office" means (a) with respect to any Lender, the office of
such Lender maintaining such Lender's Commitment Percentage of the Loans or (b)
with respect to any Finnish Mark
<PAGE>
Lender, the office of such Finnish Mark Lender maintaining such Finnish Mark
Lender's Finnish Mark Commitment Percentage.
"Leverage Ratio" means the ratio calculated in accordance with
Section 8.1.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 (or
the Alternative Currency Amount thereof with respect to a borrowing to be made
in an Alternative Currency) for a period equal to the applicable Interest Period
which appears on the Telerate Page 3750 at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of the applicable Interest
Period (rounded upward, if necessary, to the nearest one-sixteenth of one
percent (1/16%)). If, for any reason, such rate does not appear on Telerate Page
3750, then "LIBOR" shall be determined by the Administrative Agent to be the
arithmetic average (rounded upward, if necessary, to the nearest one-sixteenth
of one percent (1/16%)) of the rate per annum at which deposits in the Permitted
Currency in which the applicable Loan is denominated would be offered by first
class banks in the London interbank market to the Administrative Agent (or the
Administrative Agent's Correspondent) at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of the applicable Interest Period
for a period equal to such Interest Period and in an amount substantially equal
to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/16th of 1%) determined by the Administrative Agent pursuant to
the following formula:
LIBOR Rate = LIBOR
1.00 - Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 3.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
<PAGE>
"Loan" means any Revolving Credit Loan, Finnish Mark Loan or Swingline
Loan made to any Borrower pursuant to Section 2.1, 2.2 or 2.3, and "Loans" means
all such Loans collectively as the context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Hedging Agreement executed by any Lender, the Security Documents and any
supplements thereto and each other document, instrument and agreement executed
and delivered by any Borrower or any Subsidiary thereof in connection with this
Agreement or otherwise referred to herein or contemplated hereby, all as may be
amended, supplemented, restated or otherwise modified from time to time.
"Loan Parties" means the collective reference to the Borrowers, each of
the Subsidiary Guarantors and each entity whose stock is pledged pursuant to a
Pledge Agreement and "Loan Party" means any one of such Persons.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse effect on (a) the properties,
business, prospects, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the ability of the
Borrower and its Subsidiaries taken as a whole to perform its obligations under
the Loan Documents or Material Contracts.
"Material Contract" means any contract or agreement, written or oral,
of any Borrower or any of its Subsidiaries the failure to comply with which
could reasonably be expected to have a Material Adverse Effect.
"Material Domestic Subsidiary" means any direct or indirect Domestic
Subsidiary of BREED which is a Material Subsidiary.
"Material Foreign Subsidiary" means any direct or indirect Foreign
Subsidiary of BREED which is a Material Subsidiary.
"Material Subsidiary" means any direct or indirect Subsidiary of BREED
which has total assets equal to or in excess of $15,000,000; provided, however,
that notwithstanding the foregoing, BREED and the Subsidiaries of BREED which
comprise "Material Subsidiaries" shall at all times have total assets equal to
or greater than ninety percent (90%) of the Consolidated total assets of BREED
and its Subsidiaries.
<PAGE>
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which BREED or any ERISA Affiliate is making, or is
accruing an obligation to make, contributions within the preceding six years.
"Net Income" means, with respect to BREED and its Subsidiaries for any
period, the Consolidated net income (or loss) of BREED and its Subsidiaries for
such period determined in accordance with GAAP; provided, that there shall be
excluded from net income (or loss): (a) the income (or loss) of any Person
(other than a Subsidiary of such Person) in which such Person has an ownership
interest unless received by such Person in a cash distribution, (b) the income
(or loss) of any Person accrued prior to the date it became a Subsidiary of such
first Person or is merged into or consolidated with such first Person, and (c)
to the extent not included in clauses (a) and (b) above, any after-tax
extraordinary gains and non-cash losses.
"Net Proceeds" means the proceeds in cash or other cash equivalents
received by BREED and its Subsidiaries in connection with any permitted sale or
disposition of assets pursuant to Section 9.6(e) net of (a) direct costs
relating to such permitted sale or disposition, excluding any amount payable to
Affiliates of BREED and its Subsidiaries other than upon fair and reasonable
arm's length terms approved by disinterested members of BREED, (b) sale,
transfer, excise, use and other transaction taxes paid or payable as a result of
such permitted sale or disposition and (c) any temporary escrows or retainages
required in connection therewith provided that all such amounts ultimately
returned to Breed or any of its Subsidiaries will immediately be applied to
reduce the Total Aggregate Commitment as required herein.
"Net Worth" means, with respect to BREED and its Subsidiaries at any
date, the sum of (a) Consolidated stockholders' equity, calculated in accordance
with GAAP, and (b) Convertible Preferred Stock.
"Non-Core Assets" shall mean any assets of BREED or any of its
Subsidiaries not related to steering wheels, sensors, electronics, inflators,
airbag modules or complete airbag sensors.
"Notes" means the Revolving Credit Notes, the Finnish Mark Notes, the
Swingline Note, or any combination thereof, made by the applicable Borrower or
Borrowers payable to the order of each Lender; "Note" means any of such Notes.
<PAGE>
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 4.2(f)(i).
"Notice of Borrowing" shall have the meaning assigned thereto
in Section 2.4(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 3.2.
"Notice of Prepayment" shall have the meaning assigned thereto
in Section 2.5(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by a Borrower to any Lender under any
Hedging Agreement permitted pursuant to Section 9.1, (c) the obligations of the
Guarantor pursuant to Article X, and (d) all other fees and commissions
(including attorney's fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by a Borrower
or the Guarantor to the Lenders or the Administrative Agent, under or in respect
of this Agreement, any Note or any of the other Loan Documents, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, and whether or not for the payment of money.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Other Taxes" shall have the meaning assigned thereto in
Section 3.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which is maintained for employees of BREED or any
ERISA Affiliates.
"Permitted Currency" means Dollars or any Alternative Currency, or each
such currency, as the context requires.
<PAGE>
"Person" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental Authority or any other
form of entity or group thereof.
"Pledge Agreement" means each of the Pledge Agreements executed by
BREED or a Subsidiary thereof, as pledgor, in favor of the Administrative Agent
for the ratable benefit of the Lenders, substantially in the form of Exhibit H
hereto (with any and all necessary modifications for each applicable foreign
jurisdiction), as amended, restated, supplemented or otherwise modified from
time to time, pursuant to which the capital stock of the Subsidiaries listed on
Schedule 1.1(d) and the capital stock of those Subsidiaries required to be
pledged under Section 7.12 is pledged to the Administrative Agent for the
ratable benefit of the Lenders.
"Pounds Sterling or GBP" means, at any time of determination, the then
official currency of the United Kingdom.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Register" shall have the meaning assigned thereto in Section
13.10(d).
"Required Lenders" means, at any date, any combination of holders of at
least fifty-one percent (51%) of the aggregate unpaid principal Dollar Amount of
the Revolving Credit Notes at such date, or if no amounts are outstanding under
the Revolving Credit Notes, any combination of Lenders whose Commitment
Percentages aggregate at least fifty-one percent (51%).
"Reserve Percentage" means the maximum daily arithmetic reserve
requirement imposed by the Board of Governors of the Federal Reserve System (or
any successor) under Regulation D on Eurocurrency liabilities (as defined in
Regulation D) for the applicable Interest Period as of the first day of such
Interest Period, but subject to any changes in such reserve requirement
<PAGE>
becoming effective during the Interest Period. For purposes of calculating the
Reserve Percentage, the reserve requirement shall be as set forth in Regulation
D without benefit of credit for prorations, exemptions or offsets under
Regulation D, and further without regard to whether or not any Lender elects to
actually fund any Loan or portion thereof with Eurocurrency liabilities. Each
calculation by the Administrative Agent of the LIBOR Rate shall be conclusive
and binding for all purposes, absent manifest error.
"Revolving Credit Loans" means the collective reference to the
revolving credit loans made pursuant to Section 2.1.
"Revolving Credit Notes" means the separate Revolving Credit Notes made
by the applicable Borrower or Borrowers payable to the order of each Lender,
substantially in the form of Exhibit A-1 hereto with respect to each Borrower,
and any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Revolving Credit Note" means any of such Revolving Credit Notes.
"Security Documents" means the collective reference to the Pledge
Agreements, the Subsidiary Guaranty Agreement and each other agreement or
writing pursuant to which BREED or any Subsidiary thereof pledges or grants a
security interest in the Collateral or any other collateral securing the
Obligations or any such Person guaranties the payment or performance of the
Obligations or any portion thereof.
"Senior Debt" means all Debt of the Borrower other than
Subordinated Debt.
"Solvent" means, as to BREED and its Subsidiaries on a particular date,
that any such Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage
and is able to pay its debts as they mature, (b) owns property having a value,
both at fair valuation and at present fair saleable value, greater than the
amount required to pay its probable liabilities (including contingencies), and
(c) does not believe that it will incur debts or liabilities beyond its ability
to pay such debts or liabilities as they mature.
"Subordinated Debt" means the collective reference to Debt on
Schedule 5.1(t) hereof designated as Subordinated Debt and any
<PAGE>
other Debt of Breed or any of its Subsidiaries subordinated in right and time of
payment to the Obligations on terms (including, without limitation, terms and
conditions relating to maturity and covenants) satisfactory to the Required
Lenders.
"Subsidiary" means as to any Person, any corporation, partner ship or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of BREED and its Subsidiaries. A
Subsidiary shall also include any statutory business trust created to issue
Convertible Preferred Stock provided that a majority of the common securities
thereof are owned, directly or indirectly, by BREED.
"Subsidiary Guarantor" means each of the Material Domestic Subsidiaries
of BREED listed on Schedule 1.1(e) and each other Material Domestic Subsidiary
of BREED which becomes party to the Subsidiary Guaranty Agreement in accordance
with Section 7.12.
"Subsidiary Guaranty Agreement" means the unconditional guaranty
agreement executed by each Subsidiary Guarantor party thereto in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders,
substantially in the form of Exhibit I hereto, as amended, restated,
supplemented or otherwise modified from time to time.
"Swingline Commitment" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Aggregate Commitment.
"Swingline Lender" means First Union in its capacity as
swingline lender hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to BREED pursuant to Section 2.3, and all such Loans collectively as the context
requires.
"Swingline Note" means the separate Note made by BREED payable
to the order of the Swingline Lender, substantially in the form of
<PAGE>
Exhibit A-3 hereto, and any amendments and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extension
thereof, in whole or in part.
"Swingline Rate" means a rate to be agreed upon from time to time by
BREED and the Swingline Lender.
"Swingline Termination Date" means the earlier to occur of (a) the
resignation of First Union as the Administrative Agent in accordance with
Section 12.9 without a substitute being appointed as provided therein and (b)
the Credit Facility Termination Date.
"Taxes" shall have the meaning assigned thereto in Section
3.13(a).
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of BREED or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan, or (f) the partial or complete withdrawal of BREED or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA, or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Total Aggregate Commitment" means the collective reference to the
Aggregate Commitment under this Agreement and the Aggregate Commitment (as
defined in the 364-Day Credit Agreement) under the 364-Day Credit Agreement.
"Trust Preferred Guarantee" means a guarantee by BREED of payments on
Convertible Preferred Stock but only to the extent the Subsidiary that has
issued such Convertible Preferred Stock has
<PAGE>
funds available therefor, and which guarantee is subordinated to the Obligations
on terms and conditions acceptable to the Required Lenders.
"UCC" means the Uniform Commercial Code as in effect in the
State of North Carolina.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by BREED and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Terms defined in this Agreement and in the 364-Day Credit Agreement shall be
construed consistently, and no term defined herein shall be limited or
restricted by any similar definition in the 364-Day Credit Agreement nor shall
any such term limit or restrict any similar definition in the 364-Day Credit
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Charlotte time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(c) Knowledge of Borrowers. The words "to the best of the
Borrowers' knowledge", "to the best of BREED's knowledge", "to the
<PAGE>
best knowledge of the Borrowers and their Subsidiaries" and words of similar
import when used in this Agreement shall mean to the best knowledge and belief
of the applicable Person after reasonable and due investigation and review of
all matters pertinent to the subject matter thereof.
ARTICLE II
CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Revolving Credit Loans
in a Permitted Currency (other than Finnish Marks, Loans with respect to which
shall only be made by the Finnish Mark Lenders in accordance with the terms of
Section 2.2) to the applicable Borrower or Borrowers from time to time from the
Closing Date through the Credit Facility Termination Date as requested by the
applicable Borrower or Borrowers in accordance with the terms of Section 2.4;
provided, that, based upon the Dollar Amount of all outstanding Loans, (a) the
Dollar Amount of the aggregate principal amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) shall not exceed the
Aggregate Commitment less the sum of the Dollar Amount of the aggregate
principal amount of all outstanding Finnish Mark Loans less the sum of the
Dollar Amount of the aggregate principal amount of all outstanding Swingline
Loans, (b) the sum of (i) the Dollar Amount of the aggregate principal amount of
all outstanding Revolving Credit Loans made in Alternative Currencies (other
than Finnish Marks) and (ii) the Dollar Amount of the aggregate principal amount
of all outstanding Finnish Mark Loans shall not exceed the Alternative Currency
Commitment and (c) the Dollar Amount of the aggregate principal amount of all
outstanding Revolving Credit Loans from any Lender to the Borrowers shall not at
any time exceed such Lender's Commitment. Each Revolving Credit Loan by a Lender
shall be in a principal amount equal to such Lender's Commitment Percentage of
the Dollar Amount of the aggregate principal amount of Revolving Credit Loans
requested on such occasion. Revolving Credit Loans to be made in an Alternative
Currency (other than Finnish Marks) shall be funded in an amount equal to the
Alternative Currency Amount of such Revolving Credit Loan. Revolving Credit
Loans to BREED may be denominated in Dollars or in the applicable Alternative
Currency (other than Finnish Marks) as set forth on Schedule 2.1 and Revolving
Credit Loans to each other A/C Borrower shall be denominated in the
<PAGE>
applicable Alternative Currency (other than Finnish Marks) as set forth on
Schedule 2.1. Subject to the terms and conditions hereof, the Borrowers may
borrow, repay and reborrow Revolving Credit Loans hereunder until the Credit
Facility Termination Date.
SECTION 2.2 Finnish Mark Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Finnish Mark Lenders severally agree to make Finnish Mark Loans
to the applicable A/C Borrower or A/C Borrowers from time to time from the
Closing Date through the Credit Facility Termination Date as requested by the
applicable A/C Borrower or A/C Borrowers in accordance with the terms of Section
2.4; provided, that, based upon the Dollar Amount of all outstanding Loans, (a)
the Dollar Amount of the aggregate principal amount of all outstanding Finnish
Mark Loans (after giving effect to any amount requested) shall not exceed the
lesser of (i) the Aggregate Commitment less the sum of the Dollar Amount of the
aggregate principal amount of all outstanding Revolving Credit Loans less the
sum of the Dollar Amount of the aggregate principal amount of all outstanding
Swingline Loans and (ii) the Finnish Mark Aggregate Commitment, (b) the sum of
(i) the Dollar Amount of the aggregate principal amount of all outstanding
Finnish Mark Loans and (ii) the Dollar Amount of the aggregate principal amount
of all outstanding Alternative Currency Loans made in Alternative Currencies
(other than Finnish Marks) shall not exceed the Alternative Currency Commitment
and (c) the Dollar Amount of the aggregate principal amount of all outstanding
Finnish Mark Loans from any Finnish Mark Lender to the A/C Borrowers shall not
at any time exceed such Lender's Finnish Mark Commitment. Each Finnish Mark Loan
by a Finnish Mark Lender shall be in a principal amount equal to such Finnish
Mark Lender's Commitment Percentage of the Dollar Amount of the aggregate
principal amount of Finnish Mark Loans requested on such occasion. Finnish Mark
Loans shall be funded in an amount equal to the Alternative Currency Amount of
such Finnish Mark Loan. Subject to the terms and conditions hereof, the
Borrowers may borrow, repay and reborrow Finnish Mark Loans hereunder until the
Credit Facility Termination Date.
(b) Refunding of Finnish Mark Loans.
(i) Upon the occurrence and during the continuance of an Event
of Default, each Finnish Mark Loan may, at the discretion of the Administrative
Agent, be converted immediately to a Base Rate Loan funded in Dollars by the
Lenders in an amount equal to the
<PAGE>
Dollar Amount of such Finnish Mark Loan for the remainder of the Interest Period
applicable to such Finnish Mark Loan. Such Base Rate Loan shall thereafter be
reflected as a Revolving Credit Loan of the Lenders on the books and records of
the Administrative Agent. Each Lender shall fund its respective Commitment
Percentage of such Base Rate Loan as required to repay Finnish Mark Loans
outstanding to the Finnish Mark Lenders upon such demand by the Administrative
Agent in no event later than 2:00 p.m. (Charlotte time) on the next succeeding
Business Day after such demand is made. No Lender's obligation to fund its
respective Commitment Percentage of any Base Rate Loan required to repay such
Finnish Mark Loan shall be affected by any other Lender's failure to fund its
Commitment Percentage of such Base Rate Loan, nor shall any Lender's Commitment
Percentage be increased as a result of any such failure of any other Lender to
fund its Commitment Percentage of such Base Rate Loan.
(ii) The Borrowers shall pay to the Administrative Agent, for the
account of the Finnish Mark Lenders, on demand the amount of such Finnish Mark
Loans to the extent that the Lenders fail to refund in full the outstanding
Finnish Mark Loans requested or required to be refunded. In addition, the
Borrowers hereby authorize the Administrative Agent or any Finnish Mark Lender
to charge any account maintained by any Borrower with the Administrative Agent
or any Finnish Mark Lender (up to the amount available therein) in order to
immediately pay the Finnish Mark Lenders the amount of such Finnish Mark Loans
to the extent amounts received from the Lenders are not sufficient to repay in
full the outstanding Finnish Mark Loans requested or required to be refunded. If
any portion of any such amount paid to the Finnish Mark Lenders shall be
recovered by or on behalf of the Borrowers from the Administrative Agent or the
Finnish Mark Lenders in bankruptcy or otherwise, the loss of the amount so
recovered shall be ratably shared among all the Lenders in accordance with their
respective Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to
refund Finnish Mark Loans in accordance with the terms of this Section 2.2 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever; provided, that if prior to the refunding of any outstanding Finnish
Mark Loans pursuant to this Section 2.2, one of the events described in Section
11.1(j) or (k) shall have occurred, each Lender will, on the date the applicable
Revolving Credit Loan would have been made to refund such Finnish Mark Loans,
purchase an undivided
<PAGE>
participating interest in such Finnish Mark Loans in an amount equal to its
Commitment Percentage of the aggregate amount of such Finnish Mark Loan. Each
Lender will immediately transfer to the Administrative Agent, for the account of
the Finnish Mark Lenders, in immediately available funds in Dollars, the amount
of its participation and upon receipt thereof the Administrative Agent will
deliver to such Lender a certificate evidencing such partici pation dated the
date of receipt of such funds and for such amount. Whenever, at any time after
the Administrative Agent has received from any Lender such Lender's
participating interest in the refunded Finnish Mark Loans, the Administrative
Agent or any Finnish Mark Lender receives any payment on account thereof, the
Administrative Agent or such Finnish Mark Lender, as applicable, will distribute
to such Lender its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Lender's participating interest was outstanding and funded).
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to BREED from
time to time from the Closing Date through the Swingline Termination Date;
provided, that (i) all Swingline Loans shall be denominated in Dollars and (ii)
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested) shall not exceed the lesser of (A) the Aggregate
Commitment less the sum of the Dollar Amount of the aggregate principal amount
of all outstanding Revolving Credit Loans less the sum of the Dollar Amount of
the aggregate principal amount of all outstanding Finnish Mark Loans and (B) the
Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand
to the Swingline Lender and at the sole discretion of the Swingline Lender. Such
refundings shall be made by the Lenders in accordance with their respective
Commitment Percentages and shall thereafter be reflected as Revolving Credit
Loans of the Lenders on the books and records of the Administrative Agent. Each
Lender shall fund its respective Commitment Percentage of Revolving Credit Loans
as required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding
<PAGE>
Business Day after such demand is made. No Lender's obligation to fund its
respective Commitment Percentage of a Swingline Loan shall be affected by any
other Lender's failure to fund its Commitment Percentage of a Swingline Loan,
nor shall any Lender's Commitment Percentage be increased as a result of any
such failure of any other Lender to fund its Commitment Percentage of a
Swingline Loan.
(ii) BREED shall pay to the Swingline Lender on demand the amount
of such Swingline Loans to the extent that the Lenders fail to repay in full the
outstanding Swingline Loans requested or required to be refunded. In addition,
BREED hereby authorizes the Administrative Agent to charge any account
maintained by BREED with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. If any portion of any such amount paid to the Swingline
Lender shall be recovered by or on behalf of BREED from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Commitment
Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to
refund Swingline Loans in accordance with the terms of this Section 2.3 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever; provided, that if prior to the refunding of any outstanding
Swingline Loans pursuant to this Section 2.3, one of the events described in
Section 11.1(j) or (k) shall have occurred, each Lender will, on the date the
applicable Revolving Credit Loan would have been made to refund such Swingline
Loan, purchase an undivided participating interest in such Swingline Loan in an
amount equal to its Commitment Percentage of the aggregate amount of such
Swingline Loan. Each Lender will immediately transfer to the Swingline Lender,
in immediately available funds, the amount of its participation and upon receipt
thereof the Swingline Lender will deliver to such Lender a certificate
evidencing such participation dated the date of receipt of such funds and for
such amount. Whenever, at any time after the Swingline Lender has received from
any Lender such Lender's participating interest in a Swingline Loan, the
Swingline Lender receives any payment on account thereof, the Swingline Lender
will distribute to such Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to
<PAGE>
reflect the period of time during which such Lender's participating interest was
outstanding and funded).
SECTION 2.4 Procedure for Advances of Revolving Credit
Loans, Finnish Mark Loans and Swingline Loans.
(a) Requests for Borrowing. The applicable Borrower or Borrowers shall
give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Borrowing") not later than 12:00 noon
(Charlotte time) (i) on the same Business Day as each Swingline Loan, (ii) at
least one Business Day before each Base Rate Loan, (iii) at least three (3)
Business Days before each LIBOR Rate Loan denominated in Dollars and (iv) at
least four (4) Business Days before each LIBOR Rate Loan denominated in an
Alternative Currency, of its or their intention to borrow, specifying (A) the
date of such borrowing, which shall be a Business Day, (B) whether such Loan is
to be a Revolving Credit Loan, Finnish Mark Loan or a Swingline Loan, (C) if
such Loan is a Revolving Credit Loan, whether such Loan shall be denominated in
Dollars or in an Alternative Currency, (D) if denominated in Dollars, whether
the Loans are to be LIBOR Rate Loans or Base Rate Loans, (E) the amount of such
borrowing, which shall be (u) with respect to LIBOR Rate Loans denominated in
Dollars in an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof, (v) with respect to LIBOR Rate Loans denominated
in an Alternative Currency (other than Finnish Marks) in an aggregate principal
Alternative Currency Amount of $10,000,000 or a whole multiple of $1,000,000 in
excess thereof, (x) with respect to LIBOR Rate Loans denominated in Finnish
Marks in an aggregate principal Alternative Currency Amount of $2,000,000 or a
whole multiple of $100,000 in excess thereof, (y) with respect to Base Rate
Loans in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof, and (z) with respect to Swingline Loans in an
aggregate principal amount of $100,000 or a whole multiple thereof and (F) in
the case of a LIBOR Rate Loan, the duration of the Interest Period applicable
thereto. Notices received after 12:00 noon (Charlotte time) shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify (i) the Lenders of each Notice of Borrowing with respect to a Revolving
Credit Loan and (ii) the Finnish Mark Lenders of each Notice of Borrowing with
respect to a Finnish Mark Loan.
(b) Disbursement of Revolving Credit Loans Denominated in
Dollars and Swingline Loans. Not later than 2:00 p.m. (Charlotte
<PAGE>
time) on the proposed borrowing date for any Loan denominated in Dollars, (i)
each Lender will make available to the Administrative Agent, for the account of
BREED, at the office of the Administrative Agent in Dollars in funds immediately
available to the Administrative Agent, such Lender's Commitment Percentage of
the requested Revolving Credit Loan to be made on such borrowing date and (ii)
the Swingline Lender will make available to the Administrative Agent, for the
account of BREED, at the office of the Administrative Agent in Dollars in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made to BREED on such borrowing date. BREED hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.4 in immediately available funds by crediting such
proceeds to a deposit account of BREED maintained with the Administrative Agent
or by wire transfer from such deposit account to another account as may be
requested by BREED by prior written notice to the Administrative Agent. Subject
to Section 3.7 hereof, the Administrative Agent shall not be obligated to
disburse the portion of the proceeds of any Loan requested pursuant to this
Section 2.4 to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan. Revolving Credit
Loans to be made for the purpose of refunding Swingline Loans shall be made by
the Lenders as provided in Section 2.3(b) hereof.
(c) Disbursement of Alternative Currency Loans (other than Finnish Mark
Loans). Not later than 10:00 a.m. (the time of the Administrative Agent's
Correspondent) on the proposed borrowing date for any Alternative Currency Loan
(other than Finnish Mark Loans), each Lender will make available to the
Administrative Agent for the account of the applicable A/C Borrower or A/C
Borrowers at the office of the Administrative Agent's Correspondent in the
requested Alternative Currency in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the requested
borrowing to be denominated in such Alternative Currency. The A/C Borrowers
hereby irrevocably authorize the Administrative Agent to disburse the proceeds
of each borrowing requested pursuant to this Section 2.4 in immediately
available funds by crediting such proceeds to an account of the applicable A/C
Borrower maintained with the Administrative Agent's Correspondent or by wire
transfer from such deposit account to another account as may be requested by
such A/C Borrower by prior written notice to the Administrative Agent. Subject
to Section 3.7 hereof, the Administrative Agent shall not be obligated to
disburse the portion of the proceeds of any Loan requested pursuant to this
<PAGE>
Section 2.4 to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan.
(d) Disbursement of Finnish Mark Loans. Not later than 10:00 a.m. (the
time of the Administrative Agent's Correspondent) on the proposed borrowing date
for any Finnish Mark Loan, each Finnish Mark Lender will make available to the
Administrative Agent for the account of the applicable A/C Borrower or A/C
Borrowers at the office of the Administrative Agent's Correspondent in Finnish
Marks in funds immediately available to the Administrative Agent, such Finnish
Mark Lender's Commitment Percentage of the requested borrowing to be denominated
in Finnish Marks. The A/C Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.4 in immediately available funds by crediting such
proceeds to an account of the applicable A/C Borrower maintained with the
Administrative Agent's Correspondent or by wire transfer from such deposit
account to another account as may be requested by such A/C Borrower by prior
written notice to the Administrative Agent. Subject to Section 3.7 hereof, the
Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Finnish Mark Loan requested pursuant to this Section 2.4 to the
extent that any Finnish Mark Lender has not made available to the Administrative
Agent its Commitment Percentage of such Finnish Mark Loan.
SECTION 2.5 Repayment of Revolving Credit Loans, Finnish
Mark Loans and Swingline Loans.
(a) Repayment. The applicable Borrower or Borrowers shall repay (i) the
principal Dollar Amount of all outstanding Revolving Credit Loans in full in the
currency in which each such Revolving Credit Loan was initially funded, together
with all accrued but unpaid interest thereon, on the Credit Facility Termination
Date, (ii) the principal Dollar Amount of all outstanding Finnish Mark Loans in
full in Finnish Marks, together with all accrued but unpaid interest thereon, on
the Credit Facility Termination Date (or in accordance with Section 2.2(b) if
earlier) and (iii) the principal amount of all outstanding Swingline Loans in
full, together with all accrued but unpaid interest thereon, in accordance with
Section 2.3(b).
<PAGE>
(b) Mandatory Repayment of Excess Loans.
(i) Aggregate Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(iv)), and for any reason, the
aggregate principal Dollar Amount of all outstanding Revolving Credit Loans,
Finnish Mark Loans and Swingline Loans exceeds one hundred and five percent
(105%) of the Aggregate Commitment, the applicable Borrower or Borrowers shall
(A) first, if (and to the extent) necessary to eliminate such excess,
immediately repay outstanding Revolving Credit Loans that are Base Rate Loans by
the Dollar Amount of such excess in the currency in which each such Loan was
initially funded (and/or reduce any pending request for a Base Rate Loan on such
day by the Dollar Amount of such excess) and (B) second, if (and to the extent)
necessary to eliminate such excess, immediately repay LIBOR Rate Loans in the
currency in which each such Loan was initially funded (and/or reduce any pending
requests for a borrowing or continuation or conversion of such Loans submitted
in respect of such Loans on such day) by the Dollar Amount of any remaining
excess.
(ii) Excess Finnish Mark Loans. If at any time and for any reason
the outstanding principal amount of all outstanding Finnish Mark Loans exceeds
the lesser of (A) the Aggregate Commitment less the sum of the outstanding
principal Dollar Amount of all Revolving Credit Loans less the sum of the
outstanding principal Dollar Amount of all Swingline Loans and (B) the Finnish
Mark Aggregate Commitment, such excess shall be immediately repaid in Finnish
Marks by the applicable A/C Borrower or A/C Borrowers to the Administrative
Agent for the account of the Finnish Mark Lenders.
(iii) Excess Swingline Loans. If at any time and for any reason the
outstanding principal amount of all outstanding Swingline Loans exceeds the
lesser of (A) the Aggregate Commitment less the sum of the outstanding principal
Dollar Amount of all Revolving Credit Loans less the sum of the outstanding
principal Dollar Amount of all Finnish Mark Loans and (B) the Swingline
Commitment, such excess shall be immediately repaid by BREED to the
Administrative Agent for the account of the Swingline Lender.
(iv) Compliance and Payments. Each Borrower's compliance
with this Section 2.5(b) shall be tested from time to time by the
Administrative Agent at its sole discretion, but in any event on
each day an interest payment is due under Section 3.1(e). All
<PAGE>
payments pursuant to this Section 2.5(b) shall be accompanied by any amount
required to be repaid under Section 3.11.
(c) Other Mandatory Repayments. The Borrowers shall repay
the Loans in accordance with Section 2.7 in connection with any
permanent reduction in the Aggregate Commitment.
(d) Optional Repayments. Any Borrower may at any time and from time to
time repay the Loans made thereto in the currency in which each such Loan was
initially funded, in whole or in part, with respect to LIBOR Rate Loans
denominated in an Alternative Currency, upon irrevocable notice to the
Administrative Agent made no later than 12:00 noon (Charlotte time) on the
Business Day that is at least four (4) Business Days' prior to such prepayment,
upon at least three (3) Business Days' irrevocable notice to the Administrative
Agent with respect to LIBOR Rate Loans denominated in Dollars, one (1) Business
Day's irrevocable notice with respect to Base Rate Loans, and same Business Day
irrevocable notice with respect to Swingline Loans, in the form attached hereto
as Exhibit C (a "Notice of Prepayment"), specifying the date and amount of
repayment and whether the repayment is of LIBOR Rate Loans denominated in an
Alternative Currency (including, without limitation, Finnish Mark Loans), LIBOR
Rate Loans denominated in Dollars, Base Rate Loans, Swingline Loans, or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender. If any such notice is given, the amount specified in such
notice shall be due and payable on the date set forth in such notice. Partial
repayments shall be in an aggregate amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof with respect to Base Rate Loans, $10,000,000 or a
whole multiple of $1,000,000 in excess thereof with respect to LIBOR Rate Loans
(or with respect to Alternative Currency Loans other than Finnish Mark Loans,
the Alternative Currency Amount thereof), the Alternative Currency Amount of
$2,000,000 or a whole multiple of $100,000 in excess thereof with respect to
Finnish Mark Loans, and a whole multiple of $100,000 with respect to Swingline
Loans. Each such repayment shall be accompanied by any amount required to be
paid pursuant to Section 3.11 hereof.
(e) Limitation on Repayment of LIBOR Rate Loans. No Borrower may repay
any LIBOR Rate Loan (including, without limitation, any LIBOR Rate Loan
denominated in an Alternative Currency) on any day other than on the last day of
the Interest Period applicable
<PAGE>
thereto unless such repayment is accompanied by any amount required to be paid
pursuant to Section 3.11 hereof.
SECTION 2.6 Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of each Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by each Borrower payable to the
order of such Lender representing each such Borrower's obligation to pay such
Lender's Commitment or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made and to be made by such Lender to such Borrower
hereunder, plus interest and all other fees, charges and other amounts due
thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 3.1.
(b) Finnish Mark Notes. Each Finnish Mark Lender's Finnish Mark Loans
and the obligation of each applicable A/C Borrower to repay such Finnish Mark
Loans shall be evidenced by a Finnish Mark Note executed by such A/C Borrower
payable to the order of such Finnish Mark Lender representing such A/C
Borrower's obligation to pay such Finnish Mark Lender's Finnish Mark Commitment
or, if less, the aggregate unpaid principal amount of all Finnish Mark Loans
made and to be made by such Finnish Mark Lender to such A/C Borrower hereunder,
plus interest and all other fees, charges and other amounts due thereon. Each
Finnish Mark Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 3.1.
(c) Swingline Notes. The Swingline Loans and the obligation of BREED to
repay such Swingline Loans shall be evidenced by the Swingline Note executed by
BREED payable to the order of the Swingline Lender representing BREED's
obligation to pay the Swingline Commitment or, if less, the aggregate unpaid
principal amount of all Swingline Loans made and to be made by the Swingline
Lender to BREED hereunder, plus interest and all other fees, charges and other
amounts due thereon. The Swingline Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate specified in Section 3.1.
<PAGE>
SECTION 2.7 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Reduction. The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days' prior written
notice to the Administrative Agent, to permanently reduce, in whole at any time
or in part from time to time, without premium or penalty, the Aggregate
Commitment in an aggregate principal amount not less than $10,000,000 or any
whole multiple of $1,000,000 in excess thereof. To the extent that the Aggregate
Commitment is reduced to an amount below the Alternative Currency Commitment or
the Finnish Mark Aggregate Commitment, there shall be a corresponding permanent
reduction of the Alternative Currency Commitment or the Finnish Mark Aggregate
Commitment, as applicable, to the amount of the Aggregate Commitment as so
reduced.
(b) Mandatory Permanent Reductions.
(i) Incurrence of Debt. The Total Aggregate Commitment shall
be permanently reduced by an amount equal to one hundred percent (100%)
of the amount of any Debt incurred pursuant to Section 9.1(j), such
application to the Aggregate Commitment under this Agreement and/or the
364-Day Credit Agreement to be determined by the Borrowers in their
sole discretion. Such reduction shall be made promptly upon the
incurrence of such Debt.
(ii) Sale of Assets. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to fifty percent (50%) of the
aggregate Net Proceeds from any sale or disposition of assets permitted
pursuant to Section 9.6(e), such application to the Aggregate
Commitment under this Agreement and/or the 364-Day Credit Agreement to
be determined by the Borrowers in their sole discretion. Such reduction
shall be made promptly upon the consummation of any such sale or
disposition.
(c) Additional Payments. Each permanent reduction permitted or required
pursuant to this Section 2.7 shall be accompanied by a payment of principal
sufficient to reduce the aggregate principal Dollar Amount of the outstanding
Loans of the Lenders after such reduction to the Aggregate Commitment as so
reduced. All prepayments required by this Section 2.7(b) shall be applied first
to the aggregate outstanding principal amount of Swingline Loans,
<PAGE>
second to the aggregate outstanding principal amount of Finnish Mark Loans and
third to the aggregate outstanding principal amount of Revolving Credit Loans.
Any permanent reduction of the Aggregate Commitment to zero shall be accompanied
by payment of all outstanding Obligations and, if such reduction is permanent,
termination of the Commitments and the Credit Facility. If the reduction of the
Aggregate Commitment requires the repayment of any LIBOR Rate Loan, such
reduction may be made only on the last day of the then current Interest Period
applicable thereto unless such repayment is accompanied by any amount required
to be paid pursuant to Section 3.11 hereof.
SECTION 2.8 Termination of Credit Facility. The Credit Facility shall
terminate on the earliest of (a) April __, 2002, (b) the date of a permanent
reduction of the Aggregate Commitment in whole pursuant to Section 2.7(a) or
Section 2.7(b), and (c) the date of termination in accordance with the
provisions of Section 11.2(a).
SECTION 2.9 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans (a) to finance investments and acquisitions permitted by the terms
hereof, (b) for working capital and general corporate requirements of the
Borrowers, including the payment of certain fees and expenses incurred in
connection with the transactions contemplated hereby and (c) to refinance
existing debt.
SECTION 2.10 Nature of Obligations. Except as otherwise set forth in
the other Loan Documents, the obligations of the Borrowers under the Note or
Notes executed thereby and the other Obligations of the Borrowers shall be
several and not joint and several among the Borrowers.
SECTION 2.11 Security. The Obligations of each Loan Party shall be
secured in accordance with the terms of the applicable Security Documents.
<PAGE>
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
3.1, at the election of the applicable Borrower or Borrowers, Revolving Credit
Loans denominated in Dollars shall bear interest at the Base Rate or the LIBOR
Rate plus, in each case, the Applicable Margin as set forth below, and Revolving
Credit Loans denominated in an Alternative Currency and Finnish Mark Loans shall
bear interest at the LIBOR Rate plus the Applicable Margin as set forth below.
Each Swingline Loan shall bear interest at the Swingline Rate. The applicable
Borrower or Borrowers shall select the rate of interest and Interest Period, if
any, applicable to any Revolving Credit Loan or Finnish Mark Loan at the time a
Notice of Borrowing is given pursuant to Section 2.4 or at the time a Notice of
Conversion/Continuation is given pursuant to Section 3.2. Each Loan or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate Loan" and
each Loan or portion thereof bearing interest based on the LIBOR Rate shall be a
"LIBOR Rate Loan". Any Loan or any portion thereof as to which the applicable
Borrower or Borrowers has not duly specified an interest rate as provided herein
shall be deemed a Base Rate Loan denominated in Dollars.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
applicable Borrower or Borrowers, by giving notice at the times described in
Section 3.1(a), shall elect an interest period (each, an "Interest Period") to
be applicable to such Loan, which Interest Period shall be a period of one (1),
two (2), three (3), six (6), or if made available by the Administrative Agent
and the Lenders (in their sole discretion), twelve (12) months with respect to
each LIBOR Rate Loan; provided, that:
(i) the Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest
Period shall commence on the date on which the next preceding Interest
Period expires;
(ii) if any Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided,
<PAGE>
that if any Interest Period would otherwise expire on a day that is not
a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire on
the next preceding Business Day;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the relevant calendar
month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the
Credit Facility Termination Date; and
(v) there shall be no more than eight (8) Interest
Periods outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in
Section 3.1(a) with respect to the Loans (the "Applicable Margin")
shall:
(i) for the period commencing on the Closing Date and ending
on the date immediately preceding the fifth (5th) Business Day
following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
March 31, 1997 and the accompanying Officer's Compliance Certificate,
be determined based on the Leverage Ratio set forth in the Financial
Condition Certificate delivered pursuant to Section 4.2(e)(ii) in
accordance with the chart below;
(ii) for the period commencing on the fifth (5th) Business Day
following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio as of the end of the
fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate in accordance with the chart below:
Applicable Margin Per Annum
<PAGE>
Leverage Ratio Base Rate + LIBOR Rate +
Greater than 3.25 0.00% 0.950%
Less than or equal
to 3.25 and greater
than 3.00 0.00% 0.700%
Less than or equal
to 3.00 and greater
than 2.50 0.00% 0.500%
less than or equal
to 2.50 but greater
than 2.00 0.00% 0.375%
less than or equal
to 2.00 0.00% 0.300%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment Date")
after receipt by the Administrative Agent of quarterly financial statements for
BREED and its Subsidiaries and the accompanying Officer's Compliance Certificate
setting forth the Leverage Ratio as of the most recent fiscal quarter end.
Subject to Section 3.1(d), in the event the Borrowers fail to deliver such
financial statements and certificate within the time required by Section 6.2
hereof, the Applicable Margin shall be the highest Applicable Margin set forth
above until the delivery of such financial statements and certificate.
Notwithstanding anything to the contrary contained herein, in the event
the Interest Coverage Ratio (as determined pursuant to Section 8.3 of this
Agreement) is less than 3.00 to 1.00 during the applicable period set forth in
such Section 8.3, the Applicable Margin set forth in this Section 3.1 shall be
deemed to be 1.000% with respect to LIBOR Rate Loans (unless the Applicable
Margin with respect to LIBOR Rate Loans is determined to be 1.250% pursuant to
the terms of this Section 3.1(c)).
(d) Default Rate. Upon the occurrence and during the
continuance of an Event of Default, (i) the Borrowers shall no
longer have the option to request LIBOR Rate Loans, (ii) all
outstanding LIBOR Rate Loans shall bear interest at a rate per
<PAGE>
annum two percent (2%) in excess of the rate then applicable to LIBOR Rate
Loans, as applicable, until the end of the applicable Interest Period and
thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans
(including, without limitation, Swingline Loans) shall bear interest at a rate
per annum equal to two percent (2%) in excess of the rate then applicable to
Base Rate Loans. Interest shall continue to accrue on the Notes after the filing
by or against any Borrower of any petition seeking any relief in bankruptcy or
under any act or law pertaining to insolvency or debtor relief, whether state,
federal or foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
and each Swingline Loan shall be payable in arrears on the last Business Day of
each fiscal quarter commencing June 30, 1997 and interest on each LIBOR Rate
Loan shall be payable on the last day of each Interest Period applicable
thereto, and if such Interest Period extends over three (3) months, at the end
of each three (3) month interval during such Interest Period. All interest
rates, fees and commissions provided hereunder shall be computed on the basis of
a 360-day year and assessed for the actual number of days elapsed; provided,
that (i) interest rates on each Loan denominated in Pounds Sterling shall be
computed on the basis of a 365-day year and (ii) interest rates on each Base
Rate Loan and each Swingline Loan shall be computed on the basis of a
365/366-day year.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the applicable Borrower or Borrowers any
interest received by Lenders in excess of the maximum lawful rate or shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in
<PAGE>
any manner whatsoever, interest in excess of that which may be paid by the
Borrowers under Applicable Law.
SECTION 3.2 Notice and Manner of Conversion or Continuation of
Revolving Credit Loans and Finnish Mark Loans. Provided that no Default or Event
of Default has occurred and is then continuing, the Borrowers shall have the
option to (a) convert at any time all or any portion of any outstanding Base
Rate Loans that are Revolving Credit Loans in a principal amount equal to
$10,000,000 or any whole multiple of $1,000,000 in excess thereof into one or
more LIBOR Rate Loans denominated in Dollars, (b) upon the expiration of any
Interest Period, convert all or any part of any outstanding LIBOR Rate Loans
denominated in Dollars in a principal amount equal to $1,000,000 or a whole
multiple of $500,000 in excess thereof into Base Rate Loans that are Revolving
Credit Loans, (c) upon the expiration of any Interest Period, continue any LIBOR
Rate Loan denominated in any Permitted Currency (other than Finnish Marks) in a
principal amount of $10,000,000 or any whole multiple of $1,000,000 in excess
thereof (or with respect to LIBOR Rate Loans denominated in an Alternative
Currency other than Finnish Marks, the Alternative Currency Amount in each case
thereof) as a LIBOR Rate Loan in the same Permitted Currency or (d) upon the
expiration of any Interest Period, continue any LIBOR Rate Loan denominated in
Finnish Marks in a principal Alternative Currency Amount of $2,000,000 or any
whole multiple of $100,000 in excess thereof as a LIBOR Rate Loan in Finnish
Marks. Whenever any Borrower or Borrowers desire to convert or continue Loans as
provided above, such Borrower or Borrowers shall give the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit D (a "Notice of
Conversion/Continuation") not later than 11:00 a.m. (Charlotte time) four (4)
Business Days (with respect to any Loan denominated in an Alternative Currency)
and three (3) Business Days (with respect to any Loan denominated in Dollars)
before the day on which a proposed conversion or continuation of such Loan is to
be effective specifying (A) the Loans to be converted or continued, and, in the
case of any LIBOR Rate Loan to be converted or continued, the Permitted Currency
in which such Loan is denominated and the last day of the Interest Period
therefor, (B) the effective date of such conversion or continuation (which shall
be a Business Day), (C) the principal amount of such Loans to be converted or
continued, and (D) the Interest Period to be applicable to such converted or
continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the
Lenders of such Notice of Conversion/Continuation.
<PAGE>
SECTION 3.3 Fees.
(a) Facility Fee. The Borrowers shall pay to the Administrative Agent,
for the account of the Lenders, a non-refundable facility fee at a rate per
annum equal to the applicable percentage set forth below in this Section 3.3(a)
on the amount of the Aggregate Commitment. The facility fee shall be payable in
arrears on the last Business Day of each fiscal quarter during the term of this
Agreement commencing June 30, 1997, and on the Credit Facility Termination Date.
Such facility fee shall be distributed by the Administrative Agent to the
Lenders pro rata in accordance with the Lenders' respective Commitment
Percentages. The facility fee rate shall:
(i) for the period commencing on the Closing Date and ending
on the date immediately preceding the fifth (5th) Business Day
following receipt by the Administrative Agent of the Consolidated
financial statements of BREED for the fiscal quarter ending March 31,
1997 and the accompanying Officer's Compliance Certificate, be
determined based on the Leverage Ratio set forth in the Financial
Condition Certificate delivered pursuant to Section 4.2(e)(ii) in
accordance with the chart below;
(ii) for the period commencing on the fifth (5th) Business Day
following receipt by the Administrative Agent of the Consolidated
financial statements of BREED for the fiscal quarter ending June 30,
1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio of BREED and its
Subsidiaries as of the end of the fiscal quarter immediately preceding
the delivery of the applicable Officer's Compliance Certificate in
accordance with the chart below:
Leverage Ratio Facility Fee Rate
Greater than 3.25 0.300%
Less than or equal
to 3.25 and greater
than 3.00 0.300%
Less than or equal
to 3.00 and greater
<PAGE>
than 2.50 0.250%
less than or equal
to 2.50 but greater
than 2.00 0.250%
less than or equal
to 2.00 0.200%
Adjustments, if any, in the facility fee rate shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment Date")
after receipt by the Administrative Agent of quarterly financial statements for
BREED and its Subsidiaries and the accompanying Officer's Compliance Certificate
setting forth the Leverage Ratio of BREED and its Subsidiaries as of the most
recent fiscal quarter end. In the event the Borrowers fail to deliver such
financial statements and certificate within the time required by Section 6.2
hereof, the facility fee rate shall be the highest facility fee rate set forth
above until the delivery of such financial statements and certificate.
Notwithstanding anything to the contrary contained herein, in the event
the Interest Coverage Ratio (as determined pursuant to Section 8.3 of this
Agreement) is less than 3.00 to 1.00 during the applicable period set forth in
such Section 8.3, the Facility Fee Rate set forth in this Section 3.3 shall be
deemed to be .300%.
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring, syndicating and arranging the Loans and
for its obligations hereunder, the Borrowers agree to pay to the Administrative
Agent, for its sole account, the fees set forth in the separate fee letter
agreement executed by BREED and the Administrative Agent dated March 18, 1997.
SECTION 3.4 Manner of Payment.
(a) Loans Denominated in Dollars. Each payment (including repayments
described in Article II) by any Borrower on account of the principal of or
interest on the Loans denominated in Dollars or of any fee, commission or other
amounts payable to the Lenders under this Agreement or any Note (except as set
forth in Section 3.4(b)) shall be made in Dollars not later than 1:00 p.m.
(Charlotte time) on the date specified for payment under this
<PAGE>
Agreement to the Administrative Agent at the Administrative Agent's Office for
the account of the Lenders pro rata in accordance with their respective
Commitment Percentages in immediately available funds and shall be made without
any set-off, counterclaim or deduction whatsoever. Any payment received after
such time but before 2:00 p.m. (Charlotte time) on such day shall be deemed a
payment on such date for the purposes of Section 11.1, but for all other
purposes shall be deemed to have been made on the next succeeding Business Day.
Any payment received after 2:00 p.m. (Charlotte time) shall be deemed to have
been made on the next succeeding Business Day for all purposes.
(b) Loans Denominated in Alternative Currencies. Each payment
(including repayments described in Article II) by any A/C Borrower on account of
the principal of or interest on the Loans denominated in any Alternative
Currency shall be made in such Alternative Currency not later than 12:00 noon
(the time of the Administrative Agent's Correspondent) on the date specified for
payment under this Agreement to the Administrative Agent's account with the
Administrative Agent's Correspondent for the account of the Lenders pro rata in
accordance with their respective Commitment Percentages (or, with respect to
Finnish Mark Loans, for the account of the Finnish Mark Lenders pro rata in
accordance with their respective Finnish Mark Commitment Percentages) in
immediately available funds, and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 1:00
p.m. (the time of the Administrative Agent's Correspondent) on such day shall be
deemed a payment on such date for the purposes of Section 11.1, but for all
other purposes shall be deemed to have been made on the next succeeding Business
Day. Any payment received after 1:00 p.m. (the time of the Administrative
Agent's Correspondent) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each Lender or
Finnish Mark Lender, as applicable, at its address for notices set forth herein
its pro rata share of such payment in accordance with the Commitment Percentage
of such Lender or Finnish Mark Commitment Percentage of such Finnish Mark
Lender, as applicable, and shall wire advice of the amount of such credit to
each Lender or each Finnish Mark Lender, as applicable. Each payment to the
Administrative Agent of the Swingline Lender's fees or commissions shall be made
in like manner, but for the account of the Swingline Lender. Each payment to the
Administrative Agent of
<PAGE>
Administrative Agent's fees or expenses shall be made for the account of the
Administrative Agent and any amount payable to any Lender under Sections 3.10,
3.11, 3.12, 3.13, 12.2, and 13.2 shall be paid to the Administrative Agent for
the account of the applicable Lender or Finnish Mark Lender. Subject to Section
3.1(b)(ii), if any payment under this Agreement or any Note shall be specified
to be made upon a day which is not a Business Day, it shall be made on the next
succeeding day which is a Business Day and such extension of time shall in such
case be included in computing any interest if payable along with such payment.
SECTION 3.5 Crediting of Payments and Proceeds. In the event that any
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied to all expenses then due and
payable by the Borrowers hereunder, then to all indemnity obligations then due
and payable by the Borrowers hereunder, then to all Administrative Agent's fees
then due and payable, then to all commitment and other fees and commissions then
due and payable, then to accrued and unpaid interest on the Swingline Note to
the Swingline Lender, then to the principal amount outstanding under the
Swingline Note to the Swingline Lender, then to the principal amount outstanding
and accrued and unpaid interest on the Finnish Mark Notes, then to accrued and
unpaid interest on the Revolving Credit Notes, then to the principal amount of
the Revolving Credit Notes, then to any termination payments due in respect of a
Hedging Agreement with any Lender permitted pursuant to Section 9.1 (pro-
rata in accordance with all such amounts due), in that order.
SECTION 3.6 Adjustments.
(a) If any Lender (a "Benefitted Lender") shall at any time receive any
payment of all or part of its Revolving Credit Loans, or interest thereon, or if
any Lender shall at any time receive any collateral in respect to its Revolving
Credit Loans (whether voluntarily or involuntarily, by set-off or otherwise) in
a greater proportion than any such payment to and collateral received by any
other Lender, if any, in respect of such other Lender's Revolving Credit Loans,
or interest thereon, such Benefitted Lender shall purchase for cash from the
other Lenders such portion of each such other Lender's Revolving Credit Loans,
or shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefitted Lender to
<PAGE>
share the excess payment or benefits of such collateral or proceeds ratably with
each of the Lenders; provided, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned to the extent
of such recovery, but without interest. The Borrowers agree that each Lender so
purchasing a portion of another Lender's Revolving Credit Loans may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
(b) If any Finnish Mark Lender (a "Benefitted Finnish Mark Lender")
shall at any time receive any payment of all or part of its Finnish Mark Loans,
or interest thereon, or if any Finnish Mark Lender shall at any time receive any
collateral in respect to its Finnish Mark Loans (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Finnish Mark Lender, if any, in
respect of such other Finnish Mark Lender's Finnish Mark Loans, or interest
thereon, such Benefitted Finnish Mark Lender shall purchase for cash from the
other Finnish Mark Lenders such portion of each such other Finnish Mark Lender's
Finnish Mark Loans, or shall provide such other Finnish Mark Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Finnish Mark Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Finnish Mark
Lenders; provided, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Finnish Mark Lender, such purchase
shall be rescinded, and the purchase price and benefits returned to the extent
of such recovery, but without interest. The Borrowers agree that each Finnish
Mark Lender so purchasing a portion of another Finnish Mark Lender's Finnish
Mark Loans may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
SECTION 3.7 Nature of Obligations of Lenders Regarding Loans;
Assumption by the Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans are several and are not joint or joint and
several. Unless the Administrative Agent shall have received notice from a
Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
amount to be borrowed on such date (which notice shall not release such
<PAGE>
Lender of its obligations hereunder), the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
proposed borrowing date in accordance with Section 2.4(b) and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower or Borrowers on such date a corresponding amount. If such amount is
made available to the Administrative Agent on a date after such borrowing date,
such Lender or Finnish Mark Lender, as applicable, shall pay to the
Administrative Agent on demand an amount, until paid, equal to (a) with respect
to a Loan denominated in Dollars, the amount of such Lender's Commitment
Percentage of such borrowing and interest thereon at a rate equal to the daily
average Federal Funds Rate during such period as determined by the
Administrative Agent, (b) with respect to an Alternative Currency Loan (other
than Finnish Mark Loans), such Lender's Commitment Percentage of such borrowing
at a rate per annum equal to the Administrative 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 the Administrative Agent as a result of the failure to deliver funds
hereunder) of carrying such amount and (c) with respect to a Finnish Mark Loan,
such Finnish Mark Lender's Finnish Mark Commitment Percentage of such borrowing
at a rate per annum equal to the Administrative 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 the Administrative Agent as a result of the failure to deliver funds
hereunder) of carrying such amount. A certificate of the Administrative Agent
with respect to any amounts owing under this Section 3.7 shall be conclusive,
absent manifest error. If the Commitment Percentage of such Lender or the
Finnish Mark Commitment Percentage of such Finnish Mark Lender, as applicable,
of such borrowing is not made available to the Administrative Agent by such
Lender or Finnish Mark Lender, as applicable, within three (3) Business Days of
such borrowing date, the Administrative Agent shall be entitled to recover such
amount made available by the Administrative Agent with interest thereon at the
rate then applicable to such Loan hereunder, on demand, from the applicable
Borrower or Borrowers. The failure of any Lender or Finnish Mark Lender, as
applicable, to make its Commitment Percentage or Finnish Mark Commitment
Percentage, as applicable, of any Loan available shall not relieve it or any
other Lender or Finnish Mark Lender, as applicable, of its obligation, if any,
hereunder to make its Commitment Percentage or Finnish Mark Commitment
Percentage, as applicable, of such Loan available on
<PAGE>
such borrowing date, but no Lender or Finnish Mark Lender, as applicable, shall
be responsible for the failure of any other Lender or Finnish Mark Lender, as
applicable, to make its Commitment Percentage or Finnish Mark Commitment
Percentage, as applicable, of such Loan available on the borrowing date.
SECTION 3.8 Mandatory Redenomination of Alternative Currency Loans.
(a) If any LIBOR Rate Loan is required to be converted to a Base Rate
Loan pursuant to Sections 2.2, 3.1(d), 3.10 or any other applicable provision
hereof, such Loan shall be funded in Dollars in an amount equal to the Dollar
Amount of such Loan, all subject to the provisions of Section 2.5(b). The
applicable Borrower or Borrowers shall reimburse the Lenders or Finnish Mark
Lenders, as applicable, upon any such conversion for any amounts required to be
paid under Section 3.11.
(b) If any Alternative Currency becomes unavailable to any Lender for
any reason (including, without limitation, any conversion, discontinuation or
replacement of such currency arising out of or in connection with any event
associated with economic and monetary union in the European Community) all
outstanding Loans in such Alternative Currency shall be immediately
redenominated and converted into Dollars in an amount equal to the Dollar Amount
of such Loan, all subject to the provisions of Section 2.5(b).
SECTION 3.9 Regulatory Limitation. In the event, as a result of
increases in the value of Alternative Currencies against the Dollar or for any
other reason, the obligation of any of the Lenders to make Loans (taking into
account the Dollar Amount of the Obligations and all other indebtedness required
to be aggregated under 12 U.S.C.A. ss.84, as amended, the regulations
promulgated thereunder and any other Applicable Law) is determined by such
Lender to exceed its then applicable legal lending limit under 12 U.S.C.A.
ss.84, as amended, and the regulations promulgated thereunder, or any other
Applicable Law, the amount of additional Loans such Lender shall be obligated to
make or issue or participate in hereunder shall immediately be reduced to the
maximum amount which such Lender may legally advance (as determined by such
Lender), the obligation of each of the remaining Lenders hereunder shall be
proportionately reduced, based on their applicable Commitment Percentages or
Finnish Mark Commitment Percentages, as applicable, and, to the extent necessary
under such laws and regulations (as determined by each of the Lenders, with
<PAGE>
respect to the applicability of such laws and regulations to itself), the
Borrowers shall reduce, or cause to be reduced, complying to the extent
practicable with the remaining provisions hereof, the Obligations outstanding
hereunder by an amount sufficient to comply with such maximum amounts.
SECTION 3.10 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate and Alternative Currency
Availability. If with respect to any Interest Period the Administrative Agent or
any Lender (after consultation with the Administrative Agent) shall determine
that (i) by reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars or an Alternative Currency in the
applicable amounts are not being quoted via Telerate Page 3750 or offered to the
Administrative Agent or such Lender for such Interest Period, (ii) a fundamental
change has occurred in the foreign exchange or interbank markets with respect to
any Alternative Currency (including, without limitation, changes in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls) or (iii) it has become otherwise materially
impractical for the Administrative Agent or the Lenders to make such Loan in an
Alternative Currency, then the Administrative Agent shall forthwith give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such circumstances no longer exist, the obligation of the
Lenders to make LIBOR Rate Loans or Alternative Currency Loans, as applicable,
and the right of the Borrowers to convert any Loan to or continue any Loan as a
LIBOR Rate Loan or to convert any Loan to or continue any Loan as an Alternative
Currency Loan, as applicable, shall be suspended, and the applicable Borrower or
Borrowers shall repay in full (or cause to be repaid in full) the then
outstanding principal amount of each such LIBOR Rate Loan or Alternative
Currency Loan, as applicable, together with accrued interest thereon, on the
last day of the then current Interest Period applicable to such LIBOR Rate Loan
or Alternative Currency Loan, as applicable, or convert the then outstanding
principal amount of each such LIBOR Rate Loan or Alternative Currency Loan, as
applicable, to a Base Rate Loan as of the last day of such Interest Period.
<PAGE>
(b) Laws Affecting LIBOR Rate and Alternative Currency Availability.
If, after the date hereof, the introduction of, or any change in, any Applicable
Law or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any of
their respective Lending Offices) with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the Lenders
(or any of their respective Lending Offices) to honor its obligations hereunder
to make or maintain any LIBOR Rate Loan or any Alternative Currency Loan, such
Lender shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrowers and the other
Lenders. Thereafter, until the Administrative Agent notifies the Borrowers that
such circumstances no longer exist, (i) the obligations of the Lenders to make
LIBOR Rate Loans or Alternative Currency Loans, as applicable, and the right of
the Borrowers to convert any Loan to or continue any Loan as a LIBOR Rate Loan
or convert any Loan to or continue any Loan as an Alternative Currency Loan, as
applicable, shall be suspended and thereafter the Borrowers may select only Base
Rate Loans denominated in Dollars hereunder, and (ii) if any of the Lenders may
not lawfully continue to maintain a LIBOR Rate Loan or an Alternative Currency
Loan, as applicable, to the end of the then current Interest Period applicable
thereto as a LIBOR Rate Loan or as an Alternative Currency Loan, as applicable,
the applicable LIBOR Rate Loan or Alternative Currency Loan shall immediately be
converted to a Base Rate Loan for the remainder of such Interest Period
(provided that the Borrower and the Lenders shall enter into good faith
negotiations promptly upon such conversion to determine a new interest rate
index similar to that applicable to LIBOR Rate Loans).
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with
<PAGE>
respect to any LIBOR Rate Loans, Alternative Currency Loans or any Note or shall
change the basis of taxation of payments to any of the Lenders (or any of their
respective Lending Offices) of the principal of or interest on any LIBOR Rate
Loan, any Alternative Currency Loan 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 of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); or
(ii) 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, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
LIBOR Rate Loan, any Alternative Currency Loan or any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or any Alternative Currency Loan, as
applicable, or to reduce the yield or amount of any sum received or receivable
by any of the Lenders under this Agreement or under the Notes in respect of a
LIBOR Rate Loan or an Alternative Currency Loan, as applicable, then such Lender
shall, within ninety (90) days thereafter, notify the Administrative Agent, and
the Administrative Agent shall promptly notify the Borrowers of such fact and
demand compensation therefor and, within fifteen (15) days after such notice by
the Administrative Agent, the applicable Borrower or Borrowers shall pay to such
Lender such additional amount or amounts as will compensate such Lender or
Lenders for such increased cost or reduction. The Administrative Agent will
promptly notify the Borrowers of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 3.10(c); provided,
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrowers in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans or Alternative Currency Loans, as applicable, in the London interbank
market and using any reasonable attribution or averaging
<PAGE>
methods which such Lender deems appropriate and practical. A certificate of such
Lender setting forth the basis for determining such amount or amounts necessary
to compensate such Lender shall be forwarded to the Borrowers through the
Administrative Agent and shall be presumed to be correct save for manifest error
or reasonable evidence to the contrary.
SECTION 3.11 Indemnity. The applicable Borrower or Borrowers hereby
indemnify each of the Lenders against any loss or expense (including, without
limitation, any foreign exchange costs) which may arise or be attributable to
each Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain any Loan (a) as a consequence of any
failure by such Borrower or Borrowers to make any payment when due of any amount
due hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of
such Borrower or Borrowers to borrow on a date specified therefor in a Notice of
Borrowing or Notice of Continuation/Conversion or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan on a date other than the last
day of the Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrowers through the Administrative Agent and shall be presumed to be correct
save for manifest error or reasonable evidence to the contrary.
SECTION 3.12 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which the Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrowers shall pay to such Lender
from time to time as specified by such Lender
<PAGE>
additional amounts sufficient to compensate such Lender or other corporation for
such reduction. A certificate as to such amounts submitted to the Borrowers and
the Administrative Agent by such Lender, shall, in the absence of manifest error
or reasonable evidence to the contrary, be presumed to be correct and binding
for all purposes.
SECTION 3.13 Taxes.
(a) Payments Free and Clear.
(i) Any and all payments by the Borrowers hereunder
or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect
thereto (including, without limitation, all claims, penalties, costs
and expenses resulting from any failure to withhold or pay, or any
delay in withholding or paying, any of the foregoing amounts)
excluding, (A) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws
of which such Lender or the Administrative Agent (as the case may be)
is organized or is or should be qualified to do business or any
political subdivision thereof (it being expressly acknowledged by the
Borrowers that each Agent and each Lender shall not be required to be
or become qualified, for purposes of this Section 3.13(a) or for any
other Section of this Agreement, to do business in any specific
jurisdiction or any political subdivision thereof) and (B) in the case
of each Lender, income and franchise taxes imposed by the jurisdiction
of such Lender's Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes").
(ii) If any Borrower shall be required by law to
deduct or withhold (A) any Taxes payable to any Governmental Authority
other than the United States Internal Revenue Service from or in
respect of any sum payable hereunder or under any Note to any Lender or
the Administrative Agent or (B) any Taxes payable to the United States
Internal Revenue Service from or in respect of any sum payable
hereunder or under any Note to any Lender organized under the laws of a
jurisdiction other than the United States, subject to the
<PAGE>
United States Internal Revenue Service Form 4224 or Form 1001 (as
applicable and the Internal Revenue Service Form W-8 or W- 9 (as
applicable) previously delivered to the Administrative Agent, then, in
either such event, (1) the sum payable shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions or withholdings applicable to additional sums
payable under this Section 3.13) such Lender or the Administrative
Agent (as the case may be) receives an amount equal to the amount such
party would have received had no such deductions or withholdings been
made, (2) such Borrower shall make such deductions or withholdings, (3)
such Borrower shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with
applicable law, and (4) such Borrower shall deliver to the
Administrative Agent evidence of such payment to the relevant taxing
authority or other authority in the manner provided in Section 3.13(d).
If, for any reason, any Borrower or Borrowers do not pay or remit such
Taxes or do not for any reason pay any additional sums payable to any
Lender or any Agent under this Section 3.13, the interest payable by
such Borrower or Borrowers under this Agreement will be increased to
the rate or rates necessary to yield and remit to such Lender or Agent
the principal sum advanced together with interest at the applicable
rate or rates specified in this Agreement after provision for payment
of such Taxes. The Borrowers shall, from time to time, execute and
deliver any and all further documents as may be necessary or advisable
to give full force and effect to such increase in the rate or rates of
interest.
Each Lender agrees that if it subsequently recovers, or receives a net
tax benefit with respect to, any amount of Taxes (i) previously paid by it and
as to which it has been indemnified by or on behalf of the Borrowers or (ii)
previously deducted or withheld by the Borrowers, such Lender shall reimburse
the Borrowers to the extent of the amount of any such recovery or permanent net
tax benefit (but only to the extent of indemnity payments made, or additional
amounts paid, by or on behalf of the Borrowers under this Section 3.13(a) with
respect to Taxes giving rise to such recovery or tax benefit); provided,
however, that the Borrowers, upon the request of such Lender, agree to repay to
such Lender the amount paid over to the Borrowers (together with any penalties,
interest or other charges), in the event such Lender is required to repay such
amount to the relevant taxing authority or other Governmental Authority. The
determination by any Lender of the
<PAGE>
amount of any such recovery or net tax benefit shall, in the absence of manifest
error or reasonable evidence to the contrary, be conclusive and binding.
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.13) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the affected Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 3.13 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 3.14 Replacement Lenders.
(a) Affected Lender. If (i) any Lender requests compensation
pursuant to Section 3.10(c), 3.12 or 3.13(a)(ii)(B) or (ii) the
obligation of the Lenders to make LIBOR Rate Loans or to continue,
<PAGE>
or to convert Base Rate Loans into, LIBOR Rate Loans shall be suspended pursuant
to Section 3.10(a) or (b) due to an event affecting any Lender, then, so long as
there does not then exist any Default or Event of Default, the Borrowers may
demand that such Lender (the "Affected Lender"), and upon such demand the
Affected Lender shall promptly, assign its Commitment (and Finnish Mark
Commitment, if applicable) to an Eligible Assignee selected by the Borrowers
(which Eligible Assignee shall have consented to such assignment), subject to
and in accordance with Section 13.10(b), for a purchase price equal to the
Dollar Amount of the aggregate principal amount of the Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon, accrued but unpaid
fees and any other amounts owing to the Affected Lender hereunder. The
Administrative Agent shall cooperate in effectuating the replacement of an
Affected Lender under this Section 3.14(a), but at no time shall the
Administrative Agent be obligated in any way whatsoever to initiate any such
replacement. The exercise by the Borrowers of their rights under this Section
3.14(a) shall be at the Borrowers' sole cost and expense, and at no cost or
expense of the Administrative Agent, the Affected Lender or any of the other
Lenders.
(b) Failed Lender. In the event any Lender shall fail to meet any of
its obligations under Sections 2.1, 2.2, 2.3 or 2.4 (a "Failed Lender"), the
Borrowers may demand that the Failed Lender, and upon such demand the Failed
Lender shall promptly, assign its Commitment (and Finnish Mark Commitment, if
applicable) to an Eligible Assignee selected by the Borrowers (which Eligible
Assignee shall have consented to such assignment), subject to and in accordance
with Section 13.10(b), for a purchase price equal to the Dollar Amount of the
aggregate principal amount of the Loans then owing to the Failed Lender plus any
accrued but unpaid interest thereon, accrued but unpaid fees and any other
amounts owing to the Failed Lender hereunder. The Administrative Agent shall
cooperate in effectuating the replacement of a Failed Lender under this Section
3.14(b), but at no time shall the Administrative Agent be obligated in any way
whatsoever to initiate any such replacement. The exercise by the Borrowers of
their rights under this Section 3.14(b) shall be at the Borrowers' sole cost and
expense, and at no cost or expense of the Administrative Agent, the Affected
Lender or any of the other Lenders.
<PAGE>
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, L.L.P., 100 North Tryon Street, Suite 4200,
Charlotte, North Carolina 28202 at 10:00 a.m. on April __, 1997, or on such
other date as the parties hereto
shall mutually agree.
SECTION 4.2 Conditions to Closing and Initial Loans. The obligation of
the Lenders to close this Agreement and to make the initial Loan is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents,
in form and substance satisfactory to the Administrative Agent and
each Lender:
(i) this Agreement;
(ii) the 364-Day Credit Agreement;
(iii) the Revolving Credit Notes;
(iv) the Finnish Mark Notes;
(v) the Swingline Note;
(vi) the Pledge Agreements; and
(vii) the Subsidiary Guaranty Agreement;
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default or event of default shall exist
thereunder, and the Borrowers shall have delivered original counterparts thereof
to the Administrative Agent. Notwithstanding the foregoing, in the event
Applicable Laws or practices in the foreign jurisdictions set forth on Schedule
4.2(a) attached hereto preclude or prevent the completion of a Pledge Agreement
on or prior to the Closing Date, the Borrower shall not be required to deliver
the Pledge Agreements set forth on Schedule 4.2(a) attached hereto on the
Closing Date; provided that the Borrower shall deliver the Pledge Agreements set
forth on
<PAGE>
Schedule 4.2(a) attached hereto as soon as possible after the Closing Date and,
in any event, within ninety (90) days of the Closing Date.
