Exhibit 2(d)
CONFORMED COPY
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (this "AGREEMENT") dated as of August 11, 1995
by and among XXXXX INDUSTRIES, INC., an Indiana corporation ("XXXXX"), SPACE
ACQUISITION CORPORATION, a Delaware corporation (the "BORROWER"), the Banks
set forth on the signature pages hereof (collectively, the "Banks," and
individually, a "Bank"), and NBD BANK, a Michigan banking corporation, as
Agent (the "AGENT") for the Banks under that certain Amended and Restated
Credit Agreement of even date herewith by and among the Borrower, certain
Subsidiaries of the Borrower, the Banks and the Agent (as amended or modified
from time to time, the "CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower was formed on July 27, 1995 for the purpose of
acquiring all of the issued and outstanding capital stock of Space Industries
International, Inc., a Delaware corporation ("SIII"), pursuant to the terms
of that certain Agreement and Plan of Merger dated as of August 11, 1995 (the
"MERGER AGREEMENT"), and upon consummation of the transactions contemplated
by the Merger Agreement, the Borrower will have acquired all of the issued
and outstanding capital stock of SIII, SIII will have merged with and into
the Borrower (with the Borrower being the surviving corporation), and the
Borrower will change its name to "CALSPAN INTERNATIONAL, INC."; and
WHEREAS, pursuant to the Credit Agreement, the Banks, upon the Effective
Date, may extend to the Borrower a revolving credit facility in the aggregate
principal amount of $39,000,000, which may include letters of credit in an
aggregate stated amount not to exceed $10,000,000, in order to provide funds
for the consummation of the transactions contemplated by the Merger
Agreement, for working capital
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purposes and for its other general corporate purposes; and
WHEREAS, it is a condition to the Banks entering into the Credit Agreement
that Xxxxx guaranty amounts constituting the Commitment B portion of the
Borrower's obligations under the Credit Agreement, pursuant to and as more
specifically described by the terms of a certain Guaranty Agreement of even
date herewith, made by Xxxxx in favor of the Agent (the "GUARANTY"); and
WHEREAS, it is a condition to Arvin's entering into and making the Guaranty
that the parties hereto enter into this Agreement, and the Borrower and the
Agent have agreed to enter into this Agreement in order to induce Xxxxx to
enter into and make the Guaranty.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
(1) DEFINITIONS. All capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Guaranty.
(2) INFORMATION AND ACCESS TO PROCEEDINGS. The Borrower
covenants and agrees that it shall (A) provide Xxxxx with copies of
all financial statements and other reports, certificates and documents which
the Borrower furnishes to the Agent pursuant to Section 5.1(d) of the Credit
Agreement at the same time and in the same manner as the Borrower furnishes
such statements and other reports to the Agent, (B) promptly after receipt
thereof (but in no event later than two (2) Business Days after receipt
thereof) provide Xxxxx with copies of all notices and other material
communications received by it from the Agent or any Bank, including any
notice of Default or Event of Default under the Credit Agreement or any Note,
(C) provide Xxxxx with access to the Borrower's records, books of accounts
and properties, and opportunity for discussion and audit, on the same basis
as the Borrower provides such access and opportunity to the Agent and the
Banks pursuant to Sections 5.1(e)(i) and (ii) of the Credit Agreement and (D)
give Xxxxx notice of all meetings of the Borrower's shareholders and board of
directors and any committee thereof and furnish to Xxxxx copies of all other
material communications from the Borrower to its board of directors or
shareholders, all at the same time and in the same manner as such notice is
given or such other communication is made to the directors or shareholders,
as the case may be. Xxxxx agrees that all such financial statements and
reports, as well as
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other sensitive materials received from the Borrower, shall be held and
treated as confidential, except to the extent that such information is or
becomes (i) generally available to the public other than as a result of a
wrongful disclosure by Xxxxx, (ii) available to Xxxxx from another source,
provided that such source is not (to Arvin's knowledge) prohibited from
disclosing such information, or (iii) discoverable under legal process under
applicable law. The Borrower also agrees to permit a designated
representative of Xxxxx to attend all meetings of the Borrower's shareholders
or the board of directors; PROVIDED, HOWEVER, that such representative may be
excluded, at the Borrower's option, from that portion of any meeting of the
board of directors in executive session at which there is discussed a
proposed or actual contract or transaction between the Borrower and Xxxxx or
any other corporation, partnership, association, or other organization in
which one or more of the officers or directors is also an officer or director
of Xxxxx or in which Xxxxx has a financial interest.
