Exhibit 2.1
EXECUTION VERSION
ASSET PURCHASE AGREEMENT
by and among,
TOWER AUTOMOTIVE, INC.,
a debtor-in-possession
and its
DEBTOR AFFILIATE SIGNATORIES HERETO,
and
TA ACQUISITION COMPANY, LLC
Dated as of May 1, 2007
TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS................................................... 1
Section 1.1. Certain Defined Terms................................... 1
Section 1.2. Other Defined Terms..................................... 12
ARTICLE 2. PURCHASE AND SALE............................................. 12
Section 2.1. Transfer of Acquired Assets and Assumption of Assumed
Liabilities............................................. 12
Section 2.2. Right to Contest Claims................................. 12
Section 2.3. Excluded Liabilities.................................... 12
Section 2.4. Allocation of Purchase Price............................ 12
Section 2.5. Deposit................................................. 12
Section 2.6. Closing................................................. 12
Section 2.7. Letters of Credit....................................... 12
Section 2.8. Closing Deliveries by Seller............................ 12
Section 2.9. Closing Deliveries by Purchaser......................... 12
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................. 12
Section 3.1. Organization............................................ 12
Section 3.2. Bank Accounts; Letters of Credit........................ 12
Section 3.3. Affiliate Transactions.................................. 12
Section 3.4. Insurance............................................... 12
Section 3.5. Accounts Receivable, Inventory and Accounts Payable..... 12
Section 3.6. Export Control Laws..................................... 12
Section 3.7. Certain Payments........................................ 12
Section 3.8. Authority; Enforceability............................... 12
Section 3.9. No Conflicts or Violations; Consents.................... 12
Section 3.10. Title to Assets and Location of Assets.................. 12
Section 3.11. Financial Information................................... 12
Section 3.12. No Undisclosed Liabilities.............................. 12
Section 3.13. Absence of Certain Changes or Events.................... 12
Section 3.14. Contracts............................................... 12
Section 3.15. Suppliers............................................... 12
Section 3.16. Compliance with Law..................................... 12
Section 3.17. Litigation.............................................. 12
Section 3.18. Employee Compensation and Benefit Plans; ERISA.......... 12
Section 3.19. Labor and Employment Matters............................ 12
Section 3.20. Properties.............................................. 12
Section 3.21. Intellectual Property................................... 12
Section 3.22. Environmental Laws...................................... 12
Section 3.23. Brokers................................................. 12
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Section 3.24. Tax Matters............................................. 12
Section 3.25. Disclosure.............................................. 12
Section 3.26. No Other Representations or Warranties.................. 12
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER................... 12
Section 4.1. Organization............................................ 12
Section 4.2. Authority; Enforceability............................... 12
Section 4.3. Non-Contravention....................................... 12
Section 4.4. Governmental Consents................................... 12
Section 4.5. Financing............................................... 12
Section 4.6. Brokers................................................. 12
Section 4.7. Acquired Assets "AS IS"; Purchaser's Acknowledgment
Regarding Same.......................................... 12
ARTICLE 5. ADDITIONAL AGREEMENTS......................................... 12
Section 5.1. Conduct of Business Prior to the Closing................ 12
Section 5.2. Access to Information................................... 12
Section 5.3. Superior Offers......................................... 12
Section 5.4. Bankruptcy Court Orders................................. 12
Section 5.5. Notice of Filings....................................... 12
Section 5.6. Further Action; Reasonable Best Efforts................. 12
Section 5.7. Public Announcements.................................... 12
Section 5.8. Availability of Business Records; Cooperation Following
the Closing............................................. 12
Section 5.9. Financing Assistance.................................... 12
Section 5.10. Further Assurances...................................... 12
Section 5.11. Reorganizations......................................... 12
Section 5.12. Transfer Taxes.......................................... 12
Section 5.13. Name Change............................................. 12
Section 5.14. Certain Contract Matters................................ 12
Section 5.15. Certain Tax Matters..................................... 12
Section 5.16. Assumed Contracts and Cure Amounts...................... 12
ARTICLE 6. EMPLOYEE MATTERS.............................................. 12
Section 6.1. Employee Matters........................................ 12
Section 6.2. Management Incentive Plan............................... 12
ARTICLE 7. CONDITIONS TO CLOSING......................................... 12
Section 7.1. Mutual Conditions to Closing............................ 12
Section 7.2. Conditions to Obligations of Purchaser.................. 12
Section 7.3. Conditions to Obligations of Seller..................... 12
ARTICLE 8. TERMINATION, AMENDMENT AND WAIVER............................. 12
Section 8.1. Termination............................................. 12
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Section 8.2. Effect of Termination................................... 12
Section 8.3. Amendment............................................... 12
Section 8.4. Waiver.................................................. 12
ARTICLE 9. GENERAL PROVISIONS............................................ 12
Section 9.1. Non-Survival of Representations, Warranties and
Agreements.............................................. 12
Section 9.2. Materiality; Company Disclosure Schedule................ 12
Section 9.3. Notices................................................. 12
Section 9.4. Severability............................................ 12
Section 9.5. Entire Agreement........................................ 12
Section 9.6. Assignment.............................................. 12
Section 9.7. No Third Party Beneficiaries............................ 12
Section 9.8. Governing Law........................................... 12
Section 9.9. Jurisdiction............................................ 12
Section 9.10. Waiver of Jury Trial.................................... 12
Section 9.11. Counterparts; Electronic Transmission................... 12
Section 9.12. Interpretation.......................................... 12
Section 9.13. Expenses................................................ 12
Section 9.14. Currency................................................ 12
Section 9.15. Preparation of this Agreement........................... 12
Section 9.16. Releases................................................ 12
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EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Xxxx of Sale
Exhibit C - Marketing Protocol Order
Exhibit D - Escrow Agreement
Exhibit E - Form of Plan
Exhibit F - Form of Sale Order
SCHEDULES
Schedule 1.1(a)(i) - Chapter 5 Claims
Schedule 1.1(a)(ii) - Excluded Chapter 5 Claims
Schedule 1.1(a)(iii) - Seller's Budget
Schedule 1.1(a)(iv) - Excluded Foreign Entity
Schedule 1.1(a)(v) - Additional Excluded Assets
Schedule 1.1(a)(vi) - Knowledge Officers
Schedule 1.1(a)(vii) - Retiree Benefits Settlements
Schedule 1.1(a)(viii) - Pre-petition Secured Tax Obligations
Schedule 1.1(a)(ix) - Allowed Priority Tax Obligations - Taxes
Schedule 3.1(b) - Organization (Domestic)
Schedule 3.1(b) - Organization (Foreign)
Schedule 3.1(c) - Options
Schedule 3.2(a) - Bank Accounts
Schedule 3.2(b) - Letters of Credit
Schedule 3.3 - Affiliate Transactions
Schedule 3.4 - Insurance
Schedule 3.5(c) - Accounts Payable
Schedule 3.6 - Export Control Laws
Schedule 3.7 - Certain Payments
Schedule 3.8 - Authority
Schedule 3.9 - Conflicts and Consents
Schedule 3.10 - Encumbrances on Foreign Assets
Schedule 3.11(a) - Financial Information
Schedule 3.12 - Undisclosed Liabilities
Schedule 3.13 - Absence of Certain Changes or Events
Schedule 3.14(a) - Contracts
Schedule 3.14(b) - Accommodation Agreements
Schedule 3.14(c) - Outstanding Balances
Schedule 3.14(d) - Exceptions to Validity of Contracts
Schedule 3.14(e) - Violation and Default
Schedule 3.14(f) - Foreign Indebtedness
Schedule 3.14(g) - Foreign Unrestricted Cash Balances
Schedule 3.14(h) - Non-Foreign Indebtedness
Schedule 3.14(i) - Non-Foreign Unrestricted Cash Balances
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Schedule 3.15(a) - Top Ten Suppliers
Schedule 3.15(b) - Changes in Supplier Relationships
Schedule 3.16 - Compliance with Law
Schedule 3.17 - Litigation
Schedule 3.18(a) - Employee Plans
Schedule 3.18(b) - Assumed Plans
Schedule 3.18(d) - Changes to Employee Plans
Schedule 3.18(e) - Continuing Pension Benefits
Schedule 3.19(a) - Labor and Employment Matters
Schedule 3.19(b) - Plant Closings and Layoffs
Schedule 3.19(c) - Open U.S. Facilities Collective Bargaining Agreements
and Relationships
Schedule 3.20(a) - Owned Real Property
Schedule 3.20(b) - Leased Real Property
Schedule 3.20(c) - Title Policies and Holders of Encumbrances
Schedule 3.21(a) - Intellectual Property
Schedule 3.22 - Environmental Laws
Schedule 3.23 - Brokers
Schedule 3.24 - Tax
Schedule 5.1(a)(x) - Consents
Schedule 5.1(b) - Conduct Prior to Closing (restrictions)
Schedule 5.2(a)(i) - Contact Group
Schedule 5.5 - Notice of Filing
Schedule 5.16 - Assumed Contracts
Schedule 7.2(f) - Required Consents
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT, dated as of May 1, 2007 (this
"AGREEMENT"), by and among Tower Automotive, Inc., a Delaware corporation, a
debtor-in-possession (the "COMPANY"), the debtor affiliates of the Company that
are signatories to this Agreement (the Company and, such debtor affiliates are
referred to collectively herein as "SELLER"), and TA Acquisition Company, LLC, a
Delaware limited liability company ("PURCHASER"). Seller and Purchaser, each a
"PARTY" and, collectively, the "PARTIES."
WITNESSETH:
WHEREAS, on February 2, 2005, each of the Persons included within the
definition of Seller filed a voluntary petition for relief under Chapter 11 of
the United States Bankruptcy Code (the "BANKRUPTCY CODE") in the United States
Bankruptcy Court for the Southern District of New York (the "BANKRUPTCY COURT"),
which cases are jointly administered under Case No. 05-10578 (ALG) (the
"BANKRUPTCY CASE"); and
WHEREAS, Seller wishes to sell to Purchaser and Purchaser wishes to
purchase from Seller substantially all of the assets of Seller and to assume
from Seller certain Liabilities, pursuant to the terms and conditions set forth
in this Agreement in accordance with sections 105, 363, 365, 1123(a)(5)(D) and
1141(c) of the Bankruptcy Code.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, representations and warranties herein contained, and such other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ACQUIRED ASSETS" means, except for the Excluded Assets,
(a) all of the property and assets of Seller including, but not
limited to: all property, real and personal; all assets, whether tangible or
intangible; all cash and cash equivalents; all accounts receivable; all
intercompany receivables including all claims against Foreign Entities; all
deposits relating to any Assumed Contracts; all prepaid expenses relating to
Acquired Assets or Assumed Contracts; all inventory; all rights in patents,
trademarks, copyrights and all other Intellectual Property (including all
computer software or systems) owned, controlled or licensed (subject to any
rights therein previously granted by Seller to a third party), all rights to
payment from the licensees of Intellectual Property pursuant to section 365(n)
of the Bankruptcy Code; all Chapter 5 claims (the "CHAPTER 5 CLAIMS")
(including, but not limited to, those set forth on Schedule 1.1(a)(i)) other
than those set forth on Schedule 1.1(a)(ii) attached hereto); all other claims
of any kind other than (i) claims in respect of Excluded Assets and (ii) claims
directly related to Excluded Liabilities which (A) are not Liabilities to
customers,
suppliers or other business relations with whom Purchaser does business after
the Closing and (B) which are identified to Purchaser in advance of any action
being taken to collect on such claims and as to which Purchaser does not object
to such claim being asserted in its reasonable discretion, all Business Records;
all beneficial tax attributes, if any, to the extent transferable by applicable
law; all of the stock, limited liability interests, partnership interests, joint
venture interests or any other equity interests held by any of the Tower Group
entities (whether a majority or a minority interest and including, but not
limited to, the capital stock or equity interests of the Foreign Entities
(including, without limitation, all interests in Metalsa), but not the capital
stock of Seller), and all good will;
(b) the following to the extent they relate to any Acquired
Asset, Assumed Contract, Assumed Liability or any claim or allegation that
Purchaser is liable or responsible for a Liability of Seller, whether or not
Purchaser has assumed such Seller Liability: claims, credits, security or other
deposits, including recoverable deposits, prepayments, prepaid assets, prepaid
expenses, prepaid rent, deferred charges, refunds or claims for refunds, causes
of action (including, but not limited to, any recovery with respect to
litigation involving Metalsa), defenses, counterclaims, crossclaims, third party
claims, rights of recovery, rights of setoff and rights of recoupment, insurance
proceeds and all rights under historical or current insurance policies of any
member of the Tower Group, and, in each case, security interests relating
thereto, as applicable, as of the Closing Date;
(c) all the assets that are reflected on the Balance Sheet
provided such assets have not been disposed of by the Tower Group in the
ordinary course of business or pursuant to an Order of the Bankruptcy Court, and
all assets acquired by the Tower Group in the ordinary course of business or
pursuant to an Order of the Bankruptcy Court after the Balance Sheet Date; and
(d) all trusts, insurance contracts, accounts and funding
arrangements relating to any Assumed Plans.
For avoidance of doubt, notwithstanding anything herein to the
contrary, no property, asset, right, title or interest of Seller included in the
definition of Excluded Asset shall be an Acquired Asset.
"ACQUISITION PROPOSAL" means any proposal or offer (i) for a merger or
other business combination involving the Tower Group, (ii) to acquire in any
manner, directly or indirectly, an equity interest in the Tower Group or any
voting securities of the Tower Group, (iii) to acquire any portion of the assets
of the Tower Group, other than in the ordinary course of business or (iv) in
respect of any plan of reorganization other than the Plan.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person, where "control" means the power, directly or indirectly, to direct or
cause the direction of the management and policies of another Person, whether
through the ownership of voting securities, by contract or otherwise.
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"AFFILIATED GROUP" means any affiliated group within the meaning of
Code Section 1504(a) or any similar group defined under a similar provision of
state, local or foreign Law.
"ALLOWED" means, with respect to any Claim, except as otherwise
provided herein: (a) a Claim that has been scheduled by Seller in its Schedules
as neither disputed, contingent nor unliquidated and for which the claim amount
has not been identified as unknown, and as to which Seller or other party in
interest has not filed an objection with the Bankruptcy Court by the Claims
Objection Bar Date; (b) a Claim that either is not a Disputed Claim or has been
allowed by a Final Order; (c) a Claim that is allowed: (i) in any stipulation of
amount and nature of Claim executed prior to the Confirmation Date and approved
by the Bankruptcy Court; (ii) in any stipulation with Seller of amount and
nature of Claim executed on or after the Confirmation Date; or (iii) in or
pursuant to any contract, instrument, indenture or other agreement entered into
or assumed in connection herewith; (d) a Claim relating to a rejected Executory
Contract or Unexpired Lease that either (i) is not a Disputed Claim or (ii) has
been allowed by a Final Order, in either case only if a proof of Claim has been
Filed by the applicable bar date or has otherwise been deemed timely Filed under
applicable law; (e) a Claim that is allowed pursuant to the terms hereof; or (f)
a Disputed Claim as to which a proof of claim has been timely filed and as to
which no objection has been filed by the Claims Objection Bar Date. Each
capitalized term used in this definition that is not otherwise defined herein,
shall have the respective meaning assigned to such term in the Plan.
"ALLOWED PRIORITY CLAIMS" means any claim accorded priority in right
of payment pursuant to section 507(a) of the Bankruptcy Code.
"ALLOWED SECURED CLAIMS" has the meaning set forth in the Plan.
"ALTERNATIVE TRANSACTION" means a transaction that involves a sale of
a material portion of the Acquired Assets, a Chapter 11 plan or a Chapter 7
liquidation.
"ANCILLARY AGREEMENTS" means the Escrow Agreement, the Assignment and
Assumption Agreement, the Xxxx of Sale and the Intellectual Property
Assignments.
"ANTITRUST LAW" means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as
amended, the HSR Act, the Federal Trade Commission Act, as amended, and all
other federal, state and foreign, statutes, rules, regulations, Orders, decrees,
administrative and judicial doctrines and other Laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect
of monopolization or restraint of trade or lessening of competition through
merger or acquisition.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means an assignment and
assumption agreement in the form and substance of Exhibit A attached hereto.
"ASSUMED CONTRACTS" means those of Seller's Collective Bargaining
Agreements identified on Schedule 3.19(c), the Change in Control Agreements, the
KERP Agreements and subject to Section 5.16 herein any other contract expressly
set forth on Schedule 5.16 attached hereto.
"ASSUMED LIABILITIES" means, and is limited to:
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(a) The following post-petition Liabilities of Seller expressly
set forth in this definition:
(i) all Working Capital Obligations;
(ii) all benefit obligations pursuant to the Consolidated
Pension Plan and the other Assumed Plans;
(iii) all contingent Liabilities payable pursuant to the
terms of the Change in Control Agreements;
(iv) the KERP Liability;
(v) all Liabilities pursuant to Assumed Contracts arising
after the Closing. For avoidance of doubt, such obligations shall not include
any amounts necessary to satisfy the Cure Amounts pursuant to Bankruptcy Code
section 365 in connection with the assignment and assumption of the Assumed
Contracts;
(vi) all statutory environmental Liabilities which (A) arise
under Environmental Laws, (B) are associated with real property acquired by
Purchaser or its Affiliates hereunder, (C) are enforced by a Governmental Entity
and (D) are not "claims" as defined in section 101(5) of the Bankruptcy Code;
(vii) the current balance due with respect to the Xxxxx
Financing, provided all benefits of such insurance policies are received by or
are available to Purchaser, as contemplated in the definition of Acquired
Assets;
(viii) if no amount is paid by Purchaser for the IRB Payment
pursuant to Section 2.1(a)(iii), all Seller's Liabilities pursuant to the
Industrial Revenue Bonds; and
(ix) the Retiree Benefits Settlements (to the extent
provided therein).
(b) pre- and post-petition workers compensation claims.
(c) Notwithstanding anything set forth to the contrary in this
Agreement, Assumed Liabilities shall not include any amounts included in the
categories constituting the Capped Payments.
"ASSUMED PLANS" means the Consolidated Pension Plan and the other
Employee Plans expressly set forth on Schedule 3.18(b) attached hereto.
"ASSUMED PLAN DOCUMENTS AND RECORDS" shall mean any and all written
records, documents and communications of, or relating to, any Assumed Plan,
including without limitation any and all correspondence, governmental filings,
reports, financial statements, trust statements, plan documents, trust
documents, amendments, summary plan descriptions, participant and benefit data,
benefit statements, administrative forms, administrative manuals,
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domestic relations orders, minutes of any administrator or fiduciary, fiduciary
liability insurance policies, vendor contracts, and investment advisor,
management and trust agreements.
"AUCTION" means the auction that may be conducted by Seller pursuant
to the Marketing Protocol Order.
"BANKRUPTCY CASE CLAIM" means, individually or collectively, the
Allowed Secured Claims, the Bankruptcy Related Administrative Claims, the
Allowed Priority Claims, and the Cure Amounts.
"BANKRUPTCY RELATED ADMINISTRATIVE CLAIMS" means all Allowed
administrative claims relating to:
(a) all professional fees, whether or not related to the
Bankruptcy Case, but not including the advisor fees referred to in clause (b) of
this definition;
(b) Allowed advisor fees to (i) Lazard Freres & Co., LLC as
provided in its engagement letter with Seller as approved by Order of the
Bankruptcy Court, dated June 15, 2005, a true and complete copy of which was
provided to Purchaser, and (ii) to Xxxxxxxx Xxxxx Xxxxxx & Xxxxx, Inc. as
provided in its engagement letter with the Official Committee of Unsecured
Creditors as approved by Order of the Bankruptcy Court, dated June 14, 2005, a
true and complete copy of which was provided to Purchaser;
(c) the KERP Liability;
(d) the non-1114 related settlement payment due to the Milwaukee
Unions in the amount of Three Million Five Hundred Thousand Dollars ($3,500,000)
as set forth in Article III.G of that certain Agreement between Seller and the
Milwaukee Unions under 11 U.S.C. Sections 1113 and 1114, and, approved by that
certain Order Approving Settlement Agreement With The Milwaukee Unions, dated
May 22, 2006 (Bankruptcy Court Docket Number 1492); and
(e) (i) Xxxxxxx Sachs (DR Lease rejection claim), (ii) Watershed
Capital Partners claim, (iii) United Furniture Workers claim; (iv) reclamation
claims; and (v) other administrative claims not included in the Working Capital
Obligations.
Notwithstanding the foregoing, no Bankruptcy Related Administrative
Claim shall be included in or deemed a part of the Working Capital Obligations.
"XXXX OF SALE" means the xxxx of sale in the form and substance of
Exhibit B attached hereto.
"BUDGET" means that certain budget of Seller, dated January 11, 2007
as attached hereto as Schedule 1.1(a)(iii).
"BUDGETED EXCHANGE RATES" means 0.80 Euro = 1.00 US Dollar, 2.45
Brazilian Real = 1.00 US Dollar, 1,000 Korean Won = 1.00 US Dollar and 7.88
Chinese RMB = 1.00 US Dollar.
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"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by law to be closed in the City of
New York.
"BUSINESS RECORDS" means all books, records, ledgers and files or
other similar information used or held for use in the operation or conduct of
business by the Tower Group, including, without limitation, price lists,
customer lists, vendor lists, mailing lists, warranty information, catalogs,
sales promotion literature, advertising materials, brochures, records of
operation, standard forms of documents, manuals of operations or business
procedures, research materials, Tax Returns (except Purchaser shall only be
entitled to a copy of income Tax Returns), contracts, instruments, filings,
administrative and pricing manuals, records, Claim records, sales records,
underwriting records, financial records, compliance records, insurance policies,
and Tax records (except Purchaser shall only be entitled to a copy of Tax
records), personnel records, corporate minute books, Assumed Plan Documents and
Records and other materials to the extent relating, directly or indirectly, to
the Acquired Assets, the Assumed Contracts or the Assumed Liabilities, or the
assets, the businesses or the Liabilities of any Foreign Entity, whether or not
in the possession of the Tower Group or their respective representatives, stored
in hardcopy form or on magnetic, optical or other media, other than in respect
of the Excluded Assets.
"CAPPED PAYMENTS BAR DATE" means the date that is thirty six (36)
months after the Closing Date; provided, however that Seller or the
Post-Consummation Trust, as the case may be, may, with either (i) agreement of
Purchaser or (ii) upon Order of the Bankruptcy Court following application for
good cause shown, extend the Capped Payments Bar Date for a period of time not
to exceed an additional twenty four (24) months.
"CHANGE IN CONTROL" has the meaning set forth in those certain Change
in Control Agreements by and between each of the CIC Employees and the Company.
"CHANGE IN CONTROL AGREEMENTS" means the agreements entered into
between Seller and each of the CIC Employees identified as Change in Control
Agreements on Schedule 3.14(a).
"CIC EMPLOYEES" means the following individuals: Xxxxxxxx Xxxxxxx,
Xxxxx Xxxxxx, D. Xxxxxxx Xxxxxxxx, E. Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxx
Xxxxxx, Xxxxxx Xxx, Xxxxx Ro, Xxxxx Meleghy, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx,
Xxxxx Xxxxxx and Xxxx Xxxxxx.
"CLAIMS" means any and all actions, causes of action, suits, damages,
losses, expenses, fees, charges, costs, complaints, obligations, promises,
controversies, rights, demands, debts, Encumbrances, taxes, lis pendens and
claims whatsoever, whether known or unknown, suspected or claimed, whether at
law or in equity, and whether contingent or not contingent, which any Person may
now possess, own or hold or has at any time heretofore owned or held against
Seller, including any claim as defined in section 101(5) of the Bankruptcy Code.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
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"COLLECTIVE BARGAINING AGREEMENT" means any labor agreement,
collective bargaining agreement or any other labor related agreement or
arrangement with any labor union, organization or association that pertains to
any employees of the Tower Group.