(b) Closing Certificates; etc.
(i) Officers's Certificate of the Borrowers. The Administrative Agent shall
have received a signed certificate from the chief executive officer or chief
financial officer of BREED, in form and substance satisfactory to the
Administrative Agent, to the effect that to the best of such officer's knowledge
all representations and warranties of the Borrowers contained in this Agreement
and the other Loan Documents are true, correct and complete; that the Borrowers
are not in violation of any of the covenants contained in this Agreement and the
other Loan Documents; that, after giving effect to the transactions contemplated
by this Agreement, no Default or Event of Default has occurred and is
continuing; and that the Borrowers have satisfied each of the closing
conditions.
(ii) Certificate of Secretary of each Loan Party. The Administrative Agent
shall have received a signed certificate of the secretary or assistant secretary
of each Loan Party certifying that attached thereto is a true and complete copy
of the articles of incorporation or other charter documents of such Loan Party
and all amendments thereto, certified as of a recent date by the appropriate
Governmental Authority in its jurisdiction of incorporation; that attached
thereto is a true and complete copy of the bylaws of such Loan Party as in
effect on the date of such certification; that, with respect to each Borrower
and each Subsidiary Guarantor, attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of such Borrower or such
Subsidiary Guarantor authorizing the borrowings contemplated hereunder and the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party; and, with respect to each Borrower and each
Subsidiary Guarantor, as to the incumbency and genuineness of the signature of
each officer of such Borrower or such Subsidiary Guarantor executing Loan
Documents to which it is a party. Notwithstanding the foregoing, to the extent
any such organizational documents described in this subsection (b)(ii) cannot be
provided due to their unavailability under the Applicable Laws or practices in
the foreign jurisdictions set forth on Schedule 4.2(b) attached hereto, the
applicable Borrower shall not be required to deliver such organizational
documents but shall deliver such evidence of its due
<PAGE>
incorporation and valid existence as shall be required in the reasonable
discretion of the Administrative Agent.
(iii) Certificates of Good Standing. The Administrative Agent shall
have received certificates as of a recent date of the good standing of each
Borrower and Subsidiary Guarantor under the laws of their respective
jurisdictions of organization and each other jurisdiction where such Borrower or
such Subsidiary Guarantor is qualified to do business. Notwithstanding the
foregoing, to the extent any such certificates described in this subsection
(b)(iii) cannot be provided due to their unavailability under the Applicable
Laws or practices in the foreign jurisdictions set forth on Schedule 4.2(b)
attached hereto, the applicable Borrower shall not be required to deliver such
certificates but shall deliver such evidence of its qualification to do business
in such jurisdiction as shall be required in the reasonable discretion of the
Administrative Agent.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of United States, United Kingdom, Italian, German,
Finnish, and Canadian counsel to the Loan Parties addressed to the
Administrative Agent and the Lenders with respect to the Loan Parties, the Loan
Documents and such other matters as the Lenders shall request, each in form and
substance satisfactory to the Administrative Agent and the Lenders.
(c) Collateral.
(i) Pledged Stock or Equivalent Security. The Administrative
Agent shall have received, as applicable, original stock certificates or other
equivalent security interest (or the equivalent taking into account the
Applicable Laws and practices of any relevant foreign jurisdiction) of each A/C
Borrower and each Material Subsidiary evidencing the capital stock pledged
pursuant to the Pledge Agreements executed by the applicable A/C Borrower or
Material Subsidiary, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner thereof.
(ii) Filings and Recordings. All filings, recordations, and any
other actions that are necessary to perfect the security interests of the
Lenders in the Collateral described in the Pledge Agreements shall have been
filed in all appropriate locations and the Administrative Agent shall have
received evidence satisfactory
<PAGE>
to the Administrative Agent that such security interests constitute valid and
perfected first priority Liens therein.
(iii) Foreign Security Interests and Filings. Notwithstanding the
provisions of the foregoing subsections (c)(i) and (c)(ii), with regard to any
Foreign Subsidiary whose stock is to be pledged hereunder, the Borrowers may
evidence their compliance with such subsections by providing a perfected first
priority security interest (or the equivalent thereof pursuant to the Applicable
Laws and practices of any relevant foreign jurisdiction) in the relevant indicia
of ownership of such Foreign Subsidiary; provided that the Borrowers shall
provide an opinion of counsel in form and substance satisfactory to the
Administrative Agent as to the perfection, validity and binding nature of the
security interest so obtained. Moreover, in the event Applicable Laws or
practices in the foreign jurisdictions set forth on Schedule 4.2(a) attached
hereto preclude or prevent the completion of documentation evidencing the
security interest referenced in subsection (c)(i) or the filing and recording
referenced in subsection (c)(ii) on or prior to the Closing Date, the Borrower
shall not be required to have completed and obtained the security interests,
filings and recordings set forth on Schedule 4.2(a) attached hereto on the
Closing Date; provided that the Borrower shall complete and obtain the security
interests, filings and recordings set forth on Schedule 4.2(a) attached hereto
as soon as possible after the Closing Date and, in any event, within ninety (90)
days of the Closing Date.
(iv) Insurance. The Administrative Agent shall have received the
schedule of insurance as set forth on Schedule 4.2(c) in the form required under
Section 7.3 and otherwise in form and substance satisfactory to the
Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. All necessary
approvals, authorizations and consents, if any are required, of any Person and
of all Governmental Authorities and courts having jurisdiction with respect to
the transactions contemplated by this Agreement and the other Loan Documents
shall have been obtained.
(ii) Permits and Licenses. All permits and licenses,
including permits and licenses required under Applicable Laws, the
absence of which would have a Material Adverse Effect on the
<PAGE>
current conduct of business by the Borrowers and their Subsidiaries, shall have
been obtained.
(iii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been institut ed, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iv) No Material Adverse Change. There shall not have occurred any
material adverse change in the condition (financial or otherwise), operations,
properties, business or prospects of the Borrowers and their Subsidiaries taken
as a whole, or any event or condition that has had or could be reasonably
expected to have a Material Adverse Effect.
(v) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of BREED and
its Subsidiaries, all in form and substance satisfactory to the Administrative
Agent and prepared in accordance with GAAP.
(ii) Financial Condition Certificate. BREED shall have delivered to
the Administrative Agent a certificate, in form and substance satisfactory to
the Administrative Agent, and certified as accurate by the chief executive
officer or chief financial officer of BREED, that (A) BREED and each of its
Subsidiaries are each Solvent, (B) the payables of BREED and each of its
Subsidiaries are current and not past due, (C) attached thereto is a pro forma
balance sheet of BREED and its Subsidiaries setting forth on a pro forma basis
the financial condition of BREED and its Subsidiaries on a Consolidated basis as
of March 31, 1997, reflecting on a pro forma basis the effect of the
transactions contemplated herein, including all fees and expenses in connection
therewith; evidencing compliance on a pro forma basis with the
<PAGE>
covenants contained in Articles VIII and IX hereof; and setting forth the pro
forma calculation of the Applicable Margin pursuant to Section 3.1(c) and (D)
attached thereto are the financial projections previously delivered to the
Administrative Agent representing the good faith opinions of BREED and senior
management thereof as to the projected results contained therein.
(iii) Payment at Closing. There shall have been paid by the
Borrowers to the Administrative Agent and the Lenders the fees set forth or
referenced in Section 3.3 and any other accrued and unpaid fees or commissions
due hereunder (including, without limitation, legal fees and expenses), and to
any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrowers in accordance with Section
2.4(a), and a written notice in the form attached hereto as Exhibit G (a "Notice
of Account Designation") specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be disbursed.
(ii) Proceedings and Documents. Subject to the provisions of
Section 4.2(a) and (c) relating to the effects of Applicable Laws or practices
in foreign jurisdictions, all opinions, certificates and other instruments and
all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in all material respects in form and substance
to the Lenders. The Lenders shall have received copies of all other instruments
and other evidence as any Lender may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. The Loan Parties
shall have delivered to the Administrative Agent such other
documents, certificates and opinions as the Administrative Agent
reasonably requests.
(g) Termination of the Existing Credit Agreement. On the
Closing Date hereunder, all loans under the Existing Credit
<PAGE>
Agreement shall be repaid in full and the commitments and other obligations and
rights of the lenders thereunder shall be terminated.
SECTION 4.3 Conditions to All Loans. The obligation of any Lender to
make any Loan (subject to Section 2.3(b) with respect to refunding or
participating in Swingline Loans) hereunder is subject to the satisfaction of
the following conditions precedent on the relevant borrowing or issue date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in the Loan Documents (other than the representations
and warranties made only as of a specific date) shall be true and correct with
the same effect as though such representations and warranties had been made on
and as of such borrowing date, except to the extent that such representations
and warranties are no longer true or correct as a result of events, actions,
transactions or occurrences after the Closing Date which are permitted under the
terms of this Agreement.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on the borrowing date with respect to such
Loan or after giving effect to the Loans to be made on such date.
(c) Officer's Compliance Certificate; Additional Documents. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
SECTION 5.1 Representations and Warranties. To induce the
Administrative Agent to enter into this Agreement and the Lenders to make the
Loans, the Borrowers hereby represent and warrant to the Administrative Agent
and Lenders that:
(a) Organization; Power; Qualification. Each of BREED and
its Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its properties and to
<PAGE>
carry on its business as now being and hereafter proposed to be conducted and is
duly qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization, except where the failure to be so qualified and
authorized would not have a Material Adverse Effect. The jurisdictions in which
BREED and its Subsidiaries are organized and qualified to do business are
described on Schedule 5.1(a).
(b) Ownership. The capitalization of BREED and its Subsidiaries as of
the Closing Date consists of the number of shares or other ownership interests,
authorized, issued and outstanding, of such classes and series, with or without
par value, described on Schedule 5.1(b). All outstanding shares have been duly
authorized and validly issued and are fully paid and nonassessable. The
shareholders or owners of the Subsidiaries of BREED and the number of shares or
other ownership interests owned by each as of the Closing Date are described on
Schedule 5.1(b). As of the Closing Date, there are no outstanding stock purchase
warrants, subscriptions, options, securities, instruments or other rights of any
type or nature whatsoever, which are convertible into, exchangeable for or
otherwise provide for or permit the issuance of capital stock or other ownership
interests of BREED or its Subsidiaries, except as described on Schedule 5.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
BREED and its Subsidiaries has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of BREED and each of its Subsidiaries party thereto, and
each such document constitutes the legal, valid and binding obligation of BREED
or such Subsidiary party thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state, provincial or federal debtor relief
laws from time to time in effect which affect the enforcement of creditors'
rights in general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing
with Laws, Etc. The execution, delivery and performance by BREED
and its Subsidiaries of the Loan Documents to which each such
<PAGE>
Person is a party, in accordance with their respective terms, the borrowings
hereunder and the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) to the best of the
Borrowers' knowledge, require any Governmental Approval or violate any
Applicable Law relating to BREED or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute a default under the articles of
incorporation, bylaws or other organizational documents of BREED or any of its
Subsidiaries or any indenture, agreement or other instrument to which such
Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, or (iii) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of BREED and its
Subsidiaries (i) has or is actively pursuing all Governmental Approvals required
by any Applicable Law for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on appeal and is not the
subject of any pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, and (ii) is in compliance with each
Governmental Approval applicable to it and in compliance with all other
Applicable Laws relating to it or any of its respective properties, except where
the failure to so comply would not have, individually or in the aggregate, a
Material Adverse Effect.
(f) Tax Returns and Payments. Each of BREED and its Subsidiaries has
duly filed or caused to be filed all federal, state, provincial, local and other
tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, provincial, local and
other taxes, assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except where the
failure to so file or pay would not have, individually or in the aggregate, a
Material Adverse Effect. No Governmental Authority has asserted any Lien or
other claim against BREED or any Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of BREED and its Subsidiaries in respect of federal, state,
provincial, local and other taxes for all Fiscal Years and portions thereof
since the organization of BREED and its Subsidiaries are in the judgment of
BREED adequate,
<PAGE>
and BREED does not anticipate any additional taxes or assessments
for any of such years.
(g) Intellectual Property Matters. Each of BREED and its Subsidiaries
owns or possesses rights to use all franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights, copyrights and
rights with respect to the foregoing which are required to conduct its business.
No event has occurred which permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such rights, and neither
BREED nor any Subsidiary thereof is liable to any Person for infringement under
Applicable Law with respect to any such rights as a result of its business
operations, except where any such liability would not have, individually or in
the aggregate, a Material Adverse Effect.
(h) Environmental Matters. Subject to certain instances of
non-compliance which would not have, individually or in the
aggregate, a Material Adverse Effect on BREED and its Subsidiaries
taken as a whole:
(i) The properties of BREED and its Subsidiaries do not
contain, and to their knowledge have not previously contained, any Hazardous
Materials in amounts or concentrations which (A) constitute or constituted a
violation of, or (B) could give rise to liability under, applicable
Environmental Laws;
(ii) Such properties and all operations conducted in connection
therewith are in compliance, and have been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about such
properties or such operations which could interfere with the continued operation
of such properties or impair the fair saleable value thereof;
(iii) Neither BREED nor any Subsidiary thereof has received any
notice of violation, alleged violation, noncompliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of their properties or the operations conducted in connection
therewith, nor does BREED or any Subsidiary thereof have knowledge or reason to
believe that any such notice will be received or is being threatened;
<PAGE>
(iv) Hazardous Materials have not been transported or disposed of
from the properties of BREED and its Subsidiaries in violation of, or in a
manner or to a location which could give rise to liability under, Environmental
Laws, nor have any Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of such properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which BREED or any Subsidiary thereof is or will be named
as a party with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to such
properties or such operations; and
(vi) There has been no release, or to the best knowledge of the
Borrowers, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
(i) ERISA. Subject to certain instances of non-compliance which would
not have, individually or in the aggregate, a Material Adverse Effect on BREED
and its Subsidiaries taken as a whole:
(i) Neither BREED nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit
Plans other than those identified on Schedule 5.1(i);
(ii) BREED and each ERISA Affiliate are in compliance with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans except for any required
amendments for which the remedial amendment period as defined in Section 401(b)
of the Code has not yet expired. Each Employee Benefit Plan that is intended to
be qualified under Section 401(a) of the Code has been determined by the
Internal Revenue Service to be so qualified, and each trust related to such plan
has been determined to be exempt under Section 501(a) of the Code. No liability
has been incurred by BREED or any ERISA Affiliate which remains unsatisfied for
any
<PAGE>
taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has BREED or any ERISA Affiliate failed to
make any contributions or to pay any amounts due and owing as required by
Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan
prior to the due dates of such contributions under Section 412 of the Code or
Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
(iv) Neither BREED nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section
406 of the ERISA or Section 4975 of the Code, (B) incurred any liability to the
PBGC which remains outstanding other than the payment of premiums and there are
no premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing
or, to the best knowledge of BREED, threatened concerning or involving any (A)
employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to by BREED or any ERISA Affiliate, (B) Pension Plan
or (C) Multiemployer Plan.
(j) Margin Stock. Neither BREED nor any Subsidiary thereof is engaged
principally or as one of its activities in the business of extending credit for
the purpose of "purchasing" or "carrying" any "margin stock" (as each such term
is defined or used in Regulations G and U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any of the Loans will be
used for purchasing or carrying margin stock or for any purpose
<PAGE>
which violates, or which would be inconsistent with, the provisions of
Regulation G, T, U or X of such Board of Governors.
(k) Government Regulation. Neither BREED nor any Subsidiary thereof is
an "investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither BREED nor any Subsidiary thereof is, or after giving effect
to any Loan will be, subject to regulation under the Public Utility Holding
Company Act of 1935 or the Interstate Commerce Act, each as amended, or any
other Applicable Law which limits its ability to incur or consummate the
transactions contemplated hereby.
(l) Material Contracts. Each Material Contract is, and after
giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in
accordance with the terms thereof.
(m) Employee Relations. Each of BREED and its Subsidiaries has a stable
work force in place and, as of the Closing Date, is not, except as set forth on
Schedule 5.1(m), party to any collective bargaining agreement nor has any labor
union been recognized as the representative of its employees. BREED knows of no
pending, threatened or contemplated strikes, work stoppage or other collective
labor disputes involving its employees or those of its Subsidiaries, except
those which would not have, individually or in the aggregate, a Material Adverse
Effect.
(n) Burdensome Provisions. Neither BREED nor any Subsidiary thereof is
a party to any indenture, agreement, lease or other instrument, or subject to
any corporate or partnership restriction, Governmental Approval or Applicable
Law which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. BREED and its
Subsidiaries do not presently anticipate that future expenditures needed to meet
the provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(o) Financial Statements. The (i) audited Consolidated balance sheets
of BREED and its Subsidiaries as of June 30, 1996 and the related audited
statements of income, retained earnings and cash flows for the Fiscal Year then
ended and (ii) unaudited Consolidated balance sheet of BREED and its
Subsidiaries as of December 31, 1996 and related unaudited statements of income,
<PAGE>
retained earnings and cash flows, copies of which have been furnished to the
Administrative Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position of BREED and its
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. BREED and its Subsidiaries have no Debt, obligation or
other unusual forward or long-term commitment which is not fairly reflected in
the foregoing financial statements or in the notes thereto.
(p) No Material Adverse Change. Since June 30, 1996, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of BREED and its Subsidiaries and no event
has occurred or condition arisen that could reasonably be expected to have a
Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Loan made hereunder, BREED and its Subsidiaries taken as a whole will be
Solvent.
(r) Titles to Properties. Each of BREED and its Subsidiaries has such
title to the real property owned or leased by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its personal
property and assets, including, but not limited to, those reflected on the
balance sheets of BREED and its Subsidiaries delivered pursuant to Section
5.1(o), except those which have been disposed of by BREED or its Subsidiaries
subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of BREED or any Subsidiary
thereof is subject to any Lien, except Liens permitted pursuant to Section 9.3.
No financing statement or application for registration under the Uniform
Commercial Code of any state or personal property security legislation as to
registration of security on movable property of any other jurisdiction which
names BREED or any Subsidiary thereof or any of their respective trade names or
divisions as debtor or grantor and which has not been terminated, has been filed
in any state or other jurisdiction and neither BREED nor any Subsidiary thereof
has signed any such financing statement or application for registration or any
security
<PAGE>
agreement authorizing any secured party thereunder to file any such financing
statement or application for registration, except to perfect those Liens
permitted by Section 9.3 hereof.
(t) Debt and Contingent Obligations. Schedule 5.1(t) is a complete and
correct listing of all Debt and Contingent Obligations of BREED and its
Subsidiaries as of the Closing Date in excess of $2,500,000. BREED and its
Subsidiaries have performed and are in compliance with all of the terms of such
Debt and Contingent Obligations and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a default or event of
default on the part of BREED or its Subsidiaries exists with respect to any such
Debt or Contingent Obligation.
(u) Litigation. Except as set forth on Schedule 5.1(u), there are no
actions, suits or proceedings pending nor, to the knowledge of BREED, threatened
against or in any other way relating adversely to or affecting BREED or any
Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority which, if
adversely determined, would have, individually or in the aggregate, a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is
continuing which constitutes a Default or an Event of Default.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of BREED or any
Subsidiary thereof and furnished to the Lenders were, at the time the same were
so furnished, to the best knowledge of the Borrowers, complete and correct in
all respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No document furnished or written statement made
to the Administrative Agent or the Lenders by BREED or any Subsidiary thereof in
connection with the negotiation, preparation or execution of this Agreement or
any of the Loan Documents contains or will contain any knowingly untrue
statement of a fact material to the creditworthiness of BREED or its
Subsidiaries or knowingly omits or will omit to state a fact necessary in order
to make the statements contained therein not misleading. BREED is not aware of
any facts which it has not disclosed in writing to the Administrative Agent
having a Material
<PAGE>
Adverse Effect, or insofar as the Borrowers can now foresee, which could
reasonably be expected to have a Material Adverse Effect.
SECTION 5.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certifi cate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers will
furnish or cause to be furnished to the Administrative Agent at the
Administrative Agent's Office at the address set forth in Section 13.1 hereof
and to the Lenders at their respective addresses as set forth on Schedule
1.1(b), or such other office as may be designated by the Administrative Agent
and Lenders from time to time:
SECTION 6.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter, an
unaudited Consolidated and consolidating balance sheet of BREED and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
and consolidating statements of income, retained earnings and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and
prepared by BREED in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application
<PAGE>
of accounting principles and practices during the period, and certified by the
chief financial officer of BREED to present fairly in all material respects the
financial condition of BREED and its Subsidiaries as of their respective dates
and the results of operations of BREED and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of BREED and its Subsidiaries as of the close of such
Fiscal Year, an unaudited consolidating balance sheet of BREED and its
Subsidiaries as of the close of such Fiscal Year, and audited Consolidated
statements of income, retained earnings and cash flows for the Fiscal Year then
ended and unaudited consolidating statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by an independent certified public
accounting firm acceptable to the Administrative Agent in accordance with GAAP
(except with regard to the unaudited consolidating financial statements,
retained earnings and cash flows which shall only be reviewed by such
independent certified public accounting firm) and, if applicable, containing
disclosure of the effect on the financial position or results of operation of
any change in the application of accounting principles and practices during the
year, and accompanied by a report thereon by such certified public accountants
that is not qualified with respect to scope limitations imposed by BREED or any
of its Subsidiaries or with respect to accounting principles followed by BREED
or any of its Subsidiaries not in accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within forty-five (45) days prior to the beginning
of each Fiscal Year, a business plan of BREED and its Subsidiaries for the
ensuing four (4) fiscal quarters, such plan to be prepared in a manner
consistent with GAAP and to include, on a quarterly basis, the following: a
quarterly operating and capital budget, a projected income statement, statement
of cash flows and balance sheet and a report containing management's discussion
and analysis of such projections, accompanied by a certificate from the chief
financial officer of BREED to the effect that, to the best of such officer's
knowledge, such projections are good faith estimates of the financial condition
and operations of BREED and its Subsidiaries for such four (4) quarter period.
<PAGE>
SECTION 6.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief financial officer or the treasurer of BREED in the form of Exhibit E
attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of BREED and its
Subsidiaries as of the dates indicated and the results of their operations and
cash flows for the periods indicated;
(b) stating that to such officer's knowledge, based on a reasonable
examination, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrowers with respect
to such Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not BREED
and its Subsidiaries were in compliance with the financial covenants set forth
in Article VIII hereof as at the end of each respective period, the calculation
of the Applicable Margin pursuant to Section 3.1(c) as at the end of each
respective period, and the calculation of the total assets of each Subsidiary of
BREED for the purpose of determining which Subsidiaries are Material
Subsidiaries.
SECTION 6.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 6.1(b), a certificate of the independent
public accountants certifying such financial statements addressed to the
Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants
required to establish whether or not BREED and its Subsidiaries are
<PAGE>
in compliance with the financial covenants set forth in Article VIII hereof as
at the end of each respective period.
SECTION 6.4 Other Reports.
(a) Promptly but in any event within ten (10) Business Days after the
filing thereof, a copy of (i) each report or other filing made by BREED or any
of its Subsidiaries with the Securities and Exchange Commission and required by
the SEC to be delivered to the shareholders of BREED or any of its Subsidiaries,
(ii) each report made by BREED or any of its Subsidiaries to the SEC on Form 8-K
and (iii) each final registration statement of BREED or any of its Subsidiaries
filed with the SEC; and
(b) Such other information regarding the operations, business affairs
and financial condition of BREED or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 6.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) Business Days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceed ings in any court or
before any arbitrator against or involving BREED or any Subsidiary thereof or
any of their respective properties, assets or businesses, which could reasonably
be expected to result in liabilities to BREED or any Subsidiary thereof in
excess of $25,000,000 or could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any violation received by BREED or any Subsidiary
thereof from any Governmental Authority, including, without limitation, any
notice of violation of Environmental Laws, except such violations which would
not have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against BREED or any Subsidiary thereof,
except such controversies which would not have a Material Adverse Effect;
<PAGE>
(d) any attachment, judgment, lien, levy or order exceeding
$250,000 that may be assessed against or threatened against BREED
or any Subsidiary thereof;
(e) any Default or Event of Default;
(f) any event which constitutes or which with the passage of time or
giving of notice or both would constitute a default or event of default under
any Material Contract to which BREED or any of its Subsidiaries is a party or by
which BREED or any Subsidiary thereof or any of their respective properties may
be bound;
(g) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by
BREED or any ERISA Affiliate of the PBGC's intent to terminate any Pension Plan
or to have a trustee appointed to administer any Pension Plan, (iii) all notices
received by BREED or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to Section
4202 of ERISA and (iv) any Borrower obtaining knowledge or reason to know that
BREED or any ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the meaning of
Section 4041(c) of ERISA; and
(h) any event which makes any of the representations set
forth in Section 5.1 inaccurate in any respect.
SECTION 6.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VI or any other provision of this Agreement, or
any of the Security Documents, shall be, at the time the same is so furnished,
to the best of the Borrowers' knowledge, complete and correct in all material
respects to the extent necessary to give the Administrative Agent or any Lender
complete, true and accurate knowledge of the subject matter based on the
applicable Borrower's knowledge thereof.
ARTICLE VII
AFFIRMATIVE COVENANTS
<PAGE>
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, each Borrower will and
will cause each of its Subsidiaries to:
SECTION 7.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.5, preserve and maintain its separate corporate
or legal existence and all rights, franchises, licenses and privileges necessary
to the conduct of its business, and qualify and remain qualified as a foreign
corporation and authorized to do business in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect.
SECTION 7.2 Maintenance of Property. Except where the failure to do so
would not have, individually or in the aggregate, a Material Adverse Effect,
protect and preserve all properties useful in and material to its business,
including copyrights, patents, trade names and trademarks; maintain in good
working order and condition all buildings, equipment and other tangible real and
personal property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 7.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter deliver
to the Administrative Agent upon its request a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 7.4 Accounting Methods and Financial Records . Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP.
SECTION 7.5 Payment and Performance of Obligations. Pay
and perform all Obligations under this Agreement and the other Loan
<PAGE>
Documents, and pay or perform (a) all taxes, assessments and other governmental
charges that may be levied or assessed upon it or any of its property to the
extent such taxes, assessments or other charges are then due and payable, and
(b) all other indebtedness, obligations and liabilities in accordance with
customary trade practices; provided, that such Borrower or such Subsidiary may
contest any item described in clauses (a) and (b) of this Section 7.5 in good
faith so long as adequate reserves are maintained with respect thereto in
accordance with GAAP.
SECTION 7.6 Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business,
except where the failure to do so would not have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 7.7 Environmental Laws. In addition to and without limiting the
generality of Section 7.6, except where the failure to do so would not have,
individually or in the aggregate, a Material Adverse Effect, (a) comply with,
and ensure such compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of such Borrower or such
Subsidiary, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
<PAGE>
SECTION 7.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 7.6, except where the failure to do so would not have,
individually or in the aggregate, a Material Adverse Effect, (a) comply with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans, (b) not take any action
or fail to take action the result of which could be a liability to the PBGC or
to a Multiemployer Plan, (c) not participate in any prohibited transaction that
could result in any civil penalty under ERISA or tax under the Code, (d) operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or any liability to any qualified
beneficiary as defined in Section 4980B of the Code and (e) furnish to the
Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
SECTION 7.9 Compliance With Agreements. Comply in all respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract, except where the failure to so comply would
not have, individually or in the aggregate, a Material Adverse Effect; provided,
that such Borrower or such Subsidiary may contest any such lease, agreement or
other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 7.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
(including, without limitation, automotive safety products) and in lines of
business reasonably related thereto.
SECTION 7.11 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
<PAGE>
SECTION 7.12. Additional Subsidiary Guarantors and Subsidiary
Pledgors.
(a) Upon the creation or acquisition of any Material Domestic
Subsidiary of BREED permitted by this Agreement and upon any Domestic Subsidiary
of BREED becoming a Material Domestic Subsidiary of BREED as evidenced by the
information set forth in the Officer's Compliance Certificate delivered pursuant
to Section 6.2, cause to be executed and delivered to the Administrative Agent
upon the creation or acquisition of such new Material Domestic Subsidiary or the
determination pursuant to Section 6.2 that any existing Domestic Subsidiary is a
Material Domestic Subsidiary (i) a supplement to the Subsidiary Guaranty
Agreement executed by such new Material Domestic Subsidiary, (ii) a Pledge
Agreement or a supplement to Pledge Agreement, as applicable, executed by BREED
or the applicable Subsidiary pledging the capital stock of such new Material
Domestic Subsidiary and a consent thereto executed by such new Material Domestic
Subsidiary (including, without limitation, original stock certificates
evidencing the capital stock of such new Material Domestic Subsidiary, together
with an appropriate undated stock power for each certificate duly executed in
blank by the registered owner thereof), (iii) the closing documents and
certificates reasonably required by the Required Lenders to be delivered,
including, without limitation, officers' certificates, financial statements,
opinions of counsel, board resolutions, charter documents, certificates of
existence and authority to do business and any other closing certificates and
documents described in Section 4.2, and (iv) such other documents reasonably
requested by the Required Lenders in order that such new Material Domestic
Subsidiary shall become bound by all of the terms, covenants and agreements
contained in the Subsidiary Guaranty Agreement and the capital stock thereof
shall be pledged pursuant to the applicable Pledge Agreement.
(b) Upon the creation or acquisition of any Material Foreign Subsidiary
of BREED permitted by this Agreement and upon any Foreign Subsidiary of BREED
becoming a Material Foreign Subsidiary of BREED as evidenced by the information
set forth in the Officer's Compliance Certificate delivered pursuant to Section
6.2, cause to be executed and delivered to the Administrative Agent upon the
creation or acquisition of such new Material Foreign Subsidiary or the
determination pursuant to Section 6.2 that any existing Foreign Subsidiary is a
Material Foreign Subsidiary (i) a Pledge Agreement or a supplement to Pledge
Agreement, as applicable, executed by BREED or the applicable Subsidiary
pledging the entire ownership
<PAGE>
interest of BREED or the applicable Subsidiary (up to sixty-six (66%) of the
total outstanding ownership interest or capital stock) of such new Material
Foreign Subsidiary and a consent thereto executed by such new Material Foreign
Subsidiary (including, without limitation, if applicable, original stock
certificates evidencing the capital stock of such new Material Foreign
Subsidiary, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner thereof), (ii) the
closing documents and certificates reasonably required by the Required Lenders
to be delivered, including, without limitation, officers' certificates,
financial statements, opinions of counsel, board resolutions, charter documents,
certificates of existence and authority to do business and any other closing
certificates and documents described in Section 4.2, and (iii) such other
documents reasonably requested by the Required Lenders in order that the capital
stock of such new Material Foreign Subsidiary shall be pledged pursuant to the
applicable Pledge Agreement. Notwithstanding the provisions of subsections (i)
and (ii) above, with regard to any Material Foreign Subsidiary whose stock is to
be pledged hereunder, the provisions regarding the delivery of original stock
certificates and undated stock powers set forth in subsections (i) and (ii)
shall be satisfied upon evidence of (A) a perfected security interested in the
relevant indicia of ownership (or the equivalent thereof as determined pursuant
to the Applicable Laws or practices of the relevant foreign jurisdiction) and
(B) an opinion of counsel in form and substance satisfactory to the
Administrative Agent as to the validity and binding nature of such security
interest in the applicable jurisdiction. Furthermore, in the event Applicable
Laws or practices of the relevant foreign jurisdiction shall preclude or prevent
the delivery of the Pledge Agreement and the necessary filings and recordings in
connection therewith as set forth in subsections (i) and (ii) above, such
conditions shall be satisfied by the Borrowers' good faith effort to satisfy
such conditions as soon as possible upon the creation of such Material Foreign
Subsidiary but, in any event, within ninety (90) days of the creation of such
Material Foreign Subsidiary.
(c) Notwithstanding the foregoing, a Subsidiary formed to issue
Convertible Preferred Stock (and whose sole asset is Intercompany Trust Debt or
amounts received thereon) shall not be required to become a Subsidiary Guarantor
nor shall any securities thereof be required to be pledged.
<PAGE>
SECTION 7.13 Intercompany Notes. As soon as practicable and in any
event within ninety (90) days after the Closing Date cause all intercompany Debt
existing on or arising after such date to be evidenced by a written promissory
note or notes.
SECTION 7.14 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, BREED and its
Subsidiaries on a Consolidated basis will not:
SECTION 8.1. Leverage Ratio. As of the end of any fiscal quarter,
permit the ratio of (a) the Consolidated Debt of BREED and its Subsidiaries as
of such date to (b) EBITDA of BREED and its Subsidiaries for the period of four
(4) consecutive fiscal quarters ending on such date, to exceed 3.50 to 1.00.
SECTION 8.2 Minimum Net Worth. As of the end of any fiscal quarter,
permit Net Worth to be less than (a) $250,000,000 plus (b) 50% of cumulative
Consolidated Net Income of BREED and its Subsidiaries commencing with the fiscal
quarter ending March 31, 1997 (without deduction for any losses) plus (c)
seventy-five (75%) of the net proceeds received by BREED or any of its
Subsidiaries of any Equity Issuance by BREED or any of its Subsidiaries
subsequent to the Closing Date, plus (d) 75% of the net proceeds received by
BREED or any of its Subsidiaries upon the issuance of any Convertible Preferred
Stock.
SECTION 8.3. Interest Coverage Ratio. As of the end of any
fiscal quarter, permit the ratio of (a) EBIT of BREED and its
Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on such date to (b) Interest Expense of BREED and its
<PAGE>
Subsidiaries for such period, to be less than 3.00 to 1.00; provided that during
the period from and including March 31, 1997 through and including December 31,
1997, the ratio set forth in this Section 8.3 shall be permitted to be less than
3.00 to 1.00 as of the end of up to two (2) fiscal quarters; provided further
that (i) the ratio set forth in this Section 8.3 shall at no time during such
period noted in the preceding proviso be less than 2.75 to 1.00 and (ii) in the
event the ratio set forth in this Section 8.3 is less than 3.00 to 1.00, the
Applicable Margin shall be adjusted in the manner set forth in Section 3.1 and
the Facility Fee Rate shall be adjusted in the manner set forth in Section 3.3.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, each Borrower will not
and will not permit any of its Subsidiaries to:
SECTION 9.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions reasonably satisfactory to the
Administrative Agent (unless the counterparty to such Hedging Agreement is a
Lender, in which such case the approval of the Administrative Agent shall not be
required);
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 9.1, as set forth on Schedule 5.1(t) and the renewal and
refinancing (but not the increase) thereof;
(d) Debt of BREED under a Capitalized Lease with respect to the
construction and equipping of the VTI FAB2 Facility in Finland in an aggregate
amount not to exceed $25,000,000 on any date of determination;
(e) Debt of BREED and its Subsidiaries incurred in connection
with Capitalized Leases other than the Capitalized Lease described
<PAGE>
in clause (d) above in an aggregate amount not to exceed
$10,000,000 on any date of determination;
(f) purchase money Debt of BREED and its Subsidiaries in an
aggregate amount not to exceed $25,000,000 on any date of
determination;
(g) Debt consisting of Contingent Obligations permitted by
Section 9.2;
(h) Debt of any Borrower or any Subsidiary Guarantor owing to
any other Borrower or any other Subsidiary Guarantor and
Intercompany Trust Debt;
(i) Subordinated Debt in an aggregate amount not to exceed
$100,000,000;
(j) Senior Debt of any Borrower; provided that (i) the Borrowers shall
have demonstrated pro forma compliance with each covenant contained in Articles
VII, VIII and IX hereof prior to and following the incurrence of any such Senior
Debt and (ii) in conjunction with any Debt permitted by this clause (j) the
Borrowers shall reduce the Aggregate Commitment in the manner set forth in
Section 2.7(b); and
(k) unsecured Debt of the Borrower and its Subsidiaries other than the
Debt described in clauses (a) through (j) above in an aggregate amount not to
exceed $25,000,000 on any date of determination;
provided, that (i) notwithstanding any of the foregoing provisions, BTI
Investments, FLDB Investments, Ltd. and BREED Technologies Finland, Oy shall not
be permitted to incur any Debt and (ii) none of the Debt permitted to be
incurred by this Section 9.1 shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of any Borrower to make any
payment to any Borrower or any of its Subsidiaries (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling the Borrowers to
pay the Obligations.
SECTION 9.2 Limitations on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligations except:
(a) Contingent Obligations in favor of the Administrative
Agent for the benefit of the Administrative Agent and the Lenders;
<PAGE>
(b) Contingent Obligations with respect to Debt permitted
pursuant to Section 9.1 (including any Trust Preferred Guarantee);
(c) Contingent Obligations existing on the Closing Date and
not otherwise permitted under this Section 9.2, as set forth on
Schedule 9.2; and
(d) Contingent Obligations other than the Contingent
Obligations described in clauses (a) through (c) above in an
aggregate amount not to exceed $15,000,000.
SECTION 9.3 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace, if any,
related thereto has not expired or which are being contested in good faith and
by appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
<PAGE>
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens in existence on the Closing Date and not otherwise
permitted by this Section 9.3, as described on Schedule 9.3;
(g) Liens securing Debt permitted under Sections 9.1(e) and (f);
provided, that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of Debt secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price or lease payment stream of such
property at the time it was acquired or leased; and
(h) Liens on the fixed assets of entities permitted to be acquired
pursuant to Section 9.4; provided that any Debt permitted in connection
therewith (i) was not incurred as a part of or in anticipation of such
acquisition and (ii) contains terms, conditions and provisions no more
restrictive than those provided under this Agreement.
SECTION 9.4 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially all
or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person, or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) investments in Subsidiaries existing on the Closing Date
and the other existing loans, advances and investments described on
Schedule 9.4;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within three hundred and sixty (360) days from the date of acquisition
thereof, (ii) commercial paper maturing no more than one hundred and twenty
(120) days from the
<PAGE>
date of creation thereof and currently having the highest rating obtainable from
either Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc. or Moody's Investors Service, Inc., (iii) certificates of
deposit maturing no more than one hundred and twenty (120) days from the date of
creation thereof issued by commercial banks incorporated or licensed under the
laws of the United States of America, each having combined capital, surplus and
undivided profits of not less than $500,000,000 and having a rating of "A" or
better by a nationally recognized rating agency; provided, that the aggregate
amount invested in such certificates of deposit shall not at any time exceed
$5,000,000 for any one such certificate of deposit and $10,000,000 for any one
such bank, or (iv) time deposits maturing no more than thirty (30) days from the
date of creation thereof with commercial banks or savings banks or savings and
loan associations each having membership either in the FDIC or the deposits of
which are insured by the FDIC and in amounts not exceeding the maximum amounts
of insurance thereunder;
(c) investments by BREED or any of its Subsidiaries in the form of
acquisitions of all or substantially all of the business or a line of business
(whether by the acquisition of capital stock, assets or any combination thereof)
of any other Person if such acquisition meets all of the following requirements:
(i) the Person whose equity interest is to be acquired shall be or, as a result
of such acquisition shall become, a Wholly-Owned Subsidiary of BREED and no
Change in Control shall have been effected thereby, (ii) the Person whose equity
interest is to be acquired shall engage in a business or the assets being
acquired are to be used in a business described in Section 7.10, (iii) evidence
of approval of the acquisition of the board of directors or equivalent governing
body of the acquired Person, including, without limitation, resolutions duly
adopted by the board or directors or equivalent governing body of the acquired
Person authorizing the acquisition and the execution, delivery and performance
of any transactions contemplated thereby, shall have been delivered to the
Administrative Agent, (iv) such documents reasonably requested by the
Administrative Agent pursuant to Section 7.12 hereof shall have been delivered
to the Administrative Agent, (v) the Borrowers shall have demonstrated pro forma
compliance with each covenant contained in Articles VII, VIII and IX hereof
prior to consummating the acquisition and no Default or Event of Default shall
have occurred and be continuing both before and after giving effect to the
acquisition, (vi) a description of the acquisition and the governing
documentation shall have been delivered to the
<PAGE>
Administrative Agent at least five (5) Business Days prior to the consummation
of the acquisition and a copy of the final governing documentation shall be
delivered within a reasonable time after the acquisition, and (vii) if such
acquisition or investment, if completed, would cause the aggregate fair market
value of all consideration paid in respect of all such acquisitions or
investments to exceed $25,000,000 during any Fiscal Year, the Required Lenders
shall have consented in writing to such acquisition or investment prior to the
proposed acquisition or investment;
(d) intercompany loans and advances permitted pursuant to
Section 9.1(h);
(e) investments in Subsidiaries formed for the purpose of
issuing Convertible Preferred Stock of BREED or any of its
Subsidiaries;
(f) loans and advances to employees in the ordinary course of
business in an aggregate amount not to exceed $2,500,000 at any one
time; and
(g) investments in joint ventures and minority interest
investments in an aggregate amount not to exceed $25,000,000.
SECTION 9.5 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of BREED may merge with any other
Wholly-Owned Subsidiary of BREED; provided, that if any such Subsidiary is a
Borrower or a Subsidiary Guarantor, such Borrower or Subsidiary Guarantor shall
be the surviving entity;
(b) any Wholly-Owned Subsidiary may merge into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection
with an acquisition permitted by Section 9.4(c);
(c) any Subsidiary of BREED may wind-up into any Borrower or
Subsidiary Guarantor; and
(d) any Subsidiary formed to issue Convertible Preferred Stock and
whose sole asset is Intercompany Trust Debt may be dissolved, wound up or
liquidated.
<PAGE>
SECTION 9.6 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in
the business of BREED or any of its Subsidiaries;
(c) the transfer of assets to any Borrower or Subsidiary
Guarantor pursuant to Section 9.5(c);
(d) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof;
(e) the sale of Non-Core Assets for cash or cash equivalents in an
aggregate amount not to exceed $100,000,000; provided that the Borrowers (i)
shall repay any outstanding Revolving Credit Loans in an amount equal to one
hundred percent (100%) of the Net Proceeds received from such sale in the manner
set forth in Section 2.5(c) and shall reduce the Aggregate Commitment by an
amount equal to fifty percent (50%) of the Net Proceeds received from such sale
in the manner set forth in Section 2.7(b) and (ii) prior to the consummation of
the sale of any such Non-Core Assets, shall deliver to the Administrative Agent
and the Lenders written evidence of pro forma compliance with the provisions of
Articles VII, VIII and IX after giving effect to such sale;
(f) during any Fiscal Year, the sale of property, business or assets
other than described in clauses (a) through (e) above in an aggregate amount not
to exceed $10,000,000; and
(g) any Subsidiary formed to issue Convertible Preferred Stock and
whose sole asset is Intercompany Trust Debt may distribute such obligations to
the holders of the Convertible Preferred Stock; provided that, such distribution
shall be deemed an incurrence of Debt and such incurrence is otherwise permitted
hereunder.
SECTION 9.7 Limitations on Dividends and Distributions.
Declare or pay any dividends upon any of its capital stock;
<PAGE>
purchase, redeem, retire or otherwise acquire, directly or indirectly, any
shares of its capital stock, or make any distribution of cash, property or
assets among the holders of shares of its capital stock, or make any change in
its capital structure that could reasonably be expected to have a Material
Adverse Effect; provided, that:
(a) BREED or any Subsidiary may declare and pay dividends in cash or
shares of its own capital stock; provided that (i) the Borrowers shall have
demonstrated pro forma compliance with the covenant contained in Section 8.2
prior to and following the declaration of any such dividends;
(b) any Subsidiary of a Borrower may pay cash dividends or
make contributions to such Borrower; and
(c) any Subsidiary of BREED formed pursuant to Section 9.4(f) may issue
and pay dividends on the Convertible Preferred Stock; provided that the
Convertible Preferred Stock shall not be redeemed until at least one (1) year
after the Credit Facility Termination Date.
SECTION 9.8 Transactions with Affiliates. Except as permitted pursuant
to Section 9.4, directly or indirectly: (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the
immediate family of any of its officers, directors, shareholders or other
Affiliates, or subcontract any operations to any of its Affiliates, or (b) enter
into, or be a party to, any transaction with any of its Affiliates, except
pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are fully disclosed to and approved in writing by the
Required Lenders and are no less favorable to it than it would obtain in a
comparable arm's length transaction with a Person not its Affiliate.
SECTION 9.9 Certain Accounting Changes. Change its Fiscal Year end, or make
any change in its accounting treatment and reporting practices except as
required by GAAP.
<PAGE>
SECTION 9.10 Restrictive Agreements.
(a) On and after the Closing Date, enter into any Debt which contains
any negative pledge on assets or any covenants more restrictive than the
provisions of Articles VII, VIII and IX hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties other than the assets or properties securing such Debt; or
(b) Enter into or permit to exist any agreement which impairs
or limits the ability of any Subsidiary of a Borrower to pay
dividends to such Borrower.
SECTION 9.11 Payments under Convertible Preferred Stock. Pay any
interest or principal due under the Convertible Preferred Stock so long as any
Default or Event of Default has occurred and is then continuing.
ARTICLE X
UNCONDITIONAL GUARANTY
SECTION 10.1 Guaranty of Obligations. The Guarantor hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment and performance of all
Obligations of the Borrowers, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter arising, whether or
not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether or not recovery may be or hereafter
become barred by the statute of limitations, whether enforceable or
unenforceable as against any such Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with any Agent or Lender or acquired by any
Agent or Lender through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of any such instruments evidencing
any such obligations, including all renewals, extensions or modifications
thereof (all Obligations of
<PAGE>
each such Borrower to any Agent or Lender, including all of the foregoing, being
hereinafter collectively referred to as the "Guaranteed Obligations").
SECTION 10.2 Nature of Guaranty. The Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance and
not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by (a) the
genuineness, validity, regularity, enforceability or any future amendment of, or
change in, this Agreement or any other Loan Document or any other agreement,
document or instrument to which any such Borrower is or may become a party, (b)
the absence of any action to enforce this Guaranty, this Agreement or any other
Loan Document or the waiver or consent by the Administrative Agent or any Lender
with respect to any of the provisions of this Guaranty, this Agreement or any
other Loan Document, (c) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the Guaranteed
Obligations or any action, or the ab sence of any action, by the Administrative
Agent or any Lender in respect of such security or guaranty (including, without
limitation, the release of any such security or guaranty) or (d) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor; it being agreed by the Guarantor
that its obligations under this Guaranty shall not be discharged until the final
and indefeasible payment and performance, in full, of the Guaranteed Obligations
and the termination of the Commitments. The Guarantor expressly waives all
rights it may now or in the future have under any statute (including, without
limitation, North Carolina General Statutes Section 26-7, et seq. or similar
law), or at law or in equity, or otherwise, to compel the Administrative Agent
or any Lender to proceed in respect of the Guaranteed Obligations against any
Borrower or any other party or against any security for or other guaranty of the
payment and performance of the Guaranteed Obligations before proceeding against,
or as a condition to proceeding against, the Guarantor. The Guarantor further
expressly waives and agrees not to assert or take advantage of any defense based
upon the failure of the Administrative Agent or any Lender to commence an action
in respect of the Guaranteed Obligations against any such Borrower or any other
party or any security for the payment and performance of the Guaranteed
Obligations. The Guarantor agrees that any notice or directive given at any time
to the Administrative Agent or any Lender which is inconsistent with the waivers
in the preceding two sentences shall be null and void
<PAGE>
and may be ignored by the Administrative Agent or Lender, and, in addition, may
not be pleaded or introduced as evidence in any litigation relating to this
Guaranty for the reason that such pleading or introduction would be at variance
with the written terms of this Guaranty, unless the Administrative Agent and the
Required Lenders have specifically agreed otherwise in writing. The foregoing
waivers are of the essence of the transaction contemplated by the Loan Documents
and, but for this Guaranty and such waivers, the Administrative Agent and
Lenders would decline to enter into this Agreement.
SECTION 10.3 Demand by the Administrative Agent. In addition to the terms
set forth in Section 10.2, and in no manner imposing any limitation on such
terms, if all or any portion of the then outstanding Guaranteed Obligations
under this Agreement are declared to be immediately due and payable, then the
Guarantor shall, upon demand in writing therefor by the Administrative Agent to
the Guarantor, pay all or such portion of the outstanding Guaranteed Obligations
then declared due and payable. Payment by the Guarantor shall be made to the
Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immedi ately available funds in the Permitted Currency in which
the relevant Guaranteed Obligations are denominated to an account designated by
the Administrative Agent or at the Administrative Agent's office or at any other
address that may be specified in writing from time to time by the Administrative
Agent.
SECTION 10.4 Waivers. In addition to the waivers contained in Section
10.2, the Guarantor waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshalling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by the Guarantor of its
obligations under, or the enforcement by the Administrative Agent or the Lenders
of, this Guaranty. The Guarantor further hereby waives diligence, presentment,
demand, protest and notice of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty. The Guarantor
represents, warrants and agrees that its obligations under this Guaranty are not
and shall not be subject to any counterclaims, offsets or defenses of any kind
against the Administrative Agent, the Lenders or any such Borrower whether now
existing or which may arise in the future.
<PAGE>
SECTION 10.5 Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Guarant or (a) change or extend the manner, place
or terms of payment of, or renew or alter all or any portion of, the Guaranteed
Obliga tions, (b) take any action under or in respect of the Loan Docu ments in
the exercise of any remedy, power or privilege contained therein or available to
it at law, in equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges, (c) amend or modify, in any manner whatsoever,
the Loan Documents, (d) extend or waive the time for performance by the
Guarantor, any such Borrower or any other Person of, or compliance with, any
term, covenant or agreement on its part to be performed or observed under a Loan
Document (other than this Guaranty), or waive such performance or compliance or
consent to a failure of, or departure from, such performance or compliance, (e)
take and hold security or collateral for the payment of the Guaranteed
Obligations or sell, exchange, release, dispose of, or otherwise deal with, any
property pledged, mortgaged or conveyed, or in which the Administrative Agent or
the Lenders have been granted a Lien, to secure any Debt of the Guarantor or any
such Borrower to any Agent or the Lenders, (f) release anyone who may be liable
in any manner for the payment of any amounts owed by the Guarantor or any such
Borrower to any Agent or Lender, (g) modify or terminate the terms of any
intercreditor or subordination agreement pursuant to which claims of other
creditors of the Guarantor or any such Borrower are subordinated to the claims
of any Agent or Lender or (h) apply any sums by whomever paid or however
realized to any amounts owing by the Guarantor or any such Borrower to any Agent
or Lender on account of the Obligations in such manner as the Administrative
Agent or any Lender shall determine in its reasonable discretion; then neither
the Administrative Agent nor any Lender shall incur any liability to the
Guarantor as a result thereof, and no such action shall impair or release the
obligations of the Guarantor under this Guaranty.
SECTION 10.6 Reinstatement. The Guarantor agrees that, if any payment
made by any such Borrower or any other Person applied to the Obligations is at
any time annulled, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or the proceeds
of Collateral are required to be returned by the Administrative Agent or any
Lender to any such Borrower, its estate, trustee, receiver or any other party,
including, without limitation, the Guarantor, under any Applicable Law or
equitable cause, then, to the extent of such
<PAGE>
payment or repayment, the Guarantor's liability hereunder (and any Lien or
Collateral securing such liability) shall be and remain in full force and
effect, as fully as if such payment had never been made, and, if prior thereto,
this Guaranty shall have been canceled or surrendered (and if any Lien or
Collateral securing the Guarantor's liability hereunder shall have been released
or terminated by virtue of such cancellation or surrender), this Guaranty (and
such Lien or Collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect the obligations of the Guarantor in respect of the amount of
such payment (or any Lien or Collateral securing such obligation).
SECTION 10.7 No Subrogation. Until all amounts owing to the
Administrative Agent and the Lenders on account of the Obligations are paid in
full and the Commitments are terminated, the Guarantor hereby waives any claims
or other rights which it may now or hereafter acquire against any such Borrower
that arise from the existence or performance of the Guarantor's obligations
under this Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, any right to participate in any
claim or remedy of the Administrative Agent or the Lenders against any such
Borrower or any Collateral which the Administrative Agent or the Lenders now
have or may hereafter acquire, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, by any payment made
hereunder or otherwise, including without limitation, the right to take or
receive from any such Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the Guarantor on
account of such rights at any time when all of the Obligations shall not have
been paid in full, such amount shall be held by the Guarantor in trust for the
Administrative Agent, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Administrative
Agent in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Administrative Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as set forth herein.
<PAGE>
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. Any Borrower shall
default in any payment of principal of any Loan or Note when and as due (whether
at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan or Note or the payment of any other Obligation, and such
default shall continue unremedied for three (3) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by any Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. Any
Borrower shall default in the performance or observance of any
covenant or agreement contained in Sections 6.2, 6.5(e) or 7.12 or
Articles VIII or IX of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. Any
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to such Borrower by
the Administrative Agent.
<PAGE>
(f) Hedging Agreement. Any termination payment shall be due
by a Borrower under any Hedging Agreement and such amount is not
paid within ten (10) Business Days of the due date thereof.
(g) Debt Cross-Default. Any Borrower or any of its Subsidiaries shall
(i) default in the payment of any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $2,500,000 beyond the period of
grace if any, provided in the instrument or agreement under which such Debt was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $2,500,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Other Cross-Defaults. Any Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by such Borrower or such
Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of such Borrower or such
Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended),
shall obtain ownership or control in one or more series of transactions of more
than thirty percent (30%) of the common stock or thirty percent (30%) of the
voting power of BREED entitled to vote in the election of members of the board
of directors of BREED or there shall have occurred under any indenture or other
instrument evidencing any Debt in excess of $500,000 any "change in control" (as
defined in such indenture or other evidence of Debt) obligating any Borrower to
repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. Any Borrower or any
Material Subsidiary thereof shall (i) commence a voluntary case
<PAGE>
under the federal bankruptcy laws (as now or hereafter in effect), (ii) file a
petition, proposal or notice of intent to file a proposal seeking to take
advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition or other proceeding filed against it in an involuntary case under such
bankruptcy laws or other laws, (iv) apply for or consent to, or fail to contest
in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, administrator, or liquidator of
itself or of a substantial part of its property, domestic or foreign, (v) admit
in writing its inability to pay its debts as they become due, (vi) make a
general assignment for the benefit of creditors, or (vii) take any corporate
action for the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower or any Material Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for any Borrower or any Material Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue without dismissal or stay for a
period of sixty (60) consecutive days, or an order granting the relief requested
in such case or proceeding (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of Article X of this Agreement
or any provision of any other Loan Document shall for any reason cease to be
valid and binding on any Borrower or Subsidiary party thereto or any such Person
shall so state in writing, or any Loan Document shall for any reason cease to
create a valid and perfected first priority Lien on, or security interest in,
any of the collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following events: (i)
BREED or any ERISA Affiliate fails to make full payment when due of all amounts
which, under the provisions of
<PAGE>
any Pension Plan or Section 412 of the Code, BREED or any ERISA Affiliate is
required to pay as contributions thereto, (ii) an accumulated funding deficiency
in excess of $1,000,000 occurs or exists, whether or not waived, with respect to
any Pension Plan, (iii) a Termination Event or (iv) BREED or any ERISA Affiliate
as employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$2,500,000.
(n) Judgment. An uninsured judgment or order for the payment of money
which causes the aggregate amount of all such uninsured judgments to exceed
$1,000,000 in any Fiscal Year shall be entered against any Borrower or any of
its Subsidiaries by any court and such judgment or order shall continue without
discharge or stay for a period of thirty (30) days.
(o) 364-Day Credit Agreement. An Event of Default shall have
occurred and be continuing under the 364-Day Credit Agreement.
SECTION 11.2 Remedies. Upon the occurrence and during the continuance
of an Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans and the Notes at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement
or any of the other Loan Documents and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facility and any right of
the Borrowers to request borrowings thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 11.1(j) or (k), the
Credit Facility shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Rights of Collection. Exercise on behalf of the Lenders
all of its other rights and remedies under this Agreement, the
<PAGE>
other Loan Documents and Applicable Law, in order to satisfy all of
the Borrowers' Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power or
privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between any Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4 Judgment Currency. The obligation of the Borrowers to make
payments of the principal of and interest on the Notes and the obligation of the
Guarantor to make payments on the Guaranteed Obligations and the obligation of
any such Person to make payments of any other amounts payable hereunder or
pursuant to any other Loan Document in the currency specified for such payment
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any other currency, except
to the extent that such tender or recovery shall result in the actual receipt by
each of the Administrative Agent and Lenders of the full amount of the
particular Permitted Currency expressed to be payable pursuant to the applicable
Loan Document. The Administrative Agent shall, using all amounts obtained or
received from the Borrowers pursuant to any such tender or recovery in payment
of principal of and interest on the Obligations, promptly purchase the
applicable Permitted Currency at the most favorable spot exchange rate
determined by the Administrative Agent to be available to it. The obligation of
the Borrowers to make payments in the applicable Permitted Currency shall be
enforceable as an alternative or additional cause of action solely for the
purpose of recovering in
<PAGE>
the applicable Permitted Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Permitted Currency expressed
to be payable pursuant to the applicable Loan Document.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents and each such Lender irrevocably
authorizes First Union as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and such
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender (nor shall any Lender be
deemed to have any fiduciary relationship with any Borrower), and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. To the extent any provision of this Agreement
permits action by the Administrative Agent, such Administrative Agent shall,
subject to the provisions of Section 13.11 hereof and of this Article XII, take
such action if directed in writing to do so by the Required Lenders.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors, employees,
<PAGE>
agents, attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for
any action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or the other Loan Documents (except for
actions occasioned directly by its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrowers or
any of their Subsidiaries or any officer thereof contained in this Agreement or
the other Loan Documents or in any certificate, report, statement or other
document referred to or provided for in, or received by the Administrative Agent
under or in connection with, this Agreement or the other Loan Documents or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or the other Loan Documents or for any failure of the
Borrowers or any of their Subsidiaries to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrowers or any of their Subsidiaries.
SECTION 12.4 Reliance by the Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.10 hereof. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first receive such advice
or concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in
<PAGE>
acting, or in refraining from acting, under this Agreement and the Notes in
accordance with a request of the Required Lenders (or, when expressly required
hereby, all the Lenders), and such request and any action taken or failure to
act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Notes.
SECTION 12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or a Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided, that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrowers or any of their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrowers and their Subsidiaries and made
its own decision to make its Loans hereunder and enter into this Agreement. Each
Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the
<PAGE>
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and their Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrowers or
any of their Subsidiaries which may come into the possession of the
Administrative Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting directly from the Administrative Agent's bad faith, gross negligence
or willful misconduct. The agreements in this Section 12.7 shall survive the
payment of the Notes and all other amounts payable hereunder and the termination
of this Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
any Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Loans made or renewed by it and any Note issued
to it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents
<PAGE>
as any Lender and may exercise the same as though it were not an Administrative
Agent, and the terms "Lender" and "Lenders" shall include the Administrative
Agent in its individual capacity.
SECTION 12.9 Resignation of the Administrative Agent;
Successor Administrative Agent.
(a) Subject to the appointment and acceptance of a successor as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
(b) Each reference in subsection (a) above to the Administrative Agent
shall also be deemed a reference to the Swingline Lender. Therefore, upon the
acceptance of any appointment as Administrative Agent (and Swingline Lender)
hereunder by a successor Administrative Agent (and Swingline Lender), such
successor Administrative Agent (and Swingline Lender) shall thereupon succeed to
and become vested with all rights, powers, privileges and duties of the retiring
Swingline Lender, and the retiring Swingline Lender shall be discharged from its
duties and obligations hereunder.
SECTION 12.10 Documentation Agent. The Documentation Agent, in its
capacity as a documentation agent, shall have no duties or responsibilities
under this Agreement or any other Loan Document.
<PAGE>
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be
sent to it at the following addresses, or any other address as to
which all the other parties are notified in writing.
If to BREED: BREED Technologies, Inc.
5300 Old Tampa Highway
Lakeland, Florida 33811
Attention: Chief Financial Officer
Telephone No.: (941) 668-6000
Telecopy No.: (941) 668-6036
With copies to: BREED Technologies, Inc.
5300 Old Tampa Highway
Lakeland, Florida 33811
Attention: Treasurer
General Counsel
Telephone No.: (941) 668-6389
Telecopy No.: (941) 668-6039
<PAGE>
If to First Union as
Administrative Agent: First Union National Bank of Florida
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Telephone No.: (813) 276-6434
Telecopy No.: (813) 276-6454
and
First Union National Bank of North Carolina
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 383-0288
If to any Lender: To the Address set forth on Schedule 1.1(b) hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrowers and the Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Revolving Credit Loans
and Finnish Mark Loans will be disbursed.
SECTION 13.2 Expenses; Indemnity. The Borrowers will (a) pay all
reasonable out-of-pocket expenses of the Administrative Agent in connection
with: (i) the preparation, execution and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and delivered,
including, without limitation, all out-of-pocket syndication and due diligence
expenses and reasonable fees and disbursements of counsel for the Administrative
Agent and (ii) the preparation, execution and delivery of any waiver, amendment
or consent by the Administrative Agent or the Lenders relating to this Agreement
or any other Loan Document, including, without limitation, reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all
<PAGE>
reasonable out-of-pocket expenses of the Administrative Agent and the Lenders in
connection with the administration and enforcement of any rights and remedies of
the Administrative Agent and Lenders under the Credit Facility, including
consulting with appraisers, accountants, engineers, attorneys and other Persons
concerning the nature, scope or value of any right or remedy of the
Administrative Agent or any Lender hereunder or under any other Loan Document or
any factual matters in connection therewith, which expenses shall include,
without limitation, the reasonable fees and disbursements of such Persons and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any losses, penalties, fines,
liabilities, settlements, damages, costs and expenses, suffered by any such
Person in connection with any claim, investigation, litigation or other
proceeding (whether or not the Administrative Agent or any Lender is a party
thereto) and the prosecution and defense thereof, arising out of or in any way
connected with the Agreement, any other Loan Document or the Loans, including,
without limitation, reasonable attorney's and consultant's fees, except to the
extent that any of the foregoing directly result from the gross negligence or
willful misconduct of the party seeking indemnification therefor.
SECTION 13.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 13.10 are hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of a Borrower against and on account of the Obligations irrespective of whether
or not (a) the Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall have declared any
or all of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured.
<PAGE>
SECTION 13.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5 Consent to Jurisdiction. The Borrowers hereby irrevocably
consent to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or any Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against any Borrower or its
properties in the courts of any other jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial. (a) Binding
Arbitration. Upon demand of the Borrower, any Agent or the Required Lenders,
whether made before or within one hundred twenty days (120) after institution of
any judicial proceeding, any dispute, claim or controversy arising out of,
connected with or relating to the Notes or any other Loan Documents
("Disputes"), between or among parties to the Notes or any other Loan Document
shall be resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to demand
arbitration hereunder. Disputes may include, without limitation, tort claims,
counterclaims, claims brought as class actions, claims arising from Loan
Documents executed in the future, or claims concerning any aspect of the past,
present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All
<PAGE>
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitation shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. The panel from which all arbitrators
are selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted. Notwithstanding the foregoing, this paragraph shall not apply to
any Hedging Agreement that is a Loan Document.
(b) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND EACH BORROWER HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto preserve, without diminution,
certain remedies that such Persons may employ or exercise freely, either alone,
in conjunction with or during a Dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by self
help to exercise or prosecute the following remedies: (i) all rights to
foreclose against or otherwise become owner or sell any real or personal
property or other security by exercising a power of sale granted in the Loan
Documents or under applicable law or by judicial foreclosure and sale, (ii) all
rights of self help including peaceful occupation of property and collection of
rents, set off, and peaceful possession of property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
SECTION 13.7 Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments
<PAGE>
or proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or proceeds
repaid, the Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or proceeds
had not been received by the Administrative Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event the Borrowers fail to
perform, observe or discharge any of their obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrowers agree that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrowers (on behalf
of themselves and their Subsidiaries) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by
BREED or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrowers, be performed in accordance with GAAP as in
effect on the Closing Date. In the event that changes in GAAP shall be mandated
by the Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by BREED's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrowers and
the Lenders shall have
<PAGE>
amended this Agreement to the extent necessary to reflect any such changes in
the financial covenants and other terms and conditions of this Agreement.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that no Borrower shall assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Administrative Agent and (unless an Event of Default has occurred and is
continuing) the Borrowers, which consents shall not be unreasonably withheld or
delayed, assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of the Loans at the time owing to it and the Notes
held by it); provided, that:
(i) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement and its rights and obligations under
the 364-Day Credit Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment under this Agreement and
the commitment under the 364-Day Credit Agreement so assigned shall not
be less than $10,000,000 in the aggregate;
(iii) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of
Exhibit F attached hereto (an "Assignment and Acceptance"), together
with any Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of
any applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Loans or the Notes under the blue sky laws of any state;
<PAGE>
(v) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,000 upon the execution by such Lender of
the Assignment and Acceptance; provided, that (A) no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof and (B)
if such Assignment is executed in connection with an Assignment and
Acceptance under the 364-Day Credit Agreement the aggregate assignment
fee for both such assignments shall be $3,000; and
(vi) the assignee of each such assignment shall execute and
deliver to the Administrative Agent any such supplements to the
Security Documents and/or additional Security Documents that may be
reasonably required by the Administrative Agent in order that the
assignee may become a secured party thereunder.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Accep tance, which effective
date shall be at least five (5) Business Days after the execution thereof, (A)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereby and (B) the Lender thereunder shall, to the extent provided in such
assignment, be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Loans with respect
to each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and an Eligible
<PAGE>
Assignee together with any Note or Notes subject to such assignment and the
written consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form of
Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and
the Borrowers; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrowers.
Within five (5) Business Days after receipt of notice, the applicable Borrower
or Borrowers shall execute and deliver to the Administrative Agent, in exchange
for the surrendered Note or Notes, a new Note or Notes to the order of such
Eligible Assignee in amounts equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes delivered to the assigning Lender.
Each surrendered Note or Notes shall be canceled and returned to the Borrowers.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans and
the Notes held by it); provided, that:
(i) each such participation shall be of a constant, and
not varying percentage of all the Assigning Lender's Commitment or
Loans under this Agreement and the commitment or the loans under the
364-Day Credit Agreement;
(ii) each such participation of the Commitment or
the Loans under this Agreement and the commitment or the loans
<PAGE>
under the 364-Day Credit Agreement shall be in an amount not
less than $5,000,000 in the aggregate;
(iii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain
unchanged;
(iv) such Lender shall remain solely responsible to
the other parties hereto for the performance of such
obligations;
(v) such Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement;
(vi) the Borrowers, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement;
(vii) such Lender shall not permit such participant the
right to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment,
reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal of any Loan or, except
as expressly contemplated hereby or thereby, release any material
portion of the Collateral or release the Guaranty; and
(viii) any such disposition shall not, without the consent
of the applicable Borrower, require such Borrower to file a
registration statement with the Securities and Exchange Commission to
apply to qualify the Loans or the Notes under the blue sky law of any
state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information. Any Lender may, in
connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 13.10, disclose to the assignee,
participant, proposed assignee or proposed participant,
<PAGE>
any information relating to the Borrowers furnished to such Lender by or on
behalf of the Borrowers; provided, that prior to any such disclosure, each such
assignee, proposed assignee, participant or proposed participant shall agree
with the Borrowers or such Lender to preserve the confidentiality of any
confidential information relating to the Borrowers received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any
Federal Reserve Bank in accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth below,
any term, covenant, agreement or condition of this Agreement or any of the other
Loan Documents may be amended or waived by the Lenders, and any consent given by
the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Required Lenders (or by the Administrative Agent with the consent
of the Required Lenders) and delivered to the Administrative Agent and, in the
case of an amendment, signed by the Borrowers; provided, that no amendment,
waiver or consent shall, without the prior written consent of each Lender, (a)
release any Borrower from its Obligations hereunder, (b) increase the amount or
extend the time of the obligation of the Lenders to make Loans (including,
without limitation, pursuant to Section 2.8), (c) extend the originally
scheduled time or times of payment of the principal of any Loan or the time or
times of payment of interest on any Loan or the time or times of any payment of
any fees hereunder, (d) reduce the rate of interest payable on any Loan or the
amount of any fees hereunder, (e) permit any subordination of the principal or
interest on any Loan, (f) release any material portion of the Collateral or
release any Security Document (other than as specifically permitted in this
Agreement or the applicable Security Document), (g) reduce the "Guaranteed
Obligations" as defined in Section 10.1 or release the Guarantor from its
Obligations under Article X, (h) release or discharge any Subsidiary Guarantor
from its obligations under any Subsidiary Guaranty Agreement or amend Section
7.12 or (i) amend the provisions of Sections 13.10(a) or this Section 13.11 or
the definition of Required Lenders. In addition, no amendment, waiver or consent
to the provisions of Article XII shall be made without the written consent of
the Administrative Agent.
SECTION 13.12 Performance of Duties. The Borrowers'
obligations under this Agreement and each of the Loan Documents
<PAGE>
shall be performed by the applicable Borrower at its sole cost and
expense.
SECTION 13.13 All Powers Coupled with Interest. All powers of attorney and
other authorizations granted to the Lenders, the Administrative Agent and any
Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied or the Credit Facility has not been
terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 13.15 Releases. Any security interest arising under or pursuant
to this Agreement in the assets of the Borrowers or any of their Subsidiaries
shall be released upon a sale of the subject assets as permitted hereunder in
accordance with the terms hereof.
SECTION 13.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for conve nience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.17 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unen forceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdic tion.
SECTION 13.18 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
<PAGE>
SECTION 13.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
[SIGNATURE PAGES FOLLOW]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
BORROWERS:
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:/s/Arthur R. Schauffert, Jr.
Name: Arthur R. Schauffert, Jr.
Title: Treasurer
[CORPORATE SEAL] UNITED STEERING SYSTEMS, INC.
By:/s/Arthur R. Schauffert, Jr.
Name: Arthur R. Schauffert, Jr.
Title: Treasurer
[CORPORATE SEAL] AUTO TRIM, INC.
By:/s/Stuart D. Boyd
Name: Stuart D. Boyd
Title: Secretary
[CORPORATE SEAL] CUSTOM TRIM, LTD.