(3) PURCHASE OF THE LOANS. The Borrower, the Agent and the
Banks, agree with Xxxxx that:
(a) upon the occurrence and during the continuance of any
Event of Default under the Credit Agreement, or
(b) immediately upon any payment made by Xxxxx pursuant to
Section 1(b) of the Guaranty,
Xxxxx shall have the right (but not the obligation) to purchase from, and pay
to the Agent and the Banks all obligations due and owing by the Borrower and
the Subsidiary Guarantors under the Operative Documents (the "Senior Debt"),
including the outstanding principal balance of all (but not less than all) of
the outstanding Notes and all accrued and unpaid interest thereon. The
purchase of the Senior Debt under this Section 3 shall occur not later than
thirty (30) days after Xxxxx gives notice of its intent to purchase the
Senior Debt and upon such purchase the Agent and Banks shall assign to Xxxxx
without representation or warranty (except for the representation and
warranty that the Agent and/or the Banks have the organizational power and
authority so to assign and have not previously assigned any portion of the
Senior Debt) all of their right, title and interest in and to the Operative
Documents. Arvin's right to purchase the Senior Debt hereunder shall lapse
upon a revocation by the Agent of an Event of Default if Xxxxx receives a
notice of revocation of such Event of Default prior to its giving of a notice
of intent
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to purchase hereunder.
(4) LIMITATION ON INDEBTEDNESS AND INVESTMENTS. The Borrower
agrees that, without the prior written consent of Xxxxx, the Borrower will
not (A) incur any Indebtedness permitted by Section 5.2(g)(ii) of the Credit
Agreement, (B) incur any Indebtedness permitted by Section 5.2(g)(iv) of the
Credit Agreement that is not expressly subordinate and junior in right and
priority of payment to any Indebtedness of the Borrower to Xxxxx or (C) make
any investments, loans or advances permitted by Section 5.2(m) of the Credit
Agreement if the aggregate book value of such investments, loans and
advances, as measured at the time of any such investment, loan or advance,
exceeds at any time 5% of the consolidated Tangible Capital Funds of the
Borrower and its Subsidiaries as at the end of the immediately preceding
fiscal quarter of the Borrower.
(5) XXXXX CONSENT TO CREDIT AGREEMENT WAIVERS AND MODIFICATION.
Notwithstanding the provisions of Section 6 of the Guaranty or any other
provision of the Guaranty or the Credit Agreement to the contrary, Arvin's
consent shall not be required for any amendment, modification or waiver of
any term, covenant or agreement contained in:
(a) Section 5.2(b) of the Credit Agreement, if the
Borrower's Tangible Capital Funds are greater than the following: $17
million; decreasing to $14.5 million at Fiscal Year End 1996; decreasing to
$12.5 million at Fiscal Year End 1997; decreasing to $10.75 million at Fiscal
Year End 1998; decreasing to $10 million at Fiscal Year End 1999; increasing
to $12.1 million at Fiscal Year End 2000,
(b) Section 5.2(c) of the Credit Agreement, if the
Borrower's Leverage Ratio is less than the following: 2.6; increasing to 2.7
on the first day of Fiscal Year 1997; increasing to 3.2 on the first day of
Fiscal Year 1998; increasing to 3.4 on the first day of Fiscal Year 1999;
decreasing to 2.7 on the first day of Fiscal Year 2000, or
(c) Section 5.2(f) of the Credit Agreement, if the
Borrower's Adjusted Cash Flow Ratio is greater than the following: 1.05;
decreasing to 1.0 on the first day of Fiscal Year 1997.
(6) BORROWER'S REIMBURSEMENT OBLIGATION.
(a) The Borrower and each of the Subsidiary
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Guarantors which becomes party hereto hereby agree, jointly and severally, to
pay to Xxxxx on demand a sum equal to (i) any and all aggregate amounts paid
or incurred by Xxxxx under the Guaranty to the Agent on account of the
obligations of the Borrower to the Banks under the Operative Documents, (ii)
any and all costs and expenses incurred by Xxxxx in connection with enforcing
the obligations of the Borrower and the Subsidiary Guarantors hereunder,
including without limitation, the reasonable fees and disbursements of
counsel for Xxxxx, and (iii) interest on such amounts for the period
commencing on the date of demand for reimbursement under this Section 6 at
the Overdue Rate (as defined in the Credit Agreement) until the same is paid
in full.