"COMPANY SUBSIDIARIES" means the Subsidiaries of the Company,
including, without limitation, those which are included in the definition of
Seller.
"CONFIDENTIALITY AGREEMENT" means that certain confidentiality
agreement, dated May 15, 2006, between Cerberus Capital Management, L.P. and the
Company.
"CONFIRMATION ORDER" means an Order confirming the Plan in form and
substance as may be approved by Purchaser in its reasonable discretion.
"CONSOLIDATED PENSION PLAN" means the Tower Automotive Consolidated
Pension Plan (plan number 016).
"CURE AMOUNTS" means all amounts and other consideration that pursuant
to section 365 of the Bankruptcy Code, as of the Closing Date, shall be required
to cure any defaults on the part of Seller pursuant to Assumed Contracts or that
will be otherwise due to nondebtor parties pursuant to Assumed Contracts, as a
prerequisite to the assignment and assumption of such Assumed Contracts pursuant
to section 365 of the Bankruptcy Code.
"DIP LENDERS" means, collectively, those financial institutions party
to the DIP Loan Credit Agreement and all permitted assigns, transferees and
successors-in-interest thereto.
"DIP LOAN" means collectively the DIP Revolver and the DIP Term Loan.
"DIP LOAN CREDIT AGREEMENT" means that certain Revolving Credit, Term
Loan and Guaranty Agreement, dated February 2, 2005, among Seller, the DIP
Lenders and certain other parties thereto, as amended, supplemented or modified
from time to time.
"DIP REVOLVER" means that certain $300,000,000 revolving credit
facility component of the DIP Loan Credit Agreement.
"DIP TERM LOAN" means that certain $425,000,000 term loan component of
the DIP Loan Credit Agreement, used by Sellers to repay, in full, certain
prepetition first-lien indebtedness.
"ENCUMBRANCE" means any lien, pledge, security interest, interest,
right of first refusal or conditional sale agreement.
"ENVIRONMENTAL LAW" means any applicable federal, state, county,
municipal and local statutes, Laws, regulations, ordinances and regulations and
all judicial or administrative decisions and Orders, that relate to the
protection of worker safety and health from environmental hazards, pollution,
and Regulated Substances or the assessment, investigation, remediation,
restoration or protection of natural resources or the environment, including,
without limitation, the quality of the ambient air, soil (both surface and
subsurface), sediments, surface
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water or groundwater, whether currently existing as of the date of this
Agreement or hereafter adopted prior to the Closing Date.
"ENVIRONMENTAL PERMITS" means all permits, licenses, registrations and
other authorizations required under applicable Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"ESCROW AGENT" means Xxxxx Fargo Bank, National Association.
"ESCROW AGREEMENT" means the escrow agreement attached hereto as
Exhibit D.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"EXCLUDED ASSETS" means (i) any and all rights of any Seller pursuant
to this Agreement and the Ancillary Agreements, (ii) (A) the Chapter 5 Claims
set forth on Schedule 1.1(a)(ii) attached hereto, including any cash proceeds
from any settlements thereof received by Seller prior to the Closing and (B) (i)
claims in respect of Excluded Assets and (ii) claims directly related to
Excluded Liabilities which (I) are not Liabilities to customers, suppliers or
other business relations with whom the Purchaser does business after the Closing
and (II) which are identified to Purchaser in advance of any action being taken
to collect on such claims and as to which Purchaser does not object to such
claim being asserted in its reasonable discretion, (iii) any asset or contract
which Purchaser identifies in writing to Seller by June 22, 2007; provided, that
for avoidance of doubt, the exclusion of any such asset or contract shall not
reduce or otherwise affect the amount of the Purchase Price, (iv) any
nonmaterial asset or contract which Purchaser identifies in writing to Seller
from June 23, 2007 until the date that is at least ten (10) Business Days prior
to the Closing; provided, that for avoidance of doubt, the exclusion of any such
asset or contract shall not reduce or otherwise affect the amount of the
Purchase Price, (v) any equity interests in any of the Sellers, (vi) any Foreign
Entity identified on Schedule 1.1(a)(iv) or as hereafter determined by Purchaser
(provided however that any Foreign Entity which Purchaser wishes to exclude must
be identified in writing to Seller by June 22, 2007), (vii) the assets
identified on Schedule 1.1(a)(v), and (viii) all beneficial tax attributes to
the extent not transferable by applicable law and Seller's United States federal
net operating loss carryforwards. For purposes of clause (iv) of this definition
only, "nonmaterial asset" does not include (X) any land or buildings,
structures, fixtures or other improvements located thereon, or (Y) any asset or
group of related assets for which Seller could reasonably be expected to incur
fees, expenses or other Liability, net of any proceeds received, in excess of
Five Hundred Thousand Dollars ($500,000) to dispose of any single or group of
related assets. Notwithstanding any other provision of this definition, any
asset excluded pursuant to any of clauses (iii), (vi) or (vii) shall not be an
Acquired Asset. Nothing contained in this definition shall affect or impair any
right of Purchaser to reject contracts under Section 5.16 hereof. The
designation of certain assets as "nonmaterial" for purposes of the notice
provisions of this definition shall not affect the determination of materiality
for any other purpose. Notwithstanding the foregoing, Purchaser shall have the
right at any time prior to Closing, in its
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sole discretion, to designate any asset that it had identified as an Excluded
Asset pursuant to clauses (iii), (iv), (vi) or (vii) of this definition as an
Acquired Asset.
"EXCLUDED LIABILITIES" means any Liabilities of Seller other than
Assumed Liabilities, including, without limitation, (a) Liabilities directly
associated with the Excluded Assets, (b) any Indebtedness of Seller (other than
the Industrial Revenue Bonds if the Purchaser elects to assume such Liability),
(c) pre-petition Liabilities, Liabilities accruing pre-petition and Liabilities
otherwise not expressly assumed by Purchaser hereunder including, without
limitation, environmental liabilities, all other post employment benefits
including, but not limited to, healthcare and life insurance, and obligations in
respect of retirees other than Retiree Benefits Settlements, (d) all
Liabilities, if any, associated with Tower Automotive Capital Trust, Seller's
variable interest entity, (e) any Liability expunged by Order of the Bankruptcy
Court, (f) any Liability associated with any proceeding, litigation or
investigation respecting Seller, except as may be expressly assumed hereunder,
and (g) indemnification agreements with Persons who are not Governmental
Authorities with respect to Liabilities under any Environmental Law including,
without limitation, pursuant to that certain Asset Purchase Agreement, dated as
of January 27, 1997, among X.X. Xxxxx Corporation, X.X. Xxxxx Enterprises Ltd.,
Tower Automotive Acquisition, Inc., Tower Automotive, Inc. and X.X. Tower
Corporation and any claims related thereto.
"FINAL ORDER" means an Order as to which the time to file an appeal, a
motion for rehearing or reconsideration or a petition for writ of certiorari has
expired and no such appeal, motion or petition is pending.
"FIRPTA" means the Foreign Investment in Real Property Tax Act of
1980, as amended, and the rules and regulations promulgated thereunder.
"FOREIGN ENTITY" means any entity within the Tower Group which was
incorporated, formed, existed or exists pursuant to the Laws of a country other
than the United States.
"FOREIGN FINANCIAL INDEBTEDNESS" means, with respect to the Foreign
Entities, without duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, or upon which interest payments are customarily made,
(c) all obligations (including, without limitation, earnout obligations) of such
Person issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within six (6) months of the incurrence thereof) which would
appear as liabilities on a balance sheet of such Person in accordance with GAAP,
(d) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Encumbrance on, or payable out of the proceeds of production from, property
owned or acquired by such Person, whether or not the obligations secured thereby
have been assumed, (e) all guaranty obligations of such Person with respect to
Indebtedness of another Person, (f) the principal portion of all obligations of
such Person pursuant to capital leases, (g) all reimbursement obligations in
respect of the maximum amount of all letters of credit issued or bankers'
acceptances facilities created for the account of such Person and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed), (h) all
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preferred capital stock issued by such Person and, which by the terms thereof,
could be (at the request of the holders thereof or otherwise) subject to
mandatory sinking fund payments, redemption or other acceleration, (i) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer (other than Metalsa), and (j)
factoring, receivables financing or securitziations (whether or not on the
balance sheet, and whether or not recourse); provided, however, Foreign
Financial Indebtedness shall not include any intercompany payables.
"GAAP" means United States generally accepted accounting principles in
effect from time to time.
"GOVERNMENTAL AUTHORITY" means any United States federal, state or
local or any foreign government, governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, judicial or arbitral
body.
"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended, and the rules and regulations promulgated thereunder.
"INDEBTEDNESS" means, with respect to any Person, without duplication,
(a) all obligations of such Person for borrowed money, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar instruments, or
upon which interest payments are customarily made, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations (including, without limitation, earnout
obligations) of such Person issued or assumed as the deferred purchase price of
property or services purchased by such Person (other than trade debt incurred in
the ordinary course of business and due within six (6) months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person in
accordance with GAAP, (e) all obligations of such Person under take-or-pay or
similar arrangements, (f) all Indebtedness of others secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Encumbrance on, or payable out of the proceeds of
production from, property owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (g) all guaranty obligations of
such Person with respect to Indebtedness of another Person, (h) the principal
portion of all obligations of such Person pursuant to capital leases, (i) all
obligations of such Person under hedging agreements, excluding any portion
thereof which would be accounted for as interest expense under GAAP, (j) the
maximum amount of all letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (k) all preferred capital
stock issued by such Person and which by the terms thereof could be (at the
request of the holders thereof or otherwise) subject to mandatory sinking fund
payments, redemption or other acceleration, (l) the principal balance
outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product, (m) the
Indebtedness of any partnership or unincorporated joint venture in which such
Person is a general partner or a joint venturer (other than Metalsa) and (n)
factoring, receivables financing or securitziations (whether or not on the
balance sheet, and whether or not recourse); provided, however, Indebtedness
shall not include any intercompany payables, operating leases or the Xxxxx
Financing.
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"INDUSTRIAL REVENUE BONDS" means those certain (a) $25,000,000
aggregate principal amount City of Bardstown, Kentucky Taxable Variable Rate
Demand Industrial Revenue Bonds, Series 1995 (X.X. Tower Corporation Project)
and (b) $20,000,000 aggregate principal amount City of Bardstown, Kentucky
Taxable Variable Rate Demand Industrial Revenue Bonds, Series 1994 (X.X. Tower
Corporation Project).
"INTELLECTUAL PROPERTY" means any and all United States or foreign
intellectual property, including (i) patents, patent applications and patent
disclosures, together with all reissuances, continuations, provisionals,
continuations-in-part, divisions, extensions and reexaminations thereof, (ii)
trademarks, service marks, logos, trade names, corporate names and trade dress,
including all goodwill associated therewith, and all applications, registrations
and renewals in connection therewith, (iii) copyrights and copyrightable works
and all applications, registrations and renewals in connection therewith, (iv)
registrations for Internet domain names, (v) trade secrets and confidential
business information, including inventions, ideas, research and development,
know-how, formulas, compositions, manufacturing and production processes and
techniques, designs, drawings and specifications, (vi) moral rights and rights
of attribution, and (vii) computer software, including databases and related
documentation.
"INTERESTS" means all encumbrances, including mechanics',
materialmen's and other consensual and nonconsensual encumbrances and statutory
encumbrances, security interests and Claims, including, but not limited to, any
"claim" as defined in section 101(5) or "lien" as defined in section 101(37) of
the Bankruptcy Code, Liabilities, reclamation claims, mortgages, deeds of trust,
pledges, covenants, restrictions, hypothecations, charges, indentures, loan
agreements, instruments, contracts, leases, licenses, options, rights of first
refusal, offsets, recoupment, rights of recovery, judgments, Orders and decrees
of any court or foreign or domestic Governmental Authority, claims for
reimbursement, contribution, indemnity or exoneration, assignment, preferences,
debts, charges, suits, licenses, options, rights of recovery, products
liability, alter-ego, environmental, successor liability, tax and other
liabilities, causes of action or other encumbrances or restrictions on or
conditions to transfer or assignment of any kind, including, without limitation
to the generality of the foregoing, restrictions or conditions on or to the
transfer, assignment or renewal of licenses, permits, registrations, and
authorizations or approvals of or with respect to any Governmental Authority, to
the fullest extent of the law, in each case whether secured or unsecured, xxxxxx
or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed,
recorded or unrecorded, perfected or unperfected, Allowed or disallowed,
contingent or noncontingent, liquidated or unliquidated, matured or unmatured,
material or nonmaterial, disputed or undisputed, or known or unknown, whether
arising prior to, on, or subsequent to the commencement of the Bankruptcy Case,
whether imposed by agreement, understanding, Law, equity or otherwise.
"IRS" means the United States Internal Revenue Service.
"KERP LIABILITY" means all amounts payable, up to a maximum of Five
Million Eight Hundred Thousand Dollars ($5,800,000), at or after the Closing
under the "Retention Program" approved by that certain Order, dated March 30,
2005, Pursuant to Sections 105(a) and 363(b)(1) of the Bankruptcy Code,
Approving and Authorizing (I) Seller's Annual Incentive Plan With Respect to
Certain Senior Executives; (II) a Key Employee Retention Program; and (III)
Certain of Seller's Prepetition Severance Obligations. Seller has furnished to
Purchaser true
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and complete copies of the agreements entered into with employees of Seller
under the Key Employee Retention Program, including all transition bonus
agreements (referred to collectively, as the "KERP AGREEMENTS") prior to the
execution and delivery of this Agreement.
"KNOWLEDGE" means,
(i) with respect to Purchaser, the actual knowledge on the
date hereof of the executive officers of Purchaser upon due inquiry and
investigation; and
(ii) with respect to Seller, the actual knowledge on the
date hereof of the officers, directors, and certain key employees of the Tower
Group set forth on Schedule 1.1(a)(vi) attached hereto who are primarily
responsible for the relevant area as to which the representation in which
"Knowledge" is used, upon due inquiry and investigation.
"LAW" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code or other requirement of law of a Governmental
Authority or any Order.
"LIABILITY" and "LIABILITIES" means, as to any Person, all
Indebtedness, claims of any kind or nature, including contingent or unliquidated
claims or any other claims falling within the definition set forth in section
101(5) of the Bankruptcy Code, Interests, commitments, responsibilities and
obligations of any kind or nature whatsoever, direct or indirect, absolute or
contingent, whether known or unknown and whether or not actually reflected, or
required to be reflected, in such Person's balance sheet or other books and
records, including Taxes.
"MARKETING PROTOCOL ORDER" means that Order of the Bankruptcy Court
attached hereto as Exhibit C.
"XXXXX FINANCING" means loans made for the sole purpose of financing
Seller's insurance premiums paid for the balance of the current year.
"MATERIAL ADVERSE EFFECT" means any change, effect, event, occurrence,
development, circumstance or state of facts materially adverse to the business,
properties, operations, financial condition or results of operations of the
Acquired Assets (including the Foreign Entities and their respective
businesses), the Assumed Contracts and the Assumed Liabilities of the Tower
Group, taken as a whole or which materially impair the ability of Seller to
perform its obligations under this Agreement or have a materially adverse effect
on or prevent or materially delay the consummation of the transactions
contemplated by this Agreement; provided, however, the following shall be
excluded from any determinations as to whether a Material Adverse Effect has
occurred: any change, effect, event, occurrence, development, circumstance or
state of facts in general economic or political conditions, conditions in the
United States or worldwide capital markets and any act of terrorism or any
outbreak of hostilities or war.
"NET FOREIGN FINANCIAL INDEBTEDNESS" means an amount, calculated
pursuant to GAAP and using Budgeted Exchange Rates, equal to:
(i) the average daily balance for the thirty (30) calendar
days immediately preceding the Closing Date of the Foreign Financial
Indebtedness; less
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(ii) the average daily balance for the thirty (30) calendar
days immediately preceding the Closing Date of the unrestricted cash on hand of
the Foreign Entities. For avoidance of doubt, any restricted cash shall not be
deducted for the purposes of clause (ii) of this definition of Net Foreign
Financial Indebtedness, which such restricted cash shall include, without
limitation, the restricted cash related to that certain Lease Agreement (and
related agreements) by and between Tower Automotive, Belgium B.V.B.A. and ABB
Credit AB, dated as of December 21, 2001, as amended.
"ORDER" means any decree, order, injunction, rule, judgment, consent
of, or by any Governmental Authority.
"PARTIAL ACQUISITION" means a transaction pursuant to which Seller
agrees to sell or otherwise transfer less than all of the Acquired Assets.
"PERMITTED ENCUMBRANCES" means:
(i) tax liens with respect to Taxes not yet due and payable
or post-petition Taxes being contested in good faith;
(ii) interests or title of a third party under or to any
Assumed Contract, including as to any Leased Real Property, any Encumbrance,
Claim, or Interest affecting the interest of the lessor thereof as it relates to
such lessor's interest in the Leased Real Property;
(iii) nonexclusive licenses of Intellectual Property owned
by the Tower Group that have been granted by the Tower Group in the ordinary
course of business and any restrictions on conditions to the transfer,
assignment or renewal of any licenses of Intellectual Property owned by third
parties and licensed to the Tower Group, provided such restrictions were entered
into in the ordinary course of business;
(iv) easements, covenants, conditions, rights-of-way,
restrictions and other similar charges and Encumbrances, Claims, or Interests
not interfering with the ordinary conduct of the business or operations
conducted on the particular site;
(v) zoning, entitlement, conservation restriction and other
land use and environmental regulations or building codes which are imposed by
Governmental Authorities; provided, that none of the foregoing in this clause
(v) would have a material adverse effect upon the continued use of the property
to which they relate in the conduct of the business or operations as currently
conducted thereon;
(vi) such other imperfections or irregularities in title,
charges, easements, survey exceptions, leases, subleases, license agreements and
other occupancy agreements, reciprocal easement agreements, restrictions and
other customary Encumbrances, Claims, and Interests on title to real property;
provided, that none of the foregoing in this clause (vi) would have a material
adverse effect upon the continued use of the property to which they relate in
the conduct of the business or operations currently conducted thereon; and
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(vii) such other imperfections or irregularities in title
disclosed to Purchaser on title reports and identified on Schedule 3.20(c)
attached hereto; provided, that none of the foregoing in this clause (vii) would
have a material adverse effect upon the continued use of the property to which
they relate in the conduct of the business or operations currently conducted
thereon.
"PERSON" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization, Governmental Authority, joint
venture, limited liability company or other entity formed, incorporated or
existing pursuant to any Law.
"PLAN" means the joint Chapter 11 plan of Seller substantially in the
form and substance of Exhibit E attached hereto, with such changes as may be
approved by Purchaser in its reasonable discretion.
"POST-CONSUMMATION TRUST" has the meaning set forth in the Plan.
"PURCHASE PRICE" shall mean the sum of the DIP Payment, the Second
Lien Payment, the IRB Payment, the Unsecureds Claim Payment, the Unsecureds Fund
Payment, the Allowed Secured Claims Payment, the Allowed Administrative Claims
Payment, the Allowed Priority Claims Payment, the Cure Amounts Payment, the
Indemnification Payment, the Tail Payment and the Escrow Fee Payment.
"REGULATED SUBSTANCE(S)" means any substance, material, compound,
pollutant or waste regulated under any Environmental Law including, without
limitation, radiation, noise, odors, asbestos, PCBs, petroleum and petroleum
containing materials.
"RETIREE BENEFITS SETTLEMENTS" means the settlements respecting
certain "retiree benefits" (within the meaning set forth in section 1114 (a) of
the Bankruptcy Code) the material terms of which are reflected on Schedule
1.1(a)(vii), which shall be memorialized in settlement agreements in form and
substance reasonably acceptable to Purchaser, as approved by the Bankruptcy
Court; provided, however that any deviation from the terms set forth on Schedule
1.1(a)(vii) shall require Purchaser's approval in its absolute and sole
discretion.
"SALE ORDER" means an Order substantially in the form and substance of
Exhibit F attached hereto with such changes as may be approved by Purchaser in
its reasonable discretion.
"SEC" means the United States Securities and Exchange Commission.
"SECOND LIEN LOAN" means that certain Second Lien Pledge and Security
Agreement, dated as of May 24, 2004, by and among X.X. Tower Corporation as
borrower, certain guarantors, various lenders and Silver Point Capital Fund LP,
as amended, supplemented or otherwise modified from time to time and all
instruments, security agreements, guaranties, intercreditor agreements and other
documents executed in connection therewith including that certain $155,000,000
synthetic letter of credit facility governed by the Second Lien Loan.
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"SECOND LIEN NOTEHOLDERS" means, collectively, the financial
institutions party to that certain $155,000,000 synthetic letter of credit
facility governed by the Second Lien Loan, and all permitted assigns,
transferees and successors-in-interest thereto.
"SEC REPORTS" means, collectively, the Company's (i) Quarterly Reports
on Form 10-Q for the quarterly periods ended September 30, 2006, June 30, 2006
and March 31, 2006 filed with the SEC on February 27, 2007, September 15, 2006
and August 4, 2006 respectively and (ii) Annual Report on Form 10-K for the year
ended December 31, 2005 filed with the SEC on June 27, 2006.
"SELLER EMPLOYEE" means each employee of the Seller employed in the
United States.
"SUBSIDIARIES" of a Person means, entities (i) the accounts of which
would be consolidated with those of Seller in Seller's consolidated financial
statements if such financial statements were prepared in accordance with GAAP,
or (ii) of which securities, membership interests or other equity ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests or more than 50% of the profits or losses of which
are owned, controlled or held by Seller or one or more direct or indirect
Subsidiaries.
"TAX" or "TAXES" means any federal, state, provincial, local,
territorial or foreign income, gross receipts, license, capital, capital gains,
payroll, wage, employment, excise, import, severance, stamp, occupation,
premium, windfall profits, environmental, including Taxes pursuant to Code
Section 59A, customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, ad valorem, registration, value added, goods and
services, alternative or add-on minimum, estimated or other tax of any kind
whatsoever, whether computed on a separate or consolidated, unitary or combined
basis or in any other manner, including any interest, penalty or addition
thereto, whether disputed or not and including any obligation to indemnify or
otherwise assume or succeed to the Tax Liability of any other Person.
"TAX RETURN" means any return, declaration, report, claim for refund
or information return or statement relating to Taxes, including any schedule or
attachment thereto, and including any amendment thereof.
"TITLE POLICY" means, one or more owner's title insurance policies
issued by a reputable title insurance company selected by Purchaser and licensed
to transact business in the state or jurisdiction in which each Owned Real
Property or Leased Real Property is located which policies insure title to a fee
simple interest in each Owned Real Property and a leasehold interest in each
Leased Real Property, in an amount reasonably satisfactory to Purchaser, and
with extended coverage over the general exceptions therein, free of all
Encumbrances except Permitted Encumbrances. The Title Policy shall be dated as
of the Closing Date and insure title to each Owned Real Property and Leased Real
Property and all recorded easements benefiting such parcels and contain such
endorsements as Purchaser may reasonably request, in each such circumstance
where the endorsement is available.
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"TOWER GROUP" means collectively, the Company and the Company's
Subsidiaries, and a member of the Tower Group refers to any member thereof.
"TRANSFER TAXES" means all sales, value added, goods and services,
excise, multi-stage, retail sales, use and land transfer taxes, stamp duties,
stamp duty reserve tax, stamp duty land tax and any other similar taxes, duties,
assessments or governmental charges, together with all interest, penalties and
additions imposed with respect to such amounts. For avoidance of doubt, Transfer
Taxes do not include any Taxes on income, capital gains or other profits, and
nothing in this Agreement shall obligate Purchaser to pay any income, capital
gains or other profits Taxes arising as a result of the transactions
contemplated by this Agreement.