By:/s/Stuart D. Boyd
Name: Stuart D. Boyd
Title: Secretary
<PAGE>
[CORPORATE SEAL] BREED ITALIA, S.r.l.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] BREED ITALIAN HOLDINGS, S.r.l.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director
[CORPORATE SEAL] MOMO, S.p.A.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] GALLINO PLASTURGIA, S.r.l.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] ITALTEST, S.r.l.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] BREED EUROPEAN HOLDINGS LIMITED
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
<PAGE>
[CORPORATE SEAL] HAMLIN ELECTRONICS EUROPE LIMITED
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director
[CORPORATE SEAL] UNITED STEERING SYSTEMS CLIFFORD
LIMITED
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director/Secretary
[CORPORATE SEAL] HAMLIN ELECTRONICS, GmbH
By:/s/Falk-I. Krommes
Name: Falk-I. Krommes
Title: Managing Director
[CORPORATE SEAL] VTI HAMLIN Oy
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director/President
<PAGE>
ADMINISTRATIVE AGENT:
[CORPORATE SEAL] FIRST UNION NATIONAL BANK OF
FLORIDA, as Administrative Agent
By:/s/Michael J. Carlin
Name: Michael J. Carlin
Title: Senior Vice President
<PAGE>
LENDERS:
[CORPORATE SEAL] FIRST UNION NATIONAL BANK OF
FLORIDA, as Lender
By:/s/Michael J. Carlin
Name: Michael J. Carlin
Title: Senior Vice President
<PAGE>
THE CHASE MANHATTAN BANK, as
Documentation Agent and Lender
By:/s/J. McNamara
Name: J. McNamara
Title: Vice President
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By:/s/Robert H. Wolohan
Name: Robert H. Wolohan
Title: AVP-Authorized Agent
<PAGE>
BANK OF AMERICA ILLINOIS
By:/s/Deidre B. Doyle
Name: Deirdre B. Doyle
Title: Vice President
<PAGE>
BHF-BANK AKTIENGESELLSCHAFT
By:/s/John Sykes
Name: John Sykes
Title: AVP
By:/s/Tom Scifo
Name: Tom Scifo
Title: AVP
<PAGE>
COMERICA BANK
By:/s/Mark B. Grover
Name: Mark B. Grover
Title: Vice President
<PAGE>
FLEET BANK, NATIONAL ASSOCIATION
By:/s/Craig W. Trautwein
Name: Craig W. Trautwein
Title: Vice President
<PAGE>
NATIONSBANK, N.A.
By:/s/Andrew M. Airheart
Name: Andrew M. Airheart
Title: Senior Vice President
<PAGE>
ABN AMRO BANK N.V.
By:/s/nick T. Weaver
Name: Nick T. Weaver
Title: Vice President
By:/s/Linda K. Davis
Name: Linda K. Davis
Title: Vice President
<PAGE>
THE BANK OF NOVA SCOTIA
By:/s/F.C.H. Ashby
Name: F.C.H. Ashby
Title: Senior Mgr Loan Operations
<PAGE>
THE FUJI BANK AND TRUST COMPANY
By:/s/Toshiaki Yakura
Name: Toshiaki Yakura
Title: Senior Vice President
<PAGE>
PNC BANK, KENTUCKY, INC.
By:/s/James D. Neil
Name: James D. Neil
Title: Vice President
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By:/s/Lisa Allison
Name: Lisa Allison
Title: Vice President
<PAGE>
BANCA COMMERCIALE ITALIANA - NEW
YORK BRANCH
By:/s/C. Dougherty
Name: C. Dougherty
Title: Vice President
By:/s/Karen Purelis
Name: Karen Purelis
Title: Vice President
<PAGE>
THE BANK OF NEW YORK
By:/s/David C. Siegel
Name: David C. Siegel
Title: Assistant Vice President
<PAGE>
COMMERZBANK AG, ATLANTA AGENCY
By:/s/Andreas K. Bremer
Name: Andreas K. Bremer
Title: SVP & Manager
By:/s/Mary B. Smith
Name: Mary B. Smith
Title: AVP
<PAGE>
CREDITO ITALIANO SpA
By:/s/Harmon P. Butler
Name: Harmon P. Butler
Title:First Vice President & Deputy
Manager
By:/s/Pierluigi Mainardi
Name: Pierluigi Mainardi
Title: Assistant Vice President
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY
By:/s/David Cawrse
Name: David Cawrse
Title:First Vice President & Manager
<PAGE>
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES
By:/s/John W. Sweeney
Name: John W. Sweeney
Title: Assistant Vice President
By:/s/Christopher E. Sarisky
Name: Christopher E. Sarisky
Title: Assistant Treasurer
<PAGE>
HARRIS TRUST AND SAVINGS BANK
By:/s/Peter Krawchuk
Name: Peter Krawchuk
Title: Vice President
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED, NEW YORK BRANCH
By:/s/Margaret Holloway
Name: Margaret Holloway
Title: Vice President & Manager
<PAGE>
THE SANWA BANK, LIMITED, ATLANTA
AGENCY
By:/s/P.J. Pawiak
Name:P.J. Pawiak
Title: V.P. & Senior Manager
<PAGE>
THE SUMITOMO BANK, LIMITED
By:/s/James Drum
Name: James Drum
Title: Vice President
By:/s/Brian M. Smith
Name: Brian M. Smith
Title:Senior VP & Regional Manager
(East)
<PAGE>
MERITA BANK LTD. NEW YORK BRANCH
By:/s/Anu Seppala & John Kehnle
Name: Anu Seppala & John Kehnle
Title:Vice President/Vice President
<PAGE>
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By:/s/Robert Wurster
Name: Robert Wurster
Title:First Vice President
By:/s/William De Angelo
Name: William De Angelo
Title: First Vice President
<PAGE>
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:/s/Timothy L. Polvado
Name: Timothy L. Polvado
Title:Assistant Vice President
By:/s/Mark A. Harrington
Name: Mark A. Harrington
Title:VP & Regional Manager
<PAGE>
SCHEDULE 1.1(a)
A/C BORROWERS
Name of A/C Borrower Place of Incorporation
1. BREED Technologies, Inc. United States (DE)
2. United Steering Systems, Inc. United States (DE)
3. Auto Trim, Inc. United States (TX)
4. Custom Trim, Ltd. Canada (ONT)
5. BREED Italia, S.r.l. Italy
6. BREED Italian Holdings, S.r.l. Italy
7. Momo, S.p.A. Italy
8. Gallino Plasturgia, S.r.l. Italy
9. Italtest, S.r.l. Italy
10. BREED European Holdings Limited United Kingdom
11. Hamlin Electronics Europe Limited United Kingdom
12. United Steering Systems Clifford United Kingdom
Limited
13. Hamlin [Electronics], GmbH Germany
14. VTI Hamlin Oy Finland
<PAGE>
SCHEDULE 9.2
CONTINGENT OBLIGATIONS
None.
<PAGE>
SCHEDULE 1.1(b)
LENDERS AND COMMITMENTS
COMMITMENT
LENDER PERCENTAGE COMMITMENT
First Union National Bank 7.1111111111% 14,222,222.26
of Florida
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina
28288-0608
Attention: Syndication Agency
Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 382-0288
The Chase Manhattan Bank 6.6666666667% $13,333,333.33
1 CMP 8th Floor
New York, New York 10081
Attention: Thomas M. Brennan
Associate
Telephone No.: (212) 552-7406
Telecopy No.: (212) 552-5662
The First National Bank 5.5555555556% $11,111,111.11
of Chicago
One First National Plaza
Suite 0634, 1-10
Chicago, Illinois 60670
Attention: Gloria Steinbrenner
Client Services Associate
Telephone No.: (312) 732-5714
Telecopy No.: (312) 732-4840
Bank of America Illinois 5.5555555556% $11,111,111.11
231 South LaSalle Street
Chicago, Illinois 60697
Account Administrator
Attention: Shelia Johnson
Telephone No.: (312) 828-6568
Telecopy No.: (312) 974-9626
<PAGE>
BHF-Bank Aktiengesellschaft 4.8888888889% $ 9,777,777.78
590 Madison Avenue
New York, New York 10022
Attention: Renate Boston
Telephone No.: (212) 756-5543
Telecopy No.: (212) 756-5536
<PAGE>
Comerica Bank 4.8888888889% $ 9,777,777.78
500 Woodward Avenue
Mail Code 3265, 9th Floor
Detroit, Michigan 48226-3265
Attention: Susan M. Boyd
Customer Assistant,
Automotive Group
Telephone No.: (313) 222-5548
Telecopy No.: (313) 222-3776
Fleet Bank, National Association 4.8888888889% $ 9,777,777.78
208 Harristown Road
Glen Rock, New Jersey 07452
Attention: Ceil Christie
Assistant Vice President
Telephone No.: (201) 251-5323
Telecopy No.: (201) 251-5739
NationsBank, N.A. 4.8888888889% $ 9,777,777.78
101 N. Tryon Street
NC1-001-15-06
Charlotte, North Carolina 28255
Attention: Barbara Pollock
Credit Services Rep.
Telephone No.: (704) 388-1112
Telecopy No.: (704) 386-8694
ABN AMRO Bank N.V. 4.4444444444% $ 8,888,888.89
One Ravinia Drive, Suite 1200
Atlanta, Georgia 30346
Attention: Reenie Williamson
Telephone No.: (770) 395-7990
Telecopy No.: (770) 395-9188
The Bank of Nova Scotia 4.4444444444% $ 8,888,888.89
600 Peachtree Street, NE
Suite 2700
Atlanta, Georgia 30308
Attention: Dorothy Legista
Telephone No.: (404) 877-1535
Telecopy No.: (404) 888-8998
The Fuji Bank and Trust Company 4.4444444444% $ 8,888,888.89
Two World Trade Center
79th Floor
<PAGE>
New York, New York 10048
Attention: Kathleen Barsotti
Vice President
Telephone No.: (212) 898-2065
Telecopy No.: (212) 488-8216
<PAGE>
PNC Bank, Kentucky, Inc. 4.4444444444% $ 8,888,888.89
500 W. Jefferson Street
Louisville, Kentucky 40202
Attention: Jamie Argenbright
Lending Assistant
Telephone No.: (502) 581-2086
Telecopy No.: (502) 581-2302
Toronto Dominion (Texas), Inc. 4.4444444444% $ 8,888,888.89
909 Fannin, Suite 1700
Houston, Texas 77010
Attention: Lisa Allison
Telephone No.: (713) 653-8244
Telecopy No.: (713) 951-9921
Banca Commerciale Italiana - 2.6666666667% $ 5,333,333.33
New York Branch
One William Street
New York, New York 10004
Attention: Jonathan Sahr
Loan Supervisor
Telephone No.: (212) 607-3814
Telecopy No.: (212) 607-3537
The Bank of New York 2.6666666667% $ 5,333,333.33
One Wall Street - 22N
New York, New York 10286
Attention: Annette Megargel
Administrator
Telephone No.: (212) 635-6780
Telecopy No.: (212) 635-6877
Commerzbank AG, Atlanta Agency 2.6666666667% $ 5,333,333.33
2 World Financial Center
New York, New York 10281
Attention: Gabriela Schmidtchen
Telephone No.: (212) 266-7345
Telecopy No.: (212) 266-7593
Credito Italiano SpA 2.6666666667% $ 5,333,333.33
375 Park Avenue, 2nd Floor
New York, New York 10152
Attention: Luz David
Money Desk
Telephone No.: (212) 546-9615
Telecopy No.: (212) 546-9675
<PAGE>
Credit Lyonnais Atlanta Agency 2.6666666667% $ 5,333,333.33
303 Peachtree Street, N.E.
Suite 4400
Atlanta, Georgia 30308
Attention: Pascal Seris
Telephone No.: (404) 524-3700
Telecopy No.: (404) 584-5249
Dresdner Bank AG New York 2.6666666667% $ 5,333,333.33
and Grand Cayman Branches
75 Wall Street
New York, New York 10005-2889
Attention: Gary Jermanski
Credit Services
Telephone No.: (212) 429-2674
Telecopy No.: (212) 429-2130
Harris Trust and Savings Bank 2.6666666667% $ 5,333,333.33
111 W. Monroe Street
Floor 2W
Chicago, Illinois 60603
Attention: Arlett Hall
Sr. Banking Services
Representative
Telephone No.: (312) 461-2786
Telecopy No.: (312) 461-2591
The Mitsui Trust and Banking 2.6666666667% $ 5,333,333.33
Company Limited, New York Branch
1251 Avenue of the Americas
39th Floor
New York, New York 10020-1104
Attention: Ed Simnor
Telephone No.: (212) 790-5352
Telecopy No.: (212) 768-9044
The Sanwa Bank, Limited, 2.6666666667% $ 5,333,333.33
Atlanta Agency
Park Avenue Plaza
55 E. 52nd Street
New York, New York 10055
Attention: Renko Hara
Telephone No.: (212) 339-6390
Telecopy No.: (212) 754-2368
<PAGE>
The Sumitomo Bank, Limited 2.6666666667% $ 5,333,333.33
100 S. Ashley Drive, Suite 1780
Tampa, Florida 33602
Attention: M. Phillip Freeman
Telephone No.: (813) 229-6002
Telecopy No.: (813) 229-6372
<PAGE>
Merita Bank Ltd., New York Branch 2.2222222222% $ 4,444,444.44
437 Madison Avenue
New York, New York 10022
Attention: Revella Perna
Telephone No.: (212) 318-9345
Telecopy No.: (212) 421-4420
Istituto Bancario San Paolo 2.2222222222% $ 4,444,444.44
Di Torino SPA
245 Park Avenue
New York, New York 10167
Attention: Giovanni Lugato
Account Officer
Telephone No.: (212) 692-3195
Telecopy No.: (212) 599-5303
Banque Francaise du Commerce 2.2222222222% $ 4,444,444.44
Exterieur
333 Clay Street, Suite 4340
Houston, Texas 77002
Attention: Tim Polvado
Telephone No.: (713) 759-9401
Telecopy No.: (713) 759-9908
<PAGE>
SCHEDULE 1.1(c)
FINNISH MARK LENDERS AND FINNISH MARK COMMITMENTS
COMMITMENT
LENDER PERCENTAGE COMMITMENT
First Union National Bank 50% $5,000,000.00
of Florida
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina
28288-0608
Attention: Syndication Agency
Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 382-0288
Merita Bank Ltd., New York Branch 50% $5,000,000.00
437 Madison Avenue
New York, New York 10022
Attention: Revella Perna
Telephone No.: (212) 318-9345
Telecopy No.: (212) 421-4420
<PAGE>
SCHEDULE 1.1(d)
PLEDGE AGREEMENTS AND ISSUERS
Pledge Agreement Applicable Issuers
1. BREED Pledge Agreement
2. [Subsidiary Pledge
Agreements]
<PAGE>
SCHEDULE 1.1(e)
SUBSIDIARY GUARANTORS
1. BREED Automotive Florida, Inc.
2. BREED Automotive West, Inc.
3. Hamlin, Incorporated
4. United Steering Systems, Inc.
<PAGE>
EXHIBIT A-1
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
REVOLVING CREDIT NOTE
$ _________________ April ___,1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, each of the undersigned, BREED Technologies, Inc.,
United Steering Systems, Inc., Auto Trim, Inc., Custom Trim, Ltd., BREED Italia,
S.r.l., BREED Italian Holdings, S.r.l., Momo, S.p.A., Gallino Plasturgia,
S.r.l., Italtest, S.r.l., BREED European Holdings Limited, Hamlin Electronics
Europe Limited, United Steering Systems Clifford Limited, Hamlin, GmbH and VTI
Hamlin Oy (collectively, the "Borrowers"), hereby severally promise to pay to
the order of ____________________________________ (the "Bank"), at the times, at
the place and in the manner provided in the Credit Agreement described below,
the principal sum of up to ______________________ Dollars ($_____________) or
the aggregate unpaid principal Dollar Amount of all Loans disbursed to each such
Borrower by the Bank under such Credit Agreement, together with interest at the
rates as in effect from time to time with respect to each portion of the
principal amount hereof, determined and payable as provided in Article III of
such Credit Agreement.
This Revolving Credit Note is a Revolving Credit Note referred to in,
and is entitled to the benefits of, the Five-Year Credit Agreement dated as of
April 30, 1997 (as further amended, restated,
<PAGE>
supplemented or otherwise modified from time to time, the "Credit Agreement") by
and among the Borrowers, Breed Technologies, Inc., as Guarantor, the Lenders
party thereto, First Union National Bank of Florida, as Administrative Agent,
and The Chase Manhattan Bank, as Documentation Agent. The Credit Agreement
contains, among other things, provisions for the time, place and manner of
payment of this Revolving Credit Note, the determination of the interest rate
borne by and fees payable in respect of this Revolving Credit Note, acceleration
of the payment of this Revolving Credit Note upon the happening of certain
stated events and the mandatory repayment of this Revolving Credit Note under
certain circumstances. All capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned thereto in the Credit Agreement.
The Borrowers hereby severally agree to pay on demand all costs of
collection, including reasonable attorneys' fees, if any part of this Revolving
Credit Note, principal or interest, is collected after maturity with the aid of
an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS REVOLVING CREDIT NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Revolving Credit Note is senior in right of
payment to all Subordinated Debt referred to in the Credit Agreement.
[Signature pages follow]
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this Revolving
Credit Note to be executed under seal by a duly authorized officer as of the day
and year first above written.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:/s/Arthur R. Schauffert, Jr.
Name: Arthur R. Schauffert, Jr.
Title: Treasurer
[CORPORATE SEAL] UNITED STEERING SYSTEMS, INC.
By:/s/Arthur R. Schauffert, Jr.
Name: Arthur R. Schauffert, Jr.
Title: Treasurer
[CORPORATE SEAL] AUTO TRIM, INC.
By:/s/Stuart D. Boyd
Name: Stuart D. Boyd
Title: Secretary
[CORPORATE SEAL] CUSTOM TRIM, LTD.
By:/s/Stuart D. Boyd
Name: Stuart D. Boyd
Title: Secretary
[CORPORATE SEAL] BREED ITALIA, S.R.L.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] BREED ITALIAN HOLDINGS, S.R.L.
By:/s/Charles J. Speranzella, Jr.
<PAGE>
Name: Charles J. Speranzella, Jr.
Title: Director
[CORPORATE SEAL] MOMO, S.P.A.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director
[CORPORATE SEAL] GALLINO PLASTURGIA, S.R.L.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] ITALTEST, S.R.L.
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] BREED EUROPEAN HOLDINGS LIMITED
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
[CORPORATE SEAL] HAMLIN ELECTRONICS EUROPE LIMITED
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director
[CORPORATE SEAL] UNITED STEERING SYSTEMS CLIFFORD
LIMITED
<PAGE>
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: Director/Secretary
[CORPORATE SEAL] HAMLIN ELECTRONICS, GMBH
By:/s/Falk-I. Kromees
Name: Falk- I. Krommes
Title: Managing Director
[CORPORATE SEAL] VTI HAMLIN OY
By:/s/Charles J. Speranzella, Jr.
Name: Charles J. Speranzella, Jr.
Title: President
<PAGE>
EXHIBIT A-2
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FINNISH MARK
REVOLVING CREDIT NOTE
$___________ April __, 1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, each of the undersigned, BREED Technologies, Inc. and VTI
Hamlin Oy (collectively, the "Borrowers"), hereby severally promise to pay to
the order of __________________________ (the "Bank"), at the times, at the place
and in the manner provided in the Credit Agreement described below, the
principal sum of up to ______________________ Dollars ($___________), or the
aggregate unpaid principal Dollar Amount of all Loans disbursed to each such
Borrower by the Bank under such Credit Agreement, together with interest at the
rates as in effect from time to time with respect to each portion of the
principal amount hereof, determined and payable as provided in Article III of
such Credit Agreement.
This Finnish Mark Revolving Credit Note is a Finnish Mark Revolving
Credit Note referred to in, and is entitled to the benefits of, the Five-Year
Credit Agreement dated as of April __, 1997 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement") by
and among the Borrowers, Breed Technologies, Inc., as Guarantor, the Lenders
party thereto and First Union National Bank of Florida, as
<PAGE>
Administrative Agent, and The Chase Manhattan Bank, as Documentation Agent. The
Credit Agreement contains, among other things, provisions for the time, place
and manner of payment of this Finnish Mark Revolving Credit Note, the
determination of the interest rate borne by and fees payable in respect of this
Finnish Mark Revolving Credit Note, acceleration of the payment of this Finnish
Mark Revolving Credit Note upon the happening of certain stated events and the
mandatory repayment of this Finnish Mark Revolving Credit Note under certain
circumstances. All capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned thereto in the Credit Agreement.
The Borrowers hereby severally agree to pay on demand all costs of
collection, including reasonable attorneys' fees, if any part of this Finnish
Mark Revolving Credit Note, principal or interest, is collected after maturity
with the aid of an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS FINNISH MARK REVOLVING CREDIT NOTE IS MADE AND DELIVERED IN THE
STATE OF NORTH CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Finnish Mark Revolving Credit Note is senior
in right of payment to all Subordinated Debt referred to in the Credit
Agreement.
[Signature pages follow]
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this Finnish Mark
Revolving Credit Note to be executed under seal by a duly authorized officer as
of the day and year first above written.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:
Name:
Title:
[CORPORATE SEAL] VTI HAMLIN OY
By:
Name:
Title:
<PAGE>
EXHIBIT A-3
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
SWINGLINE NOTE
$15,000,000.00 April __, 1997
FOR VALUE RECEIVED, the undersigned, BREED TECHNOLOGIES, INC., a
corporation organized under the laws of Delaware ("BREED"), hereby promises to
pay to the order of FIRST UNION NATIONAL BANK OF FLORIDA (the "Bank"), at the
times, at the place and in the manner provided in the Credit Agreement described
below, the principal sum of up to Fifteen Million and No/100 Dollars
($15,000,000.00), or, if less, the aggregate unpaid principal amount of all
Swingline Loans disbursed by the Bank under such Credit Agreement, together with
interest at the rates as in effect from time to time with respect to each
portion of the principal amount hereof, determined and payable as provided in
Article III of such Credit Agreement.
This Swingline Note is the Swingline Note referred to in, and is
entitled to the benefits of, the Five-Year Credit Agreement dated as of April
__, 1997 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement") by and among BREED and certain Subsidiaries thereof, as Borrowers,
BREED, as Guarantor, the Lenders party thereto and First Union National Bank of
Florida, as Administrative Agent, and The Chase Manhattan Bank, as Documentation
Agent. The Credit Agreement contains, among other things, provisions for the
time, place and manner of payment of this Swingline Note, the determination of
the interest rate borne by and fees payable in respect of this Swingline Note,
acceleration of the payment of this Swingline Note upon the happening of certain
<PAGE>
stated events and the mandatory repayment of this Swingline Note under certain
circumstances. All capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned thereto in the Credit Agreement.
BREED agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Swingline Note, principal or
interest, is collected after maturity with the aid of an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS SWINGLINE NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Swingline Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
<PAGE>
IN WITNESS WHEREOF, BREED has caused this Swingline Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
BREED TECHNOLOGIES, INC.
[CORPORATE SEAL]
By:
Name:
Title:
<PAGE>
EXHIBIT B
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF BORROWING
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you under Section
2.4(a) of the Five-Year Credit Agreement dated as of April ___, 1997 (as
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
by and among BREED Technologies, Inc. and certain of its Subsidiaries party
thereto (collectively, the "Borrowers"), BREED Technologies, Inc., as Guarantor,
the lenders party thereto (the "Lenders"), First Union National Bank of Florida,
as Administrative Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. The undersigned Borrower(s) hereby request(s) that the
Lenders make a Loan denominated in [Dollars] [Finnish Marks]
<PAGE>
[applicable Alternative Currency] in the aggregate principal amount
of $________________ (the "Loan").1
2. The undersigned Borrower(s) hereby request(s) that the
Loan be made on the following Business Day: _______________.2
3. This Loan shall be a _______________ Loan.3
4. The undersigned Borrower(s) hereby request(s) that the [Revolving
Credit] [Finnish Mark] Loan bear interest at the following interest rate, plus
the Applicable Margin, as set forth below:
Termination Date for Interest
[Base Rate [One, Two, or
or LIBOR Three, Six or, if
Rate]4 permitted by Lenders,
Twelve Months]
5. The principal amount of all Loans outstanding as of the date hereof
(including the requested Loan) does not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.
6. All of the conditions applicable to the Loan requested
herein as set forth in the Credit Agreement have been satisfied as
- --------
1 Complete with a Permitted Currency and an amount in accordance with Section
2.4 of the Credit Agreement.
2 Complete with a Business Day in accordance with Section 2.4 of the Credit
Agreement.
3 Complete with either "Revolving Credit", "Finnish Mark" or "Swingline" in
accordance with Section 2.3.
4 Revolving Credit Loans denominated in Dollars may bear interest at the Base
Rate or the LIBOR Rate; Revolving Credit Loans denominated in an
Alternative Currency shall bear interest at the LIBOR Rate; and Swingline
Loans shall bear interest at the Base Rate. In each case the Applicable
Margin shall be set forth in accordance with Section 3.1.
<PAGE>
of the date hereof and will remain satisfied to the date of such
Loan.
7. No Default or Event of Default exists, and none will
exist upon making the Loan requested herein.
8. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Borrowing this ____ day of _______, ____.
By:
Name:
Title:
<PAGE>
EXHIBIT C
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF PREPAYMENT
First Union National Bank
of Florida, as Administrative Agent
One First Union Center
301 South College Street, TW-10
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by
__________________, a corporation organized under the laws of _________________
(the "Borrower"), under Section 2.5(d) of the Five-Year Credit Agreement dated
as of April ___, 1997 (as amended, restated, supplemented or otherwise modified,
the "Credit Agreement"), by and among BREED Technologies, Inc. and certain of
its Subsidiaries, as Borrowers, BREED Technologies, Inc., as Guarantor, the
Lenders party thereto, First Union National Bank of Florida, as Administrative
Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. The undersigned Borrower(s) hereby provides notice to the
Administrative Agent that the undersigned Borrower(s) shall repay
<PAGE>
the following Base Rate Loans and/or LIBOR Rate Loans and/or
Swingline Loans: ____________________.1
2. The undersigned Borrower(s) shall repay the above
referenced Loans on the following Business Day: _______________.2
3. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of _______, 19__.
[CORPORATE SEAL]
By:______________________________
Name:_________________________
Title:________________________
- --------
1 Complete with an amount in accordance with Section 2.5(d) of the Credit
Agreement. If the Loan to be repaid is a LIBOR Rate Loan, specify
whether such Loan (i) is a Revolving Credit Loan or a Finnish Mark Loan
and (ii) is denominated in Dollars or an Alternative Currency
(including, without limitation, Finnish Marks).
2 Complete with a Business Day in accordance with Section 2.5(d) of the
Credit Agreement.
<PAGE>
EXHIBIT D
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF CONVERSION/CONTINUATION
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 3.2 of the Five-Year Credit Agreement dated as of
April __, 1997 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), by and among BREED Technologies, Inc. and certain
Subsidiaries, as Borrowers, BREED Technologies, Inc., as Guarantor, the lenders
party thereto (the "Lenders"), First Union National Bank of Florida, as
Administrative Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. This Notice of Conversion/Continuation is submitted for
the purpose of: (Complete applicable information.)
(a) [Converting] [continuing] a Loan [into]
[as] a Loan.1
<PAGE>
(b) Such Loan is denominated in [Insert Permitted Currency] and
the Dollar Amount of the aggregate outstanding principal
balance of such Loan is $__________.
(c) The last day of the current Interest Period for such Loan
is .2
(d) The principal amount of such Loan to be [converted]
[continued] is $_______________.3
(e) The requested effective date of the [conversion]
[continuation] of such Loan is _______________.4
(f) The requested Interest Period applicable to the
[converted] [continued] Loan is _______________.5
2. The principal amount of all Loans outstanding as of the date hereof
does not exceed the maximum amount permitted to be outstanding pursuant to the
terms of the Credit Agreement.
3. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
4. No Default or Event of Default exists, and none will
exist upon the conversion or continuation of the Loan requested
herein.
5. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/Continuation this ____ day of __________, 19__.
By:
Name:
Title:
<PAGE>
EXHIBIT E
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of BREED Technologies, Inc., a corporation
organized under the laws of Delaware ("Breed"), on behalf of the Borrowers
described below, hereby certifies to First Union National Bank of Florida, as
Administrative Agent (the "Administrative Agent"), as follows:
1. This Certificate is delivered to you pursuant to Section 6.2 of the
Five-Year Credit Agreement dated as of April __, 1997 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), by and among BREED
and certain Subsidiaries thereof, as Borrowers, BREED, as Guarantor, the lenders
party thereto (the "Lenders"), the Administrative Agent and The Chase Manhattan
Bank, as Documentation Agent. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of Breed and its
Subsidiaries dated as of _______________ and for the _______________ period[s]
then ended and such statements fairly present the financial condition of BREED
and its Subsidiaries as of the dates indicated and the results of their
operations and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and the
related Loan Documents and have made, or caused to be made under my supervision,
a review in reasonable detail of the
<PAGE>
transactions and the condition of BREED and its Subsidiaries during the
accounting period covered by the financial statements referred to in Paragraph 2
above. Such review has not disclosed the existence during or at the end of such
accounting period of any condition or event that constitutes a Default or an
Event of Default, nor do I have any knowledge of the existence of any such
condition or event as at the date of this Certificate [except, [if such
condition or event existed or exists, describe the nature and period of
existence thereof and what action the Borrowers have taken, are taking and
propose to take with respect thereto]].
4. The Applicable Margin and calculations determining such
figure are set forth on the attached Schedule 1.
5. BREED and its Subsidiaries are in compliance with the covenants
contained in Article VIII of the Credit Agreement as shown on such Schedule 1
and BREED and its Subsidiaries are in compliance with the other covenants and
restrictions contained in Articles VII and IX of the Credit Agreement.
6. The calculations of the total assets of each Subsidiary of BREED for
the purpose of determining which Subsidiaries are Material Subsidiaries are set
forth on the attached Schedule 1.
WITNESS the following signatures as of the _____ day of______, _____
BREED TECHNOLOGIES, INC.
By:
Name:
Title:
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
I. Applicable Margin.
[To Be Completed Pursuant to the Credit Agreement]
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
II. Compliance with the Financial Covenants.
A. Leverage Ratio.
[To Be Completed Pursuant to the Credit Agreement]
B. Minimum Net Worth.
[To Be Completed Pursuant to the Credit Agreement]
C. Interest Coverage Ratio.
[To Be Completed Pursuant to the Credit Agreement]
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
III. Total Assets of each Subsidiary.
A. Material Subsidiaries.
Percentage of
Subsidiary Total Assets Total Assets
1.
2.
3.
Note: Breed and the Subsidiaries of Breed which comprise
"Material Subsidiaries" (as defined in the Credit
Agreement) shall at all times have total assets equal
to or greater than ninety percent (90%) of the
Consolidated total assets of Breed and its
Subsidiaries.
B. Non-Material Subsidiaries.
Percentage of
Subsidiary Total Assets Total Assets
1.
2.
3.
<PAGE>
EXHIBIT F
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
ASSIGNMENT AND ACCEPTANCE
Dated _________
Reference is made to the Five-Year Credit Agreement dated as of April
__, 1997 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), by and among BREED Technologies, Inc. and certain Subsidiaries
thereof, as Borrowers, BREED Technologies, Inc., as Guarantor, the lenders party
thereto (the "Lenders"), First Union National Bank of Florida, as Administrative
Agent (the "Administrative Agent") and The Chase Manhattan Bank, as
Documentation Agent. Capitalized terms which are defined in the Credit Agreement
and which are used herein without definition shall have the same meanings herein
as in the Credit Agreement.
_____________________________________ (the "Assignor") and
____________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a ____% interest (the "Assigned Interest") in and to
all of the Assignor's interests, rights and obligations under the Credit
Agreement and the other Loan Documents and all Collateral and the Assignor
thereby retains ____% of its interest therein (the "Retained Interest"). This
Assignment and Acceptance is entered pursuant to, and authorized by, Section
13.10 of the Credit Agreement.
6
<PAGE>
2. The Assignor (a) represents that, as of the date hereof, (i) its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) under the Credit Agreement, (ii) the outstanding
balance of its Revolving Credit Loans (unreduced by any assignments thereof
which have not yet become effective) under the Credit Agreement [, (iii) the
outstanding balance of its Finnish Mark Loans (unreduced by any assignments
thereof which have not yet become effective) under the Credit Agreement and (iv)
the outstanding balance of its Swingline Loans (unreduced by any assignments
thereof which have not yet become effective)] are each set forth in Section 2 of
Schedule I hereto; (b) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that the Assignor is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (c) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of their
obligations under the Credit Agreement or any other Loan Document; and (d)
attaches the Revolving Credit Note [, the Finnish Mark Note and the Swingline
Note, as applicable] delivered to it under the Credit Agreement and requests
that the Borrowers exchange such [Note] [Notes] for new Notes payable to each of
the Assignor and the Assignee as follows:
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
$_________
$_________
Finnish Mark Note
Payable to the Order of: Principal Amount of Note:
$_________
$_________
<PAGE>
Swingline Note
Payable to the Order of: Principal Amount of Note:
$_________
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it will, independently and without reliance upon the Assignor or any
other Lender or the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (d)
confirms that it is an Eligible Assignee; (e) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement and the other Loan Documents as are
delegated to the agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (f) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
and the other Loan Documents are required to be performed by it as a Lender; and
(g) agrees that it will keep confidential all non-public information with
respect to the Borrowers obtained pursuant to the Loan Documents in accordance
with Section 13.10(g) of the Credit Agreement.
4. The effective date for this Assignment and Acceptance shall be as
set forth in Section 1 of Schedule I hereto (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for consent thereby and by the Borrowers and acceptance and
recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
<PAGE>
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A
CONTRACT UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE Of NORTH CAROLINA, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
<PAGE>
ASSIGNOR:
Commitment Percentage ____%
By:
Name:
Title:
ASSIGNEE:
Commitment Percentage ____%
By:
Name:
Title:
<PAGE>
Acknowledged and Consented to by:
BREED TECHNOLOGIES, INC., on behalf of
itself and the other Borrowers
By:____________________________________
Name: _____________________________
Title: _____________________________
Consented to and Accepted by:
FIRST UNION NATIONAL BANK OF FLORIDA,
as Administrative Agent
By:____________________________________
Name:______________________________
Title:______________________________
<PAGE>
Schedule I
to
Assignment and Acceptance
1. Effective Date
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage
of Assignor %
(b) Outstanding balance
of Assignor's Revolving
Credit Loans $
[(c) Outstanding balance of
Assignor's Finnish Mark Loans $
(d) Outstanding balance of
Assignor's Swingline
Loans $ ]
3. Assigned Interest
(from Section 1) %
4. Assignee's Extensions of Credit
After Effective Date
(a) Outstanding balance of
Assignee's Revolving
Credit Loans
(line 2(b) times line 3) $
[(b) Outstanding balance of
Assignee's Finnish Mark Loans
(line 2(b) times 3) $
(c) Outstanding balance of
Assignee's Swingline Loans
(line 2(d)) $ ]
5. Retained Interest of Assignor after
Effective Date
(a) Retained Interest (from
Section 1) %
<PAGE>
(b) Outstanding balance of
Assignor's Revolving Credit
Loans (line 2(b) times
line 5(a)) $
[(c) Outstanding balance of
Assignor's Finnish Mark Loans
(line 2(c) times line 5(a)) $
(d) Outstanding balance of
Assignor's Swingline Loans
(line 2(d) times line 5(a)) $ ]
6. Payment Amount $
7. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
Routing No.:
Account No.:
Attn:
Reference:
(b) If payable to Assignee,
to the account of Assignee to:
Routing No.:
Account No.:
Attn:
Reference:
<PAGE>
EXHIBIT G
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF ACCOUNT DESIGNATION
Dated _________
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by BREED
Technologies, Inc., a corporation organized under the laws of Delaware
("BREED"), on behalf of the Borrowers described below, under Section 4.2(f)(i)
of the Five-Year Credit Agreement dated as of April __, 1997 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement") by and
among BREED and certain Subsidiaries thereof, as Borrowers, BREED, as Guarantor,
the Lenders party thereto, First Union National Bank of Florida, as
Administrative Agent (the "Administrative Agent"), and The Chase Manhattan Bank,
as Documentation Agent.
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
3
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of _______, 19__.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT H
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FORM OF PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of April __,
1997, is made by __________________________, a corporation organized under the
laws of ____________ (the "Pled gor"), in favor of FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association, as Administrative Agent (the
"Administrative Agent"), for the ratable benefit of itself and the financial
institutions (the "Lenders") that are, or may from time to time become, parties
to the Credit Agreements (as hereinafter defined).
STATEMENT OF PURPOSE
Pursuant to the terms of the Five-Year Credit Agreement of even date by
and among BREED Technologies, Inc. ("BREED") and certain of its subsidiaries, as
Borrowers, BREED, as Guarantor, the Lenders party thereto, the Administrative
Agent and The Chase Manhattan Bank, as Documentation Agent (as amended,
restated, supplemented or otherwise modified from time to time, the "Five-Year
Credit Agreement") and the 364-Day Credit Agreement of even date by and among
BREED and certain of its subsidiaries, as Borrow ers, BREED, as Guarantor, the
Lenders party thereto, the Administrative Agent and The Chase Manhattan Bank, as
Documentation Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "364-Day Credit Agreement" and, together with the
Five-Year Credit Agreement, the "Credit Agreements"), the Lenders extended
certain credit facilities to the Borrowers as more particularly described
therein.
<PAGE>
The Pledgor is the legal and beneficial owner of (a) the shares of
Pledged Stock (as hereinafter defined) issued by certain corporations as
specified on Schedule I attached hereto and incor porated herein by reference
(collectively, the "Issuers") and (b) the Partnership Interests (as hereinafter
defined) in the partner ships and limited liability companies listed on Schedule
I hereto (collectively, the "Partnerships").
In connection with the transactions contemplated by the Credit
Agreements and as a condition precedent thereto, the Lenders have requested, and
the Pledgor has agreed to execute and deliver, this Pledge Agreement with the
Pledged Stock to the Administrative Agent, for the ratable benefit of itself and
the Lenders.
NOW, THEREFORE, in consideration of the foregoing premises and to
induce the Administrative Agent and the Lenders to enter into and make available
Loans pursuant to the Credit Agreements, the Pledgor hereby agrees with the
Administrative Agent, for the ratable benefit of itself and the Lenders.
1. Defined Terms. Unless otherwise defined herein, terms which are defined
in the Credit Agreements and used herein are so used as so defined, and the
following terms shall have the following meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of North Carolina.
"Collateral" means the Stock Collateral and the
Partnership Collateral.
"Obligations" means the collective reference to the Pledgor's
obligations under each Credit Agreement and each Loan Document to which
such Pledgor is a party.
"Partnership Collateral" means all of the Partnership Inter-
ests of the Pledgor in the Partnerships and all Proceeds therefrom.
"Partnership Interests" means the entire partnership or
membership interest of the Pledgor in each Partnership listed on
Schedule I hereto, including, without limita tion, the Pledgor's
capital account, its or his interest as a partner or member in the net
cash flow, net profit and net loss, and items of income, gain, loss,
deduction
<PAGE>
and credit of the Partnerships, its interest in all distributions made
or to be made by the Partnerships to the Pledgor and all of the other
economic rights, titles and interests of the Pledgor as a partner or
member of the Partnerships, whether set forth in the partnership
agreement or membership agreement of the Partnerships, by separate
agreement or otherwise.
"Pledge Agreement" means this Pledge Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
"Pledged Stock" means the shares of capital stock of each
Issuer listed on Schedule I hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be
issued or granted by such Issuer to the Pledgor while this Pledge
Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(1) of the Code on the date hereof and, in any event,
shall include, without limi tation, all dividends or other income from
the Pledged Stock and Partnership Interests, collections thereon,
proceeds of sale thereof or distributions with respect thereto.
"Stock Collateral" means the Pledged Stock and all
Proceeds therefrom.
2. Pledge and Grant of Security Interest. The Pledgor hereby delivers
to the Administrative Agent, for the ratable benefit of itself and the Lenders,
all the Pledged Stock and hereby grants to the Administrative Agent, for the
ratable benefit of itself and the Lenders, a first priority security interest in
the Pledged Stock and all other Collateral, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
<PAGE>
3. Stock Powers; Register of Pledge.
(a) Concurrently with the delivery to the Administrative Agent of each
certificate representing one or more shares of Pledged Stock, the Pledgor shall
deliver an undated stock power covering such certificate, duly executed in blank
by the Pledgor with, if the Administrative Agent so requests, signature guaran
teed.
(b) Concurrently with the execution of this Pledge Agreement, the
Pledgor will send to each Partnership written instructions substantially in the
form of Exhibit A hereto and shall cause each Partnership to, and each
Partnership shall, deliver to the Administrative Agent the Transaction Statement
in the form of Exhibit B hereto, confirming that each Partnership has registered
the pledge effected by this Pledge Agreement on its books.
4. Pledgor Remains Liable. Anything herein to the contrary
notwithstanding, (a) the Pledgor shall remain liable to perform all of its
duties and obligations as a partner of the Partnerships to the same extent as if
this Pledge Agreement had not been executed, (b) the exercise by the
Administrative Agent or any Lender of any of its rights hereunder shall not
release the Pledgor from any of its duties or obligations as a partner of the
Partnerships, and (c) neither the Administrative Agent nor any Lender shall have
any obligation or liability as a partner of the Partnerships by reason of this
Pledge Agreement.
5. Representations and Warranties. To induce the Administrative Agent and
the Lenders to execute the Credit Agreements and make any Loans and to accept
the security contemplated hereby, the Pledgor hereby represents and warrants
that:
(a) the Pledgor has the corporate power, authority and legal
right to execute and deliver, to perform its obligations under, and to
grant the Lien on the Collateral pursuant to, this Pledge Agreement and
has taken all necessary corporate action to authorize its execution,
delivery and performance of, and grant of the Lien on the Collateral
pursuant to, this Pledge Agreement;
(b) this Pledge Agreement constitutes a legal, valid and
binding obligation of the Pledgor enforceable against the Pledgor in
accordance with its terms, except as enforceability
<PAGE>
may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and by the availability of equitable remedies;
(c) the execution, delivery and performance of this Pledge
Agreement will not violate any provision of any Applicable Law or
contractual obligation of the Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or the
revenues of the Pledgor pursuant to any Applicable Law or contractual
obligation, except as contemplated hereby and by the Credit Agreements;
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of the Pledgor or any Issuer or any general or
limited partner of any Partnership), is required in connection with the
execution, delivery, performance, validity or enforceability against
the Pledgor of this Pledge Agreement, except (i) as may be required in
connection with the disposition of the Pledged Stock and the
Partnership Interests by laws affecting the offering and sale of
securities generally, and (ii) filings under the Uniform Commercial
Code;
(e) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this Pledge
Agreement or any of the transactions contemplated hereby;
(f) the shares of Pledged Stock listed on Schedule I
constitute all of the issued and outstanding shares of all classes of
the capital stock of each Issuer that is a Domestic Subsidiary and
constitute _____% of all of the issued and outstanding shares of all
classes of capital stock of each Issuer that is a Foreign Subsidiary,
and Schedule I accurately reflects such Pledgor's Partnership Interest
in each of the Partnerships and the Partnership Interests pledged by
the Pledgor constitute all of the outstanding ownership interests in
which the Pledgor has any right, title or interest in each Partnership
which is a Domestic Subsidiary and constitutes _____% of the
outstanding ownership interests in which the
<PAGE>
Pledgor has any right, title and interest in each Partnership
which is a Foreign Subsidiary;
(g) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable and all of the
Partnership Interests have been duly and validly issued;
(h) the Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock and Partnership
Interests listed on Schedule I, free of any and all Liens or options in
favor of, or claims of, any other Per son, except the Credit Agreements
and the Lien created by this Pledge Agreement;
(i) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock, the Lien granted pursuant to
this Pledge Agreement will constitute a valid, perfected first priority
Lien on the Collateral, enforceable as such against all creditors of
the Pledgor and any Persons purporting to purchase any of the
Collateral from the Pledgor; and
(j) the Pledgor has delivered to the Administrative Agent true
and complete copies of the partnership agreements for each of the
Partnerships which partnership agreements are currently in full force
and effect and have not been amended or modified except as disclosed to
the Administrative Agent in writing.
6. Certain Covenants. The Pledgor covenants and agrees with
the Administrative Agent, for the ratable benefit of itself and the
Lenders, that, from and after the date of this Pledge Agreement
until the Obligations are paid in full and the Commitments are
terminated:
(a) On or before the date of execution of this Pledge
Agreement, the Pledgor shall cause each of the partners of each of the
Partnerships to execute a consent in the form attached hereto
evidencing the consent of the partners to the pledge of the Partnership
Interests pursuant to this Pledge Agreement.
(b) The Pledgor agrees that as a partner in the Partner
ships it will abide by, perform and discharge each and every
<PAGE>
obligation, covenant and agreement to be abided by, performed or
discharged by Pledgor under the terms of the partnership agreements of
the Partnerships, at no cost or expense to the Administrative Agent and
the Lenders.
(c) If the Pledgor shall, as a result of its ownership of the
Collateral, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any of the Collateral, or otherwise in respect thereof,
the Pledgor shall accept the same as the agent of the Administrative
Agent, hold the same in trust for the Administrative Agent and deliver
the same forthwith to the Administrative Agent in the exact form
received, duly indorsed by the Pledgor to the Administrative Agent, if
required, together with an undated stock power covering such
certificate duly executed in blank by the Pledgor and with, if the
Administrative Agent so requests, signature guaranteed, to be held by
the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Obligations; provided, that at no time
shall the Pledged Stock or Partnership Interests of any Issuer or
Partnership that is a Foreign Subsidiary exceed 66.00% of the Pledged
Stock or Partnership Interests of such Subsidiary. In addition, any
sums paid upon or in respect of the Collateral upon the liquidation or
disso lution of any Issuer or Partnership shall be held by the
Administrative Agent as additional collateral security for the
Obligations.
(d) Without the prior written consent of the Administrative
Agent, the Pledgor will not (i) vote to enable, or take any other
action to permit, any Issuer or Partnership to issue any stock,
partnership interests, limited liability company interests or other
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock, partnership interests, limited liability company interests or
other equity securities of any nature of such Issuer or Partnership,
(ii) except as expressly provided to the contrary herein, consent to
any modification, extension or alteration of the terms of any
partnership agreement of the Partnerships, (iii) accept a
<PAGE>
surrender of any partnership agreement of any of the Partner ships or
waive any breach of or default under any partnership agreement of any
of the Partnerships by any other party there to, (iv) sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with
respect to, the Collateral, or (v) create, incur or permit to exist any
Lien or option in favor of, or any claim of any Person with respect to,
any of the Collateral, or any interest therein, except for the Lien
provided for by this Pledge Agreement. The Pledgor will defend the
right, title and interest of the Administrative Agent in and to the
Collateral against the claims and demands of all Persons whomsoever.
(e) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Pledge Agreement and
of the rights and powers herein granted. If any amount payable under or
in connection with any of the Collateral shall be or become evidenced
by any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfac tory to the
Administrative Agent, to be held as Collateral pursuant to this Pledge
Agreement.
(f) The Pledgor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other similar taxes which may be payable or determined
to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Pledge Agreement.
(g) On or prior to the formation or acquisition of any
Subsidiary of the Pledgor, the Pledgor agrees to execute such
amendments and supplements to this Pledge Agreement, including, without
limitation, the Pledge Agreement Supplement attached hereto, and such
other documents and instruments as required pursuant to Section 7.12 of
each Credit Agreement.
7. Cash Dividends and Distributions; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the
<PAGE>
Administrative Agent shall have given notice to the Pledgor of the
Administrative Agent's intent to exercise its rights pursuant to Paragraph 8
below, the Pledgor shall be permitted to receive all cash dividends and
shareholder and partnership distributions paid in accordance with the terms of
each Credit Agreement in respect of the Collateral and to exercise all voting
and corporate or partnership rights, as applicable, with respect to the
Collateral; provided, that no vote shall be cast or corporate or partnership
right exercised or other action taken which, in the Administrative Agent's
reasonable judgment, would impair the collateral or which would be inconsistent
with or result in any violation of any provision of either Credit Agreement, the
Notes, any other Loan Documents or this Pledge Agreement.
8. Rights of the Administrative Agent.
(a) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the Pledgor, (i) the Administrative Agent shall have the right to receive any
and all cash dividends paid in respect of the Pledged Stock and partnership
distributions in respect of the Partnership Interests and make application
thereof to the Obligations in the order set forth in Section 3.5 of each Credit
Agreement and (ii) all shares of the Pledged Stock and the Partnership Interests
shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (A) all voting,
corporate, partnership and other rights pertaining to such shares of the Pledged
Stock or Partnership Interests at any meeting of sharehold ers or partners of
the applicable Issuer or Partnership or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Stock or Partnership Interests as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock or Partnership
Interests upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of the applicable Issuer or
Partnership, or upon the exercise by the Pledgor or the Administrative Agent of
any right, privilege or option pertaining to such shares of the Pledged Stock or
the Partnership Interests, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock or the Partnership Interests with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as it may determine), all without liability
<PAGE>
except to account for property actually received by it, but the Administrative
Agent shall have no duty to the Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing.
(b) The rights of the Administrative Agent and the Lenders hereunder
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent or any Lender of any right or remedy against the Pledgor or against any
other Person which may be or become liable in respect of all or any part of the
Obligations or against any collateral security therefor, guarantee thereof or
right of offset with respect thereto. Neither the Administrative Agent nor any
Lender shall be liable for any failure to demand, collect or realize upon all or
any part of the Collateral or for any delay in doing so, nor shall the
Administrative Agent be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or any other Person or to take any
other action whatsoever with regard to the Collateral or any part thereof.
9. Remedies. If an Event of Default shall occur and be continuing, with
the consent of the Required Lenders, the Administrative Agent may, and upon the
request of the Required Lenders, the Administrative Agent shall, exercise on
behalf of itself and the Lenders, all rights and remedies granted in this Pledge
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, and in addition thereto, all rights and remedies of
a secured party under the Code. Without limiting the generality of the foregoing
with regard to the scope of the Administrative Agent's remedies, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgor, any Issuer, any
Partnership or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Administrative Agent or any Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit
<PAGE>
risk. The Administrative Agent or any Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Pledgor, which right or equity is
hereby waived or released. The Administrative Agent shall apply any Proceeds
from time to time held by it and the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, after deducting all
reasonable costs and expenses of every kind incurred in respect thereof or
incidental to the care or safekeep ing of any of the Collateral or in any way
relating to the Collateral or the rights of the Administrative Agent and the
Lenders hereunder, including, without limitation, reasonable attorneys' fees and
disbursements of counsel thereto, to the payment in whole or in part of the
Obligations, in the order set forth in Section 3.5 of each Credit Agreement, and
only after such application and after the payment by the Administrative Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Administrative Agent
account for the surplus, if any, to the Pledgor. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands it may
acquire against the Administrative Agent or any Lender arising out of the
exercise by them of any rights hereunder. If any notice of a proposed sale or
other disposition of Collateral shall be required by law, such notice shall be
deemed reasonable and proper if given at least ten (10) days before such sale or
other disposition. The Pledgor further waives and agrees not to assert any
rights or privileges which it may acquire under Section 9-112 of the Code.
10. Registration Rights; Private Sales.
(a) If the Administrative Agent shall determine to exercise its right
to sell any or all of the Pledged Stock pursuant to Paragraph 9 hereof, and if
in the opinion of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), the
Pledgor will cause the applicable Issuer to (i) execute and deliver, and cause
the directors and officers of the applicable Issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the reasonable opinion of the Administrative Agent, necessary or
advis able to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) to use its
<PAGE>
best efforts to cause the registration statement relating thereto to become
effective and to remain effective for a period of one year from the date of the
first public offering of the Pledged Stock, or that portion thereof to be sold,
and (iii) to make all amendments thereto and/or to the related prospectus which,
in the opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Pledgor agrees to cause the applicable Issuer to comply with the provisions of
the securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) The Pledgor recognizes that the Administrative Agent may be unable
to effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be com pelled to resort to one or more private sales
thereof to a re stricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstanc es, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent shall be under no obligation to delay a sale of any of the Pledged Stock
for the period of time necessary to permit the applicable Issuer to register
such securities for public sale under the Securities Act, or under applicable
state securities laws, even if the applicable Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Collateral pursuant to this Paragraph 10 valid and
binding and in compliance with any and all other Applicable Laws. The Pledgor
further agrees that a breach of any of the covenants contained in this Paragraph
10 will cause irreparable injury to the Administrative Agent and the Lenders not
compensable in damages, that the Administrative Agent and the Lenders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant
<PAGE>
contained in this Paragraph 10 shall be specifically enforceable against the
Pledgor, and the Pledgor hereby waives and agrees not to assert any defenses
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under either Credit Agreement.
11. Amendments, etc. With Respect to the Obligations. The Pledgor shall
remain obligated hereunder, and the Collateral shall remain subject to the Lien
granted hereby, notwithstanding that, without any reservation of rights against
the Pledgor, and without notice to or further assent by the Pledgor, any demand
for payment of any of the Obligations made by the Administrative Agent or any
Lender may be rescinded by the Administrative Agent or such Lender, and any of
the Obligations continued, and the Obligations, or the liability of the Pledgor
or any other Person upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered, or released by the Administrative Agent or any
Lender, and either Credit Agreement, the Notes, any other Loan Documents and any
other documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or part, as the Lenders (or the
Required Lenders, as the case may be) may deem advisable from time to time, and
any guarantee, right of offset or other collateral security at any time held by
the Administrative Agent or any Lender for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the Administrative
Agent nor any Lender shall have any obligation to protect, secure, perfect or
insure any other Lien at any time held by it as security for the Obligations or
any property subject thereto. The Pledgor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations and notice of
or proof of reliance by the Administrative Agent or any Lender upon this Pledge
Agreement; the Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred in reliance upon this Pledge
Agreement; and all dealings between the Pledgor, on the one hand, and the
Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Pledge Agreement. The Pledgor waives dili gence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Pledgor with
respect to the Obligations.
<PAGE>
12. No Subrogation. Notwithstanding any payment or payments made by the
Pledgor hereunder, or any setoff or application of funds of the Pledgor by the
Administrative Agent, or the receipt of any amounts by the Administrative Agent
with respect to any of the Collateral, the Pledgor shall not be entitled to be
subrogated to any of the rights of the Administrative Agent against any Borrower
or the Guarantor or against any other collateral security held by the
Administrative Agent for the payment of the Obligations, nor shall the Pledgor
seek any reimbursement from any Borrower or the Guarantor in respect of payments
made by the Pledgor in connection with the Collateral, or amounts realized by
the Administrative Agent in connection with the Collateral, until all amounts
owing to the Administrative Agent and Lenders on account of the Obligations are
paid in full and each Credit Agreement is terminated. If any amount shall be
paid to the Pledgor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, such amount shall be held
by the Pledgor in trust for the Administrative Agent, segregated from other
funds of the Pledgor, and shall, forthwith upon receipt by the Pledgor, be
turned over to the Administrative Agent in the exact form received by the
Pledgor (duly indorsed by the Administrative Agent, if required) to be applied
against the Obligations, whether matured or unmatured, in such order as set
forth in each Credit Agreement.
13. Limitation on Duties Regarding Collateral. The Administrative
Agent's sole duty with respect to the custody, safe keeping and physical
preservation of the Collateral in its posses sion, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. Neither the Administrative Agent, any Lender nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or otherwise.
14. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral constitute
irrevocable powers coupled with an interest.
15. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
<PAGE>
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
16. Paragraph Headings. The paragraph headings used in this Pledge
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
17. No Waiver; Cumulative Remedies. Neither the Administrative Agent
nor any Lender shall by any act (except by a written instrument pursuant to
Paragraph 18 hereof) be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
18. Waivers and Amendments; Successors and Assigns; Governing Law. None
of the terms or provisions of this Pledge Agreement may be amended, supplemented
or otherwise modified except by a written instrument executed by the Pledgor and
the Administrative Agent; provided that any consent by the Administrative Agent
to any waiver, amendment, supplement or modification hereto shall be subject to
approval thereof by the Lenders or Required Lenders, as applicable, in
accordance with Section 13.11 of each Credit Agreement. This Pledge Agreement
shall be binding upon the succes sors and assigns of the Pledgor and shall inure
to the benefit of the Administrative Agent, the Lenders and their respective
succes sors and assigns. This Pledge Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of North
Carolina.
<PAGE>
19. Notices. All notices and communications hereunder shall
be given to the addresses and otherwise in accordance with Section
13.1 of each Credit Agreement.
20. Irrevocable Authorization and Instruction to Issuers. The Pledgor
hereby authorizes and instructs each Issuer and Partnership to comply with any
instruction received by it from the Administrative Agent in writing that (a)
states that an Event of Default has occurred and is continuing and (b) is
otherwise in accordance with the terms of this Pledge Agreement, without any
other or further instructions from the Pledgor, and the Pledgor agrees that such
Issuer and Partnership shall be fully protected in so complying.
21. Authority of Administrative Agent. The Pledgor acknowl edges that
the rights and responsibilities of the Administrative Agent under this Pledge
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreements and
by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Pledgor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
itself and the Lenders with full and valid authority so to act or refrain from
acting, and neither the Pledgor nor any Issuer or Partnership shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
22. Consent to Jurisdiction. The Pledgor hereby irrevocably consents to
the personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina, in any action, claim or other proceeding arising out of
or any dispute in connection with this Pledge Agreement, any rights or
obligations hereunder, or the performance of such rights and obligations. The
Pledgor hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the
Administrative Agent or any Lender in connection with this Pledge Agreement, any
rights or obligations hereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner provided in
Section 13.1 of each Credit Agreement. Nothing in this Paragraph 22 shall affect
the right of the Administrative Agent or any Lender to serve legal
<PAGE>
process in any other manner permitted by Applicable Law or affect the right of
the Administrative Agent or any Lender to bring any action or proceeding against
the Pledgor or its properties in the courts of any other jurisdictions.
23. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Pledge Agreement
or any other Loan Documents ("Disputes"), between or among parties to this
Pledge Agreement or any other Loan Document shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by a party
does not waive the right of that party to demand arbitration hereunder. Disputes
may include, without limitation, tort claims, counterclaims, claims brought as
class actions, claims arising from Loan Documents executed in the future, or
claims concerning any aspect of the past, present or future relationships
arising out or connected with the Loan Documents. Arbitration shall be conducted
under and governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association and Title 9 of the
U.S. Code. All arbitration hearings shall be conducted in Charlotte, North
Carolina. The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000. All
applicable statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys. The
single arbitrator selected for expedited procedure shall be a retired judge from
the highest court of general jurisdiction, state or federal, of the state where
the hearing will be conducted.
(b) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE PLEDGOR HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS PLEDGE AGREEMENT
OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
<PAGE>
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (ii) all rights of
self help including peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
24. Entire Agreement; Term of Agreement. This Agreement, together with
the other Loan Documents, constitutes the entire agreement with respect to the
subject matter hereof and supersedes all prior agreements with respect to the
subject matter hereof. This Agreement shall remain in effect from the Closing
Date through and including the date upon which all Obligations shall have been
indefeasibly and irrevocably paid and satisfied in full and the Commitments
terminated.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND CONSENT
Each Issuer of Pledged Stock referred to in the foregoing Pledge
Agreement hereby acknowledges receipt of a copy thereof and agrees to be bound
thereby and to comply with the terms thereof insofar as such terms are
applicable to it. Each Issuer agrees to notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in Paragraph 6(c) of
the Pledge Agreement. Each Issuer further agrees that the terms of Paragraph 10
of the Pledge Agreement shall apply to it with respect to all actions that may
be required of it under or pursuant to or arising out of Paragraph 10 of the
Pledge Agreement.
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND CONSENT BY EACH PARTNERSHIP
The undersigned partners of the Partnership referred to in the
foregoing Pledge Agreement (a) hereby acknowledge receipt of a copy thereof, (b)
hereby acknowledge and consent to the pledge of the Pledgor's interest in the
Partnership pursuant thereto and upon exercise by the Administrative Agent of
its remedies thereunder and at the option of the Administrative Agent, the
substitution of the Administrative Agent as a partner in the Partnership, and
(c) agree that the Administrative Agent may freely assign its interest
thereunder without further consent of the partners.
, ,
__________ Partner of __________ Partner of
<PAGE>
SCHEDULE I
To Pledge
Agreement
DESCRIPTION OF PLEDGED STOCK
Subsidiaries
Percentage of
all Outstanding
issued
Issuer Class of Stock Certificate No. No. of Shares Capital Stock
DESCRIPTION OF PARTNERSHIP INTEREST
Partnerships
Partnership Partnership Interest
<PAGE>
PLEDGE AGREEMENT SUPPLEMENT
PLEDGE AGREEMENT SUPPLEMENT, dated as of _______________, _____ (the
"Supplement"), made by ______________________________, a corporation organized
under the laws of ______________________ (the "Pledgor"), in favor of FIRST
UNION NATIONAL BANK OF FLORIDA, a national banking association, as
Administrative Agent (in such capacity, the "Administrative Agent"), under the
Credit Agreements (as defined in the Pledge Agreement referred to below), for
the benefit of itself and the Lenders.
1. Reference is hereby made to that Pledge Agreement, dated as of April
__, 1997, made by the Pledgor in favor of the Administrative Agent (as amended,
restated, supplemented or otherwise modified as of the date hereof, the "Pledge
Agreement"). This Supplement supplements the Pledge Agreement, forms a part
thereof and is subject to the terms thereof. Terms defined in the Pledge
Agreement are used herein as therein defined.
[2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Administrative Agent, for the ratable benefit of
itself and the Lenders, under the Pledge Agreement, and, as additional
collateral security for the prompt and complete payment when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreements, the
Pledgor hereby delivers to the Administrative Agent, for the ratable benefit of
itself and the Lenders, all of the issued and outstanding shares of capital
stock of [INSERT NAME OF NEW SUBSIDIARY] (the "New Issuer") listed below,
together with all stock certificates, options, or rights of any nature
whatsoever which may be issued or granted by the New Issuer in respect of such
stock which the Pledge Agreement, as supplemented hereby, is in force (the
"Additional Pledged Stock"; as used in the Pledge Agreement as supplemented by
this Supplement, "Pledged Stock" shall be deemed to include the Additional
Pledged Stock) and hereby grants to the Administrative Agent, for the ratable
benefit of itself and the Lenders, a first priority security interest in the
Additional Pledged Stock and all Proceeds thereof.]
or
[2. The Pledgor hereby confirms and reaffirms the security interest in the
Collateral granted to the Administrative Agent, for the ratable benefit of
itself and the Lenders, under the Pledge
<PAGE>
Agreement, and, as additional collateral security for the prompt and complete
payment when due (whether at stated maturity, by acceleration or otherwise) of
the Obligations and in order to induce the Lenders to make their Loans under the
Credit Agreements, the Pledgor hereby grants to the Administrative Agent, for
the ratable benefit of itself and the Lenders, a first priority security
interest in the entire partnership interest of Pledgor (the "Additional
Partnership Interest") in [INSERT NAME OF NEW SUBSIDIARY] (the "New
Partnership") listed below and all Proceeds thereof; as used in the Pledge
Agreement as supplemented by this Supplement, "Partnership Interests" shall be
deemed to include the Additional Partnership Interest.]
3. The Pledgor hereby represents and warrants that the representations
and warranties contained in Paragraph 5 of the Pledge Agreement are true and
correct on the date of this Supple ment with references therein to the ["Pledged
Stock" to include the Additional Pledged Stock] or ["Partnership Interests" to
include the Additional Partnership Interest], with references therein to the
["Issuer" to include the New Issuer] or ["Partnership" to include the New
Partnership], and with references to the "Pledge Agreement" to mean the Pledge
Agreement as supplemented by this Supplement.
4. The Pledgor shall deliver to the Administrative Agent the
Acknowledgement and Consent attached hereto duly executed by the [New Issuer] or
[New Partnership]. The Additional [Pledged Stock or Partnership Interest]
pledged hereby is as follows which [Pledged Stock or Partnership Interest] shall
be deemed part of Schedule I thereto:
DESCRIPTION OF PLEDGED STOCK
Percentage of
all Outstanding
issued
Issuer Class of Stock Certificate No. No. of Shares Capital Stock
New Issuer
DESCRIPTION OF PARTNERSHIP INTEREST
Partnership Partnership Interest
New Partnership
<PAGE>
5. The Pledgor hereby agrees to deliver to the Administrative Agent
such certificates and other documents and take such other action as shall be
reasonably requested by the Administrative Agent in order to effectuate the
terms hereof and the Pledge Agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed under seal and delivered as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND CONSENT OF NEW ISSUER
The undersigned hereby acknowledges receipt of a copy of the foregoing
Supplement and the Pledge Agreement referred to therein (the "Pledge
Agreement"). The undersigned agrees for the benefit of the Administrative Agent
and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge Agreement
and will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in Paragraph
6(c) of the Pledge Agreement.
3. The Issuer further agrees that the terms of Paragraph 10 of the
Pledge Agreement shall apply to it with respect to all actions that may be
required of it under or pursuant to or arising out of Paragraph 10 of the Pledge
Agreement.
[NAME OF NEW ISSUER]
By:
Name:
Title:
<PAGE>
ACKNOWLEDGEMENT AND CONSENT OF PARTNERS
OF NEW PARTNERSHIP
The undersigned partners of _________________________ (the "New
Partnership") (a) hereby acknowledge receipt of a copy of the foregoing
Supplement and the Pledge Agreement referred to therein (the "Pledge
Agreement"), (b) hereby acknowledge and consent to the pledge of the Pledgor's
interest in the New Partnership pursuant thereto, and (c) agree that the
Administrative Agent may freely assign its interest thereunder without further
consent of the partners.
, ,
__________ Partner of __________ Partner of
<PAGE>
EXHIBIT A
TO
PLEDGE AGREEMENT
Authorization Statement
April __, 1997
To: [Partnership]
You are hereby instructed to register the pledge of the
following uncertificated security as follows:
[Describe Partnership Interests]
Pledgor Pledgee
[Pledgor name and address] First Union National Bank of
Florida, as Administrative
Agent
100 South Ashley Drive,
Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Very truly yours,
[PLEDGOR]
By:
Name:
Title:
<PAGE>
EXHIBIT B
TO
PLEDGE AGREEMENT
Transaction Statement
April __, 1997
To: [Pledgor name and address]
and
First Union National Bank of Florida,
as Administrative Agent
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
This statement is to advise you that a pledge of the following
uncertificated securities has been registered in the name of First Union
National Bank of Florida, as Administrative Agent:
1. Uncertificated Security: All limited partnership and other
ownership interests of [Pledgor] in [Partnership] (the "Pledged Interest").
2. Registered Owner:
[Pledgor]
Taxpayer Identification Number: __________
3. Registered Pledgee:
First Union National Bank of Florida,
as Administrative Agent
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Taxpayer Identification Number: __________
<PAGE>
4. There are no liens, restrictions or other encumbrances on the
Pledged Interest, other than liens in favor of First Union National Bank of
Florida, as Administrative Agent, and no adverse claims to which the
Pledged Interest is or may be subject known to the undersigned.
5. The pledge was registered on April __, 1997.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES
AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A
NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
[SEAL] [PARTNERSHIP]
General Partner
By:
Name:
Title:
<PAGE>
EXHIBIT I
to
Five-Year Credit Agreement dated as of April 30, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FORM OF SUBSIDIARY GUARANTY AGREEMENT
THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty"), dated as of
April ___, 1997, made by each of the Subsidiary Guarantors listed on the
signature pages hereto (the "Subsidiary Guarantors"), in favor of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association, as Administrative
Agent (the "Administrative Agent"), for the ratable benefit of itself and the
financial institutions (the "Lenders") that are, or may from time to time
become, parties to the Credit Agreements (as hereinafter defined).
STATEMENT OF PURPOSE
Pursuant to the terms of the Five-Year Credit Agreement of even date by
and among BREED Technologies, Inc. ("BREED") and certain of its subsidiaries, as
Borrowers, BREED, as Guarantor, the Lenders party thereto, the Administrative
Agent and The Chase Manhattan Bank, as Documentation Agent (as amended,
restated, supplemented or otherwise modified from time to time, the "Five-Year
Credit Agreement") and the 364-Day Credit Agreement of even date by and among
BREED and certain of its subsidiaries, as Borrowers, BREED, as Guarantor, the
Lenders party thereto, the Administrative Agent and The Chase Manhattan Bank, as
Documentation Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "364-Day Credit Agreement" and together with the
Five-Year Credit Agreement, the "Credit Agreements"), the Lenders extended
certain credit facilities to the Borrowers as more particularly described
therein. The Borrowers and the Subsidiary Guarantors comprise one integrated
financial enterprise, and all Loans
<PAGE>
to the Borrowers will inure, directly or indirectly, to the benefit of
each of the Subsidiary Guarantors.
In connection with the transactions contemplated by the Credit
Agreements, the Lenders have requested, and each of the Subsidiary Guarantors
has agreed to execute and deliver, this Guaranty.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, and to induce the Lenders to continue to make
available Loans pursuant to the Credit Agreements, it is agreed as follows:
SECTION 1. Definitions. Capitalized terms used herein (including the
preamble hereof) shall have the meanings assigned to them in the Credit
Agreements, unless the context otherwise requires or unless otherwise defined
herein. References in the Credit Agreements to a "Subsidiary Guaranty Agreement"
or herein to this "Guaranty" shall include and mean this Guaranty, including all
amendments and supplements hereto now or hereafter in effect.