(b) The obligations, covenants, agreements and duties of
the Borrower and the Subsidiary Guarantors under this Section shall not be
released, affected or impaired by any of the following whether or not
undertaken with notice to or consent of Xxxxx: (i) any assignment or
transfer, in whole or in part, of any of the Guaranteed Obligations or of any
of the Operative Documents, or (ii) any waiver by the Agent or any Bank, or
by any other person, of the performance or observance by Xxxxx, the Borrower
or any Subsidiary Guarantor of any of the agreements, covenants, terms or
conditions contained in the Guaranty, this Agreement or any of the Operative
Documents, or (iii) any indulgence in or the extension of the time for
payment by Xxxxx of the amounts payable under or in connection with the
Guaranty, or of the time for performance by Xxxxx, the Borrower or any
Subsidiary Guarantor of any other obligations under or arising out of the
Guaranty or any of the Operative Documents, or the extension or renewal
thereof, or (iv) the modification, amendment or waiver (whether material or
otherwise) of any duty, agreement or obligation of Xxxxx, the Borrower or any
Subsidiary Guarantor set forth in the Guaranty or this Agreement any of the
Operative Documents (the modification, amendment or waiver from time to time
of such documents being expressly authorized without further notice to or
consent of the Borrower or the Subsidiary Guarantors), or (v) the existence
of any defense, setoff or counterclaim which the Borrower may have or assert
against Xxxxx, the Agent or any Bank, or (vi) any purported release or
discharge of Xxxxx, the Borrower or any Subsidiary Guarantor from the
performance or observance of any agreement, covenant, term or condition
contained in this Agreement, the Guaranty or any of the Operative Documents,
by operation of law, or (vii) the running of any
limitations period otherwise applicable, or (viii) any other cause whether
similar or dissimilar to the foregoing which would release, affect or impair
the obligations, covenants, agreements or duties of the Borrower or any
Subsidiary Guarantor to
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Xxxxx hereunder.
(c) Notwithstanding provision of Section 6(b) to the
contrary, the Borrower and any Subsidiary Guarantor shall be entitled to
pursue after payment in full of the amounts owed to Guarantor hereunder,
exercise and assert in a separate proceeding, all legal or equitable remedies
for any breach of this Agreement by Xxxxx, the Agent or any Bank; and no
payment under this Section 6 by the Borrower or any Subsidiary Guarantor nor
any provision contained herein, including without limitation the
unconditional nature of the obligations of the Borrower and the Subsidiary
Guarantors under this Section 6, shall be construed as a waiver of any such
rights by any of them, or as a limitation on, or with respect to, any such
remedies or the damages recoverable in such proceeding.
(7) SECOND PRIORITY SECURITY INTEREST. The parties hereto
agree and acknowledge that, to secure the obligations of the Borrower and the
Subsidiary Guarantors to Xxxxx under Section 6 hereof (the "SUBORDINATED
OBLIGATIONS"), (A) the Borrower and the Subsidiary Guarantors shall xxxxx
Xxxxx a security interest in the same collateral (the "COLLATERAL") in which
the Borrower and the Subsidiary Guarantors shall grant the Agent and the
Banks a security interest pursuant to the Security Documents (as defined in
the Credit Agreement) other than the Guaranty, which security interest shall
be evidenced by security agreements, pledge agreements, financing statements
and other documents, all in form and substance satisfactory to Xxxxx and the
Agent and identical to the Security Agreement is all material respects,
(collectively, the "XXXXX SECURITY DOCUMENTS"), (B) the security interests
created in favor of Xxxxx by the Xxxxx Security Documents shall be junior in
priority to the security interests created in favor of the Agent and the
Banks by the Security Documents to secure the Senior Debt and (C)
notwithstanding Section 5.2(h) or any other provision of the Credit Agreement
to the contrary, neither the grant nor the perfection of security interests
by the Borrower and the Subsidiary Guarantors pursuant to the Xxxxx Security
Documents, in and of itself, constitutes, or will constitute, a default under
the Credit Agreement.