"TREASURY REGULATIONS" or "TREAS. REGS." means the regulations
promulgated under the Code by the United States Department of the Treasury or
the IRS, including temporary regulations.
"UNSECURED CREDITORS TRUST" has the meaning set forth in the Plan.
"WORKING CAPITAL OBLIGATIONS" means
(a) all current Liabilities of Seller, other than any Liability
included in the definition of the Purchase Price and used in the calculation of
the Purchase Price paid to, or on behalf of, Seller by Purchaser at the Closing
and thereafter;
(i) which are ordinary and customary;
(ii) which are related to the Acquired Assets;
(iii) which would be accrued by Seller as current
Liabilities in accordance with GAAP applied on a consistent basis with Seller's
historical accounting practices; and
(iv) which relate to Seller's operations occurring after
February 2, 2005.
(b) Working Capital Obligations (i) to the extent they are
postpetition and satisfy clauses (a)(i), (a)(ii), (a)(iii) and (a)(iv) of this
definition include, but are not limited to, (A) accounts and trade payables, (B)
accrued Taxes of every kind or nature including federal, state, sales and
property Taxes and Transfer Taxes, but not any capital gain, income or other
Taxes arising from the transactions contemplated hereby; and with respect to
Transfer Taxes arising from or related to the transactions contemplated hereby,
Working Capital Obligations (and Purchaser's liability with respect to Transfer
Taxes) shall be limited to, and shall not exceed, an amount up to Seven Hundred
Fifty Thousand Dollars ($750,000), (C) accrued expenses and (D) accrued
compensation related items including sick pay, vacation pay, holiday pay and
paid time off obligations, and (ii) shall exclude Indebtedness and professional
fees. The Parties also acknowledge that (X) pre-petition secured Tax
obligations, including all of the Tax obligations listed on Schedule
1.1(a)(viii), to the extent Allowed, whether or not they are pre-petition, and
(Y) the Tax obligations that are Allowed Priority Claims other than Tax claims
Allowed under section 507(a)(2) of the Bankruptcy Code and section 503(b) of the
Bankruptcy
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Code, including those listed on Schedule 1.1(a)(ix), to the extent Allowed, are
not Working Capital Obligations.
(c) Notwithstanding anything set forth to the contrary in this
Agreement, Working Capital Obligations shall not include any Bankruptcy Related
Administrative Claims nor any amount included within the categories making up
the Capped Payments included in the Purchase Price Cap.
Section 1.2. Other Defined Terms.
The following terms have the meanings defined for such terms in the
Sections set forth below:
Term Reference
---- --------------------
$ or Dollars Section 9.14
2006 Audited Statements Section 3.11(c)
365 Motions Section 5.16
Agreement Preamble
Allowed Administrative Claims Payment Section 2.1(a)(vii)
Allowed Priority Claims Payment Section 2.1(a)(viii)
Allowed Secured Claims Payment Section 2.1(a)(vi)
Assumed Contract List Section 5.16
Balance Sheet Section 3.11(a)(i)
Balance Sheet Date Section 3.11(a)(i)
Bankruptcy Case Recitals
Bankruptcy Code Recitals
Bankruptcy Court Recitals
Capped Payments Section 2.1(b)
Change in Control Agreements Section 3.18(f)
Chapter 11 Cases Section 5.13
Chapter 5 Claims Section 1.1
Closing Section 2.6
Closing Date Section 2.6
COBRA Section 3.18(g)
Company Preamble
Company Disclosure Schedule Article 3
Cure Amount Payment Section 2.1(a)(ix)
Deposit Section 2.5
DIP Payment Section 2.1(a)(i)
DOJ Section 5.6(b)
DOL Section 3.18(c)(vii)
EEOC Section 3.19(a)(xi)
Electronic Copy Section 9.11(b)
Employee Plan(s) Section 3.18(a)(iii)
Escrow Fee Payment Section 2.1(a)(xii)
Financial Statements Section 3.11(a)
FIRPTA Affidavit Section 2.8(g)
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Term Reference
---- --------------------
FTC Section 5.6(b)
Hired Employees Section 6.1(b)
Indemnification Payment Section 2.1(a)(x)
Intellectual Property Assignments Section 2.8(c)
IRB Payment Section 2.1(a)(iii)
Leased Real Property Section 3.20(b)
Listed Intellectual Property Section 3.21(b)
Management Incentive Plan Section 6.2
Metalsa Section 5.1(b)(xiii)
Name Change Filings Section 5.13
Monthly Representation Report Section 5.1(a)(v)
Notice Group Section 5.2(a)(i)
Owned Real Property Section 3.20(a)
Party(ies) Preamble
Purchase Price Balance Section 2.1(e)
Purchase Price Cap Section 2.1(b)
Purchaser Preamble
Real Property Lease Section 3.20(b)
Reorganizations Section 5.11
Second Lien Fee Claim Section 2.1(a)(ii)
Second Lien Payment Section 2.1(a)(ii)
Seller Preamble
Seller Certificate Section 7.2(c)
Senior Management Section 6.2
Subsequent Purchase Price Payment Section 2.1(e)
Subsequent Purchase Price Payment Notice Section 2.1(e)
Supplier(s) Section 3.15
Tail Payment Section 2.1(a)(xi)
Tail Policy Section 2.1(a)(xi)
Tax-Qualified Plan Section 3.18(h)
Termination Date Section 8.1(c)
Unsecureds Claim Payment Section 2.1(a)(iv)
Unsecureds Funds Payment Section 2.1(a)(v)
WARN Act Section 3.19(a)(i)
ARTICLE 2.
PURCHASE AND SALE
Section 2.1. Transfer of Acquired Assets and Assumption of Assumed
Liabilities.
(a) On the terms and conditions contained in, and subject to the
terms of, this Agreement, the Sale Order and the Confirmation Order, at the
Closing Seller shall sell, convey, transfer, assign and deliver to Purchaser,
and Purchaser shall purchase from Seller all of
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Seller's right, title and interest, as of the Closing, in and to the Acquired
Assets and Assumed Contracts, free and clear of any Claims, Interests or
Encumbrances other than Permitted Encumbrances. In consideration for the sale
and transfer of the Acquired Assets, Purchaser shall assume, pay, perform and
discharge when due the Assumed Liabilities and shall pay to or on behalf of
Seller as set forth herein, the sum of:
(i) the amount of cash advised by XX Xxxxxx Xxxxx Bank,
N.A., in its capacity as agent for the DIP Lenders, in a payoff letter delivered
to Seller (but subject to Purchaser's verification) prior to the Closing, as
necessary to repay in full and otherwise satisfy in full all Liabilities of
Seller pursuant to the DIP Loan Credit Agreement as of the Closing Date (Seller
and Purchaser shall jointly instruct Escrow Agent to pay the Deposit at the
Closing as part of the amount due pursuant to this Section 2.1(a)(i) and
pursuant to the payoff instructions set forth in the payoff letter delivered by
XX Xxxxxx Chase Bank, N.A. to Seller at the Closing) (collectively, the "DIP
PAYMENT"); plus
(ii) the amount of cash advised by Silver Point Capital Fund
LP, as agent for the Second Lien Noteholders, in a payoff letter delivered to
Seller (but subject to Purchaser's verification) prior to the Closing as
necessary to repay in full and otherwise satisfy in full all Liabilities of
Seller pursuant to the Second Lien Loan as of the Closing Date; provided,
however, notwithstanding the foregoing, subject to Section 2.2 of this
Agreement, the amount paid pursuant to this Section 2.1(a)(ii) on account of all
nonlegal professional fees owed in respect of the Second Lien Loan shall not
exceed Four Million Dollars ($4,000,000) (the "SECOND LIEN FEE CLAIM") in the
aggregate (collectively, the "SECOND LIEN PAYMENT"); plus
(iii) the amount of cash advised by XX Xxxxxx Trust Company,
N.A. or its successors, in a payoff letter delivered to Seller (but subject to
Purchaser's verification) prior to the Closing Date, as necessary to repay in
full and otherwise satisfy in full all Liabilities of Seller pursuant to the
Industrial Revenue Bonds; provided, however, if (A) Purchaser is permitted to
assume the Industrial Revenue Bonds pursuant to the terms of the Industrial
Revenue Bonds, (B) at least ten (10) Business Days prior to the Closing,
Purchaser provides Seller written notice of its intention to assume the
Industrial Revenue Bonds, (C) prior to the Closing, Purchaser satisfies all
requirements necessary to allow Purchaser to assume such Industrial Revenue
Bonds including replacing any letters of credit securing the Industrial Revenue
Bonds, if required by the Industrial Revenue Bond holders, and (D) at the
Closing, Purchaser effectively assumes all of Seller's Liability under the
Industrial Revenue Bonds, then no amount shall be payable to Seller pursuant to
this Section 2.1(a)(iii) (the "IRB PAYMENT"); plus
(iv) Ten Million Dollars ($10,000,000), which amount shall
be paid to the Unsecured Creditors Trust for distribution by the Unsecured
Creditors Trust pursuant to the Plan, (the "UNSECUREDS CLAIM PAYMENT"); plus
(v) Two Million Dollars ($2,000,000), which amount shall be
paid pursuant to the Plan to the Unsecured Creditors Trust to fund the costs
associated with administering the Unsecured Creditors Trust, including the
prosecution of the avoidance
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claims or causes of action set forth on Schedule 1.1(a)(ii) attached hereto (the
"UNSECUREDS FUNDS PAYMENT"); plus
(vi) the amount of cash necessary to repay in full and
otherwise satisfy in full the Allowed Secured Claims, other than claims pursuant
to the DIP Loan Credit Agreement, the Second Lien Loan and the Industrial
Revenue Bonds (the "ALLOWED SECURED CLAIMS PAYMENT"); plus
(vii) the amount of cash necessary to repay in full and
otherwise satisfy in full the Bankruptcy Related Administrative Claims (the
"ALLOWED ADMINISTRATIVE CLAIMS PAYMENT"); plus
(viii) the amount of cash necessary to repay in full and
otherwise satisfy in full all Allowed Priority Claims (the "ALLOWED PRIORITY
CLAIMS PAYMENT"); plus
(ix) the amount of cash necessary to pay in full and
otherwise satisfy in full the Cure Amounts (the "CURE AMOUNT PAYMENT"); plus
(x) Two Million Dollars ($2,000,000), which amount is
intended to be used by Seller pursuant to the Plan to reserve against directors'
and officers' indemnification claims against Seller (the "INDEMNIFICATION
PAYMENT"); plus
(xi) an amount up to, but not exceeding, Four Million
Dollars ($4,000,000) paid (or to be paid simultaneously with the Closing) (the
"TAIL PAYMENT") to Seller to obtain and fully pay for a "tail" insurance policy
or policies with a claims period of at least six (6) years from the Closing Date
from an insurance carrier or insurance carriers with approximately equivalent
credit rating as Seller's current insurance carrier (the "TAIL POLICY"), which
Tail Policy shall be from an insurer, contain terms and provisions and otherwise
be satisfactory to Purchaser in its reasonable discretion, with respect to
directors' and officers' liability insurance in an amount and scope
substantially as favorable as Seller's existing policies with respect to matters
existing or occurring at or prior to the Closing Date; plus
(xii) Three Thousand Dollars ($3,000) for fees pursuant to
the Escrow Agreement (the "ESCROW FEE PAYMENT").
(b) Notwithstanding the actual aggregate amount of the Allowed
Secured Claims Payment, the Allowed Administrative Claim Payment, the Allowed
Priority Claim Payment, the Cure Amount Payment, the Indemnification Payment,
and the Tail Payment (all such payments collectively referred to as the "CAPPED
PAYMENTS"), under no circumstances shall Purchaser be required to pay more than
Seventy Million Dollars ($70,000,000) (the "PURCHASE PRICE CAP") in respect of
such Capped Payments.
(c) At the Closing, Purchaser shall cause to be paid, (W) to
Seller or, at Purchaser's election, directly to the DIP Lenders, the Second Lien
Loan lenders and the Industrial Revenue Bond holders, as the case may be, on
behalf of Seller, by wire transfer of immediately available funds, the DIP
Payment, the Second Lien Payment and the IRB Payment (if necessary), (X) to the
Unsecured Creditors Trust, the Unsecureds Claim Payment and the
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Unsecureds Funds Payment, (Y) to Seller (or if established the Post-Consummation
Trust) Thirty Five Million Dollars ($35,000,000) on account of the Capped
Payments for payment pursuant to the Plan and (Z) to Seller the Escrow Fee
Payment.
(d) Seller or the Post-Consummation Trust, as the case may be,
shall have the right, subject to the provisions of the Plan, beginning thirty
(30) days after the Closing Date and continuing until the Capped Payments Bar
Date, to request, by delivering Subsequent Purchase Price Payment Notices, that
Purchaser deliver Subsequent Purchase Price Payments, up to the Purchase Price
Balance, in an amount necessary for Seller or the Post-Consummation Trust, as
the case may be, to maintain a balance of Ten Million Dollars ($10,000,000) on
account of the Capped Payments; provided, however, that other than in respect of
the last Subsequent Purchase Price Payment Notice, no Subsequent Purchase Price
Payment Notice may be for an amount less than Two Million Dollars ($2,000,000)
irrespective of whether such minimum request amount would cause Seller or the
Post-Consummation Trust, as the case may be, to then maintain a balance of less
than Ten Million Dollars ($10,000,000) on account of the Capped Payments for any
period of time. The first such Subsequent Purchase Price Payment Notice shall
require five (5) calendar days advance notice and all other Subsequent Purchase
Price Payment Notices shall require fifteen (15) calendar days advance notice.
(e) For the purposes of this Agreement, a "SUBSEQUENT PURCHASE
PRICE PAYMENT NOTICE" shall be a written notice executed by an authorized
representative of Seller or the Post-Consummation Trust, as the case may be, and
shall include (i) a request for payment of a specific dollar amount, (ii) an
itemized summary by claim of all payments of amounts on account of Allowed
claims within the categories of Capped Payments since the date of the last
Subsequent Purchase Price Payment Notice and (iii) a statement as to the amount
then on deposit with Seller or the Post-Consummation Trust, as the case may be.
Each payment made by Purchaser to Seller or the Post-Consummation Trust, as the
case may be, pursuant to the terms of Section 2.1(d) shall be deemed a
"SUBSEQUENT PURCHASE PRICE PAYMENT", and such payments shall be paid by wire
transfer of immediately available funds. For the purposes of this Agreement, at
any point in time the "PURCHASE PRICE BALANCE" shall mean the amount of cash
equal to Thirty Five Million Dollars ($35,000,000), less the sum of all
Subsequent Purchase Price Payments. Notwithstanding anything set forth herein,
aggregate payments pursuant to Section 2.1(c)(y) and Sections 2.1(d) and (e) may
not exceed the Purchase Price Cap, and under no circumstances shall Purchaser be
required or requested to pay more than Seventy Million Dollars ($70,000,000)
toward the Capped Payments.
(f) Seller or the Post-Consummation Trust, as the case may be,
shall notify Purchaser a reasonable time prior to making any Capped Payments.
(g) In the event Seller or the Post-Consummation Trust, as the
case may be, receives any amount from Purchaser in respect of Capped Payments
pursuant to Section 2.1(c)(y) and (y) and Sections 2.1(d) and (e), which amounts
are no longer required for the payment of Capped Payments, Seller or the
Post-Consummation Trust, as the case may be, shall promptly return all such
amounts to Purchaser together with all interest accrued thereon. Similarly, not
later than the fifth (5th) Business Day following the Capped Payments Bar Date,
Seller or the Post-Consummation Trust, as the case may be, shall promptly return
all such amounts then being held by Seller or the Post-Confirmation Trust, as
the case may be, to
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Purchaser by wire transfer of immediately available funds to an account
designated by Purchaser. Seller or the Post-Consummation Trust, as the case may
be, shall, upon Purchaser's reasonable request provide such information as
Purchaser may request, from time to time, respecting the amount paid in respect
of the Capped Payments, the balance still held by or on behalf of Seller or the
Post-Consummation Trust, as the case may be, or the amounts yet to be paid to
holders of claims within the categories of Capped Payments. Seller or the
Post-Consummation Trust, as the case may be, shall notify Purchaser at such time
as there are no further pending claims within the categories of Capped Payments.
(h) Upon Purchaser's sale of all or substantially all of its
assets prior to the satisfaction or termination of its obligations herein
respecting Capped Payments, Purchaser shall either cause the buyer in such
transaction to assume the Purchaser's obligations under Sections 2.1(d) through
(g), pay to Seller or the Post-Consummation Trust, as the case may be, an amount
equal to the Purchase Price Balance, or provide reasonably adequate assurance of
such payment with a letter of credit, but any such payment shall not be deemed a
waiver of any of Purchaser's rights under Sections 2.1(d), (e), (f) or (g)
including, without limitation, the right potentially to receive back amounts
pursuant to Section 2.1(g).
(i) Provided the Sale Order is entered by the Bankruptcy Court
and subject to the terms thereof, Seller shall sell, transfer, assign, convey
and deliver to Purchaser all of Seller's right, title and interest in, to and
under the Acquired Assets and Assumed Contracts free and clear of all Claims,
Interests or Encumbrances (other than Permitted Encumbrances).
Section 2.2. Right to Contest Claims. Purchaser may object and contest
any filed or submitted Bankruptcy Case Claims and Second Lien Fee Claim pursuant
to, among other sections, sections 105, 363 and 365 of the Bankruptcy Code
(except no objection may be made to the KERP (subject to the dollar limitation
provided herein), the Indemnification Payment, the Three Million Five Hundred
Thousand Dollar ($3,500,000) payment due in respect of the amounts owed to the
Milwaukee unions as described in the definition of Bankruptcy Related
Administrative Claim clause (d) or with respect to the fees owed to the
professionals identified in an e-mail, dated May 1, 2007, sent from Seller's
counsel to Purchaser's counsel and received at 2:47 A.M., ET, whose fees are all
subject to the approval of the Bankruptcy Court (which e-mail indicated the name
of the professional, the party represented, and the nature of the services
performed)). Purchaser shall have no obligation to pay any Capped Payment or any
portion of the Second Lien Fee Claim unless and until such claim is Allowed by
the Bankruptcy Court.
Section 2.3. Excluded Liabilities. Except for the assumption of the
Assumed Liabilities, Purchaser does not, and shall not, assume or pay any
Excluded Liabilities. For avoidance of doubt, the Tower Group will not discharge
or otherwise satisfy any Liabilities (including the Indebtedness) of the Foreign
Entities in connection with the transactions contemplated hereby, and following
the Closing, the Foreign Entities shall have all the Liabilities of the Foreign
Entities immediately prior to the Closing.
Section 2.4. Allocation of Purchase Price. Purchaser shall prepare an
allocation of the Purchase Price, and all other capitalized costs, among the
Acquired Assets in accordance with Code Section 1060 and the Treasury
Regulations thereunder, and any similar provision of state, provincial, local,
territorial or foreign law, as appropriate. Purchaser shall deliver such
allocation
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to Seller as promptly as practicable after the Closing Date. Promptly following
receipt thereof, Seller may discuss with Purchaser and Purchaser shall consider,
in good faith, any potential changes to such allocation that would result in a
material decrease in state or local income Tax Liability of Seller while not
resulting in a meaningful current or future increase in the income Tax Liability
of Purchaser. Thereafter, Purchaser shall deliver a final allocation to Seller,
which final allocation shall be binding upon Seller. Purchaser and Seller and
their respective Affiliates shall report, act and file Tax Returns, including,
but not limited to IRS Form 8594, in all respects and for all purposes
consistent with such final allocation prepared by Purchaser. Seller shall timely
and properly prepare, execute, file and deliver all such documents, forms and
other information as Purchaser may reasonably request to prepare such
allocation. Neither Purchaser nor Seller shall take any position, whether in
audits, Tax Returns or otherwise, that is inconsistent with such final
allocation unless required to do so by applicable law.
Section 2.5. Deposit.
Not later than the date that is three (3) Business Days next following
the date hereof, Purchaser shall deposit with the Escrow Agent, pursuant to the
terms of the Escrow Agreement, Twenty Five Million Dollars ($25,000,000) by wire
transfer of immediately available funds (collectively, with any accrued interest
thereon, the "DEPOSIT"), which Deposit shall be held and released in accordance
with the provisions of the Escrow Agreement and the other provisions contained
herein. Provided that the transactions contemplated hereby are consummated, the
Deposit shall be paid to the DIP Lenders at the Closing as more fully set forth
in Section 2.1(a)(i) of this Agreement.
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Section 2.6. Closing. Upon the terms and subject to the conditions of
this Agreement, the consummation of the transactions contemplated by this
Agreement shall take place at a closing (the "CLOSING") to be held at the
offices of Xxxxxxxx & Xxxxx LLP, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
9:00 a.m., Eastern Standard Time, on July 31, 2007 or if mutually agreed upon in
writing by Purchaser and Seller the second (2nd) Business Day following, but not
including, the date on which the last of the conditions set forth in Article 7
are satisfied or waived, other than those conditions that by their nature are to
be satisfied at the Closing, but subject to fulfillment or waiver of such
conditions, or at such other place or at such other time or on such other date
as the Parties may mutually agree upon in writing. The day on which the Closing
takes place shall be deemed the "CLOSING DATE."
Section 2.7. Letters of Credit. Subject to Section 2.1(a)(iii), at the
Closing, Purchaser will cause to be posted letters of credit in substitution for
the letters of credit identified in Schedule 3.2(b) attached hereto. To the
extent the Industrial Revenue Bonds are repaid and not assumed, Purchaser shall
have no obligation to replace the letters of credit in respect of the Industrial
Revenue Bonds.
Section 2.8. Closing Deliveries by Seller.
At the Closing, Seller shall deliver to Purchaser:
(a) one or more Assignment and Assumption Agreements duly
executed by Seller in favor of Purchaser and/or one or more of its assignees as
requested by Purchaser;
(b) one or more Bills of Sale duly executed by Seller in favor of
Purchaser and/or one or more of its assignees as requested by Purchaser;
(c) one or more assignments of the registrations and applications
for registration of the Listed Intellectual Property, for recording in the
United States Patent and Trademark Office or the United States Copyright Office
or similar office in a foreign jurisdiction, if any, as reasonably requested by
Purchaser in writing at least five (5) Business Days prior to the Closing
(collectively, the "INTELLECTUAL PROPERTY ASSIGNMENTS");
(d) the certificates representing all of the issued and
outstanding shares of capital stock or other similar instruments representing
the equity that constitutes a portion of the Acquired Assets of a Tower Group
entity being acquired hereunder; except for each Seller entity, duly endorsed in
blank or accompanied by duly executed stock powers, with appropriate transfer
stamps, if any, or notarial certificate affixed thereto;
(e) notarial or other deeds of transfer, or other similar
instruments, to effect the transfer, sale or assignment of the stock, limited
liability company interests, partnership interests or any other equity interests
of Foreign Entities being acquired hereunder, if reasonably requested by
Purchaser in writing at least twenty (20) calendar days prior to the Closing;
(f) the Seller Certificate required to be delivered pursuant to
Section 7.2(c);
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(g) any other document reasonably requested by Purchaser in
writing at least five (5) Business Days prior to the Closing and necessary to
effectuate the transfer of the Acquired Assets or the Assumed Contracts from
Seller to Purchaser, including, without limitation, Transfer Tax returns,
vehicle titles, licenses, Environmental Permits (to the extent transferable),
duly executed real estate deeds and other similar or collateral documents for
each of Seller's Owned Real Property in form acceptable for recording in the
jurisdiction where the respective Owned Real Property is located and an
affidavit in form and substance required under the Treasury Regulations issued
pursuant to Code Section 1445 stating that no Seller entity is a "Foreign
Person" as defined in Code Section 1445 (the "FIRPTA AFFIDAVIT");
(h) any customary affidavits, undertakings and title clearance
documents reasonably requested by Purchaser in writing at least twenty (20)
calendar days prior to the Closing and necessary for Purchaser to obtain the
Title Policy; provided that none of the foregoing shall require the payment of
money, the placement of any funds in escrow, or the pledge of any other
collateral by Seller;
(i) the Name Change Filings as more fully set forth in Section
5.13 of this Agreement; and
(j) the Sale Order and the Confirmation Order entered by the
Bankruptcy Court.
