Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT, dated as of December 31, 2003, is by
and between METALDYNE CORPORATION, a Delaware corporation ("Metaldyne"), and
DAIMLERCHRYSLER CORPORATION, a Delaware corporation ("DaimlerChrysler").
ARTICLE I
Authorization and Sale of the Shares and Notes
SECTION 1.1 Authorization. Metaldyne has authorized the sale and issuance
to DaimlerChrysler of (a) 644,540 shares (the "Shares") of its Series A-1
Preferred Stock, par value $1.00 per share (the "Series A-1 Preferred Stock"),
having the rights, restrictions, privileges and preferences as set forth in the
Certificate of Designation of the Powers, Preferences and Relative,
Participating, Optional and Other Special Rights of the Series A-1 Preferred
Stock and the Series A-2 Preferred Stock and Qualifications, Limitations and
Restrictions Thereof (the "Certificate of Designation") filed with the Secretary
of State of the State of Delaware on December 31, 2003, and (b) $31,746,000
aggregate principal amount of 10% Senior Subordinated Notes (the "Notes"), in
the form required by the Indenture, dated the date hereof, by and between
Metaldyne and each of the Guarantors named therein (the "Indenture").
SECTION 1.2 Sale and Issuance of the Shares and Notes. Subject to the terms
and conditions hereof and of the Operating Agreement (as defined below) and in
reliance upon the representations, warranties and agreements contained herein,
Metaldyne will issue and sell to DaimlerChrysler, and DaimlerChrysler will
purchase from Metaldyne, the Shares and the Notes as partial consideration for
the sale and transfer to Metaldyne of sixty (60) Class A Units and one hundred
(100) Class B Units (collectively, the "Transferred Units") of NC-M Chassis
Systems, LLC, a Delaware limited liability company (the "JV"), each having the
terms and conditions set forth in the Amended and Restated Operating Agreement
of the JV, dated as of January 2, 2003 (the "Operating Agreement").
ARTICLE II
Representations and Warranties of Metaldyne
Except as set forth in the Metaldyne Schedule of Exceptions attached to
this Agreement (the "Metaldyne Schedule of Exceptions"), Metaldyne hereby
represents and warrants to DaimlerChrysler as set forth below.
SECTION 2.1 Organization and Good Standing. Metaldyne is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware, with all requisite corporate power and authority to own, lease and
operate its assets and to carry on its business as they are now being owned,
leased, operated and conducted. Metaldyne is licensed or qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
where the nature of its assets and business requires such licensing or
qualification, except
where the failure to be so licensed or qualified would not reasonably be
expected to have a Metaldyne Material Adverse Effect (as defined in the
Operating Agreement).
SECTION 2.2 Corporate Power. Metaldyne has all requisite corporate power to
enter into and deliver this Agreement, the Indenture, the Series A-1 Preferred
Stock Investor Rights Agreement, dated the date hereof, by and between Metaldyne
and DaimlerChrysler (the "Investor Rights Agreement") and the Senior
Subordinated Notes Registration Rights Agreement, dated the date hereof, by and
between Metaldyne and DaimlerChrysler (the "Registration Rights Agreement" and,
together with the Indenture and the Investor Rights Agreement, the "Related
Agreements"), to issue and sell the Shares and the Notes, and to carry out and
perform its obligations under the terms of this Agreement, Section 15.1 of the
Operating Agreement and the Related Agreements and the transactions contemplated
hereunder and thereunder.
SECTION 2.3 Capitalization. Giving effect to the transactions contemplated
by this Agreement, on the date hereof, the authorized capital stock of Metaldyne
consists of 250,000,000 shares, par value $1.00 per share, of common stock (the
"Common Stock"), and 25,000,000 shares, par value $1.00 per share, of preferred
stock (the "Preferred Stock"), of which 370,000 shares have been designated as
Series A Preferred Stock, 644,540 shares have been designated as Series A-1
Preferred Stock, 644,540 shares have been designated as Series A-2 Preferred
Stock and 184,153 shares have been designated as Series B Preferred Stock.
Giving effect to the transactions contemplated by this Agreement, on the date
hereof, (i) 43,871,745 shares of Common Stock are issued and outstanding, (ii)
1,189,694 shares of Preferred Stock are issued and outstanding, of which 361,001
shares are shares of shares of Series A Preferred Stock, 644,540 shares are
shares of Series A-1 Preferred Stock, none are shares of Series A-2 Preferred
Stock and 184,153 shares are shares of Series B Preferred Stock, and (iii) no
shares of Common Stock are held by Metaldyne in its treasury. All outstanding
shares of capital stock have been duly authorized and validly issued and are
fully paid and nonassessable.