(8) COLLATERAL AGENT. Xxxxx hereby appoints the Agent as its
agent for the purpose of holding the Collateral, or so much of it as is in or
may come into the possession of the Agent, pursuant to the lien of the
security interests granted under the Xxxxx Security Documents. The Agent
hereby accepts such appointment and agrees to receive, hold, liquidate,
disburse, release and otherwise deal with such Collateral and the proceeds
and products thereof which may come
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into its possession in accordance with the Xxxxx Security Documents and this
Agreement and to pay over to Xxxxx any such Collateral or proceeds to which
Xxxxx is entitled under Section 9 hereof. The Agent shall have no duties or
responsibilities as agent of Xxxxx except those expressly set forth herein,
and shall not, by reason of this Agreement, have a fiduciary relationship
with Xxxxx, and no implied covenants, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or shall otherwise exist
against the Agent. Neither the Agent nor any of its directors, officers,
agents, or employees shall be liable to Xxxxx for any action taken or not
taken by it or them as agent of Xxxxx hereunder with the consent or at the
request of Xxxxx or in the absence of its or their own gross negligence or
willful misconduct. Neither the Agent nor any of its directors, officers,
agents, or employees shall incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing (which may be a
bank wire, telex, telecopy, or similar writing) believed by it to be genuine
or to be signed by the proper party or parties. Xxxxx agrees to indemnify
and hold harmless the Agent (to the extent not reimbursed by the Borrower,
but without limiting any obligation of the Borrower to make such
reimbursement) against any and all claims, damages, losses, liabilities,
costs or expenses arising out of its actions as agent under this Section 8;
PROVIDED, HOWEVER, that Xxxxx shall not be liable for any portion of such
claims, damages, losses, liabilities, costs or expenses resulting from the
Agent's breach of its obligations under this Agreement or its gross
negligence or willful misconduct.
(9) SUBORDINATION PROVISIONS. In furtherance of the provisions
of Section 7 of this Agreement, the parties hereto agree as follows:
(a) DEBT SUBORDINATION. All Subordinated Obligations
shall be subordinate and junior in right of payment and all other respects to
all Senior Debt, in the manner hereinafter set forth. No payment of, or
security for, all or any part of the Subordinated Obligations, including
without limitation principal and interest, whether in cash or other property,
by setoff, realizing upon collateral or otherwise, and whether directly or
indirectly, shall be made, given or received, unless and until the Senior
Debt shall have been paid in full or acquired by Xxxxx.
(b) LIEN SUBORDINATION. As among the Agent, the Banks
and Xxxxx only, Xxxxx unconditionally subordinates to the lien securing the
Senior Debt by the Agent for the benefit of the Banks any and all liens and
security interests which Xxxxx presently or hereinafter may have with respect
to the Xxxxx
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Security Documents. Such liens and security interests shall be junior in
priority and subordinate to any and all liens and security interests securing
the Senior Debt that the Agent may have in the same property, regardless of
(i) the time or order of attachment, perfection, filing or recording of such
security interests or liens, or the failure to give notice of the acquisition
or expected acquisition of any lien or security interest; (ii) any provision
of the United States Bankruptcy Code or the Uniform Commercial Code of
Michigan or any other Federal or state laws which relate to the priority of
liens or security interests; and (iii) the lapse of perfection or other lack
of perfection of the Agent's liens or security interests. It is further
acknowledged and agreed that none of Xxxxx, the Borrower or the Agent shall
take any action challenging the validity or enforceability of the liens and
security interests granted by the Borrower to the Agent or Xxxxx, as the case
may be, to secure the Senior Debt or the Subordinated Obligations, or any of
the subordination or other provisions set forth in this Agreement.
(c) BANKRUPTCY. In the event of any dissolution, winding
up, liquidation, arrangement or reorganization relating to the Borrower, or
upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Borrower or otherwise, the Agent and the
Banks shall be entitled to receive payment in full of the Senior Debt before
Xxxxx is entitled to receive any payment on account of any Subordinated Debt
and to that end (but subject to (i) the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights
conferred upon holders of indebtedness by a lawful plan of reorganization
arrangement or liquidation under applicable bankruptcy or insolvency law;
(ii) the provisions regarding distributions to creditors, claimholders and/or
parties-in-interest under any applicable bankruptcy or insolvency statute,
any statute or procedure for arrangement of debt or assignment for the
benefit of creditors; and (iii) any order or decree entered by a court of
competent jurisdiction in any proceeding pending under any applicable law
with respect to bankruptcy, insolvency, or assignment of the benefit of
creditors), the Agent shall be entitled to receive, on behalf of the Banks,
all payments or distributions of any kind (whether in cash, securities or
other property) which otherwise would be payable or deliverable upon or with
respect to the Subordinated Obligations, and such payments or distributions
shall be paid or delivered directly to the Agent, or its representatives, for
application to the payment or prepayment of the Senior Debt, until the Senior
Debt shall have been paid in full.