Section 2.9. Closing Deliveries by Purchaser. At the Closing,
Purchaser shall deliver to or on behalf of Seller:
(a) the portion of the Purchase Price to be delivered at Closing
as provided herein;
(b) the Assignment and Assumption Agreement duly executed by
Purchaser;
(c) the Xxxx of Sale duly executed by Purchaser;
(d) the Intellectual Property Assignments duly executed by
Purchaser;
(e) Purchaser Certificate required to be delivered pursuant to
Section 7.3(d) of this Agreement;
(f) certified copies of the resolutions of Purchaser's board of
directors (or similar governing body) authorizing the execution, delivery and
performance of this Agreement and the other agreements contemplated hereby and
the consummation of the transactions contemplated hereby and thereby; and
(g) subject to Section 2.1(a)(iii), evidence reasonably
satisfactory to Seller that Purchaser has posted any letters of credit required
pursuant to Section 2.7 hereof.
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth on the disclosure schedules delivered by Seller to
Purchaser on or prior to the execution of this Agreement (each a "SCHEDULE" and
together, the "COMPANY DISCLOSURE SCHEDULE"), the Company hereby represents and
warrants to Purchaser that:
Section 3.1. Organization.
(a) Each of the Company and the Company Subsidiaries is duly
organized, validly existing and in good standing under the Laws of its
respective jurisdiction and organization and has, subject to the necessary
authority from the Bankruptcy Court, the requisite corporate or similar power
and authority to own or lease its properties and to carry on its business as
presently conducted and is duly qualified to do business and is in good
standing, where such concept exists, as a foreign corporation in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification necessary, except where the failure to
be so organized, qualified or in good standing or have such power or authority
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(b) The entities set forth on Schedule 3.1(b) are the only
Subsidiaries of the Company. Schedule 3.1(b) sets forth (i) the name and
jurisdiction of incorporation of each Foreign Entity, (ii) if applicable, the
total number of shares of each class of capital stock of each Foreign Entity
authorized and the number of shares outstanding and the number of shares owned
by the Tower Group and the specific Tower Group entity which is the owner and
(iii) a complete list of the directors and officers of each Foreign Entity. All
of the issued and outstanding shares of capital stock or similar instrument
representing the equity interest of each Foreign Entity has been duly and
validly authorized and issued and are fully paid, non-assessable and free of
preemptive rights. None of the outstanding shares of capital stock of such
Foreign Entity has been issued in violation of the preemptive rights of any
stockholder of such entity. The shares of capital stock or similar instruments
of such entity were issued in material compliance with all applicable Laws.
(c) Except as set forth in Schedule 3.1(c), there are no existing
agreements, subscriptions, options, warrants, calls, commitments, trusts, voting
or otherwise, or rights of any kind whatsoever granting to any Person any
interest in or the right to purchase or otherwise acquire from any Foreign
Entity or from any Seller in respect of any Foreign Entity, at any time, or upon
the occurrence of any stated event, any shares of capital stock of or equity
interest in any such Foreign Entity, whether or not presently issued or
outstanding, nor are there any outstanding shares of capital stock of or equity
interests in any such Foreign Entity or any other entity which are convertible
into or exchangeable for other shares of capital stock of or equity interests in
any Foreign Entity nor are there any agreements, subscriptions, options,
warrants, calls, commitments or rights of any kind granting to any Person any
interest in or the right to purchase or otherwise acquire from any such member
of the Tower Group or any other Person any shares of capital stock or equity
interests so convertible or exchangeable, nor are
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there any proxies, agreements or understandings with respect to the voting of
the shares of capital stock of or equity interests in any Foreign Entity.
(d) Seller has made available or delivered to Purchaser true and
complete copies of the organizational documents of each member of the Tower
Group.
Section 3.2. Bank Accounts; Letters of Credit. (a) Schedule 3.2(a)
lists substantially all current material bank accounts, lock boxes and safe
deposit boxes relating to the business and operations of each Foreign Entity
(with such Schedule to be amended a reasonable time prior to Closing to list all
such accounts), including the name of the bank or other institution where such
account or box is located and the name of each authorized signatory thereto.
(b) Schedule 3.2(b) sets forth all outstanding letters of credit
issued by financial institutions for the account of the Tower Group, setting
forth, in each case, the financial institution issuing such letter of credit,
the maximum amount available under such letter of credit, the terms, including
the expiration date, of such letter of credit and the party or parties in whose
favor such letter of credit was issued.
Section 3.3. Affiliate Transactions. Except (a) for matters described
in the Company's Annual Report on Form 10-K for the year ended December 31, 2005
filed with the SEC and (b) for compensation paid or payable by the Tower Group
to bona fide employees of the Tower Group in the ordinary course of business and
consistent with past practice, no current or former officer or director of the
Tower Group nor any of their respective relatives or spouses, is now, or has
been during the last two (2) years, (X) a party to any transaction or contract
with the Tower Group or any of their respective employees or Affiliates, (Y) the
direct or indirect owner of a material interest in any Person which is a present
or potential competitor, supplier or customer of the Tower Group (other than
non-affiliated holdings in publicly-held companies) or (Z) a recipient of any
material benefit or material payment from the Tower Group. Except as set forth
on Schedule 3.3 or in respect of any obligation to indemnify any officer or
director of the Tower Group pursuant to any certificate of incorporation, by-law
or similar document, or in any employment agreement identified in the Schedules
to this Agreement, the Tower Group is not a guarantor or otherwise directly or
indirectly liable for any actual or potential Liability of any of its officers,
directors or employees other than members of the Tower Group.
Section 3.4. Insurance. To Seller's Knowledge, Schedule 3.4 sets forth
a list and brief description of the material policies of insurance currently
maintained, owned or held by the Tower Group. Each member of the Tower Group has
complied in all material respects with each such insurance policy to which it is
a party and has not failed to give any notice or present any claim thereunder in
a due and timely manner. Except as disclosed in Schedule 3.4, the full policy
limits (subject to deductibles provided in such policies) are available and
unimpaired under each such policy and, to Seller's Knowledge, no insurer under
any of such policies has a basis to void such policy on grounds of nondisclosure
on the part of any member of the Tower Group thereunder. Each such policy is in
full force and effect and to Seller's Knowledge, will not in any way be affected
by, or terminate or lapse by reason of, the transactions contemplated by this
Agreement. All premiums with respect to such policies have been paid in full and
on time (it being understood that the premiums for the current year have been
financed under the Xxxxx Financing and that regular payments remain due on the
financed premiums, but that all
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such payments due prior to the date hereof have been paid when due). No
reservation of rights letters with respect to Acquired Assets, Assumed
Liabilities or other matters for which Purchaser may have responsibility after
the Closing have been issued by any insurance carrier. A reasonable time prior
to the Auction, Seller shall use commercially reasonable efforts to supplement
Schedule 3.4 to provide information with respect to all insurance policies
currently maintained including nature of coverage, limits, deductibles, and
premiums, and all insurance policies maintained, owned or held by the Tower
Group within the past two (2) years.
(b) Schedule 3.4 also shows a good faith estimate of the Seller's
workers compensation claims and the letters of credit securing such claims. The
letters of credit securing the Seller's workers compensation Liabilities exceed
such good faith estimate.
Section 3.5. Accounts Receivable, Inventory and Accounts Payable. (a)
Except as set forth in the Financial Statements, to Seller's Knowledge, all
accounts receivable of the Tower Group:
(i) have arisen from bona fide transactions by the Tower
Group in the ordinary course of its business and represent and will represent
bona fide claims against debtors for sales and other charges.
(b) Except as set forth in the Financial Statements, to Seller's
Knowledge, the inventories of the Tower Group are:
(i) properly included in all material respects in the
Financial Statements in accordance with GAAP; and
(ii) are of such quality as to be useable and salable in all
material respects in the ordinary course of business.
(c) Except as set forth in Schedule 3.5(c), the Tower Group has
no accounts payable that are more than ninety (90) days past due.
Section 3.6. Export Control Laws. Except as set forth on Schedule 3.6
attached hereto, since January 1, 2005, to Seller's Knowledge, each member of
the Tower Group has conducted its export transactions material compliance with
the Export Administration Act and implementing Export Administration Regulations
except as would not reasonably be expected to result in Liability to Purchaser
in excess of Two Million Dollars ($2,000,000). Without limiting the foregoing,
since January 1, 2005, to Seller's Knowledge, except as would not reasonably be
expected to result in Liability to Purchaser in excess of Two Million Dollars
($2,000,000):
(a) Each member of the Tower Group has obtained all material
export licenses and other material approvals required for its exports of
products, software and technologies from the United States and in case of a
Foreign Entity, from the state where such Foreign Entity is incorporated or has
its domicile or registered seat or principal place of business;
(b) Each member of the Tower Group is in material compliance with
the terms of all applicable material export licenses or other approvals;
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(c) There are no pending or threatened Claims against any member
of the Tower Group with respect to such material export licenses or other
material approvals;
(d) There are no actions, conditions or circumstances pertaining
to the Tower Group's export transactions that may reasonably be anticipated to
give rise to any future Claims; and
(e) To Seller's Knowledge, no consents or approvals for the
transfer of export licenses to Purchaser are required, or such consents and
approvals can be obtained expeditiously without material cost.
Section 3.7. Certain Payments. Except as set forth on Schedule 3.7
attached hereto, since January 1, 2005, to Seller's Knowledge, no member of the
Tower Group, any officer, any director of the Tower Group, or, to Seller's
Knowledge, any employee, agent or other Person acting on behalf of the Tower
Group has, directly or indirectly, given or agreed to unlawfully give any
material amount of money by way of gift, contribution or rebate, or given or
agreed to give any bribe, payoff, influence payment, kickback or similar
benefit, other than legal price concessions to customers in the ordinary course
of business, to any customer, supplier, employee or agent of a customer or
supplier, or official or employee of any Governmental Authority or other Person
who was, is, or may be in a position to help or hinder the business of the Tower
Group, or assist in connection with any actual or proposed transaction.
Section 3.8. Authority; Enforceability. Subject to the Bankruptcy
Court's entry of the Sale Order, Seller has all necessary corporate power and
authority to execute and deliver this Agreement and the Ancillary Agreements, to
perform its obligations hereunder and thereunder, and to consummate the
transactions contemplated hereby and thereby. Subject to the Bankruptcy Court's
entry of the Sale Order, the execution, delivery and performance by Seller of
this Agreement and the Ancillary Agreements and the consummation by Seller of
the transactions contemplated hereby and thereby, has been duly and validly
authorized by all necessary corporate action on the part of Seller and no other
corporate proceedings on the part of Seller are necessary to authorize this
Agreement or the Ancillary Agreements or to consummate the transactions
contemplated hereby or thereby. This Agreement has been duly executed and
delivered by Seller and, subject to the Bankruptcy Court's entry of the Sale
Order, assuming due authorization, execution and delivery of this Agreement by
Purchaser, constitutes a legal, valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms.
Section 3.9. No Conflicts or Violations; Consents.
(a) Except as set forth in Schedule 3.9 and assuming entry of the
Sale Order, neither the execution, delivery or performance by Seller of this
Agreement, nor the consummation of the transactions contemplated hereby and
thereby shall:
(i) conflict with, or result in a breach or a violation of,
any provision of the certificate of incorporation or bylaws or other
organizational documents of any member of the Tower Group; and
(ii) constitute, with or without notice or the passage of
time or both, a breach, violation or default, create any material Liability or
any Encumbrance, other than
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Permitted Encumbrances, (A) under any Law applicable to or binding on any member
of the Tower Group or any of their respective properties or assets, or (B) under
any joint venture, operating, partnership or shareholder agreement with respect
to any Foreign Entity, or (C) give rise to any right of termination,
modification, cancellation, suspension, limitation or revocation under any
license or permit or Governmental Authority filing to which any member of the
Tower Group is subject or by which any of their respective properties or assets,
including the Acquired Assets or Assumed Contracts, is bound, except in the case
of those breaches, violations, defaults or rights of termination, modification,
cancellation, prepayment, suspension, revocation or acceleration that are
excused by or are unenforceable as a result of the Bankruptcy Case or the
applicability of the Bankruptcy Code, but only to the extent such excuse, lack
of enforceability or application of the Bankruptcy Code will continue to apply
in favor of Purchaser following the Closing.
Section 3.10. Title to Assets and Location of Assets. Except as set
forth on Schedule 3.10, Seller has good and marketable title to each of the
Acquired Assets owned by such Seller, free and clear of any Claims, Interests or
Encumbrances other than Permitted Encumbrances and Encumbrances which are (a) in
favor of Persons to be listed no later than May 18, 2007 on Schedule 3.10 (with
name, address and telephone number) and (b) that will be released or otherwise
removed upon the Closing if the Sale Order is entered by the Bankruptcy Court.
The Foreign Entities have good and marketable title, to their respective assets
owned by such Foreign Entities, to Seller's Knowledge, free and clear of any
Claims, Interests or Encumbrances, other than Permitted Encumbrances.
Section 3.11. Financial Information.
(a) Schedule 3.11(a) attached hereto contains copies of the
following financial statements of the Tower Group (collectively, the "FINANCIAL
STATEMENTS"):
(i) the historical unaudited consolidated balance sheet (the
"BALANCE SHEET") as of December 31, 2006 (the "BALANCE SHEET DATE");
(ii) the historical unaudited consolidated statements of
cash flow and operating income for the year ended on the Balance Sheet Date; and
(iii) the historical audited consolidated balance sheet as
of December 31, 2005 and (iv) the audited consolidated statements of cash flow
and operating income for the fiscal year ended December 31, 2005.
(b) The Financial Statements, subject, in the case of unaudited
financial statements, to year end audit adjustments and the absence of full
footnote disclosure:
(i) present fairly in all material respects the consolidated
financial condition and results of operations of the Tower Group as of the dates
thereof or for the periods covered thereby;
(ii) have been prepared in all material respects in
accordance with GAAP applied on a consistent basis for the periods involved,
except as may be indicated in the notes thereto; and
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(iii) have been prepared in all material respects in
accordance with Regulation S-X as promulgated pursuant to the Exchange Act.
(c) As more fully set forth in Section 8.1(g)(vii) of this
Agreement, Seller's 2006 Audited Financial Statements (the "2006 AUDITED
STATEMENTS") shall be delivered prior to the Closing. The 2006 Audited
Statements, when delivered to Purchaser shall (i) present fairly in all material
respects the consolidated financial condition and results of operations of the
Tower Group as of the dates thereof or for the periods covered thereby and (ii)
have been prepared in all material respects in accordance with GAAP applied on a
consistent basis for the periods involved, except as may be indicated in the
notes thereto, and in accordance with Regulation S-X.
(d) To Seller's Knowledge, on the date of their filing, no SEC
Report (i) contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and (ii) failed to comply in all material respects with the
applicable requirements of the Exchange Act.
Section 3.12. No Undisclosed Liabilities. To Seller's Knowledge,
except as disclosed on Schedule 3.12 attached hereto, no member of the Tower
Group has any Liabilities or obligations, except Liabilities that (i) are
accrued or reserved against in the Financial Statements or are reflected in the
notes thereto, (ii) are incurred pursuant to the transactions contemplated by
this Agreement, (iii) have been discharged or paid in full prior to the date of
this Agreement in the ordinary course of business, (iv) were incurred in the
ordinary course of business since the Balance Sheet Date, or (v) are not
individually in excess of Two Million Dollars ($2,000,000) or in excess of Five
Million Dollars ($5,000,000) in the aggregate.
Section 3.13. Absence of Certain Changes or Events. Since the Balance
Sheet Date, and except as contemplated by this Agreement, the Tower Group has
conducted its business in the ordinary course consistent with past practice.
Without limiting the generality of the foregoing, except as set forth in
Schedule 3.13 attached hereto, since the Balance Sheet Date, the Tower Group has
not:
(a) suffered any material damage, destruction or casualty loss,
whether or not covered by insurance, or condemnation taking;
(b) entered into any material employment or consulting contract
or commitment, whether oral or written, which is not terminable within ninety
(90) days after written notice, or material compensation arrangement or employee
benefit plan, or changed or committed to change, including any change pursuant
to any bonus, pension, profit-sharing or other plan, commitment, policy or
arrangement, the compensation payable or to become payable to any of its
officers, directors, employees, agents or consultants, who, in each case, are
paid in the aggregate over Five Hundred Thousand Dollars ($500,000) per annum,
or made any pension, retirement, profit-sharing, bonus or other employee welfare
or benefit payment or contribution other than payments or contributions required
by the governing documents of the foregoing or terminated any officer or other
senior employee;
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(c) other than pursuant to the transactions contemplated hereby
or otherwise relating to the Bankruptcy Case, canceled any debts or waived any
rights other than in the ordinary course of business;
(d) sold, transferred or otherwise disposed of any of its
material properties or assets, except in the ordinary course of business;
(e) terminated or suffered the termination of any material
contract other than in the ordinary course of business; or
(f) agreed in writing to take any action set forth in this
Section 3.13.
Section 3.14. Contracts.
(a) Except as set forth on Schedule 3.14(a) attached hereto (or
with respect to the KERP Liability, as separately disclosed to Purchaser), no
member of the Tower Group is a party to:
(i) any employment, consulting, independent contractor,
retention, change in control, stay bonus, or severance contract involving either
annual consideration of more than Five Hundred Thousand Dollars ($500,000) or
payments which when aggregated with annual consideration would exceed Five
Hundred Thousand Dollars ($500,000);
(ii) any Change in Control Agreements;
(iii) any contract approved by the Bankruptcy Court or
involving consideration that is reasonably likely during the twelve (12) month
period following the Closing to require payments or have anticipated receipts in
excess of Two Million Dollars ($2,000,000), and excluding those purchase orders
entered into in the ordinary course of business;
(iv) any contract that provides for a right of first offer,
right of first refusal, right of last offer, or exclusivity in favor of any
party with respect to the Acquired Assets or the Assumed Contracts other than
the Tower Group;
(v) any joint venture or partnership contract;
(vi) any noncompete or nonsolicitation or similar contract
that materially restricts the conduct of business of the Tower Group in any
geographic area;
(vii) any contract for the purchase or sale of any business
under which the Tower Group has any continuing performance or indemnification
obligations;
(viii) to Seller's Knowledge, other than licenses of
commercially available off-the-shelf shrinkwrap or click-wrap software, material
agreements relating to the licensing of any Intellectual Property to or from
third parties;
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(ix) any contract that is a requirements contract for the
providing of any goods or services to the Tower Group; or
(x) any other contract the absence of which would result in
a Material Adverse Effect.
(b) Seller has entered into accommodations with certain of its
customers as set forth on Schedule 3.14(b) attached hereto.
(c) As of the date which is three (3) Business Days prior to the
date hereof, the outstanding balance of each of (i) the DIP Loan Credit
Agreement, (ii) the Second Lien Loan, and (iii) the Industrial Revenue Bonds are
as set forth on Schedule 3.14(c) attached hereto.
(d) Subject to the Bankruptcy Court's entry of the Sale Order, to
Seller's Knowledge, all of the Assumed Contracts required to be set forth on
Schedule 3.14(a) and the contracts of the Foreign Entities required to be set
forth on Schedule 3.14(a) are valid, binding and enforceable in accordance with
their respective terms, except as designated on Schedule 3.14(d) attached hereto
and, with respect to those contracts of the Foreign Entities required to be set
forth on Schedule 3.14(a), except as such enforceability may be limited by (i)
applicable insolvency, bankruptcy, reorganization, moratorium or other similar
laws affecting creditors' rights generally and (ii) applicable equitable
principles (whether considered in a proceeding at law or in equity).
(e) Except for those defaults that will be cured if the Sale
Order is entered by the Bankruptcy Court, or that need not be cured under the
Bankruptcy Code to permit the assignment and assumption of the Assumed Contracts
required to be set forth on Schedule 3.14(a) (i) the Tower Group is not, and, to
Seller's Knowledge, other than as set forth in Schedule 3.14(e), no other party
is, in violation, breach of or default under the Assumed Contracts required to
be set forth on Schedule 3.14(a) and the contracts of the Foreign Entities
required to be set forth on Schedule 3.14(a), (ii) the Tower Group has, to
Seller's Knowledge, not received any written notice or claim of default under
the Assumed Contracts or the contracts of the Foreign Entities required to be
set forth on Schedule 3.14(a), and (iii) to Seller's Knowledge, no event has
occurred that, with or without notice or lapse of time or both, would result in
a breach or a default under the Assumed Contracts and the contracts of the
Foreign Entities required to be set forth on Schedule 3.14(a).
(f) Schedule 3.14(f) attached hereto contains a true, accurate
and complete itemized statement, as of the date which is five (5) Business Days
prior to the date hereof, of all Foreign Financial Indebtedness, and to Seller's
Knowledge, all other Indebtedness in excess of Two Million Dollars ($2,000,000)
of the Foreign Entities translated to United States Dollars using the Budgeted
Exchange Rates.
(g) Schedule 3.14(g) attached hereto contains a true, accurate
and complete itemized statement, as of the date which is five (5) Business Days
prior to the date hereof, of all material unrestricted cash balances of the
Foreign Entities translated to United States Dollars using the Budgeted Exchange
Rates.
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(h) Schedule 3.14(h) attached hereto contains a true, accurate
and complete itemized statement as to the date which is five (5) Business Days
prior to the date hereof, of all Indebtedness of the Tower Group, with the
exception of the Foreign Entities, and excluding any pre-petition unsecured
Indebtedness.
(i) Schedule 3.14(i) attached hereto contains a true, accurate
and complete itemized statement, as of the date which is five (5) Business Days
prior to the date hereof, of all material unrestricted cash balances of the
Tower Group with the exception of the Foreign Entities.
Section 3.15. Suppliers. Schedule 3.15(a) attached hereto sets forth a
list of the ten (10) largest suppliers (the "SUPPLIERS") of the Tower Group in
terms of purchases during the fiscal year ended December 31, 2006. Except as set
forth on Schedule 3.15(b) and other than with respect to notifications which
have since been resolved, to Seller's Knowledge, no Supplier has notified or
otherwise indicated to the Tower Group that it will stop, or decrease the rate
of, or, other than publicly announced generally applicable price increases,
materially increase the cost of, its supply of materials, products or services
used by the Tower Group, and no Supplier has, during 2007, ceased, materially
decreased the rate of or materially raised the cost of, any such materials,
products or services.
Section 3.16. Compliance with Law. Except as to matters which would
not reasonably be expected to result in Liability to Purchaser in excess of Five
Million Dollars ($5,000,000) in the aggregate:
(a) Except as set forth on Schedule 3.16 attached hereto or as
would not reasonably be expected to result in Liability to Purchaser, to
Seller's Knowledge, the Tower Group is not in violation, in any material
respect, of any Law or Order relating to the operation of its business and
ownership of the Acquired Assets.
(b) Except as set forth on Schedule 3.16, to Seller's Knowledge,
the Tower Group is, and has been since the Balance Sheet Date, in material
compliance with, all permits, licenses, authorizations, exemptions, Orders,
consents, approvals and franchises from Governmental Authorities required to
conduct their respective business as now being conducted.
(c) Except as set forth on Schedule 3.16, to Seller's Knowledge,
no material investigation or review by any Governmental Authority with respect
to the Acquired Assets or the Assumed Liabilities is or was pending, or
threatened, against the Tower Group, nor has any Governmental Authority
indicated in writing an intention to conduct the same.