SECTION 2. Guaranty of Obligations of the Borrowers. Each Subsidiary
Guarantor hereby, jointly and severally with each other Subsidiary Guarantor,
unconditionally guarantees to the Administrative Agent for the ratable benefit
of itself, the Lenders, and their respective successors, endorsees, transferees
and assigns, the prompt payment and performance of the Dollar Amount of all
Obligations of the Borrowers under each of the Credit Agreements (including,
without limitation, all obligations of BREED as a Guarantor thereunder), whether
primary or secondary (whether by way of endorsement or otherwise), whether now
existing or hereafter arising, whether or not from time to time reduced or
extinguished (except by payment thereof) or hereafter increased or incurred,
whether or not recovery may be or hereafter become barred by the statute of
limitations, whether enforceable or unenforceable as against any Borrower,
whether or not discharged, stayed or otherwise affected by any bankruptcy,
insolvency or other similar law or proceeding, whether created directly with the
Administrative Agent or any Lender or acquired by the Administrative Agent or
any Lender through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of any such instruments evidencing
any such obligations, including all renewals, extensions or modifications
thereof (all Obligations of the Borrowers to the Administrative Agent or any
Lender, including all of the foregoing, being hereinafter collectively referred
to as the "Guaranteed
<PAGE>
Obligations"); provided, that notwithstanding anything to the contrary contained
herein, it is the intention of each Subsidiary Guarantor and the Lenders that,
in any proceeding involving the bankruptcy, reorganization, arrangement,
adjustment of debts, relief of debtors, dissolution or insolvency or any similar
proceeding with respect to any Subsidiary Guarantor or its assets, the amount of
such Subsidiary Guarantor's obligations with respect to the Guaranteed
Obligations shall be in, but not in excess of, the maximum amount thereof not
subject to avoidance or recovery by operation of applicable law governing
bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other similar
laws (including, without limitation, 11 U.S.C. ss.547, ss.548, ss.550 and other
"avoidance" provisions of Title 11 of the United States Code), applicable in any
such proceeding to such Subsidiary Guarantor and this Guaranty (collectively,
"Applicable Insolvency Laws"). To that end, but only in the event and to the
extent that such Subsidiary Guarantor's obligations with respect to the
Guaranteed Obligations or any payment made pursuant to the Guaranteed
Obligations would, but for the operation of the foregoing proviso, be subject to
avoidance or recovery in any such proceeding under Applicable Insolvency Laws,
the amount of such Subsidiary Guarantor's obligations with respect to the
Guaranteed Obligations shall be limited to the largest amount which, after
giving effect thereto, would not, under Applicable Insolvency Laws, render such
Subsidiary Guarantor's obligations with respect to such Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the foregoing proviso and is
otherwise subject to avoidance and recovery in any such proceeding under
Applicable Insolvency Laws, the amount subject to avoidance shall in all events
be limited to the amount by which such actual payment exceeds such limitation
and the Guaranteed Obligations as limited by the foregoing proviso shall in all
events remain in full force and effect and be fully enforceable against such
Subsidiary Guarantor. The foregoing proviso is intended solely to preserve the
rights of the Administrative Agent hereunder against such Subsidiary Guarantor
in such proceeding to the maximum extent permitted by Applicable Insolvency Laws
and neither such Subsidiary Guarantor, any Borrower, any other Subsidiary
Guarantor nor any other Person shall have any right or claim under such proviso
that would not otherwise be available under Applicable Insolvency Laws in such
proceeding.
SECTION 3. Nature of Guaranty. Each Subsidiary Guarantor agrees that this
Guaranty is a continuing, unconditional guaranty of payment and performance and
not of collection, and that its obligations under
<PAGE>
this Guaranty shall be primary, absolute and unconditional, irrespective
of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, either Credit Agreement or any
other Loan Document or any other agreement, document or instrument to
which any Borrower or any Subsidiary thereof is or may become a party;
(b) any structural change in, restructuring of or other
similar change of any Borrower or any of their Subsidiaries
(including, without limitation, each Subsidiary Guarantor);
(c) the absence of any action to enforce this Guaranty, either
Credit Agreement or any other Loan Document or the waiver or consent by
the Administrative Agent or any Lender with respect to any of the
provisions of this Guaranty, either Credit Agreement or any other Loan
Document;
(d) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the
Guaranteed Obligations or any action, or the absence of any action, by
the Administrative Agent or any Lender in respect of such security or
guaranty (including, without limitation, the release of any such
security or guaranty); or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by each Subsidiary Guarantor that, subject to the proviso in
Section 2 hereof, its obligations under this Guaranty shall not be discharged
until the final and indefeasible payment and perfor mance, in full, of the
Guaranteed Obligations and the termination of the Commitments. To the extent
permitted by law, each Subsidiary Guarantor expressly waives all rights it may
now or in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any Lender to proceed in
respect of the Guaranteed Obligations against any Borrower or any other party or
against any security for or other guaranty of the payment and perfor mance of
the Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, such Subsidiary Guarantor. To the extent permitted by law,
each Subsidiary Guarantor further expressly waives and agrees not to assert or
take advantage of any defense based upon the failure of the Administrative Agent
or any Lender to commence
<PAGE>
an action in respect of the Guaranteed Obligations against any Borrower, such
Subsidiary Guarantor, any other guarantor or any other party or any security for
the payment and performance of the Guaranteed Obligations. Each Subsidiary
Guarantor agrees that any notice or directive given at any time to the
Administrative Agent or any Lender which is inconsistent with the waivers in the
preceding two sentences shall be null and void and may be ignored by the
Administrative Agent or Lender, and, in addi tion, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent and the Required Lenders
have specifically agreed otherwise in writing. The foregoing waivers are of the
essence of the transaction contemplated by the Loan Documents and, but for this
Guaranty and such waivers, the Administrative Agent and Lenders would decline to
enter into the Credit Agreements.
SECTION 4. Demand by the Administrative Agent. In addition to the terms
set forth in Section 3, and in no manner imposing any limitation on such terms,
if all or any portion of the then outstanding Guaranteed Obligations under the
Credit Agreements are declared to be immediately due and payable, then the
Subsidiary Guarantors shall, upon demand in writing therefor by the
Administrative Agent to the Subsidiary Guarantors, pay the Dollar Amount of all
or such portion of the outstanding Guaranteed Obligations then declared due and
payable. Payment by the Subsidiary Guarantors shall be made to the
Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immediately available Dollars to an account designated by the
Administrative Agent or at the address referenced herein for the giving of
notice to the Administrative Agent or at any other address that may be specified
in writing from time to time by the Administrative Agent.
SECTION 5. Waivers. In addition to the waivers contained in Section 3,
each Subsidiary Guarantor, to the extent permitted by law, waives and agrees
that it shall not at any time insist upon, plead or in any manner whatever claim
or take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by
<PAGE>
such Subsidiary Guarantor of its obligations under, or the enforcement by the
Administrative Agent or the Lenders of, this Guaranty. Each Subsidiary Guarantor
further hereby waives diligence, presentment, demand, protest and notice of
whatever kind or nature with respect to any of the Guaranteed Obligations and
waives the benefit of all provisions of law which are or might be in conflict
with the terms of this Guaranty. Each Subsidiary Guarantor represents, warrants
and agrees that its obligations under this Guaranty are not and shall not be
subject to any counterclaims, offsets or defenses of any kind against the
Administrative Agent, the Lenders or the Borrowers whether now existing or which
may arise in the future.
SECTION 6. Benefits of Guaranty. The provisions of this Guaranty are
for the benefit of the Administrative Agent, the Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between the Borrowers, the Administrative Agent and the
Lenders, the obligations of the Borrowers under the Loan Documents. In the event
all or any part of the Guaran teed Obligations are transferred, endorsed or
assigned by the Administrative Agent or any Lender to any Person or Persons, any
reference to an "Administrative Agent", or "Lender" herein shall be deemed to
refer equally to such Person or Persons.
SECTION 7. Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Subsidiary Guarantors:
(a) change or extend the manner, place or terms of payment
of, or renew or alter all or any portion of, the Guaranteed Obliga
tions;
(b) take any action under or in respect of the Loan Documents
in the exercise of any remedy, power or privilege contained therein or
available to it at law, in equity or otherwise, or waive or refrain
from exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Docu-
ments;
(d) extend or waive the time for performance by any Subsidiary
Guarantor, any other guarantor, any Borrower or any other Person of,
or compliance with, any term, covenant or
<PAGE>
agreement on its part to be performed or observed under a Loan Document
(other than this Guaranty), or waive such performance or compliance or
consent to a failure of, or departure from, such per formance or
compliance;
(e) take and hold security or collateral for the payment of
the Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Administrative Agent or the Lenders have been granted a Lien,
to secure any Debt of any Subsidiary Guarantor, any other guarantor or
any Borrower to the Administrative Agent or the Lenders;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by any Subsidiary Guarantor, any other
guarantor or any Borrower to the Administrative Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
any Subsidiary Guarantor, any other guarantor or any Borrower are
subordinated to the claims of the Administrative Agent or any Lender;
or
(h) apply any sums by whomever paid or however realized to any
amounts owing by any Subsidiary Guarantor, any other guarantor or any
Borrower to the Administrative Agent or any Lender in such manner as
the Administrative Agent or any Lender shall determine in its
reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to any Subsidiary Guarantor as a result thereof, and no such action shall impair
or release the obligations of any Subsidiary Guarantor under this Guaranty.
SECTION 8. Reinstatement. Each Subsidiary Guarantor agrees that, if any
payment made by any Borrower or any other Person applied to the Obligations is
at any time annulled, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid or the
proceeds of any collateral are required to be refunded by the Administrative
Agent or any Lender to any Borrower, its estate, trustee, receiver or any other
party, including, without limitation, any Subsidiary Guarantor, under any
Applicable Law or
<PAGE>
equitable cause, then, to the extent of such payment or repayment, each
Subsidiary Guarantor's liability hereunder (and any Lien securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made, and, if prior thereto, this Guaranty shall have
been canceled or surrendered (and if any Lien or collateral securing such
Subsidiary Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this Guaranty (and such
Lien) shall be reinstated in full force and effect, and such prior cancellation
or surrender shall not diminish, release, discharge, impair or otherwise affect
the obligations of such Subsidiary Guarantor in respect of the amount of such
payment (or any Lien securing such obligation).
SECTION 9. Representations and Warranties. To induce the Lenders
to make any Loans, each Subsidiary Guarantor hereby represents and
warrants that:
(a) such Subsidiary Guarantor has the corporate right, power
and authority to execute, deliver and perform this Guaranty and has
taken all necessary corporate action to authorize its execution,
delivery and performance of, this Guaranty;
(b) this Guaranty constitutes the legal, valid and binding
obligation of such Subsidiary Guarantor enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(c) the execution, delivery and performance of this Guaranty
will not violate any provision of any Applicable Law or material
contractual obligation of such Subsidiary Guarantor and will not result
in the creation or imposition of any Lien upon or with respect to any
property or revenues of such Subsidiary Guarantor;
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of such Subsidiary Guarantor), is required in
connection with the
<PAGE>
execution, delivery, performance, validity or enforceability of
this Guaranty;
(e) no actions, suits or proceedings before any arbitrator or
Governmental Authority are pending or, to the knowledge of such
Subsidiary Guarantor, threatened by or against such Subsidiary
Guarantor or against any of its properties with respect to this
Guaranty or any of the transactions contemplated hereby;
(f) such Subsidiary Guarantor has such title to the real
property owned by it and a valid leasehold interest in the real
property leased by it, and has good and marketable title to all of its
personal property sufficient to carry on its business free of any and
all Liens of any type whatsoever, except those permitted by Section 9.3
of each Credit Agreement; and
(g) as of the Closing Date, such Subsidiary Guarantor (a) has
capital sufficient to carry on its business and transactions and all
business and transactions in which it engages and is able to pay its
debts as they mature, (b) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount
required to pay its probable liabilities (including contingencies) and
(c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
SECTION 10. Remedies.
(a) Upon the occurrence of any Event of Default, with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, enforce against the Subsidiary
Guarantors their respective obligations and liabilities hereunder and exercise
such other rights and remedies as may be available to the Administrative Agent
hereunder, under the Loan Documents or otherwise.
(b) No right or remedy herein conferred upon the Administrative Agent
is intended to be exclusive of any other right or remedy contained herein or in
any other Loan Document or otherwise, and every such right or remedy contained
herein and therein or now or hereafter existing at
<PAGE>
law, or in equity, or by statute, or otherwise shall be cumulative. The Required
Lenders may instruct the Administrative Agent to pursue, or refrain from
pursuing, any remedy available to the Administrative Agent at such times and in
such order as the Required Lenders shall determine, and the Required Lenders'
election as to such remedies shall not impair any remedies against any
Subsidiary Guarantor not then exercised. In addition, any election of remedies
which results in the denial or impairment of the right of the Administrative
Agent to seek a deficiency judgment against any Borrower shall not impair any
Subsidiary Guarantor's obligation to pay the full amount of the Guaranteed
Obligations.
SECTION 11. No Subrogation. Notwithstanding any payment or payments by
any of the Subsidiary Guarantors hereunder, or any set-off or application of
funds of any of the Subsidiary Guarantors by the Administrative Agent or any
Lender, or the receipt of any amounts by the Administrative Agent or any Lender
with respect to any of the Guaranteed Obligations, none of the Subsidiary
Guarantors shall be entitled to be subrogated to any of the rights of the
Administrative Agent or any Lender against any Borrower or any of the other
Subsidiary Guarantors or against any collateral security held by the
Administrative Agent or any Lender for the payment of the Guaranteed Obligations
nor shall any of the Subsidiary Guarantors seek any reimbursement from any
Borrower or any of the other Subsidiary Guarantors in respect of payments made
by such Subsidiary Guarantor in connection with the Guaranteed Obligations,
until all amounts owing to the Administrative Agent and the Lenders on account
of the Guaranteed Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to any Subsidiary Guarantor on account
of such subrogation rights at any time when all of the Guaranteed Obligations
shall not have been paid in full, such amount shall be held by such Subsidiary
Guarantor in trust for the Administrative Agent, segregated from other funds of
such Subsidiary Guarantor, and shall, forthwith upon receipt by such Subsidiary
Guarantor, be turned over to the Administrative Agent in the exact form received
by such Subsidiary Guarantor (duly endorsed by such Subsidiary Guarantor to the
Administrative Agent, if required) to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as set forth in the
Credit Agreement.
<PAGE>
SECTION 12. Miscellaneous.
(a) Entire Agreement; Amendments. This Guaranty, together with the
other Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements with
respect to the subject matter hereof and may not be amended or supplemented
except by a writing signed by each Subsidiary Guarantor and the Administrative
Agent, consented to by such Lenders as required by Section 13.11 of the Credit
Agreements.
(b) Headings. Titles and captions of sections and subsections in
this Guaranty are for convenience of reference only, and neither limit
or amplify the provisions of this Guaranty.
(c) Severability. In the event that any one or more of the provisions
contained in this Guaranty shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Guaranty shall not be in any way impaired.
(d) Notices. All notices and communications hereunder shall be
given in accordance with Section 13.1 of the Credit Agreements.
(e) Binding Effect. This Guaranty shall bind each Subsidiary Guarantor
and shall inure to the benefit of the Administrative Agent, the Lenders and
their respective successors and assigns. No Subsidiary Guarantor may assign this
Guaranty or delegate any of its duties hereunder, other than in connection with
the merger of such Subsidiary Guarantor into such other Person as permitted by
Section 9.5 of the Credit Agreements.
(f) Non-Waiver. The failure of the Administrative Agent or any Lender
to enforce any right or remedy hereunder, or promptly to enforce any such right
or remedy, shall not constitute a waiver thereof, nor give rise to any estoppel
against the Administrative Agent or any Lender, nor excuse any Subsidiary
Guarantor from its obligations hereun der. Any waiver of any such right or
remedy by the Lenders must be in writing and signed by the Required Lenders.
(g) Termination. This Guaranty shall terminate and be of no further
force or effect on the date when the Guaranteed Obligations have been
indefeasibly paid in full and the Commitments terminated.
<PAGE>
(h) Governing Law. This Guaranty shall be governed by and construed and
enforced in accordance with the laws of the State of North Carolina, without
reference to the conflicts or choice of law principles thereof.
(i) Consent to Jurisdiction. Each Subsidiary Guarantor hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this Guaranty,
any rights or obligations hereunder, or the performance of such rights and
obligations. Each Subsidiary Guarantor hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Guaranty, any rights or obligations hereunder, or the performance of such
rights and obligations, on behalf of itself or its property, in the manner
referenced in Section 12(d). Nothing in this Section 12(i) shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against any
Subsidiary Guarantor or its properties in the courts of any other jurisdictions.
(j) Binding Arbitration; Waiver of Jury Trial.
(i) Binding Arbitration. Upon demand of any party, whether
made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or
relating to this Guaranty or any other Loan Documents ("Disputes"),
between or among parties to this Guaranty or any other Loan Document
shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the
right of that party to demand arbitration hereunder. Disputes may
include, without limitation, tort claims, counterclaims, claims brought
as class actions, claims arising from Loan Documents executed in the
future, or claims concerning any aspect of the past, present or future
relationships arising out or connected with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina.
The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules
<PAGE>
shall be applicable to claims of less than $1,000,000. All applicable
statutes of limitation shall apply to any Dispute. A judgment upon the
award may be entered in any court having jurisdiction. The panel from
which all arbitrators are selected shall be comprised of licensed
attorneys. The single arbitrator selected for expedited procedure shall
be a retired judge from the highest court of general jurisdiction,
state or federal, of the state where the hearing will be conducted.
(ii) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE Administrative Agent, EACH LENDER AND EACH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH
RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS.
(iii) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and the
Loan Documents preserve, without diminution, certain remedies that such
Persons may employ or exercise freely, either alone, in conjunction
with or during a Dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by
self help to exercise or prosecute the following remedies: (A) all
rights to foreclose against any real or personal property or other
security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (B) all
rights of self help including peaceful occupation of property and
collection of rents, set off, and peaceful possession of property, (C)
obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver
and in filing an involuntary bankruptcy proceeding, and (D) when
applicable, a judgment by confession of judgment. Preservation of these
remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
(k) Limitation of Liability. Neither the Administrative Agent, the
Lenders nor any Affiliate thereof shall have any liability with respect to, and
each Subsidiary Guarantor hereby waives, releases and agrees not to sue upon,
any claim for any special, indirect, punitive, exemplary or consequential
damages suffered by such Subsidiary Guarantor in connection with, arising out
of, or in any way related to this
<PAGE>
Guaranty and the other Loan Documents, the transactions contemplated herein or
therein, or any act, omission or event occurring in connection herewith or
therewith.
(l) Expenses. The Subsidiary Guarantors agree that they will reimburse
the Administrative Agent and each Lender for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and expenses) incurred by the
Administrative Agent or such Lender in connection with the enforcement of the
obligations of the Subsidiary Guarantors under this Guaranty and any other Loan
Documents and all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses) incurred by the Administrative Agent in connection
with the amendment or modification of this Guaranty.
(m) Indemnities. Each Subsidiary Guarantor agrees to hold the
Administrative Agent and the Lenders harmless from and against all losses
suffered by the Administrative Agent and the Lenders in connection with (i) the
exercise by the Administrative Agent or the Lenders of any right or remedy
granted to them under this Guaranty, (ii) any claim, and the prosecution or
defense thereof, arising out of or in any way connected with this Guaranty, and
(iii) the collection or enforcement of the Obligations, the Guaranteed
Obligations or any of them; provided, that such Subsidiary Guarantor shall not
be obligated to reimburse the Administrative Agent or the Lenders for costs and
expenses, or indemnify the Administrative Agent or the Lenders for any loss,
resulting from the gross negligence or willful misconduct of the Administrative
Agent or such Lenders. Notwithstanding any termination of this Guaranty, the
indemnities to which the Administrative Agent and Lenders are entitled under
this Guaranty shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
<PAGE>
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has executed and
delivered this Guaranty under seal as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
<PAGE>
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT, dated as of __________,
(the "Supplement"), made by [INSERT NAME OF NEW SUBSIDIARY], a
____________________ (the "New Subsidiary Guarantor"), in favor of FIRST UNION
NATIONAL BANK OF FLORIDA, as agent (in such capacity, the "Administrative
Agent") under the Credit Agreements (as defined in the Guaranty Agreement
referred to below) for the ratable benefit of itself and the Lenders.
1. Reference is hereby made to the Guaranty Agreement dated as of April
__, 1997, made by certain Subsidiaries of BREED Technologies, Inc. party thereto
(the "Subsidiary Guarantors"), as guarantors, in favor of the Administrative
Agent (as amended, restated, supplemented or otherwise modified as of the date
hereof, the "Guaranty Agreement"). This Supplement supplements the Guaranty
Agreement, forms a part thereof and is subject to the terms thereof. Capitalized
terms used and not defined herein shall have the meanings given thereto or
referenced in the Guaranty Agreement.
2. The New Subsidiary Guarantor hereby agrees to unconditionally
guarantee to the Administrative Agent for the ratable benefit of itself, the
Lenders and their respective successors, endorsees, transferees and assigns, the
prompt payment (whether at stated maturity, by acceleration or otherwise) and
performance of all Obligations of the Borrowers to the same extent and upon the
same terms and conditions as are contained in the Guaranty Agreement.
3. The New Subsidiary Guarantor hereby agrees that it is a party to the
Guaranty Agreement as if a signatory thereto on the Closing Date of the Credit
Agreement, and the New Subsidiary Guarantor shall comply with all of the terms,
covenants, conditions and agreements and hereby makes each representation and
warranty, in each case set forth therein. The New Subsidiary Guarantor agrees
that the "Guaranty Agreement" or "Guaranty" as used therein or in any other Loan
Documents shall mean the Guaranty Agreement as supplemented hereby.
4. The New Subsidiary Guarantor hereby acknowledges it has
received a copy of the Guaranty Agreement and that it has read and
understands the terms thereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned hereby causes this Supplement to be
executed and delivered as of the date first above written.
[CORPORATE SEAL] [INSERT NAME OF NEW SUBSIDIARY]
By:
Name:
Title:
<PAGE>
FIVE-YEAR CREDIT AGREEMENT
dated as of April 30, 1997,
by and among
BREED TECHNOLOGIES, INC.,
and certain Subsidiaries thereof designated herein,
as Borrowers,
BREED TECHNOLOGIES, INC.,
as Guarantor,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK OF FLORIDA,
as Administrative Agent,
and
THE CHASE MANHATTAN BANK,
as Documentation Agent,
evidencing a
FIVE-YEAR, $200,000,000
CREDIT FACILITY
<PAGE>
ARTICLE I
DEFINITIONS.......................................................... 1
SECTION 1.1 Definitions..................................... 1
SECTION 1.2 General......................................... 18
SECTION 1.3 Other Definitions and Provisions................ 19
ARTICLE II
CREDIT FACILITY...................................................... 19
SECTION 2.1 Revolving Credit Loans.......................... 19
SECTION 2.2 Finnish Mark Loans.............................. 20
SECTION 2.3 Swingline Loans................................. 22
SECTION 2.4 Procedure for Advances of Revolving Credit Loans,
Finnish Mark Loans and Swingline Loans....... 23
SECTION 2.5 Repayment of Revolving Credit Loans, Finnish
Mark Loans and Swingline Loans............... 26
SECTION 2.6 Notes............................................28
SECTION 2.7 Permanent Reduction of the Aggregate
Commitment.................................. 28
SECTION 2.8 Termination of Credit Facility.................. 29
SECTION 2.9 Use of Proceeds................................. 30
SECTION 2.10 Nature of Obligations........................... 30
SECTION 2.11 Security........................................ 30
ARTICLE III
GENERAL LOAN PROVISIONS.............................................. 30
SECTION 3.1 Interest........................................ 30
SECTION 3.2 Notice and Manner of Conversion or
Continuation of Revolving Credit Loans and
Finnish Mark Loans.......................... 33
SECTION 3.3 Fees............................................ 34
SECTION 3.4 Manner of Payment............................... 36
SECTION 3.5 Crediting of Payments and Proceeds.............. 37
SECTION 3.6 Adjustments..................................... 37
SECTION 3.7 Nature of Obligations of Lenders Regarding Loans;
Assumption by the Administrative Agent...... 38
SECTION 3.8 Mandatory Redenomination of Alternative
Currency Loans.............................. 40
SECTION 3.9 Regulatory Limitation........................... 40
<PAGE>
SECTION 3.10 Changed Circumstances........................... 40
SECTION 3.11 Indemnity....................................... 43
<PAGE>
SECTION 3.12 Capital Requirements............................ 43
SECTION 3.13 Taxes........................................... 46
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING......................... 47
SECTION 4.1 Closing......................................... 47
SECTION 4.2 Conditions to Closing and Initial Loans......... 47
SECTION 4.3 Conditions to All Loans......................... 52
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS...................... 53
SECTION 5.1 Representations and Warranties.................. 53
SECTION 5.2 Survival of Representations and Warranties,
Etc............................................ 60
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES.................................... 60
SECTION 6.1 Financial Statements and Projections............ 60
SECTION 6.2 Officer's Compliance Certificate................ 61
SECTION 6.3 Accountants' Certificate........................ 62
SECTION 6.4 Other Reports................................... 62
SECTION 6.5 Notice of Litigation and Other Matters.......... 63
SECTION 6.6 Accuracy of Information......................... 64
ARTICLE VII
AFFIRMATIVE COVENANTS................................................ 64
SECTION 7.1 Preservation of Corporate Existence and
Related Matters................................. 64
SECTION 7.2 Maintenance of Property......................... 64
SECTION 7.3 Insurance....................................... 64
SECTION 7.4 Accounting Methods and Financial Records........ 65
SECTION 7.5 Payment and Performance of Obligations.......... 65
SECTION 7.6 Compliance With Laws and Approvals.............. 65
SECTION 7.7 Environmental Laws.............................. 65
SECTION 7.8 Compliance with ERISA........................... 66
SECTION 7.9 Compliance With Agreements...................... 66
SECTION 7.10 Conduct of Business............................. 66
SECTION 7.11 Visits and Inspections.......................... 66
SECTION 7.12. Additional Subsidiary Guarantors and
Subsidiary Pledgors.......................... 67
<PAGE>
SECTION 7.13 Intercompany Notes.............................. 68
SECTION 7.14 Further Assurances.............................. 68
ARTICLE VIII
FINANCIAL COVENANTS.................................................. 69
SECTION 8.1. Leverage Ratio.................................. 69
SECTION 8.2 Minimum Net Worth............................... 69
SECTION 8.3. Interest Coverage Ratio......................... 69
ARTICLE IX
NEGATIVE COVENANTS................................................... 69
SECTION 9.1 Limitations on Debt............................. 70
SECTION 9.2 Limitations on Contingent Obligations........... 71
SECTION 9.3 Limitations on Liens............................ 71
SECTION 9.4 Limitations on Loans, Advances, Investments
and Acquisitions............................. 72
SECTION 9.5 Limitations on Mergers and Liquidation.......... 74
SECTION 9.6 Limitations on Sale of Assets................... 74
SECTION 9.7 Limitations on Dividends and Distributions...... 75
SECTION 9.8 Transactions with Affiliates.................... 76
SECTION 9.9 Certain Accounting Changes...................... 76
SECTION 9.10 Restrictive Agreements.......................... 76
SECTION 9.11 Payments under Convertible Preferred Stock...... 76
ARTICLE X
UNCONDITIONAL GUARANTY............................................... 76
SECTION 10.1 Guaranty of Obligations......................... 76
SECTION 10.2 Nature of Guaranty.............................. 77
SECTION 10.3 Demand by the Administrative Agent...............78
SECTION 10.4 Waivers......................................... 78
SECTION 10.5 Modification of Loan Documents etc.............. 79
SECTION 10.6 Reinstatement................................... 79
SECTION 10.7 No Subrogation.................................. 80
ARTICLE XI
<PAGE>
DEFAULT AND REMEDIES................................................. 80
SECTION 11.1 Events of Default............................... 80
SECTION 11.2 Remedies........................................ 83
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver;
etc........................................ 84
SECTION 11.4 Judgment Currency............................... 84
ARTICLE XII
THE ADMINISTRATIVE AGENT............................................. 85
SECTION 12.1 Appointment..................................... 85
SECTION 12.2 Delegation of Duties............................ 85
SECTION 12.3 Exculpatory Provisions.......................... 85
SECTION 12.4 Reliance by the Administrative Agent............ 86
SECTION 12.5 Notice of Default............................... 86
SECTION 12.6 Non-Reliance on the Administrative Agent
and Other Lenders............................ 87
SECTION 12.7 Indemnification................................. 87
SECTION 12.8 The Administrative Agent in Its Individual
Capacity.................................... 88
SECTION 12.9 Resignation of the Administrative Agent;
Successor Administrative Agent.............. 88
SECTION 12.10 Documentation Agent............................. 89
ARTICLE XIII
MISCELLANEOUS........................................................ 89
SECTION 13.1 Notices......................................... 89
SECTION 13.2 Expenses; Indemnity............................. 90
SECTION 13.3 Set-off......................................... 91
SECTION 13.4 Governing Law................................... 91
SECTION 13.5 Consent to Jurisdiction......................... 92
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial....... 92
SECTION 13.7 Reversal of Payments............................ 93
SECTION 13.8 Injunctive Relief; Punitive Damages............. 93
SECTION 13.9 Accounting Matters.............................. 94
SECTION 13.10 Successors and Assigns; Participations.......... 94
SECTION 13.11 Amendments, Waivers and Consents................ 98
SECTION 13.12 Performance of Duties........................... 98
SECTION 13.13 All Powers Coupled with Interest................ 98
SECTION 13.14 Survival of Indemnities......................... 99
SECTION 13.15 Releases........................................ 99
SECTION 13.16 Titles and Captions............................. 99
<PAGE>
SECTION 13.17 Severability of Provisions...................... 99
SECTION 13.18 Counterparts.................................... 99
SECTION 13.19 Term of Agreement............................... 99
<PAGE>
Exhibits and Schedules
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Finnish Mark Note
Exhibit A-3 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Compliance Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Notice of Account Designation
Exhibit H - Form of Pledge Agreement
Exhibit I - Form of Subsidiary Guaranty Agreement
Schedules
Schedule 1.1(a) - A/C Borrowers
Schedule 1.1(b) - Lenders and Commitments
Schedule 1.1(c) - Finnish Mark Lenders and Finnish Mark
Commitments
Schedule 1.1(d) - Pledge Agreement and Issuers
Schedule 1.1(e) - Subsidiary Guarantors
Schedule 2.1 - Applicable Alternative Currencies
Schedule 4.2(a) - Foreign Jurisdiction Pledge Agreement Issuers
Schedule 4.2(b) - Foreign Jurisdiction Organizational Issues
Schedule 4.2(c) - Schedule of Insurance
Schedule 5.1(a) - Jurisdictions of Organization and
Qualification
Schedule 5.1(b) - Subsidiaries and Capitalization
Schedule 5.1(i) - ERISA Plans
Schedule 5.1(m) - Labor and Collective Bargaining
Agreements
Schedule 5.1(t) - Debt and Contingent Obligations
Schedule 5.1(u) - Litigation
Schedule 9.2 - Contingent Obligations
Schedule 9.3 - Existing Liens
Schedule 9.4 - Existing Loans, Advances and
Investments
<PAGE>
FIRST AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT (this "First
Amendment") is made and entered into as of the 28th day of June, 1997 by and
among BREED TECHNOLOGIES, INC., a Delaware corporation, ("BREED"), and certain
Subsidiaries thereof designated on the signature pages hereto (collectively,
with BREED, the "Borrowers"), BREED, as guarantor (the "Guarantor") the lenders
who are or may become a party to the Credit Agreement referred to below (the
"Lenders"), FIRST UNION NATIONAL BANK (successor to First Union National Bank of
Florida), a national banking association, as Administrative Agent for the
Lenders ("First Union" or the "Administrative Agent"), and THE CHASE MANHATTAN
BANK, a national banking association, as Documentation Agent for the Lenders
(the "Documentation Agent").
Statement of Purpose
The Lenders have previously agreed to extend certain credit facilities
to the Borrowers pursuant to the Five-Year Credit Agreement dated as of April
30, 1997 by and among the Borrowers, the Guarantor, the Lenders, the
Administrative Agent and the Documentation Agent (as further amended, restated
or otherwise modified, the "Credit Agreement").
The Borrowers and the Guarantor have requested certain modifications
and amendments to the Credit Agreement and the Lenders have agreed to such
modifications and amendments as set forth more fully below, subject to the terms
and conditions contained herein.
NOW THEREFORE, for and in consideration of the premises, the mutual
agreements and covenants hereinafter set forth and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Capitalized Terms. All capitalized undefined
terms used in this First Amendment shall have the meanings assigned
thereto in the Credit Agreement.
<PAGE>
SECTION 2. Modification of Credit Agreement. The Credit
Agreement is hereby modified as follows:
(a) Section 2.3 (a) shall be deleted in its entirety and the
following Section 2.3(a) shall be substituted in lieu thereof:
"(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to BREED from
time to time from the Closing Date through the Swingline Termination Date;
provided, that (i) all Swingline Loans shall be denominated in Dollars and (ii)
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested) shall not exceed the lesser of (A) the Aggregate
Commitment less the sum of the Dollar Amount of the aggregate principal amount
of all outstanding Revolving Credit Loans less the sum of the Dollar Amount of
the aggregate principal amount of all outstanding Finnish Mark Loans and (B) the
Swingline Commitment less the sum of the Dollar Amount of the aggregate
principal amount of all outstanding Swingline Loans under the 364- Day Credit
Agreement."
(b) Section 2.7(b) shall be deleted in its entirety and the
following Section 2.7(b) shall be substituted in lieu thereof:
"(b) Mandatory Permanent Reductions.
(i) Incurrence of Debt. The Total Aggregate Commitment shall
be permanently reduced by an amount equal to one hundred percent (100%)
of the amount of any Debt incurred pursuant to Section 9.1(j), with
such reduction to be applied first to the Aggregate Commitment under
the 364-Day Credit Agreement and then to the Aggregate Commitment under
this Agreement. Such reduction shall be made promptly upon the
incurrence of such Debt.
(ii) Sale of Assets. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to seventy-five percent (75%) of
the aggregate Net Proceeds from any sale or disposition of assets
permitted pursuant to Section 9.6(e) (each such sale or disposition, an
"Asset Sale"), with such reduction to be applied first to the Aggregate
Commitment under the 364-Day Credit Agreement and then to the Aggregate
Commitment under this Agreement; provided that, so long as the
<PAGE>
Leverage Ratio is less than or equal to 2.50 to 1.00 as of (A) the date
of such Asset Sale (as evidenced by a certificate of the chief
financial officer or treasurer of BREED in form and substance
satisfactory to the Administrative Agent delivered immediately prior to
the consummation of such Asset Sale) and (B) the date of the most
recent Officer's Compliance Certificate, the Total Aggregate Commitment
shall be permanently reduced by an amount equal to fifty percent (50%)
of such aggregate Net Proceeds. Such reduction shall be made promptly
upon the consummation of any such sale or disposition.
(iii) Equity Issuance. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to fifty percent (50%) of the
aggregate net proceeds from any Equity Issuance permitted under this
Agreement, with such reduction to be applied first to the Aggregate
Commitment under the 364- Day Credit Agreement and then to the
Aggregate Commitment under this Agreement; provided that, so long as
the Leverage Ratio is less than or equal to 2.50 to 1.00 as of (A) the
date of such Equity Issuance (as evidenced by a certificate of the
chief financial officer or treasurer of BREED in form and substance
satisfactory to the Administrative Agent) and (B) the date of the most
recent Officer's Compliance Certificate, no mandatory reduction will be
required on account of any such Equity Issuance. Such reduction shall
be made promptly upon the consummation of any Equity Issuance."
(c) Section 3.1(c)(ii) and the remainder of Section 3.1(c) appearing
thereafter shall be deleted in their entirety and the following
provisions shall be substituted in lieu thereof:
"(ii) for the period commencing on the fifth (5th) Business
Day following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio as of the end of the
fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate in accordance with the chart below:
<PAGE>
Applicable Margin Per Annum
Leverage Ratio Base Rate + LIBOR Rate +
Greater than 4.00 0.00% 1.375%
Less than or equal
to 4.00 and greater
than 3.50 0.00% 1.125%
Less than or equal
to 3.50 and greater
than 3.25 0.00% 0.950%
Less than or equal
to 3.25 and greater
than 3.00 0.00% 0.700%
Less than or equal
to 3.00 and greater
than 2.50 0.00% 0.500%
less than or equal
to 2.50 but greater
than 2.00 0.00% 0.375%
less than or equal
to 2.00 0.00% 0.300%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment
Date") after receipt by the Administrative Agent of the quarterly
financial statements for BREED and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Leverage Ratio as of the most recent fiscal quarter end. Subject to
Section 3.1(d), in the event the Borrowers fail to deliver such
financial statements and certificate within the time required by
Section 6.2 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such financial
statements and certificate.
<PAGE>
Notwithstanding anything to the contrary contained herein, in
the event the Interest Coverage Ratio (as determined pursuant to
Section 8.3 of this Agreement) is less than 3.00 to 1.00, the
Applicable Margin set forth in this Section 3.1 shall be deemed to be
1.000% with resect to LIBOR Rate Loans (unless the Applicable Margin
with respect to LIBOR Rate Loans is determined to be greater pursuant
to the terms of this Section 3.1(c) in which case the Applicable Margin
shall be deemed to be such greater amount)."
(d) Section 3.3(a)(ii) and the remainder of Section 3.3(a)(ii)
appearing thereafter shall be deleted in their entirety and the
following provisions shall be substituted in lieu thereof:
"(ii) for the period commencing on the fifth (5th) Business Day
following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate
and continuing through and including the Credit Facility Termination
Date, be determined by reference to the Leverage Ratio as of the end
of the fiscal quarter immediately preceding the delivery of the
applicable Officer's Compliance Certificate in accordance with the
chart below:
Leverage Ratio Facility Fee Rate
Greater than 3.50 0.375%
Less than or equal
to 3.50 and greater
than 3.25 0.300%
Less than or equal
to 3.25 and greater
than 3.00 0.300%
Less than or equal
to 3.00 and greater
than 2.50 0.250%
<PAGE>
less than or equal
to 2.50 but greater
than 2.00 0.250%
less than or equal
to 2.00 0.200%
Adjustments, if any, in the facility fee rate shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment
Date") after receipt by the Administrative Agent of the quarterly
financial statements for BREED and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Leverage Ratio as of the most
recent fiscal quarter end. In the event the Borrowers fail to deliver
such financial statements and certificate within the time required by
Section 6.2 hereof, the facility fee rate shall be the highest facility
fee rate set forth above until the delivery of such financial
statements and certificate.
Notwithstanding anything to the contrary contained herein, in
the event the Interest Coverage Ratio (as determined pursuant to
Section 8.3 of this Agreement) is less than 3.00 to 1.00, the facility
fee rate set forth in this Section 3.3(a) shall be deemed to be 0.300%
(unless the facility fee rate is determined to be greater pursuant to
the terms of this Section 3.3(a) in which case the facility fee rate
shall be deemed to be such greater amount)."
(e) Section 8.1 shall be deleted in its entirety and the following
Section 8.1 shall be substituted in lieu thereof:
"8.1 Leverage Ratio. As of the end of any fiscal quarter, permit the
ratio (the "Leverage Ratio") of (a) the Consolidated Debt of BREED and
its Subsidiaries as of such date to (b) EBITDA of BREED and its
Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on such date, to exceed the ratio set forth below on such
corresponding date:
June 30, 1997 3.70 to 1.00
September 30, 1997 4.10 to 1.00
<PAGE>
December 31, 1997 3.90 to 1.00
March 31, 1998 3.75 to 1.00
June 30, 1998 and
each fiscal quarter-end
thereafter 3.50 to 1.00;
provided, however, that, notwithstanding anything herein to the contrary, in the
event of any one or more Equity Issuances with net proceeds of $50,000,000 or
more in the aggregate, the Leverage Ratio as of the fiscal quarter ending on
September 30, 1997 shall not exceed 3.75 to 1.00 and for each fiscal quarter-end
thereafter shall not exceed 3.50 to 1.00."
(f) Section 8.3 shall be deleted in its entirety and the
following Section 8.3 shall be substituted in lieu thereof:
"8.3 Interest Coverage Ratio. As of the end of any fiscal quarter,
permit the ratio of (a) EBIT of BREED and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on such date to
(b) Interest Expense of BREED and its Subsidiaries for such period, to
be less than the ratio set forth below on such corresponding date:
June 30, 1997 1.70 to 1.00
September 30, 1997 1.30 to 1.00
December 31, 1997 1.30 to 1.00
March 31, 1998 1.55 to 1.00
<PAGE>
June 30, 1998 2.00 to 1.00
September 30, 1998 2.25 to 1.00
December 31, 1998 2.50 to 1.00
March 31, 1999 2.75 to 1.00
June 30, 1999 and
each fiscal quarter-end
thereafter 3.00 to 1.00"
(g) Schedule 1.1(a) to the Credit Agreement shall be deleted in its
entirety and Schedule 1.1(a) attached hereto shall be substituted therefor.
SECTION 3. Termination of Certain Borrowers and A/C Borrowers. The
parties hereto hereby agree and acknowledge that, as of the date hereof, (i) the
parties listed on Exhibit 1 hereto (collectively, the "Former Borrowers") shall
no longer be Borrowers or A/C Borrowers under the Credit Agreement or any other
Loan Document, (ii) all rights of the Former Borrowers and obligations of the
Lenders to the Former Borrowers under the Credit Agreement or any other Loan
Document are hereby terminated and (iii) the pledge of stock of the Former
Borrowers by reason of their being A/C Borrowers as of the Closing Date shall no
longer be required as set forth in Section 4.2(c) of the Credit Agreement. To
the extent that any of the Former Borrowers becomes a Material Subsidiary at any
time after the date hereof, the Borrowers shall cause to be executed and
delivered to the Administrative Agent each of the documents required under
Section 7.12(b) of the Credit Agreement as and when required thereunder.
SECTION 4. Agreements. (a) The date for delivery of the pledge of
stock of BREED Italia, S.r.l. ("BREED Italia") by reason of its being
a Material Subsidiary as required under Section 4.2(c) of the Credit
Agreement shall be, and hereby is, extended to that date which is
ninety (90) days from the date hereof.
(b) The date for delivery of the pledge of stock of Gallino
Plasturgia, S.r.l. ("Gallino") by reason of its being an A/C Borrower
and Material Subsidiary as required under Section 4.2(c) of the Credit
Agreement shall be, and hereby is, extended to that
<PAGE>
date which is ninety (90) days from the date hereof; provided that Gallino shall
not be permitted to make any borrowings under the Credit Agreement nor shall it
be permitted to receive the proceeds of any borrowings thereunder unless and
until all documents as required under Section 4.2(c) thereof have been executed
and delivered to the Administrative Agent.
(c) The Administrative Agent and the Lenders hereby consent and agree
that, if Gallino is not either an A/C Borrower or a Material Subsidiary on that
date which is ninety (90) days from the date hereof, a pledge of its stock will
not be required under the terms of Section 4.2(c) of the Credit Agreement;
provided that in such event the rights of Gallino and the obligations of the
Lenders to Gallino under the Credit Agreement or any other Loan Document shall
then and thereafter be terminated. To the extent that Gallino at any time
thereafter again becomes a Material Subsidiary, the Borrowers shall cause to be
executed and delivered to the Administrative Agent each of the documents
required under Section 7.12(b) of the Credit Agreement as and when required
thereunder.
(d) The Administrative Agent and the Lenders hereby consent and agree
that Gallino and BREED Italia may, at any time during the ninety (90) day period
after the date hereof, reincorporate themselves as a S.p.A (i.e. Societa per
Azioni).
Failure to comply with any provision of this Section 4 shall be an Event of
Default under the Credit Agreement.
SECTION 5. Conditions. The effectiveness of the
amendments set forth herein shall be conditioned upon delivery to
the Administrative Agent of the following items:
(a) First Amendment. Receipt by the Administrative Agent of
this First Amendment executed by the Borrowers, the Guarantor and
Lenders constituting Required Lenders.
(b) First Amendment to 364-Day Credit Agreement. Receipt by
the Administrative Agent of that certain First Amendment to 364-Day
Credit Agreement executed by the Borrowers, the Guarantor and
Lenders constituting Required Lenders.
(c) Officer's Certificate. A certificate from the chief
executive officer or chief financial officer of BREED in form and
<PAGE>
substance reasonably satisfactory to Administrative Agent, to the effect that,
after giving effect to the transactions contemplated by this First Amendment,
all representations and warranties of the Borrowers (including the Former
Borrowers) contained in the Credit Agreement and the other Loan Documents are
true, correct and complete; that the Borrowers (including the Former Borrowers)
are not in violation of any of the covenants contained in the Credit Agreement
and the other Loan Documents; and that no Default has occurred and is
continuing.
(d) Amendment Fees. Payment of (i) the amendment fees and other fees to
the Administrative Agent for the ratable benefit of the Lenders to be
distributed to the Lenders in accordance with the terms contained in that
certain letter dated as of July __, 1997 from First Union to the Lenders and
(ii) the amendment and other fees to the Administrative Agent for its own
account pursuant to that certain fee letter dated as of July __, 1997 from First
Union to BREED, all of which such fees are hereby acknowledged and consented to
by the Borrowers.
(e) Opinions of Counsel. The Agent shall have received favorable
opinions addressed to the Lenders from counsel to the Borrowers and the
Guarantor in form and substance satisfactory to the Administrative Agent.
(f) Additional Documents. Receipt by the Administrative
Agent of any other document or instrument reasonably requested by
the Administrative Agent, the Documentation Agent or the Lenders in
connection with the execution of this First Amendment.
(g) Amendment Expenses. Payment by the Borrowers of all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this First Amendment, including without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
SECTION 6. Representations and Warranties/No Default. By its execution
hereof, the Borrowers hereby certify that each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents is
true and correct as of the date hereof as if fully set forth herein and that as
of the date hereof no Default or Event of Default has occurred and is
continuing.
<PAGE>
SECTION 7. Limited Amendment. Except as expressly amended and waived
herein, each provision of the Credit Agreement and each provision of each other
Loan Document shall continue to be, and shall remain, in full force and effect.
This First Amendment shall not be deemed or otherwise construed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document, (b) to be a
commitment or any other undertaking by the Lenders or any of them to engage in
any further restructuring of any aspect of the Credit Agreement, the Loan
Documents or the Obligations, (c) to constitute any obligation to further amend
or otherwise modify the Credit Agreement or any Loan Document or (d) to
prejudice any other right or rights which the Administrative Agent, the
Documentation Agent or Lenders may now have or may have in the future under or
in connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended,
restated or otherwise modified.
SECTION 8. Confirmation of Guaranty. The Guarantor hereby expressly
acknowledges and consents to the modifications and amendments set forth in this
First Amendment and hereby confirms, represents and agrees that its obligations
under the Guaranty shall remain in full force and effect.
SECTION 9. References. From and after the date hereof,
all references in the Loan Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as modified by
this First Amendment.
SECTION 10. No Defenses. Each of the Borrowers and the Guarantor hereby
acknowledges and affirms that such party has no defenses, legal or equitable, to
the validity and enforceability of any Loan Document (including, without
limitation, the Credit Agreement as amended by this First Amendment).
SECTION 11. Entire Agreement. This First Amendment, together with the
Credit Agreement and the other Loan Documents, constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements. The Borrowers acknowledge that there are no other agreements
of any kind, whether written or oral pertaining to the subject matter hereof,
not memorialized in the First Amendment, together with the Credit Agreement and
the other Loan Documents.
<PAGE>
SECTION 12. Governing Law. This First Amendment shall be
governed by and construed in accordance with the laws of the State
of North Carolina.
SECTION 13. Counterparts. This First Amendment may be
executed in separate counterparts, each of which when executed and
delivered is an original but all of which taken together constitute
one and the same instrument.
[Signature Pages Follow]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date and year first above written.
<PAGE>
SCHEDULE 1.1(a)
LIST OF A/C BORROWERS
Name of Company Place of Incorporation
BREED Technologies, Inc.* Delaware, USA
United Steering Systems, Inc. Delaware, USA
BREED European Holdings Limited United Kingdom
Auto Trim, Inc. Texas, USA
Custom Trim, Ltd. Ontario, Canada
Hamlin Electronics Europe Limited United Kingdom
Hamlin Electronics, GmbH Germany
VTI Hamlin Oy* Finland
Momo, S.p.A. Italy
Gallino Plasturgia, S.r.l. Italy
United Steering Systems Clifford Limited United Kingdom
* These are the only entities permitted to borrow in Finnish Marks.
<PAGE>
EXHIBIT 1
FORMER BORROWERS
BREED Italia, S.r.l.
Italtest, S.r.l.
BREED Italian Holdings, S.r.l.
<PAGE>
364-DAY CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of the 30th day of April, 1997, by and among
BREED TECHNOLOGIES, INC., a corporation organized under the laws of Delaware
("BREED"), and the Subsidiaries thereof designated as Borrowers herein, as
Borrowers (collectively, including BREED, the "Borrowers"), BREED, as Guarantor
(the "Guarantor"), the Lenders who are or may become a party to this Agreement
(collectively, the "Lenders"), FIRST UNION NATIONAL BANK OF FLORIDA, a national
banking association, as Administrative Agent for the Lenders (the
"Administrative Agent"), and THE CHASE MANHATTAN BANK, a national banking
association, as Documentation Agent for the Lenders (the "Documentation Agent").
STATEMENT OF PURPOSE
The Borrowers have requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrowers on the terms and conditions of this
Agreement.
BREED, as parent of the other Borrowers, will benefit directly and
indirectly from the extension of such credit facilities to such other Borrowers.
As a precondition to making any extensions of credit hereunder, the Lenders have
required, and BREED has agreed, to execute this Agreement as Guarantor on the
terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"A/C Borrowers" means the Borrowers listed as such on Schedule 1.1(a)
attached hereto.
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"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Correspondent" means First Union National Bank,
London Branch, or any other financial institution designated by the
Administrative Agent to act as its correspondent hereunder with respect to the
distribution and payment of Alternative Currency Loans.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1.
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise; provided that Integrated Sensor Solutions,
Inc., a California corporation, shall not be deemed to be an Affiliate of BREED
for the purposes of this Agreement.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to the terms hereof. On the Closing Date, the
Aggregate Commitment shall be Two Hundred Fifty Million Dollars ($250,000,000).
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Alternative Currency" means Pounds Sterling, Italian Lire, Deutsche
Marks and, except as otherwise expressly excluded under the terms of this
Agreement, Finnish Marks, and, with the prior written consent of the
Administrative Agent and the Lenders, which consent shall not be unreasonably
withheld, any other lawful currency (other than Dollars) which is readily
transferable and
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convertible into Dollars in the United States currency market and readily
available to all of the Lenders in the London interbank deposit market. Except
as otherwise expressly set forth herein, any reference to an "Alternative
Currency" shall include Finnish Marks.
"Alternative Currency Amount" means with respect to each Loan made or
continued (or to be made or continued) in an Alternative Currency, the amount of
such Alternative Currency which is equivalent to the principal amount in Dollars
of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent to be available to its London branch at approximately 11:00
a.m. (Charlotte time) two (2) Business Days before such Loan is made or
continued (or to be made or continued). When used with respect to any other sum
expressed in Dollars, "Alternative Currency Amount" shall mean the amount of
such Alternative Currency which is equivalent to the amount so expressed in
Dollars at the most favorable spot exchange rate determined by the
Administrative Agent to be available to it at the relevant time.
"Alternative Currency Commitment" means Fifty Million Dollars
($50,000,000), as such amount may be reduced or modified at any time or from
time to time pursuant to the terms hereof.
"Alternative Currency Loan" means (i) any Revolving Credit Loan
denominated in an Alternative Currency and (ii) except as otherwise expressly
set forth herein, any Finnish Mark Loan.
"Applicable Law" means all applicable provisions of consti tutions,
statutes, laws, rules, treaties, regulations and orders of all Governmental
Authorities and all orders and decrees of all courts and arbitrators.
"Applicable Margin" shall have the meaning assigned thereto in
Section 3.1(c).
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 13.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate or (b)
the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall take
effect simultaneously with the corre sponding change or changes in the Prime
Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 3.1(a).
"Borrowers" means the collective reference to BREED and the
other A/C Borrowers.
"BREED" means BREED Technologies, Inc., a corporation organized under
the laws of Delaware, and its successors.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina are open for the conduct of their
domestic and international commercial banking business, and (b) with respect to
all notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day (i) that is a Business Day described
in clause (a) and that is also a day for trading by and between banks in
deposits for the applicable Permitted Currency in the London interbank market
and (ii) on which banks are open for the conduct of their domestic and
international banking business in the place where the Administrative Agent or
the Administrative Agent's Correspondent shall make available Loans in such
Permitted Currency.
"Capital Lease" means, with respect to BREED and its Subsidiaries, any
lease of any property that should, in accordance with GAAP, be classified and
accounted for as a capital lease on a Consolidated balance sheet of BREED and
its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in
Section 11.1(i).
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or supplemented from time to time.
"Collateral" means any assets pledged by BREED or any of its
Subsidiaries to the Administrative Agent, for the ratable benefit
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of itself and the Lenders, in order to secure the Obligations or
any portion thereof.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to the Borrowers hereunder in an aggregate principal or face amount
at any time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 1.1(b) hereto, as the same may be reduced or modified
at any time or from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the BREED and its Subsidiaries, such statements
or items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Contingent Obligation" means, with respect to BREED and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that, except to the extent
Breed or any of its Subsidiaries shall be advised or required to establish or
maintain reserves therefor, the term Contingent Obligation shall not include (i)
endorsements for collection or deposit in the ordinary course of business, (ii)
warranty obligations in the ordinary course of business related to products
supplied by BREED and its Subsidiaries, including defense and indemnity
obligations pursuant thereto and (iii) Contingent Obligations incurred in the
ordinary course of business for which
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a specific dollar amount of liability cannot be determined but which, in the
aggregate, would not have a Material Adverse Effect.
"Convertible Preferred Stock" means any preferred stock issued by a
Subsidiary of BREED formed pursuant to Section 9.4(e) that is otherwise
permitted hereunder, for so long as such preferred stock is not accounted for
under stockholder's equity in the Consolidated financial statements of BREED;
provided that such Convertible Preferred Stock shall be subject to the
satisfaction of each of the conditions set forth in subsections (i) through
(iii) below:
(i) Under the terms and conditions of the Convertible
Preferred Stock, the applicable Subsidiary shall have the right, in its
sole discretion, to defer payment of interest or dividends on the
Convertible Preferred Stock for up to twenty (20) consecutive quarters
(the "Deferral Period");
(ii) GAAP shall not require that the Convertible Preferred Stock be
included as a liability on the Consolidated financial statements of
BREED; and
(iii) If a Subsidiary elects to defer payment of interest or
dividends, after any such deferral at least five (5) quarters shall
remain in the Deferral Period;
In the event any of the above conditions is not satisfied, the
Convertible Preferred Stock shall thereafter constitute
Subordinated Debt and not preferred stock.
"Credit Facility" means the revolving credit facility established
pursuant to Article II hereof.
"Credit Facility Termination Date" means the earliest of the dates
referred to in Section 2.8.
"Debt" means, with respect to any Person and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including but not limited to obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person (including,
without limitation, all obligations under
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<PAGE>
non-competition agreements), except trade payables arising in the ordinary
course of business not more than one hundred twenty (120) days past due, (c) all
obligations of any such Person as lessee under Capital Leases, (d) all Debt of
any other Person secured by a Lien on any asset of any such Person, (e) all
Contingent Obligations of any such Person, (f) all obligations, contingent or
otherwise, of any such Person relative to the face amount of letters of credit,
whether or not drawn, including, without limitation, any banker's acceptances
issued for the account of any such Person and (g) all obligations to redeem,
repurchase, exchange, defease or otherwise make payments in respect of capital
stock or other securities of such Person.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Deutsche Marks or DEM" means, at any time of determination, the then
official currency of Germany.
"Documentation Agent" means The Chase Manhattan Bank in its
capacity as Documentation Agent hereunder
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Dollar Amount" means (a) with respect to each Loan made or continued
(or to be made or continued) in Dollars, the principal amount thereof and (b)
with respect to each Loan made or continued (or to be made or continued) in an
Alternative Currency, the amount of Dollars which is equivalent to the principal
amount of such Loan at the most favorable spot exchange rate determined by the
Administrative Agent at approximately 11:00 a.m. (Charlotte time) two (2)
Business Days before such Loan is made or continued (or to be made or
continued). When used with respect to any other sum expressed in an Alternative
Currency, "Dollar Amount" shall mean the amount of Dollars which is equivalent
to the amount so expressed in such Alternative Currency at the most favorable
spot exchange rate determined by the Administrative Agent to be available to it
at the relevant time.
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<PAGE>
"Domestic Subsidiary" means any Subsidiary of BREED organized under the
laws of any State of the United States or the District of Columbia.
"EBIT" means, with respect to BREED and its Subsidiaries for any
period, the sum of (a) Net Income for such period, plus (b) the sum of the
following to the extent deducted in the determination of Net Income: (i) income
and franchise taxes and (ii) Interest Expense.
"EBITDA" means, with respect to BREED and its Subsidiaries for any
period, the sum of (a) Net Income for such period, plus (b) the sum of the
following to the extent deducted in the determination of Net Income: (i) income
and franchise taxes, (ii) Interest Expense and (iii) amortization, depreciation
and other non-cash charges (including amortization of goodwill, transaction
expenses, covenants not to compete and other intangible assets). EBITDA shall be
adjusted in a manner reasonably satisfactory to the Administrative Agent to
include on a pro forma basis as of the first day of any calculation period any
acquisition consummated during such period and exclude on a pro forma basis as
of the first day of any calculation period any Subsidiary or assets sold during
such period.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by BREED
(unless
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an Event of Default has occurred and is continuing) and the
Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which is maintained for employees of BREED or
any ERISA Affiliate.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"Equity Issuance" means the issuance, sale or other disposition by
BREED or any of its Subsidiaries of its capital stock, any rights, warrants or
options to purchase or acquire any shares of its capital stock, or any other
security or instrument representing, convertible into or exchangeable for an
equity interest in BREED or any of its Subsidiaries other than Convertible
Preferred Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with BREED is treated
as a single employer within the meaning of Section 414(b), (c), (m) or (o) of
the Code or Section 4001(b) of ERISA.
"Event of Default" means any of the events specified in Section 11.1;
provided, that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Existing Credit Agreement" means the Revolving Credit Agreement dated
as of December 7, 1995 by and among BREED, as Borrower, Chemical Bank, as agent
and lender, NBD Bank, as lender, and First Union National Bank of Florida, as
lender, as amended, modified or supplemented.
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"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediate preceding Business Day.
"Finnish Mark Aggregate Commitment" means the aggregate amount
of the Finnish Mark Commitments of the Finnish Mark Lenders, as
such amount may be reduced or modified at any time or from time to
time pursuant to the terms hereof. On the Closing Date, the
Finnish Mark Aggregate Commitment shall be Ten Million Dollars
($10,000,000).
"Finnish Mark Commitment" means, as to any Finnish Mark Lender, the
obligation of such Finnish Mark Lender to make Finnish Mark Loans to the A/C
Borrowers hereunder in an aggregate Dollar Amount at any time outstanding not to
exceed the amount set forth opposite such Finnish Mark Lender's name on Schedule
1.1(c) hereto, as the same may be reduced or modified at any time or from time
to time pursuant to the terms hereof.
"Finnish Mark Commitment Percentage" means, as to any Finnish Mark
Lender at any time, the ratio of (a) the amount of the Finnish Mark Commitment
of such Finnish Mark Lender to (b) the Finnish Mark Aggregate Commitment of all
of the Finnish Mark Lenders.
"Finnish Mark Lenders" means each Lender listed on Schedule 1.1(c) in
its capacity as a Finnish Mark lender hereunder.
"Finnish Mark Loans" means the Loans in Finnish Marks made by the
Finnish Mark Lenders to the applicable A/C Borrower or A/C Borrowers pursuant to
Section 2.2.
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"Finnish Mark Notes" means the separate Finnish Mark Notes made by the
applicable A/C Borrowers indicated on Schedule 1.1(a) payable to the order of
each Finnish Mark Lender, substantially in the form of Exhibit A-2 hereto, and
any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Finnish Mark Note" means any of such Finnish Mark Notes.
"Finnish Marks or FIM" means, at any time of determination, the then
official currency of Finland.
"First Union" means First Union National Bank of Florida, a national
banking association, and its successors.
"Fiscal Year" means the fiscal year of BREED and its Subsidiaries
ending on June 30.
"Five-Year Credit Agreement" means the Five-Year Credit Agreement of
even date by and among the Borrowers, the Guarantor, the Lenders, the
Administrative Agent and the Documentation Agent, as amended, restated,
supplemented or otherwise modified from time to time.
"Foreign Subsidiary" means any Subsidiary of BREED not organized under
the laws of any State of the United States or the District of Columbia.
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for BREED and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of BREED and, to the extent each
Subsidiary was a Subsidiary of BREED, each such Subsidiary.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative
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functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital owner ship or otherwise, by any of
the foregoing.
"Guaranteed Obligations" shall have the meaning assigned
thereto in Section 10.1.
"Guarantor" means BREED in its capacity as guarantor under
Article X.
"Guaranty" means the unconditional guaranty agreement of BREED
set forth in Article X.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance, a trespass
or pose a health or safety hazard to persons or neighboring properties, (f)
which are materials consisting of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrowers under this Agreement, and
any confirming letter executed pursuant to such hedging agreement, all as
amended, restated, supplemented or otherwise modified from time to time.
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"Intercompany Trust Debt" shall mean Debt of BREED issued to any
Subsidiary referred to in Section 9.4(e) in consideration of the issuance of
Convertible Preferred Stock (which Debt may or may not be convertible into
common stock of BREED) and which is subordinate to the Obligations; provided
that such Debt shall not be deemed Intercompany Trust Debt if at any time it is
distributed to any person other than BREED or a Subsidiary.
"Interest Expense" means, with respect to BREED and its Subsidiaries
for any period, the gross interest expense (including, without limitation,
interest expense attributable to Capital Leases, all net obligations pursuant to
Hedging Agreements and all interest paid under or in connection with the
Convertible Preferred Stock) of BREED and its Subsidiaries, all determined for
such period on a Consolidated basis and, except as otherwise set forth in this
definition, in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in
Section 3.1(b).
"Italian Lire or ITL" means, at any time of determination, the then
official currency of Italy.
"Lender" means each Person executing this Agreement as a lender
(including, as applicable, each Finnish Mark Lender) set forth on the signature
pages hereto and each Person that hereafter becomes a party to this Agreement as
a lender pursuant to Section 13.10.
"Lending Office" means (a) with respect to any Lender, the office of
such Lender maintaining such Lender's Commitment Percentage of the Loans or (b)
with respect to any Finnish Mark Lender, the office of such Finnish Mark Lender
maintaining such Finnish Mark Lender's Finnish Mark Commitment Percentage.
"Leverage Ratio" means the ratio calculated in accordance with
Section 8.1.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 (or
the Alternative Currency Amount thereof with respect to a borrowing to be made
in an Alternative Currency) for a period equal to the applicable Interest Period
which appears on
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the Telerate Page 3750 at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period (rounded
upward, if necessary, to the nearest one-sixteenth of one percent (1/16%)). If,
for any reason, such rate does not appear on Telerate Page 3750, then "LIBOR"
shall be determined by the Administrative Agent to be the arithmetic average
(rounded upward, if necessary, to the nearest one-sixteenth of one percent
(1/16%)) of the rate per annum at which deposits in the Permitted Currency in
which the applicable Loan is denominated would be offered by first class banks
in the London interbank market to the Administrative Agent (or the
Administrative Agent's Correspondent) at approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of the applicable Interest Period
for a period equal to such Interest Period and in an amount substantially equal
to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/16th of 1%) determined by the Administrative Agent pursuant to
the following formula:
LIBOR Rate = LIBOR
1.00 - Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 3.1(a).
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement relating to such asset.
"Loan" means any Revolving Credit Loan, Finnish Mark Loan or Swingline
Loan made to any Borrower pursuant to Section 2.1, 2.2 or 2.3, and "Loans" means
all such Loans collectively as the context requires.
"Loan Documents" means, collectively, this Agreement, the Notes, any
Hedging Agreement executed by any Lender, the Security Documents and any
supplements thereto and each other document, instrument and agreement executed
and delivered by any Borrower or
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any Subsidiary thereof in connection with this Agreement or otherwise referred
to herein or contemplated hereby, all as may be amended, supplemented, restated
or otherwise modified from time to time.
"Loan Parties" means the collective reference to the Borrowers, each of
the Subsidiary Guarantors and each entity whose stock is pledged pursuant to a
Pledge Agreement and "Loan Party" means any one of such Persons.
"Material Adverse Effect" means, with respect to the Borrowers or any
of their Subsidiaries, a material adverse effect on (a) the properties,
business, prospects, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the ability of the
Borrower and its Subsidiaries taken as a whole to perform its obligations under
the Loan Documents or Material Contracts.
"Material Contract" means any contract or agreement, written or oral,
of any Borrower or any of its Subsidiaries the failure to comply with which
could reasonably be expected to have a Material Adverse Effect.
"Material Domestic Subsidiary" means any direct or indirect Domestic
Subsidiary of BREED which is a Material Subsidiary.
"Material Foreign Subsidiary" means any direct or indirect Foreign
Subsidiary of BREED which is a Material Subsidiary.
"Material Subsidiary" means any direct or indirect Subsidiary of BREED
which has total assets equal to or in excess of $15,000,000; provided, however,
that notwithstanding the foregoing, BREED and the Subsidiaries of BREED which
comprise "Material Subsidiaries" shall at all times have total assets equal to
or greater than ninety percent (90%) of the Consolidated total assets of BREED
and its Subsidiaries.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which BREED or any ERISA Affiliate is making, or is
accruing an obligation to make, contributions within the preceding six years.
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"Net Income" means, with respect to BREED and its Subsidiaries for any
period, the Consolidated net income (or loss) of BREED and its Subsidiaries for
such period determined in accordance with GAAP; provided, that there shall be
excluded from net income (or loss): (a) the income (or loss) of any Person
(other than a Subsidiary of such Person) in which such Person has an ownership
interest unless received by such Person in a cash distribution, (b) the income
(or loss) of any Person accrued prior to the date it became a Subsidiary of such
first Person or is merged into or consolidated with such first Person, and (c)
to the extent not included in clauses (a) and (b) above, any after-tax
extraordinary gains and non-cash losses.
"Net Proceeds" means the proceeds in cash or other cash equivalents
received by BREED and its Subsidiaries in connection with any permitted sale or
disposition of assets pursuant to Section 9.6(e) net of (a) direct costs
relating to such permitted sale or disposition, excluding any amount payable to
Affiliates of BREED and its Subsidiaries other than upon fair and reasonable
arm's length terms approved by disinterested members of BREED, (b) sale,
transfer, excise, use and other transaction taxes paid or payable as a result of
such permitted sale or disposition and (c) any temporary escrows or retainages
required in connection therewith provided that all such amounts ultimately
returned to Breed or any of its Subsidiaries will immediately be applied to
reduce the Total Aggregate Commitment as required herein.
"Net Worth" means, with respect to BREED and its Subsidiaries at any
date, the sum of (a) Consolidated stockholders' equity, calculated in accordance
with GAAP, and (b) Convertible Preferred Stock.
"Non-Core Assets" shall mean any assets of BREED or any of its
Subsidiaries not related to steering wheels, sensors, electronics, inflators,
airbag modules or complete airbag sensors.
"Notes" means the Revolving Credit Notes, the Finnish Mark Notes, the
Swingline Note, or any combination thereof, made by the applicable Borrower or
Borrowers payable to the order of each Lender; "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 4.2(f)(i).
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"Notice of Borrowing" shall have the meaning assigned thereto
in Section 2.4(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 3.2.
"Notice of Prepayment" shall have the meaning assigned thereto
in Section 2.5(d).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
all payment and other obligations owing by a Borrower to any Lender under any
Hedging Agreement permitted pursuant to Section 9.1, (c) the obligations of the
Guarantor pursuant to Article X, and (d) all other fees and commissions
(including attorney's fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by a Borrower
or the Guarantor to the Lenders or the Administrative Agent, under or in respect
of this Agreement, any Note or any of the other Loan Documents, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, and whether or not for the payment of money.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 6.2.
"Other Taxes" shall have the meaning assigned thereto in
Section 3.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which is maintained for employees of BREED or any
ERISA Affiliates.
"Permitted Currency" means Dollars or any Alternative Currency, or each
such currency, as the context requires.
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"Person" means an individual, corporation, partnership, association,
trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental Authority or any other
form of entity or group thereof.
"Pledge Agreement" means each of the Pledge Agreements executed by
BREED or a Subsidiary thereof, as pledgor, in favor of the Administrative Agent
for the ratable benefit of the Lenders, substantially in the form of Exhibit H
hereto (with any and all necessary modifications for each applicable foreign
jurisdiction), as amended, restated, supplemented or otherwise modified from
time to time, pursuant to which the capital stock of the Subsidiaries listed on
Schedule 1.1(d) and the capital stock of those Subsidiaries required to be
pledged under Section 7.12 is pledged to the Administrative Agent for the
ratable benefit of the Lenders.
"Pounds Sterling or GBP" means, at any time of determination, the then
official currency of the United Kingdom.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate. Each
change in the Prime Rate shall be effective as of the opening of business on the
day such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or base
rate and shall not necessarily be its lowest or best rate charged to its
customers or other banks.
"Register" shall have the meaning assigned thereto in Section
13.10(d).
"Required Lenders" means, at any date, any combination of holders of at
least fifty-one percent (51%) of the aggregate unpaid principal Dollar Amount of
the Revolving Credit Notes at such date, or if no amounts are outstanding under
the Revolving Credit Notes, any combination of Lenders whose Commitment
Percentages aggregate at least fifty-one percent (51%).