(d) UNAUTHORIZED PAYMENTS. In the event that any
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payment or distribution upon or with respect to the Subordinated Debt is
received by Xxxxx contrary to the subordination provisions of this Agreement,
such payment or distribution shall be received in trust for the benefit of
the Agent, shall be segregated from other funds and property held by Xxxxx
and shall be forthwith paid over to the Agent, or its representatives, for
application to the payment or prepayment of the Senior Debt until the Senior
Debt shall have been paid in full. Until so delivered, the same shall be
held in trust by Xxxxx, as the property of the Agent for the benefit of the
Banks. In the event of failure of Xxxxx to make any such endorsement or
assignment, the Agent, or any of its officers or employees on behalf of the
Agent, is hereby unequivocally authorized to make the same.
(e) REINSTATEMENT. Xxxxx agrees that if at any time any
payment by the Borrower to the Agent or the Banks, or any part thereof, is
subsequently invalidated, declared to be fraudulent or preferential, set
aside, rescinded and/or required to be repaid by the Agent or any Bank to a
trustee, receiver or any other party under any bankruptcy, insolvency,
arrangement, reorganization or receivership proceedings or upon an assignment
for the benefit of creditors or any other marshalling of the assets of
liabilities of the Borrower, or otherwise, then to the extent of any sum not
finally retained by the Agent or any Bank, Arvin's obligations to the Agent
and the Banks shall be reinstated upon written notice thereof to Xxxxx by the
Agent and this Agreement shall remain in full force and effect (or be
reinstated), but only to the extent of, and with respect to, any payments not
finally retained by the Agent and the Banks, until the Senior Debt shall have
been paid in full.
(f) REPRESENTATIONS AND WARRANTIES.
i) Xxxxx hereby represents and warrants that: (A)
the execution, delivery and performance of this Agreement are within its
corporate powers, if applicable, have been duly authorized and are not in
contravention of law or, if applicable, of the terms of its articles of
incorporation or bylaws, or of any law, order, judgment, decree, contract or
undertaking to which it is a party or by which it or any of its properties is
bound or affected; (B) this Agreement constitutes the legal, valid and
binding obligation of Xxxxx, enforceable against it in accordance with its
terms; and (C) except as provided or to be provided under this Agreement or
the Xxxxx Security Documents, no security or collateral of any kind has been
taken by Xxxxx to secure any of the Subordinated Obligations, whether from
the Borrower or otherwise, and there are no Liens on or with respect to any
of the Borrower's assets to secure any part of the Subordinated Obligations.
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ii) The Borrower hereby represents and warrants that:
(A) the execution, delivery and performance of this Agreement are within its
corporate powers, if applicable, have been duly authorized and are not in
contravention of law or, if applicable, of the terms of its articles of
incorporation or bylaws, or of any law, order, judgment, decree, contract or
undertaking to which it is a party or by which it or any of its properties is
bound or affected; (B) this Agreement constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in accordance with
its terms; and (C) except as provided or to be provided under this Agreement,
the Security Documents or the Xxxxx Security Documents, no security or
collateral of any kind has been taken by Xxxxx, the Agent or any Bank to
secure any of the Senior Debt or the Subordinated Obligations, whether from
the Borrower or otherwise, and there are no Liens on or with respect to any
of the Borrower's assets to secure any part of the Senior Debt or the
Subordinated Obligations.
iii) The Agent and the Banks each (for itself only)
hereby represent and warrant that: (A) the execution, delivery and
performance of this Agreement are within its corporate powers, if applicable,
have been duly authorized and are not in contravention of law or, if
applicable, of the terms of its articles of incorporation or bylaws, or of
any law, order, judgment, decree, contract or undertaking to which it is a
party or by which it or any of its properties is bound or affected; (B) this
Agreement constitutes the legal, valid and binding obligation of the Agent
and each of the Banks, enforceable against each in accordance with its terms;
and (C) except as provided or to be provided under the Security Documents, no
security or collateral of any kind has been taken by the Agent or the Banks
to secure any of the Senior Debt, whether from the Borrower or otherwise, and
there are no Liens on or with respect to any of the Borrower's assets to
secure any part of the Senior Debt.