Section 3.17. Litigation. Schedule 3.17 attached hereto, sets forth
each instance in which the Tower Group is (i) to Seller's Knowledge, subject to
any outstanding judgment, injunction, Order, decree, ruling or settlement
agreement for which Purchaser will be bound following the Closing or pursuant to
which Purchaser could reasonably be expected to have Liability in excess of Two
Million Dollars ($2,000,000) in any individual case or (ii) is a party or, to
Seller's Knowledge, is threatened to be made a party to any action, suit,
proceeding, hearing or investigation of, in or before any Governmental Authority
or before any arbitrator. Except as disclosed in Schedule 3.17 attached hereto
or as would not reasonably be expected to
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result in Liability to Purchaser in excess of Two Million Dollars ($2,000,000)
in any individual case, there are no lawsuits or arbitrations pending or, to
Seller's Knowledge, threatened against the Tower Group or which the Tower Group
intends to initiate.
Section 3.18. Employee Compensation and Benefit Plans; ERISA.
(a) Schedule 3.18(a) attached hereto sets forth a correct and
complete list of:
(i) all employee welfare benefit plans (as defined in
Section 3(1) of ERISA);
(ii) all employee pension benefit plans (as defined in
Section 3(2) of ERISA); and
(iii) all other employee benefit plans, programs, policies
or arrangements, including and any deferred compensation plan, incentive plan,
bonus plan or arrangement, stock option plan, stock purchase plan, stock award
plan or other equity-based plan, retention arrangement (other than included in
the KERP Liability), severance pay plan, dependent care plan, sick leave,
disability, death benefit, group insurance, hospitalization, dental, life, any
fund, trust or arrangement providing health benefits including multiemployer
welfare arrangements, a multiple employer welfare fund or arrangement, cafeteria
plan, employee assistance program, scholarship program, vacation policy,
employee loan, or other similar plan or arrangement, funded or unfunded, or
actual or contingent that is maintained by the Tower Group for the benefit of
current employees or consultants, and/or their respective dependents or
beneficiaries, of the Tower Group.
Each plan, program, policy, agreement or arrangement listed on
Schedule 3.18(a) is referred to herein as an "EMPLOYEE PLAN" and collectively
shall be referred to as the "EMPLOYEE PLANS").
(b) Schedule 3.18(b) attached hereto sets forth a list of those
Employee Plans that are Assumed Plans.
(c) Seller has provided or made available to Purchaser a true,
correct and complete copy, where applicable, of:
(i) each Employee Plan (or, where a material Employee Plan
has not been reduced to writing, a summary of all material terms of such
Employee Plan);
(ii) each trust, account or funding agreement, and each
insurance contract, with respect to each such Employee Plan;
(iii) the three (3) most recently filed annual reports on
IRS Form 5500 with respect to each Employee Plan;
(iv) the most recently received IRS determination letter for
each Employee Plan;
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(v) the three (3) most recently prepared actuarial reports
and financial statements in connection with each Employee Plan;
(vi) the most recent summary plan description, any summaries
of material modification regarding material changes to an Employee Plan, any
employee handbooks and any material written communications by the Tower Group to
any employee, participant or beneficiary concerning the extent of the benefits
provided under any Employee Plan;
(vii) for the last three (3) years, all material
correspondence with the IRS, United States Department of Labor (the "DOL") and
any other Governmental Authority regarding an Employee Plan;
(viii) to the extent in Seller's possession or reasonably
accessible to Seller, all contracts with third-party administrators, actuaries,
investment managers, consultants and other independent contractors that relate
to any Employee Plan; and
(ix) to the extent in Seller's possession or reasonably
accessible to Seller, any other documents in respect of any Employee Plan
reasonably requested by Purchaser.
(d) Except as set forth on Schedule 3.18(d), the Tower Group does
not have any plan or commitment to establish any new Employee Plan or to modify
any Employee Plan in any material respect.
(e) The Tower Group does not have any obligation to make
contributions to a multiemployer plan, within the meaning of Section 3(37) or
4001(a)(3) of ERISA. No "accumulated funding deficiency" as defined in Section
302 of ERISA or Section 412 of the Code, whether or not waived, exists with
respect to any Assumed Plan subject to Section 302 of ERISA or Section 412 of
the Code and the Tower Group is not, and does not expect to be, subject with
respect to any Assumed Plan to (i) any requirement to post security pursuant to
Section 412(f) of the Code or (ii) any perfected lien pursuant to Title IV of
ERISA or Section 412(n) of the Code. Except as set forth on Schedule 3.18(e), no
benefits have accrued under any Assumed Plan that is subject to Section 412 of
the Code or Title IV of ERISA since December 31, 2006.
(f) Except for the Change in Control Agreements and ordinary
course benefits payable or due to employees upon a termination of employment, no
Employee Plan exists that would reasonably be expected to result in the payment
to any current employee or consultant of the Tower Group of any money or other
property, or accelerate, or provide any other rights or benefits to any current
employee or consultant of the Tower Group as a result of the consummation of the
transactions contemplated by this Agreement, whether alone or in connection with
any other event.
(g) Each Assumed Plan has been maintained and operated in all
material respects in compliance with its terms and applicable Law, including
ERISA, the Code and the Health Insurance Portability and Accountability Act of
1996. With respect to each Assumed Plan, all reports, returns, notices and other
documentation that are required to have
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been filed with or furnished to the IRS, the DOL or any other Governmental
Authority, or to the participants or beneficiaries of such Employee Plan have
been filed or furnished on a timely basis in all material respects. Seller has
provided Purchaser with a current list (completed using its best efforts to do
so) of individuals who are eligible for continued health coverage under an
Employee Plan pursuant to the provisions of Section 4980B of the Code and
Sections 601 through 608, inclusive, of ERISA (which provisions are hereinafter
referred to collectively as "COBRA" coverage). Seller shall use its best efforts
to update such list from time to time prior to the Closing as reasonably
requested by Purchaser. Except as provided by the Change in Control Agreements,
as required by COBRA (or any similar state or foreign Law) or pursuant to the
Retiree Benefits Settlements or as may be provided by the Consolidated Pension
Plan, no Assumed Plan has or includes an obligation to provide health or welfare
benefits to any individual following termination of employment.
(h) Each Assumed Plan that is intended to be qualified within the
meaning of Section 401(a) of the Code (a "TAX-QUALIFIED PLAN") is so qualified
and has received a favorable determination letter from the IRS to the effect
that such Plan satisfies the requirements of Section 401(a) of the Code taking
into account all changes in qualification requirements under Section 401(a) of
the Code for which the "applicable remedial amendment," within the meaning of
Treasury Regulation Section 1.401(b)-1, has expired. The related trust with
respect to each Tax-Qualified Plan is exempt from taxation under Section 501(a)
of the Code. Each Tax-Qualified Plan has been timely amended to comply with the
Economic Growth and Tax Relief Reconciliation Act of 2001 and all subsequent
applicable Laws for which amendments are required to preserve the tax-qualified
status of such Employee Plan, and, to the Seller's Knowledge, there are no facts
or circumstances that could cause the loss of such qualification or the
imposition of any Liability, penalty or tax under ERISA, the Code or any other
applicable Law.
(i) With respect to any Assumed Plan, except for claims filed in
connection with the Seller's bankruptcy proceedings, (i) no actions, claims or
proceedings, other than routine claims for benefits in the ordinary course, are
pending or, to the Seller's Knowledge, threatened, (ii) to the Seller's
Knowledge no facts or circumstances exist that could give rise to any such
actions, claims or proceedings and (iii) no administrative investigation, audit
or other administrative proceeding by the DOL, the IRS or other Governmental
Authority, including any voluntary compliance submission through the IRS's
Employee Plans Compliance Resolution System or the DOL's Voluntary Fiduciary
Correction Program, is pending, in progress or to the Seller's Knowledge
threatened.
(j) Neither the Tower Group, nor, to the Seller's Knowledge, any
other "party in interest" or "disqualified person" with respect to any Assumed
Plan, has engaged in a nonexempt "prohibited transaction," within the meaning of
Section 406 of ERISA or Section 4975 of the Code. To the Seller's Knowledge, no
fiduciary has any Liability for breach of fiduciary duty or any other failure to
act or comply with the requirements of ERISA, the Code or any other applicable
Laws in connection with the administration, management or investment of the
assets of any Assumed Plan.
(k) All contributions required to be made with respect to the
Consolidated Pension Plan and its predecessors have been timely made or
reflected on the
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Financial Statements of the Tower Group in accordance with GAAP. All premiums
with respect to all insurance policies or contracts maintained with respect to
each Assumed Plan have been timely made, subject to the Xxxxx Financing, and no
such premiums are delinquent.
Section 3.19. Labor and Employment Matters.
(a) With the exception of the matters listed on Schedule 3.19(a):
(i) except as would not reasonably be expected to result in
Liability to Purchaser in excess of Two Million Dollars ($2,000,000) in the
aggregate, the Tower Group is in material compliance with all applicable Laws,
regulations, and orders regarding employees, independent contractors, labor and
employment practices, terms and conditions of employment, and wages and hours,
including but not limited to the National Labor Relations Act, as amended, the
Labor Management Relations Act of 1947, as amended, the Fair Labor Standards
Act, as amended, the Equal Pay Act of 1963, as amended, Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act of
1967, as amended, the Immigration Reform and Control Act of 1986, as amended,
the Civil Rights Act of 1866, 42 U.S.C. Section 1981, as amended, the Civil
Rights Act of 1991, as amended, the Occupational Safety and Health Act of 1970,
as amended, the Employee Retirement Income Security Act of 1974, as amended, the
Xxxxxxxx-Xxxxx Act of 2002, as amended, the Rehabilitation Act of 1973, as
amended, Executive Order 11246, the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, as amended, the Uniform Services Employment and
Reemployment Rights Act of 1994, as amended, the Drug Free Workplace Act of
1986, as amended, the Xxxxx Xxxxxx Government Contracts Act, as amended, the
Service Contract Labor Standards Act, as amended, the Worker Adjustment and
Retraining Notification Act of 1988, as amended (the "WARN ACT"), the Americans
With Disabilities Act of 1990, the Family and Medical Leave Act of 1993, as
amended, and the Employee Polygraph Protection Act of 1988, as amended;
(ii) no labor organization has advised the Tower Group,
since January 1, 2002, that such labor organization represents any employee of
the Tower Group, and no employee of the Tower Group is represented in his or her
capacity as an employee by any labor organization;
(iii) since January 1, 2002, the Tower Group has not
recognized any labor organization nor has any labor organization been elected or
certified as the collective bargaining agent of any employee of the Tower Group,
nor has Seller entered into any Collective Bargaining Agreement or union
contract recognizing any labor organization as a bargaining agent of any
employee, and no Collective Bargaining Agreement or other agreement exists or
has existed between the Tower Group and any labor organization;
(iv) to Seller's Knowledge, no petition concerning
representation has been filed with the National Labor Relations Board, and no
written demand for recognition has been made by any labor organization,
concerning any employee of the Tower Group, since January 1, 2002;
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(v) the National Labor Relations Board has not advised
Seller, since January 1, 2002, that any labor organization has filed a petition
with the National Labor Relations Board seeking to represent any employee of the
Tower Group;
(vi) to Seller's Knowledge, no other question of
representation pursuant to the National Labor Relations Act, as amended, exists
respecting any employee of the Tower Group;
(vii) to the Seller's Knowledge, no material unfair labor
practice charge or complaint against the Tower Group has been received by
Seller, and no such charge or complaint is pending or to Seller's Knowledge
threatened before the National Labor Relations Board;
(viii) to Seller's Knowledge, there is no labor dispute,
strike, picketing, handbilling, work slowdown, work stoppage, job action,
corporate campaign, or lockout pending or threatened against or affecting the
Tower Group;
(ix) to Seller's Knowledge, no material grievance or
complaint regarding labor practices or conditions or any arbitration proceedings
arising out of or under any contract or Collective Bargaining Agreement is
pending or threatened;
(x) the Tower Group has not experienced any strike,
picketing, handbilling, work slowdown, work stoppage, job action, corporate
campaign, or lockout since January 1, 2002;
(xi) to Seller's Knowledge, no material charge or complaint
of employment discrimination or unlawful retaliation against the Tower Group is
pending or threatened before the U.S. Equal Employment Opportunity Commission
("EEOC"), or any other Governmental Authority;
(xii) no material charge or complaint against the Tower
Group is pending or to Seller's Knowledge threatened for payment of wages or
other benefits under the Fair Labor Standards Act, as amended, or under any
similar Law;
(xiii) no material charge or complaint against the Tower
Group is pending or to Seller's Knowledge threatened before the Occupational
Safety and Health Administration or any other Governmental Authority;
(xiv) no material complaint or action against the Tower
Group by any current or former employee of the Tower Group, including, but not
limited to, a complaint or action alleging breach of an employment contract,
wrongful discharge, or breach of a duty of good faith and fair dealing in the
employment relationship, is pending before any Governmental Authority;
(xv) there are no pending Claims against the Tower Group for
workers' compensation, unemployment insurance, or disability benefits under any
Laws outside the ordinary course of business;
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(xvi) the Tower Group has timely filed Form EEO-1 with the
EEOC each year since January 1, 2005;
(xvii) the Tower Group maintains a Form I-9 with copies of
identification documents, in material compliance with applicable Laws, for each
employee for whom such a Form I-9 must be maintained;
(xviii) no material charge or complaint against the Tower
Group is pending or to Seller's Knowledge threatened under the Immigration
Reform and Control Act of 1986;
(xix) to Seller's Knowledge, no union organizing or
decertification campaign is in progress with respect to any employee of the
Tower Group;
(xx) to Seller's Knowledge, no Governmental Authority
responsible for the enforcement of labor or employment Laws has, since January
1, 2005, conducted or to Seller's Knowledge threatened in writing to conduct an
investigation of or affecting the Tower Group and to Seller's Knowledge no such
investigation is pending;
(xxi) since January 1, 2005, the Tower Group has had
employment practices liability insurance coverage or similar insurance coverage,
and has made no claims under any such insurance; and
(xxii) the Tower Group has a written hazard communication
program which is in compliance with applicable Laws.
(b) Except as set forth on Schedule 3.19(b), there has been no
"mass layoff" or "plant closing" as defined by the WARN Act by the Tower Group
since January 1, 2005.
(c) With the exception of the Collective Bargaining Agreements or
collective bargaining relationships for current and ongoing operations in the
United States of America, set forth on Schedule 3.19(c), no Collective
Bargaining Agreement or collective bargaining relationship exists or to Seller's
Knowledge has existed between the Tower Group and any labor organization at any
Tower Group facility in the United States of America that has not been closed or
is not currently being closed. The Purchaser shall not assume any Collective
Bargaining Agreement or collective bargaining relationship in the United States
of America that is not listed on Schedule 3.19(c).
Section 3.20. Properties.
(a) Schedule 3.20(a) attached hereto contains a true and complete
list of all real property owned by the Tower Group (collectively, the "OWNED
REAL PROPERTY") and for each parcel of Owned Real Property, contains a correct
street address and the record owner of such Owned Real Property. Copies of title
reports or policies obtained by the Tower Group with respect to each Owned Real
Property in the possession of the Tower Group are set forth on Schedule 3.20(c).
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(b) Schedule 3.20(b) attached hereto contains a true and complete
list of all real property leased, subleased, licensed or otherwise occupied,
whether as landlord, sublandlord, tenant, subtenant or pursuant to other
occupancy arrangements, by the Tower Group (collectively, the "LEASED REAL
PROPERTY"), and for each Leased Real Property, identifies the street address and
the landlord of such Leased Real Property. True and complete copies of all
agreements pertaining to the Leased Real Property (each a "REAL PROPERTY LEASE")
that have not been terminated or expired as of the date hereof have been made
available to Purchaser.
(c) The Tower Group has good title to all Owned Real Property and
valid leasehold estates in all Leased Real Property, free and clear of all
Claims, Interests or Encumbrances, except Permitted Encumbrances and
Encumbrances which are: (i) in favor of Persons to be listed on Schedule 3.10
and (ii) that will be released or otherwise removed upon the Closing if the Sale
Order is entered by the Bankruptcy Court.
(d) Except for Permitted Encumbrances and as otherwise set forth
on the attached Schedule 3.20(a) or Schedule 3.20(b), none of the Owned Real
Properties and none of the Leased Real Properties is subject to any lease,
sublease, license or other agreement granting to any other Person any right to
the use, occupancy or enjoyment of such Owned Real Property or Leased Real
Property, as the case may be, or any part thereof.
(e) Each Real Property Lease is in full force and effect and is
valid and enforceable in accordance with its terms, except as such
enforceability may be limited by any applicable insolvency, bankruptcy,
reorganization, moratorium or other similar laws affecting creditors' rights
generally, and to Seller's Knowledge there is no default under any Real Property
Lease either by a member of the Tower Group or by any other party thereto, and
no event has occurred that, with the lapse of time or the giving of notice or
both, would constitute a default by the Tower Group thereunder.
(f) There does not exist any pending or, to Seller's Knowledge,
threatened condemnation or eminent domain proceedings that affect any Owned Real
Property or Leased Real Property, and the Tower Group has not received any
written notice of the intention of any Governmental Authority or other Person to
take or use any Owned Real Property or Leased Real Property.
Section 3.21. Intellectual Property. (a) Except as set forth on
Schedule 3.21(a) attached hereto, to the Seller's Knowledge, the Tower Group
owns, or has the right to use pursuant to a valid license or otherwise, all
Intellectual Property required to operate their respective businesses as
presently conducted;
(b) Schedule 3.21(b) attached hereto lists all patent and patent
applications, and registrations and applications for registration, of the
Intellectual Property owned by the Company or the Company Subsidiaries that is
included in the Acquired Assets ("LISTED INTELLECTUAL PROPERTY");
(c) Except as set forth on Schedule 3.21(c) attached hereto, the
Listed Intellectual Property (i) to Seller's Knowledge, is valid and enforceable
in all material respects, (ii) is not the subject of any pending litigation or
opposition action, (iii) is not the subject of any
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outstanding Order, judgment or decree adversely affecting the rights of Tower
Group thereto, and (iv) to Seller's Knowledge, is not being infringed or
misappropriated by any third parties; and
(d) As of the date hereof, the Tower Group has not received (i)
any Claims in writing alleging that the Tower Group has violated or infringed,
in any material respect, the Intellectual Property of any third parties, (ii)
any Claims challenging the validity or enforceability of any Listed Intellectual
Property or (iii) a written notice from a third party asking that the Tower
Group consider the applicability of such third party's Intellectual Property to
their respective businesses.
Section 3.22. Environmental Laws. Except as would not reasonably be
expected to result in Liability to Purchaser in excess of Two Million Dollars
($2,000,000) or as set forth on Schedule 3.22 attached hereto or in the
environmental assessment reports made available to Purchaser as set forth on
Schedule 3.22, with respect to the Acquired Assets:
(a) the Tower Group is in material compliance with all applicable
Environmental Laws, and possesses and is in material compliance with all
applicable Environmental Permits required under such Laws to operate the
Acquired Assets as the Tower Group presently operates;
(b) to Seller's Knowledge, there are no Regulated Substances on,
at, under or migrating from any of the Owned Real Property or Leased Real
Property, or any other third party property, under circumstances that would be
expected to result in Liability of the Tower Group under any applicable
Environmental Law; and
(c) the Tower Group has not received any written notification
from any Governmental Authority or third party alleging that it has violated or
has Liability under any Environmental Law, except for matters that have been
settled or resolved with the appropriate Governmental Authority, third party or
otherwise.
Section 3.23. Brokers. Except as set forth on Schedule 3.23, no agent,
broker, finder or investment banker is entitled to any brokerage, finders or
other fee or commission from Seller in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Tower Group.
Section 3.24. Tax Matters.
(a) Except as set forth on Schedule 3.24 attached hereto, the
Tower Group has timely filed all income and other material Tax Returns that it
was required to file. Except as set forth on Schedule 3.24 attached hereto, all
such Tax Returns disclose all Taxes required to be paid for the periods covered
thereby and were prepared in material compliance with all applicable material
Laws and regulations. All Taxes owed by the Tower Group, whether or not shown or
required to be shown on any Tax Return, have been paid. Except as set forth on
Schedule 3.24 attached hereto, no Claim ever has been made by an authority in a
jurisdiction where the Tower Group does not file Tax Returns that the Tower
Group is or may be subject to taxation by that jurisdiction.
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(b) The Tower Group has withheld and paid all material Taxes
required to have been withheld and paid in connection with any amounts paid or
owing to any employee, independent contractor, creditor, stockholder, or other
third party, and all Forms W-2 and 1099 required with respect thereto have been
properly completed and timely filed.
(c) No director or officer, or employee responsible for Tax
matters, of the Tower Group expects any authority to assess any additional
material Taxes for any period for which Tax Returns have been filed. There is no
dispute or claim concerning any material Tax Liability of the Tower Group either
(X) claimed or raised by any authority in writing or (Y) as to which any of the
directors and officers, and employees responsible for Tax matters, of the Tower
Group has Knowledge based upon personal contact with any agent of such
authority.
(d) Seller has made available to Purchaser correct and complete
copies of all income Tax Returns, examination reports, and statements of
deficiencies assessed against or agreed to by the Tower Group since January 1,
2004.
(e) Except as set forth on Schedule 3.24 attached hereto, the
Tower Group has not waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax assessment or deficiency.
(f) The unpaid Taxes of the Tower Group (i) did not, as of the
Balance Sheet Date, exceed the reserve for Tax Liability, rather than any
reserve for deferred Taxes established to reflect timing differences between
book and Tax income, set forth on the Balance Sheet or in the notes thereto, and
(ii) do not exceed that reserve as adjusted for the passage of time through the
Closing Date in accordance with the past custom and practice of the Tower Group
in filing their Tax Returns.
(g) No Seller entity is a "foreign person" within the meaning of
Code Section 1445. The Tower Group has disclosed on its federal income Tax
Returns all positions taken therein that could give rise to a substantial
understatement of federal income Tax within the meaning of Code Section 6662.
The Tower Group is not a Party to any Tax allocation or sharing agreement. The
Tower Group (i) is not a member of an Affiliated Group filing a consolidated
federal income Tax Return (other than a group the common parent of which was the
Company) or (ii) has no material Liability for the Taxes of any Person, other
than the Tower Group, under Treas. Reg. Section 1.1502-6 (or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise.
(h) The Tower Group has not in the last two (2) years,
distributed stock of another Person, or has had its stock distributed by another
Person, in a transaction that was purported or intended to be governed in whole
or in part by Code Section 355 or Code Section 361.
Section 3.25. Disclosure.
No representation, statement, or information made or furnished by
Seller to Purchaser or any of Purchaser's representatives, including those
contained in this Agreement and the various Disclosure Schedules attached hereto
and the other information and statements referred to herein and previously
furnished by Seller, contains or shall contain any knowingly
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untrue statement of a material fact or omits or shall omit any material fact
necessary to make the information contained therein not misleading.
Section 3.26. No Other Representations or Warranties.
(a) Except for the representations and warranties contained in
this Article 3, Purchaser acknowledges that neither Seller nor any other Person
on behalf of Seller makes any other express or implied representation or
warranty with respect to the Tower Group (including without limitation
representations and warranties as to the condition of the Acquired Assets) with
respect to any other information provided to Purchaser. Neither Seller nor any
other Person will have or be subject to any Liability or indemnification
obligation to Purchaser or any other Person resulting from the distribution to
Purchaser, or use by Purchaser of, any such information, including any
information, documents, projections, forecasts or other material made available
to Purchaser in certain "data rooms", confidential information memoranda or
management presentations in expectation of the transactions contemplated by this
Agreement.