SECTION 2.4 Authorization. (a) The execution, delivery and performance by
Metaldyne of this Agreement, including, without limitation, the sale and
issuance of the Shares and Notes, and the Related Agreements, have been duly and
validly approved by all corporate actions or proceedings on the part of
Metaldyne necessary to authorize this Agreement, including, without limitation,
the sale and issuance of the Shares and Notes, and the Related Agreements, and
the transactions contemplated hereby and thereby. Metaldyne has duly and validly
executed and delivered this Agreement and the Related Agreements. This Agreement
and the Related Agreements constitute (assuming, in each case, due execution and
delivery by the other parties thereto) legal, valid and binding obligations of
Metaldyne, enforceable against Metaldyne in accordance with their respective
terms, except to the extent that (i) such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent
transfer or other similar laws of general applicability relating to or affecting
creditors' rights from time to time in effect and general principles of equity,
including concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether in a proceeding in equity or at law, (ii) any rights to
indemnity and contribution thereunder may be limited by federal and state
securities laws and public policy considerations and (iii) the enforceability of
provisions imposing liquidated damages, penalties or an increase in interest
rate upon the occurrence of certain events may be limited in certain
circumstances.
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(b) The Shares and the Notes issuable to DaimlerChrysler have been duly
authorized for issuance and sale to DaimlerChrysler. When issued and delivered
by Metaldyne pursuant to the Operating Agreement and this Agreement against
payment of the consideration set forth herein, the Shares will be validly
issued, fully paid and nonassessable. When issued and delivered by Metaldyne
pursuant to the Certificate of Designations and the Investor Rights Agreement,
the shares of Series A-2 Preferred Stock issued in exchange for the Shares (the
"Exchange Shares") will be validly issued, fully paid and nonassessable. When
issued and delivered by Metaldyne pursuant to the Operating Agreement, this
Agreement and the Indenture, the Notes will be valid and binding obligations of
Metaldyne, enforceable against Metaldyne in accordance with their terms, except
to the extent that (1) such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or other
similar laws of general applicability relating to or affecting creditors' rights
from time to time in effect and general principles of equity, including concepts
of materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding in equity or at law, and (ii) the enforceability of
provisions imposing liquidated damages, penalties or an increase in interest
rate upon the occurrence of certain events may be limited in certain
circumstances. The issuance of the Shares, the Exchange Shares and the Notes is
not subject to any preemptive or other similar rights of any security holder of
Metaldyne.
SECTION 2.5 No Conflicts. The execution, delivery and performance by
Metaldyne of this Agreement, including, without limitation, the issuance and
sale of the Shares and the Notes, and the Related Agreements, and the
consummation by Metaldyne of the transactions contemplated hereby and thereby,
based in part on the truth and accuracy of the representations of
DaimlerChrysler contained herein, does not and will not: (i) violate any Law (as
defined in the Operating Agreement) applicable to Metaldyne or any of its
Subsidiaries (as defined in the Operating Agreement); (ii) violate, result in
the breach, acceleration, termination, modification or cancellation of, require
any consent under, result in the creation of any lien upon any of the assets of
Metaldyne or any of its Subsidiaries under, or give any third party the right to
accelerate, terminate, modify or cancel, any contract or other binding
arrangement to which Metaldyne or any of its Subsidiaries is a party or by which
Metaldyne or any of its Subsidiaries or any of their assets are bound or
subject; (iii) constitute an event which, after notice or lapse of time or both,
would result in any such violation, breach, acceleration, termination,
cancellation, require any such consent, result in any such lien or give rise to
any such right; or (iv) violate or conflict with any provision of any of, or
cause the dissolution of Metaldyne or any of its Subsidiaries pursuant to, the
restated certificate of incorporation or bylaws of Metaldyne or any of its
Subsidiaries or the Delaware General Corporation Law, with such exceptions, in
the case of clauses (i), (ii) and (iii), as would not reasonably be expected to
have, individually or in the aggregate, a Metaldyne Material Adverse Effect.
SECTION 2.6 Good Title. The Shares and the Notes, when issued and paid for
in compliance with the provisions of this Agreement, will be free to the holders
thereof of any liens, encumbrances or restrictions, other than restrictions set
forth in this Agreement, the Related Agreements or under applicable state and
federal securities laws.
SECTION 2.7 Offering. Subject in part to the truth and accuracy of
DaimlerChrysler's representations set forth in this Agreement, the offer, sale
and issuance of the Shares
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and the Notes as contemplated by this Agreement constitute transactions exempt
from the registration requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and any applicable state securities laws.