"Reserve Percentage" means the maximum daily arithmetic
reserve requirement imposed by the Board of Governors of the
Federal Reserve System (or any successor) under Regulation D on
Eurocurrency liabilities (as defined in Regulation D) for the
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applicable Interest Period as of the first day of such Interest Period, but
subject to any changes in such reserve requirement becoming effective during the
Interest Period. For purposes of calculating the Reserve Percentage, the reserve
requirement shall be as set forth in Regulation D without benefit of credit for
prorations, exemptions or offsets under Regulation D, and further without regard
to whether or not any Lender elects to actually fund any Loan or portion thereof
with Eurocurrency liabilities. Each calculation by the Administrative Agent of
the LIBOR Rate shall be conclusive and binding for all purposes, absent manifest
error.
"Revolving Credit Loans" means the collective reference to the
revolving credit loans made pursuant to Section 2.1.
"Revolving Credit Notes" means the separate Revolving Credit Notes made
by the applicable Borrower or Borrowers payable to the order of each Lender,
substantially in the form of Exhibit A-1 hereto with respect to each Borrower,
and any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part;
"Revolving Credit Note" means any of such Revolving Credit Notes.
"Security Documents" means the collective reference to the Pledge
Agreements, the Subsidiary Guaranty Agreement and each other agreement or
writing pursuant to which BREED or any Subsidiary thereof pledges or grants a
security interest in the Collateral or any other collateral securing the
Obligations or any such Person guaranties the payment or performance of the
Obligations or any portion thereof.
"Senior Debt" means all Debt of the Borrower other than
Subordinated Debt.
"Solvent" means, as to BREED and its Subsidiaries on a particular date,
that any such Person (a) has capital sufficient to carry on its business and
transactions and all business and transactions in which it is about to engage
and is able to pay its debts as they mature, (b) owns property having a value,
both at fair valuation and at present fair saleable value, greater than the
amount required to pay its probable liabilities (including contingencies), and
(c) does not believe that it will incur debts
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or liabilities beyond its ability to pay such debts or liabilities
as they mature.
"Subordinated Debt" means the collective reference to Debt on Schedule
5.1(t) hereof designated as Subordinated Debt and any other Debt of Breed or any
of its Subsidiaries subordinated in right and time of payment to the Obligations
on terms (including, without limitation, terms and conditions relating to
maturity and covenants) satisfactory to the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partner ship or
other entity of which more than fifty percent (50%) of the outstanding capital
stock or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity is at the time, directly or indirectly, owned by or
the management is otherwise controlled by such Person (irrespective of whether,
at the time, capital stock of any other class or classes of such corporation
shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to "Subsidiary" or
"Subsidiaries" herein shall refer to those of BREED and its Subsidiaries. A
Subsidiary shall also include any statutory business trust created to issue
Convertible Preferred Stock provided that a majority of the common securities
thereof are owned, directly or indirectly, by BREED.
"Subsidiary Guarantor" means each of the Material Domestic Subsidiaries
of BREED listed on Schedule 1.1(e) and each other Material Domestic Subsidiary
of BREED which becomes party to the Subsidiary Guaranty Agreement in accordance
with Section 7.12.
"Subsidiary Guaranty Agreement" means the unconditional guaranty
agreement executed by each Subsidiary Guarantor party thereto in favor of the
Administrative Agent for the ratable benefit of itself and the Lenders,
substantially in the form of Exhibit I hereto, as amended, restated,
supplemented or otherwise modified from time to time.
"Swingline Commitment" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Aggregate Commitment.
"Swingline Lender" means First Union in its capacity as
swingline lender hereunder.
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"Swingline Loan" means any swingline loan made by the Swingline Lender
to BREED pursuant to Section 2.3, and all such Loans collectively as the context
requires.
"Swingline Note" means the separate Note made by BREED payable to the
order of the Swingline Lender, substantially in the form of Exhibit A-3 hereto,
and any amendments and modifications thereto, any substitutes therefor, and any
replacements, restatements, renewals or extension thereof, in whole or in part.
"Swingline Rate" means a rate to be agreed upon from time to time by
BREED and the Swingline Lender.
"Swingline Termination Date" means the earlier to occur of (a) the
resignation of First Union as the Administrative Agent in accordance with
Section 12.9 without a substitute being appointed as provided therein and (b)
the Credit Facility Termination Date.
"Taxes" shall have the meaning assigned thereto in Section
3.13(a).
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of BREED or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment of
a trustee with respect to, any Pension Plan by the PBGC, or (e) any other event
or condition which would constitute grounds under Section 4042(a) of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan, or (f) the partial or complete withdrawal of BREED or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to Section
412 of the Code or Section 302 of ERISA, or (h) any event or condition which
results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
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"Total Aggregate Commitment" means the collective reference to the
Aggregate Commitment under this Agreement and the Aggregate Commitment (as
defined in the Five-Year Credit Agreement) under the Five-Year Credit Agreement.
"Trust Preferred Guarantee" means a guarantee by BREED of payments on
Convertible Preferred Stock but only to the extent the Subsidiary that has
issued such Convertible Preferred Stock has funds available therefor, and which
guarantee is subordinated to the Obligations on terms and conditions acceptable
to the Required Lenders.
"UCC" means the Uniform Commercial Code as in effect in the
State of North Carolina.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, a Subsidiary all of
the shares of capital stock or other ownership interests of which are, directly
or indirectly, owned or controlled by BREED and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Terms defined in this Agreement and in the Five-Year Credit Agreement shall be
construed consistently, and no term defined herein shall be limited or
restricted by any similar definition in the Five-Year Credit Agreement nor shall
any such term limit or restrict any similar definition in the Five-Year Credit
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Charlotte time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined
therein, all capitalized terms defined in this Agreement shall have
the defined meanings when used in this Agreement, the Notes and the
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other Loan Documents or any certificate, report or other document made or
delivered pursuant to this Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(c) Knowledge of Borrowers. The words "to the best of the Borrowers'
knowledge", "to the best of BREED's knowledge", "to the best knowledge of the
Borrowers and their Subsidiaries" and words of similar import when used in this
Agreement shall mean to the best knowledge and belief of the applicable Person
after reasonable and due investigation and review of all matters pertinent to
the subject matter thereof.
ARTICLE II
CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, each Lender severally agrees to make Revolving Credit Loans
in a Permitted Currency (other than Finnish Marks, Loans with respect to which
shall only be made by the Finnish Mark Lenders in accordance with the terms of
Section 2.2) to the applicable Borrower or Borrowers from time to time from the
Closing Date through the Credit Facility Termination Date as requested by the
applicable Borrower or Borrowers in accordance with the terms of Section 2.4;
provided, that, based upon the Dollar Amount of all outstanding Loans, (a) the
Dollar Amount of the aggregate principal amount of all outstanding Revolving
Credit Loans (after giving effect to any amount requested) shall not exceed the
Aggregate Commitment less the sum of the Dollar Amount of the aggregate
principal amount of all outstanding Finnish Mark Loans less the sum of the
Dollar Amount of the aggregate principal amount of all outstanding Swingline
Loans, (b) the sum of (i) the Dollar Amount of the aggregate principal amount of
all outstanding Revolving Credit Loans made in Alternative Currencies (other
than Finnish Marks) and (ii) the Dollar Amount of the aggregate principal amount
of all outstanding Finnish Mark Loans shall not exceed the Alternative Currency
Commitment and (c) the Dollar Amount of the aggregate principal amount of all
outstanding
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Revolving Credit Loans from any Lender to the Borrowers shall not at any time
exceed such Lender's Commitment. Each Revolving Credit Loan by a Lender shall be
in a principal amount equal to such Lender's Commitment Percentage of the Dollar
Amount of the aggregate principal amount of Revolving Credit Loans requested on
such occasion. Revolving Credit Loans to be made in an Alternative Currency
(other than Finnish Marks) shall be funded in an amount equal to the Alternative
Currency Amount of such Revolving Credit Loan. Revolving Credit Loans to BREED
may be denominated in Dollars or in the applicable Alternative Currency (other
than Finnish Marks) as set forth on Schedule 2.1 and Revolving Credit Loans to
each other A/C Borrower shall be denominated in the applicable Alternative
Currency (other than Finnish Marks) as set forth on Schedule 2.1. Subject to the
terms and conditions hereof, the Borrowers may borrow, repay and reborrow
Revolving Credit Loans hereunder until the Credit Facility Termination Date.
SECTION 2.2 Finnish Mark Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Finnish Mark Lenders severally agree to make Finnish Mark Loans
to the applicable A/C Borrower or A/C Borrowers from time to time from the
Closing Date through the Credit Facility Termination Date as requested by the
applicable A/C Borrower or A/C Borrowers in accordance with the terms of Section
2.4; provided, that, based upon the Dollar Amount of all outstanding Loans, (a)
the Dollar Amount of the aggregate principal amount of all outstanding Finnish
Mark Loans (after giving effect to any amount requested) shall not exceed the
lesser of (i) the Aggregate Commitment less the sum of the Dollar Amount of the
aggregate principal amount of all outstanding Revolving Credit Loans less the
sum of the Dollar Amount of the aggregate principal amount of all outstanding
Swingline Loans and (ii) the Finnish Mark Aggregate Commitment, (b) the sum of
(i) the Dollar Amount of the aggregate principal amount of all outstanding
Finnish Mark Loans and (ii) the Dollar Amount of the aggregate principal amount
of all outstanding Alternative Currency Loans made in Alternative Currencies
(other than Finnish Marks) shall not exceed the Alternative Currency Commitment
and (c) the Dollar Amount of the aggregate principal amount of all outstanding
Finnish Mark Loans from any Finnish Mark Lender to the A/C Borrowers shall not
at any time exceed such Lender's Finnish Mark Commitment. Each Finnish Mark Loan
by a Finnish Mark Lender shall be in a principal amount equal to such
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Finnish Mark Lender's Commitment Percentage of the Dollar Amount of the
aggregate principal amount of Finnish Mark Loans requested on such occasion.
Finnish Mark Loans shall be funded in an amount equal to the Alternative
Currency Amount of such Finnish Mark Loan. Subject to the terms and conditions
hereof, the Borrowers may borrow, repay and reborrow Finnish Mark Loans
hereunder until the Credit Facility Termination Date.
(b) Refunding of Finnish Mark Loans.
(i) Upon the occurrence and during the continuance of an Event
of Default, each Finnish Mark Loan may, at the discretion of the Administrative
Agent, be converted immediately to a Base Rate Loan funded in Dollars by the
Lenders in an amount equal to the Dollar Amount of such Finnish Mark Loan for
the remainder of the Interest Period applicable to such Finnish Mark Loan. Such
Base Rate Loan shall thereafter be reflected as a Revolving Credit Loan of the
Lenders on the books and records of the Administrative Agent. Each Lender shall
fund its respective Commitment Percentage of such Base Rate Loan as required to
repay Finnish Mark Loans outstanding to the Finnish Mark Lenders upon such
demand by the Administrative Agent in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Commitment Percentage of any Base Rate Loan
required to repay such Finnish Mark Loan shall be affected by any other Lender's
failure to fund its Commitment Percentage of such Base Rate Loan, nor shall any
Lender's Commitment Percentage be increased as a result of any such failure of
any other Lender to fund its Commitment Percentage of such Base Rate Loan.
(ii) The Borrowers shall pay to the Administrative Agent, for the
account of the Finnish Mark Lenders, on demand the amount of such Finnish Mark
Loans to the extent that the Lenders fail to refund in full the outstanding
Finnish Mark Loans requested or required to be refunded. In addition, the
Borrowers hereby authorize the Administrative Agent or any Finnish Mark Lender
to charge any account maintained by any Borrower with the Administrative Agent
or any Finnish Mark Lender (up to the amount available therein) in order to
immediately pay the Finnish Mark Lenders the amount of such Finnish Mark Loans
to the extent amounts received from the Lenders are not sufficient to repay in
full the outstanding Finnish Mark Loans requested or required to be
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refunded. If any portion of any such amount paid to the Finnish Mark Lenders
shall be recovered by or on behalf of the Borrowers from the Administrative
Agent or the Finnish Mark Lenders in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Lenders in accordance
with their respective Commitment Percentages.
(iii) Each Lender acknowledges and agrees that its obligation to
refund Finnish Mark Loans in accordance with the terms of this Section 2.2 is
absolute and unconditional and shall not be affected by any circumstance
whatsoever; provided, that if prior to the refunding of any outstanding Finnish
Mark Loans pursuant to this Section 2.2, one of the events described in Section
11.1(j) or (k) shall have occurred, each Lender will, on the date the applicable
Revolving Credit Loan would have been made to refund such Finnish Mark Loans,
purchase an undivided participating interest in such Finnish Mark Loans in an
amount equal to its Commitment Percentage of the aggregate amount of such
Finnish Mark Loan. Each Lender will immediately transfer to the Administrative
Agent, for the account of the Finnish Mark Lenders, in immediately available
funds in Dollars, the amount of its participation and upon receipt thereof the
Administrative Agent will deliver to such Lender a certificate evidencing such
partici pation dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Administrative Agent has received from any
Lender such Lender's participating interest in the refunded Finnish Mark Loans,
the Administrative Agent or any Finnish Mark Lender receives any payment on
account thereof, the Administrative Agent or such Finnish Mark Lender, as
applicable, will distribute to such Lender its participating interest in such
amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded).
SECTION 2.3 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to BREED from
time to time from the Closing Date through the Swingline Termination Date;
provided, that (i) all Swingline Loans shall be denominated in Dollars and (ii)
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested) shall not exceed the lesser of (A) the
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Aggregate Commitment less the sum of the Dollar Amount of the aggregate
principal amount of all outstanding Revolving Credit Loans less the sum of the
Dollar Amount of the aggregate principal amount of all outstanding Finnish Mark
Loans and (B) the Swingline Commitment.
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders on demand
to the Swingline Lender and at the sole discretion of the Swingline Lender. Such
refundings shall be made by the Lenders in accordance with their respective
Commitment Percentages and shall thereafter be reflected as Revolving Credit
Loans of the Lenders on the books and records of the Administrative Agent. Each
Lender shall fund its respective Commitment Percentage of Revolving Credit Loans
as required to repay Swingline Loans outstanding to the Swingline Lender upon
demand by the Swingline Lender but in no event later than 2:00 p.m. (Charlotte
time) on the next succeeding Business Day after such demand is made. No Lender's
obligation to fund its respective Commitment Percentage of a Swingline Loan
shall be affected by any other Lender's failure to fund its Commitment
Percentage of a Swingline Loan, nor shall any Lender's Commitment Percentage be
increased as a result of any such failure of any other Lender to fund its
Commitment Percentage of a Swingline Loan.
(ii) BREED shall pay to the Swingline Lender on demand the amount
of such Swingline Loans to the extent that the Lenders fail to repay in full the
outstanding Swingline Loans requested or required to be refunded. In addition,
BREED hereby authorizes the Administrative Agent to charge any account
maintained by BREED with the Swingline Lender (up to the amount available
therein) in order to immediately pay the Swingline Lender the amount of such
Swingline Loans to the extent amounts received from the Lenders are not
sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. If any portion of any such amount paid to the Swingline
Lender shall be recovered by or on behalf of BREED from the Swingline Lender in
bankruptcy or otherwise, the loss of the amount so recovered shall be ratably
shared among all the Lenders in accordance with their respective Commitment
Percentages.
(iii) Each Lender acknowledges and agrees that its
obligation to refund Swingline Loans in accordance with the terms
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of this Section 2.3 is absolute and unconditional and shall not be affected by
any circumstance whatsoever; provided, that if prior to the refunding of any
outstanding Swingline Loans pursuant to this Section 2.3, one of the events
described in Section 11.1(j) or (k) shall have occurred, each Lender will, on
the date the applicable Revolving Credit Loan would have been made to refund
such Swingline Loan, purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Commitment Percentage of the aggregate
amount of such Swingline Loan. Each Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to such
Lender a certificate evidencing such participation dated the date of receipt of
such funds and for such amount. Whenever, at any time after the Swingline Lender
has received from any Lender such Lender's participating interest in a Swingline
Loan, the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded).
SECTION 2.4 Procedure for Advances of Revolving Credit
Loans, Finnish Mark Loans and Swingline Loans.
(a) Requests for Borrowing. The applicable Borrower or Borrowers shall
give the Administrative Agent irrevocable prior written notice in the form
attached hereto as Exhibit B (a "Notice of Borrowing") not later than 12:00 noon
(Charlotte time) (i) on the same Business Day as each Swingline Loan, (ii) at
least one Business Day before each Base Rate Loan, (iii) at least three (3)
Business Days before each LIBOR Rate Loan denominated in Dollars and (iv) at
least four (4) Business Days before each LIBOR Rate Loan denominated in an
Alternative Currency, of its or their intention to borrow, specifying (A) the
date of such borrowing, which shall be a Business Day, (B) whether such Loan is
to be a Revolving Credit Loan, Finnish Mark Loan or a Swingline Loan, (C) if
such Loan is a Revolving Credit Loan, whether such Loan shall be denominated in
Dollars or in an Alternative Currency, (D) if denominated in Dollars, whether
the Loans are to be LIBOR Rate Loans or Base Rate Loans, (E) the amount of such
borrowing, which shall be (u) with respect to LIBOR Rate Loans denominated in
Dollars in an aggregate principal amount of $10,000,000 or a whole
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multiple of $1,000,000 in excess thereof, (v) with respect to LIBOR Rate Loans
denominated in an Alternative Currency (other than Finnish Marks) in an
aggregate principal Alternative Currency Amount of $10,000,000 or a whole
multiple of $1,000,000 in excess thereof, (x) with respect to LIBOR Rate Loans
denominated in Finnish Marks in an aggregate principal Alternative Currency
Amount of $2,000,000 or a whole multiple of $100,000 in excess thereof, (y) with
respect to Base Rate Loans in an aggregate principal amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof, and (z) with respect to Swingline
Loans in an aggregate principal amount of $100,000 or a whole multiple thereof
and (F) in the case of a LIBOR Rate Loan, the duration of the Interest Period
applicable thereto. Notices received after 12:00 noon (Charlotte time) shall be
deemed received on the next Business Day. The Administrative Agent shall
promptly notify (i) the Lenders of each Notice of Borrowing with respect to a
Revolving Credit Loan and (ii) the Finnish Mark Lenders of each Notice of
Borrowing with respect to a Finnish Mark Loan.
(b) Disbursement of Revolving Credit Loans Denominated in Dollars and
Swingline Loans. Not later than 2:00 p.m. (Charlotte time) on the proposed
borrowing date for any Loan denominated in Dollars, (i) each Lender will make
available to the Administrative Agent, for the account of BREED, at the office
of the Administrative Agent in Dollars in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the requested
Revolving Credit Loan to be made on such borrowing date and (ii) the Swingline
Lender will make available to the Administrative Agent, for the account of
BREED, at the office of the Administrative Agent in Dollars in funds immediately
available to the Administrative Agent, the Swingline Loans to be made to BREED
on such borrowing date. BREED hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.4 in immediately available funds by crediting such proceeds to a
deposit account of BREED maintained with the Administrative Agent or by wire
transfer from such deposit account to another account as may be requested by
BREED by prior written notice to the Administrative Agent. Subject to Section
3.7 hereof, the Administrative Agent shall not be obligated to disburse the
portion of the proceeds of any Loan requested pursuant to this Section 2.4 to
the extent that any Lender has not made available to the Administrative Agent
its Commitment Percentage of such Loan. Revolving Credit Loans to be
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made for the purpose of refunding Swingline Loans shall be made by the Lenders
as provided in Section 2.3(b) hereof.
(c) Disbursement of Alternative Currency Loans (other than Finnish Mark
Loans). Not later than 10:00 a.m. (the time of the Administrative Agent's
Correspondent) on the proposed borrowing date for any Alternative Currency Loan
(other than Finnish Mark Loans), each Lender will make available to the
Administrative Agent for the account of the applicable A/C Borrower or A/C
Borrowers at the office of the Administrative Agent's Correspondent in the
requested Alternative Currency in funds immediately available to the
Administrative Agent, such Lender's Commitment Percentage of the requested
borrowing to be denominated in such Alternative Currency. The A/C Borrowers
hereby irrevocably authorize the Administrative Agent to disburse the proceeds
of each borrowing requested pursuant to this Section 2.4 in immediately
available funds by crediting such proceeds to an account of the applicable A/C
Borrower maintained with the Administrative Agent's Correspondent or by wire
transfer from such deposit account to another account as may be requested by
such A/C Borrower by prior written notice to the Administrative Agent. Subject
to Section 3.7 hereof, the Administrative Agent shall not be obligated to
disburse the portion of the proceeds of any Loan requested pursuant to this
Section 2.4 to the extent that any Lender has not made available to the
Administrative Agent its Commitment Percentage of such Loan.
(d) Disbursement of Finnish Mark Loans. Not later than 10:00 a.m. (the
time of the Administrative Agent's Correspondent) on the proposed borrowing date
for any Finnish Mark Loan, each Finnish Mark Lender will make available to the
Administrative Agent for the account of the applicable A/C Borrower or A/C
Borrowers at the office of the Administrative Agent's Correspondent in Finnish
Marks in funds immediately available to the Administrative Agent, such Finnish
Mark Lender's Commitment Percentage of the requested borrowing to be denominated
in Finnish Marks. The A/C Borrowers hereby irrevocably authorize the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.4 in immediately available funds by crediting such
proceeds to an account of the applicable A/C Borrower maintained with the
Administrative Agent's Correspondent or by wire transfer from such deposit
account to another account as may be requested by such A/C Borrower by prior
written notice to the Administrative Agent. Subject to Section 3.7 hereof, the
Administrative Agent shall not
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be obligated to disburse the portion of the proceeds of any Finnish Mark Loan
requested pursuant to this Section 2.4 to the extent that any Finnish Mark
Lender has not made available to the Administrative Agent its Commitment
Percentage of such Finnish Mark
Loan.
SECTION 2.5 Repayment of Revolving Credit Loans, Finnish
Mark Loans and Swingline Loans.
(a) Repayment. The applicable Borrower or Borrowers shall repay (i) the
principal Dollar Amount of all outstanding Revolving Credit Loans in full in the
currency in which each such Revolving Credit Loan was initially funded, together
with all accrued but unpaid interest thereon, on the Credit Facility Termination
Date, (ii) the principal Dollar Amount of all outstanding Finnish Mark Loans in
full in Finnish Marks, together with all accrued but unpaid interest thereon, on
the Credit Facility Termination Date (or in accordance with Section 2.2(b) if
earlier) and (iii) the principal amount of all outstanding Swingline Loans in
full, together with all accrued but unpaid interest thereon, in accordance with
Section 2.3(b).
(b) Mandatory Repayment of Excess Loans.
(i) Aggregate Commitment. If at any time (as determined by the
Administrative Agent under Section 2.5(b)(iv)), and for any reason, the
aggregate principal Dollar Amount of all outstanding Revolving Credit Loans,
Finnish Mark Loans and Swingline Loans exceeds one hundred and five percent
(105%) of the Aggregate Commitment, the applicable Borrower or Borrowers shall
(A) first, if (and to the extent) necessary to eliminate such excess,
immediately repay outstanding Revolving Credit Loans that are Base Rate Loans by
the Dollar Amount of such excess in the currency in which each such Loan was
initially funded (and/or reduce any pending request for a Base Rate Loan on such
day by the Dollar Amount of such excess) and (B) second, if (and to the extent)
necessary to eliminate such excess, immediately repay LIBOR Rate Loans in the
currency in which each such Loan was initially funded (and/or reduce any pending
requests for a borrowing or continuation or conversion of such Loans submitted
in respect of such Loans on such day) by the Dollar Amount of any remaining
excess.
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(ii) Excess Finnish Mark Loans. If at any time and for any reason
the outstanding principal amount of all outstanding Finnish Mark Loans exceeds
the lesser of (A) the Aggregate Commitment less the sum of the outstanding
principal Dollar Amount of all Revolving Credit Loans less the sum of the
outstanding principal Dollar Amount of all Swingline Loans and (B) the Finnish
Mark Aggregate Commitment, such excess shall be immediately repaid in Finnish
Marks by the applicable A/C Borrower or A/C Borrowers to the Administrative
Agent for the account of the Finnish Mark Lenders.
(iii) Excess Swingline Loans. If at any time and for any reason the
outstanding principal amount of all outstanding Swingline Loans exceeds the
lesser of (A) the Aggregate Commitment less the sum of the outstanding principal
Dollar Amount of all Revolving Credit Loans less the sum of the outstanding
principal Dollar Amount of all Finnish Mark Loans and (B) the Swingline
Commitment, such excess shall be immediately repaid by BREED to the
Administrative Agent for the account of the Swingline Lender.
(iv) Compliance and Payments. Each Borrower's compliance with this
Section 2.5(b) shall be tested from time to time by the Administrative Agent at
its sole discretion, but in any event on each day an interest payment is due
under Section 3.1(e). All payments pursuant to this Section 2.5(b) shall be
accompanied by any amount required to be repaid under Section 3.11.
(c) Other Mandatory Repayments. The Borrowers shall repay
the Loans in accordance with Section 2.7 in connection with any
permanent reduction in the Aggregate Commitment.
(d) Optional Repayments. Any Borrower may at any time and from time to
time repay the Loans made thereto in the currency in which each such Loan was
initially funded, in whole or in part, with respect to LIBOR Rate Loans
denominated in an Alternative Currency, upon irrevocable notice to the
Administrative Agent made no later than 12:00 noon (Charlotte time) on the
Business Day that is at least four (4) Business Days' prior to such prepayment,
upon at least three (3) Business Days' irrevocable notice to the Administrative
Agent with respect to LIBOR Rate Loans denominated in Dollars, one (1) Business
Day's irrevocable notice with respect to Base Rate Loans, and same Business Day
irrevocable notice with respect to Swingline Loans, in the form attached hereto
as Exhibit
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C (a "Notice of Prepayment"), specifying the date and amount of repayment and
whether the repayment is of LIBOR Rate Loans denominated in an Alternative
Currency (including, without limitation, Finnish Mark Loans), LIBOR Rate Loans
denominated in Dollars, Base Rate Loans, Swingline Loans, or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon
receipt of such notice, the Administrative Agent shall promptly notify each
Lender. If any such notice is given, the amount specified in such notice shall
be due and payable on the date set forth in such notice. Partial repayments
shall be in an aggregate amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof with respect to Base Rate Loans, $10,000,000 or a whole multiple
of $1,000,000 in excess thereof with respect to LIBOR Rate Loans (or with
respect to Alternative Currency Loans other than Finnish Mark Loans, the
Alternative Currency Amount thereof), the Alternative Currency Amount of
$2,000,000 or a whole multiple of $100,000 in excess thereof with respect to
Finnish Mark Loans, and a whole multiple of $100,000 with respect to Swingline
Loans. Each such repayment shall be accompanied by any amount required to be
paid pursuant to Section 3.11 hereof.
(e) Limitation on Repayment of LIBOR Rate Loans. No Borrower may repay
any LIBOR Rate Loan (including, without limitation, any LIBOR Rate Loan
denominated in an Alternative Currency) on any day other than on the last day of
the Interest Period applicable thereto unless such repayment is accompanied by
any amount required to be paid pursuant to Section 3.11 hereof.
SECTION 2.6 Notes.
(a) Revolving Credit Notes. Each Lender's Revolving Credit Loans and
the obligation of each Borrower to repay such Revolving Credit Loans shall be
evidenced by a Revolving Credit Note executed by each Borrower payable to the
order of such Lender representing each such Borrower's obligation to pay such
Lender's Commitment or, if less, the aggregate unpaid principal amount of all
Revolving Credit Loans made and to be made by such Lender to such Borrower
hereunder, plus interest and all other fees, charges and other amounts due
thereon. Each Revolving Credit Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 3.1.
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(b) Finnish Mark Notes. Each Finnish Mark Lender's Finnish Mark Loans
and the obligation of each applicable A/C Borrower to repay such Finnish Mark
Loans shall be evidenced by a Finnish Mark Note executed by such A/C Borrower
payable to the order of such Finnish Mark Lender representing such A/C
Borrower's obligation to pay such Finnish Mark Lender's Finnish Mark Commitment
or, if less, the aggregate unpaid principal amount of all Finnish Mark Loans
made and to be made by such Finnish Mark Lender to such A/C Borrower hereunder,
plus interest and all other fees, charges and other amounts due thereon. Each
Finnish Mark Note shall be dated the date hereof and shall bear interest on the
unpaid principal amount thereof at the applicable interest rate per annum
specified in Section 3.1.
(c) Swingline Notes. The Swingline Loans and the obligation of BREED to
repay such Swingline Loans shall be evidenced by the Swingline Note executed by
BREED payable to the order of the Swingline Lender representing BREED's
obligation to pay the Swingline Commitment or, if less, the aggregate unpaid
principal amount of all Swingline Loans made and to be made by the Swingline
Lender to BREED hereunder, plus interest and all other fees, charges and other
amounts due thereon. The Swingline Note shall be dated the date hereof and shall
bear interest on the unpaid principal amount thereof at the applicable interest
rate specified in Section 3.1.
SECTION 2.7 Permanent Reduction of the Aggregate
Commitment.
(a) Voluntary Reduction. The Borrowers shall have the right at any time
and from time to time, upon at least five (5) Business Days' prior written
notice to the Administrative Agent, to permanently reduce, in whole at any time
or in part from time to time, without premium or penalty, the Aggregate
Commitment in an aggregate principal amount not less than $10,000,000 or any
whole multiple of $1,000,000 in excess thereof. To the extent that the Aggregate
Commitment is reduced to an amount below the Alternative Currency Commitment or
the Finnish Mark Aggregate Commitment, there shall be a corresponding permanent
reduction of the Alternative Currency Commitment or the Finnish Mark Aggregate
Commitment, as applicable, to the amount of the Aggregate Commitment as so
reduced.
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(b) Mandatory Permanent Reductions.
(i) Incurrence of Debt. The Total Aggregate Commitment shall
be permanently reduced by an amount equal to one hundred percent (100%)
of the amount of any Debt incurred pursuant to Section 9.1(j), such
application to the Aggregate Commitment under this Agreement and/or the
Five-Year Credit Agreement to be determined by the Borrowers in their
sole discretion. Such reduction shall be made promptly upon the
incurrence of such Debt.
(ii) Sale of Assets. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to fifty percent (50%) of the
aggregate Net Proceeds from any sale or disposition of assets permitted
pursuant to Section 9.6(e), such application to the Aggregate
Commitment under this Agreement and/or the Five-Year Credit Agreement
to be determined by the Borrowers in their sole discretion. Such
reduction shall be made promptly upon the consummation of any such sale
or disposition.
(c) Additional Payments. Each permanent reduction permitted or required
pursuant to this Section 2.7 shall be accompanied by a payment of principal
sufficient to reduce the aggregate principal Dollar Amount of the outstanding
Loans of the Lenders after such reduction to the Aggregate Commitment as so
reduced. All prepayments required by this Section 2.7(b) shall be applied first
to the aggregate outstanding principal amount of Swingline Loans, second to the
aggregate outstanding principal amount of Finnish Mark Loans and third to the
aggregate outstanding principal amount of Revolving Credit Loans. Any permanent
reduction of the Aggregate Commitment to zero shall be accompanied by payment of
all outstanding Obligations and, if such reduction is permanent, termination of
the Commitments and the Credit Facility. If the reduction of the Aggregate
Commitment requires the repayment of any LIBOR Rate Loan, such reduction may be
made only on the last day of the then current Interest Period applicable thereto
unless such repayment is accompanied by any amount required to be paid pursuant
to Section 3.11 hereof.
SECTION 2.8 Termination of Credit Facility. The Credit Facility shall
terminate on the earliest of (a) April __, 1998, (b) the date of a permanent
reduction of the Aggregate Commitment in
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whole pursuant to Section 2.7(a) or Section 2.7(b), and (c) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 11.2(a); provided that the Borrowers may request on an annual basis a
364-day extension of the date set forth in clause (a) above by providing the
Administrative Agent and each of the Lenders with a written request for such
extension not more than ninety (90) days and not fewer than sixty (60) days
prior to the then existing Credit Facility Termination Date; provided further
that each such extension shall be subject to the satisfaction by the Borrowers
of each of the conditions set forth in Section 4.3 on the then existing Credit
Facility Termination Date. Each of the Lenders shall provide written notice to
the Administrative Agent on or prior to the thirtieth (30th) day before the then
existing Credit Facility Termination Date of its desire to extend or not to so
extend such date. No Lender shall be under any obligation or commitment to
extend such date and no such obligation or commitment on the part of any Lender
shall be inferred from the provisions of this Section 2.8. Failure on the part
of any Lender to respond to such request by the required date set forth above
shall be deemed to be a denial of such request by such Lender. The requested
extension shall not be granted unless Lenders holding Commitments aggregating at
least seventy-five percent (75%) of the Aggregate Commitment at such time shall
have consented in writing to such extension. If Lenders holding Commitments
aggregating less than one hundred percent (100%) but equal to or greater than
seventy-five percent (75%) of the Aggregate Commitment consent to such
extension, the Borrowers may elect by written notice to the Administrative Agent
and Lenders to (i) continue the Credit Facility for such additional period with
an Aggregate Commitment equal to the then effective Aggregate Commitment less
the total Commitments of Lenders who have not consented to such an extension
("Non-Consenting Lenders") and with a Finnish Mark Commitment equal to the then
effective Finnish Mark Commitment less the total of the individual Finnish Mark
Commitments of Non-Consenting Lenders who are Finnish Mark Lenders or (ii)
require any such Non-Consenting Lender to transfer and assign without recourse
(in accordance with the provisions of Section 13.10) its Commitment and other
interests, rights and obligations under this Agreement to an Eligible Assignee
(who consents thereto), which shall assume such obligations upon its consent to
assume such obligations; provided that (A) no such assignment shall conflict
with any Applicable Law, (B) such assignment shall be at the cost and expense of
the Borrowers and (C) the purchase price to be paid to such NonConsenting Lender
shall be an amount equal to the outstanding principal amount of the Loans of
such Non-Consenting Lender plus all interest accrued and unpaid thereon and all
other amounts owing to such Non-Consenting Lender thereon. The Administrative
Agent shall provide prompt notice to the Borrowers and the Lenders in writing as
to whether the requested extension has been granted and, if applicable, the list
of Non-Consenting Lenders. If the extension is granted, upon the then existing
Credit Facility Termination Date, the date set forth in clause (a) above shall
be extended to the date which is 364 days from the then current date set forth
therein.
SECTION 2.9 Use of Proceeds. The Borrowers shall use the proceeds of
the Loans (a) to finance investments and acquisitions permitted by the terms
hereof, (b) for working capital and general corporate requirements of the
Borrowers, including the payment of certain fees and expenses incurred in
connection with the transactions contemplated hereby and (c) to refinance
existing debt.
SECTION 2.10 Nature of Obligations. Except as otherwise set forth in
the other Loan Documents, the obligations of the Borrowers under the Note or
Notes executed thereby and the other Obligations of the Borrowers shall be
several and not joint and several among the Borrowers.
SECTION 2.11 Security. The Obligations of each Loan Party shall be
secured in accordance with the terms of the applicable Security Documents.
ARTICLE III
GENERAL LOAN PROVISIONS
SECTION 3.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
3.1, at the election of the applicable Borrower or Borrowers, Revolving Credit
Loans denominated in Dollars shall bear interest at the Base Rate or the LIBOR
Rate plus, in each case, the Applicable Margin as set forth below, and Revolving
Credit Loans denominated in an Alternative Currency and Finnish Mark Loans shall
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bear interest at the LIBOR Rate plus the Applicable Margin as set forth below.
Each Swingline Loan shall bear interest at the Swingline Rate. The applicable
Borrower or Borrowers shall select the rate of interest and Interest Period, if
any, applicable to any Revolving Credit Loan or Finnish Mark Loan at the time a
Notice of Borrowing is given pursuant to Section 2.4 or at the time a Notice of
Conversion/Continuation is given pursuant to Section 3.2. Each Loan or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate Loan" and
each Loan or portion thereof bearing interest based on the LIBOR Rate shall be a
"LIBOR Rate Loan". Any Loan or any portion thereof as to which the applicable
Borrower or Borrowers has not duly specified an interest rate as provided herein
shall be deemed a Base Rate Loan denominated in Dollars.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
applicable Borrower or Borrowers, by giving notice at the times described in
Section 3.1(a), shall elect an interest period (each, an "Interest Period") to
be applicable to such Loan, which Interest Period shall be a period of one (1),
two (2), three (3), six (6), or if made available by the Administrative Agent
and the Lenders (in their sole discretion), twelve (12) months with respect to
each LIBOR Rate Loan; provided, that:
(i) the Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of
immediately successive Interest Periods, each successive Interest
Period shall commence on the date on which the next preceding Interest
Period expires;
(ii) if any Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided, that if any Interest Period
would otherwise expire on a day that is not a Business Day but is a day
of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the next preceding Business Day;
(iii) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last
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Business Day of the relevant calendar month at the end of such
Interest Period;
(iv) no Interest Period shall extend beyond the
Credit Facility Termination Date; and
(v) there shall be no more than eight (8) Interest
Periods outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in
Section 3.1(a) with respect to the Loans (the "Applicable Margin")
shall:
(i) for the period commencing on the Closing Date and ending
on the date immediately preceding the fifth (5th) Business Day
following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
March 31, 1997 and the accompanying Officer's Compliance Certificate,
be determined based on the Leverage Ratio set forth in the Financial
Condition Certificate delivered pursuant to Section 4.2(e)(ii) in
accordance with the chart below;
(ii) for the period commencing on the fifth (5th) Business Day
following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio as of the end of the
fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate in accordance with the chart below:
Applicable Margin Per Annum
Leverage Ratio Base Rate + LIBOR Rate +
Greater than 3.25 0.00% 1.050%
Less than or equal
to 3.25 and greater
than 3.00 0.00% 0.800%
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Less than or equal
to 3.00 and greater
than 2.50 0.00% 0.600%
less than or equal
to 2.50 but greater
than 2.00 0.00% 0.475%
less than or equal
to 2.00 0.00% 0.375%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment Date")
after receipt by the Administrative Agent of quarterly financial statements for
BREED and its Subsidiaries and the accompanying Officer's Compliance Certificate
setting forth the Leverage Ratio as of the most recent fiscal quarter end.
Subject to Section 3.1(d), in the event the Borrowers fail to deliver such
financial statements and certificate within the time required by Section 6.2
hereof, the Applicable Margin shall be the highest Applicable Margin set forth
above until the delivery of such financial statements and certificate.
Notwithstanding anything to the contrary contained herein, in the event
the Interest Coverage Ratio (as determined pursuant to Section 8.3 of this
Agreement) is less than 3.00 to 1.00 during the applicable period set forth in
such Section 8.3, the Applicable Margin set forth in this Section 3.1 shall be
deemed to be 1.000% with respect to LIBOR Rate Loans (unless the Applicable
Margin with respect to LIBOR Rate Loans is determined to be 1.250% pursuant to
the terms of this Section 3.1(c)).
(d) Default Rate. Upon the occurrence and during the continuance of an
Event of Default, (i) the Borrowers shall no longer have the option to request
LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans shall bear interest at a
rate per annum two percent (2%) in excess of the rate then applicable to LIBOR
Rate Loans, as applicable, until the end of the applicable Interest Period and
thereafter at a rate equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans, and (iii) all outstanding Base Rate Loans
(including, without limitation, Swingline Loans) shall bear interest at a rate
per annum equal to
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two percent (2%) in excess of the rate then applicable to Base Rate Loans.
Interest shall continue to accrue on the Notes after the filing by or against
any Borrower of any petition seeking any relief in bankruptcy or under any act
or law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) Interest Payment and Computation. Interest on each Base Rate Loan
and each Swingline Loan shall be payable in arrears on the last Business Day of
each fiscal quarter commencing June 30, 1997 and interest on each LIBOR Rate
Loan shall be payable on the last day of each Interest Period applicable
thereto, and if such Interest Period extends over three (3) months, at the end
of each three (3) month interval during such Interest Period. All interest
rates, fees and commissions provided hereunder shall be computed on the basis of
a 360-day year and assessed for the actual number of days elapsed; provided,
that (i) interest rates on each Loan denominated in Pounds Sterling shall be
computed on the basis of a 365-day year and (ii) interest rates on each Base
Rate Loan and each Swingline Loan shall be computed on the basis of a
365/366-day year.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option promptly refund to the applicable Borrower or Borrowers any
interest received by Lenders in excess of the maximum lawful rate or shall apply
such excess to the principal balance of the Obligations. It is the intent hereof
that the Borrowers not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrowers under Applicable Law.
SECTION 3.2 Notice and Manner of Conversion or Continuation
of Revolving Credit Loans and Finnish Mark Loans. Provided that no
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Default or Event of Default has occurred and is then continuing, the Borrowers
shall have the option to (a) convert at any time all or any portion of any
outstanding Base Rate Loans that are Revolving Credit Loans in a principal
amount equal to $10,000,000 or any whole multiple of $1,000,000 in excess
thereof into one or more LIBOR Rate Loans denominated in Dollars, (b) upon the
expiration of any Interest Period, convert all or any part of any outstanding
LIBOR Rate Loans denominated in Dollars in a principal amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof into Base Rate
Loans that are Revolving Credit Loans, (c) upon the expiration of any Interest
Period, continue any LIBOR Rate Loan denominated in any Permitted Currency
(other than Finnish Marks) in a principal amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof (or with respect to LIBOR Rate Loans
denominated in an Alternative Currency other than Finnish Marks, the Alternative
Currency Amount in each case thereof) as a LIBOR Rate Loan in the same Permitted
Currency or (d) upon the expiration of any Interest Period, continue any LIBOR
Rate Loan denominated in Finnish Marks in a principal Alternative Currency
Amount of $2,000,000 or any whole multiple of $100,000 in excess thereof as a
LIBOR Rate Loan in Finnish Marks. Whenever any Borrower or Borrowers desire to
convert or continue Loans as provided above, such Borrower or Borrowers shall
give the Administrative Agent irrevocable prior written notice in the form
attached as Exhibit D (a "Notice of Conversion/Continuation") not later than
11:00 a.m. (Charlotte time) four (4) Business Days (with respect to any Loan
denominated in an Alternative Currency) and three (3) Business Days (with
respect to any Loan denominated in Dollars) before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the Permitted Currency in which such Loan is
denominated and the last day of the Interest Period therefor, (B) the effective
date of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
SECTION 3.3 Fees.
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(a) Facility Fee. The Borrowers shall pay to the Administrative Agent,
for the account of the Lenders, a non-refundable facility fee at a rate per
annum equal to the applicable percentage set forth below in this Section 3.3(a)
on the amount of the Aggregate Commitment. The facility fee shall be payable in
arrears on the last Business Day of each fiscal quarter during the term of this
Agreement commencing June 30, 1997, and on the Credit Facility Termination Date.
Such facility fee shall be distributed by the Administrative Agent to the
Lenders pro rata in accordance with the Lenders' respective Commitment
Percentages. The facility fee rate shall:
(i) for the period commencing on the Closing Date and ending
on the date immediately preceding the fifth (5th) Business Day
following receipt by the Administrative Agent of the Consolidated
financial statements of BREED for the fiscal quarter ending March 31,
1997 and the accompanying Officer's Compliance Certificate, be
determined based on the Leverage Ratio set forth in the Financial
Condition Certificate delivered pursuant to Section 4.2(e)(ii) in
accordance with the chart below;
(ii) for the period commencing on the fifth (5th) Business Day
following receipt by the Administrative Agent of the Consolidated
financial statements of BREED for the fiscal quarter ending June 30,
1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio of BREED and its
Subsidiaries as of the end of the fiscal quarter immediately preceding
the delivery of the applicable Officer's Compliance Certificate in
accordance with the chart below:
Leverage Ratio Facility Fee Rate
Greater than 3.25 0.200%
Less than or equal
to 3.25 and greater
than 3.00 0.200%
Less than or equal
to 3.00 and greater
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than 2.50 0.150%
less than or equal
to 2.50 but greater
than 2.00 0.150%
less than or equal
to 2.00 0.125%
Adjustments, if any, in the facility fee rate shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment Date")
after receipt by the Administrative Agent of quarterly financial statements for
BREED and its Subsidiaries and the accompanying Officer's Compliance Certificate
setting forth the Leverage Ratio of BREED and its Subsidiaries as of the most
recent fiscal quarter end. In the event the Borrowers fail to deliver such
financial statements and certificate within the time required by Section 6.2
hereof, the facility fee rate shall be the highest facility fee rate set forth
above until the delivery of such financial statements and certificate.
Notwithstanding anything to the contrary contained herein, in the event
the Interest Coverage Ratio (as determined pursuant to Section 8.3 of this
Agreement) is less than 3.00 to 1.00 during the applicable period set forth in
such Section 8.3, the Facility Fee Rate set forth in this Section 3.3 shall be
deemed to be .300%.
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring, syndicating and arranging the Loans and
for its obligations hereunder, the Borrowers agree to pay to the Administrative
Agent, for its sole account, the fees set forth in the separate fee letter
agreement executed by BREED and the Administrative Agent dated March 18, 1997.
SECTION 3.4 Manner of Payment.
(a) Loans Denominated in Dollars. Each payment (including
repayments described in Article II) by any Borrower on account of
the principal of or interest on the Loans denominated in Dollars or
of any fee, commission or other amounts payable to the Lenders
under this Agreement or any Note (except as set forth in Section
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3.4(b)) shall be made in Dollars not later than 1:00 p.m. (Charlotte time) on
the date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office for the account of the Lenders pro rata in
accordance with their respective Commitment Percentages in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 2:00 p.m. (Charlotte
time) on such day shall be deemed a payment on such date for the purposes of
Section 11.1, but for all other purposes shall be deemed to have been made on
the next succeeding Business Day. Any payment received after 2:00 p.m.
(Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(b) Loans Denominated in Alternative Currencies. Each payment
(including repayments described in Article II) by any A/C Borrower on account of
the principal of or interest on the Loans denominated in any Alternative
Currency shall be made in such Alternative Currency not later than 12:00 noon
(the time of the Administrative Agent's Correspondent) on the date specified for
payment under this Agreement to the Administrative Agent's account with the
Administrative Agent's Correspondent for the account of the Lenders pro rata in
accordance with their respective Commitment Percentages (or, with respect to
Finnish Mark Loans, for the account of the Finnish Mark Lenders pro rata in
accordance with their respective Finnish Mark Commitment Percentages) in
immediately available funds, and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 1:00
p.m. (the time of the Administrative Agent's Correspondent) on such day shall be
deemed a payment on such date for the purposes of Section 11.1, but for all
other purposes shall be deemed to have been made on the next succeeding Business
Day. Any payment received after 1:00 p.m. (the time of the Administrative
Agent's Correspondent) shall be deemed to have been made on the next succeeding
Business Day for all purposes.
(c) Pro Rata Treatment. Upon receipt by the Administrative Agent of
each such payment, the Administrative Agent shall distribute to each Lender or
Finnish Mark Lender, as applicable, at its address for notices set forth herein
its pro rata share of such payment in accordance with the Commitment Percentage
of such Lender or Finnish Mark Commitment Percentage of such Finnish Mark
Lender, as applicable, and shall wire advice of the amount of such credit
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to each Lender or each Finnish Mark Lender, as applicable. Each payment to the
Administrative Agent of the Swingline Lender's fees or commissions shall be made
in like manner, but for the account of the Swingline Lender. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender
under Sections 3.10, 3.11, 3.12, 3.13, 12.2, and 13.2 shall be paid to the
Administrative Agent for the account of the applicable Lender or Finnish Mark
Lender. Subject to Section 3.1(b)(ii), if any payment under this Agreement or
any Note shall be specified to be made upon a day which is not a Business Day,
it shall be made on the next succeeding day which is a Business Day and such
extension of time shall in such case be included in computing any interest if
payable along with such payment.
SECTION 3.5 Crediting of Payments and Proceeds. In the event that any
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 11.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied to all expenses then due and
payable by the Borrowers hereunder, then to all indemnity obligations then due
and payable by the Borrowers hereunder, then to all Administrative Agent's fees
then due and payable, then to all commitment and other fees and commissions then
due and payable, then to accrued and unpaid interest on the Swingline Note to
the Swingline Lender, then to the principal amount outstanding under the
Swingline Note to the Swingline Lender, then to the principal amount outstanding
and accrued and unpaid interest on the Finnish Mark Notes, then to accrued and
unpaid interest on the Revolving Credit Notes, then to any termination payments
due in respect of a Hedging Agreement with any Lender permitted pursuant to
Section 9.1 (pro rata in accordance with all such amounts due), in that order.
SECTION 3.6 Adjustments.
(a) If any Lender (a "Benefitted Lender") shall at any time receive any
payment of all or part of its Revolving Credit Loans, or interest thereon, or if
any Lender shall at any time receive any collateral in respect to its Revolving
Credit Loans (whether voluntarily or involuntarily, by set-off or otherwise) in
a greater proportion than any such payment to and collateral received by any
other Lender, if any, in respect of such other Lender's Revolving
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Credit Loans, or interest thereon, such Benefitted Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Revolving
Credit Loans, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Borrowers
agree that each Lender so purchasing a portion of another Lender's Revolving
Credit Loans may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
(b) If any Finnish Mark Lender (a "Benefitted Finnish Mark Lender")
shall at any time receive any payment of all or part of its Finnish Mark Loans,
or interest thereon, or if any Finnish Mark Lender shall at any time receive any
collateral in respect to its Finnish Mark Loans (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Finnish Mark Lender, if any, in
respect of such other Finnish Mark Lender's Finnish Mark Loans, or interest
thereon, such Benefitted Finnish Mark Lender shall purchase for cash from the
other Finnish Mark Lenders such portion of each such other Finnish Mark Lender's
Finnish Mark Loans, or shall provide such other Finnish Mark Lenders with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such Benefitted Finnish Mark Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Finnish Mark
Lenders; provided, that if all or any portion of such excess payment or benefits
is thereafter recovered from such Benefitted Finnish Mark Lender, such purchase
shall be rescinded, and the purchase price and benefits returned to the extent
of such recovery, but without interest. The Borrowers agree that each Finnish
Mark Lender so purchasing a portion of another Finnish Mark Lender's Finnish
Mark Loans may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
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SECTION 3.7 Nature of Obligations of Lenders Regarding Loans;
Assumption by the Administrative Agent. The obligations of the Lenders under
this Agreement to make the Loans are several and are not joint or joint and
several. Unless the Administrative Agent shall have received notice from a
Lender prior to a proposed borrowing date that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of the
amount to be borrowed on such date (which notice shall not release such Lender
of its obligations hereunder), the Administrative Agent may assume that such
Lender has made such portion available to the Administrative Agent on the
proposed borrowing date in accordance with Section 2.4(b) and the Administrative
Agent may, in reliance upon such assumption, make available to the applicable
Borrower or Borrowers on such date a corresponding amount. If such amount is
made available to the Administrative Agent on a date after such borrowing date,
such Lender or Finnish Mark Lender, as applicable, shall pay to the
Administrative Agent on demand an amount, until paid, equal to (a) with respect
to a Loan denominated in Dollars, the amount of such Lender's Commitment
Percentage of such borrowing and interest thereon at a rate equal to the daily
average Federal Funds Rate during such period as determined by the
Administrative Agent, (b) with respect to an Alternative Currency Loan (other
than Finnish Mark Loans), such Lender's Commitment Percentage of such borrowing
at a rate per annum equal to the Administrative 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 the Administrative Agent as a result of the failure to deliver funds
hereunder) of carrying such amount and (c) with respect to a Finnish Mark Loan,
such Finnish Mark Lender's Finnish Mark Commitment Percentage of such borrowing
at a rate per annum equal to the Administrative 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 the Administrative Agent as a result of the failure to deliver funds
hereunder) of carrying such amount. A certificate of the Administrative Agent
with respect to any amounts owing under this Section 3.7 shall be conclusive,
absent manifest error. If the Commitment Percentage of such Lender or the
Finnish Mark Commitment Percentage of such Finnish Mark Lender, as applicable,
of such borrowing is not made available to the Administrative Agent by such
Lender or Finnish Mark Lender, as applicable, within three (3) Business Days of
such borrowing date,
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the Administrative Agent shall be entitled to recover such amount made available
by the Administrative Agent with interest thereon at the rate then applicable to
such Loan hereunder, on demand, from the applicable Borrower or Borrowers. The
failure of any Lender or Finnish Mark Lender, as applicable, to make its
Commitment Percentage or Finnish Mark Commitment Percentage, as applicable, of
any Loan available shall not relieve it or any other Lender or Finnish Mark
Lender, as applicable, of its obligation, if any, hereunder to make its
Commitment Percentage or Finnish Mark Commitment Percentage, as applicable, of
such Loan available on such borrowing date, but no Lender or Finnish Mark
Lender, as applicable, shall be responsible for the failure of any other Lender
or Finnish Mark Lender, as applicable, to make its Commitment Percentage or
Finnish Mark Commitment Percentage, as applicable, of such Loan available on the
borrowing date.
SECTION 3.8 Mandatory Redenomination of Alternative
Currency Loans.
(a) If any LIBOR Rate Loan is required to be converted to a Base Rate
Loan pursuant to Sections 2.2, 3.1(d), 3.10 or any other applicable provision
hereof, such Loan shall be funded in Dollars in an amount equal to the Dollar
Amount of such Loan, all subject to the provisions of Section 2.5(b). The
applicable Borrower or Borrowers shall reimburse the Lenders or Finnish Mark
Lenders, as applicable, upon any such conversion for any amounts required to be
paid under Section 3.11.
(b) If any Alternative Currency becomes unavailable to any Lender for
any reason (including, without limitation, any conversion, discontinuation or
replacement of such currency arising out of or in connection with any event
associated with economic and monetary union in the European community) all
outstanding Loans in such Alternative Currency shall be immediately
redenominated and converted into Dollars in an amount equal to the Dollar Amount
of such Loan, all subject to the provisions of Section 2.5(b).
SECTION 3.9 Regulatory Limitation. In the event, as a result of
increases in the value of Alternative Currencies against the Dollar or for any
other reason, the obligation of any of the Lenders to make Loans (taking into
account the Dollar Amount of the Obligations and all other indebtedness required
to be aggregated under 12 U.S.C.A. ss.84, as amended, the regulations
promulgated
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thereunder and any other Applicable Law) is determined by such Lender to exceed
its then applicable legal lending limit under 12 U.S.C.A. ss.84, as amended, and
the regulations promulgated thereunder, or any other Applicable Law, the amount
of additional Loans such Lender shall be obligated to make or issue or
participate in hereunder shall immediately be reduced to the maximum amount
which such Lender may legally advance (as determined by such Lender), the
obligation of each of the remaining Lenders hereunder shall be proportionately
reduced, based on their applicable Commitment Percentages or Finnish Mark
Commitment Percentages, as applicable, and, to the extent necessary under such
laws and regulations (as determined by each of the Lenders, with respect to the
applicability of such laws and regulations to itself), the Borrowers shall
reduce, or cause to be reduced, complying to the extent practicable with the
remaining provisions hereof, the Obligations outstanding hereunder by an amount
sufficient to comply with such maximum amounts.
SECTION 3.10 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate and Alternative Currency
Availability. If with respect to any Interest Period the Administrative Agent or
any Lender (after consultation with the Administrative Agent) shall determine
that (i) by reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars or an Alternative Currency in the
applicable amounts are not being quoted via Telerate Page 3750 or offered to the
Administrative Agent or such Lender for such Interest Period, (ii) a fundamental
change has occurred in the foreign exchange or interbank markets with respect to
any Alternative Currency (including, without limitation, changes in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls) or (iii) it has become otherwise materially
impractical for the Administrative Agent or the Lenders to make such Loan in an
Alternative Currency, then the Administrative Agent shall forthwith give notice
thereof to the Borrowers. Thereafter, until the Administrative Agent notifies
the Borrowers that such circumstances no longer exist, the obligation of the
Lenders to make LIBOR Rate Loans or Alternative Currency Loans, as applicable,
and the right of the Borrowers to convert any Loan to or continue any Loan as a
LIBOR Rate Loan or to convert any Loan to or continue any Loan as an Alternative
Currency Loan, as applicable, shall be suspended,
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and the applicable Borrower or Borrowers shall repay in full (or cause to be
repaid in full) the then outstanding principal amount of each such LIBOR Rate
Loan or Alternative Currency Loan, as applicable, together with accrued interest
thereon, on the last day of the then current Interest Period applicable to such
LIBOR Rate Loan or Alternative Currency Loan, as applicable, or convert the then
outstanding principal amount of each such LIBOR Rate Loan or Alternative
Currency Loan, as applicable, to a Base Rate Loan as of the last day of such
Interest Period.
(b) Laws Affecting LIBOR Rate and Alternative Currency Availability.
If, after the date hereof, the introduction of, or any change in, any Applicable
Law or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any of
their respective Lending Offices) with any request or directive (whether or not
having the force of law) of any such Governmental Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the Lenders
(or any of their respective Lending Offices) to honor its obligations hereunder
to make or maintain any LIBOR Rate Loan or any Alternative Currency Loan, such
Lender shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrowers and the other
Lenders. Thereafter, until the Administrative Agent notifies the Borrowers that
such circumstances no longer exist, (i) the obligations of the Lenders to make
LIBOR Rate Loans or Alternative Currency Loans, as applicable, and the right of
the Borrowers to convert any Loan to or continue any Loan as a LIBOR Rate Loan
or convert any Loan to or continue any Loan as an Alternative Currency Loan, as
applicable, shall be suspended and thereafter the Borrowers may select only Base
Rate Loans denominated in Dollars hereunder, and (ii) if any of the Lenders may
not lawfully continue to maintain a LIBOR Rate Loan or an Alternative Currency
Loan, as applicable, to the end of the then current Interest Period applicable
thereto as a LIBOR Rate Loan or as an Alternative Currency Loan, as applicable,
the applicable LIBOR Rate Loan or Alternative Currency Loan shall immediately be
converted to a Base Rate Loan for the remainder of such Interest Period
(provided that the Borrower and the Lenders shall enter into good faith
negotiations promptly upon such conversion to determine a new interest rate
index similar to that applicable to LIBOR Rate Loans).
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(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to any
LIBOR Rate Loans, Alternative Currency Loans or any Note or shall change the
basis of taxation of payments to any of the Lenders (or any of their respective
Lending Offices) of the principal of or interest on any LIBOR Rate Loan, any
Alternative Currency Loan 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 of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); or
(ii) 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, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
LIBOR Rate Loan, any Alternative Currency Loan or any Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or any Alternative Currency Loan, as
applicable, or to reduce the yield or amount of any sum received or receivable
by any of the Lenders under this Agreement or under the Notes in respect of a
LIBOR Rate Loan or an Alternative Currency Loan, as applicable, then such Lender
shall, within ninety (90) days thereafter, notify the Administrative Agent, and
the Administrative Agent shall promptly notify the Borrowers of such fact and
demand compensation therefor and, within fifteen (15) days after such notice by
the
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Administrative Agent, the applicable Borrower or Borrowers shall pay to such
Lender such additional amount or amounts as will compensate such Lender or
Lenders for such increased cost or reduction. The Administrative Agent will
promptly notify the Borrowers of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 3.10(c); provided,
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrowers in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans or Alternative Currency Loans, as applicable, in the London interbank
market and using any reasonable attribution or averaging methods which such
Lender deems appropriate and practical. A certificate of such Lender setting
forth the basis for determining such amount or amounts necessary to compensate
such Lender shall be forwarded to the Borrowers through the Administrative Agent
and shall be presumed to be correct save for manifest error or reasonable
evidence to the contrary.
SECTION 3.11 Indemnity. The applicable Borrower or Borrowers hereby
indemnify each of the Lenders against any loss or expense (including, without
limitation, any foreign exchange costs) which may arise or be attributable to
each Lender's obtaining, liquidating or employing deposits or other funds
acquired to effect, fund or maintain any Loan (a) as a consequence of any
failure by such Borrower or Borrowers to make any payment when due of any amount
due hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of
such Borrower or Borrowers to borrow on a date specified therefor in a Notice of
Borrowing or Notice of Continuation/Conversion or (c) due to any payment,
prepayment or conversion of any LIBOR Rate Loan on a date other than the last
day of the Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrowers through the Administrative Agent and shall be presumed to be correct
save for manifest error or reasonable evidence to the contrary.
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SECTION 3.12 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which the Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrowers shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrowers and the Administrative Agent by such
Lender, shall, in the absence of manifest error or reasonable evidence to the
contrary, be presumed to be correct and binding for all purposes.
SECTION 3.13 Taxes.
(a) Payments Free and Clear.
(i) Any and all payments by the Borrowers hereunder or under
the Notes shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges
or withholding, and all liabilities with respect thereto (including,
without limitation, all claims, penalties, costs and expenses resulting
from any failure to withhold or pay, or any delay in withholding or
paying, any of the foregoing amounts) excluding, (A) in the case of
each Lender and the Administrative Agent, income and franchise taxes
imposed by the jurisdiction under the laws of which such Lender or the
Administrative Agent (as the case may be) is organized or is or should
be qualified to do business or any political subdivision thereof (it
being expressly acknowledged by the Borrowers that each Agent and each
Lender shall not be required to be or become qualified, for purposes of
this Section 3.13(a) or for any other Section of this Agreement, to do
business in any specific jurisdiction or any political
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subdivision thereof) and (B) in the case of each Lender, income and
franchise taxes imposed by the jurisdiction of such Lender's Lending
Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(ii) If any Borrower shall be required by law to deduct or
withhold (A) any Taxes payable to any Governmental Authority other than
the United States Internal Revenue Service from or in respect of any
sum payable hereunder or under any Note to any Lender or the
Administrative Agent, or (B) any Taxes payable to the United States
Internal Revenue Service from or in respect of any sum payable
hereunder or under any Note to any Lender organized under the laws of a
jurisdiction other than the United States, subject to the United States
Internal Revenue Service Form 4224 or Form 1001 (as applicable and the
Internal Revenue Service Form W-8 or W- 9 (as applicable) previously
delivered to the Administrative Agent, then, in either such event, (1)
the sum payable shall be increased as may be necessary so that after
making all required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this Section
3.13) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the amount such party would have received
had no such deductions or withholdings been made, (2) such Borrower
shall make such deductions or withholdings, (3) such Borrower shall pay
the full amount deducted or withheld to the relevant taxing authority
or other authority in accordance with applicable law, and (4) such
Borrower shall deliver to the Administrative Agent evidence of such
payment to the relevant taxing authority or other authority in the
manner provided in Section 3.13(d). If, for any reason, any Borrower or
Borrowers do not pay or remit such Taxes or do not for any reason pay
any additional sums payable to any Lender or any Agent under this
Section 3.13, the interest payable by such Borrower or Borrowers under
this Agreement will be increased to the rate or rates necessary to
yield and remit to such Lender or Agent the principal sum advanced
together with interest at the applicable rate or rates specified in
this Agreement after provision for payment of such Taxes. The Borrowers
shall, from time to time, execute and deliver any and all further
documents as may be
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necessary or advisable to give full force and effect to such increase
in the rate or rates of interest.
Each Lender agrees that if it subsequently recovers, or receives a net
tax benefit with respect to, any amount of Taxes (i) previously paid by it and
as to which it has been indemnified by or on behalf of the Borrowers or (ii)
previously deducted or withheld by the Borrowers, such Lender shall reimburse
the Borrowers to the extent of the amount of any such recovery or permanent net
tax benefit (but only to the extent of indemnity payments made, or additional
amounts paid, by or on behalf of the Borrowers under this Section 3.13(a) with
respect to Taxes giving rise to such recovery or tax benefit; provided, however,
that the Borrowers, upon the request of such Lender, agree to repay to such
Lender the amount paid over to the Borrowers (together with any penalties,
interest or other charges), in the event such Lender is required to repay such
amount to the relevant taxing authority or other Governmental Authority. The
determination by any Lender of the amount of any such recovery or net tax
benefit shall, in the absence of manifest error or reasonable evidence to the
contrary, be conclusive and binding.
(b) Stamp and Other Taxes. In addition, the Borrowers shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the other Loan Documents, or the perfection of any rights or security
interest in respect thereto (hereinafter referred to as "Other Taxes").
(c) Indemnity. The Borrowers shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 3.13) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date
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such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the affected Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Administrative Agent.
(e) Survival. Without prejudice to the survival of any other agreement
of the Borrowers hereunder, the agreements and obligations of the Borrowers
contained in this Section 3.13 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 3.14 Replacement Lenders.
(a) Affected Lender. If (i) any Lender requests compensation pursuant
to Section 3.10(c), 3.12 or 3.13(a)(ii) or (ii) the obligation of the Lenders to
make LIBOR Rate Loans or to continue, or to convert Base Rate Loans into, LIBOR
Rate Loans shall be suspended pursuant to Section 3.10(a) or (b) due to an event
affecting any Lender, then, so long as there does not then exist any Default or
Event of Default, the Borrowers may demand that such Lender (the "Affected
Lender"), and upon such demand the Affected Lender shall promptly, assign its
Commitment (and Finnish Mark Commitment, if applicable) to an Eligible Assignee
selected by the Borrowers (which Eligible Assignee shall have consented to such
assignment), subject to and in accordance with Section 13.10(b), for a purchase
price equal to the Dollar Amount of the aggregate principal amount of the Loans
then owing to the Affected Lender plus any accrued but unpaid interest thereon,
accrued but unpaid fees and any other amounts owing to the Affected Lender
hereunder. The Administrative Agent shall cooperate in effectuating the
replacement of an Affected Lender under this Section 3.14(a), but at no time
shall the Administrative Agent be obligated in any way whatsoever to initiate
any such replacement. The exercise by the Borrowers of their rights under this
Section 3.14(a) shall be at the Borrowers' sole cost and expense, and at no cost
or expense of the Administrative Agent, the Affected Lender or any of the other
Lenders.
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(b) Failed Lender. In the event any Lender shall fail to meet any of
its obligations under Sections 2.1, 2.2, 2.3 or 2.4 (a "Failed Lender"), the
Borrowers may demand that the Failed Lender, and upon such demand the Failed
Lender shall promptly, assign its Commitment (and Finnish Mark Commitment, if
applicable) to an Eligible Assignee selected by the Borrowers (which Eligible
Assignee shall have consented to such assignment), subject to and in accordance
with Section 13.10(b), for a purchase price equal to the Dollar Amount of the
aggregate principal amount of the Loans then owing to the Failed Lender plus any
accrued but unpaid interest thereon, accrued but unpaid fees and any other
amounts owing to the Failed Lender hereunder. The Administrative Agent shall
cooperate in effectuating the replacement of a Failed Lender under this Section
3.14(b), but at no time shall the Administrative Agent be obligated in any way
whatsoever to initiate any such replacement. The exercise by the Borrowers of
their rights under this Section 3.14(b) shall be at the Borrowers' sole cost and
expense, and at no cost or expense of the Administrative Agent, the Affected
Lender or any of the other Lenders.
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 4.1 Closing. The closing shall take place at the offices of
Kennedy Covington Lobdell & Hickman, L.L.P., 100 North Tryon Street, Suite 4200,
Charlotte, North Carolina 28202 at 10:00 a.m. on April 30, 1997, or on such
other date as the parties hereto
shall mutually agree.
SECTION 4.2 Conditions to Closing and Initial Loans. The obligation of
the Lenders to close this Agreement and to make the initial Loan is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. The following Loan Documents,
in form and substance satisfactory to the Administrative Agent and
each Lender:
(i) this Agreement;
(ii) the Five-Year Credit Agreement;
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(iii) the Revolving Credit Notes;
(iv) the Finnish Mark Notes;
(v) the Swingline Note;
(vi) the Pledge Agreements; and
(vii) the Subsidiary Guaranty Agreement;
shall have been duly authorized, executed and delivered by the parties thereto,
shall be in full force and effect and no default or event of default shall exist
thereunder, and the Borrowers shall have delivered original counterparts thereof
to the Administrative Agent. Notwithstanding the foregoing, in the event
Applicable Laws or practices in the foreign jurisdictions set forth on Schedule
4.2(a) attached hereto preclude or prevent the completion of a Pledge Agreement
on or prior to the Closing Date, the Borrower shall not be required to deliver
the Pledge Agreements set forth on Schedule 4.2(a) attached hereto on the
Closing Date; provided that the Borrower shall deliver the Pledge Agreements set
forth on Schedule 4.2(a) attached hereto as soon as possible after the Closing
Date and, in any event, within ninety (90) days of the Closing Date.
(b) Closing Certificates; etc.
(i) Officers's Certificate of the Borrowers. The Administrative Agent
shall have received a signed certificate from the chief executive officer
or chief financial officer of BREED, in form and substance satisfactory to
the Administrative Agent, to the effect that to the best of such officer's
knowledge all representations and warranties of the Borrowers contained in
this Agreement and the other Loan Documents are true, correct and complete;
that the Borrowers are not in violation of any of the covenants contained
in this Agreement and the other Loan Documents; that, after giving effect
to the transactions contemplated by this Agreement, no Default or Event of
Default has occurred and is continuing; and that the Borrowers have
satisfied each of the closing conditions.
(ii) Certificate of Secretary of each Loan Party. The
Administrative Agent shall have received a signed certificate of
the secretary or assistant secretary of each Loan Party certifying that attached
thereto is a true and complete copy of the articles of incorporation or other
charter documents of such Loan Party and all amendments thereto, certified as of
a recent date by the appropriate Governmental Authority in its jurisdiction of
incorporation; that attached thereto is a true and complete copy of the bylaws
of such Loan Party as in effect on the date of such certification; that, with
respect to each Borrower and each Subsidiary Guarantor, attached thereto is a
true and complete copy of resolutions duly adopted by the Board of Directors of
such Borrower or such Subsidiary Guarantor authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of this
Agreement and the other Loan Documents to which it is a party; and, with respect
to each Borrower and each Subsidiary Guarantor, as to the incumbency and
genuineness of the signature of each officer of such Borrower or such Subsidiary
Guarantor executing Loan Documents to which it is a party. Notwithstanding the
foregoing, to the extent any such organizational documents described in this
subsection (b)(ii) cannot be provided due to their unavailability under the
Applicable Laws or practices in the foreign jurisdictions set forth on Schedule
4.2(b) attached hereto, the applicable Borrower shall not be required to deliver
such organizational documents but shall deliver such evidence of its due
incorporation and valid existence as shall be required in the reasonable
discretion of the Administrative Agent.