(b) In connection with investigation by Purchaser of the Tower
Group, Purchaser has received or may receive from the Tower Group certain
projections, forward-looking statements and other forecasts and certain business
plan information. Purchaser acknowledges that there are uncertainties inherent
in attempting to make such estimates, projections and other forecasts and plans,
Purchaser is familiar with such uncertainties, that Purchaser is taking full
responsibility for making its own evaluation of the adequacy and accuracy of all
estimates, projections and other forecasts and plans so furnished to it
(including the reasonableness of the assumptions underlying such estimates,
projections, forecasts or plans), and that Purchaser shall have no claim against
anyone with respect thereto. Accordingly, Purchaser acknowledges that the
Company makes no representation or warranty with respect to such estimates,
projections, forecasts or plans (including the reasonableness of the assumptions
underlying such estimates, projections, forecasts or plans).
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents and warrants to Seller as follows:
Section 4.1. Organization. Purchaser is duly organized, validly
existing and in good standing pursuant to the Laws of the jurisdiction of its
organization, and has all requisite power and authority to own its properties
and assets and to conduct its business as now conducted.
Section 4.2. Authority; Enforceability. Purchaser has the requisite
power and authority to execute and deliver this Agreement and the Ancillary
Agreements and to perform its obligations hereunder and thereunder. The
execution and delivery by Purchaser of this Agreement and the Ancillary
Agreements and the performance by Purchaser of its obligations hereunder and
thereunder have been duly authorized by all necessary actions on the part of
Purchaser, and no other proceedings on the part of Purchaser are necessary to
authorize such execution, delivery and performance. This Agreement has been duly
executed and delivered by
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Purchaser and constitutes a legal, valid and binding agreement of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar Laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a proceeding
in equity or at law).
Section 4.3. Non-Contravention. The execution, delivery and
performance of this Agreement and the Ancillary Agreements by Purchaser does not
and will not (a) conflict with or violate its certificate of incorporation,
bylaws or similar documents, (b) assuming that all consents, approvals and
authorizations contemplated by clauses (a), (b) and (c) of Section 4.4 have been
obtained and all filings described in such clauses have been made, conflict with
or violate any Law applicable to Purchaser or by which its properties are bound
or (c) result in any breach or violation of or constitute a default (or an event
which with notice or lapse of time or both would become a default) or result in
the loss of a benefit under, or give rise to any right of termination,
cancellation, amendment or acceleration of any material agreement of other
material instrument to which Purchaser is a party of by which Purchaser or any
of its respective assets are bound.
Section 4.4. Governmental Consents. The execution, delivery and
performance of this Agreement and the Ancillary Agreements by Purchaser and the
consummation by Purchaser of the transactions contemplated hereby and thereby do
not and will not require any consent, approval, authorization or permit of,
action by, filing with or notification to, any Governmental Authority, except as
required under or pursuant to (a) the HSR Act, (b) the applicable requirements
of antitrust or other competition laws of other jurisdictions or investment laws
relating to foreign ownership including, without limitation, with respect to the
Foreign Entities and (c) any other consent, approval, authorization, permit,
action, filing or notification the failure of which to make or obtain would not
prevent or materially delay the consummation of the transactions contemplated
hereby.
Section 4.5. Financing. At the Closing, Purchaser will have available
to it unconditional and irrevocable equity and debt commitments from financing
sources in an aggregate amount that exceeds the sum of the Purchase Price and
the estimated transaction expenses arising from the transactions contemplated
hereby.
Section 4.6. Brokers. No agent, broker, finder or investment banker is
entitled to any brokerage, finders or other fee or commission in connection with
the transactions contemplated by this Agreement based upon arrangements made by
or on behalf of Purchaser for which Seller could have Liability or otherwise be
obligated.
Section 4.7. Acquired Assets "AS IS"; Purchaser's Acknowledgment
Regarding Same. Purchaser agrees, warrants, and represents that, except as set
forth in this Agreement:
(a) Purchaser is purchasing the Acquired Assets on an "AS IS" and
"WITH ALL FAULTS" basis based solely on Purchaser's own investigation of the
Acquired Assets, and
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(b) Neither Seller nor any real estate broker, agent, officer,
employee, servant, attorney, or representative of Seller has made any
warranties, representations or guarantees, express, implied or statutory,
written or oral, respecting the Acquired Assets, any part of the Acquired
Assets, relating to the financial performance of the Acquired Assets or the
business of Seller, or the physical condition of the Acquired Assets. Purchaser
further acknowledges that the consideration for the Acquired Assets specified in
this Agreement has been agreed upon by the Company, Seller and Purchaser after
good-faith arms-length negotiation in light of Purchaser's agreement to purchase
the Acquired Assets "AS IS" and "WITH ALL FAULTS" except as set forth in this
Agreement. Purchaser agrees, warrants, and represents that, except as set forth
in this Agreement, Purchaser has relied, and shall rely, solely upon Purchaser's
own investigation of all such matters, and that Purchaser assumes all risks with
respect thereto. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE COMPANY AND SELLER
MAKE NO EXPRESS WARRANTY, NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE, NOR ANY IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH
RESPECT TO ANY REAL OR PERSONAL PROPERTY OR ANY FIXTURES OR THE ACQUIRED ASSETS.
ARTICLE 5.
ADDITIONAL AGREEMENTS
Section 5.1. Conduct of Business Prior to the Closing.
(a) Seller covenants and agrees that, during the period from the
date hereof until the Closing Date, except as contemplated by this Agreement, in
the ordinary course of business consistent with past practice, contemplated by
the Budget delivered by Seller to Purchaser, as set forth in Schedule
1.1(a)(iii) attached hereto, as required by Law or as otherwise required,
authorized or restricted pursuant to an Order of the Bankruptcy Court as of the
date hereof, or unless Purchaser shall otherwise consent in writing, such
consent not to be unreasonably withheld or delayed:
(i) the business of the Tower Group shall be conducted in
the ordinary course of business consistent with past practice including, without
limitation, with respect to its payment of accounts payables and collection of
accounts receivable;
(ii) the Tower Group shall use its reasonable best efforts
to preserve its present relationships with customers and employees, liaisons,
licensees, distributors, wholesalers, franchisees, material suppliers and other
Persons with which it has significant business relations or are otherwise
material to the business of the Tower Group;
(iii) the Tower Group shall comply in all material respects
with applicable Laws;
(iv) the Tower Group shall use commercially reasonable
efforts to preserve and maintain, in all material respects and consistent with
past practice, the material Acquired Assets and the material assets and
businesses of the Foreign Entities in the condition in
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which they existed on the date hereof, ordinary wear and tear excepted, other
than assets no longer used or useful in the Tower Group's business;
(v) the Tower Group shall maintain its Business Records in
the ordinary course of business and in accordance with GAAP or, in the case of a
Foreign Entity, in accordance with generally accepted accounting principles of
the jurisdiction of organization of such Foreign Entity and in a manner
sufficient to permit reconciliation to GAAP within thirty (30) calendar days
from the last day of each calendar month and to deliver to Purchaser
consolidated with respect to the Company Subsidiaries statements of income for
the calendar month then ended, and the related balance sheets of the Tower Group
as of the end of such calendar month, in each case prepared in accordance with
GAAP (other than the absence of footnote disclosures and subject to year end
audit adjustments and other than financial statements of Foreign Entities not
regularly prepared in accordance with GAAP, which financial statements shall be
prepared in accordance with the generally accepted accounting principles of the
jurisdiction of organization of such Foreign Entity) and accompanied by a
certificate of the Chief Financial Officer of the Company on behalf of the
Company and not in his personal capacity stating that such financial statements
fairly present in all material respects the consolidated financial condition and
results of operations of the Tower Group as of such date and that the other
information accompanied thereto is true, accurate and correct in all material
respects (the "MONTHLY REPRESENTATION REPORT");
(vi) the 2006 Audited Statements shall be completed and
delivered to Purchaser in final form by July 5, 2007;
(vii) concurrently with the delivery thereof to the
applicable lessor, trustee, holder or lender under the DIP Loan Credit
Agreement, the Second Lien Loan Agreement and the Industrial Revenue Bond loan
agreement, Seller shall deliver to Purchaser copies of all statements, reports,
certificates, financial statements and other information required to be
delivered pursuant thereto;
(viii) such daily, weekly and monthly financial reports as
Seller has been providing to Purchaser or its Affiliates, prepared in good faith
and in a manner and methodology consistent with current practice in all material
respects (including notice to Purchaser in writing substantially every day of
the amount of the DIP Loan net of Seller's domestic entities' unrestricted
cash);
(ix) collect all accounts receivables and pay all accounts
payables in the ordinary course and consistent with past practices;
(x) take all commercially reasonable actions requested by
Purchaser to receive or obtain the consent of each party to any Assumed Contract
to the assignment of any Assumed Contract to Purchaser (including, without
limitation, those agreements set forth on Schedule 5.1(a)(x)) or to obtain the
waiver of any change in control provision to the extent contained in any
contract to which a Foreign Entity is a party, to the extent upon consummation
of the transactions contemplated hereby other than such Assumed Contracts
pursuant to which such party's consent will be unnecessary if the Orders of the
Bankruptcy Court contemplated hereby are entered by the Bankruptcy Code. Nothing
in this
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Agreement shall obligate any Seller to incur any expense, cost or other
Liability for such consent; and
(xi) to the maximum extent permitted by applicable Law,
furnish Purchaser such information concerning employees of the Tower Group as
Purchaser may reasonably request from time to time.
(b) Between the date of this Agreement and the Closing Date,
except as otherwise contemplated by this Agreement, and except as otherwise
provided herein, in the ordinary course of business, contemplated by the Budget,
as set forth in Schedule 5.1(b) attached hereto, as required by Law, or as
otherwise required, authorized or restricted pursuant to an Order of the
Bankruptcy Court entered prior to the date hereof, no member of the Tower Group
shall without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld or delayed:
(i) amend or otherwise change its certificate of
incorporation or by-laws or other comparable organizational instruments;
(ii) amend, terminate, modify or renew any Assumed Contract
or contracts of the Foreign Entities, other than in the ordinary course of
business or as otherwise required by Law;
(iii) enter into any material transaction or agreement
(including joint venture, partnership or other similar agreements or Collective
Bargaining Agreements), other than those material transactions or agreements
entered into in the ordinary course of business or as otherwise required by Law;
(iv) sell, convey, transfer, assign or encumber, other than
for Permitted Encumbrances or assuming entry of the Sale Order by the Bankruptcy
Court as will not effect receipt by Purchaser of the Acquired Assets and Assumed
Contracts free and clear of all Claims, Interests or Encumbrances (other than
Permitted Encumbrances), any of the Acquired Assets except for nonmaterial
assets sold, abandoned or transferred in the ordinary course of business;
(v) repatriate any funds from any of the Foreign Entities or
lend or invest any additional amount in any Foreign Entity or utilize any funds
of any Foreign Entity to repay amounts due to the DIP Lenders; provided,
however, that to the fullest extent permitted by applicable Law and such as not
to constitute a default under an agreement to which it is a party, Seller shall
use its reasonable best efforts, (A) prior to Closing, to repatriate all funds
in Algoods, Inc., subject to the resolution of tax liens, and Tower Automotive
s.r.o., and (B) be permitted to take the actions identified on Schedule 5.1(b),
and with respect clauses (A) and (B) of this subsection (v), Seller shall be
permitted to utilize any funds repatriated thereof to repay amounts due to the
DIP Lenders;
(vi) take any affirmative steps to close any facility;
(vii) except as will not be in place or in force immediately
following the Closing or that will not require Purchaser to expend any amount,
issue, deliver,
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sell, pledge, dispose of or encumber any shares of capital stock of any class of
any Foreign Entity, or any options, warrants, convertible securities or other
rights of any kind to acquire any shares of capital stock of any Foreign Entity,
or any other ownership interest, of any Foreign Entity;
(viii) except (A) to the extent required under any Employee
Plan, (B) in the ordinary course of business, (C) as required by applicable Law,
or (D) as required pursuant to any Collective Bargaining Agreement or other
existing agreement, increase the compensation or fringe benefits of any of its
directors, officers or employees, or establish, adopt, enter into or amend or
terminate any Employee Plan;
(ix) except as will not be in place or in force immediately
following the Closing, lease, license, mortgage, hypothecate, pledge, sell,
sublease, grant any material easement affecting and/or transfer any interest in
any Owned Real Property or any improvements thereon or on any Leased Real
Property, or materially amend, extend or terminate any leasehold interest in any
Leased Real Property;
(x) other than pursuant to existing agreements, irrespective
of whether or not in the ordinary course of business, (A) incur any indebtedness
for borrowed money or issue any debt securities or assume, guarantee or endorse,
or otherwise as an accommodation become responsible for, the obligations of any
Person, or make any loans or advances, except for refinancings of existing
indebtedness for borrowed money except as permitted in clause (C) below; or (B)
amend, modify or supplement the terms and conditions of the DIP Loan Credit
Agreement, the Second Lien Loan, the Industrial Revenue Bonds or any Foreign
Financial Indebtedness or (C) permit any Foreign Entity to incur any Foreign
Financial Indebtedness other than working capital borrowing under facilities in
effect on the date hereof or refinancings of existing credit facilities that
expire prior to the Closing as expressly set forth on Schedule 5.1(b), but only
on then existing market terms and with a principal and facility size not in
excess of the principal and facility size of such expiring facilities and
provided further that not less than five (5) Business Days prior to entering
into any such replacement facility (or as much time as is reasonably practicable
under the circumstances if five (5) business days notice is not reasonably
practicable) Purchaser is provided with a complete copy of the commitment letter
or term sheet and any material agreement related thereto;
(xi) authorize or incur any capital expenditure which, over
the lifetime of the particular project, is reasonably projected to cost in
excess of Two Million Five Hundred Thousand Dollars ($2,500,000), other than as
expressly set forth in the Budget; provided, however that the foregoing
restriction shall not apply to the extent (and only to the extent) that Seller
reasonably determines that it is required to incur any emergency capital
expenditures in excess of Two Million Five Hundred Thousand Dollars ($2,500,000)
to avoid the shutdown of a facility or disruption of customer production;
(xii) open, provide or otherwise arrange for any letter of
credit in addition to the ones set forth on Schedule 3.2(b), other than to
replace letters of credit that are expiring by their terms with new letters of
credit that have substantially the same terms and conditions and that
collateralize the same obligation of the expiring letter of credit;
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(xiii) settle or dismiss any material action threatened
against, relating to or involving the Tower Group in connection with any
business, asset or property of the Tower Group (including, without limitation,
any action relating to any Metalsa S. de X.X. de C.V. ("METALSA") litigation and
dispute), other than in the ordinary course of business but not, in any
individual case, in excess of One Million Dollars ($1,000,000);
(xiv) terminate (other than at the expiration of a term not
subject to renewal at the option of the Tower Group), release, assign any rights
under or discharge any other party thereunder of any of their obligations under
any Assumed Contract required to be set forth on Schedule 3.14(a) or contracts
of the Foreign Entities required to be set forth on Schedule 3.14(a), and, not
amend any of the terms and conditions of any Assumed Contract required to be set
forth on Schedule 3.14(a) or contracts of the Foreign Entities required to be
set forth on Schedule 3.14(a), in each case except in the ordinary course of
business;
(xv) except with respect to any contract that Purchaser has
designated not to assume hereunder pursuant to Section 5.16, fail to use
reasonable commercial efforts to timely comply in all material respects with all
material monetary and nonmonetary Liabilities under each material contract
(including Assumed Contracts) or, in the case of the Foreign Entities, the
contracts to which they are a party, as in effect on the date hereof, and not
file any notice or otherwise seek to assume or reject any contract (including
Assumed Contracts);
(xvi) form or establish any new Subsidiaries or Affiliates;
(xvii) (A) change payroll periods in respect of any employee
of the Tower Group other than in the ordinary course of business, or (B) hire
any Person who would be an officer of a Tower Group;
(xviii) knowingly fail to use commercially reasonable
efforts to obtain and renew all material permits or licenses held by or in
connection with the business of the Tower Group;
(xix) terminate, other than at the expiration of a term not
subject to renewal at the option of the Tower Group, cancel or amend, or cause
the termination, cancellation or amendment of, any insurance coverage (and any
surety bonds, letters of credit, cash collateral or other deposits related
thereto required to be maintained with respect to such coverage) maintained by
it or them with respect to the business of the Tower Group which is not replaced
by a comparable insurance coverage;
(xx) enter into any new Collective Bargaining Agreements or
amend or modify any existing Collective Bargaining Agreements, in each case,
applicable to employees of the Tower Group without first informing Purchaser of
all of the material terms and provisions thereof;
(xxi) other than in the ordinary course of business, enter
into any interest rate swap agreement, interest rate cap agreement, interest
rate collar agreement, interest rate floor agreement, interest rate exchange
agreement, currency exchange agreement, forward contract, repurchase and reverse
repurchase contract, or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including any
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arrangement whereby, directly or indirectly, the party thereto has the right to
receive periodic payments calculated by applying either a fixed or floating rate
of interest on a stated notional amount in exchange for periodic payments made
by such party calculated by applying a fixed or floating rate of interest on the
same notional amount or otherwise (other than interest rate protection
agreements entered into in connection with or required pursuant to the DIP Loan
Credit Agreement);
(xxii) fail to make all payments due prior to the Closing
under the DIP Loan Credit Agreement, the Second Lien Loan or the Industrial
Revenue Bonds;
(xxiii) fail to make any pension or other payment to or for
the benefit of employees when due;
(xxiv) knowingly or intentionally violate any material Laws;
(xxv) take any action to settle any Chapter 5 Claim that
constitutes a portion of the Acquired Assets; or
(xxvi) agree, whether in writing or otherwise, to do any of
the foregoing.
Section 5.2. Access to Information.
(a) During the period from the execution of this Agreement
through the earlier of, the termination of this Agreement pursuant to its terms
and the Closing, the Company shall, and shall cause each Company Subsidiary to,
subject to reasonable restrictions imposed from time to time upon advice of
counsel respecting any applicable confidentiality agreement with any Person
(provided that Seller shall use its reasonable best efforts to obtain waivers
under such agreements or implement requisite procedures to enable the provision
of reasonable access without violating such agreement), afford representatives
of Purchaser and its financing sources access, during normal business hours, to
all properties, offices, books, contracts, commitments and records and such
financial (including all working papers) and operating data of the Tower Group,
in order to conduct visual inspection thereof and meetings with various
employees or representatives of the Tower Group, and will furnish, within a
reasonable time, to Purchaser, its representatives and its financing sources all
information (including extracts and copies of books, records, contracts and
other documents) concerning the operations and business of the Tower Group,
including access to its personnel, as Purchaser, its representatives or its
financing sources may reasonably request, and that is in the possession and
control of the Tower Group. In conducting any inspection of any properties of
the Tower Group, neither Purchaser nor any of their representatives shall:
(i) contact or have any discussions with any of the
Company's or Company Subsidiary's employees, agents, or representatives other
than those individuals set forth on Schedule 5.2(a)(i) attached hereto, unless
in each case Purchaser receives the consent (which shall not be unreasonably
withheld or delayed) of one of Xxxxxxxx Xxxxxxx, Xxxxx Xxxxxx, E. Xxxxx Xxxxxxxx
or Xxxxxxx Xxxxxxx or Xxxxxx Freres & Co., LLC (the "NOTICE GROUP") prior to any
such contact or discussion or one of the Notice Group participates in such
contact or discussions;
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(ii) substantially interfere with the business of the Tower
Group;
(iii) damage any property or any portion thereof; or
(iv) perform any invasive and substantial environmental
investigation of the Tower Group's properties without the Seller's prior written
or oral consent, which such consent shall not be unreasonably withheld. The
Company shall be entitled to have representatives present at all times during
any such inspection. Notwithstanding the foregoing, the Tower Group shall not be
required to provide access to or to disclose information where such access or
disclosure would jeopardize the attorney-client privilege of the Tower Group or
contravene any Law or binding agreement entered into prior to the date of this
Agreement. The relevant Parties will make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply.
(b) All information obtained pursuant to this Section 5.2 shall
continue to be governed by the Confidentiality Agreement, which the Parties
agree shall not survive the Closing; provided, however, if any of the terms of
this Agreement conflict with any of the terms of the Confidentiality Agreement,
the terms of this Agreement shall control.
(c) The Tower Group shall permit Purchaser reasonable access to
have informal communications with the Tower Group's customers, but formal
communications and meetings primarily related to the Tower Group shall take
place only with at least three (3) day's prior notice to the Notice Group and
Seller shall have the right to participate in or attend such formal
communication or meeting.
Section 5.3. Superior Offers.
Seller shall notify Purchaser in accordance with the Marketing
Protocol Order with respect to any Acquisition Proposal and otherwise cooperate
in assuring that Purchaser receives the benefits contemplated by the Marketing
Protocol Order.
Section 5.4. Bankruptcy Court Orders. Purchaser agrees to cooperate
with Seller in providing any information and evidence that may reasonably be
required to demonstrate to the Bankruptcy Court's satisfaction (i) adequate
assurance of future performance of all Assumed Contracts and (ii) a finding that
Purchaser is a good-faith purchaser entitled to the protections of section
363(m) of the Bankruptcy Code.
Section 5.5. Notice of Filings.
Seller shall give notice to Purchaser at least four (4) business hours
prior to Seller filing any material pleading in the Bankruptcy Case that is
related to or affects Seller, the Acquired Assets, customer agreements, any
Bankruptcy Case Claims or the transactions contemplated pursuant to this
Agreement, by providing a copy or substantially complete draft of such pleading
and all exhibits thereto to Purchaser's counsel by email, to the email address
set forth on Schedule 5.5 attached hereto.
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Section 5.6. Further Action; Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each
Party will use its reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable Law to consummate the transactions contemplated by
this Agreement. In furtherance and not in limitation of the foregoing, each
Party hereto agrees to make an appropriate filing of a Notification and Report
Form pursuant to the HSR Act and to make other required filings pursuant to
other Antitrust Laws with respect to the transactions contemplated hereby and
thereby as promptly as reasonably practicable and to supply as promptly as
reasonably practicable any additional information and documentary material that
may be requested pursuant to the HSR Act or any other Antitrust Laws and to take
all other reasonable actions necessary, proper or advisable to cause the
expiration or termination of the applicable waiting periods under the HSR Act
and any other applicable Antitrust Laws as soon as reasonably practicable.
Purchaser shall bear the sole responsibility for the fees associated with all
filings under the HSR Act.
(b) Subject to all applicable confidentiality requirements and
all applicable Laws, Purchaser, on the one hand, and Seller, on the other hand,
shall, in connection with the efforts referenced in Section 5.6(a) to obtain all
requisite approvals and authorizations for the transactions contemplated by this
Agreement under the HSR Act or any other Antitrust Law, use its reasonable
efforts to (i) cooperate in all respects with each other in connection with any
filing or submission and in connection with any investigation or other inquiry,
including any proceeding initiated by a private party; (ii) keep the other Party
informed of any communication received by such Party from, or given by such
Party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of
the Department of Justice (the "DOJ") or any other U.S. or foreign Governmental
Authority and of any communication received or given in connection with any
proceeding by a private party, in each case regarding any of the transactions
contemplated hereby and thereby; and (iii) permit the other Party to review any
communication given by it to, and consult with each other in advance of any
meeting or conference with, the FTC, the DOJ or any such other Governmental
Authority or, in connection with any proceeding by a private party, with any
other person, and to the extent permitted by the FTC, the DOJ or such other
applicable Governmental Authority or other person, give the other Party the
opportunity to attend and participate in such meetings and conferences;
provided, however, that no Party hereto shall be required to provide any other
Party with copies of confidential documents or information included in its
filings and submissions under the HSR Act, and provided, further, that a Party
hereto may request entry into a joint defense agreement as a condition to
providing any such materials and that, upon receipt of that request, the Parties
shall work in good faith to enter into a joint defense agreement to create and
preserve attorney-client privilege in a form and substance mutually acceptable
to the Parties.