SECTION 2.8 Trust Indenture Act. Subject in part to the truth and accuracy
of DaimlerChrysler's representations set forth in this Agreement, it is not
necessary in connection with the offer, sale and delivery of the Notes by
Metaldyne to DaimlerChrysler pursuant to the Operating Agreement, this Agreement
and the Indenture to qualify the Indenture under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
ARTICLE III
Representations and Warranties of DaimlerChrysler
Except as set forth in the DaimlerChrysler Schedule of Exceptions attached
to this Agreement (the "DaimlerChrysler Schedule of Exceptions"),
DaimlerChrysler hereby represents and warrants to Metaldyne as set forth below.
SECTION 3.1 Organization and Good Standing. DaimlerChrysler is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, with all requisite corporate power and authority
to own, lease and operate its assets and to carry on its business as they are
now being owned, leased, operated and conducted. DaimlerChrysler is licensed or
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its assets and business requires such
licensing or qualification, except where the failure to be so licensed or
qualified would not reasonably be expected to have a Company Material Adverse
Effect (as defined in the Operating Agreement).
SECTION 3.2 Corporate Power. DaimlerChrysler has all requisite corporate
power to enter into and deliver this Agreement and the Related Agreements, to
sell and transfer the Transferred Units to Metaldyne, and to carry out and
perform its obligations under the terms of this Agreement, Section 15.1 of the
Operating Agreement and the Related Agreements and the transactions contemplated
hereunder and thereunder.
SECTION 3.3 Capitalization of the JV. The authorized Capital Stock (as
defined in the Formation Agreement) of the JV consists of 100 Class A Units and
100 Class B Units. Immediately prior to the consummation of the Metaldyne Call
Option Closing, there were outstanding 100 Class A Xxxxx, 00 of which were held
by Metaldyne and 60 of which were held by DaimlerChrysler, and 100 Class B
Units, all of which were held by DaimlerChrysler. Following the transfer of the
Transferred Units pursuant to Section 15.1 and the terms hereof, Metaldyne will
hold all of the outstanding shares of Capital Stock of the JV.
SECTION 3.4 Authorization. The execution, delivery and performance by
DaimlerChrysler of this Agreement and the Related Agreements have been duly and
validly approved by all corporate actions or proceedings on the part of
DaimlerChrysler necessary to authorize this Agreement and the Related Agreements
and the transactions contemplated hereby and thereby. DaimlerChrysler has duly
and validly executed and delivered this Agreement and
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the Related Agreements. This Agreement and the Related Agreements constitute
(assuming, in each case, due execution and delivery by the other parties
thereto) legal, valid and binding obligations of DaimlerChrysler, enforceable
against DaimlerChrysler in accordance with their respective terms, except to the
extent such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization, fraudulent transfer or other similar laws of general
applicability relating to or affecting creditors' rights from time to time in
effect and general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law.
SECTION 3.5 No Conflicts. The execution, delivery and performance by
DaimlerChrysler of this Agreement and the Related Agreements and the
consummation by DaimlerChrysler of the transactions contemplated hereby and
thereby does not and will not: (i) violate any Law applicable to
DaimlerChrysler; (ii) violate, result in the breach, acceleration, termination,
modification or cancellation of, require any consent under, result in the
creation of any lien upon any of the assets of DaimlerChrysler under, or give
any third party the right to accelerate, terminate, modify or cancel, any
contract or other binding arrangement to which DaimlerChrysler is a party or by
which DaimlerChrysler or any of its assets are bound or subject, (iii)
constitute an event which, after notice or lapse of time or both, would result
in any such violation, breach, acceleration, termination, cancellation, require
any such consent, result in any such lien or give rise to any such right or (iv)
violate or conflict with any provision of any of, or cause the dissolution of
DaimlerChrysler pursuant to, the certificate of incorporation or bylaws of
DaimlerChrysler or the Delaware General Corporation Law, with such exceptions,
in the case of clauses (i), (ii) and (iii), as would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect.
SECTION 3.6 Good Title. DaimlerChrysler has good and marketable title to,
is the lawful owner of, and has the right to sell, transfer, assign and deliver
to Metaldyne, all of the Transferred Units, free and clear of any Liens. As of
the date hereof, DaimlerChrysler will convey the Transferred Units to Metaldyne
by instruments of assignment and transfer effective to vest in Metaldyne good
and valid record and marketable title to all of the Transferred Units, free and
clear of all Liens.