(g) COVENANTS. Until all of the Senior Debt has been paid
in full or Xxxxx has earlier purchased the Senior Debt, unless otherwise
consented to by the Agent in writing: (i) Xxxxx will not ask, demand, xxx
for, take or receive from the Borrower directly or indirectly, by way of set
off or in any other manner, all or any part of the Subordinated Obligations
or otherwise enforce any of its rights or remedies in connection with the
Subordinated Obligations or the Xxxxx Security Documents, including without
limitation with respect to any collateral or guaranty therefor, and the
Borrower agrees not to make any payment on the Subordinated Obligations,
whether directly or indirectly or in any other manner;
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(ii) Xxxxx and the Borrower shall not assign, transfer, hypothecate or
modify, terminate, amend or supplement, or consent to any cancellation,
modification, termination, amendment or supplement of, any of the terms of
the Subordinated Obligations; and (iii) except as provided or to be provided
under the Xxxxx Security Documents, the Borrower will not hereafter issue any
instrument, agreement or other writing evidencing or securing any part of the
Subordinated Obligations or allow any Liens on or with respect to any of its
assets to secure any part of the Subordinated Obligations, and Xxxxx will not
receive any such instrument, security or other writing or any such Liens, and
any such instrument, security or other writing and any such Lien shall be
null and void; PROVIDED, HOWEVER, that nothing in this Section 9(g) or
otherwise in this Agreement shall be construed to prohibit Xxxxx from taking
any actions to protect its rights, enforce its claims or preserve or maintain
its security interests in the Collateral granted under the Xxxxx Security
Documents so long as Xxxxx is not attempting to exercise enforcement
remedies, obtain collateral liquidation proceeds or prohibit, hinder or delay
the Agent or any Bank from exercising enforcement remedies.
(h) CONTINUING SUBORDINATION. This Agreement shall
constitute a continuing agreement of subordination which shall remain in
effect until such time as the Senior Debt is paid in full or has been
acquired by Xxxxx.
(i) RIGHTS NOT CONSTRUED AS DUTIES. The rights
granted to the Agent in this Agreement are solely for its protection and
nothing herein contained imposes on the Agent or any Bank any duties with
respect to any property of the Borrower or Xxxxx heretofore or hereafter
received by the Agent.
(j) ACTIONS BY THE AGENT. Without notice to or the
consent of Xxxxx, the Agent may, subject to the terms of this Agreement and
the Guaranty, at any time and from time to time and without impairing or
releasing the subordination provisions of this Agreement, do any one or more
of the following: (i) exercise or refrain from exercising any rights with
respect to the Senior Debt against the Borrower, any guarantor of the Senior
Debt or any other person and (ii) apply any monies or other property paid by
any person or otherwise available to the Senior Debt.
(k) NO LIABILITY. Except as provided in this Agreement
and the Guaranty, neither the Agent nor Xxxxx hereby makes any warranties,
express or implied, nor does either the Agent or Xxxxx assume any
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liability to each other with respect to (i) obligors under any instruments or
guaranty; (ii) the enforceability, validity, value or collectibility of the
extension of any credit to the Borrower, or collateral therefor, or any
guaranty or security which may have been granted to any of them in connection
with any agreement; or (iii) the Borrower's title or right to transfer any
collateral or security. The execution of this Agreement by the parties
hereto shall not create or impose any duties or obligations upon any party
hereto, except as expressly provided herein, and no agency or other fiduciary
relationship shall be inferred from such execution.
(10) NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and may be delivered personally
(including by courier), by facsimile transmission (if receipt is confirmed in
writing) or by first class registered or certified mail, postage prepaid,
return receipt requested, addressed to the following addresses or to such
other addresses as may be furnished in writing by one party to all of the
others:
(a) if to the Borrower:
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx,
Vice President - Corporate Finance
Facsimile: 000 000-0000
with a copy to:
Xxxxxxx & Xxxxx, L.L.P.