(iii) Certificates of Good Standing. The Administrative Agent shall
have received certificates as of a recent date of the good standing of each
Borrower and Subsidiary Guarantor under the laws of their respective
jurisdictions of organization and each other jurisdiction where such Borrower or
such Subsidiary Guarantor is qualified to do business. Notwithstanding the
foregoing, to the extent any such certificates described in this subsection
(b)(iii) cannot be provided due to their unavailability under the Applicable
Laws or practices in the foreign jurisdictions set forth on Schedule 4.2(b)
attached hereto, the applicable Borrower shall not be required to deliver such
certificates but shall deliver such evidence of its qualification to do business
in such jurisdiction as shall be required in the reasonable discretion of the
Administrative Agent.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of United States, United Kingdom, Italian, German,
Finnish, and Canadian counsel to the Loan Parties addressed to the
Administrative Agent and the Lenders with respect to the Loan Parties, the Loan
Documents and such other matters as the Lenders shall request, each in form and
substance satisfactory to the Administrative Agent and the Lenders.
(c) Collateral.
(i) Pledged Stock or Equivalent Security. The
Administrative Agent shall have received, as applicable, original stock
certificates or other equivalent security interest (or the equivalent taking
into account the Applicable Laws and practices of any relevant foreign
jurisdiction) of each A/C Borrower and each Material Subsidiary evidencing the
capital stock pledged pursuant to the Pledge Agreements executed by the
applicable A/C Borrower or Material Subsidiary, together with an appropriate
undated stock power for each certificate duly executed in blank by the
registered owner thereof.
(ii) Filings and Recordings. All filings, recordations, and any
other actions that are necessary to perfect the security interests of the
Lenders in the Collateral described in the Pledge Agreements shall have been
filed in all appropriate locations and the Administrative Agent shall have
received evidence satisfactory to the Administrative Agent that such security
interests constitute valid and perfected first priority Liens therein.
(iii) Foreign Security Interests and Filings. Notwithstanding the
provisions of the foregoing subsections (c)(i) and (c)(ii), with regard to any
Foreign Subsidiary whose stock is to be pledged hereunder, the Borrowers may
evidence their compliance with such subsections by providing a perfected first
priority security interest (or the equivalent thereof pursuant to the Applicable
Laws and practices of any relevant foreign jurisdiction) in the relevant indicia
of ownership of such Foreign Subsidiary; provided that the Borrowers shall
provide an opinion of counsel in form and substance satisfactory to the
Administrative Agent as to the perfection, validity and binding nature of the
security interest so obtained. Moreover, in the event Applicable Laws or
practices in the foreign jurisdictions set forth on Schedule 4.2(a) attached
hereto preclude or prevent the completion of documentation evidencing the
security interest referenced in subsection (c)(i) or the filing and recording
referenced in subsection (c)(ii) on or prior to the Closing Date, the Borrower
shall not be required to have completed and obtained the security interests,
filings and recordings set forth on Schedule 4.2(a) attached hereto on the
Closing Date; provided that the Borrower shall complete and obtain the security
interests, filings and recordings set forth on Schedule 4.2(a) attached hereto
as soon as possible after the Closing Date and, in any event, within ninety (90)
days of the Closing Date.
(iv) Insurance. The Administrative Agent shall have received the
schedule of insurance as set forth on Schedule 4.2(c) in the form required under
Section 7.3 and otherwise in form and substance satisfactory to the
Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. All
necessary approvals, authorizations and consents, if any are
required, of any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this Agreement and
the other Loan Documents shall have been obtained.
(ii) Permits and Licenses. All permits and licenses, including
permits and licenses required under Applicable Laws, the absence of which would
have a Material Adverse Effect on the current conduct of business by the
Borrowers and their Subsidiaries, shall have been obtained.
(iii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been institut ed, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iv) No Material Adverse Change. There shall not have occurred any
material adverse change in the condition (financial or otherwise), operations,
properties, business or prospects of the Borrowers and their Subsidiaries taken
as a whole, or any event or condition that has had or could be reasonably
expected to have a Material Adverse Effect.
(v) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of BREED and
its Subsidiaries, all in form and substance satisfactory to the Administrative
Agent and prepared in accordance with GAAP.
(ii) Financial Condition Certificate. BREED shall have delivered to
the Administrative Agent a certificate, in form and substance satisfactory to
the Administrative Agent, and certified as accurate by the chief executive
officer or chief financial officer of BREED, that (A) BREED and each of its
Subsidiaries are each Solvent, (B) the payables of BREED and each of its
Subsidiaries are current and not past due, (C) attached thereto is a pro forma
balance sheet of BREED and its Subsidiaries setting forth on a pro forma basis
the financial condition of BREED and its Subsidiaries on a Consolidated basis as
of March 31, 1997, reflecting on a pro forma basis the effect of the
transactions contemplated herein, including all fees and expenses in connection
therewith; evidencing compliance on a pro forma basis with the covenants
contained in Articles VIII and IX hereof; and setting forth the pro forma
calculation of the Applicable Margin pursuant to Section 3.1(c) and (D) attached
thereto are the financial projections previously delivered to the Administrative
Agent representing the good faith opinions of BREED and senior management
thereof as to the projected results contained therein.
(iii) Payment at Closing. There shall have been paid by the
Borrowers to the Administrative Agent and the Lenders the fees set forth or
referenced in Section 3.3 and any other accrued and unpaid fees or commissions
due hereunder (including, without limitation, legal fees and expenses), and to
any other Person such amount as may be due thereto in connection with the
transactions contemplated hereby, including all taxes, fees and other charges in
connection with the execution, delivery, recording, filing and registration of
any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing from the Borrowers in accordance with Section
2.4(a), and a written notice in the form attached hereto as Exhibit G (a "Notice
of Account Designation") specifying the account or accounts to which the
proceeds of any Loans made after the Closing Date are to be disbursed.
(ii) Proceedings and Documents. Subject to the provisions of
Section 4.2(a) and (c) relating to the effects of Applicable Laws or practices
in foreign jurisdictions, all opinions, certificates and other instruments and
all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in all material respects in form and substance
to the Lenders. The Lenders shall have received copies of all other instruments
and other evidence as any Lender may reasonably request, in form and substance
satisfactory to the Lenders, with respect to the transactions contemplated by
this Agreement and the taking of all actions in connection therewith.
(iii) Due Diligence and Other Documents. The Loan Parties shall have
delivered to the Administrative Agent such other documents, certificates and
opinions as the Administrative Agent reasonably requests.
(g) Termination of the Existing Credit Agreement. On the Closing Date
hereunder, all loans under the Existing Credit Agreement shall be repaid in full
and the commitments and other obligations and rights of the lenders thereunder
shall be terminated.
SECTION 4.3 Conditions to All Loans. The obligation of any
Lender to make any Loan (subject to Section 2.3(b) with respect to
refunding or participating in Swingline Loans) hereunder is subject to the
satisfaction of the following conditions precedent on the relevant borrowing or
issue date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in the Loan Documents (other than the representations
and warranties made only as of a specific date) shall be true and correct with
the same effect as though such representations and warranties had been made on
and as of such borrowing date, except to the extent that such representations
and warranties are no longer true or correct as a result of events, actions,
transactions or occurrences after the Closing Date which are expressly permitted
under the terms of this Agreement.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing hereunder on the borrowing date with respect to such
Loan or after giving effect to the Loans to be made on such date.
(c) Officer's Compliance Certificate; Additional Documents. The
Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS
SECTION 5.1 Representations and Warranties. To induce the
Administrative Agent to enter into this Agreement and the Lenders to make the
Loans, the Borrowers hereby represent and warrant to the Administrative Agent
and Lenders that:
(a) Organization; Power; Qualification. Each of BREED and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted and is duly qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization, except
where the failure to be so qualified and authorized would not have a Material
Adverse Effect. The jurisdictions in which BREED and its Subsidiaries are
organized and qualified to do business are described on Schedule 5.1(a).
(b) Ownership. The capitalization of BREED and its Subsidiaries as of
the Closing Date consists of the number of shares or other ownership
interests, authorized, issued and outstanding, of such classes and series,
with or without par value, described on Schedule 5.1(b). All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. The shareholders or owners of the Subsidiaries of BREED and
the number of shares or other ownership interests owned by each as of the
Closing Date are described on Schedule 5.1(b). As of the Closing Date,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever,
which are convertible into, exchangeable for or otherwise provide for or
permit the issuance of capital stock or other ownership interests of BREED
or its Subsidiaries, except as described on Schedule 5.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
BREED and its Subsidiaries has the right, power and authority and has taken all
necessary corporate and other action to authorize the execution, delivery and
performance of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms. This Agreement and each of
the other Loan Documents have been duly executed and delivered by the duly
authorized officers of BREED and each of its Subsidiaries party thereto, and
each such document constitutes the legal, valid and binding obligation of BREED
or such Subsidiary party thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state, provincial or federal debtor relief
laws from time to time in effect which affect the enforcement of creditors'
rights in general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by BREED and its Subsidiaries of
the Loan Documents to which each such Person is a party, in accordance with
their respective terms, the borrowings hereunder and the transactions
contemplated hereby do not and will not, by the passage of time, the giving of
notice or otherwise, (i) to the best of the Borrowers' knowledge, require any
Governmental Approval or violate any Applicable Law relating to BREED or any of
its Subsidiaries, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational
documents of BREED or any of its Subsidiaries or any indenture, agreement or
other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person, or
(iii) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Person other
than Liens arising under the Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of
BREED and its Subsidiaries (i) has or is actively pursuing all
Governmental Approvals required by any Applicable Law for it to
conduct its business, each of which is in full force and effect, is final and
not subject to review on appeal and is not the subject of any pending or, to the
best of its knowledge, threatened attack by direct or collateral proceeding, and
(ii) is in compliance with each Governmental Approval applicable to it and in
compliance with all other Applicable Laws relating to it or any of its
respective properties, except where the failure to so comply would not have,
individually or in the aggregate, a Material Adverse Effect.
(f) Tax Returns and Payments. Each of BREED and its Subsidiaries has
duly filed or caused to be filed all federal, state, provincial, local and other
tax returns required by Applicable Law to be filed, and has paid, or made
adequate provision for the payment of, all federal, state, provincial, local and
other taxes, assessments and governmental charges or levies upon it and its
property, income, profits and assets which are due and payable, except where the
failure to so file or pay would not have, individually or in the aggregate, a
Material Adverse Effect. No Governmental Authority has asserted any Lien or
other claim against BREED or any Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved. The charges, accruals and reserves on
the books of BREED and its Subsidiaries in respect of federal, state,
provincial, local and other taxes for all Fiscal Years and portions thereof
since the organization of BREED and its Subsidiaries are in the judgment of
BREED adequate, and BREED does not anticipate any additional taxes or
assessments for any of such years.
(g) Intellectual Property Matters. Each of BREED and its Subsidiaries
owns or possesses rights to use all franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications,
trademarks, trademark rights, trade names, trade name rights, copyrights and
rights with respect to the foregoing which are required to conduct its business.
No event has occurred which permits, or after notice or lapse of time or both
would permit, the revocation or termination of any such rights, and neither
BREED nor any Subsidiary thereof is liable to any Person for infringement under
Applicable Law with respect to any such rights as a result of its business
operations, except where any such liability would not have, individually or in
the aggregate, a Material Adverse Effect.
(h) Environmental Matters. Subject to certain instances of
non-compliance which would not have, individually or in the
aggregate, a Material Adverse Effect on BREED and its Subsidiaries
taken as a whole:
(i) The properties of BREED and its Subsidiaries do not
contain, and to their knowledge have not previously contained, any Hazardous
Materials in amounts or concentrations which (A) constitute or constituted a
violation of, or (B) could give rise to liability under, applicable
Environmental Laws;
(ii) Such properties and all operations conducted in connection
therewith are in compliance, and have been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about such
properties or such operations which could interfere with the continued operation
of such properties or impair the fair saleable value thereof;
(iii) Neither BREED nor any Subsidiary thereof has received any
notice of violation, alleged violation, noncompliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of their properties or the operations conducted in connection
therewith, nor does BREED or any Subsidiary thereof have knowledge or reason to
believe that any such notice will be received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed of
from the properties of BREED and its Subsidiaries in violation of, or in a
manner or to a location which could give rise to liability under, Environmental
Laws, nor have any Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of such properties in violation of, or in a
manner that could give rise to liability under, any applicable Environmental
Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrowers, threatened, under any
Environmental Law to which BREED or any Subsidiary thereof is or will be named
as a party with respect to such properties or operations conducted in connection
therewith, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to such
properties or such operations; and
(vi) There has been no release, or to the best knowledge of the
Borrowers, the threat of release, of Hazardous Materials at or from such
properties, in violation of or in amounts or in a manner that could give rise to
liability under Environmental Laws.
(i) ERISA. Subject to certain instances of non-compliance which would
not have, individually or in the aggregate, a Material Adverse Effect on BREED
and its Subsidiaries taken as a whole:
(i) Neither BREED nor any ERISA Affiliate maintains or
contributes to, or has any obligation under, any Employee Benefit
Plans other than those identified on Schedule 5.1(i);
(ii) BREED and each ERISA Affiliate are in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each Employee Benefit
Plan that is intended to be qualified under Section 401(a) of the Code has been
determined by the Internal Revenue Service to be so qualified, and each trust
related to such plan has been determined to be exempt under Section 501(a) of
the Code. No liability has been incurred by BREED or any ERISA Affiliate which
remains unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has any accumulated
funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has
any funding waiver from the Internal Revenue Service been received or requested
with respect to any Pension Plan, nor has BREED or any ERISA Affiliate failed to
make any contributions or to pay any amounts due and owing as required by
Section 412 of the Code, Section 302 of ERISA or the terms of any Pension Plan
prior to the due dates of such contributions under Section 412 of the Code or
Section 302 of ERISA, nor has there been any event requiring any disclosure
under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension
Plan;
(iv) Neither BREED nor any ERISA Affiliate has: (A)
engaged in a nonexempt prohibited transaction described in Section
406 of the ERISA or Section 4975 of the Code, (B) incurred any
liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due
and unpaid, (C) failed to make a required contribution or payment
to a Multiemployer Plan, or (D) failed to make a required
installment or other required payment under Section 412 of the
Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) No proceeding, claim, lawsuit and/or investigation is existing
or, to the best knowledge of BREED, threatened concerning or involving any (A)
employee welfare benefit plan (as defined in Section 3(1) of ERISA) currently
maintained or contributed to by BREED or any ERISA Affiliate, (B) Pension Plan
or (C) Multiemployer Plan.
(j) Margin Stock. Neither BREED nor any Subsidiary thereof
is engaged principally or as one of its activities in the business
of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" (as each such term is defined or used in
Regulations G and U of the Board of Governors of the Federal
Reserve System). No part of the proceeds of any of the Loans will
be used for purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation G,
T, U or X of such Board of Governors.
(k) Government Regulation. Neither BREED nor any Subsidiary thereof is
an "investment company" or a company "controlled" by an "investment company" (as
each such term is defined or used in the Investment Company Act of 1940, as
amended) and neither BREED nor any Subsidiary thereof is, or after giving effect
to any Loan will be, subject to regulation under the Public Utility Holding
Company Act of 1935 or the Interstate Commerce Act, each as amended, or any
other Applicable Law which limits its ability to incur or consummate the
transactions contemplated hereby.
(l) Material Contracts. Each Material Contract is, and after
giving effect to the consummation of the transactions contemplated
by the Loan Documents will be, in full force and effect in
accordance with the terms thereof.
(m) Employee Relations. Each of BREED and its Subsidiaries has a stable
work force in place and, as of the Closing Date, is not, except as set forth on
Schedule 5.1(m), party to any collective bargaining agreement nor has any labor
union been recognized as the representative of its employees. BREED knows of no
pending, threatened or contemplated strikes, work stoppage or other collective
labor disputes involving its employees or those of its Subsidiaries, except
those which would not have, individually or in the aggregate, a Material Adverse
Effect.
(n) Burdensome Provisions. Neither BREED nor any Subsidiary thereof is
a party to any indenture, agreement, lease or other instrument, or subject to
any corporate or partnership restriction, Governmental Approval or Applicable
Law which is so unusual or burdensome as in the foreseeable future could be
reasonably expected to have a Material Adverse Effect. BREED and its
Subsidiaries do not presently anticipate that future expenditures needed to meet
the provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
(o) Financial Statements. The (i) audited Consolidated balance sheets
of BREED and its Subsidiaries as of June 30, 1996 and the related audited
statements of income, retained earnings and cash flows for the Fiscal Year then
ended and (ii) unaudited Consolidated balance sheet of BREED and its
Subsidiaries as of December 31, 1996 and related unaudited statements of income,
retained earnings and cash flows, copies of which have been furnished to the
Administrative Agent and each Lender, are complete and correct and fairly
present the assets, liabilities and financial position of BREED and its
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended. All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. BREED and its Subsidiaries have no Debt, obligation or
other unusual forward or long-term commitment which is not fairly reflected in
the foregoing financial statements or in the notes thereto.
(p) No Material Adverse Change. Since June 30, 1996, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of BREED and its Subsidiaries and no event
has occurred or condition arisen that could reasonably be expected to have a
Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Loan made hereunder, BREED and its Subsidiaries taken as a whole will be
Solvent.
(r) Titles to Properties. Each of BREED and its Subsidiaries has such
title to the real property owned or leased by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its personal
property and assets, including, but not limited to, those reflected on the
balance sheets of BREED and its Subsidiaries delivered pursuant to Section
5.1(o), except those which have been disposed of by BREED or its Subsidiaries
subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of BREED or any Subsidiary
thereof is subject to any Lien, except Liens permitted pursuant to Section 9.3.
No financing statement or application for registration under the Uniform
Commercial Code of any state or personal property security legislation as to
registration of security on movable property of any other jurisdiction which
names BREED or any Subsidiary thereof or any of their respective trade names or
divisions as debtor or grantor and which has not been terminated, has been filed
in any state or other jurisdiction and neither BREED nor any Subsidiary thereof
has signed any such financing statement or application for registration or any
security agreement authorizing any secured party thereunder to file any such
financing statement or application for registration, except to perfect those
Liens permitted by Section 9.3 hereof.
(t) Debt and Contingent Obligations. Schedule 5.1(t) is a complete and
correct listing of all Debt and Contingent Obligations of BREED and its
Subsidiaries as of the Closing Date in excess of $2,500,000. BREED and its
Subsidiaries have performed and are in compliance with all of the terms of such
Debt and Contingent Obligations and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a
default or event of default on the part of BREED or its Subsidiaries exists with
respect to any such Debt or Contingent Obligation.
(u) Litigation. Except as set forth on Schedule 5.1(u), there are no
actions, suits or proceedings pending nor, to the knowledge of BREED, threatened
against or in any other way relating adversely to or affecting BREED or any
Subsidiary thereof or any of their respective properties in any court or before
any arbitrator of any kind or before or by any Governmental Authority which, if
adversely determined, would have, individually or in the aggregate, a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is
continuing which constitutes a Default or an Event of Default.
(w) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of BREED or any
Subsidiary thereof and furnished to the Lenders were, at the time the same were
so furnished, to the best knowledge of the Borrowers, complete and correct in
all respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No document furnished or written statement made
to the Administrative Agent or the Lenders by BREED or any Subsidiary thereof in
connection with the negotiation, preparation or execution of this Agreement or
any of the Loan Documents contains or will contain any knowingly untrue
statement of a fact material to the creditworthiness of BREED or its
Subsidiaries or knowingly omits or will omit to state a fact necessary in order
to make the statements contained therein not misleading. BREED is not aware of
any facts which it has not disclosed in writing to the Administrative Agent
having a Material Adverse Effect, or insofar as the Borrowers can now foresee,
which could reasonably be expected to have a Material Adverse Effect.
SECTION 5.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article V and all
representations and warranties contained in any certifi cate, or any of the Loan
Documents (including but not limited to any such representation or warranty made
in or in connection with any amendment thereto) shall constitute representations
and warranties made under this Agreement. All representations and warranties
made under this Agreement shall be made or deemed to be made at and as of the
Closing Date, shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been finally and indefeasibly paid and
satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, the Borrowers will
furnish or cause to be furnished to the Administrative Agent at the
Administrative Agent's Office at the address set forth in Section 13.1 hereof
and to the Lenders at their respective addresses as set forth on Schedule
1.1(b), or such other office as may be designated by the Administrative Agent
and Lenders from time to time:
SECTION 6.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter, an
unaudited Consolidated and consolidating balance sheet of BREED and its
Subsidiaries as of the close of such fiscal quarter and unaudited Consolidated
and consolidating statements of income, retained earnings and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures for the preceding Fiscal Year and
prepared by BREED in accordance with GAAP and, if applicable, containing
disclosure of the effect on the financial position or results of operations of
any change in the application of accounting principles and practices during the
period, and certified by the chief financial officer of BREED to present fairly
in all material respects the financial condition of BREED and its Subsidiaries
as of their respective dates and the results of operations of BREED and its
Subsidiaries for the respective periods then ended, subject to normal year end
adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of BREED and its Subsidiaries as of the close of such
Fiscal Year, an unaudited consolidating balance sheet of BREED and its
Subsidiaries as of the close of such Fiscal Year, and audited Consolidated
statements of income, retained earnings and cash flows for the Fiscal Year then
ended and unaudited consolidating statements of income, retained earnings and
cash flows for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding figures
for the preceding Fiscal Year and prepared by an independent certified public
accounting firm acceptable to the Administrative Agent in accordance with GAAP
(except with regard to the unaudited consolidating financial statements,
retained earnings and cash flows which shall only be reviewed by such
independent certified public accounting firm) and,
if applicable, containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting principles
and practices during the year, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by BREED or any of its Subsidiaries or with respect to
accounting principles followed by BREED or any of its Subsidiaries not in
accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within forty-five (45) days prior to the beginning
of each Fiscal Year, a business plan of BREED and its Subsidiaries for the
ensuing four (4) fiscal quarters, such plan to be prepared in a manner
consistent with GAAP and to include, on a quarterly basis, the following: a
quarterly operating and capital budget, a projected income statement, statement
of cash flows and balance sheet and a report containing management's discussion
and analysis of such projections, accompanied by a certificate from the chief
financial officer of BREED to the effect that, to the best of such officer's
knowledge, such projections are good faith estimates of the financial condition
and operations of BREED and its Subsidiaries for such four (4) quarter period.
SECTION 6.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 6.1(a) or (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief financial officer or the treasurer of BREED in the form of Exhibit E
attached hereto (an "Officer's Compliance Certificate"):
(a) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of BREED and its
Subsidiaries as of the dates indicated and the results of their operations and
cash flows for the periods indicated;
(b) stating that to such officer's knowledge, based on a reasonable
examination, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrowers with respect
to such Default or Event of Default; and
(c) setting forth as at the end of such fiscal quarter or Fiscal Year,
as the case may be, the calculations required to establish whether or not BREED
and its Subsidiaries were in compliance with the financial covenants set forth
in Article VIII hereof as at the end of each respective period, the calculation
of the Applicable Margin pursuant to Section 3.1(c) as at the end of each
respective period, and the calculation of the total assets of each Subsidiary of
BREED for the purpose of determining which Subsidiaries are Material
Subsidiaries.
SECTION 6.3 Accountants' Certificate. At each time financial statements
are delivered pursuant to Section 6.1(b), a certificate of the independent
public accountants certifying such financial statements addressed to the
Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such Default
or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required to
establish whether or not BREED and its Subsidiaries are in compliance with the
financial covenants set forth in Article VIII hereof as at the end of each
respective period.
SECTION 6.4 Other Reports.
(a) Promptly but in any event within ten (10) Business Days after the
filing thereof, a copy of (i) each report or other filing made by BREED or any
of its Subsidiaries with the Securities and Exchange Commission and required by
the SEC to be delivered to the shareholders of BREED or any of its Subsidiaries,
(ii) each report made by BREED or any of its Subsidiaries to the SEC on Form 8-K
and (iii) each final registration statement of BREED or any of its Subsidiaries
filed with the SEC; and
(b) Such other information regarding the operations, business affairs
and financial condition of BREED or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 6.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) Business Days after an officer of any Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceed ings in any court or
before any arbitrator against or involving BREED or any Subsidiary thereof or
any of their respective properties, assets or businesses, which could reasonably
be expected to result in liabilities to BREED or any Subsidiary thereof in
excess of $25,000,000 or could reasonably be expected to have a Material Adverse
Effect;
(b) any notice of any violation received by BREED or any Subsidiary
thereof from any Governmental Authority, including, without limitation, any
notice of violation of Environmental Laws, except such violations which would
not have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result
in, a strike or other work action against BREED or any Subsidiary thereof,
except such controversies which would not have a Material Adverse Effect;
(d) any attachment, judgment, lien, levy or order exceeding
$250,000 that may be assessed against or threatened against BREED
or any Subsidiary thereof;
(e) any Default or Event of Default;
(f) any event which constitutes or which with the passage of time or
giving of notice or both would constitute a default or event of default under
any Material Contract to which BREED or any of its Subsidiaries is a party or by
which BREED or any Subsidiary thereof or any of their respective properties may
be bound;
(g) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by
BREED or any ERISA Affiliate of the PBGC's intent to terminate any Pension Plan
or to have a trustee appointed to administer any Pension Plan, (iii) all notices
received by BREED or any ERISA Affiliate from a Multiemployer Plan sponsor
concerning the imposition or amount of withdrawal liability pursuant to Section
4202 of ERISA and (iv) any Borrower obtaining knowledge or reason to know that
BREED or any ERISA Affiliate has filed or intends to file a notice of intent to
terminate any Pension Plan under a distress termination within the meaning of
Section 4041(c) of ERISA; and
(h) any event which makes any of the representations set
forth in Section 5.1 inaccurate in any respect.
SECTION 6.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of any Borrower
to the Administrative Agent or any Lender (other than financial forecasts)
whether pursuant to this Article VI or any other provision of this Agreement, or
any of the Security Documents, shall be, at the time the same is so furnished,
to the best of the Borrowers' knowledge, complete and correct in all material
respects to the extent necessary to give the Administrative Agent or any Lender
complete, true and accurate knowledge of the subject matter based on the
applicable Borrower's knowledge thereof.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner provided for in Section 13.11, each Borrower will and
will cause each of its Subsidiaries to:
SECTION 7.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 9.5, preserve and maintain its separate corporate
or legal existence and all rights, franchises, licenses and privileges necessary
to the conduct of its business, and qualify and remain qualified as a foreign
corporation and authorized to do business in each jurisdiction in which the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect.
SECTION 7.2 Maintenance of Property. Except where the failure to do so
would not have, individually or in the aggregate, a Material Adverse Effect,
protect and preserve all properties useful in and material to its business,
including copyrights, patents, trade names and trademarks; maintain in good
working order and condition all buildings, equipment and other tangible real and
personal property; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 7.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and on the Closing Date and from time to time thereafter deliver
to the Administrative Agent upon its request a detailed list of the insurance
then in effect, stating the names of the insurance companies, the amounts of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby.
SECTION 7.4 Accounting Methods and Financial Records . Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of financial statements in accordance with
GAAP.
SECTION 7.5 Payment and Performance of Obligations. Pay and perform all
Obligations under this Agreement and the other Loan Documents, and pay or
perform (a) all taxes, assessments and other governmental charges that may be
levied or assessed upon it or any of its property to the extent such taxes,
assessments or other charges are then due and payable, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that such Borrower or such Subsidiary may
contest any item described in clauses (a) and (b) of this Section 7.5 in good
faith so long as adequate reserves are maintained with respect thereto in
accordance with GAAP.
SECTION 7.6 Compliance With Laws and Approvals. Observe and remain in
compliance with all Applicable Laws and maintain in full force and effect all
Governmental Approvals, in each case applicable to the conduct of its business,
except where the failure to do so would not have, individually or in the
aggregate, a Material Adverse Effect.
SECTION 7.7 Environmental Laws. In addition to and without limiting the
generality of Section 7.6, except where the failure to do so would not have,
individually or in the aggregate, a Material Adverse Effect, (a) comply with,
and ensure such compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses of whatever kind or
nature known or unknown, contingent or otherwise, arising out of, or in any way
relating to the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of such Borrower or such
Subsidiary, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 7.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 7.6, except where the failure to do so would not have,
individually or in the aggregate, a Material Adverse Effect, (a) comply with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans, (b) not take any action
or fail to take action the result of which could be a liability to the PBGC or
to a Multiemployer Plan, (c) not participate in any prohibited transaction that
could result in any civil penalty under ERISA or tax under the Code, (d) operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or any liability to
any qualified beneficiary as defined in Section 4980B of the Code and (e)
furnish to the Administrative Agent upon the Administrative Agent's request such
additional information about any Employee Benefit Plan as may be reasonably
requested by the Administrative Agent.
SECTION 7.9 Compliance With Agreements. Comply in all respects with
each term, condition and provision of all leases, agreements and other
instruments entered into in the conduct of its business including, without
limitation, any Material Contract, except where the failure to so comply would
not have, individually or in the aggregate, a Material Adverse Effect; provided,
that such Borrower or such Subsidiary may contest any such lease, agreement or
other instrument in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 7.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
(including, without limitation, automotive safety products) and in lines of
business reasonably related thereto.
SECTION 7.11 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
SECTION 7.12. Additional Subsidiary Guarantors and Subsidiary
Pledgors.
(a) Upon the creation or acquisition of any Material Domestic
Subsidiary of BREED permitted by this Agreement and upon any Domestic Subsidiary
of BREED becoming a Material Domestic Subsidiary of BREED as evidenced by the
information set forth in the Officer's Compliance Certificate delivered pursuant
to Section 6.2, cause to be executed and delivered to the Administrative Agent
upon the creation or acquisition of such new Material Domestic Subsidiary or the
determination pursuant to Section 6.2 that any existing Domestic Subsidiary is a
Material Domestic Subsidiary (i) a supplement to the Subsidiary Guaranty
Agreement executed by such new Material Domestic Subsidiary, (ii) a Pledge
Agreement or a supplement to Pledge Agreement, as applicable, executed by BREED
or the applicable Subsidiary pledging the capital stock of such new Material
Domestic Subsidiary and a consent thereto executed by such new Material Domestic
Subsidiary (including, without limitation, original stock certificates
evidencing the capital stock of such new Material Domestic Subsidiary, together
with an appropriate undated stock power for each certificate duly executed in
blank by the registered owner thereof), (iii) the closing documents and
certificates reasonably required by the Required Lenders to be delivered,
including, without limitation, officers' certificates, financial statements,
opinions of counsel, board resolutions, charter documents, certificates of
existence and authority to do business and any other closing certificates and
documents described in Section 4.2, and (iv) such other documents reasonably
requested by the Required Lenders in order that such new Material Domestic
Subsidiary shall become bound by all of the terms, covenants and agreements
contained in the Subsidiary Guaranty Agreement and the capital stock thereof
shall be pledged pursuant to the applicable Pledge Agreement.
(b) Upon the creation or acquisition of any Material Foreign Subsidiary
of BREED permitted by this Agreement and upon any Foreign Subsidiary of BREED
becoming a Material Foreign Subsidiary of BREED as evidenced by the information
set forth in the Officer's Compliance Certificate delivered pursuant to Section
6.2, cause to be executed and delivered to the Administrative Agent upon the
creation or acquisition of such new Material Foreign Subsidiary or the
determination pursuant to Section 6.2 that any existing Foreign Subsidiary is a
Material Foreign Subsidiary (i) a Pledge Agreement or a supplement to Pledge
Agreement, as applicable, executed by BREED or the applicable Subsidiary
pledging the entire ownership interest of BREED or the applicable Subsidiary (up
to sixty-six (66%) of the total outstanding ownership interest or capital stock)
of such new Material Foreign Subsidiary and a consent thereto executed by such
new Material Foreign Subsidiary (including, without limitation, if applicable,
original stock certificates evidencing the capital stock of such new Material
Foreign Subsidiary, together with an appropriate undated stock power for each
certificate duly executed in blank by the registered owner thereof), (ii) the
closing documents and certificates reasonably required by the Required Lenders
to be delivered, including, without limitation, officers' certificates,
financial statements, opinions of counsel, board resolutions, charter documents,
certificates of existence and authority to do business and any other closing
certificates and documents described in Section 4.2, and (iii) such other
documents reasonably requested by the Required Lenders in order that the capital
stock of such new Material Foreign Subsidiary shall be pledged pursuant to the
applicable Pledge Agreement. Notwithstanding the provisions of subsections (i)
and (ii) above, with regard to any Material Foreign Subsidiary whose stock is to
be pledged hereunder, the provisions regarding the delivery of original stock
certificates and undated stock powers set forth in subsections (i) and (ii)
shall be satisfied upon evidence of (A) a perfected security interested in the
relevant indicia of ownership (or the equivalent thereof as determined pursuant
to the Applicable Laws or practices of the relevant foreign jurisdiction) and
(B) an opinion of counsel in form and substance satisfactory to the
Administrative Agent as to the validity and binding nature of such security
interest in the applicable jurisdiction. Furthermore, in the event Applicable
Laws
or practices of the relevant foreign jurisdiction shall preclude or prevent the
delivery of the Pledge Agreement and the necessary filings and recordings in
connection therewith as set forth in subsections (i) and (ii) above, such
conditions shall be satisfied by the Borrowers' good faith effort to satisfy
such conditions as soon as possible upon the creation of such Material Foreign
Subsidiary but, in any event, within ninety (90) days of the creation of such
Material Foreign Subsidiary.
(c) Notwithstanding the foregoing, a Subsidiary formed to issue
Convertible Preferred Stock (and whose sole asset is Intercompany Trust Debt or
amounts received thereon) shall not be required to become a Subsidiary Guarantor
nor shall any securities thereof be required to be pledged.
SECTION 7.13 Intercompany Notes. As soon as practicable and in any
event within ninety (90) days after the Closing Date cause all intercompany Debt
existing on or arising after such date to be evidenced by a written promissory
note or notes.
SECTION 7.14 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or any Lender may reasonably require to document and consummate the
transactions contemplated hereby and to vest completely in and insure the
Administrative Agent and the Lenders their respective rights under this
Agreement, the Notes and the other Loan Documents.
ARTICLE VIII
FINANCIAL COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, BREED and its
Subsidiaries on a Consolidated basis will not:
SECTION 8.1. Leverage Ratio. As of the end of any fiscal quarter,
permit the ratio of (a) the Consolidated Debt of BREED and its Subsidiaries as
of such date to (b) EBITDA of BREED and its Subsidiaries for the period of four
(4) consecutive fiscal quarters ending on such date, to exceed 3.50 to 1.00.
SECTION 8.2 Minimum Net Worth. As of the end of any fiscal quarter,
permit Net Worth to be less than (a) $250,000,000 plus (b) 50% of cumulative
Consolidated Net Income of BREED and its Subsidiaries commencing with the fiscal
quarter ending March 31, 1997 (without deduction for any losses) plus (c)
seventy-five (75%) of the net proceeds received by BREED or any of its
Subsidiaries of any Equity Issuance by BREED or any of its Subsidiaries
subsequent
to the Closing Date, plus (d) 75% of the net proceeds received by BREED or any
of its Subsidiaries upon the issuance of any Convertible Preferred Stock.
SECTION 8.3. Interest Coverage Ratio. As of the end of any fiscal
quarter, permit the ratio of (a) EBIT of BREED and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on such date to (b)
Interest Expense of BREED and its Subsidiaries for such period, to be less than
3.00 to 1.00; provided that during the period from and including March 31, 1997
through and including December 31, 1997, the ratio set forth in this Section 8.3
shall be permitted to be less than 3.00 to 1.00 as of the end of up to two (2)
fiscal quarters; provided further that (i) the ratio set forth in this Section
8.3 shall at no time during such period noted in the preceding proviso be less
than 2.75 to 1.00 and (ii) in the event the ratio set forth in this Section 8.3
is less than 3.00 to 1.00, the Applicable Margin shall be adjusted in the manner
set forth in Section 3.1 and the Facility Fee Rate shall be adjusted in the
manner set forth in Section 3.3.
ARTICLE IX
NEGATIVE COVENANTS
Until all of the Obligations have been finally and indefeasibly paid
and satisfied in full and the Commitments terminated, unless consent has been
obtained in the manner set forth in Section 13.11 hereof, each Borrower will not
and will not permit any of its Subsidiaries to:
SECTION 9.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty and upon terms and conditions reasonably satisfactory to the
Administrative Agent (unless the counterparty to such Hedging Agreement is a
Lender, in which such case the approval of the Administrative Agent shall not be
required);
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 9.1, as set forth on Schedule 5.1(t) and the renewal and
refinancing (but not the increase) thereof;
(d) Debt of BREED under a Capitalized Lease with respect to the
construction and equipping of the VTI FAB2 Facility in Finland in an aggregate
amount not to exceed $25,000,000 on any date of determination;
(e) Debt of BREED and its Subsidiaries incurred in connection
with Capitalized Leases other than the Capitalized Lease described in clause (d)
above in an aggregate amount not to exceed $10,000,000 on any date of
determination;
(f) purchase money Debt of BREED and its Subsidiaries in an
aggregate amount not to exceed $25,000,000 on any date of
determination;
(g) Debt consisting of Contingent Obligations permitted by
Section 9.2;
(h) Debt of any Borrower or any Subsidiary Guarantor owing to
any other Borrower or any other Subsidiary Guarantor and
Intercompany Trust Debt;
(i) Subordinated Debt in an aggregate amount not to exceed
$100,000,000;
(j) Senior Debt of any Borrower; provided that (i) the Borrowers shall
have demonstrated pro forma compliance with each covenant contained in Articles
VII, VIII and IX hereof prior to and following the incurrence of any such Senior
Debt and (ii) in conjunction with any Debt permitted by this clause (j) the
Borrowers shall reduce the Aggregate Commitment in the manner set forth in
Section 2.7(b); and
(k) unsecured Debt of the Borrower and its Subsidiaries other than the
Debt described in clauses (a) through (j) above in an aggregate amount not to
exceed $25,000,000 on any date of determination;
provided, that (i) notwithstanding any of the foregoing provisions, BTI
Investments, FLDB Investments, Ltd. and BREED Technologies Finland, Oy shall not
be permitted to incur any Debt and (ii) none of the Debt permitted to be
incurred by this Section 9.1 shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of any Borrower to make any
payment to any Borrower or any of its Subsidiaries (in the form of dividends,
intercompany advances or otherwise) for the purpose of enabling the Borrowers to
pay the Obligations.
SECTION 9.2 Limitations on Contingent Obligations. Create, incur,
assume or suffer to exist any Contingent Obligations except:
(a) Contingent Obligations in favor of the Administrative
Agent for the benefit of the Administrative Agent and the Lenders;
(b) Contingent Obligations with respect to Debt permitted
pursuant to Section 9.1 (including any Trust Preferred Guarantee);
(c) Contingent Obligations existing on the Closing Date and
not otherwise permitted under this Section 9.2, as set forth on
Schedule 9.2; and
(d) Contingent Obligations other than the Contingent
Obligations described in clauses (a) through (c) above in an
aggregate amount not to exceed $15,000,000.
SECTION 9.3 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA or
Environmental Laws) not yet due or as to which the period of grace, if any,
related thereto has not expired or which are being contested in good faith and
by appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens in existence on the Closing Date and not otherwise
permitted by this Section 9.3, as described on Schedule 9.3;
(g) Liens securing Debt permitted under Sections 9.1(e) and (f);
provided, that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of Debt secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price or lease payment stream of such
property at the time it was acquired or leased; and
(h) Liens on the fixed assets of entities permitted to be acquired
pursuant to Section 9.4; provided that any Debt permitted in connection
therewith (i) was not incurred as a part of or in anticipation of such
acquisition and (ii) contains terms, conditions and provisions no more
restrictive than those provided under this Agreement.
SECTION 9.4 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security, substantially all
or a portion of the business or assets of any other Person or any other
investment or interest whatsoever in any other Person, or make or permit to
exist, directly or indirectly, any loans, advances or extensions of credit to,
or any investment in cash or by delivery of property in, any Person, or enter
into, directly or indirectly, any commitment or option in respect of the
foregoing except:
(a) investments in Subsidiaries existing on the Closing Date
and the other existing loans, advances and investments described on
Schedule 9.4;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within three hundred and sixty (360) days from the date of acquisition
thereof, (ii) commercial paper maturing no more than one hundred and twenty
(120) days from the date of creation thereof and currently having the highest
rating obtainable from either Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc. or Moody's Investors Service, Inc., (iii)
certificates of deposit maturing no more than one hundred and twenty (120) days
from the date of creation thereof issued by commercial banks incorporated or
licensed under the laws of the United States of America, each having combined
capital, surplus and undivided profits of not less than $500,000,000 and having
a rating of "A" or better by a nationally recognized rating agency; provided,
that the aggregate amount invested in such certificates of deposit shall not at
any time exceed $5,000,000 for any one such certificate of deposit and
$10,000,000 for any one such bank, or (iv) time deposits maturing no more than
thirty (30) days from the date of creation thereof with commercial banks or
savings banks or savings and loan associations each having membership either in
the FDIC or the deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder;
(c) investments by BREED or any of its Subsidiaries in the form of
acquisitions of all or substantially all of the business or a line of
business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person if such acquisition meets all of
the following requirements: (i) the Person whose equity interest is to be
acquired shall be or, as a result of such acquisition shall become, a
Wholly-Owned Subsidiary of BREED and no Change in Control shall have been
effected thereby, (ii) the Person whose equity interest is to be acquired
shall engage in a business or the assets being acquired are to be used in a
business described in Section 7.10, (iii) evidence of approval of the
acquisition of the board of directors or equivalent governing body of the
acquired Person, including, without limitation, resolutions duly adopted by
the board or directors or equivalent governing body of the acquired Person
authorizing the acquisition and the execution, delivery and performance of
any transactions contemplated thereby, shall have been delivered to the
Administrative Agent, (iv) such documents reasonably requested by the
Administrative Agent pursuant to Section 7.12 hereof shall have been
delivered to the Administrative Agent, (v) the Borrowers shall have
demonstrated pro forma compliance with each covenant contained in Articles
VII, VIII and IX hereof prior to consummating the acquisition and no
Default or Event of Default shall have occurred and be continuing both
before and after giving effect to the acquisition, (vi) a description of
the acquisition and the governing documentation shall have been delivered
to the Administrative Agent at least five (5) Business Days prior to the
consummation of the acquisition and a copy of the final governing
documentation shall be delivered within a reasonable time after the
acquisition, and (vii) if such acquisition or investment, if completed,
would cause the aggregate fair market value of all consideration paid in
respect of all such acquisitions or investments to exceed $25,000,000
during any Fiscal Year, the Required Lenders shall have consented in
writing to such acquisition or investment prior to the proposed acquisition
or investment;
(d) intercompany loans and advances permitted pursuant to
Section 9.1(h);
(e) investments in Subsidiaries formed for the purpose of
issuing Convertible Preferred Stock of BREED or any of its
Subsidiaries;
(f) loans and advances to employees in the ordinary course of
business in an aggregate amount not to exceed $2,500,000 at any one
time; and
(g) investments in joint ventures and minority interest
investments in an aggregate amount not to exceed $25,000,000.
SECTION 9.5 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of BREED may merge with any other
Wholly-Owned Subsidiary of BREED; provided, that if any such Subsidiary is a
Borrower or a Subsidiary Guarantor, such Borrower or Subsidiary Guarantor shall
be the surviving entity;
(b) any Wholly-Owned Subsidiary may merge into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection
with an acquisition permitted by Section 9.4(c);
(c) any Subsidiary of BREED may wind-up into any Borrower or
Subsidiary Guarantor; and
(d) any Subsidiary formed to issue Convertible Preferred Stock and
whose sole asset is Intercompany Trust Debt may be dissolved, wound up or
liquidated.
SECTION 9.6 Limitations on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in
the business of BREED or any of its Subsidiaries;
(c) the transfer of assets to any Borrower or Subsidiary
Guarantor pursuant to Section 9.5(c);
(d) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof;
(e) the sale of Non-Core Assets for cash or cash equivalents in an
aggregate amount not to exceed $100,000,000; provided that the Borrowers (i)
shall repay any outstanding Revolving Credit Loans in an amount equal to one
hundred percent (100%) of the Net Proceeds received from such sale in the manner
set forth in Section 2.5(c) and shall reduce the Aggregate Commitment by an
amount equal to fifty percent (50%) of the Net Proceeds received from such sale
in the manner set forth in Section 2.7(b) and (ii) prior to the consummation of
the sale of any such Non-Core Assets, shall deliver to the Administrative Agent
and the Lenders written evidence of pro forma compliance with the provisions of
Articles VII, VIII and IX after giving effect to such sale;
(f) during any Fiscal Year, the sale of property, business or assets
other than described in clauses (a) through (e) above in an aggregate amount not
to exceed $10,000,000; and
(g) any Subsidiary formed to issue Convertible Preferred Stock and
whose sole asset is Intercompany Trust Debt may distribute such obligations to
the holders of the Convertible Preferred Stock provided that such distribution
shall be deemed an incurrence of Debt and such incurrence is otherwise permitted
hereunder.
SECTION 9.7 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares of
its capital stock, or make any change in its capital structure that could
reasonably be expected to have a Material Adverse Effect; provided, that:
(a) BREED or any Subsidiary may declare and pay dividends in cash or
shares of its own capital stock; provided that (i) the Borrowers shall have
demonstrated pro forma compliance with the covenant contained in Section 8.2
prior to and following the declaration of any such dividends;
(b) any Subsidiary of a Borrower may pay cash dividends or
make contributions to such Borrower; and
(c) any Subsidiary of BREED formed pursuant to Section 9.4(f) may issue
and pay dividends on the Convertible Preferred Stock; provided that the
Convertible Preferred Stock shall not be redeemed until at least one (1) year
after the Credit Facility Termination Date.
SECTION 9.8 Transactions with Affiliates. Except as permitted pursuant
to Section 9.4, directly or indirectly: (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or other Affiliates, or to or from any member of the
immediate family of any of its officers, directors, shareholders or other
Affiliates, or subcontract any operations to any of its Affiliates, or (b) enter
into, or be a party to, any transaction with any of its Affiliates, except
pursuant to the reasonable requirements of its business and upon fair and
reasonable terms that are fully disclosed to and approved in writing by the
Required Lenders and are no less favorable to it than it would obtain in a
comparable arm's length transaction with a Person not its Affiliate.
SECTION 9.9 Certain Accounting Changes. Change its Fiscal
Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP.
SECTION 9.10 Restrictive Agreements.
(a) On and after the Closing Date, enter into any Debt which contains
any negative pledge on assets or any covenants more restrictive than the
provisions of Articles VII, VIII and IX hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or with respect to any of its
assets or properties other than the assets or properties securing such Debt; or
(b) Enter into or permit to exist any agreement which impairs
or limits the ability of any Subsidiary of a Borrower to pay
dividends to such Borrower.
SECTION 9.11 Payments under Convertible Preferred Stock. Pay any
interest or principal due under the Convertible Preferred Stock so long as any
Default or Event of Default has occurred and is then continuing.
ARTICLE X
UNCONDITIONAL GUARANTY
SECTION 10.1 Guaranty of Obligations. The Guarantor hereby
unconditionally guarantees to the Administrative Agent for the ratable benefit
of the Administrative Agent and the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment and performance of all
Obligations of the Borrowers, whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter arising, whether or
not from time to time reduced or extinguished (except by payment thereof) or
hereafter increased or incurred, whether or not recovery may be or hereafter
become barred by the statute of limitations, whether enforceable or
unenforceable as against any such Borrower, whether or not discharged, stayed or
otherwise affected by any bankruptcy, insolvency or other similar law or
proceeding, whether created directly with any Agent or Lender or acquired by any
Agent or Lender through assignment, endorsement or otherwise, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of any such instruments evidencing
any such obligations, including all renewals, extensions or modifications
thereof (all Obligations of each such Borrower to any Agent or Lender, including
all of the foregoing, being hereinafter collectively referred to as the
"Guaranteed Obligations").
SECTION 10.2 Nature of Guaranty. The Guarantor agrees that
this Guaranty is a continuing, unconditional guaranty of payment
and performance and not of collection, and that its obligations under this
Guaranty shall be primary, absolute and unconditional, irrespective of, and
unaffected by (a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement or any other Loan Document or
any other agreement, document or instrument to which any such Borrower is or may
become a party, (b) the absence of any action to enforce this Guaranty, this
Agreement or any other Loan Document or the waiver or consent by the
Administrative Agent or any Lender with respect to any of the provisions of this
Guaranty, this Agreement or any other Loan Document, (c) the existence, value or
condition of, or failure to perfect its Lien against, any security for or other
guaranty of the Guaranteed Obligations or any action, or the ab sence of any
action, by the Administrative Agent or any Lender in respect of such security or
guaranty (including, without limitation, the release of any such security or
guaranty) or (d) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor;
it being agreed by the Guarantor that its obligations under this Guaranty shall
not be discharged until the final and indefeasible payment and performance, in
full, of the Guaranteed Obligations and the termination of the Commitments. The
Guarantor expressly waives all rights it may now or in the future have under any
statute (including, without limitation, North Carolina General Statutes Section
26-7, et seq. or similar law), or at law or in equity, or otherwise, to compel
the Administrative Agent or any Lender to proceed in respect of the Guaranteed
Obligations against any Borrower or any other party or against any security for
or other guaranty of the payment and performance of the Guaranteed Obligations
before proceeding against, or as a condition to proceeding against, the
Guarantor. The Guarantor further expressly waives and agrees not to assert or
take advantage of any defense based upon the failure of the Administrative Agent
or any Lender to commence an action in respect of the Guaranteed Obligations
against any such Borrower or any other party or any security for the payment and
performance of the Guaranteed Obligations. The Guarantor agrees that any notice
or directive given at any time to the Administrative Agent or any Lender which
is inconsistent with the waivers in the preceding two sentences shall be null
and void and may be ignored by the Administrative Agent or Lender, and, in
addition, may not be pleaded or introduced as evidence in any litigation
relating to this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty, unless the
Administrative Agent and the Required Lenders have specifically agreed otherwise
in writing. The foregoing waivers are of the essence of the transaction
contemplated by the Loan Documents and, but for this Guaranty and such waivers,
the Administrative Agent and Lenders would decline to enter into this Agreement.
SECTION 10.3 Demand by the Administrative Agent. In
addition to the terms set forth in Section 10.2, and in no manner
imposing any limitation on such terms, if all or any portion of the then
outstanding Guaranteed Obligations under this Agreement are declared to be
immediately due and payable, then the Guarantor shall, upon demand in writing
therefor by the Administrative Agent to the Guarantor, pay all or such portion
of the outstanding Guaranteed Obligations then declared due and payable. Payment
by the Guarantor shall be made to the Administrative Agent, to be credited and
applied upon the Guaranteed Obligations, in immedi ately available funds in the
Permitted Currency in which the relevant Guaranteed Obligations are denominated
to an account designated by the Administrative Agent or at the Administrative
Agent's office or at any other address that may be specified in writing from
time to time by the Administrative Agent.
SECTION 10.4 Waivers. In addition to the waivers contained in Section
10.2, the Guarantor waives, and agrees that it shall not at any time insist
upon, plead or in any manner whatever claim or take the benefit or advantage of,
any appraisal, valuation, stay, extension, marshalling of assets or redemption
laws, or exemption, whether now or at any time hereafter in force, which may
delay, prevent or otherwise affect the performance by the Guarantor of its
obligations under, or the enforcement by the Administrative Agent or the Lenders
of, this Guaranty. The Guarantor further hereby waives diligence, presentment,
demand, protest and notice of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty. The Guarantor
represents, warrants and agrees that its obligations under this Guaranty are not
and shall not be subject to any counterclaims, offsets or defenses of any kind
against the Administrative Agent, the Lenders or any such Borrower whether now
existing or which may arise in the future.
SECTION 10.5 Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Guarant or (a) change or extend the manner, place
or terms of payment of, or renew or alter all or any portion of, the Guaranteed
Obliga tions, (b) take any action under or in respect of the Loan Docu ments in
the exercise of any remedy, power or privilege contained therein or available to
it at law, in equity or otherwise, or waive or refrain from exercising any such
remedies, powers or privileges, (c) amend or modify, in any manner whatsoever,
the Loan Documents, (d) extend or waive the time for performance by the
Guarantor, any such Borrower or any other Person of, or compliance with, any
term, covenant or agreement on its part to be performed or observed under a Loan
Document (other than this Guaranty), or waive such performance or compliance or
consent to a failure of, or departure from, such performance or compliance, (e)
take and hold security or collateral for the payment of the Guaranteed
Obligations or sell, exchange, release, dispose of, or otherwise deal with, any
property pledged, mortgaged or conveyed, or in which the Administrative
Agent or the Lenders have been granted a Lien, to secure any Debt of the
Guarantor or any such Borrower to any Agent or the Lenders, (f) release anyone
who may be liable in any manner for the payment of any amounts owed by the
Guarantor or any such Borrower to any Agent or Lender, (g) modify or terminate
the terms of any intercreditor or subordination agreement pursuant to which
claims of other creditors of the Guarantor or any such Borrower are subordinated
to the claims of any Agent or Lender or (h) apply any sums by whomever paid or
however realized to any amounts owing by the Guarantor or any such Borrower to
any Agent or Lender on account of the Obligations in such manner as the
Administrative Agent or any Lender shall determine in its reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to the Guarantor as a result thereof, and no such action shall impair or release
the obligations of the Guarantor under this Guaranty.
SECTION 10.6 Reinstatement. The Guarantor agrees that, if any payment
made by any such Borrower or any other Person applied to the Obligations is at
any time annulled, set aside, rescinded, invalidated, declared to be fraudulent
or preferential or otherwise required to be refunded or repaid, or the proceeds
of Collateral are required to be returned by the Administrative Agent or any
Lender to any such Borrower, its estate, trustee, receiver or any other party,
including, without limitation, the Guarantor, under any Applicable Law or
equitable cause, then, to the extent of such payment or repayment, the
Guarantor's liability hereunder (and any Lien or Collateral securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made, and, if prior thereto, this Guaranty shall have
been canceled or surrendered (and if any Lien or Collateral securing the
Guarantor's liability hereunder shall have been released or terminated by virtue
of such cancellation or surrender), this Guaranty (and such Lien or Collateral)
shall be reinstated in full force and effect, and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the
obligations of the Guarantor in respect of the amount of such payment (or any
Lien or Collateral securing such obligation).
SECTION 10.7 No Subrogation. Until all amounts owing to the
Administrative Agent and the Lenders on account of the Obligations are paid in
full and the Commitments are terminated, the Guarantor hereby waives any claims
or other rights which it may now or hereafter acquire against any such Borrower
that arise from the existence or performance of the Guarantor's obligations
under this Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, indemnification, any right to participate in any
claim or remedy of the Administrative Agent or the Lenders against any such
Borrower or any Collateral which the Administrative Agent or the Lenders now
have or may hereafter acquire, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, by any payment
made hereunder or otherwise, including without limitation, the right to take or
receive from any such Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to the Guarantor on
account of such rights at any time when all of the Obligations shall not have
been paid in full, such amount shall be held by the Guarantor in trust for the
Administrative Agent, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Administrative
Agent in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Administrative Agent, if required) to be applied against the
Obligations, whether matured or unmatured, in such order as set forth herein.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans. Any Borrower shall
default in any payment of principal of any Loan or Note when and as due (whether
at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. Any Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan or Note or the payment of any other Obligation, and such
default shall continue unremedied for three (3) Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed to
be made by any Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. Any
Borrower shall default in the performance or observance of any
covenant or agreement contained in Sections 6.2, 6.5(e) or 7.12 or
Articles VIII or IX of this Agreement.
(e) Default in Performance of Other Covenants and Conditions.
Any Borrower or any Subsidiary thereof shall default in the
performance or observance of any term, covenant, condition or
agreement contained in this Agreement (other than as specifically provided for
otherwise in this Section 11.1) or any other Loan Document and such default
shall continue for a period of thirty (30) days after written notice thereof has
been given to such Borrower by the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due
by a Borrower under any Hedging Agreement and such amount is not
paid within ten (10) Business Days of the due date thereof.
(g) Debt Cross-Default. Any Borrower or any of its Subsidiaries shall
(i) default in the payment of any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $2,500,000 beyond the period of
grace if any, provided in the instrument or agreement under which such Debt was
created, or (ii) default in the observance or performance of any other agreement
or condition relating to any Debt (other than the Notes) the aggregate
outstanding amount of which Debt is in excess of $2,500,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) Other Cross-Defaults. Any Borrower or any of its Subsidiaries shall
default in the payment when due, or in the performance or observance, of any
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by such Borrower or such
Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of such Borrower or such
Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended),
shall obtain ownership or control in one or more series of transactions of more
than thirty percent (30%) of the common stock or thirty percent (30%) of the
voting power of BREED entitled to vote in the election of members of the board
of directors of BREED or there shall have occurred under any indenture or other
instrument evidencing any Debt in excess of $500,000 any "change in control" (as
defined in such indenture or other evidence of Debt) obligating any Borrower to
repurchase, redeem or repay all or any part of the Debt or capital stock
provided for therein (any such event, a "Change in Control").
(j) Voluntary Bankruptcy Proceeding. Any Borrower or any
Material Subsidiary thereof shall (i) commence a voluntary case
under the federal bankruptcy laws (as now or hereafter in effect),
(ii) file a petition, proposal or notice of intent to file a proposal seeking to
take advantage of any other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for adjustment of debts,
(iii) consent to or fail to contest in a timely and appropriate manner any
petition or other proceeding filed against it in an involuntary case under such
bankruptcy laws or other laws, (iv) apply for or consent to, or fail to contest
in a timely and appropriate manner, the appointment of, or the taking of
possession by, a receiver, custodian, trustee, administrator, or liquidator of
itself or of a substantial part of its property, domestic or foreign, (v) admit
in writing its inability to pay its debts as they become due, (vi) make a
general assignment for the benefit of creditors, or (vii) take any corporate
action for the purpose of authorizing any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against any Borrower or any Material Subsidiary thereof in any
court of competent jurisdiction seeking (i) relief under the federal bankruptcy
laws (as now or hereafter in effect) or under any other laws, domestic or
foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian,
liquidator or the like for any Borrower or any Material Subsidiary thereof or
for all or any substantial part of their respective assets, domestic or foreign,
and such case or proceeding shall continue without dismissal or stay for a
period of sixty (60) consecutive days, or an order granting the relief requested
in such case or proceeding (including, but not limited to, an order for relief
under such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of Article X of this Agreement
or any provision of any other Loan Document shall for any reason cease to be
valid and binding on any Borrower or Subsidiary party thereto or any such Person
shall so state in writing, or any Loan Document shall for any reason cease to
create a valid and perfected first priority Lien on, or security interest in,
any of the collateral purported to be covered thereby, in each case other than
in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following events:
(i) BREED or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the
Code, BREED or any ERISA Affiliate is required to pay as contributions thereto,
(ii) an accumulated funding deficiency in excess of $1,000,000 occurs or exists,
whether or not waived, with respect to any Pension Plan, (iii) a Termination
Event or (iv) BREED or any ERISA Affiliate as employers under one or more
Multiemployer Plan makes a complete or partial withdrawal from any such
Multiemployer Plan and the plan
sponsor of such Multiemployer Plans notifies such withdrawing employer that such
employer has incurred a withdrawal liability requiring payments in an amount
exceeding $2,500,000.
(n) Judgment. An uninsured judgment or order for the payment of money
which causes the aggregate amount of all such uninsured judgments to exceed
$1,000,000 in any Fiscal Year shall be entered against any Borrower or any of
its Subsidiaries by any court and such judgment or order shall continue without
discharge or stay for a period of thirty (30) days.
(o) Five-Year Credit Agreement. An Event of Default shall
have occurred and be continuing under the Five-Year Credit
Agreement.
SECTION 11.2 Remedies. Upon the occurrence and during the continuance
of an Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrowers:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans and the Notes at the time outstanding, and all other
amounts owed to the Lenders and to the Administrative Agent under this Agreement
or any of the other Loan Documents and all other Obligations, to be forthwith
due and payable, whereupon the same shall immediately become due and payable
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the other Loan Documents to
the contrary notwithstanding, and terminate the Credit Facility and any right of
the Borrowers to request borrowings thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 11.1(j) or (k), the
Credit Facility shall be automatically terminated and all Obligations shall
automatically become due and payable.
(b) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrowers' Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; Etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the Loan Documents or that may now or hereafter exist in law
or in equity or by suit or otherwise. No delay or failure to take action on the
part of the Administrative Agent or any Lender in exercising any right, power
or privilege shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or privilege preclude other or further
exercise thereof or the exercise of any other right, power or privilege or shall
be construed to be a waiver of any Event of Default. No course of dealing
between any Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
SECTION 11.4 Judgment Currency. The obligation of the Borrowers to make
payments of the principal of and interest on the Notes and the obligation of the
Guarantor to make payments on the Guaranteed Obligations and the obligation of
any such Person to make payments of any other amounts payable hereunder or
pursuant to any other Loan Document in the currency specified for such payment
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment, which is expressed in or converted into any other currency, except
to the extent that such tender or recovery shall result in the actual receipt by
each of the Administrative Agent and Lenders of the full amount of the
particular Permitted Currency expressed to be payable pursuant to the applicable
Loan Document. The Administrative Agent shall, using all amounts obtained or
received from the Borrowers pursuant to any such tender or recovery in payment
of principal of and interest on the Obligations, promptly purchase the
applicable Permitted Currency at the most favorable spot exchange rate
determined by the Administrative Agent to be available to it. The obligation of
the Borrowers to make payments in the applicable Permitted Currency shall be
enforceable as an alternative or additional cause of action solely for the
purpose of recovering in the applicable Permitted Currency the amount, if any,
by which such actual receipt shall fall short of the full amount of the
Permitted Currency expressed to be payable pursuant to the applicable Loan
Document.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender under
this Agreement and the other Loan Documents and each such Lender irrevocably
authorizes First Union as Administrative Agent for such Lender, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and such
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such
other Loan Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or any
fiduciary relationship with any Lender (nor shall any Lender be deemed to have
any fiduciary relationship with any Borrower), and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or the other Loan Documents or otherwise exist against the
Administrative Agent. To the extent any provision of this Agreement permits
action by the Administrative Agent, such Administrative Agent shall, subject to
the provisions of Section 13.11 hereof and of this Article XII, take such action
if directed in writing to do so by the Required Lenders.
SECTION 12.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned directly by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrowers or any of their Subsidiaries
or any officer thereof contained in this Agreement or the other Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrowers or any of their
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrowers or any of their Subsidiaries.
SECTION 12.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Borrowers), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 13.10 hereof. The Administrative Agent
shall be fully justified in failing or refusing to take any action under this
Agreement and the other Loan Documents unless it shall first receive such advice
or concurrence of the Required Lenders (or, when expressly required hereby or by
the relevant other Loan Document, all the Lenders) as it deems appropriate or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action except for its own gross negligence or
willful misconduct. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and the
Notes in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
SECTION 12.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or a Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, it shall promptly give notice
thereof to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders; provided, that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrowers or any of their
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrowers and their Subsidiaries and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrowers and their
Subsidiaries. Except for notices, reports and other documents expressly required
to be furnished to the Lenders by the Administrative Agent hereunder or by the
other Loan Documents, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrowers or any of their Subsidiaries which may come
into the possession of the Administrative Agent or any of its respective
officers, directors, employees, agents, attorneys-in-fact, Subsidiaries or
Affiliates.
SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting directly from the Administrative Agent's bad faith, gross negligence
or willful misconduct. The agreements in this Section 12.7 shall survive the
payment of the Notes and all other amounts payable hereunder and the termination
of this Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
any Borrower as though the Administrative Agent were not an Administrative Agent
hereunder. With respect to any Loans made or renewed by it and any Note issued
to it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the same
as though it were not an Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual capacity.
SECTION 12.9 Resignation of the Administrative Agent;
Successor Administrative Agent.
(a) Subject to the appointment and acceptance of a successor as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 12.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
(b) Each reference in subsection (a) above to the Administrative Agent
shall also be deemed a reference to the Swingline Lender. Therefore, upon the
acceptance of any appointment as Administrative Agent (and Swingline Lender)
hereunder by a successor Administrative Agent (and Swingline Lender), such
successor Administrative Agent (and Swingline Lender) shall thereupon succeed to
and become vested with all rights, powers, privileges and duties of the retiring
Swingline Lender, and the retiring Swingline Lender shall be discharged from its
duties and obligations hereunder.
SECTION 12.10 Documentation Agent. The Documentation Agent, in its
capacity as a documentation agent, shall have no duties or responsibilities
under this Agreement or any other Loan Document.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be
sent to it at the following addresses, or any other address as to
which all the other parties are notified in writing.
If to BREED: BREED Technologies, Inc.
5300 Old Tampa Highway
Lakeland, Florida 33811
Attention: Chief Financial Officer
Telephone No.: (941) 668-6000
Telecopy No.: (941) 668-6036
With copies to: BREED Technologies, Inc.
5300 Old Tampa Highway
Lakeland, Florida 33811
Attention: Treasurer
General Counsel
Telephone No.: (941) 668-6389
Telecopy No.: (941) 668-6039
If to First Union as
Administrative Agent: First Union National Bank of Florida
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Telephone No.: (813) 276-6434
Telecopy No.: (813) 276-6454
and
First Union National Bank of
North Carolina
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina
28288-0608
Attention: Syndication Agency
Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 383-0288
If to any Lender: To the Address set forth on
Schedule 1.1(b) hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrowers and the Lenders, as the Administrative Agent's Office referred to
herein, to which payments due are to be made and at which Revolving Credit Loans
and Finnish Mark Loans will be disbursed.
SECTION 13.2 Expenses; Indemnity. The Borrowers will (a) pay all
reasonable out-of-pocket expenses of the Administrative Agent in connection
with: (i) the preparation, execution and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and delivered,
including, without limitation, all out-of-pocket syndication and due diligence
expenses and reasonable fees and disbursements of counsel for the Administrative
Agent and (ii) the preparation, execution and delivery of any waiver, amendment
or consent by the Administrative Agent or the Lenders relating to this Agreement
or any other Loan Document, including, without limitation, reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and the Lenders in connection
with the administration and enforcement of any rights and remedies of the
Administrative Agent and Lenders under the Credit Facility, including consulting
with appraisers, accountants, engineers, attorneys and other Persons concerning
the nature, scope or value of any right or remedy of the Administrative Agent or
any Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include, without limitation, the
reasonable fees and disbursements of such Persons and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, officers and directors,
from and against any losses, penalties, fines, liabilities, settlements,
damages, costs and expenses, suffered by any such Person in connection with any
claim, investigation, litigation or other proceeding (whether or not the
Administrative Agent or any Lender is a party thereto) and the prosecution and
defense thereof, arising out of or in any way connected with the Agreement, any
other Loan Document or the Loans, including, without limitation, reasonable
attorney's and consultant's fees, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party
seeking indemnification therefor.
SECTION 13.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 13.10 are hereby authorized by the Borrowers at any time or from
time to time, without notice to the Borrowers or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of a Borrower against and on account of the Obligations irrespective of whether
or not (a) the Lenders shall have made any demand under this Agreement or any of
the other Loan Documents or (b) the Administrative Agent shall have declared any
or all of the Obligations to be due and payable as permitted by Section 11.2 and
although such Obligations shall be contingent or unmatured.
SECTION 13.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5 Consent to Jurisdiction. The Borrowers hereby irrevocably
consent to the personal jurisdiction of the state and federal courts located in
Mecklenburg County, North Carolina, in any action, claim or other proceeding
arising out of any dispute in connection with this Agreement, the Notes and the
other Loan Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations. The Borrowers hereby irrevocably
consent to the service of a summons and complaint and other process in any
action, claim or proceeding brought by the Administrative Agent or any Lender in
connection with this Agreement, the Notes or the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such rights
and obligations, on behalf of itself or its property, in the manner specified in
Section 13.1. Nothing in this Section 13.5 shall affect the right of the
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Administrative Agent or
any Lender to bring any action or proceeding against any Borrower or its
properties in the courts of any other jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of the Borrower, any Agent or the
Required Lenders, whether made before or within one hundred twenty days (120)
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to the Notes or any other Loan
Documents ("Disputes"), between or among parties to the Notes or any other Loan
Document shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising from
Loan Documents executed in the future, or claims concerning any aspect of the
past, present or future relationships arising out of or connected with the Loan
Documents. Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association and Title 9 of the U.S. Code. All arbitration hearings
shall be conducted in Charlotte, North Carolina. The expedited procedures set
forth in Rule 51, et seq. of the Arbitration Rules shall be applicable to claims
of less than $1,000,000. All applicable statutes of limitation shall apply to
any Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted. Notwithstanding the foregoing, this paragraph shall not apply to any
Hedging Agreement that is a Loan Document.
(b) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND EACH BORROWER HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR
OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT,
THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto preserve, without diminution,
certain remedies that such Persons may employ or exercise freely, either alone,
in conjunction with or during a Dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by self
help to exercise or prosecute the following remedies: (i) all rights to
foreclose against or otherwise become owner or sell any real or personal
property or other security by exercising a power of sale granted in the Loan
Documents or under applicable law or by judicial foreclosure and sale, (ii) all
rights of self help
including peaceful occupation of property and collection of rents, set off, and
peaceful possession of property, (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and in filing an involuntary bankruptcy proceeding, and
(iv) when applicable, a judgment by confession of judgment. Preservation of
these remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
SECTION 13.7 Reversal of Payments. To the extent any Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrowers recognize that, in the event the Borrowers fail to
perform, observe or discharge any of their obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrowers agree that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrowers (on behalf
of themselves and their Subsidiaries) hereby agree that no such Person shall
have a remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by
BREED or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrowers, be performed in accordance with GAAP as in
effect on the Closing Date. In the event that changes in GAAP shall be mandated
by the Financial Accounting
Standards Board, or any similar accounting body of comparable standing, or shall
be recommended by BREED's certified public accountants, to the extent that such
changes would modify such accounting terms or the interpretation or computation
thereof, such changes shall be followed in defining such accounting terms only
from and after the date the Borrowers and the Lenders shall have amended this
Agreement to the extent necessary to reflect any such changes in the financial
covenants and other terms and conditions of this Agreement.
SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that no Borrower shall assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Administrative Agent and (unless an Event of Default has occurred and is
continuing) the Borrowers, which consents shall not be unreasonably withheld or
delayed, assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of the Loans at the time owing to it and the Notes
held by it); provided, that:
(i) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Lender's rights and
obligations under this Agreement and its rights and obligations under
the Five-Year Credit Agreement;
(ii) if less than all of the assigning Lender's
Commitment is to be assigned, the Commitment under this Agreement and
the commitment under the Five-Year Credit Agreement so assigned shall
not be less than $10,000,000 in the aggregate;
(iii) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance in the form of
Exhibit F attached hereto (an "Assignment and Acceptance"), together
with any Note or Notes subject to such assignment;
(iv) such assignment shall not, without the consent of
any applicable Borrower, require such Borrower to file a registration
statement with the Securities and Exchange Commission or apply to or
qualify the Loans or the Notes under the blue sky laws of any state;
(v) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,000 upon the execution by such Lender of
the Assignment and Acceptance; provided, that (A) no such fee shall be
payable upon any assignment by a Lender to an Affiliate thereof and (B)
if such Assignment is executed in connection with an Assignment and
Acceptance under the Five-Year Credit Agreement the aggregate
assignment fee for both such assignments shall be $3,000; and
(vithe assignee of each such assignment shall execute and deliver
to the Administrative Agent any such supplements to the Security
Documents and/or additional Security Documents that may be reasonably
required by the Administrative Agent in order that the assignee may
become a secured party thereunder.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Accep tance, which effective
date shall be at least five (5) Business Days after the execution thereof, (A)
the assignee thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a Lender
hereby and (B) the Lender thereunder shall, to the extent provided in such
assignment, be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and agree with each other and the other parties hereto as
set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Loans with respect
to each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrowers or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit F:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and
the Borrowers; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrowers.
Within five (5) Business Days after receipt of notice, the applicable Borrower
or Borrowers shall execute and deliver to the Administrative Agent, in exchange
for the surrendered Note or Notes, a new Note or Notes to the order of such
Eligible Assignee in amounts equal to the Commitment assumed by it pursuant to
such Assignment and Acceptance and a new Note or Notes to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes delivered to the assigning Lender.
Each surrendered Note or Notes shall be canceled and returned to the Borrowers.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans and
the Notes held by it); provided, that:
(i) each such participation shall be of a constant, and
not varying percentage of all the Assigning Lender's Commitment or
Loans under this Agreement and the commitment or the loans under the
Five-Year Credit Agreement;
(ii) each such participation of the Commitment or the
Loans under this Agreement and the commitment or the loans under the
Five-Year Credit Agreement shall be in an amount not less than
$5,000,000 in the aggregate;
(iii) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain
unchanged;
(iv) such Lender shall remain solely responsible to
the other parties hereto for the performance of such
obligations;
(v) such Lender shall remain the holder of the
Notes held by it for all purposes of this Agreement;
(vi) the Borrowers, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under
this Agreement;
(vii) such Lender shall not permit such participant the
right to approve any waivers, amendments or other modifications to this
Agreement or any other Loan Document other than waivers, amendments or
modifications which would reduce the principal of or the interest rate
on any Loan, extend the term or increase the amount of the Commitment,
reduce the amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal of any Loan or, except
as expressly contemplated hereby or thereby, release any material
portion of the Collateral or release the Guaranty; and
(viii) any such disposition shall not, without the consent
of the applicable Borrower, require such Borrower to file a
registration statement with the Securities and Exchange Commission to
apply to qualify the Loans or the Notes under the blue sky law of any
state.
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall hold all non-public information with respect to the
Borrowers obtained pursuant to the Loan Documents in accordance with their
customary procedures for handling confidential information. Any Lender may, in
connection with any assignment, proposed assignment, participation or proposed
participation pursuant to this Section 13.10, disclose to the assignee,
participant, proposed assignee or proposed participant, any information relating
to the Borrowers furnished to such Lender by or on behalf of the Borrowers;
provided, that prior to any such disclosure, each such assignee, proposed
assignee, participant or proposed participant shall agree with the Borrowers or
such Lender to preserve the confidentiality of any confidential information
relating to the Borrowers received from such Lender.
(h) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any
Federal Reserve Bank in accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as
set forth below, any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the
Lenders, and any consent given by the Lenders, if, but only if, such amendment,
waiver or consent is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the
Borrowers; provided, that no amendment, waiver or consent
shall, without the prior written consent of each Lender, (a) release any
Borrower from its Obligations hereunder, (b) increase the amount or extend the
time of the obligation of the Lenders to make Loans (including, without
limitation, pursuant to Section 2.8), (c) extend the originally scheduled time
or times of payment of the principal of any Loan or the time or times of payment
of interest on any Loan or the time or times of any payment of any fees
hereunder, (d) reduce the rate of interest payable on any Loan or the amount of
any fees hereunder, (e) permit any subordination of the principal or interest on
any Loan, (f) release any material portion of the Collateral or release any
Security Document (other than as specifically permitted in this Agreement or the
applicable Security Document), (g) reduce the "Guaranteed Obligations" as
defined in Section 10.1 or release the Guarantor from its Obligations under
Article X, (h) release or discharge any Subsidiary Guarantor from its
obligations under any Subsidiary Guaranty Agreement or amend Section 7.12 or (i)
amend the provisions of Sections 13.10(a) or this Section 13.11 or the
definition of Required Lenders. In addition, no amendment, waiver or consent to
the provisions of Article XII shall be made without the written consent of the
Administrative Agent.
SECTION 13.12 Performance of Duties. The Borrowers' obligations under
this Agreement and each of the Loan Documents shall be performed by the
applicable Borrower at its sole cost and expense.
SECTION 13.13 All Powers Coupled with Interest. All powers
of attorney and other authorizations granted to the Lenders, the
Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of
this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied or the Credit Facility
has not been terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIII and any other
provision of this Agreement and the Loan Documents shall continue in full force
and effect and shall protect the Administrative Agent and the Lenders against
events arising after such termination as well as before.
SECTION 13.15 Releases. Any security interest arising under or pursuant
to this Agreement in the assets of the Borrowers or any of their Subsidiaries
shall be released upon a sale of the subject assets as permitted hereunder in
accordance with the terms hereof.
SECTION 13.16 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for conve nience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.17 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unen forceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdic tion.
SECTION 13.18 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 13.19 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
shall have been indefeasibly and irrevocably paid and satisfied in full. No
termination of this Agreement shall affect the rights and obligations of the
parties hereto arising prior to such termination.
[SIGNATURE PAGES FOLLOW]
57
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, all as of the day and year first
written above.
BORROWERS:
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] UNITED STEERING SYSTEMS, INC.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] AUTO TRIM, INC.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] CUSTOM TRIM, LTD.
By:________________________________
Name:______________________________
Title:_____________________________
[364-Day Credit Agreement]
58
<PAGE>
[CORPORATE SEAL] BREED ITALIA, S.r.l.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] BREED ITALIAN HOLDINGS, S.r.l.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] MOMO, S.p.A.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] GALLINO PLASTURGIA, S.r.l.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] ITALTEST, S.r.l.
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] BREED EUROPEAN HOLDINGS LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
[364-Day Credit Agreement]
59
<PAGE>
[CORPORATE SEAL] HAMLIN ELECTRONICS EUROPE LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] UNITED STEERING SYSTEMS CLIFFORD
LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] HAMLIN ELECTRONICS, GmbH
By:________________________________
Name:______________________________
Title:_____________________________
[CORPORATE SEAL] VTI HAMLIN Oy
By:________________________________
Name:______________________________
Title:_____________________________
[364-Day Credit Agreement]
60
<PAGE>
ADMINISTRATIVE AGENT:
[CORPORATE SEAL] FIRST UNION NATIONAL BANK OF
FLORIDA, as Administrative Agent
By:
Name:
Title:
[364-Day Credit Agreement]
61
<PAGE>
LENDERS:
[CORPORATE SEAL] FIRST UNION NATIONAL BANK OF
FLORIDA, as Lender
By:
Name:
Title:
[364-Day Credit Agreement]
62
<PAGE>
THE CHASE MANHATTAN BANK, as
Documentation Agent and Lender
By:
Name:
Title:
[364-Day Credit Agreement]
63
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By:
Name:
Title:
[364-Day Credit Agreement]
64
<PAGE>
BANK OF AMERICA ILLINOIS
By:
Name:
Title:
[364-Day Credit Agreement]
65
<PAGE>
BHF-BANK AKTIENGESELLSCHAFT
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
66
<PAGE>
COMERICA BANK
By:
Name:
Title:
[364-Day Credit Agreement]
67
<PAGE>
FLEET BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
[364-Day Credit Agreement]
68
<PAGE>
NATIONSBANK, N.A.
By:
Name: Andrew M. Airheart
Title: Senior Vice President
[364-Day Credit Agreement]
69
<PAGE>
ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
70
<PAGE>
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
[364-Day Credit Agreement]
71
<PAGE>
THE FUJI BANK AND TRUST COMPANY
By:
Name:
Title:
[364-Day Credit Agreement]
72
<PAGE>
PNC BANK, KENTUCKY, INC.
By:
Name: James D. Neil
Title: Vice President
[364-Day Credit Agreement]
73
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
[364-Day Credit Agreement]
74
<PAGE>
BANCA COMMERCIALE ITALIANA - NEW
YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
75
<PAGE>
THE BANK OF NEW YORK
By:
Name:
Title:
[364-Day Credit Agreement]
76
<PAGE>
COMMERZBANK AG, ATLANTA AGENCY
By:
Name:
Title:
[364-Day Credit Agreement]
77
<PAGE>
CREDITO ITALIANO SpA
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
78
<PAGE>
CREDIT LYONNAIS ATLANTA AGENCY
By:
Name:
Title:
[364-Day Credit Agreement]
79
<PAGE>
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
80
<PAGE>
HARRIS TRUST AND SAVINGS BANK
By:
Name:
Title:
[364-Day Credit Agreement]
81
<PAGE>
THE MITSUI TRUST AND BANKING COMPANY
LIMITED, NEW YORK BRANCH
By:
Name:
Title:
[364-Day Credit Agreement]
82
<PAGE>
THE SANWA BANK, LIMITED, ATLANTA
AGENCY
By:
Name:
Title:
[364-Day Credit Agreement]
83
<PAGE>
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
84
<PAGE>
MERITA BANK LTD. NEW YORK BRANCH
By:
Name:
Title:
[364-Day Credit Agreement]
85
<PAGE>
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
86
<PAGE>
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
87
<PAGE>
SCHEDULE 1.1(a)
A/C BORROWERS
Name of A/C Borrower Place of Incorporation
1. BREED Technologies, Inc. United States (DE)
2. United Steering Systems, Inc. United States (DE)
3. Auto Trim, Inc. United States (TX)
4. Custom Trim, Ltd. Canada (ONT)
5. BREED Italia, S.r.l. Italy
6. BREED Italian Holdings, S.r.l. Italy
7. Momo, S.p.A. Italy
8. Gallino Plasturgia, S.r.l. Italy
9. Italtest, S.r.l. Italy
10. BREED European Holdings Limited United Kingdom
11. Hamlin Electronics Europe Limited United Kingdom
12. United Steering Systems Clifford United Kingdom
Limited
13. Hamlin Electronics, GmbH Germany
14. VTI Hamlin Oy Finland
[364-Day Credit Agreement]
88
<PAGE>
SCHEDULE 9.2
CONTINGENT OBLIGATIONS
None.
[364-Day Credit Agreement]
<PAGE>
SCHEDULE 1.1(b)
LENDERS AND COMMITMENTS
COMMITMENT
LENDER PERCENTAGE COMMITMENT
First Union National Bank 7.1111111111% $17,777,777.74
of Florida
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina
28288-0608
Attention: Syndication Agency
Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 382-0288
The Chase Manhattan Bank 6.6666666667% $16,666,666.67
1 CMP 8th Floor
New York, New York 10081
Attention: Thomas M. Brennan
Associate
Telephone No.: (212) 552-7406
Telecopy No.: (212) 552-5662
The First National Bank 5.5555555556% $13,888,888.89
of Chicago
One First National Plaza
Suite 0634, 1-10
Chicago, Illinois 60670
Attention: Gloria Steinbrenner
Client Services Associate
Telephone No.: (312) 732-5714
Telecopy No.: (312) 732-4840
Bank of America Illinois 5.5555555556% $13,888,888.89
231 South LaSalle Street
Chicago, Illinois 60697
Account Administrator
Attention: Shelia Johnson
Telephone No.: (312) 828-6568
Telecopy No.: (312) 974-9626
BHF-Bank Aktiengesellschaft 4.8888888889% $12,222,222.22
590 Madison Avenue
New York, New York 10022
Attention: Renate Boston
Telephone No.: (212) 756-5543
Telecopy No.: (212) 756-5536
Comerica Bank 4.8888888889% $12,222,222.22
500 Woodward Avenue
Mail Code 3265, 9th Floor
Detroit, Michigan 48226-3265
Attention: Susan M. Boyd
Customer Assistant,
Automotive Group
Telephone No.: (313) 222-5548
Telecopy No.: (313) 222-3776
Fleet Bank, National Association 4.8888888889% $12,222,222.22
208 Harristown Road
Glen Rock, New Jersey 07452
Attention: Ceil Christie
Assistant Vice President
Telephone No.: (201) 251-5323
Telecopy No.: (201) 251-5739
NationsBank, N.A. 4.8888888889% $12,222,222.22
101 N. Tryon Street
NC1-001-15-06
Charlotte, North Carolina 28255
Attention: Barbara Pollock
Credit Services Rep.
Telephone No.: (704) 388-1112
Telecopy No.: (704) 386-8694
ABN AMRO Bank N.V. 4.4444444444% $11,111,111.11
One Ravinia Drive, Suite 1200
Atlanta, Georgia 30346
Attention: Reenie Williamson
Telephone No.: (770) 395-7990
Telecopy No.: (770) 395-9188
The Bank of Nova Scotia 4.4444444444% $11,111,111.11
600 Peachtree Street, NE
Suite 2700
Atlanta, Georgia 30308
Attention: Dorothy Legista
Telephone No.: (404) 877-1535
Telecopy No.: (404) 888-8998
The Fuji Bank and Trust Company 4.4444444444% $11,111,111.11
Two World Trade Center
79th Floor
New York, New York 10048
Attention: Kathleen Barsotti
Vice President
Telephone No.: (212) 898-2065
Telecopy No.: (212) 488-8216
PNC Bank, Kentucky, Inc. 4.4444444444% $11,111,111.11
500 W. Jefferson Street
Louisville, Kentucky 40202
Attention: Jamie Argenbright
Lending Assistant
Telephone No.: (502) 581-2086
Telecopy No.: (502) 581-2302
Toronto Dominion (Texas), Inc. 4.4444444444% $11,111,111.11
909 Fannin, Suite 1700
Houston, Texas 77010
Attention: Lisa Allison
Telephone No.: (713) 653-8244
Telecopy No.: (713) 951-9921
Banca Commerciale Italiana - 2.6666666667% $ 6,666,666.67
New York Branch
One William Street
New York, New York 10004
Attention: Jonathan Sahr
Loan Supervisor
Telephone No.: (212) 607-3814
Telecopy No.: (212) 607-3537
The Bank of New York 2.6666666667% $ 6,666,666.67
One Wall Street - 22N
New York, New York 10286
Attention: Annette Megargel
Administrator
Telephone No.: (212) 635-6780
Telecopy No.: (212) 635-6877
Commerzbank AG, Atlanta Agency 2.6666666667% $ 6,666,666.67
2 World Financial Center
New York, New York 10281
Attention: Gabriela Schmidtchen
Telephone No.: (212) 266-7345
Telecopy No.: (212) 266-7593
Credito Italiano SpA 2.6666666667% $ 6,666,666.67
375 Park Avenue, 2nd Floor
New York, New York 10152
Attention: Luz David
Money Desk
Telephone No.: (212) 546-9615
Telecopy No.: (212) 546-9675
Credit Lyonnais Atlanta Agency 2.6666666667% $ 6,666,666.67
303 Peachtree Street, N.E.
Suite 4400
Atlanta, Georgia 30308
Attention: Pascal Seris
Telephone No.: (404) 524-3700
Telecopy No.: (404) 584-5249
Dresdner Bank AG New York 2.6666666667% $ 6,666,666.67
and Grand Cayman Branches
75 Wall Street
New York, New York 10005-2889
Attention: Gary Jermanski
Credit Services
Telephone No.: (212) 429-2674
Telecopy No.: (212) 444-2130
Harris Trust and Savings Bank 2.6666666667% $ 6,666,666.67
111 W. Monroe Street
Floor 2W
Chicago, Illinois 60603
Attention: Arlett Hall
Sr. Banking Services
Representative
Telephone No.: (312) 461-2786
Telecopy No.: (312) 461-2591
The Mitsui Trust and Banking 2.6666666667% $ 6,666,666.67
Company Limited, New York Branch
1251 Avenue of the Americas
39th Floor
New York, New York 10020-1104
Attention: Ed Simnor
Telephone No.: (212) 790-5352
Telecopy No.: (212) 768-9044
The Sanwa Bank, Limited, 2.6666666667% $ 6,666,666.67
Atlanta Agency
Park Avenue Plaza
55 E. 52nd Street
New York, New York 10055
Attention: Renko Hara
Telephone No.: (212) 339-6390
Telecopy No.: (212) 754-2368
The Sumitomo Bank, Limited 2.6666666667% $ 6,666,666.67
100 S. Ashley Drive, Suite 1780
Tampa, Florida 33602
Attention: M. Phillip Freeman
Telephone No.: (813) 229-6002
Telecopy No.: (813) 229-6372
Merita Bank Ltd., New York Branch 2.2222222222% $ 5,555,555.56
437 Madison Avenue
New York, New York 10022
Attention: Revella Perna
Telephone No.: (212) 318-9345
Telecopy No.: (212) 421-4420
Istituto Bancario San Paolo 2.2222222222% $ 5,555,555.56
Di Torino SPA
245 Park Avenue
New York, New York 10167
Attention: Giovanni Lugato
Account Officer
Telephone No.: (212) 692-3195
Telecopy No.: (212) 599-5303
Banque Francaise du Commerce 2.2222222222% $ 5,555,555.56
Exterieur
333 Clay Street, Suite 4340
Houston, Texas 77002
Attention: Tim Polvado
Telephone No.: (713) 759-9401
Telecopy No.: (713) 759-9908
[364-Day Credit Agreement]
<PAGE>
SCHEDULE 1.1(c)
FINNISH MARK LENDERS AND FINNISH MARK COMMITMENTS
COMMITMENT
LENDER PERCENTAGE COMMITMENT
First Union National Bank 50% $5,000,000.00
of Florida
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina
28288-0608
Attention: Syndication Agency
Services
Telephone No.: (704) 383-0281
Telecopy No.: (704) 382-0288
Merita Bank Ltd., New York Branch 50% $5,000,000.00
437 Madison Avenue
New York, New York 10022
Attention: Revella Perna
Telephone No.: (212) 318-9345
Telecopy No.: (212) 421-4420
[364-Day Credit Agreement]
<PAGE>
SCHEDULE 1.1(d)
PLEDGE AGREEMENTS AND ISSUERS
Pledge Agreement Applicable Issuers
1. BREED Pledge Agreement
2. [Subsidiary Pledge
Agreements]
[364-Day Credit Agreement]
<PAGE>
SCHEDULE 1.1(e)
SUBSIDIARY GUARANTORS
1. BREED Automotive Florida, Inc.
2. BREED Automotive West, Inc.
3. Hamlin, Incorporated
4. United Steering Systems, Inc.
[364-Day Credit Agreement]
<PAGE>
EXHIBIT A-1
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
REVOLVING CREDIT NOTE
$___________ April __, 1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, each of the undersigned, BREED Technologies, Inc.,
United Steering Systems, Inc., Auto Trim, Inc., Custom Trim, Ltd., BREED Italia,
S.r.l., BREED Italian Holdings, S.r.l., Momo, S.p.A., Gallino Plasturgia,
S.r.l., Italtest, S.r.l., BREED European Holdings Limited, Hamlin Electronics
Europe Limited, United Steering Systems Clifford Limited, Hamlin, GmbH and VTI
Hamlin Oy (collectively, the "Borrowers"), hereby severally promise to pay to
the order of __________________________ (the "Bank"), at the times, at the place
and in the manner provided in the Credit Agreement described below, the
principal sum of up to ______________________ Dollars ($___________), or the
aggregate unpaid principal Dollar Amount of all Loans disbursed to each such
Borrower by the Bank under such Credit Agreement, together with interest at the
rates as in effect from time to time with respect to each portion of the
principal amount hereof, determined and payable as provided in Article III of
such Credit Agreement.
This Revolving Credit Note is a Revolving Credit Note referred to in,
and is entitled to the benefits of, the 364-Day Credit Agreement dated as of
April __, 1997 (as further amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement") by and among the Borrowers, Breed
Technologies, Inc., as Guarantor, the Lenders party thereto, First Union
National Bank of Florida, as Administrative Agent, and The Chase Manhattan Bank,
as Documentation Agent. The Credit Agreement contains, among other things,
provisions for the time, place and manner of payment of this Revolving Credit
Note, the determination of the interest rate
borne by and fees payable in respect of this Revolving Credit Note, acceleration
of the payment of this Revolving Credit Note upon the happening of certain
stated events and the mandatory repayment of this Revolving Credit Note under
certain circumstances. All capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned thereto in the Credit Agreement.
The Borrowers hereby severally agree to pay on demand all costs of
collection, including reasonable attorneys' fees, if any part of this Revolving
Credit Note, principal or interest, is collected after maturity with the aid of
an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS REVOLVING CREDIT NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Revolving Credit Note is senior in right of
payment to all Subordinated Debt referred to in the Credit Agreement.
[Signature pages follow]
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this Revolving
Credit Note to be executed under seal by a duly authorized officer as of the day
and year first above written.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:
Name:
Title:
[CORPORATE SEAL] UNITED STEERING SYSTEMS, INC.
By:
Name:
Title:
[CORPORATE SEAL] AUTO TRIM, INC.
By:
Name:
Title:
[CORPORATE SEAL] CUSTOM TRIM, LTD.
By:
Name:
Title:
[CORPORATE SEAL] BREED ITALIA, S.R.L.
By:
Name:
Title:
[CORPORATE SEAL] BREED ITALIAN HOLDINGS, S.R.L.
By:
Name:
Title:
[CORPORATE SEAL] MOMO, S.P.A.
By:
Name:
Title:
[CORPORATE SEAL] GALLINO PLASTURGIA, S.R.L.
By:
Name:
Title:
[CORPORATE SEAL] ITALTEST, S.R.L.
By:
Name:
Title:
[CORPORATE SEAL] BREED EUROPEAN HOLDINGS LIMITED
By:
Name:
Title:
[CORPORATE SEAL] HAMLIN ELECTRONICS EUROPE LIMITED
By:
Name:
Title:
[CORPORATE SEAL] UNITED STEERING SYSTEMS CLIFFORD
LIMITED
By:
Name:
Title:
[CORPORATE SEAL] HAMLIN ELECTRONICS, GMBH
By:
Name:
Title:
[CORPORATE SEAL] VTI HAMLIN OY
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT A-2
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FINNISH MARK
REVOLVING CREDIT NOTE
$___________ April __, 1997
(or the equivalent
thereof described
below)
FOR VALUE RECEIVED, each of the undersigned, BREED Technologies, Inc.
and VTI Hamlin Oy (collectively, the "Borrowers"), hereby severally promise to
pay to the order of __________________________ (the "Bank"), at the times, at
the place and in the manner provided in the Credit Agreement described below,
the principal sum of up to ______________________ Dollars ($___________), or the
aggregate unpaid principal Dollar Amount of all Loans disbursed to each such
Borrower by the Bank under such Credit Agreement, together with interest at the
rates as in effect from time to time with respect to each portion of the
principal amount hereof, determined and payable as provided in Article III of
such Credit Agreement.
This Finnish Mark Revolving Credit Note is a Finnish Mark Revolving
Credit Note referred to in, and is entitled to the benefits of, the 364-Day
Credit Agreement dated as of April __, 1997 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement") by
and among the Borrowers, Breed Technologies, Inc., as Guarantor, the Lenders
party thereto and First Union National Bank of Florida, as Administrative Agent,
and The Chase Manhattan Bank, as Documentation Agent. The Credit Agreement
contains, among other things, provisions for the time, place and manner of
payment of this Finnish Mark Revolving Credit Note, the determination of the
interest rate borne by and fees payable in respect of this Finnish Mark
Revolving Credit Note, acceleration of the payment of this
Finnish Mark Revolving Credit Note upon the happening of certain stated events
and the mandatory repayment of this Finnish Mark Revolving Credit Note under
certain circumstances. All capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned thereto in the Credit Agreement.
The Borrowers hereby severally agree to pay on demand all costs of
collection, including reasonable attorneys' fees, if any part of this Finnish
Mark Revolving Credit Note, principal or interest, is collected after maturity
with the aid of an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS FINNISH MARK REVOLVING CREDIT NOTE IS MADE AND DELIVERED IN THE
STATE OF NORTH CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Finnish Mark Revolving Credit Note is senior
in right of payment to all Subordinated Debt referred to in the Credit
Agreement.
[Signature pages follow]
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, each of the Borrowers has caused this Finnish Mark
Revolving Credit Note to be executed under seal by a duly authorized officer as
of the day and year first above written.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:
Name:
Title:
[CORPORATE SEAL] VTI HAMLIN OY
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT A-3
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
SWINGLINE NOTE
$15,000,000.00 April __, 1997
FOR VALUE RECEIVED, the undersigned, BREED TECHNOLOGIES, INC., a
corporation organized under the laws of Delaware ("BREED"), hereby promises to
pay to the order of FIRST UNION NATIONAL BANK OF FLORIDA (the "Bank"), at the
times, at the place and in the manner provided in the Credit Agreement described
below, the principal sum of up to Fifteen Million and No/100 Dollars
($15,000,000.00), or, if less, the aggregate unpaid principal amount of all
Swingline Loans disbursed by the Bank under such Credit Agreement, together with
interest at the rates as in effect from time to time with respect to each
portion of the principal amount hereof, determined and payable as provided in
Article III of such Credit Agreement.
This Swingline Note is the Swingline Note referred to in, and is
entitled to the benefits of, the 364-Day Credit Agreement dated as of April __,
1997 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement") by and among BREED and certain Subsidiaries thereof, as Borrowers,
BREED, as Guarantor, the Lenders party thereto and First Union National Bank of
Florida, as Administrative Agent, and The Chase Manhattan Bank, as Documentation
Agent. The Credit Agreement contains, among other things, provisions for the
time, place and manner of payment of this Swingline Note, the determination of
the interest rate borne by and fees payable in respect of this Swingline Note,
acceleration of the payment of this Swingline Note upon the happening of certain
stated events and the mandatory repayment of this Swingline Note under certain
circumstances. All capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned thereto in the Credit Agreement.
BREED agrees to pay on demand all costs of collection,
including reasonable attorneys' fees, if any part of this Swingline Note,
principal or interest, is collected after maturity with the aid of an attorney.
Diligence, presentment for payment, notice of dishonor, protest and
notice of any kind (other than as explicitly required by the Credit Agreement)
are hereby waived.
THIS SWINGLINE NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
The Debt evidenced by this Swingline Note is senior in right of payment
to all Subordinated Debt referred to in the Credit Agreement.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, BREED has caused this Swingline Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
BREED TECHNOLOGIES, INC.
[CORPORATE SEAL]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT B
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF BORROWING
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you under Section
2.4(a) of the 364-Day Credit Agreement dated as of April ___, 1997 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among BREED Technologies, Inc. and certain of its Subsidiaries party thereto
(collectively, the "Borrowers"), BREED Technologies, Inc., as Guarantor, the
lenders party thereto (the "Lenders"), First Union National Bank of Florida, as
Administrative Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. The undersigned Borrower(s) hereby request(s) that the Lenders make
a Loan denominated in [Dollars] [Finnish Marks] [applicable Alternative
Currency] in the aggregate principal amount of $________________ (the "Loan").
2. The undersigned Borrower(s) hereby request(s) that the
Loan be made on the following Business Day: _______________.
3. This Loan shall be a _______________ Loan.
4. The undersigned Borrower(s) hereby request(s) that the [Revolving
Credit] [Finnish Mark] Loan bear interest at the following interest rate, plus
the Applicable Margin, as set forth below:
Termination
Date for
Principal Interest
Component of Interest Interest Period Period (if
Loan Rate (if applicable) applicable)
[Base Rate [One, Two, or
or LIBOR Three, Six or, if
Rate] permitted by Lenders,
Twelve Months]
5. The principal amount of all Loans outstanding as of the date hereof
(including the requested Loan) does not exceed the maximum amount permitted to
be outstanding pursuant to the terms of the Credit Agreement.
6. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
7. No Default or Event of Default exists, and none will
exist upon making the Loan requested herein.
8. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
Complete with a Permitted Currency and an amount in accordance with Section
2.4 of the Credit Agreement. Complete with a Business Day in accordance
with Section 2.4 of the Credit Agreement. Complete with either "Revolving
Credit", "Finnish Mark" or "Swingline" in accordance with Section 2.3.
Revolving Credit Loans denominated in Dollars may bear interest at the Base
Rate or the LIBOR Rate; Revolving Credit Loans denominated in an
Alternative Currency shall bear interest at the LIBOR Rate; and Swingline
Loans shall bear interest at the Base Rate. In each case the Applicable
Margin shall be set forth in accordance with Section 3.1.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Borrowing this ____ day of _______, ____.
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT C
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF PREPAYMENT
First Union National Bank
of Florida, as Administrative Agent
One First Union Center
301 South College Street, TW-10
Charlotte, North Carolina 28288-0608
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you by
__________________, a corporation organized under the laws of _________________
(the "Borrower"), under Section 2.5(d) of the 364-Day Credit Agreement dated as
of April ___, 1997 (as amended, restated, supplemented or otherwise modified,
the "Credit Agreement"), by and among BREED Technologies, Inc. and certain of
its Subsidiaries, as Borrowers, BREED Technologies, Inc., as Guarantor, the
Lenders party thereto, First Union National Bank of Florida, as Administrative
Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. The undersigned Borrower(s) hereby provides notice to the
Administrative Agent that the undersigned Borrower(s) shall repay
the following Base Rate Loans and/or LIBOR Rate Loans and/or
Swingline Loans: ____________________.
2. The undersigned Borrower(s) shall repay the above
referenced Loans on the following Business Day: _______________.
3. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Prepayment this ____ day of _______, 19__.
---------------------------------
[CORPORATE SEAL]
By:______________________________
Name:_________________________
Title:________________________
Complete with an amount in accordance with Section 2.5(d) of the Credit
Agreement. If the Loan to be repaid is a LIBOR Rate Loan, specify
whether such Loan (i) is a Revolving Credit Loan or a Finnish Mark Loan
and (ii) is denominated in Dollars or an Alternative Currency
(including, without limitation, Finnish Marks).
Complete with a Business Day in accordance with Section 2.5(d) of the
Credit Agreement.
[364-Day Credit Agreement]
<PAGE>
EXHIBIT D
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF CONVERSION/CONTINUATION
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 3.2 of the 364-Day Credit Agreement dated as of
April __, 1997 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), by and among BREED Technologies, Inc. and certain
Subsidiaries, as Borrowers, BREED Technologies, Inc., as Guarantor, the lenders
party thereto (the "Lenders"), First Union National Bank of Florida, as
Administrative Agent, and The Chase Manhattan Bank, as Documentation Agent.
1. This Notice of Conversion/Continuation is submitted for
the purpose of: (Complete applicable information.)
(a) [Converting] [continuing] a Loan [into]
[as] a Loan.
(b) Such Loan is denominated in [Insert Permitted Currency] and
the Dollar Amount of the aggregate outstanding principal
balance of such Loan is $__________.
(c) The last day of the current Interest Period for such Loan
is .
(d) The principal amount of such Loan to be [converted]
[continued] is $_______________.
(e) The requested effective date of the [conversion]
[continuation] of such Loan is _______________.
(f) The requested Interest Period applicable to the
[converted] [continued] Loan is _______________.
2. The principal amount of all Loans outstanding as of the date hereof
does not exceed the maximum amount permitted to be outstanding pursuant to the
terms of the Credit Agreement.
3. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
4. No Default or Event of Default exists, and none will
exist upon the conversion or continuation of the Loan requested
herein.
5. All capitalized undefined terms used herein have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Notice of
Conversion/Continuation this ____ day of __________, 19__.
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT E
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of BREED Technologies, Inc., a corporation
organized under the laws of Delaware ("Breed"), on behalf of the Borrowers
described below, hereby certifies to First Union National Bank of Florida, as
Administrative Agent (the "Administrative Agent"), as follows:
1. This Certificate is delivered to you pursuant to Section 6.2 of the
364-Day Credit Agreement dated as of April __, 1997 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), by and among BREED
and certain Subsidiaries thereof, as Borrowers, BREED, as Guarantor, the lenders
party thereto (the "Lenders"), the Administrative Agent and The Chase Manhattan
Bank, as Documentation Agent. Capitalized terms used herein and not defined
herein shall have the meanings assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of Breed and its
Subsidiaries dated as of _______________ and for the _______________ period[s]
then ended and such statements fairly present the financial condition of BREED
and its Subsidiaries as of the dates indicated and the results of their
operations and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and the
related Loan Documents and have made, or caused to be made under my supervision,
a review in reasonable detail of the transactions and the condition of BREED and
its Subsidiaries during the accounting period covered by the financial
statements referred to in Paragraph 2 above. Such review has not disclosed the
existence during or at the end of such accounting period of any condition or
event that constitutes a Default or an Event of Default, nor do I have any
knowledge of the existence of any such
condition or event as at the date of this Certificate [except, [if such
condition or event existed or exists, describe the nature and period of
existence thereof and what action the Borrowers have taken, are taking and
propose to take with respect thereto]].
4. The Applicable Margin and calculations determining such
figure are set forth on the attached Schedule 1.
5. BREED and its Subsidiaries are in compliance with the covenants
contained in Article VIII of the Credit Agreement as shown on such Schedule 1
and BREED and its Subsidiaries are in compliance with the other covenants and
restrictions contained in Articles VII and IX of the Credit Agreement.
6. The calculations of the total assets of each Subsidiary of BREED for
the purpose of determining which Subsidiaries are Material Subsidiaries are set
forth on the attached Schedule 1.
WITNESS the following signatures as of the _____ day of
- ---------, ----.
BREED TECHNOLOGIES, INC.
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
I. Applicable Margin.
[To Be Completed Pursuant to the Credit Agreement]
[364-Day Credit Agreement]
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
II. Compliance with the Financial Covenants.
A. Leverage Ratio.
[To Be Completed Pursuant to the Credit Agreement]
B. Minimum Net Worth.
[To Be Completed Pursuant to the Credit Agreement]
C. Interest Coverage Ratio.
[To Be Completed Pursuant to the Credit Agreement]
[364-Day Credit Agreement]
<PAGE>
Schedule 1
to
Officer's Compliance Certificate
III. Total Assets of each Subsidiary.
A. Material Subsidiaries.
Percentage of
Subsidiary Total Assets Total Assets
1.
2.
3.
Note: Breed and the Subsidiaries of Breed which comprise "Material
Subsidiaries" (as defined in the Credit Agreement) shall at
all times have total assets equal to or greater than ninety
percent (90%) of the Consolidated total assets of Breed and
its Subsidiaries.
B. Non-Material Subsidiaries.
Percentage of
Subsidiary Total Assets Total Assets
1.
2.
3.
[364-Day Credit Agreement]
<PAGE>
EXHIBIT F
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
ASSIGNMENT AND ACCEPTANCE
Dated _________
Reference is made to the 364-Day Credit Agreement dated as of April __,
1997 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), by and among BREED Technologies, Inc. and certain Subsidiaries
thereof, as Borrowers, BREED Technologies, Inc., as Guarantor, the lenders party
thereto (the "Lenders"), First Union National Bank of Florida, as Administrative
Agent (the "Administrative Agent") and The Chase Manhattan Bank, as
Documentation Agent. Capitalized terms which are defined in the Credit Agreement
and which are used herein without definition shall have the same meanings herein
as in the Credit Agreement.
_____________________________________ (the "Assignor") and
____________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, as of the Effective
Date (as defined below), a ____% interest (the "Assigned Interest") in and to
all of the Assignor's interests, rights and obligations under the Credit
Agreement and the other Loan Documents and all Collateral and the Assignor
thereby retains ____% of its interest therein (the "Retained Interest"). This
Assignment and Acceptance is entered pursuant to, and authorized by, Section
13.10 of the Credit Agreement.
2. The Assignor (a) represents that, as of the date hereof, (i) its
Commitment Percentage (without giving effect to assignments thereof which have
not yet become effective) under the Credit Agreement, (ii) the outstanding
balance of its Revolving Credit Loans (unreduced by any assignments thereof
which have not yet become effective) under the Credit Agreement [, (iii) the
outstanding balance of its Finnish Mark Loans (unreduced by any assignments
thereof which have not yet become effective) under the Credit Agreement and (iv)
the outstanding balance of its Swingline Loans (unreduced by any assignments
thereof which have not yet become effective)] are each set forth in Section 2 of
Schedule I hereto; (b) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto, other than that the Assignor is the legal and beneficial owner
of the interest being assigned by it hereunder and that such interest is free
and clear of any adverse claim; (c) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers or the performance or observance by the Borrowers of any of their
obligations under the Credit Agreement or any other Loan Document; and (d)
attaches the Revolving Credit Note [, the Finnish Mark Note and the Swingline
Note, as applicable] delivered to it under the Credit Agreement and requests
that the Borrowers exchange such [Note] [Notes] for new Notes payable to each of
the Assignor and the Assignee as follows:
Revolving Credit Note
Payable to the Order of: Principal Amount of Note:
$_________
$_________
Finnish Mark Note
Payable to the Order of: Principal Amount of Note:
$_________
$_________
Swingline Note
Payable to the Order of: Principal Amount of Note:
$_________
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.1 thereof and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (c)
agrees that it
will, independently and without reliance upon the Assignor or any other Lender
or the Administrative Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (d) confirms that it is
an Eligible Assignee; (e) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; (f) agrees that it will perform in accordance with their terms all the
obligations which by the terms of the Credit Agreement and the other Loan
Documents are required to be performed by it as a Lender; and (g) agrees that it
will keep confidential all non-public information with respect to the Borrowers
obtained pursuant to the Loan Documents in accordance with Section 13.10(g) of
the Credit Agreement.
4. The effective date for this Assignment and Acceptance shall be as
set forth in Section 1 of Schedule I hereto (the "Effective Date"). Following
the execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for consent thereby and by the Borrowers and acceptance and
recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A
CONTRACT UNDER SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE Of NORTH CAROLINA, WITHOUT REGARD TO
CONFLICT OF LAW PRINCIPLES.
[364-Day Credit Agreement]
<PAGE>
ASSIGNOR:
Commitment Percentage ____%
By:
Name:
Title:
ASSIGNEE:
Commitment Percentage ____%
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
Acknowledged and Consented to by:
BREED TECHNOLOGIES, INC., on behalf of
itself and the other Borrowers
By:____________________________________
Name: _____________________________
Title: _____________________________
Consented to and Accepted by:
FIRST UNION NATIONAL BANK OF FLORIDA,
as Administrative Agent
By:____________________________________
Name:______________________________
Title:______________________________
[364-Day Credit Agreement]
<PAGE>
Schedule I
to
Assignment and Acceptance
1. Effective Date ,
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage
of Assignor
(b) Outstanding balance
of Assignor's Revolving
Credit Loans
[(c) Outstanding balance of
Assignor's Finnish Mark Loans
(d) Outstanding balance of
Assignor's Swingline
Loans
3. Assigned Interest
(from Section 1)
4. Assignee's Extensions of Credit
After Effective Date
(a) Outstanding balance of
Assignee's Revolving
Credit Loans
(line 2(b) times line 3)
-----
[(b) Outstanding balance of
Assignee's Finnish Mark Loans
(line 2(b) times 3)
-----
(c) Outstanding balance of
Assignee's Swingline Loans
(line 2(d))
5. Retained Interest of Assignor after
Effective Date
(a) Retained Interest (from
Section 1)
(b) Outstanding balance of
Assignor's Revolving Credit
Loans (line 2(b) times
line 5(a))
[(c) Outstanding balance of
Assignor's Finnish Mark Loans
(line 2(c) times line 5(a))
(d) Outstanding balance of
Assignor's Swingline Loans
(line 2(d) times line 5(a))
6. Payment Amount
7. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
Routing No.:
Account No.:
Attn:
Reference:
(b) If payable to Assignee,
to the account of Assignee to:
Routing No.:
Account No.:
Attn:
Reference:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT G
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
NOTICE OF ACCOUNT DESIGNATION
Dated _________
First Union National Bank
of Florida, as Administrative Agent
One First Union Center, TW-10
301 South College Street
Charlotte, North Carolina 28288-0608
Attn: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you by BREED
Technologies, Inc., a corporation organized under the laws of Delaware
("BREED"), on behalf of the Borrowers described below, under Section 4.2(f)(i)
of the 364-Day Credit Agreement dated as of April __, 1997 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement") by and
among BREED and certain Subsidiaries thereof, as Borrowers, BREED, as Guarantor,
the Lenders party thereto, First Union National Bank of Florida, as
Administrative Agent (the "Administrative Agent"), and The Chase Manhattan Bank,
as Documentation Agent.
The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
[Insert name of bank/
ABA Routing Number/
and Account Number]
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of _______, 19__.
[CORPORATE SEAL] BREED TECHNOLOGIES, INC.
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT H
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FORM OF PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of April __,
1997, is made by __________________________, a corporation organized under the
laws of ____________ (the "Pled gor"), in favor of FIRST UNION NATIONAL BANK OF
FLORIDA, a national banking association, as Administrative Agent (the
"Administrative Agent"), for the ratable benefit of itself and the financial
institutions (the "Lenders") that are, or may from time to time become, parties
to the Credit Agreements (as hereinafter defined).
STATEMENT OF PURPOSE
Pursuant to the terms of the Five-Year Credit Agreement of even date by
and among BREED Technologies, Inc. ("BREED") and certain of its subsidiaries, as
Borrowers, BREED, as Guarantor, the Lenders party thereto, the Administrative
Agent and The Chase Manhattan Bank, as Documentation Agent (as amended,
restated, supplemented or otherwise modified from time to time, the "Five- Year
Credit Agreement") and the 364-Day Credit Agreement of even date by and among
BREED and certain of its subsidiaries, as Borrow ers, BREED, as Guarantor, the
Lenders party thereto, the Administrative Agent and The Chase Manhattan Bank, as
Documentation Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "364-Day Credit Agreement" and, together with the
Five-Year Credit Agreement, the "Credit Agreements"), the Lenders extended
certain credit facilities to the Borrowers as more particularly described
therein.
The Pledgor is the legal and beneficial owner of (a) the shares of
Pledged Stock (as hereinafter defined) issued by certain corporations as
specified on Schedule I attached hereto and incor porated herein by reference
(collectively, the "Issuers") and (b) the Partnership Interests (as hereinafter
defined) in the partner
[364-Day Credit Agreement]
<PAGE>
ships and limited liability companies listed on Schedule I hereto (collectively,
the "Partnerships").
In connection with the transactions contemplated by the Credit
Agreements and as a condition precedent thereto, the Lenders have requested, and
the Pledgor has agreed to execute and deliver, this Pledge Agreement with the
Pledged Stock to the Administrative Agent, for the ratable benefit of itself and
the Lenders.
NOW, THEREFORE, in consideration of the foregoing premises and to
induce the Administrative Agent and the Lenders to enter into and make available
Loans pursuant to the Credit Agreements, the Pledgor hereby agrees with the
Administrative Agent, for the ratable benefit of itself and the Lenders.
1. Defined Terms. Unless otherwise defined herein, terms
which are defined in the Credit Agreements and used herein are so
used as so defined, and the following terms shall have the
following meanings:
"Code" means the Uniform Commercial Code from time to time in
effect in the State of North Carolina.
"Collateral" means the Stock Collateral and the
Partnership Collateral.
"Obligations" means the collective reference to the Pledgor's
obligations under each Credit Agreement and each Loan Document to which
such Pledgor is a party.
"Partnership Collateral" means all of the Partner
ship Interests of the Pledgor in the Partnerships and all
Proceeds therefrom.
"Partnership Interests" means the entire partnership or
membership interest of the Pledgor in each Partnership listed on
Schedule I hereto, including, without limita tion, the Pledgor's
capital account, its or his interest as a partner or member in the net
cash flow, net profit and net loss, and items of income, gain, loss,
deduction and credit of the Partnerships, its interest in all
distributions made or to be made by the Partnerships to the Pledgor and
all of the other economic rights, titles and interests of the Pledgor
as a partner or member of the Partnerships, whether set forth in the
partnership agreement or membership agreement of the Partnerships, by
separate agreement or otherwise.
"Pledge Agreement" means this Pledge Agreement, as amended,
restated, supplemented or otherwise modified from time to time.
"Pledged Stock" means the shares of capital stock of each
Issuer listed on Schedule I hereto, together with all stock
certificates, options or rights of any nature whatsoever that may be
issued or granted by such Issuer to the Pledgor while this Pledge
Agreement is in effect.
"Proceeds" means all "proceeds" as such term is defined in
Section 9-306(1) of the Code on the date hereof and, in any event,
shall include, without limi tation, all dividends or other income from
the Pledged Stock and Partnership Interests, collections thereon,
proceeds of sale thereof or distributions with respect thereto.
"Stock Collateral" means the Pledged Stock and all
Proceeds therefrom.
2. Pledge and Grant of Security Interest. The Pledgor hereby delivers
to the Administrative Agent, for the ratable benefit of itself and the Lenders,
all the Pledged Stock and hereby grants to the Administrative Agent, for the
ratable benefit of itself and the Lenders, a first priority security interest in
the Pledged Stock and all other Collateral, as collateral security for the
prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
3. Stock Powers; Register of Pledge.
(a) Concurrently with the delivery to the Administrative Agent of each
certificate representing one or more shares of Pledged Stock, the Pledgor shall
deliver an undated stock power covering such certificate, duly executed in blank
by the Pledgor with, if the Administrative Agent so requests, signature guaran
teed.
(b) Concurrently with the execution of this Pledge Agreement, the
Pledgor will send to each Partnership written instructions substantially in the
form of Exhibit A hereto and shall cause each Partnership to, and each
Partnership shall, deliver to the Administrative Agent the Transaction Statement
in the form of Exhibit B hereto, confirming that each Partnership has registered
the pledge effected by this Pledge Agreement on its books.
4. Pledgor Remains Liable. Anything herein to the contrary
notwithstanding, (a) the Pledgor shall remain liable to perform all
of its duties and obligations as a partner of the Partnerships to
the same extent as if this Pledge Agreement had not been executed,
(b) the exercise by the Administrative Agent or any Lender of any
of its rights hereunder shall not release the Pledgor from any of
its duties or obligations as a partner of the Partnerships, and (c)
neither the Administrative Agent nor any Lender shall have any obligation or
liability as a partner of the Partnerships by reason of this Pledge Agreement.
5. Representations and Warranties. To induce the
Administrative Agent and the Lenders to execute the Credit
Agreements and make any Loans and to accept the security
contemplated hereby, the Pledgor hereby represents and warrants
that:
(a) the Pledgor has the corporate power, authority and legal
right to execute and deliver, to perform its obligations under, and to
grant the Lien on the Collateral pursuant to, this Pledge Agreement and
has taken all necessary corporate action to authorize its execution,
delivery and performance of, and grant of the Lien on the Collateral
pursuant to, this Pledge Agreement;
(b) this Pledge Agreement constitutes a legal, valid and
binding obligation of the Pledgor enforceable against the Pledgor in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by the
availability of equitable remedies;
(c) the execution, delivery and performance of this Pledge
Agreement will not violate any provision of any Applicable Law or
contractual obligation of the Pledgor and will not result in the
creation or imposition of any Lien on any of the properties or the
revenues of the Pledgor pursuant to any Applicable Law or contractual
obligation, except as contemplated hereby and by the Credit Agreements;
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of the Pledgor or any Issuer or any general or
limited partner of any Partnership), is required in connection with the
execution, delivery, performance, validity or enforceability against
the Pledgor of this Pledge Agreement, except (i) as may be required in
connection with the disposition of the Pledged Stock and the
Partnership Interests by laws affecting the offering and sale of
securities generally, and (ii) filings under the Uniform Commercial
Code;
(e) no litigation, investigation or proceeding of or before
any arbitrator or Governmental Authority is pending or, to the
knowledge of the Pledgor, threatened by or against the Pledgor or
against any of its properties or revenues with respect to this Pledge
Agreement or any of the transactions contemplated hereby;
(f) the shares of Pledged Stock listed on Schedule I
constitute all of the issued and outstanding shares of all classes of
the capital stock of each Issuer that is a Domestic Subsidiary and
constitute _____% of all of the issued and outstanding shares of all
classes of capital stock of each Issuer that is a Foreign Subsidiary,
and Schedule I accurately reflects such Pledgor's Partnership Interest
in each of the Partnerships and the Partnership Interests pledged by
the Pledgor constitute all of the outstanding ownership interests in
which the Pledgor has any right, title or interest in each Partnership
which is a Domestic Subsidiary and constitutes _____% of the
outstanding ownership interests in which the Pledgor has any right,
title and interest in each Partnership which is a Foreign Subsidiary;
(g) all the shares of the Pledged Stock have been duly and
validly issued and are fully paid and nonassessable and all of the
Partnership Interests have been duly and validly issued;
(h) the Pledgor is the record and beneficial owner of, and has
good and marketable title to, the Pledged Stock and Partnership
Interests listed on Schedule I, free of any and all Liens or options in
favor of, or claims of, any other Per son, except the Credit Agreements
and the Lien created by this Pledge Agreement;
(i) upon delivery to the Administrative Agent of the stock
certificates evidencing the Pledged Stock, the Lien granted pursuant to
this Pledge Agreement will constitute a valid, perfected first priority
Lien on the Collateral, enforceable as such against all creditors of
the Pledgor and any Persons purporting to purchase any of the
Collateral from the Pledgor; and
(j) the Pledgor has delivered to the Administrative Agent true
and complete copies of the partnership agreements for each of the
Partnerships which partnership agreements are currently in full force
and effect and have not been amended or modified except as disclosed to
the Administrative Agent in writing.
6. Certain Covenants. The Pledgor covenants and agrees with
the Administrative Agent, for the ratable benefit of itself and the
Lenders, that, from and after the date of this Pledge Agreement
until the Obligations are paid in full and the Commitments are
terminated:
(a) On or before the date of execution of this Pledge
Agreement, the Pledgor shall cause each of the partners of each of the
Partnerships to execute a consent in the form
attached hereto evidencing the consent of the partners to the pledge of
the Partnership Interests pursuant to this Pledge Agreement.
(b) The Pledgor agrees that as a partner in the Partner ships
it will abide by, perform and discharge each and every obligation,
covenant and agreement to be abided by, performed or discharged by
Pledgor under the terms of the partnership agreements of the
Partnerships, at no cost or expense to the Administrative Agent and the
Lenders.
(c) If the Pledgor shall, as a result of its ownership of the
Collateral, become entitled to receive or shall receive any stock
certificate (including, without limitation, any certificate
representing a stock dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate
issued in connection with any reorganization), option or rights,
whether in addition to, in substitution of, as a conversion of, or in
exchange for any of the Collateral, or otherwise in respect thereof,
the Pledgor shall accept the same as the agent of the Administrative
Agent, hold the same in trust for the Administrative Agent and deliver
the same forthwith to the Administrative Agent in the exact form
received, duly indorsed by the Pledgor to the Administrative Agent, if
required, together with an undated stock power covering such
certificate duly executed in blank by the Pledgor and with, if the
Administrative Agent so requests, signature guaranteed, to be held by
the Administrative Agent, subject to the terms hereof, as additional
collateral security for the Obligations; provided, that at no time
shall the Pledged Stock or Partnership Interests of any Issuer or
Partnership that is a Foreign Subsidiary exceed 66.00% of the Pledged
Stock or Partnership Interests of such Subsidiary. In addition, any
sums paid upon or in respect of the Collateral upon the liquidation or
disso lution of any Issuer or Partnership shall be held by the
Administrative Agent as additional collateral security for the
Obligations.
(d) Without the prior written consent of the Administrative
Agent, the Pledgor will not (i) vote to enable, or take any other
action to permit, any Issuer or Partnership to issue any stock,
partnership interests, limited liability company interests or other
equity securities of any nature or to issue any other securities
convertible into or granting the right to purchase or exchange for any
stock, partnership interests, limited liability company interests or
other equity securities of any nature of such Issuer or Partnership,
(ii) except as expressly provided to the contrary herein, consent to
any modification, extension or alteration of the terms of any
partnership agreement of the Partnerships, (iii) accept a surrender of
any partnership agreement of any of the Partner
ships or waive any breach of or default under any partnership agreement
of any of the Partnerships by any other party there to, (iv) sell,
assign, transfer, exchange, or otherwise dispose of, or grant any
option with respect to, the Collateral, or (v) create, incur or permit
to exist any Lien or option in favor of, or any claim of any Person
with respect to, any of the Collateral, or any interest therein, except
for the Lien provided for by this Pledge Agreement. The Pledgor will
defend the right, title and interest of the Administrative Agent in and
to the Collateral against the claims and demands of all Persons
whomsoever.
(e) At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense of the
Pledgor, the Pledgor will promptly and duly execute and deliver such
further instruments and documents and take such further actions as the
Administrative Agent may reasonably request for the purposes of
obtaining or preserving the full benefits of this Pledge Agreement and
of the rights and powers herein granted. If any amount payable under or
in connection with any of the Collateral shall be or become evidenced
by any promissory note, other instrument or chattel paper, such note,
instrument or chattel paper shall be immediately delivered to the
Administrative Agent, duly endorsed in a manner satisfac tory to the
Administrative Agent, to be held as Collateral pursuant to this Pledge
Agreement.
(f) The Pledgor agrees to pay, and to save the Administrative
Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp,
excise, sales or other similar taxes which may be payable or determined
to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Pledge Agreement.
(g) On or prior to the formation or acquisition of any
Subsidiary of the Pledgor, the Pledgor agrees to execute such
amendments and supplements to this Pledge Agreement, including, without
limitation, the Pledge Agreement Supplement attached hereto, and such
other documents and instruments as required pursuant to Section 7.12 of
each Credit Agreement.
7. Cash Dividends and Distributions; Voting Rights. Unless an Event of
Default shall have occurred and be continuing and the Administrative Agent shall
have given notice to the Pledgor of the Administrative Agent's intent to
exercise its rights pursuant to Paragraph 8 below, the Pledgor shall be
permitted to receive all cash dividends and shareholder and partnership
distributions paid in accordance with the terms of each Credit Agreement in
respect of the Collateral and to exercise all voting and corporate or
partnership rights, as applicable, with respect to the Collateral; provided,
that no vote shall be cast or corporate or partnership
right exercised or other action taken which, in the Administrative Agent's
reasonable judgment, would impair the collateral or which would be inconsistent
with or result in any violation of any provision of either Credit Agreement, the
Notes, any other Loan Documents or this Pledge Agreement.
8. Rights of the Administrative Agent.
(a) If an Event of Default shall occur and be continuing and the
Administrative Agent shall give notice of its intent to exercise such rights to
the Pledgor, (i) the Administrative Agent shall have the right to receive any
and all cash dividends paid in respect of the Pledged Stock and partnership
distributions in respect of the Partnership Interests and make application
thereof to the Obligations in the order set forth in Section 3.5 of each Credit
Agreement and (ii) all shares of the Pledged Stock and the Partnership Interests
shall be registered in the name of the Administrative Agent or its nominee, and
the Administrative Agent or its nominee may thereafter exercise (A) all voting,
corporate, partnership and other rights pertaining to such shares of the Pledged
Stock or Partnership Interests at any meeting of sharehold ers or partners of
the applicable Issuer or Partnership or otherwise and (B) any and all rights of
conversion, exchange, subscription and any other rights, privileges or options
pertaining to such shares of the Pledged Stock or Partnership Interests as if it
were the absolute owner thereof (including, without limitation, the right to
exchange at its discretion any and all of the Pledged Stock or Partnership
Interests upon the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of the applicable Issuer or
Partnership, or upon the exercise by the Pledgor or the Administrative Agent of
any right, privilege or option pertaining to such shares of the Pledged Stock or
the Partnership Interests, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock or the Partnership Interests with any
committee, depositary, transfer agent, registrar or other designated agency upon
such terms and conditions as it may determine), all without liability except to
account for property actually received by it, but the Administrative Agent shall
have no duty to the Pledgor to exercise any such right, privilege or option and
shall not be responsible for any failure to do so or delay in so doing.
(b) The rights of the Administrative Agent and the Lenders hereunder
shall not be conditioned or contingent upon the pursuit by the Administrative
Agent or any Lender of any right or remedy against the Pledgor or against any
other Person which may be or become liable in respect of all or any part of the
Obligations or against any collateral security therefor, guarantee thereof or
right of offset with respect thereto. Neither the Administrative Agent nor any
Lender shall be liable for any failure to demand, collect or realize upon all or
any part of the Collateral or for any delay in doing so, nor shall the
Administrative Agent be under
any obligation to sell or otherwise dispose of any Collateral upon the request
of the Pledgor or any other Person or to take any other action whatsoever with
regard to the Collateral or any part thereof.
9. Remedies. If an Event of Default shall occur and be continuing, with
the consent of the Required Lenders, the Administrative Agent may, and upon the
request of the Required Lenders, the Administrative Agent shall, exercise on
behalf of itself and the Lenders, all rights and remedies granted in this Pledge
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Obligations, and in addition thereto, all rights and remedies of
a secured party under the Code. Without limiting the generality of the foregoing
with regard to the scope of the Administrative Agent's remedies, the
Administrative Agent, without demand of performance or other demand,
presentment, protest, advertisement or notice of any kind (except any notice
required by law referred to below) to or upon the Pledgor, any Issuer, any
Partnership or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, in the over-the-counter market, at any exchange, broker's
board or office of the Administrative Agent or any Lender or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any
credit risk. The Administrative Agent or any Lender shall have the right upon
any such public sale or sales, and, to the extent permitted by law, upon any
such private sale or sales, to purchase the whole or any part of the Collateral
so sold, free of any right or equity of redemption in the Pledgor, which right
or equity is hereby waived or released. The Administrative Agent shall apply any
Proceeds from time to time held by it and the net proceeds of any such
collection, recovery, receipt, appropriation, realization or sale, after
deducting all reasonable costs and expenses of every kind incurred in respect
thereof or incidental to the care or safekeep ing of any of the Collateral or in
any way relating to the Collateral or the rights of the Administrative Agent and
the Lenders hereunder, including, without limitation, reasonable attorneys' fees
and disbursements of counsel thereto, to the payment in whole or in part of the
Obligations, in the order set forth in Section 3.5 of each Credit Agreement, and
only after such application and after the payment by the Administrative Agent of
any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the Code, need the Administrative Agent
account for the surplus, if any, to the Pledgor. To the extent permitted by
applicable law, the Pledgor waives all claims, damages and demands it may
acquire against the
Administrative Agent or any Lender arising out of the exercise by them of any
rights hereunder. If any notice of a proposed sale or other disposition of
Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least ten (10) days before such sale or other disposition.
The Pledgor further waives and agrees not to assert any rights or privileges
which it may acquire under Section 9-112 of the Code.
10. Registration Rights; Private Sales.
(a) If the Administrative Agent shall determine to exercise its right
to sell any or all of the Pledged Stock pursuant to Paragraph 9 hereof, and if
in the opinion of the Administrative Agent it is necessary or advisable to have
the Pledged Stock, or that portion thereof to be sold, registered under the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), the
Pledgor will cause the applicable Issuer to (i) execute and deliver, and cause
the directors and officers of the applicable Issuer to execute and deliver, all
such instruments and documents, and do or cause to be done all such other acts
as may be, in the reasonable opinion of the Administrative Agent, necessary or
advis able to register the Pledged Stock, or that portion thereof to be sold,
under the provisions of the Securities Act, (ii) to use its best efforts to
cause the registration statement relating thereto to become effective and to
remain effective for a period of one year from the date of the first public
offering of the Pledged Stock, or that portion thereof to be sold, and (iii) to
make all amendments thereto and/or to the related prospectus which, in the
opinion of the Administrative Agent, are necessary or advisable, all in
conformity with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable thereto. The
Pledgor agrees to cause the applicable Issuer to comply with the provisions of
the securities or "Blue Sky" laws of any and all jurisdictions which the
Administrative Agent shall designate and to make available to its security
holders, as soon as practicable, an earnings statement (which need not be
audited) which will satisfy the provisions of Section 11(a) of the Securities
Act.
(b) The Pledgor recognizes that the Administrative Agent may be unable
to effect a public sale of any or all the Pledged Stock, by reason of certain
prohibitions contained in the Securities Act and applicable state securities
laws or otherwise, and may be com pelled to resort to one or more private sales
thereof to a re stricted group of purchasers which will be obliged to agree,
among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable than if such sale were a public sale and,
notwithstanding such circumstanc es, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner. The Administrative
Agent
shall be under no obligation to delay a sale of any of the Pledged Stock for the
period of time necessary to permit the applicable Issuer to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if the applicable Issuer would agree to do so.
(c) The Pledgor further agrees to use its best efforts to do or cause
to be done all such other acts as may be necessary to make such sale or sales of
all or any portion of the Collateral pursuant to this Paragraph 10 valid and
binding and in compliance with any and all other Applicable Laws. The Pledgor
further agrees that a breach of any of the covenants contained in this Paragraph
10 will cause irreparable injury to the Administrative Agent and the Lenders not
compensable in damages, that the Administrative Agent and the Lenders have no
adequate remedy at law in respect of such breach and, as a consequence, that
each and every covenant contained in this Paragraph 10 shall be specifically
enforceable against the Pledgor, and the Pledgor hereby waives and agrees not to
assert any defenses against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred under either Credit
Agreement.
11. Amendments, etc. With Respect to the Obligations. The Pledgor
shall remain obligated hereunder, and the Collateral shall remain subject
to the Lien granted hereby, notwithstanding that, without any reservation
of rights against the Pledgor, and without notice to or further assent by
the Pledgor, any demand for payment of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Obligations continued, and the
Obligations, or the liability of the Pledgor or any other Person upon or
for any part thereof, or any collateral security or guarantee therefor or
right of offset with respect thereto, may, from time to time, in whole or
in part, be renewed, extended, amended, modified, accelerated, compromised,
waived, surrendered, or released by the Administrative Agent or any Lender,
and either Credit Agreement, the Notes, any other Loan Documents and any
other documents executed and delivered in connection therewith may be
amended, modified, supplemented or terminated, in whole or part, as the
Lenders (or the Required Lenders, as the case may be) may deem advisable
from time to time, and any guarantee, right of offset or other collateral
security at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any other Lien at any time
held by it as security for the Obligations or any property subject thereto.
The Pledgor waives any and all notice of the creation, renewal, extension
or accrual of any of the Obligations and notice of or proof of reliance by
the Administrative Agent or any Lender upon this Pledge Agreement; the
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Pledge Agreement; and
all dealings between the Pledgor, on the one hand, and the Administrative
Agent and the Lenders, on the other, shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Pledge
Agreement. The Pledgor waives dili gence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Pledgor with
respect to the Obligations.
12. No Subrogation. Notwithstanding any payment or payments made by the
Pledgor hereunder, or any setoff or application of funds of the Pledgor by the
Administrative Agent, or the receipt of any amounts by the Administrative Agent
with respect to any of the Collateral, the Pledgor shall not be entitled to be
subrogated to any of the rights of the Administrative Agent against any Borrower
or the Guarantor or against any other collateral security held by the
Administrative Agent for the payment of the Obligations, nor shall the Pledgor
seek any reimbursement from any Borrower or the Guarantor in respect of payments
made by the Pledgor in connection with the Collateral, or amounts realized by
the Administrative Agent in connection with the Collateral, until all amounts
owing to the Administrative Agent and Lenders on account of the Obligations are
paid in full and each Credit Agreement is terminated. If any amount shall be
paid to the Pledgor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, such amount shall be held
by the Pledgor in trust for the Administrative Agent, segregated from other
funds of the Pledgor, and shall, forthwith upon receipt by the Pledgor, be
turned over to the Administrative Agent in the exact form received by the
Pledgor (duly indorsed by the Administrative Agent, if required) to be applied
against the Obligations, whether matured or unmatured, in such order as set
forth in each Credit Agreement.
13. Limitation on Duties Regarding Collateral. The Administrative
Agent's sole duty with respect to the custody, safe keeping and physical
preservation of the Collateral in its posses sion, under Section 9-207 of the
Code or otherwise, shall be to deal with it in the same manner as the
Administrative Agent deals with similar securities and property for its own
account. Neither the Administrative Agent, any Lender nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Collateral or for any delay in
doing so or shall be under any obligation to sell or otherwise dispose of any
Collateral upon the request of the Pledgor or otherwise.
14. Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral constitute
irrevocable powers coupled with an interest.
15. Severability. Any provision of this Pledge Agreement
which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
16. Paragraph Headings. The paragraph headings used in this
Pledge Agreement are for convenience of reference only and are not
to affect the construction hereof or be taken into consideration in
the interpretation hereof.
17. No Waiver; Cumulative Remedies. Neither the Administrative Agent
nor any Lender shall by any act (except by a written instrument pursuant to
Paragraph 18 hereof) be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
18. Waivers and Amendments; Successors and Assigns; Governing
Law. None of the terms or provisions of this Pledge Agreement may
be amended, supplemented or otherwise modified except by a written
instrument executed by the Pledgor and the Administrative Agent;
provided that any consent by the Administrative Agent to any
waiver, amendment, supplement or modification hereto shall be
subject to approval thereof by the Lenders or Required Lenders, as applicable,
in accordance with Section 13.11 of each Credit Agreement. This Pledge Agreement
shall be binding upon the succes sors and assigns of the Pledgor and shall inure
to the benefit of the Administrative Agent, the Lenders and their respective
succes sors and assigns. This Pledge Agreement shall be governed by, and
construed and interpreted in accordance with, the laws of the State of North
Carolina.
19. Notices. All notices and communications hereunder shall
be given to the addresses and otherwise in accordance with Section
13.1 of each Credit Agreement.
20. Irrevocable Authorization and Instruction to Issuers.
The Pledgor hereby authorizes and instructs each Issuer and
Partnership to comply with any instruction received by it from the
Administrative Agent in writing that (a) states that an Event of
Default has occurred and is continuing and (b) is otherwise in accordance with
the terms of this Pledge Agreement, without any other or further instructions
from the Pledgor, and the Pledgor agrees that such Issuer and Partnership shall
be fully protected in so complying.
21. Authority of Administrative Agent. The Pledgor acknowl edges that
the rights and responsibilities of the Administrative Agent under this Pledge
Agreement with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, voting
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Pledge Agreement shall, as between the
Administrative Agent and the Lenders, be governed by the Credit Agreements and
by such other agreements with respect thereto as may exist from time to time
among them, but, as between the Administrative Agent and the Pledgor, the
Administrative Agent shall be conclusively presumed to be acting as agent for
itself and the Lenders with full and valid authority so to act or refrain from
acting, and neither the Pledgor nor any Issuer or Partnership shall be under any
obligation, or entitlement, to make any inquiry respecting such authority.
22. Consent to Jurisdiction. The Pledgor hereby irrevocably consents to
the personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina, in any action, claim or other proceeding arising out of
or any dispute in connection with this Pledge Agreement, any rights or
obligations hereunder, or the performance of such rights and obligations. The
Pledgor hereby irrevocably consents to the service of a summons and complaint
and other process in any action, claim or proceeding brought by the
Administrative Agent or any Lender in connection with this Pledge Agreement, any
rights or obligations hereunder, or the performance of such rights and
obligations, on behalf of itself or its property, in the manner provided in
Section 13.1 of each Credit Agreement. Nothing in this Paragraph 22 shall affect
the right of the Administrative Agent or any Lender to serve legal process in
any other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against the
Pledgor or its properties in the courts of any other jurisdictions.
23. Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before
or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Pledge Agreement
or any other Loan Documents ("Disputes"), between or among parties to this
Pledge Agreement or any other Loan Document shall be resolved by binding
arbitration as provided herein. Institution of a judicial proceeding by a party
does not waive the right of that party to demand arbitration
hereunder. Disputes may include, without limitation, tort claims, counterclaims,
claims brought as class actions, claims arising from Loan Documents executed in
the future, or claims concerning any aspect of the past, present or future
relationships arising out or connected with the Loan Documents. Arbitration
shall be conducted under and governed by the Commercial Financial Disputes
Arbitration Rules (the "Arbitration Rules") of the American Arbitration
Association and Title 9 of the U.S. Code. All arbitration hearings shall be
conducted in Charlotte, North Carolina. The expedited procedures set forth in
Rule 51, et seq. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be
conducted.
(b) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
ADMINISTRATIVE AGENT, EACH LENDER AND THE PLEDGOR HEREBY IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS PLEDGE AGREEMENT
OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER,
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (ii) all rights of
self help including peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
24. Entire Agreement; Term of Agreement. This Agreement,
together with the other Loan Documents, constitutes the entire
agreement with respect to the subject matter hereof and supersedes
all prior agreements with respect to the subject matter hereof.