(c) Notwithstanding the covenants of the Parties contained
elsewhere in this Section 5.6 or in Section 5.10, if any objections are asserted
with respect to the transactions contemplated by this Agreement under any
Antitrust Law or if any suit is instituted (or threatened to be instituted) by
the FTC, the DOJ or any other applicable Governmental Authority or any private
party challenging any of the transactions contemplated hereby and thereby as
violative of any Antitrust Law or which would otherwise prohibit or materially
impair or materially delay the consummation of the transactions contemplated
hereby and thereby, each
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of Purchaser and the Company shall use its reasonable commercial efforts to
resolve any such objections or suits so as to permit consummation of the
transactions contemplated by this Agreement; provided, however, that neither
Purchaser nor any of its Affiliates shall be required to (i) divest, hold
separate (including by trust or otherwise) or otherwise dispose of, sell, assign
or transfer any of their respective businesses, assets, investments, securities
or rights of any kind or nature or (ii) defend, contest or resist any action or
proceeding or seek to have vacated, lifted, reversed or overturned any decree,
judgment, injunction or other order, whether temporary, preliminary or
permanent, that is in effect and that prohibits, prevents or restricts
consummation of the transactions contemplated by this Agreement.
(d) Notwithstanding the foregoing or any other provision of this
Agreement, nothing in this Section 5.6 shall limit a party's right to terminate
this Agreement pursuant to Section 8.1(b) so long as such party has up to then
complied in all material respects with its obligations under this Section 5.6.
Section 5.7. Public Announcements. Each of Seller and Purchaser agrees
that no public release or announcement concerning the transactions contemplated
by this Agreement shall be issued by any Party without the prior written consent
of the Company and Purchaser (which consent shall not be unreasonably withheld
or delayed), except as such release or announcement may be required by Law, the
rules or regulations of any applicable United States securities exchange, or
with respect to filings to be made with the Bankruptcy Court in connection with
this Agreement, in which case the Party required to make the release or
announcement shall use its reasonable best efforts to allow each other Party
reasonable time, and in no event less than one (1) Business Day, to comment on
such release or announcement in advance of such issuance, it being understood
that the final form and content of any such release or announcement, to the
extent so required, shall be at the final discretion of the disclosing Party.
Notwithstanding the prior sentence, Purchaser agrees and acknowledges that
Seller may file this Agreement with the Bankruptcy Court promptly after the date
hereof and that any action Seller and its representatives take in good faith in
connection with soliciting bids and preparing bidders for the Auction shall not
be a violation of this Section 5.7.
Section 5.8. Availability of Business Records; Cooperation Following
the Closing. After the Closing Date, Purchaser shall provide to Seller, the
Unsecured Creditors Trust and the Post-Consummation Trust (after reasonable
notice and during normal business hours and without charge to Seller, the
Unsecured Creditors Trust and the Post-Consummation Trust, as applicable) access
to all books, records, contracts and other documents relating to periods prior
to the Closing and shall preserve such books, records, contracts and other
documents until the date which is six (6) years after the Closing Date. Such
access shall include access to any computerized information systems that contain
data regarding the Acquired Assets. With respect to any litigation and Claims
that are not Assumed Liabilities, Purchaser shall render all reasonable
assistance that Seller, the Unsecured Creditors Trust and the Post-Confirmation
Trust may request in defending such litigation or claim and shall make available
to Seller, the Unsecured Creditors Trust and the Post-Confirmation Trust
personnel most knowledgeable about the matter in question provided that such
assistance does not materially interfere with the duties and responsibilities of
Purchaser's personnel. Following the Closing, Purchaser will reasonably make
available to Seller, the Unsecured Creditors Trust and the Post-Confirmation
Trust without charge its employees for purposes of managing and discharging the
Excluded Assets and its
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Liabilities, provided that the availability of Purchaser's employee(s) or
consultant(s) does not cause a material disruption to management and operation
of Purchaser's business. If after the Closing any party shall receive any
payment or revenue that belongs to another party pursuant to this Agreement,
such party shall promptly remit or cause to be remitted the same to the party
entitled to the payment, as applicable, without set-off or deduction of any kind
or nature.
Section 5.9. Financing Assistance. The Tower Group shall use
commercially reasonable efforts to assist and cooperate with Purchaser and its
financing sources, including by making its employees and representatives
reasonably available to Purchaser and its financing sources, and shall provide
such assistance as Purchaser may reasonably request in connection therewith,
including, without limitation:
(a) meeting by telephone conferences or if reasonably requested
by Purchaser in person with financing sources to discuss and answer questions
concerning the Tower Group's business and allowing such financing sources, and
such financing source's representatives, to visit various Tower Group's
facilities; and
(b) executing and delivering such customary and reasonable
perfection certificates as Purchaser's financing sources may request.
The providing of such assistance shall not substantially interfere
with the management, business or operation of the Tower Group. The Tower Group
shall not be required to provide access to or to disclose information where such
access or disclosure would reasonably be expected to jeopardize the
attorney-client privilege of the Tower Group or contravene any Law or binding
agreement entered into prior to the date of this Agreement. The relevant Parties
will make appropriate substitute disclosure arrangements under circumstances in
which the restrictions of the preceding sentence apply.
Section 5.10. Further Assurances.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the Parties shall use their reasonable best efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective as
promptly as practicable, the transactions contemplated by this Agreement in
accordance with the terms hereof and to bring about the satisfaction of all
other conditions to the other Party's obligations hereunder; provided, however,
that nothing in this Agreement shall obligate Seller or Purchaser, or any of
their respective Affiliates, to waive or modify any of the terms and conditions
of this Agreement or any documents contemplated hereby, except as expressly set
forth herein.
(b) Seller shall give notice to Purchaser as soon as practicable
upon becoming aware of any event, circumstance, condition, fact, effect, or
other matter that resulted in, or that would be reasonably likely to result in:
(i) any representation or warranty set forth in Article 3
being or becoming untrue or inaccurate in any material respect with respect to
Seller as of any date on or after the date hereof (as if then made, except to
the extent such representation or warranty is expressly made only as of a
specific date, in which case as of such date);
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(ii) the failure by Seller to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by Seller under this Agreement; or
(iii) any change, effect, event, occurrence, state of facts
or development of which it becomes aware that would result in or would
reasonably be expected to result in, individually or in the aggregate, a
Material Adverse Effect.
(c) Purchaser shall give notice to Seller as soon as practicable
upon becoming aware of any event, circumstance, condition, fact, effect, or
other matter that resulted in, or that would be reasonably likely to result in:
(i) any representation or warranty set forth in Article 4
being or becoming untrue or inaccurate in any material respect with respect to
Purchaser as of any date on or after the date hereof (as if then made, except to
the extent such representation or warranty is expressly made only as of a
specific date, in which case as of such date); or
(ii) failure by Purchaser to comply with or satisfy in any
material respect any covenant, condition or agreement to be complied with or
satisfied by Purchaser under this Agreement, provided, however, that no such
notification shall affect or cure a breach of any of the representations,
warranties, covenants or agreements of the parties or the conditions to the
obligations of the Parties under this Agreement.
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Section 5.11. Reorganizations.
If and when all the conditions set forth in Article 7 have been
satisfied (other than those conditions which are to be satisfied simultaneously
with, or immediately prior to, the Closing), then Seller shall undertake such
lawful sales, assignments, mergers, reorganizations or similar transactions of
its entities or assets (collectively, the "REORGANIZATIONS") as reasonably
requested by Purchaser and which cannot be undertaken by Purchaser
simultaneously with or following the Closing without depriving Purchaser of the
material benefits it expects to receive from the Reorganizations; provided,
that, Seller shall have no obligation to consummate the Reorganizations if the
Reorganizations would have a materially detrimental effect (as determined in the
reasonable good faith discretion of Seller) upon Seller or its employees,
officers, directors, shareholders or holders of claims against the Seller. It is
further agreed that the Reorganizations shall be undertaken as close to the
Closing Date as possible. Purchaser shall indemnify and hold Seller, its
employees, officers, directors, shareholders or holders of claims against the
Seller harmless for all Liabilities (including, without limitation, foreign
taxes or other taxes) incurred by any of them in connection with such
Reorganizations and shall acknowledge such in a writing reasonably acceptable to
Seller prior to the consummation of the Reorganizations. Purchaser's
indemnification of Seller and its employees, officers, directors, shareholders
or holders of claims against the Seller shall be full and complete and shall not
be subject to any limitations, holdbacks, baskets, offsets or similar
adjustments under this Agreement, and shall not be applied against the maximum
amount of Transfer Taxes for which Purchaser has agreed to be liable under
Section 5.12 hereunder.
If any such Reorganization requires the approval of the Bankruptcy
Court, the Parties shall cooperate and use their respective commercially
reasonable efforts to obtain such approval and any such Reorganization shall be
subject to the receipt of such Bankruptcy Court approval.
Section 5.12. Transfer Taxes.
(a) In addition to and not in limitation of the provisions of
Section 5.11, Purchaser agrees that it will be liable for, and shall hold Seller
harmless from, any and all Transfer Taxes incurred pursuant to the transactions
contemplated by this Agreement and the Ancillary Agreements, including any
transfer of property requested by Purchaser to facilitate such transactions, up
to the amount of Seven Hundred Fifty Thousand Dollars ($750,000). Seller agrees
that it will be liable for, shall promptly pay when due and shall hold Purchaser
harmless from, any and all Transfer Taxes incurred pursuant to the transactions
contemplated by this Agreement and the Ancillary Agreements, including any
transfers of property requested by Purchaser to facilitate such transactions, to
the extent such Transfer Taxes exceed Seven Hundred Fifty Thousand Dollars
($750,000). Seller shall make reasonable efforts to obtain a ruling in an Order
from the Bankruptcy Court finding that the transactions contemplated by this
Agreement are exempt from Transfer Taxes to the extent permitted by applicable
Law. Any interest paid or owed with respect to Transfer Taxes shall be paid by
Purchaser or Seller based on which of such Parties was liable for the underlying
Tax hereunder. For the avoidance of doubt, the Parties agree that any income Tax
or similar Tax incurred by the Tower Group or any Tax on capital gain arising
out of the transactions contemplated by this Agreement shall not be a Transfer
Tax for the purposes of this Agreement.
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(b) Purchaser shall reimburse Seller by wire transfer of
immediately available funds within thirty (30) days of Seller's written notice
of payment of (i) any Transfer Taxes for which Purchaser is liable under Section
5.12(a) and (ii) any other Taxes assumed by Purchaser as a Working Capital
Obligation and Purchaser shall not assert any right of offset with respect to
such reimbursement obligations. Purchaser shall have the right to withhold such
amounts from the amounts to be paid pursuant to this Section 5.12 in accordance
with applicable Law.
(c) Purchaser and Seller agree to utilize, or cause their
respective Affiliates to utilize, the alternate procedure set forth in Revenue
Procedure 2004-53 with respect to wage reporting.
Section 5.13. Name Change. At Closing, Seller shall deliver to
Purchaser executed certificates and other instruments for filing and promptly
following the Closing, such certificates and instruments as filed in each
jurisdiction where a Seller entity is formed and in each jurisdiction where such
Seller entity is registered as a Foreign Entity that shall effect a change of
Seller entity's name ("NAME CHANGE FILINGS") to any name Seller reasonably
selects provided such name does not contain the words "Tower", "Automotive",
"Algoods" or "Trylon" and any derivation thereof. Notwithstanding the foregoing,
Purchaser hereby grants to Seller a royalty-free, non-transferable license to
use the name "Tower Automotive, Inc." in connection with the Chapter 11 cases
(the "CHAPTER 11 CASES") and post-confirmation administrative and wind-down
related activities.
Section 5.14. Certain Contract Matters.
(a) With respect to the negotiation, execution and delivery of
(i) a new Collective Bargaining Agreement between the Company or any Company
Subsidiary with The International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America as the recognized representative for
the hourly workforce at the Seller's Bellevue, Ohio facility, or (ii) a new
Collective Bargaining Agreement or an extension or modification of the existing
Collective Bargaining Agreement, in respect of Seller's Chicago, Illinois
facility, with the International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, and its Local No. 3212, Seller shall
not enter into any such agreement without first informing Purchaser of all of
the material terms and provisions thereof.
(b) Neither the Company nor any Company Subsidiary shall
consummate or complete any joint venture agreement with Rasandik Engineering
Industries India Ltd, without the prior written consent of Purchaser, consent
not to be unreasonably withheld or delayed.
Section 5.15. Certain Tax Matters.
Seller shall permit Purchaser to review and comment on each Tax Return
(a) of any Seller that is filed after the date of this Agreement if that Tax
Return is filed with respect to any period that includes, or any event that
occurs on, any date between February 2, 2005 and the Closing Date, and (b) of
any Foreign Entity that is filed after the date of this Agreement, regardless of
the period covered by the Tax Return. Seller shall provide to Purchaser for its
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review and comment all income Tax Returns, including German federal and German
trade Tax Returns and any similar returns to be filed in any jurisdiction, as
soon as they become available, even prior to May 15, 2007. Seller and Purchaser
shall work to compile by May 15, 2007 a list of all other applicable Tax Returns
which will be made available to Purchaser; provided, however, that Purchaser
shall make the final determination as to which Tax Returns it shall be permitted
to review and comment on. Purchaser shall review such Tax Returns promptly such
that they can be timely filed, and Seller shall make such revisions to such Tax
Returns as are reasonably requested by Purchaser. Seller shall promptly give
written notice to Purchaser of any inquiry, audit, or other proceeding by any
Taxing authority of (x) any Seller if such inquiry, audit, or other proceeding
is with respect to any period that includes, or any event that occurs on, any
date between February 2, 2005 and the Closing Date or (y) any Foreign Entity for
any period. Seller and Purchaser shall cooperate fully, as and to the extent
reasonably requested by the other Party, in connection with any such inquiry,
audit, or other proceeding, and Purchaser shall have the sole right to direct
the response to the inquiry, audit, or other proceeding if the Tax at issue is a
Working Capital Obligation or is with respect to any Foreign Entity.
Section 5.16. Assumed Contracts and Cure Amounts.
Seller shall cooperate with Purchaser and use commercially reasonable
efforts to assemble a comprehensive list of all of Seller's executory contracts
and unexpired leases of real and personal property together with Cure Amounts
(the "ASSUMED CONTRACT LIST") and Seller shall provide a final Assumed Contract
List (including its good faith determination of Cure Amounts) to Purchaser on or
before May 14, 2007. A preliminary list, without cure amounts, is attached as
Schedule 5.16. On or before June 4, 2007, Seller shall file, pursuant to section
365 of the Bankruptcy Code, one or more motions (the "365 MOTIONS") with the
Bankruptcy Court seeking authorization to (a) assume and assign to Purchaser any
of the executory contracts or unexpired leases designated by Purchaser to be
included in the 365 Motions and (b) to fix the maximum amount of any Cure
Amount, provided, however, notwithstanding the provisions contained in the
definition of Excluded Assets or otherwise, Purchaser shall have the unfettered
right to remove any executory contract or unexpired lease from the Assumed
Contracts in its discretion at any time through Closing. In the event Purchaser
identifies any executory contract or unexpired lease that it wants to be
included as an Assumed Contract after the filing of the 365 Motions and that was
not previously on the final Assumed Contract List or identified to Purchaser in
writing a reasonable period of time prior to the filing of the 365 Motions and
deleted by Purchaser, Seller shall use its reasonable best efforts, and in
compliance with section 365 of the Bankruptcy Code, to assume and assign such
executory contract or unexpired lease to Purchaser.
ARTICLE 6.
EMPLOYEE MATTERS
Section 6.1. Employee Matters.
(a) Purchaser shall offer employment to Seller's
union-represented employees at purchased facilities, and to other active Seller
Employees on an at will basis, on such terms and conditions as Purchaser deems
appropriate (subject to Section 6.1(c) below).
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Except as otherwise provided by Section 6.1(b) below, such offers of employment
shall be for employment with Purchaser effective upon the Closing Date.
(b) All Seller Employees who accept Purchaser's offer of
employment (by reporting to work or otherwise), or, in the case of a Seller
Employee on an approved leave of absence with the Tower Group as of the Closing
Date who returns to work by no later than the date that such Seller Employee's
approved leave of absence expires, shall become employees of Purchaser as of the
later of the Closing Date or the date he or she returns to work ("HIRED
EMPLOYEES"). Seller hereby releases all Seller Employees from any employment,
noncompete and/or confidentiality agreement (or similar agreement) previously
entered into between Seller, to the extent necessary to allow such Seller
Employees to serve Purchaser.
(c) For all non-union Hired Employees, Purchaser shall employ
such individuals on an at-will basis on terms that provide (i) the same or
greater base salary, wages and bonus and incentive compensation opportunity
(including, for Seller Employees with employment offer letters disclosed on
Schedule 3.14, the same economic terms and conditions of employment as described
therein, without regard to any equity awards or any amounts that would be
duplicative of other payments made to the employee) and (ii) employee benefit
packages that are substantially similar in the aggregate to the current benefits
provided such Seller Employees including, but not limited to, medical and dental
coverage and a 401(k) plan (such 401(k) plan to be implemented by Purchaser on
the Closing Date). For all non-union Hired Employees who remain employed by
Purchaser during the period, Purchaser will maintain the requisite level of
salary and wages for a minimum of one (1) year from the Closing Date and such
benefits through the end of the applicable plan year ending after the Closing
Date. Terms and conditions of unionized Hired Employees will be as determined by
applicable Collective Bargaining Agreements.
(d) Effective upon the Closing Date, Purchaser shall assume
sponsorship of each Assumed Plan (including all related assets and benefit
Liabilities thereunder). Effective upon the Closing Date, Seller shall transfer
to Purchaser any and all trusts, insurance contracts, accounts or other funding
arrangements with respect to the Assumed Plans. Seller and Purchaser shall
cooperate in good faith in obtaining all consents, authorizations and approvals
of any third party or Governmental Authority required to effect the transfer of
the sponsorship of each Assumed Plan. Seller shall, on or prior to the Closing
Date, transfer to Purchaser all Assumed Plan Documents and Records in the
possession of, or under the direct or indirect control of, Seller, any Affiliate
of Seller or any fiduciary or administrator of an Assumed Plan. Seller shall
also use commercially reasonable efforts to cause each third party who performs
services with respect to an Assumed Plan, including trustees, actuaries,
accountants, consultants, investment managers and advisors, and attorneys, to
transfer to Purchaser or its designee such Assumed Plan Documents and Records as
Purchaser may reasonably require to maintain and administer each Assumed Plan
and any related trusts, accounts or other funding arrangements. To the extent
that any Assumed Plan Documents and Records are in electronic format, Seller and
Purchaser shall cooperate and use good faith efforts to have such Assumed Plan
Documents and Records transferred to Purchaser or its designee(s)
electronically.
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(e) Except as set forth in Section 6.1(c), nothing contained in
this Agreement shall restrict Purchaser from changing any benefit plan, policy
or arrangement of Purchaser, after the Closing Date.
(f) No past, present or future employees of Seller or Purchaser,
no labor organization, and no employee benefit plan shall be treated as
third-party beneficiaries of the provisions contained in this Agreement.
(g) Purchaser acknowledges that the consummation of the
transactions contemplated hereby shall constitute a "Change in Control" as
defined in the Change in Control Agreements; provided, that Seller represents
that (except with respect to one individual previously disclosed to Purchaser
who had a "Qualifying Termination") no payment rights are triggered solely by
the Change in Control and any payment owed thereunder shall only be paid in the
event that a "Qualifying Termination" (having the meaning contained in the
Change in Control Agreements) occurs pursuant to the terms of such Change in
Control Agreements. Seller shall furnish, upon the reasonable request of
Purchaser, any prepared reports pertaining to the Change in Control Agreements.
(h) Purchaser shall continue Seller's leave of absence policies
for Seller Employees who are on leave of absence as of the Closing Date
(including leave of absence due to disability) for the balance of their leave,
subject to such changes, if any, as Purchaser may make that are consistent with
any leave of absence policy that is applicable to similarly situated Hired
Employees following the Closing Date generally.
(i) Purchaser shall permit its 401(k) or other tax-qualified
defined contribution plan to accept rollovers of distributions (or direct
rollovers) from Seller's 401(k) plan, including rollovers of loans in kind.
(j) Each Hired Employee shall, to the extent permitted by Law and
applicable tax qualification requirements, and subject to any applicable break
in service or similar rule, receive credit (for eligibility to participate, for
vesting and for vacation and severance entitlement, but not for other benefit
accrual purposes) under Purchaser employee benefit plans for years of service
with the Tower Group prior to the Closing Date that were recognized under a
similar employee benefit plan of the Tower Group for such Hired Employee (except
to the extent that doing so would cause a duplication of benefits).
Section 6.2. Management Incentive Plan.
On or after the Closing Date, Purchaser shall implement a management
incentive plan (the "MANAGEMENT INCENTIVE PLAN") for the benefit of the members
of Purchaser's management team (the "SENIOR MANAGEMENT"). The type and manner of
awards pursuant to the Management Incentive Plan, and the Management Incentive
Plan's other terms and conditions shall be determined in the sole discretion of
Purchaser in consultation with Senior Management. The Management Incentive Plan
may provide, among other things, for the availability to Senior Management,
restricted common stock grants, phantom options for the purchase of common stock
or other equity equivalents for such common stock and shall be approximately
equivalent to ten percent (10%) of Purchaser's common stock on a fully diluted
basis on the Closing Date.
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Purchaser agrees to grant, at a minimum, fifty percent (50%) of such awards to
Senior Management within ninety (90) days of the Closing Date.
ARTICLE 7.
CONDITIONS TO CLOSING
Section 7.1. Mutual Conditions to Closing. The respective obligations
of each Party to consummate the transactions contemplated by this Agreement
shall be subject to the satisfaction or waiver at or prior to the Closing, of
each of the following conditions:
(a) The Bankruptcy Court shall have entered the (i) Sale Order
and (ii) the Confirmation Order, and each such Order shall be a Final Order on
the Closing Date;
(b) no statute, rule, regulation, executive order, decree,
ruling, injunction or other Order (whether temporary, preliminary or permanent)
shall have been enacted, entered, promulgated or enforced by any Governmental
Authority and (ii) no claim, suit action, investigation, litigation or
proceeding shall be pending or threatened in or before any Governmental
Authority, in either case, which prohibits or seeks to prohibit the consummation
of the transactions contemplated by this Agreement or the Ancillary Agreements;
provided, however, that prior to invoking this condition each Party agrees to
comply with Section 5.6;
(c) (i) the waiting period (and any extension thereof) applicable
to the transactions contemplated by this Agreement under the HSR Act shall have
been terminated or shall have expired, and (ii) all other material
authorizations, consents, Orders or approvals of, or declarations or filings
with, or expiration of waiting periods imposed by, any Governmental Authority
necessary for the consummation of the transactions contemplated by this
Agreement shall have been filed or been obtained; and
(d) each Ancillary Agreement shall have been executed by the
applicable Party to such agreement.