4200 Texas Commerce Tower
000 Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
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Facsimile: 000 000-0000
(b) if to Xxxxx:
One Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx,
Vice President and Chief Financial Officer
Facsimile: 000 000-0000
with a copy to:
Xxxxxxxxx, Xxxxxxx & Xxxxx, L.L.P.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Facsimile: 000 000-0000
(c) if to the Agent or the Banks:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Midwest Banking Division
Facsimile: 000 000-0000
with a copy to:
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
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Facsimile: 000 000-0000
Service of any such notice or other communication so made shall be deemed
complete, if by mail, on the day of actual delivery thereof as shown by the
addressee's registry or certification receipt and, if by other means, when
actually received.
(11) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Michigan, without
regard to such jurisdiction's conflicts of laws principles. The parties
agree that venue for any suit, action, proceeding or litigation arising out
of or in relation to this Agreement shall be in any federal or state court
in the State of Michigan having subject matter jurisdiction.
(12) MODIFICATION; WAIVER. This Agreement shall not be altered
or otherwise amended except pursuant to an instrument in writing signed by
all the parties hereto. Any party may waive any misrepresentation by any
other party, or any breach of warranty by, or failure to perform any
covenant, obligation or agreement of, any other party, PROVIDED that mere
inaction or failure to exercise any right, remedy or option under this
Agreement, or delay in exercising the same, shall not operate or be construed
as a waiver, and no waiver will be effective unless set forth in writing and
then only to the extent specifically stated therein.
(13) ENTIRE AGREEMENT. This Agreement, the Guaranty, the
Credit Agreement, the Notes, the schedules and exhibits thereto and hereto,
the Security Documents, the Xxxxx Security Documents and any other agreements
or certificates delivered pursuant thereto and hereto constitute the entire
agreement of the parties hereto with respect to the matters contemplated
hereby and supersede all previous written or oral negotiations, commitments,
representations and agreements.
(14) ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement may not
be assigned by any party (other than to any Affiliate (as defined in the
Credit Agreement) of such party) without the prior written consent of the
other parties; PROVIDED, HOWEVER, that the Agent or any Bank may assign its
rights under this Agreement in connection with any grant of a participation
interest in accordance with Section 8.6 of the Credit Agreement, and any such
sale, assignment or grant of a participation interest shall be subject to the
terms of the Guaranty and
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this Agreement. All covenants, representations, warranties and agreements of
the parties contained herein shall be binding upon and inure to the benefit
of their respective successors and assigns.
(15) SEVERABILITY. The provisions of this Agreement are
severable, and in the event that any one or more provisions are deemed
illegal or unenforceable, the remaining provisions shall remain in full force
and effect.
(16) NO THIRD PARTY BENEFICIARY. This Agreement is intended
and agreed to be solely for the benefit of the parties hereto, and no third
party shall accrue any benefit, claim or right of any kind whatsoever
pursuant to, under, by or through this Agreement.
(17) EXECUTION IN COUNTERPART. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same instrument.
(18) INTERPRETATION. When a reference is made in this
Agreement to an Article, Section, Schedule or Exhibit, such reference shall
be to an Article, Section, Schedule or Exhibit of this Agreement unless
otherwise indicated. The headings contained herein are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Wherever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation." Time shall be of the essence in this Agreement.
(19) SUBSIDIARY GUARANTORS. The Borrower shall cause each of
Calspan Corporation, an Ohio corporation, Systems Research Laboratories,
Inc., an Ohio corporation, and Space Industries, Inc., a Texas corporation
(collectively, the "SUBSIDIARY GUARANTORS"), to execute a counterpart of this
Agreement and become parties hereto effective immediately upon the effective
time of the merger pursuant to the Merger Agreement. The Borrower shall also
cause each of the Subsidiary Guarantors to execute a counterpart of the
Guaranty, acknowledging the obligations of the Borrower thereunder. The
Borrower shall, and shall cause each of the Subsidiary Guarantors to execute
and deliver such additional documents or instruments, including the Xxxxx
Security Documents, and take such further actions as may be reasonably
requested from time to time by the Agent or Xxxxx to fully consummate,
document and effectuate their respective obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
XXXXX INDUSTRIES, INC.
By /S/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
SPACE ACQUISITION CORPORATION
By /S/ XXXXX X. XXXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
NBD BANK, as Agent and a Bank
By /S/ XXXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: First Vice President
MANUFACTURERS AND TRADERS
TRUST COMPANY, as a Bank
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By /S/ XXXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
17