This Agreement shall remain in effect from the Closing Date through
and including the date upon which all Obligations shall have been indefeasibly
and irrevocably paid and satisfied in full and the Commitments terminated.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Pledge Agreement to
be duly executed and delivered as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
ACKNOWLEDGEMENT AND CONSENT
Each Issuer of Pledged Stock referred to in the foregoing Pledge
Agreement hereby acknowledges receipt of a copy thereof and agrees to be bound
thereby and to comply with the terms thereof insofar as such terms are
applicable to it. Each Issuer agrees to notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in Paragraph 6(c) of
the Pledge Agreement. Each Issuer further agrees that the terms of Paragraph 10
of the Pledge Agreement shall apply to it with respect to all actions that may
be required of it under or pursuant to or arising out of Paragraph 10 of the
Pledge Agreement.
By:
Name:
Title:
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
ACKNOWLEDGEMENT AND CONSENT BY EACH PARTNERSHIP
The undersigned partners of the Partnership referred to in the
foregoing Pledge Agreement (a) hereby acknowledge receipt of a copy thereof, (b)
hereby acknowledge and consent to the pledge of the Pledgor's interest in the
Partnership pursuant thereto and upon exercise by the Administrative Agent of
its remedies thereunder and at the option of the Administrative Agent, the
substitution of the Administrative Agent as a partner in the Partnership, and
(c) agree that the Administrative Agent may freely assign its interest
thereunder without further consent of the partners.
__________ Partner of __________ Partner of
[364-Day Credit Agreement]
<PAGE>
SCHEDULE I
To Pledge
Agreement
DESCRIPTION OF PLEDGED STOCK
Subsidiaries
Percentage of
all Outstanding
issued
Issuer Class of Stock Certificate No. No. of Shares Capital Stock
DESCRIPTION OF PARTNERSHIP INTEREST
Partnerships
[364-Day Credit Agreement]
<PAGE>
PLEDGE AGREEMENT SUPPLEMENT
PLEDGE AGREEMENT SUPPLEMENT, dated as of _______________, _____ (the
"Supplement"), made by ______________________________, a corpora tion organized
under the laws of ______________________ (the "Pledgor"), in favor of FIRST
UNION NATIONAL BANK OF FLORIDA, a national banking association, as
Administrative Agent (in such capacity, the "Administrative Agent"), under the
Credit Agreements (as defined in the Pledge Agreement referred to below), for
the benefit of itself and the Lenders.
1. Reference is hereby made to that Pledge Agreement, dated as of April
__, 1997, made by the Pledgor in favor of the Administrative Agent (as amended,
restated, supplemented or otherwise modified as of the date hereof, the "Pledge
Agreement"). This Supplement supplements the Pledge Agreement, forms a part
thereof and is subject to the terms thereof. Terms defined in the Pledge
Agreement are used herein as therein defined.
[2. The Pledgor hereby confirms and reaffirms the security inter est in
the Collateral granted to the Administrative Agent, for the ratable benefit of
itself and the Lenders, under the Pledge Agreement, and, as additional
collateral security for the prompt and complete payment when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreements, the
Pledgor hereby delivers to the Administrative Agent, for the ratable benefit of
itself and the Lenders, all of the issued and outstanding shares of capital
stock of [INSERT NAME OF NEW SUBSIDIARY] (the "New Issuer") listed below,
together with all stock certificates, options, or rights of any nature
whatsoever which may be issued or granted by the New Issuer in respect of such
stock which the Pledge Agreement, as supplemented hereby, is in force (the
"Additional Pledged Stock"; as used in the Pledge Agreement as supplemented by
this Supplement, "Pledged Stock" shall be deemed to include the Additional
Pledged Stock) and hereby grants to the Administrative Agent, for the ratable
benefit of itself and the Lenders, a first priority security interest in the
Additional Pledged Stock and all Proceeds thereof.]
or
[2. The Pledgor hereby confirms and reaffirms the security interest in
the Collateral granted to the Administrative Agent, for the ratable benefit of
itself and the Lenders, under the Pledge Agreement, and, as additional
collateral security for the prompt and complete payment when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations and in order
to induce the Lenders to make their Loans under the Credit Agreements, the
Pledgor hereby grants to the Administrative Agent, for the ratable benefit of
itself and the Lenders, a first priority security interest in the entire
partnership interest of Pledgor (the "Additional Partnership Interest") in
[INSERT
NAME OF NEW SUBSIDIARY] (the "New Partnership") listed below and all Proceeds
thereof; as used in the Pledge Agreement as supplemented by this Supplement,
"Partnership Interests" shall be deemed to include the Additional Partnership
Interest.]
3. The Pledgor hereby represents and warrants that the repre sentations
and warranties contained in Paragraph 5 of the Pledge Agreement are true and
correct on the date of this Supplement with references therein to the ["Pledged
Stock" to include the Additional Pledged Stock] or ["Partnership Interests" to
include the Additional Partnership Interest], with references therein to the
["Issuer" to include the New Issuer] or ["Partnership" to include the New
Partnership], and with references to the "Pledge Agreement" to mean the Pledge
Agreement as supplemented by this Supplement.
4. The Pledgor shall deliver to the Administrative Agent the
Acknowledgement and Consent attached hereto duly executed by the [New Issuer] or
[New Partnership]. The Additional [Pledged Stock or Partner ship Interest]
pledged hereby is as follows which [Pledged Stock or Partnership Interest] shall
be deemed part of Schedule I thereto:
DESCRIPTION OF PLEDGED STOCK
Percentage of
all Outstanding
issued
Issuer Class of Stock Certificate No. No. of Shares Capital Stock
DESCRIPTION OF PARTNERSHIP INTEREST
Partnership Partnership Interest
New Partnership
5. The Pledgor hereby agrees to deliver to the Administrative Agent
such certificates and other documents and take such other action as shall be
reasonably requested by the Administrative Agent in order to effectuate the
terms hereof and the Pledge Agreement.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Supplement to be duly
executed under seal and delivered as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
ACKNOWLEDGEMENT AND CONSENT OF NEW ISSUER
The undersigned hereby acknowledges receipt of a copy of the foregoing
Supplement and the Pledge Agreement referred to therein (the "Pledge
Agreement"). The undersigned agrees for the benefit of the Administrative Agent
and the Lenders as follows:
1. The undersigned will be bound by the terms of the Pledge Agree ment
and will comply with such terms insofar as such terms are applicable to the
undersigned.
2. The undersigned will notify the Administrative Agent promptly
in writing of the occurrence of any of the events described in Paragraph
6(c) of the Pledge Agreement.
3. The Issuer further agrees that the terms of Paragraph 10 of the
Pledge Agreement shall apply to it with respect to all actions that may be
required of it under or pursuant to or arising out of Paragraph 10 of the Pledge
Agreement.
[NAME OF NEW ISSUER]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
ACKNOWLEDGEMENT AND CONSENT OF PARTNERS
OF NEW PARTNERSHIP
The undersigned partners of _________________________ (the "New
Partnership") (a) hereby acknowledge receipt of a copy of the foregoing
Supplement and the Pledge Agreement referred to therein (the "Pledge
Agreement"), (b) hereby acknowledge and consent to the pledge of the Pledgor's
interest in the New Partnership pursuant thereto, and (c) agree that the
Administrative Agent may freely assign its interest thereunder without further
consent of the partners.
__________ Partner of __________ Partner of
[364-Day Credit Agreement]
<PAGE>
EXHIBIT A
TO
PLEDGE AGREEMENT
Authorization Statement
April __, 1997
To: [Partnership]
You are hereby instructed to register the pledge of the
following uncertificated security as follows:
[Describe Partnership Interests]
Pledgor Pledgee
[Pledgor name and address] First Union National Bank of
Florida, as Administrative
Agent
100 South Ashley Drive,
Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Very truly yours,
[PLEDGOR]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT B
TO
PLEDGE AGREEMENT
Transaction Statement
April __, 1997
To: [Pledgor name and address]
and
First Union National Bank of Florida,
as Administrative Agent
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
This statement is to advise you that a pledge of the following
uncertificated securities has been registered in the name of First Union
National Bank of Florida, as Administrative Agent:
1. Uncertificated Security: All limited partnership and other
ownership interests of [Pledgor] in [Partnership] (the
"Pledged Interest").
2. Registered Owner:
[Pledgor]
Taxpayer Identification Number: __________
3. Registered Pledgee:
First Union National Bank of Florida,
as Administrative Agent
100 South Ashley Drive, Suite 940
Tampa, Florida 33602
Attention: Gilbert Reese
Taxpayer Identification Number: __________
4. There are no liens, restrictions or other encumbrances on the
Pledged Interest, other than liens in favor of First Union
National Bank of Florida, as Administrative Agent, and no
adverse claims to which the Pledged Interest is or may be
subject known to the undersigned.
5. The pledge was registered on April __, 1997.
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEES
AS OF THE TIME OF ITS ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A
NEGOTIABLE INSTRUMENT NOR A SECURITY.
Very truly yours,
[SEAL] [PARTNERSHIP]
General Partner
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
EXHIBIT I
to
364-Day Credit Agreement dated as of April ___, 1997
by and among
BREED Technologies, Inc.,
certain of its Subsidiaries party thereto,
BREED Technologies, Inc.,
as Guarantor,
the Lenders party thereto,
First Union National Bank of Florida,
as Administrative Agent,
and
The Chase Manhattan Bank,
as Documentation Agent
FORM OF SUBSIDIARY GUARANTY AGREEMENT
THIS UNCONDITIONAL GUARANTY AGREEMENT (this "Guaranty"), dated as of
April ___, 1997, made by each of the Subsidiary Guarantors listed on the
signature pages hereto (the "Subsidiary Guarantors"), in favor of FIRST UNION
NATIONAL BANK OF FLORIDA, a national banking association, as Administrative
Agent (the "Administrative Agent"), for the ratable benefit of itself and the
financial institutions (the "Lenders") that are, or may from time to time
become, parties to the Credit Agreements (as hereinafter defined).
STATEMENT OF PURPOSE
Pursuant to the terms of the Five-Year Credit Agreement of even date by
and among BREED Technologies, Inc. ("BREED") and certain of its subsidiaries, as
Borrowers, BREED, as Guarantor, the Lenders party thereto, the Administrative
Agent and The Chase Manhattan Bank, as Documentation Agent (as amended,
restated, supplemented or otherwise modified from time to time, the "Five-Year
Credit Agreement") and the 364-Day Credit Agreement of even date by and among
BREED and certain of its subsidiaries, as Borrowers, BREED, as Guarantor, the
Lenders party thereto, the Administrative Agent and The Chase Manhattan Bank, as
Documentation Agent (as amended, restated, supplemented or otherwise modified
from time to time, the "364-Day Credit Agreement" and together with the
Five-Year Credit Agreement, the "Credit Agreements"), the Lenders extended
certain credit facilities to the Borrowers as more particularly described
therein. The Borrowers and the Subsidiary Guarantors comprise one integrated
financial enterprise, and all Loans to the Borrowers will inure, directly or
indirectly, to the benefit of each of the Subsidiary Guarantors.
In connection with the transactions contemplated by the Credit
Agreements, the Lenders have requested, and each of the Subsidiary Guarantors
has agreed to execute and deliver, this Guaranty.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein, and to induce the Lenders to continue to make
available Loans pursuant to the Credit Agreements, it is agreed as follows:
SECTION 1. Definitions. Capitalized terms used herein (including the
preamble hereof) shall have the meanings assigned to them in the Credit
Agreements, unless the context otherwise requires or unless otherwise defined
herein. References in the Credit Agreements to a "Subsidiary Guaranty Agreement"
or herein to this "Guaranty" shall include and mean this Guaranty, including all
amendments and supplements hereto now or hereafter in effect.
SECTION 2. Guaranty of Obligations of the Borrowers. Each Subsidiary
Guarantor hereby, jointly and severally with each other Subsidiary
Guarantor, unconditionally guarantees to the Administrative Agent for the
ratable benefit of itself, the Lenders, and their respective successors,
endorsees, transferees and assigns, the prompt payment and performance of
the Dollar Amount of all Obligations of the Borrowers under each of the
Credit Agreements (including, without limitation, all obligations of BREED
as a Guarantor thereunder), whether primary or secondary (whether by way of
endorsement or otherwise), whether now existing or hereafter arising,
whether or not from time to time reduced or extinguished (except by payment
thereof) or hereafter increased or incurred, whether or not recovery may be
or hereafter become barred by the statute of limitations, whether
enforceable or unenforceable as against any Borrower, whether or not
discharged, stayed or otherwise affected by any bankruptcy, insolvency or
other similar law or proceeding, whether created directly with the
Administrative Agent or any Lender or acquired by the Administrative Agent
or any Lender through assignment, endorsement or otherwise, whether matured
or unmatured, whether joint or several, as and when the same become due and
payable (whether at maturity or earlier, by reason of acceleration,
mandatory repayment or otherwise), in accordance with the terms of any such
instruments evidencing any such obligations, including all renewals,
extensions or modifications thereof (all Obligations of the Borrowers to
the Administrative Agent or any Lender, including all of the foregoing,
being hereinafter collectively referred to as the "Guaranteed
Obligations"); provided, that notwithstanding anything to the contrary
contained herein, it is the intention of each Subsidiary Guarantor and the
Lenders that, in any proceeding involving the bankruptcy, reorganization,
arrangement, adjustment of debts, relief of debtors, dissolution or
insolvency or any similar proceeding with respect to any Subsidiary
Guarantor or its assets, the amount of such Subsidiary Guarantor's
obligations with respect to the Guaranteed Obligations shall be in, but not
in excess of, the maximum amount thereof not subject to avoidance or
recovery by operation of applicable law governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other
similar laws (including, without limitation, 11 U.S.C. ss.547, ss.548,
ss.550 and other "avoidance" provisions of Title 11 of the United States
Code), applicable in any such proceeding to such Subsidiary Guarantor and
this Guaranty (collectively, "Applicable Insolvency Laws"). To that end,
but only in the event and to the extent that such Subsidiary Guarantor's
obligations with respect to the Guaranteed Obligations or any payment made
pursuant to the Guaranteed Obligations would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery in any such
proceeding under Applicable Insolvency Laws, the amount of such Subsidiary
Guarantor's obligations with respect to the Guaranteed Obligations shall be
limited to the largest amount which, after giving effect thereto, would
not, under Applicable Insolvency Laws, render such Subsidiary Guarantor's
obligations with respect to such Guaranteed Obligations unenforceable or
avoidable or otherwise subject to recovery under Applicable Insolvency
Laws. To the extent any payment actually made pursuant to the Guaranteed
Obligations exceeds the limitation of the foregoing proviso and is
otherwise subject to avoidance and recovery in any such proceeding under
Applicable Insolvency Laws, the amount subject to avoidance shall in all
events be limited to the amount by which such actual payment exceeds such
limitation and the Guaranteed Obligations as limited by the foregoing
proviso shall in all events remain in full force and effect and be fully
enforceable against such Subsidiary Guarantor. The foregoing proviso is
intended solely to preserve the rights of the Administrative Agent
hereunder against such Subsidiary Guarantor in such proceeding to the
maximum extent permitted by Applicable Insolvency Laws and neither such
Subsidiary Guarantor, any Borrower, any other Subsidiary Guarantor nor any
other Person shall have any right or claim under such proviso that would
not otherwise be available under Applicable Insolvency Laws in such
proceeding.
SECTION 3. Nature of Guaranty. Each Subsidiary Guarantor agrees that
this Guaranty is a continuing, unconditional guaranty of payment and performance
and not of collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected by:
(a) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, either Credit Agreement or any
other Loan Document or any other agreement, document or instrument to
which any Borrower or any Subsidiary thereof is or may become a party;
(b) any structural change in, restructuring of or other
similar change of any Borrower or any of their Subsidiaries
(including, without limitation, each Subsidiary Guarantor);
(c) the absence of any action to enforce this Guaranty, either
Credit Agreement or any other Loan Document or the waiver or consent by
the Administrative Agent or any Lender with respect to any of the
provisions of this Guaranty, either Credit Agreement or any other Loan
Document;
(d) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the
Guaranteed Obligations or any action, or the absence of any action, by
the Administrative Agent or any Lender in respect of such security or
guaranty (including, without limitation, the release of any such
security or guaranty); or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by each Subsidiary Guarantor that, subject to the proviso in
Section 2 hereof, its obligations under this Guaranty shall not be discharged
until the final and indefeasible payment and perfor mance, in full, of the
Guaranteed Obligations and the termination of the Commitments. To the extent
permitted by law, each Subsidiary Guarantor expressly waives all rights it may
now or in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any Lender to proceed in
respect of the Guaranteed Obligations against any Borrower or any other party or
against any security for or other guaranty of the payment and perfor mance of
the Guaranteed Obligations before proceeding against, or as a condition to
proceeding against, such Subsidiary Guarantor. To the extent permitted by law,
each Subsidiary Guarantor further expressly waives and agrees not to assert or
take advantage of any defense based upon the failure of the Administrative Agent
or any Lender to commence an action in respect of the Guaranteed Obligations
against any Borrower, such Subsidiary Guarantor, any other guarantor or any
other party or any security for the payment and performance of the Guaranteed
Obligations. Each Subsidiary Guarantor agrees that any notice or directive given
at any time to the Administrative Agent or any Lender which is inconsistent with
the waivers in the preceding two sentences shall be null and void and may be
ignored by the Administrative Agent or Lender, and, in addi tion, may not be
pleaded or introduced as evidence in any litigation relating to this Guaranty
for the reason that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless the Administrative Agent and the Required
Lenders have specifically agreed otherwise in writing. The foregoing waivers are
of the essence of the transaction contemplated by the Loan Documents and, but
for this Guaranty and such waivers, the Administrative Agent and Lenders would
decline to enter into the Credit Agreements.
SECTION 4. Demand by the Administrative Agent. In addition to the terms
set forth in Section 3, and in no manner imposing any limitation on such terms,
if all or any portion of the then outstanding Guaranteed Obligations under the
Credit Agreements are declared to be immediately due and payable, then the
Subsidiary Guarantors shall, upon demand in writing therefor by the
Administrative Agent to the Subsidiary Guarantors, pay the Dollar Amount of all
or such portion of the outstanding Guaranteed Obligations then declared due and
payable. Payment by the Subsidiary Guarantors shall be made to the
Administrative Agent, to be credited and applied upon the Guaranteed
Obligations, in immediately available Dollars to an account designated by the
Administrative Agent or at the address referenced herein for the giving of
notice to the Administrative Agent or at any other address that may be specified
in writing from time to time by the Administrative Agent.
SECTION 5. Waivers. In addition to the waivers contained in Section 3,
each Subsidiary Guarantor, to the extent permitted by law, waives and agrees
that it shall not at any time insist upon, plead or in any manner whatever claim
or take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by such Subsidiary Guarantor of its obligations under, or the
enforcement by the Administrative Agent or the Lenders of, this Guaranty. Each
Subsidiary Guarantor further hereby waives diligence, presentment, demand,
protest and notice of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty. Each Subsidiary
Guarantor represents, warrants and agrees that its obligations under this
Guaranty are not and shall not be subject to any counterclaims, offsets or
defenses of any kind against the Administrative Agent, the Lenders or the
Borrowers whether now existing or which may arise in the future.
SECTION 6. Benefits of Guaranty. The provisions of this Guaranty are
for the benefit of the Administrative Agent, the Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between the Borrowers, the Administrative Agent and the
Lenders, the obligations of the Borrowers under the Loan Documents. In the event
all or any part of the Guaran teed Obligations are transferred, endorsed or
assigned by the Administrative Agent or any Lender to any Person or Persons, any
reference to an "Administrative Agent", or "Lender" herein shall be deemed to
refer equally to such Person or Persons.
SECTION 7. Modification of Loan Documents etc. If the Administrative
Agent or the Lenders shall at any time or from time to time, with or without the
consent of, or notice to, the Subsidiary Guarantors:
(a) change or extend the manner, place or terms of payment
of, or renew or alter all or any portion of, the Guaranteed Obliga
tions;
(b) take any action under or in respect of the Loan Documents
in the exercise of any remedy, power or privilege contained therein or
available to it at law, in equity or otherwise, or waive or refrain
from exercising any such remedies, powers or privileges;
(c) amend or modify, in any manner whatsoever, the Loan Docu
ments;
(d) extend or waive the time for performance by any
Subsidiary Guarantor, any other guarantor, any Borrower or any other
Person of, or compliance with, any term, covenant or agreement on its
part to be performed or observed under a Loan Document (other than this
Guaranty), or waive such performance or compliance or consent to a
failure of, or departure from, such per formance or compliance;
(e) take and hold security or collateral for the payment of
the Guaranteed Obligations or sell, exchange, release, dispose of, or
otherwise deal with, any property pledged, mortgaged or conveyed, or in
which the Administrative Agent or the Lenders have been granted a Lien,
to secure any Debt of any Subsidiary Guarantor, any other guarantor or
any Borrower to the Administrative Agent or the Lenders;
(f) release anyone who may be liable in any manner for the
payment of any amounts owed by any Subsidiary Guarantor, any other
guarantor or any Borrower to the Administrative Agent or any
Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of
any Subsidiary Guarantor, any other guarantor or any Borrower are
subordinated to the claims of the Administrative Agent or any Lender;
or
(h) apply any sums by whomever paid or however realized to any
amounts owing by any Subsidiary Guarantor, any other guarantor or any
Borrower to the Administrative Agent or any Lender in such manner as
the Administrative Agent or any Lender shall determine in its
reasonable discretion;
then neither the Administrative Agent nor any Lender shall incur any liability
to any Subsidiary Guarantor as a result thereof, and no such action shall impair
or release the obligations of any Subsidiary Guarantor under this Guaranty.
SECTION 8. Reinstatement. Each Subsidiary Guarantor agrees that, if any
payment made by any Borrower or any other Person applied to the Obligations is
at any time annulled, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid or the
proceeds of any collateral are required to be refunded by the Administrative
Agent or any Lender to any Borrower, its estate, trustee, receiver or any other
party, including, without limitation, any Subsidiary Guarantor, under any
Applicable Law or equitable cause, then, to the extent of such payment or
repayment, each Subsidiary Guarantor's liability hereunder (and any Lien
securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made, and, if prior thereto, this Guaranty
shall have been canceled or surrendered (and if any Lien or collateral securing
such Subsidiary Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender),
this Guaranty (and such Lien) shall be reinstated in full force and effect, and
such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of such Subsidiary Guarantor in
respect of the amount of such payment (or any Lien securing such obligation).
SECTION 9. Representations and Warranties. To induce the Lenders
to make any Loans, each Subsidiary Guarantor hereby represents and
warrants that:
(a) such Subsidiary Guarantor has the corporate right, power
and authority to execute, deliver and perform this Guaranty and has
taken all necessary corporate action to authorize its execution,
delivery and performance of, this Guaranty;
(b) this Guaranty constitutes the legal, valid and binding
obligation of such Subsidiary Guarantor enforceable in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by the availability of
equitable remedies;
(c) the execution, delivery and performance of this Guaranty
will not violate any provision of any Applicable Law or material
contractual obligation of such Subsidiary Guarantor and will not result
in the creation or imposition of any Lien upon or with respect to any
property or revenues of such Subsidiary Guarantor;
(d) no consent or authorization of, filing with, or other act
by or in respect of, any arbitrator or Governmental Authority and no
consent of any other Person (including, without limitation, any
stockholder or creditor of such Subsidiary Guarantor), is required in
connection with the execution, delivery, performance, validity or
enforceability of this Guaranty;
(e) no actions, suits or proceedings before any arbitrator or
Governmental Authority are pending or, to the knowledge of such
Subsidiary Guarantor, threatened by or against such Subsidiary
Guarantor or against any of its properties with respect to this
Guaranty or any of the transactions contemplated hereby;
(f) such Subsidiary Guarantor has such title to the real
property owned by it and a valid leasehold interest in the real
property leased by it, and has good and marketable title to all of its
personal property sufficient to carry on its business free of any and
all Liens of any type whatsoever, except those permitted by Section 9.3
of each Credit Agreement; and
(g) as of the Closing Date, such Subsidiary Guarantor (a) has
capital sufficient to carry on its business and transactions and all
business and transactions in which it engages and is able to pay its
debts as they mature, (b) owns property having a value, both at fair
valuation and at present fair saleable value, greater than the amount
required to pay its probable liabilities (including contingencies) and
(c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
SECTION 10. Remedies.
(a) Upon the occurrence of any Event of Default, with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, enforce against the Subsidiary
Guarantors their respective obligations and liabilities hereunder and exercise
such other rights and remedies as may be available to the Administrative Agent
hereunder, under the Loan Documents or otherwise.
(b) No right or remedy herein conferred upon the Administrative Agent
is intended to be exclusive of any other right or remedy contained herein or in
any other Loan Document or otherwise, and every such right or remedy contained
herein and therein or now or hereafter existing at law, or in equity, or by
statute, or otherwise shall be cumulative. The Required Lenders may instruct the
Administrative Agent to pursue, or refrain from pursuing, any remedy available
to the Administrative Agent at such times and in such order as the Required
Lenders shall determine, and the Required Lenders' election as to such remedies
shall not impair any remedies against any Subsidiary Guarantor not then
exercised. In addition, any election of remedies which results in the denial or
impairment of the right of the Administrative Agent to seek a deficiency
judgment against any Borrower shall not impair any Subsidiary Guarantor's
obligation to pay the full amount of the Guaranteed Obligations.
SECTION 11. No Subrogation. Notwithstanding any payment or payments by
any of the Subsidiary Guarantors hereunder, or any set-off or application
of funds of any of the Subsidiary Guarantors by the Administrative Agent or
any Lender, or the receipt of any amounts by the Administrative Agent or
any Lender with respect to any of the Guaranteed Obligations, none of the
Subsidiary Guarantors shall be entitled to be subrogated to any of the
rights of the Administrative Agent or any Lender against any Borrower or
any of the other Subsidiary Guarantors or against any collateral security
held by the Administrative Agent or any Lender for the payment of the
Guaranteed Obligations nor shall any of the Subsidiary Guarantors seek any
reimbursement from any Borrower or any of the other Subsidiary Guarantors
in respect of payments made by such Subsidiary Guarantor in connection with
the Guaranteed Obligations, until all amounts owing to the Administrative
Agent and the Lenders onaccount of the Guaranteed Obligations are paid in
full and the Commitments are terminated. If any amount shall be paid to any
Subsidiary Guarantor on account of such subrogation rights at any time when
all of the Guaranteed Obligations shall not have been paid in full, such
amount shall be held by such Subsidiary Guarantor in trust for the
Administrative Agent, segregated from other funds of such Subsidiary
Guarantor, and shall, forthwith upon receipt by such Subsidiary Guarantor,
be turned over to the Administrative Agent in the exact form received by
such Subsidiary Guarantor (duly endorsed by such Subsidiary Guarantor to
the Administrative Agent, if required) to be applied against the Guaranteed
Obligations, whether matured or unmatured, in such order as set forth in
the Credit Agreement.
SECTION 12. Miscellaneous.
(a) Entire Agreement; Amendments. This Guaranty, together with the
other Loan Documents, constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements with
respect to the subject matter hereof and may not be amended or supplemented
except by a writing signed by each Subsidiary Guarantor and the Administrative
Agent, consented to by such Lenders as required by Section 13.11 of the Credit
Agreements.
(b) Headings. Titles and captions of sections and subsections in
this Guaranty are for convenience of reference only, and neither limit
or amplify the provisions of this Guaranty.
(c) Severability. In the event that any one or more of the provisions
contained in this Guaranty shall be determined to be invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision or provisions in every other respect and
the remaining provisions of this Guaranty shall not be in any way impaired.
(d) Notices. All notices and communications hereunder shall be
given in accordance with Section 13.1 of the Credit Agreements.
(e) Binding Effect. This Guaranty shall bind each Subsidiary Guarantor
and shall inure to the benefit of the Administrative Agent, the Lenders and
their respective successors and assigns. No Subsidiary Guarantor may assign this
Guaranty or delegate any of its duties hereunder, other than in connection with
the merger of such Subsidiary Guarantor into such other Person as permitted by
Section 9.5 of the Credit Agreements.
(f) Non-Waiver. The failure of the Administrative Agent or any Lender
to enforce any right or remedy hereunder, or promptly to enforce any such right
or remedy, shall not constitute a waiver thereof, nor give rise to any estoppel
against the Administrative Agent or any Lender, nor excuse any Subsidiary
Guarantor from its obligations hereun der. Any waiver of any such right or
remedy by the Lenders must be in writing and signed by the Required Lenders.
(g) Termination. This Guaranty shall terminate and be of no further
force or effect on the date when the Guaranteed Obligations have been
indefeasibly paid in full and the Commitments terminated.
(h) Governing Law. This Guaranty shall be governed by and
construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
(i) Consent to Jurisdiction. Each Subsidiary Guarantor hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this Guaranty,
any rights or obligations hereunder, or the performance of such rights and
obligations. Each Subsidiary Guarantor hereby irrevocably consents to the
service of a summons and complaint and other process in any action, claim or
proceeding brought by the Administrative Agent or any Lender in connection with
this Guaranty, any rights or obligations hereunder, or the performance of such
rights and obligations, on behalf of itself or its property, in the manner
referenced in Section 12(d). Nothing in this Section 12(i) shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against any
Subsidiary Guarantor or its properties in the courts of any other jurisdictions.
(j) Binding Arbitration; Waiver of Jury Trial.
(i) Binding Arbitration. Upon demand of any party, whether
made before or after institution of any judicial proceeding, any
dispute, claim or controversy arising out of, connected with or
relating to this Guaranty or any other Loan Documents ("Disputes"),
between or among parties to this Guaranty or any other Loan Document
shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the
right of that party to demand arbitration hereunder. Disputes may
include, without limitation, tort claims, counterclaims, claims brought
as class actions, claims arising from Loan Documents executed in the
future, or claims concerning any aspect of the past, present or future
relationships arising out or connected with the Loan Documents.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the
American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina.
The expedited procedures set forth in Rule 51, et seq. of the
Arbitration Rules shall be applicable to claims of less than
$1,000,000. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected
shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state
where the hearing will be conducted.
(ii) Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE Administrative Agent, EACH LENDER AND EACH SUBSIDIARY GUARANTOR
HEREBY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH
RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY
DISPUTE IN CONNECTION WITH THIS GUARANTY OR THE OTHER LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE
OF SUCH RIGHTS AND OBLIGATIONS.
(iii) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and the
Loan Documents preserve, without diminution, certain remedies that such
Persons may employ or exercise freely, either alone, in conjunction
with or during a Dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by
self help to exercise or prosecute the following remedies: (A) all
rights to foreclose against any real or personal property or other
security by exercising a power of sale granted in the Loan Documents or
under applicable law or by judicial foreclosure and sale, (B) all
rights of self help including peaceful occupation of property and
collection of rents, set off, and peaceful possession of property, (C)
obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver
and in filing an involuntary bankruptcy proceeding, and (D) when
applicable, a judgment by confession of judgment. Preservation of these
remedies does not limit the power of an arbitrator to grant similar
remedies that may be requested by a party in a Dispute.
(k) Limitation of Liability. Neither the Administrative Agent, the
Lenders nor any Affiliate thereof shall have any liability with respect to, and
each Subsidiary Guarantor hereby waives, releases and agrees not to sue upon,
any claim for any special, indirect, punitive, exemplary or consequential
damages suffered by such Subsidiary Guarantor in connection with, arising out
of, or in any way related to this Guaranty and the other Loan Documents, the
transactions contemplated herein or therein, or any act, omission or event
occurring in connection herewith or therewith.
(l) Expenses. The Subsidiary Guarantors agree that they will reimburse
the Administrative Agent and each Lender for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and expenses) incurred by the
Administrative Agent or such Lender in connection with the enforcement of the
obligations of the Subsidiary Guarantors under this Guaranty and any other Loan
Documents and all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses) incurred by the Administrative Agent in connection
with the amendment or modification of this Guaranty.
(m) Indemnities. Each Subsidiary Guarantor agrees to hold the
Administrative Agent and the Lenders harmless from and against all losses
suffered by the Administrative Agent and the Lenders in connection with (i) the
exercise by the Administrative Agent or the Lenders of any right or remedy
granted to them under this Guaranty, (ii) any claim, and the prosecution or
defense thereof, arising out of or in any way connected with this Guaranty, and
(iii) the collection or enforcement of the Obligations, the Guaranteed
Obligations or any of them; provided, that such Subsidiary Guarantor shall not
be obligated to reimburse the Administrative Agent or the Lenders for costs and
expenses, or indemnify the Administrative Agent or the Lenders for any loss,
resulting from the gross negligence or willful misconduct of the Administrative
Agent or such Lenders. Notwithstanding any termination of this Guaranty, the
indemnities to which the Administrative Agent and Lenders are entitled under
this Guaranty shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has executed and
delivered this Guaranty under seal as of the date first above written.
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
[CORPORATE SEAL]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT
UNCONDITIONAL GUARANTY AGREEMENT SUPPLEMENT, dated as of __________,
(the "Supplement"), made by [INSERT NAME OF NEW SUBSIDIARY], a
____________________ (the "New Subsidiary Guarantor"), in favor of FIRST UNION
NATIONAL BANK OF FLORIDA, as agent (in such capacity, the "Administrative
Agent") under the Credit Agreements (as defined in the Guaranty Agreement
referred to below) for the ratable benefit of itself and the Lenders.
1. Reference is hereby made to the Guaranty Agreement dated as of April
__, 1997, made by certain Subsidiaries of BREED Technologies, Inc. party thereto
(the "Subsidiary Guarantors"), as guarantors, in favor of the Administrative
Agent (as amended, restated, supplemented or otherwise modified as of the date
hereof, the "Guaranty Agreement"). This Supplement supplements the Guaranty
Agreement, forms a part thereof and is subject to the terms thereof. Capitalized
terms used and not defined herein shall have the meanings given thereto or
referenced in the Guaranty Agreement.
2. The New Subsidiary Guarantor hereby agrees to unconditionally
guarantee to the Administrative Agent for the ratable benefit of itself, the
Lenders and their respective successors, endorsees, transferees and assigns, the
prompt payment (whether at stated maturity, by acceleration or otherwise) and
performance of all Obligations of the Borrowers to the same extent and upon the
same terms and conditions as are contained in the Guaranty Agreement.
3. The New Subsidiary Guarantor hereby agrees that it is a party to the
Guaranty Agreement as if a signatory thereto on the Closing Date of the Credit
Agreement, and the New Subsidiary Guarantor shall comply with all of the terms,
covenants, conditions and agreements and hereby makes each representation and
warranty, in each case set forth therein. The New Subsidiary Guarantor agrees
that the "Guaranty Agreement" or "Guaranty" as used therein or in any other Loan
Documents shall mean the Guaranty Agreement as supplemented hereby.
4. The New Subsidiary Guarantor hereby acknowledges it has
received a copy of the Guaranty Agreement and that it has read and
understands the terms thereof.
[364-Day Credit Agreement]
<PAGE>
IN WITNESS WHEREOF, the undersigned hereby causes this Supplement to be
executed and delivered as of the date first above written.
[CORPORATE SEAL] [INSERT NAME OF NEW SUBSIDIARY]
By:
Name:
Title:
[364-Day Credit Agreement]
<PAGE>
364-DAY CREDIT AGREEMENT
dated as of April __, 1997,
by and among
BREED TECHNOLOGIES, INC.,
and certain Subsidiaries thereof designated herein,
as Borrowers,
BREED TECHNOLOGIES, INC.,
as Guarantor,
the Lenders referred to herein,
FIRST UNION NATIONAL BANK OF FLORIDA,
as Administrative Agent,
and
THE CHASE MANHATTAN BANK,
as Documentation Agent,
evidencing a
364-DAY, $250,000,000
CREDIT FACILITY
[364-Day Credit Agreement]
<PAGE>
ARTICLE I
DEFINITIONS.......................................................... 1
SECTION 1.1 Definitions........................................... 1
SECTION 1.2 General............................................... 18
SECTION 1.3 Other Definitions and Provisions...................... 19
ARTICLE II
CREDIT FACILITY.......................................................19
SECTION 2.1 Revolving Credit Loans................................ 19
SECTION 2.2 Finnish Mark Loans.................................... 20
SECTION 2.3 Swingline Loans....................................... 22
SECTION 2.4 Procedure for Advances of Revolving Credit
Loans, Finnish Mark Loans and Swingline Loans......... 23
SECTION 2.5 Repayment of Revolving Credit Loans, Finnish
Mark Loans and Swingline Loans........................ 26
SECTION 2.6 Notes................................................. 28
SECTION 2.7 Permanent Reduction of the Aggregate Commitment....... 28
SECTION 2.8 Termination of Credit Facility........................ 29
SECTION 2.9 Use of Proceeds....................................... 31
SECTION 2.10 Nature of Obligations................................. 31
SECTION 2.11 Security.............................................. 31
ARTICLE III
GENERAL LOAN PROVISIONS.............................................. 31
SECTION 3.1 Interest.............................................. 31
SECTION 3.2 Notice and Manner of Conversion or
Continuation of Revolving Credit Loans and
Finnish Mark Loans.................................... 34
SECTION 3.3 Fees.................................................. 35
SECTION 3.4 Manner of Payment..................................... 37
SECTION 3.5 Crediting of Payments and Proceeds.................... 38
SECTION 3.6 Adjustments........................................... 38
SECTION 3.7 Nature of Obligations of Lenders Regarding
Loans; Assumption by the Administrative Agent......... 39
SECTION 3.8 Mandatory Redenomination of Alternative
Currency Loans........................................ 41
SECTION 3.9 Regulatory Limitation................................. 41
SECTION 3.10 Changed Circumstances................................. 42
SECTION 3.11 Indemnity............................................. 44
SECTION 3.12 Capital Requirements.................................. 45
SECTION 3.13 Taxes................................................. 45
SECTION 3.14 Replacement Lenders................................... 47
ARTICLE IV
CLOSING; CONDITIONS OF CLOSING AND BORROWING......................... 48
SECTION 4.1 Closing............................................... 48
SECTION 4.2 Conditions to Closing and Initial Loans............... 48
SECTION 4.3 Conditions to All Loans............................... 53
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWERS...................... 54
SECTION 5.1 Representations and Warranties........................ 54
SECTION 5.2 Survival of Representations and Warranties,Etc.........61
ARTICLE VI
FINANCIAL INFORMATION AND NOTICES.................................... 61
SECTION 6.1 Financial Statements and Projections.................. 61
SECTION 6.2 Officer's Compliance Certificate...................... 63
SECTION 6.3 Accountants' Certificate.............................. 63
SECTION 6.4 Other Reports......................................... 63
SECTION 6.5 Notice of Litigation and Other Matters................ 64
SECTION 6.6 Accuracy of Information............................... 65
ARTICLE VII
AFFIRMATIVE COVENANTS................................................ 65
SECTION 7.1 Preservation of Corporate Existence and
Related Matters....................................... 65
SECTION 7.2 Maintenance of Property............................... 65
SECTION 7.3 Insurance............................................. 66
SECTION 7.4 Accounting Methods and Financial Records.............. 66
SECTION 7.5 Payment and Performance of Obligations................ 66
SECTION 7.6 Compliance With Laws and Approvals.................... 66
SECTION 7.7 Environmental Laws.................................... 66
SECTION 7.8 Compliance with ERISA................................. 67
SECTION 7.9 Compliance With Agreements............................ 67
SECTION 7.10 Conduct of Business................................... 67
SECTION 7.11 Visits and Inspections................................ 67
SECTION 7.12. Additional Subsidiary Guarantors and
Subsidiary Pledgors................................... 68
SECTION 7.13 Intercompany Notes.................................... 69
SECTION 7.14 Further Assurances.................................... 69
ARTICLE VIII
FINANCIAL COVENANTS.................................................. 70
SECTION 8.1. Leverage Ratio......................................... 70
SECTION 8.2 Minimum Net Worth...................................... 70
SECTION 8.3. Interest Coverage Ratio................................ 70
ARTICLE IX
NEGATIVE COVENANTS................................................... 71
SECTION 9.1 Limitations on Debt................................... 71
SECTION 9.2 Limitations on Contingent Obligations................. 72
SECTION 9.3 Limitations on Liens.................................. 72
SECTION 9.4 Limitations on Loans, Advances, Investments
and Acquisitions...................................... 73
SECTION 9.5 Limitations on Mergers and Liquidation................ 75
SECTION 9.6 Limitations on Sale of Assets......................... 76
SECTION 9.7 Limitations on Dividends and Distributions............ 76
SECTION 9.8 Transactions with Affiliates.......................... 77
SECTION 9.9 Certain Accounting Changes............................ 77
SECTION 9.10 Restrictive Agreements................................ 77
SECTION 9.11 Payments under Convertible Preferred Stock............ 78
ARTICLE X
UNCONDITIONAL GUARANTY............................................... 78
SECTION 10.1 Guaranty of Obligations............................... 78
SECTION 10.2 Nature of Guaranty.................................... 78
SECTION 10.3 Demand by the Administrative Agent.................... 79
SECTION 10.4 Waivers............................................... 80
SECTION 10.5 Modification of Loan Documents etc.................... 80
SECTION 10.6 Reinstatement......................................... 81
SECTION 10.7 No Subrogation........................................ 81
ARTICLE XI
DEFAULT AND REMEDIES................................................. 82
SECTION 11.1 Events of Default..................................... 82
SECTION 11.2 Remedies.............................................. 85
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver;
Etc................................................... 85
SECTION 11.4 Judgment Currency..................................... 85
ARTICLE XII
THE ADMINISTRATIVE AGENT............................................. 86
SECTION 12.1 Appointment.......................................... 86
SECTION 12.2 Delegation of Duties................................. 86
SECTION 12.3 Exculpatory Provisions............................... 87
SECTION 12.4 Reliance by the Administrative Agent................. 87
SECTION 12.5 Notice of Default.................................... 88
SECTION 12.6 Non-Reliance on the Administrative Agent
and Other Lenders.................................... 88
SECTION 12.7 Indemnification...................................... 89
SECTION 12.8 The Administrative Agent in Its Individual
Capacity............................................. 89
SECTION 12.9 Resignation of the Administrative Agent;
Successor Administrative Agent....................... 89
SECTION 12.10 Documentation Agent.................................. 90
ARTICLE XIII
MISCELLANEOUS........................................................ 90
SECTION 13.1 Notices.............................................. 90
SECTION 13.2 Expenses; Indemnity.................................. 92
SECTION 13.3 Set-off.............................................. 92
SECTION 13.4 Governing Law........................................ 93
SECTION 13.5 Consent to Jurisdiction.............................. 93
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial............ 93
SECTION 13.7 Reversal of Payments................................. 94
SECTION 13.8 Injunctive Relief; Punitive Damages.................. 95
SECTION 13.9 Accounting Matters................................... 95
SECTION 13.10 Successors and Assigns; Participations............... 95
SECTION 13.11 Amendments, Waivers and Consents..................... 99
SECTION 13.12 Performance of Duties................................100
SECTION 13.13 All Powers Coupled with Interest.....................100
SECTION 13.14 Survival of Indemnities..............................100
SECTION 13.15 Releases.............................................100
SECTION 13.16 Titles and Captions..................................100
SECTION 13.17 Severability of Provisions...........................100
SECTION 13.18 Counterparts.........................................100
SECTION 13.19 Term of Agreement....................................101
[364-Day Credit Agreement]
i
<PAGE>
Exhibits and Schedules
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Finnish Mark Note
Exhibit A-3 - Form of Swingline Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Prepayment
Exhibit D - Form of Notice of Conversion/Continuation
Exhibit E - Form of Officer's Compliance Certificate
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Notice of Account Designation
Exhibit H - Form of Pledge Agreement
Exhibit I - Form of Subsidiary Guaranty Agreement
Schedules
Schedule 1.1(a) - A/C Borrowers
Schedule 1.1(b) - Lenders and Commitments
Schedule 1.1(c) - Finnish Mark Lenders and Finnish Mark
Commitments
Schedule 1.1(d) - Pledge Agreement and Issuers
Schedule 1.1(e) - Subsidiary Guarantors
Schedule 2.1 - Applicable Alternative Currencies
Schedule 4.2(a) - Foreign Jurisdiction Pledge Agreement Issuers
Schedule 4.2(b) - Foreign Jurisdiction Organizational Issues
Schedule 4.2(c) - Schedule of Insurance
Schedule 5.1(a) - Jurisdictions of Organization and
Qualification
Schedule 5.1(b) - Subsidiaries and Capitalization
Schedule 5.1(i) - ERISA Plans
Schedule 5.1(m) - Labor and Collective Bargaining
Agreements
Schedule 5.1(t) - Debt and Contingent Obligations
Schedule 5.1(u) - Litigation
Schedule 9.2 - Contingent Obligations
Schedule 9.3 - Existing Liens
Schedule 9.4 - Existing Loans, Advances and Investments
[364-Day Credit Agreement]
ii
FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT (this "First
Amendment") is made and entered into as of the 28th day of June, 1997 by and
among BREED TECHNOLOGIES, INC., a Delaware corporation, ("BREED"), and certain
Subsidiaries thereof designated on the signature pages hereto (collectively,
with BREED, the "Borrowers"), BREED, as guarantor (the "Guarantor") the lenders
who are or may become a party to the Credit Agreement referred to below (the
"Lenders"), FIRST UNION NATIONAL BANK (successor to First Union National Bank of
Florida), a national banking association, as Administrative Agent for the
Lenders ("First Union" or the "Administrative Agent"), and THE CHASE MANHATTAN
BANK, a national banking association, as Documentation Agent for the Lenders
(the "Documentation Agent").
Statement of Purpose
The Lenders have previously agreed to extend certain credit facilities
to the Borrowers pursuant to the 364-Day Credit Agreement dated as of April 30,
1997 by and among the Borrowers, the Guarantor, the Lenders, the Administrative
Agent and the Documentation Agent (as further amended, restated or otherwise
modified, the "Credit Agreement").
The Borrowers and the Guarantor have requested certain modifications
and amendments to the Credit Agreement and the Lenders have agreed to such
modifications and amendments as set forth more fully below, subject to the terms
and conditions contained herein.
NOW THEREFORE, for and in consideration of the premises, the mutual
agreements and covenants hereinafter set forth and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. Capitalized Terms. All capitalized undefined
terms used in this First Amendment shall have the meanings assigned
thereto in the Credit Agreement.
1
<PAGE>
SECTION 2. Modification of Credit Agreement. The Credit
Agreement is hereby modified as follows:
(a) Section 2.3 (a) shall be deleted in its entirety and the
following Section 2.3(a) shall be substituted in lieu thereof:
"(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to BREED from
time to time from the Closing Date through the Swingline Termination Date;
provided, that (i) all Swingline Loans shall be denominated in Dollars and (ii)
the aggregate principal amount of all outstanding Swingline Loans (after giving
effect to any amount requested) shall not exceed the lesser of (A) the Aggregate
Commitment less the sum of the Dollar Amount of the aggregate principal amount
of all outstanding Revolving Credit Loans less the sum of the Dollar Amount of
the aggregate principal amount of all outstanding Finnish Mark Loans and (B) the
Swingline Commitment less the sum of the Dollar Amount of the aggregate
principal amount of all outstanding Swingline Loans under the Five-Year Credit
Agreement."
(b) Section 2.7(b) shall be deleted in its entirety and the
following Section 2.7(b) shall be substituted in lieu thereof:
"(b) Mandatory Permanent Reductions.
(i) Incurrence of Debt. The Total Aggregate Commitment shall
be permanently reduced by an amount equal to one hundred percent (100%)
of the amount of any Debt incurred pursuant to Section 9.1(j), with
such reduction to be applied first to the Aggregate Commitment under
this Agreement and then to the Aggregate Commitment under the Five-Year
Credit Agreement. Such reduction shall be made promptly upon the
incurrence of such Debt.
(ii) Sale of Assets. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to seventy-five percent (75%) of
the aggregate Net Proceeds from any sale or disposition of assets
permitted pursuant to Section 9.6(e), with such reduction to be applied
first to the Aggregate Commitment under this Agreement and then to the
Aggregate Commitment under the Five-Year Credit Agreement; provided
that, so long as the Leverage Ratio is less than or equal to
2
<PAGE>
2.50 to 1.00 as of (A) the date of such Asset Sale (as evidenced by a
certificate of the chief financial officer or treasurer of BREED in
form and substance satisfactory to the Administrative Agent delivered
immediately prior to the consummation of such Asset Sale) and (B) the
date of the most recent Officer's Compliance Certificate, the Total
Aggregate Commitment shall be permanently reduced by an amount equal to
fifty percent (50%) of such aggregate Net Proceeds. Such reduction
shall be made promptly upon the consummation of any such sale or
disposition.
(iii)Equity Issuance. The Total Aggregate Commitment shall be
permanently reduced by an amount equal to fifty percent (50%) of the
aggregate net proceeds from any Equity Issuance permitted under this
Agreement, with such reduction to be applied first to the Aggregate
Commitment under the this Agreement and then to the Aggregate
Commitment under the Five-Year Credit Agreement; provided that, so long
as the Leverage Ratio is less than or equal to 2.50 to 1.00 as of (A)
the date of such Equity Issuance (as evidenced by a certificate of the
chief financial officer or treasurer of BREED in form and substance
satisfactory to the Administrative Agent) and (B) the date of the most
recent Officer's Compliance Certificate, no mandatory reduction will be
required on account of any such Equity Issuance. Such reduction shall
be made promptly upon the consummation of any Equity Issuance."
(c) Section 3.1(c)(ii) and the remainder of Section 3.1(c) appearing
thereafter shall be deleted in its entirety and the following
provisions shall be substituted in lieu thereof:
"(ii) for the period commencing on the fifth (5th) Business
Day following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio as of the end of the
fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate in accordance with the chart below:
Applicable Margin Per Annum
3
<PAGE>
Leverage Ratio Base Rate + LIBOR Rate +
Greater than 4.00 0.00% 1.500%
Less than or equal
to 4.00 and greater
than 3.50 0.00% 1.250%
Less than or equal
to 3.50 and greater
than 3.25 0.00% 1.050%
Less than or equal
to 3.25 and greater
than 3.00 0.00% 0.800%
Less than or equal
to 3.00 and greater
than 2.50 0.00% 0.600%
less than or equal
to 2.50 but greater
than 2.00 0.00% 0.475%
less than or equal
to 2.00 0.00% 0.375%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment
Date") after receipt by the Administrative Agent of the quarterly
financial statements for BREED and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Leverage Ratio as of the most recent fiscal quarter end. Subject to
Section 3.1(d), in the event the Borrowers fail to deliver such
financial statements and certificate within the time required by
Section 6.2 hereof, the Applicable Margin shall be the highest
Applicable Margin set forth above until the delivery of such financial
statements and certificate.
Notwithstanding anything to the contrary contained herein, in
the event the Interest Coverage Ratio (as determined pursuant to
Section 8.3 of this Agreement) is less
4
<PAGE>
than 3.00 to 1.00, the Applicable Margin set forth in this Section 3.1
shall be deemed to be 1.000% with resect to LIBOR Rate Loans (unless
the Applicable Margin with respect to LIBOR Rate Loans is determined to
be greater pursuant to the terms of this Section 3.1(c) in which case
the Applicable Margin shall be deemed to be such greater amount)."
(d) Section 3.3(a)(ii) and the remainder of Section 3.3(a)(ii)
appearing thereafter shall be deleted in its entirety and the following
provisions shall be substituted in lieu thereof:
"(ii) for the period commencing on the fifth (5th) Business
Day following receipt by the Administrative Agent of the financial
statements of BREED and its Subsidiaries for the fiscal quarter ending
June 30, 1997 and the accompanying Officer's Compliance Certificate and
continuing through and including the Credit Facility Termination Date,
be determined by reference to the Leverage Ratio as of the end of the
fiscal quarter immediately preceding the delivery of the applicable
Officer's Compliance Certificate in accordance with the chart below:
Leverage Ratio Facility Fee Rate
Greater than 3.50 0.250%
Less than or equal
to 3.50 and greater
than 3.25 0.200%
Less than or equal
to 3.25 and greater
than 3.00 0.200%
Less than or equal
to 3.00 and greater
than 2.50 0.150%
less than or equal
to 2.50 but greater
than 2.00 0.150%
5
<PAGE>
less than or equal
to 2.00 0.125%
Adjustments, if any, in the facility fee rate shall be made by the
Administrative Agent on the tenth (10th) Business Day (the "Adjustment
Date") after receipt by the Administrative Agent of the quarterly
financial statements for BREED and its Subsidiaries and the
accompanying Officer's Compliance Certificate setting forth the
Leverage Ratio as of the most recent fiscal quarter end. In the event
the Borrowers fail to deliver such financial statements and certificate
within the time required by Section 6.2 hereof, the facility fee rate
shall be the highest facility fee rate set forth above until the
delivery of such financial statements and certificate.
Notwithstanding anything to the contrary contained herein, in
the event the Interest Coverage Ratio (as determined pursuant to
Section 8.3 of this Agreement) is less than 3.00 to 1.00, the facility
fee rate set forth in this Section 3.3(a) shall be deemed to be
0.300%."
(e) Section 8.1 shall be deleted in its entirety and the
following Section 8.1 shall be substituted in lieu thereof:
"8.1 Leverage Ratio. As of the end of any fiscal quarter, permit the
ratio (the "Leverage Ratio") of (a) the Consolidated Debt of BREED and
its Subsidiaries as of such date to (b) EBITDA of BREED and its
Subsidiaries for the period of four (4) consecutive fiscal quarters
ending on such date, to exceed the ratio set forth below on such
corresponding date:
June 30, 1997 3.70 to 1.00
September 30, 1997 4.10 to 1.00
December 31, 1997 3.90 to 1.00
March 31, 1998 and, 3.75 to 1.00
if this Agreement
is extended pursuant
to the terms hereof,
6
<PAGE>
June 30, 1998 and each
fiscal quarter-end
thereafter 3.50 to 1.00;
provided, however, that, notwithstanding anything herein to the contrary, in the
event of any one or more Equity Issuances with net proceeds of $50,000,000 or
more in the aggregate, the Leverage Ratio as of the fiscal quarter ending on
September 30, 1997 shall not exceed 3.75 to 1.00 and for each fiscal quarter-end
thereafter shall not exceed 3.50 to 1.00."
(f) Section 8.3 shall be deleted in its entirety and the
following Section 8.3 shall be substituted in lieu thereof:
"8.3 Interest Coverage Ratio. As of the end of any fiscal quarter,
permit the ratio of (a) EBIT of BREED and its Subsidiaries for the
period of four (4) consecutive fiscal quarters ending on such date to
(b) Interest Expense of BREED and its Subsidiaries for such period, to
be less than the ratio set forth below on such corresponding date:
June 30, 1997 1.70 to 1.00
September 30, 1997 1.30 to 1.00
December 31, 1997 1.30 to 1.00
March 31, 1998 and, 1.55 to 1.00
if this Agreement
is extended pursuant
to the terms hereof,
June 30, 1998 2.00 to 1.00
7
<PAGE>
September 30, 1998 2.25 to 1.00
December 31, 1998 2.50 to 1.00
March 31, 1999 2.75 to 1.00
June 30, 1999 and
each fiscal quarter-end
thereafter 3.00 to 1.00"
(g) Schedule 1.1(a) to the Credit Agreement shall be deleted in its
entirety and Schedule 1.1(a) attached hereto shall be substituted therefor.
SECTION 3. Termination of Certain Borrowers and A/C Borrowers. The
parties hereto hereby agree and acknowledge that, as of the date hereof, (i) the
parties listed on Exhibit 1 hereto (collectively, the "Former Borrowers") shall
no longer be Borrowers or A/C Borrowers under the Credit Agreement or any other
Loan Document, (ii) all rights of the Former Borrowers and obligations of the
Lenders to the Former Borrowers under the Credit Agreement or any other Loan
Document are hereby terminated and (iii) the pledge of stock of the Former
Borrowers by reason of their being A/C Borrowers as of the Closing Date shall no
longer be required as set forth in Section 4.2(c) of the Credit Agreement. To
the extent that any of the Former Borrowers becomes a Material Subsidiary at any
time after the date hereof, the Borrowers shall cause to be executed and
delivered to the Administrative Agent each of the documents required under
Section 7.12(b) of the Credit Agreement as and when required thereunder.
SECTION 4. Agreements. (a) The date for delivery of the
pledge of stock of BREED Italia, S.r.l. ("BREED Italia") by reason
of its being a Material Subsidiary as required under Section 4.2(c)
of the Credit Agreement shall be, and hereby is, extended to that
date which is ninety (90) days from the date hereof.
(b) The date for delivery of the pledge of stock of Gallino Plasturgia,
S.r.l. ("Gallino") by reason of its being an A/C Borrower and a Material
Subsidiary as required under Section 4.2(c) of the Credit Agreement shall be,
and hereby is, extended to that date which is ninety (90) days from the date
hereof; provided that Gallino shall not be permitted to make any borrowings
under the
8
<PAGE>
Credit Agreement nor shall it be permitted to receive the proceeds of any
borrowings thereunder unless and until all documents as required under Section
4.2(c) thereof have been executed and delivered to the Administrative Agent.
(c) The Administrative Agent and the Lenders hereby consent and agree
that, if Gallino is not either an A/C Borrower or a Material Subsidiary on that
date which is ninety (90) days from the date hereof, a pledge of its stock will
not be required under the terms of Section 4.2(c) of the Credit Agreement;
provided that in such event the rights of Gallino and the obligations of the
Lenders to Gallino under the Credit Agreement or any other Loan Document shall
then and thereafter be terminated. To the extent that Gallino at any time
thereafter again becomes a Material Subsidiary, the Borrowers shall cause to be
executed and delivered to the Administrative Agent each of the documents
required under Section 7.12(b) of the Credit Agreement as and when required
thereunder.
(d) The Administrative Agent and the Lenders hereby consent and agree
that Gallino and BREED Italia may, at any time during the ninety (90) day period
after the date hereof, reincorporate themselves as a S.p.A (i.e. Societa per
Azioni).
Failure to comply with any provision of this Section 4 shall be an Event of
Default under the Credit Agreement.
SECTION 5. Conditions. The effectiveness of the
amendments set forth herein shall be conditioned upon delivery to
the Administrative Agent of the following items:
(a) First Amendment. Receipt by the Administrative Agent of
this First Amendment executed by the Borrowers, the Guarantor and
Lenders constituting Required Lenders.
(b) First Amendment to Five-Year Credit Agreement. Receipt
by the Administrative Agent of that certain First Amendment to
Five-Year Credit Agreement executed by the Borrowers, the Guarantor
and Lenders constituting Required Lenders.
(c) Officer's Certificate. A certificate from the chief
executive officer or chief financial officer of BREED in form and
substance reasonably satisfactory to Administrative Agent, to the
effect that, after giving effect to the transactions contemplated
9
<PAGE>
by this First Amendment, all representations and warranties of the Borrowers
(including the Former Borrowers) contained in the Credit Agreement and the other
Loan Documents are true, correct and complete; that the Borrowers (including the
Former Borrowers) are not in violation of any of the covenants contained in the
Credit Agreement and the other Loan Documents; and that no Default has occurred
and is continuing.
(d) Amendment Fees. Payment of (i) the amendment fees and other fees to
the Administrative Agent for the ratable benefit of the Lenders to be
distributed to the Lenders in accordance with the terms contained in that
certain letter dated as of July __, 1997 from First Union to the Lenders and
(ii) the amendment and other fees to the Administrative Agent for its own
account pursuant to that certain fee letter dated as of July __, 1997 from First
Union to BREED, all of which such fees are hereby acknowledged and consented to
by the Borrowers.
(e) Opinions of Counsel. The Agent shall have received favorable
opinions addressed to the Lenders from counsel to the Borrowers and the
Guarantor in form and substance satisfactory to the Administrative Agent.
(f) Additional Documents. Receipt by the Administrative
Agent of any other document or instrument reasonably requested by
the Administrative Agent, the Documentation Agent or the Lenders in
connection with the execution of this First Amendment.
(g) Amendment Expenses . Payment by the Borrowers of all reasonable
out-of-pocket expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this First Amendment, including without
limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent.
SECTION 6. Representations and Warranties/No Default. By its execution
hereof, the Borrowers hereby certify that each of the representations and
warranties set forth in the Credit Agreement and the other Loan Documents is
true and correct as of the date hereof as if fully set forth herein and that as
of the date hereof no Default or Event of Default has occurred and is
continuing.
10
<PAGE>
SECTION 7. Limited Amendment. Except as expressly amended and waived
herein, each provision of the Credit Agreement and each provision of each other
Loan Document shall continue to be, and shall remain, in full force and effect.
This First Amendment shall not be deemed or otherwise construed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document, (b) to be a
commitment or any other undertaking by the Lenders or any of them to engage in
any further restructuring of any aspect of the Credit Agreement, the Loan
Documents or the Obligations, (c) to constitute any obligation to further amend
or otherwise modify the Credit Agreement or any Loan Document or (d) to
prejudice any other right or rights which the Administrative Agent, the
Documentation Agent or Lenders may now have or may have in the future under or
in connection with the Credit Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended,
restated or otherwise modified.
SECTION 8. Confirmation of Guaranty. The Guarantor hereby expressly
acknowledges and consents to the modifications and amendments set forth in this
First Amendment and hereby confirms, represents and agrees that its obligations
under the Guaranty shall remain in full force and effect.
SECTION 9. References. From and after the date hereof,
all references in the Loan Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as modified by
this First Amendment.
SECTION 10. No Defenses. Each of the Borrowers and the Guarantor hereby
acknowledges and affirms that such party has no defenses, legal or equitable, to
the validity and enforceability of any Loan Document (including, without
limitation, the Credit Agreement as amended by this First Amendment).
SECTION 11. Entire Agreement. This First Amendment, together with the
Credit Agreement and the other Loan Documents, constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements. The Borrowers acknowledge that there are no other agreements
of any kind, whether written or oral pertaining to the subject matter hereof,
not memorialized in the First Amendment, together with the Credit Agreement and
the other Loan Documents.
11
<PAGE>
SECTION 12. Governing Law. This First Amendment shall be
governed by and construed in accordance with the laws of the State
of North Carolina.
SECTION 13. Counterparts. This First Amendment may be
executed in separate counterparts, each of which when executed and
delivered is an original but all of which taken together constitute
one and the same instrument.
[Signature Pages Follow]
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the date and year first above written.
13
<PAGE>
SCHEDULE 1.1(a)
LIST OF A/C BORROWERS
Name of Company Place of Incorporation
BREED Technologies, Inc.* Delaware, USA
United Steering Systems, Inc. Delaware, USA
BREED European Holdings Limited United Kingdom
Auto Trim, Inc. Texas, USA
Custom Trim, Ltd. Ontario, Canada
Hamlin Electronics Europe Limited United Kingdom
Hamlin Electronics, GmbH Germany
VTI Hamlin Oy* Finland
Momo, S.p.A. Italy
Gallino Plasturgia, S.r.l. Italy
United Steering Systems Clifford Limited United Kingdom
* These are the only entities permitted to borrow in Finnish Marks.
14
<PAGE>
EXHIBIT 1
FORMER BORROWERS
BREED Italia, S.r.l.
Italtest, S.r.l.
BREED Italian Holdings, S.r.l.
15
Exhibit 21
Page 1 of 2
SUBSIDIARIES OF THE REGISTRANT
State or Providence
Company Of Incorporation
- ------- ----------------
1224194Ontario, Inc. Canada
A.P. Co., S.r.l. Italy
AG International, S.r.l. Italy
Airone, S.r.l. Italy
ARAS, S.r.l. Italy
Arpel Rivestimenti, S.r.l. Italy
Artepelle, S.r.l. Italy
Auto Avio, S.r.l. Italy
Auto Trim de Mexico, S.A. de C.V. Mexico
Auto Trim, Inc. Texas
Autotop, S.r.l. Italy
BREED Automotive of Florida, Inc. Florida
BREED Automotive Technology, Inc. Delaware
BREED Automotive West, Inc. Delaware
BREED Automotive, L.P. Delaware
BREED European Holdings Limited United Kingdom
BREED International Manufacturing Development Corp. Delaware
BREED International, Inc. Virgin Islands
BREED Italia, S.r.l. Italy
BREED Italian Holdings, S.r.l. Italy
BREED Manufacturing of Texas, Inc. Texas
BREED Mexicana, S.A. de C.V. Mexico
BREED Technik, GmbH Germany
BREED Technologies Finland Oy Finland
BTI Assurance Group, Ltd. Bermuda
BTI Investments Canada
CLP, S.r.l. Italy
CRV, S.r.l. Italy
Custom Trim de Mexico, S.A. de C.V. Mexico
Custom Trim Ltd. de Mexico, S.A. de C.V. Mexico
Custom Trim, Ltd. Canada
Decemviri, S.r.l. Italy
DUE LM, S.r.l. Italy
Elec-Trol de Mexico, S.A. de C.V. Mexico
Elec-Trol, Inc. Delaware
FAS, S.p.A. Italy
Fiver, S.r.l. Italy
<PAGE>
Exhibit 21
Page 2 of 2
Force Imaging Technologies, Inc. Illinois
G Holding, S.r.l. Italy
Gallino Plasturgia, S.r.l. Italy
Hamlin Electronics Europe Limited United Kingdom
Hamlin Electronics GmbH Germany
Hamlin SARL France
Hamlin, Incorporated Delaware
Hamlin, S.A. de C.V. Mexico
Hobby Legno, S.r.l. Italy
Innovative Mim Technologies, Inc. Delaware
Iron Sud, S.r.l. Italy
Italtest DUE, S.r.l. Italy
Italtest, S.r.l. Italy
LAMM, S.r.l. Italy
Lanebrook, Ltd. Ireland
LTM, S.r.l. Italy
MOMO Coarse, S.r.l. Italy
MOMO Design, S.r.l. Italy
MOMO Hungaria, Kft. Hungary
Momo, S.p.A. Italy
Momo, USA, Inc. Florida
MoWest, Inc. California
Productos Electro-Mecanicos BAC, S.A. de C.V. Mexico
Scaligera, S.r.l. Italy
Selva, S.r.l. Italy
Texmex Trim Mexico
Trimmex Mexico
Union, S.r.l. Italy
United Steering Systems Clifford, Limited United Kingdom
United Steering Systems Elmgrove Limited United Kingdom,
United Steering Systems, Inc. Delaware
Veneta Volanti, S.r.l. Italy
VTI Hamlin Oy Finland
Exhibit 23.1
Consent of Certified Public Accountants
The Board of Directors
BREED Technologies, Inc.:
Re: Registration Statement on Form S-8 (No. 33-54986)
Registration Statement on Form S-8 (No. 33-54988)
Registration Statement on Form S-8 (No. 33-54990)
Registration Statement on Form S-8 (No. 33-73350)
Registration Statement on Form S-8 (No. 33-22423)
We consent to incorporation by reference in the registration statements
referenced above of BREED Technologies, Inc. of our report dated July 21, 1995
relating to the consolidated statements of earnings, retained earnings, and cash
flows of BREED Technologies, Inc. and subsidiaries for the year ended June 30,
1995 which report appears in the June 30, 1997 annual report on Form 10-K of
BREED Technologies, Inc.
/s/ KPMG Peat Marwick, LLP
KPMG Peat Marwick LLP
Tampa, Florida
September 26,1997
Exhibit 23.2
Consent of Certified Public Accountants
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No.33-54990 and Form S-8 No. 33-73350) pertaining
to the 1992 Stock Option Plan, the Registration Statement (Form S-8 No.
33-54986) pertaining to the 1992 Director Stock Option Plan, the
Registration Statement (Form S-8 No. 33-54988) pertaining to the 1992
Employee Stock Purchase Plan, and Registration Statement on Form S-8 (
No. 33-22423) pertaining to the 1992 Employee Stock Purchase Plan, the
1992 Stock Option Plan, and the 1994 Stock Incentive Plan of our report
dated July 31, 1997, except for Note 12 as to which the date is August
27, 1997, with respect to the consolidated financial statements
incorporated by reference in this Annual Report (Form 10-K) for the
year ended June 30, 1997.
/s/ Ernst & Young, LLP
Ernst & Young LLP
Tampa, Florida
September 25, 1997
Exhibit 23.3
Independent Auditor's Report
The Board of Directors and Stockholders
BREED Technologies, Inc.:
We have audited the consolidated statements of earnings, stockholders'
equity, and cash flows of BREED Technologies, Inc. and subsidiaries for
the year ended June 30, 1995. These consolidated financial statements
are the responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial statements
based on our audit.
We conducted our audit 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 from 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 audit provides a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the results of operations and
cash flows of BREED Technologies, Inc. and subsidiaries for the year
ended June 30, 1995, in conformity with generally accepted accounting
principles.
As discussed in note 1 of the notes to the consolidated financial
statements, BREED Technologies, Inc. adopted provisions of the
Financial Accounting Standards Board's Statement of Financial
Accounting Standards No. 109, Accounting for Income Taxes, as of July
1, 1993.
/s/ KPMG Peat Marwick, LLP
KPMG Peat Marwick LLP
Tampa, Florida
July 21,1995
Independent auditors' report
To the Board of Directors
Of Momo S.p.A.
We have audited the accompanying combined and consolidated balance sheet of the
Momo group as of 30 June 1997 and the related combined and consolidated income
statement, retained earnings and cash flows for the year then ended. These
financial statements are the responsibility of the management of Momo S.p.A. Our
responsibility is to express on opinion on the financial statements based on our
audit.
We conducted our audit in accordance with auditing standards generally accepted
in the United States. 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 audit provides a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Momo Group as of 30 June 1997,
and the results of its operations and its cash flows for the year then ended in
conformity with generally accepted accounting principles as defined in the
United States.
/s/ KPMG Peat Marwick
KPMG Peat Marwick
Milan, 25 July 1997
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