Section 7.2. Conditions to Obligations of Purchaser. The obligations
of Purchaser to consummate the transactions contemplated by this Agreement shall
be further subject to the satisfaction or waiver at or prior to the Closing, of
each of the following conditions:
(a) The representations and warranties of Seller set forth in
this Agreement including, without limitation, the representations contained
within each Monthly Representation Report, shall be true and correct in all
respects, on and as of the Closing Date (unless any such representation or
warranty is made only as of a specific date, in which event such representation
and warranty shall be true and correct in all respects as of such specified
date) with the same effect as though such representations and warranties had
been made or given on and as of the Closing Date, except where the failure of
any such representations and warranties to be so true and correct, in the
aggregate, has not had and would not reasonably be likely to have a Material
Adverse Effect;
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(b) Seller shall have performed and complied with, in all
material respects, the obligations, agreements and covenants, required to be
performed by or complied with by it under this Agreement at or prior to the
Closing Date;
(c) Purchaser shall have received a certificate of an executive
officer of the Seller, on behalf of the Seller and not in such executive
officer's individual capacity (the "SELLER CERTIFICATE"), certifying that, to
the best of such executive officer's knowledge, the conditions set forth in
Section 7.2 have been satisfied;
(d) Seller shall have delivered to Purchaser all items set forth
in Section 2.8 of this Agreement;
(e) Seller shall have assumed and assigned to Purchaser all of
the Assumed Contracts that constitute material customer and vendor agreements as
reasonably identified by Purchaser on Schedule 5.16 and substantially all other
Assumed Contracts on Schedule 5.16, as Schedule 5.16 is modified by Purchaser
through the Closing;
(f) If requested by Purchaser, Seller shall have received or
obtained all third party consents in respect (i) of any joint venture,
partnership, operating or shareholder agreement (other than Metalsa), (ii) of
the transfer of the direct or indirect ownership of any Foreign Entity, or (iii)
any contract to the extent such default would reasonably be likely to cause at
least Two Million Dollars ($2,000,000) of Liabilities or damages for Purchaser,
unless as a result of the Sale Order or other Final Order of the Bankruptcy
Court, no third party consent is required for Purchaser to receive the full
benefits of the agreements, ownership interests or contracts referred to above
without default or damage thereto, which consents may be set forth, from time to
time, on Schedule 7.2(f), as modified by Purchaser, from time to time, until
five (5) Business Days prior to the Closing;
(g) Since January 1, 2007, no event or events shall have occurred
which has or would reasonably be expected to have a Material Adverse Effect;
(h) The amount of the DIP Payment shall not exceed Six Hundred
Eighty Million Dollars ($680,000,000) net of Seller's domestic entities'
unrestricted cash;
(i) The amount of Net Foreign Financial Indebtedness shall not
exceed the equivalent of One Hundred Five Million Dollars ($105,000,000) (and
Purchaser shall have received a certificate of the Chief Financial Officer of
Seller on behalf of Seller and not in his personal capacity calculating Net
Foreign Financial Indebtedness in accordance with this Agreement in reasonable
detail);
(j) the amount of the Second Lien Payment plus the amount of the
IRB Payment shall not exceed Eighty Four Million Eight Hundred Thousand Dollars
($84,800,000).
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Section 7.3. Conditions to Obligations of Seller. The obligations of
Seller to consummate the transactions contemplated by this Agreement shall be
further subject to the satisfaction or waiver at or prior to the Closing Date of
the following conditions:
(a) Purchaser shall have delivered to, or on behalf of, Seller,
the portion of the Purchase Price required to be delivered at Closing in the
manner required herein;
(b) The representations and warranties of Purchaser set forth in
this Agreement shall be true and correct in all material respects, in each case
as of the Closing Date as though made on and as of such date (unless any such
representation or warranty is made only as of a specific date, in which event
such representation and warranty shall be true and correct in all material
respects as of such specified date);
(c) Purchaser shall have performed in all material respects the
material obligations (except with respect to the obligation to pay the Purchase
Price in accordance with the terms of this Agreement, which obligations shall be
performed in all respects as required under this Agreement), and complied in all
material respects with the agreements and covenants, required to be performed by
or complied with by it pursuant to this Agreement at or prior to the Closing
Date;
(d) Seller shall have received a certificate of an authorized
representative of Purchaser (on behalf of Purchaser and not in such authorized
officer's individual capacity), certifying that, to the best of such authorized
officer's knowledge, the conditions set forth in Section 7.3 have been
satisfied;
(e) Purchaser shall have delivered to Seller all items set forth
in Section 2.9 hereto; and
(f) all conditions set forth in the Plan to have been satisfied
prior to effectiveness of the Plan shall have been satisfied.
ARTICLE 8.
TERMINATION, AMENDMENT AND WAIVER
Section 8.1. Termination. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing Date:
(a) by mutual written consent of each Party hereto;
(b) by any Party hereto if any court of competent jurisdiction or
other Governmental Authority located or having jurisdiction within the United
States shall have issued a Final Order or taken any other final action
restraining, enjoining or otherwise prohibiting the transactions contemplated by
this Agreement and such Order, or other action is or shall have become final and
nonappealable; provided, however, that neither Seller nor Purchaser shall have
the right to terminate this Agreement pursuant to this Section 8.1(b) if such
Party or any of its Affiliates has sought entry of, or has failed to use all
commercially reasonable efforts to oppose entry of, such Order;
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(c) by Purchaser if the Closing Date shall not have occurred on
or before July 31, 2007 (the "TERMINATION DATE"); provided, however, the right
to terminate this Agreement pursuant to this Section 8.1(c) shall not be
available to Purchaser if any action of Purchaser or the failure of Purchaser to
perform any of its obligations pursuant to this Agreement required to be
performed at or prior to the Closing Date has been the cause of, or resulted in,
the failure of the Closing Date to occur on or before the Termination Date and
such action or failure to perform constitutes a breach of this Agreement;
(d) by Seller if the Closing Date shall not have occurred on or
before August 31, 2007; provided, however, the right to terminate this Agreement
pursuant to this Section 8.1(d) shall not be available to Seller if any action
of Seller or the failure of Seller to perform any of its obligations pursuant to
this Agreement required to be performed at or prior to the Closing Date has been
the cause of, or resulted in, the failure of the Closing Date to occur on or
before the Termination Date and such action or failure to perform constitutes a
breach of this Agreement;
(e) by Seller if there shall have been a material breach of any
covenant or agreement on the part of Purchaser contained in this Agreement such
that the condition set forth in Section 7.3 would not be satisfied and which
shall not have been cured prior to the earlier of (A) ten (10) Business Days
following notice of such breach and (B) the Termination Date;
(f) by Purchaser if there shall have been a material breach of
any covenant or agreement on the part of Seller contained in this Agreement such
that the condition set forth in Section 7.2 would not be satisfied and which
shall not have been cured prior to the earlier of (i) ten (10) Business Days
following notice of such breach and (ii) the Termination Date;
(g) by Purchaser if the:
(i) Seller shall fail to file the Plan and an accompanying
disclosure statement with the Bankruptcy Court on or before May 1, 2007;
provided that Purchase must exercise the termination right of this Section
8.1(g)(i) prior to the date that is five (5) Business Days following the date
that Seller shall file the Plan and an accompanying disclosure statement with
the Bankruptcy Court;
(ii) Bankruptcy Court shall fail to enter, on or before June
5, 2007, an Order approving Seller's disclosure statement; provided that
Purchaser must exercise the termination right of this Section 8.1(g)(ii) prior
to the date that is five (5) Business Days following the date that the
Bankruptcy Court shall enter an Order approving Seller's disclosure statement;
(iii) Bankruptcy Court shall fail to enter on or before July
11, 2007 the Confirmation Order; provided that Purchaser must exercise the
termination right of this Section 8.1(g)(iii) prior to the date that is five (5)
Business Days following the date that the Bankruptcy Court shall enter the
Confirmation Order;
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(iv) Confirmation Order does not become a Final Order on or
before July 23, 2007; provided that Purchaser must exercise the termination
right of this Section 8.1(g)(iv) prior to the date that is five (5) Business
Days following the date that the Confirmation Order shall become a Final Order;
(v) Seller shall fail to hold an Auction on or before June
25, 2007;
(vi) Bankruptcy Court shall fail to enter, on or before July
11, 2007, an Order designating Purchaser as the successful bidder;
(vii) Seller's 2006 Audited Statements are not completed and
delivered to Purchaser in final form by July 5, 2007; provided, however,
Purchaser must exercise the termination right set forth in this Section
8.1(g)(vii) within ten (10) Business Days of receiving such 2006 Audited
Statements;
(viii) Seller's 2006 Audited Statements are not materially
consistent with the information Seller disclosed or made available to Purchaser
prior to the execution of the Agreement, including information disclosed in the
SEC Reports filed prior to the date of this Agreement, disclosed in the
bankruptcy filings, or disclosed on the Company Disclosure Schedule; provided,
however, Purchaser must exercise the termination right set forth in this Section
8.1(g)(viii) within ten (10) Business Days of receiving such 2006 Audited
Statements;
(ix) if an examiner with expanded powers is appointed in one
or more of Seller's Chapter 11 Cases;
(x) if the Bankruptcy Case is converted to Chapter 7 of the
Bankruptcy Code;
(xi) if a trustee is appointed for Seller; or
(xii) if Purchaser's meetings with Ford, Volkswagen,
DaimlerChrysler, BMW and/or Hyundai/Kia shall disclose to Purchaser information
that individually or in the aggregate is materially adverse to Seller's business
or that could reasonably be expected to be materially adverse to Seller's
business as a whole and is not materially consistent with the information Seller
disclosed or made available to Purchaser prior to the execution of the
Agreement, provided, however, the termination right set forth in this Section
8.1(g)(xii) shall only be exercisable if Purchaser (A) uses its reasonable
efforts (Seller also being required to use its reasonable efforts) to hold the
Purchaser Customer Meetings as soon as reasonably practicable after the date
hereof; and (B) exercises the termination right set forth in this Section
8.1(g)(xii) on or prior to June 1, 2007.
(h) by any Party hereto if (i) Seller executes an agreement which
contemplates an Alternative Transaction or (ii) Seller consummates an
Alternative Transaction or a Partial Acquisition;
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(i) by Purchaser, if a payment default (whether or not waived by
the DIP Lender) with respect to the DIP Revolver or the DIP Term Loan (as
defined in the DIP Loan Credit Agreement) occurs or if there is any acceleration
of the amounts due under the DIP Loan Credit Agreement.
(j) by Purchaser if the amount of the DIP Loan exceeds Six
Hundred Eighty Million Dollars ($680,000,000) net of Seller's domestic entities'
unrestricted cash for any three (3) consecutive days; provided that Purchaser
must exercise the termination right contained in this Section 8.1(j) prior to
the date that is ten (10) calendar days after the date that Purchaser is
notified in writing that the amount of the DIP Loan net of Seller's domestic
entities' unrestricted cash is again less than Six Hundred Eighty Million
Dollars ($680,000,000), which notice shall also identify the amount of the
borrowing in excess of the limits set forth in this Section 8.1(j).
Section 8.2. Effect of Termination.
(a) In the event of the termination of this Agreement pursuant to
Section 8.1, this Agreement shall forthwith become void and there shall be no
Liability or obligation on the part of any Party hereto, except with respect to
Sections 3.23, 4.6, 5.2(b), 5.6, this Section 8.2 and Article 9, which shall
survive such termination; provided, however, that, subject to the provisions of
this Section 8.2, nothing herein shall relieve any Party from Liability for any
breach hereof. Notwithstanding the foregoing, it is understood and agreed that
if this Agreement is properly terminated by Seller pursuant to Section 8.1(e),
then Seller shall be entitled to receive, as liquidated damages and not as a
penalty, the sum of Fifteen Million Dollars ($15,000,000) subject to the
procedures contained in the Escrow Agreement. In addition, upon such a
termination pursuant to Section 8.1(e), Seller shall be entitled to prove that
its actual contractual damages arising directly from the breach by Purchaser
exceeded Fifteen Million Dollars ($15,000,000), and in such event, it may
recover up to a maximum of Twenty Five Million Dollars ($25,000,000) (inclusive
of the liquidated damages amount set forth in this Section 8.2). The Deposit
shall be the exclusive source of funds for recovery by Seller of liquidated
damages and/or any additional damages arising from this Agreement, so that in no
event shall Purchaser have any liability under this Agreement in excess of the
Deposit. In addition to, and not in limitation of the foregoing, Purchaser shall
under no circumstances be liable for punitive damages.
(b) In the event that this Agreement is terminated for any reason
other than pursuant to Section 8.1(e), Seller shall promptly following such
termination instruct the Escrow Agent to return the Deposit to Purchaser.
(c) Notwithstanding anything herein to the contrary, in the event
this Agreement is terminated pursuant to Section 8.1(g), Purchaser shall have
the rights granted to it in the Marketing Protocol Order.
No provision herein shall affect or modify the rights of the Parties under the
Marketing Protocol Order.
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Section 8.3. Amendment. This Agreement may not be amended except by a
written instrument executed and delivered by the Parties hereto.
Section 8.4. Waiver. (a) At any time prior to the Closing Date, any
Party hereto may in writing:
(i) extend the time for the performance of any of the
obligations or other acts of the other Parties hereto;
(ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto; and
(iii) subject to the requirements of applicable Law, waive
compliance with any of the agreements or conditions contained herein.
(b) Any such extension or waiver shall be valid if set forth in
an instrument in writing signed by the Party or Parties to be bound thereby.
ARTICLE 9.
GENERAL PROVISIONS
Section 9.1. Non-Survival of Representations, Warranties and
Agreements. None of the representations, warranties, covenants and agreements in
this Agreement or in any instrument delivered pursuant to this Agreement,
including any rights arising out of any breach of such representations,
warranties, covenants and agreements, shall survive the Closing Date, except for
(i) those covenants and agreements contained herein that by their terms apply or
are to be performed in whole or in part after the Closing Date and (ii) this
Article 9.
Section 9.2. Materiality; Company Disclosure Schedule.
(a) As used in this Agreement, unless the context would require
otherwise, the terms "material" and the concept of the "material" nature of an
effect upon Seller shall be measured relative to the entire business of the
Tower Group taken as a whole. There have been, however, included in the Company
Disclosure Schedule and may be included elsewhere in this Agreement items which
are not "material" within the meaning of the immediately preceding sentence in
order to avoid any misunderstanding, and such inclusion shall not be deemed to
be an agreement by Seller that such items are "material" or to further define
the meaning of such term for purposes of this Agreement. Disclosures included in
any Schedule of the Company Disclosure Schedule shall be considered to be made
for purposes of all other sections of the Company Disclosure Schedule to the
extent that the relevance of any such disclosure to any other section of the
Company Disclosure Schedule is reasonably apparent from the text of such
disclosure.
(b) From time to time prior to the Closing, Seller may supplement
or amend the Company Disclosure Schedule. No supplement or amendment of a
Company Disclosure Schedule shall cure any breach of any representation or
warranty.
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Section 9.3. Notices.
(a) Any and all notices or other communications or deliveries
required or permitted to be provided hereunder shall be in writing and shall be
deemed given and effective on the earliest of (i) the date of transmission, if
such notice or communication is delivered via facsimile at the facsimile
telephone number specified in this Section 9.3 prior to 5:00 p.m. (Eastern
Standard Time) on a Business Day, (ii) the Business Day after the date of
transmission, if such notice or communication is delivered via facsimile at the
facsimile telephone number specified in this Agreement later than 5:00 p.m.
(Eastern Standard Time) on any date and earlier than 11:59 p.m. (Eastern
Standard Time) on such date, (iii) when received, if sent by nationally
recognized overnight courier service, or (iv) upon actual receipt by the Party
to whom such notice is required to be given.
(b) The address for such notices and communications shall be as
follows:
if to Seller or the Company:
Tower Automotive, Inc.
00000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxxxxx Xxxxxxx
with a copy to (which shall not constitute notice):
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx P.C.
Xxxx Xxxxx, P.C.
if to Purchaser:
TA Acquisition Company, LLC
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Mr. Dev X. Xxxxxxx, Managing Director
Xx. Xxxx Xxxxxxx, Managing Director
with a copy to (which shall not constitute notice):
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Xxxxxxxxxx Xxxxxxx PC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Section 9.4. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
Section 9.5. Entire Agreement. This Agreement, the Company Disclosure
Schedule, the Confidentiality Agreement, the Marketing Protocol Order and the
Ancillary Agreements constitute the entire agreement of the Parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, between the Parties hereto with respect to
the subject matter hereof including, without limitation, that certain Term Sheet
for the Sale of Tower Automotive, Inc., dated as of March 28, 2007 by and
between the Company and Cerberus Capital Management, L.P.
Section 9.6. Assignment. (a) This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns (including, with respect to the Seller, the
Post-Consummation Trust). No Party may assign either this Agreement or any of
its rights, interests, or obligations hereunder without the prior written
approval of the other Party; provided, however, Purchaser may, without Seller's
consent:
(i) assign any or all of its rights and interests hereunder
to one or more of its Affiliates;
(ii) designate one or more of its Affiliates to perform its
obligations hereunder; or
(iii) assign its rights hereunder to its lenders as
collateral for indebtedness.
(b) In the event Purchaser assigns its rights as set forth in
this Section 9.6, Purchaser and any of its United States Affiliates that acquire
any Acquired Assets, other than interests in any Foreign Entities, shall be
jointly and severally responsible for the performance of all of its obligations
pursuant to this Agreement.
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Section 9.7. No Third Party Beneficiaries. This Agreement is not
intended, and shall not be deemed, to:
(a) confer any rights or remedies upon any Person other than
Parties hereto and their respective successors and permitted assigns;
(b) to create any agreement of employment with any Person; or
(c) to otherwise create any third party beneficiary hereto.
Section 9.8. Governing Law.
This Agreement shall be construed, performed and enforced in
accordance with, and governed by, the Laws of the State of New York (without
giving effect to the principles of conflicts of Laws thereof), except to the
extent that the Laws of such state are superseded by the Bankruptcy Code;
provided that, the validity and enforceability of all conveyance documents or
instruments executed and delivered pursuant to this Agreement insofar as they
affect title to real property shall be governed by and construed in accordance
with the Laws of the jurisdiction in which such property is located.
Section 9.9. Jurisdiction. In addition, each of the parties hereto (i)
consents to submit itself to the personal jurisdiction of the Bankruptcy Court
in the event any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from such
court, (iii) agrees that it will not bring any action relating to this Agreement
or any of the transactions contemplated by this Agreement in any court other
than the Bankruptcy Court and (iv) to the fullest extent permitted by Law,
consents to service being made through the notice procedures set forth in
Section 9.3. Each party hereto hereby agrees that, to the fullest extent
permitted by Law, service of any process, summons, notice or document by U.S.
registered mail to the respective addresses set forth in Section 9.3 shall be
effective service of process for any suit or proceeding in connection with this
Agreement or the transactions contemplated hereby.
Section 9.10. Waiver of Jury Trial.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT, OR THE ANCILLARY AGREEMENTS IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE, IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT ANCILLARY AGREEMENTS AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH
PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF
SUCH WAIVERS, (II) IT UNDERSTANDS
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AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS
VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.
Section 9.11. Counterparts; Electronic Transmission.
This Agreement may be executed and delivered:
(a) in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one and the same Agreement
and binding on all of the Parties hereto, notwithstanding that all of the
Parties are not signatory to the original or to the same counterpart; and
(b) via (i) facsimile transmission or (ii) other electronic
transmission which provides an accurate copy of this Agreement (collectively,
the "ELECTRONIC COPY"), which such Electronic Copy shall be deemed an original.
Section 9.12. Interpretation.
(a) When reference is made in this Agreement to a Section or
Schedule, such reference shall be to a Section or Schedule of this Agreement
unless otherwise indicated.
(b) The table of contents and headings contained in this
Agreement are for convenience of reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
(c) Whenever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
Section 9.13. Expenses. Except as set forth in this Agreement and
whether or not the transactions contemplated hereby are consummated, each Party
shall bear all costs and expenses incurred or to be incurred by such Party in
connection with this Agreement and the consummation of the transactions
contemplated hereby.
Section 9.14. Currency. All references to currency amounts or "$" or
"Dollars" set forth in this Agreement shall be deemed United States of America
legal tender unless expressly stated otherwise. To the extent the context
requires, all foreign currencies shall be translated at the Budgeted Exchange
Rate, if stated, or the spot rate as set forth in The Wall Street Journal on May
1, 2007.
Section 9.15. Preparation of this Agreement. Purchaser and Seller
hereby acknowledge that:
(a) Purchaser and Seller jointly and equally participated in the
drafting of this Agreement and the Ancillary Agreements;
(b) Purchaser and Seller have been adequately represented and
advised by legal counsel with respect to this Agreement, the Ancillary
Agreements and the transactions contemplated hereby and thereby; and
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(c) No presumption shall be made that any provision of this
Agreement shall be construed against either Party by reason of such role in the
drafting of this Agreement and the Ancillary Agreements.
Section 9.16. Releases.
(a) Effective as of the Closing, Seller and, to the extent Seller
has the authority to bind such Person, each of its past and present
stockholders, officers, directors, attorneys, successors, assigns, employees,
agents, servants, parent companies, subsidiaries, affiliates, related
corporations, partners, representatives, predecessors, insurers, indemnitors,
and creditors, hereby release, covenant not to xxx, acquit and forever discharge
Purchaser and its Affiliates including all Foreign Entities and each of their
respective stockholders, officers, directors, attorneys, successors, assigns,
employees, agents, servants, attorneys, parent companies, subsidiaries,
Affiliates related corporations, partners, representatives, predecessors,
insurers, indemnitors, and any and all persons acting by, through, under or in
concert with any of them, from any claims arising prior to the Closing;
provided, however that this release shall not include a release of any rights
under this Agreement.
(b) Effective as of the Closing, Purchaser and, to the extent
Purchaser has the authority to bind such Person, and each of its past and
present stockholders, officers, directors, attorneys, successors, assigns,
employees, agents, servants, parent companies, subsidiaries, affiliates, related
corporations, partners, representatives, predecessors, insurers, indemnitors,
and creditors, hereby release, covenant not to xxx, acquit and forever discharge
Seller and its Affiliates and each of their respective stockholders, officers,
directors, attorneys, successors, assigns, employees, agents, servants,
attorneys, parent companies, subsidiaries, affiliates, related corporations,
partners, representatives, predecessors, insurers, indemnitors, and any and all
Persons acting by, through, under or in concert with any of them, from any
claims arising prior to the Closing; provided, however that this release shall
not include a release of any rights under this Agreement.
(signatures follow on the next page)
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IN WITNESS WHEREOF, each Seller and Purchaser have caused this Asset
Purchase Agreement to be executed as of the date first written above by their
respective authorized officers or signatories.
SELLER
TOWER AUTOMOTIVE, INC.
ALGOODS, USA, INC.
X.X. TOWER CORPORATION
TOWER AUTOMOTIVE BARDSTOWN, INC.
TOWER AUTOMOTIVE BOWLING GREEN, LLC
TOWER AUTOMOTIVE CHICAGO, LLC
TOWER AUTOMOTIVE FINANCE, INC.
TOWER AUTOMOTIVE GRANITE CITY, LLC
TOWER AUTOMOTIVE GRANITE CITY SERVICES, LLC
TOWER AUTOMOTIVE INTERNATIONAL, INC.
TOWER AUTOMOTIVE INTERNATIONAL HOLDINGS, INC.
TOWER AUTOMOTIVE INTERNATIONAL YOROZU HOLDINGS, INC.
TOWER AUTOMOTIVE LANSING, LLC
TOWER AUTOMOTIVE MADISON, LLC
TOWER AUTOMOTIVE MICHIGAN, LLC
TOWER AUTOMOTIVE MILWAUKEE, LLC
TOWER AUTOMOTIVE PLYMOUTH, INC.
TOWER AUTOMOTIVE PRODUCTS COMPANY, INC.
TOWER AUTOMOTIVE RECEIVABLES COMPANY, INC.
TOWER AUTOMOTIVE SERVICES AND TECHNOLOGY, LLC
TOWER AUTOMOTIVE TECHNOLOGY, INC.
TOWER AUTOMOTIVE TECHNOLOGY PRODUCTS, INC.
TOWER AUTOMOTIVE TOOL, LLC
TOWER SERVICES, INC.
TRYLON CORPORATION
By: /s/ Xxxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: President and CEO
TOWER AUTOMOTIVE, S.R.O.
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: MD Tower Automotive S.R.O.
-74-
PURCHASER
TA ACQUISITION COMPANY, LLC
By: /s/ Dev Xxxxxxx
---------------------------------
Name: Dev Xxxxxxx
Title: President
-75-