SECTION 3.7 Investment. DaimlerChrysler is acquiring the Shares and Notes
solely for investment for its own account and not with the view to, or for
resale in connection with, any distribution thereof. DaimlerChrysler understands
that neither the Shares nor Notes have been registered under the Securities Act
and that the Indenture has not been qualified under the Trust Indenture Act by
reason of specific exemptions from the registration provisions of the Securities
Act and the qualification provisions of the Trust Indenture Act, the
availability of which depend upon, among other things, the bona fide nature of
DaimlerChrysler's investment intent as expressed herein.
SECTION 3.8 Access to Data. DaimlerChrysler is familiar with the business
of Metaldyne and has had an opportunity to discuss Metaldyne's business,
management and financial affairs with its management, to review Metaldyne's
facilities and to obtain (and has obtained to its satisfaction) such information
about the business, management and financial affairs as it has requested.
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SECTION 3.9 Knowledge and Experience. DaimlerChrysler has knowledge and
experience in financial and business matters relating to its investment in the
Shares and the Notes and is capable of evaluating the merits and risks of such
investment and protecting its investment in connection with this transaction,
and is able to bear the economic risk of such investment for an indefinite
period of time.
ARTICLE IV
Transfer Restrictions
SECTION 4.1 Restricted Securities. DaimlerChrysler agrees that, at the time
of issuance, the Shares and the Notes to be issued and sold by Metaldyne to
DaimlerChrysler hereunder will not be registered under the Securities Act or
qualified under any state securities laws. Such Shares and Notes are being
issued and sold on the basis that the offering and/or sale by Metaldyne to
DaimlerChrysler provided for in this Agreement and the issuance by Metaldyne to
DaimlerChrysler of such Shares and Notes to such Seller under this Agreement are
exempt from registration under the Securities Act and from applicable state
securities laws. DaimlerChrysler agrees that Metaldyne's reliance on such
exemptions is predicated, in part, on DaimlerChrysler's representations and
warranties and other agreements set forth in this Agreement.
SECTION 4.2 Legends. DaimlerChrysler acknowledges and agrees that each
certificate representing Notes shall bear any restrictive legend required by the
Indenture. DaimlerChrysler acknowledges and agrees that each certificate
representing Shares shall bear any restrictive legend required by the
Certificate of Designation as well as the following legends:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO (i) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (ii) AN APPLICABLE EXEMPTION
FROM REGISTRATION THEREUNDER. ANY SALE PURSUANT TO CLAUSE (ii) OF THE
PRECEDING SENTENCE MUST BE ACCOMPANIED BY (x) AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE ISSUER CORPORATION TO THE EFFECT THAT
SUCH EXEMPTION FROM REGISTRATION IS AVAILABLE IN CONNECTION WITH SUCH
SALE, (y) IN THE CASE OF A SALE PURSUANT TO RULE 144, AN EXECUTED COPY
OF ANY NOTICE ON FORM 144 REQUIRED TO BE FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION AND (z) SUCH OTHER DOCUMENTATION AS THE ISSUER MAY
REASONABLY REQUEST IN CONNECTION WITH SUCH SALE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS, INCLUDING CERTAIN TRANSFER RESTRICTIONS, OF THE
SECURITIES PURCHASE AGREEMENT DATED AS OF DECEMBER 31, 2003 WITH THE
ISSUER. THE ISSUER WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE WHO SO REQUESTS A COPY OF
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SUCH SECURITIES PURCHASE AGREEMENT AS WELL AS THE CERTIFICATE OF
DESIGNATION OF THE POWERS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL AND OTHER SPECIAL RIGHTS OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS.
SECTION 4.3 Transfer Restrictions. DaimlerChrysler agrees not to offer or
sell any of the Shares or the Notes except pursuant to (i) an effective
registration statement under the Securities Act or (ii) an applicable exemption
from registration thereunder. If any of such Shares or Notes are to be disposed
of by DaimlerChrysler pursuant to clause (ii) of the preceding sentence, such
Seller shall deliver to Metaldyne, at or prior to the time of such disposition,
(x) an opinion of counsel reasonably satisfactory to Metaldyne to the effect
that an exemption from registration is available in connection with such
disposition, (y) in the case of a disposition pursuant to Rule 144, an executed
copy of any notice on Form 144 required to be filed with the Securities and
Exchange Commission and (z) such other documentation as Metaldyne may reasonably
request in connection with such disposition.
ARTICLE V
Indemnity and Expenses
SECTION 5.1 Expenses. In addition to the rights of indemnification granted
to DaimlerChrysler under Section 5.2, Metaldyne agrees to pay, as soon as
reasonably practicable after demand, all reasonable and documented costs and
expenses of DaimlerChrysler incurred in connection with the enforcement of this
Agreement and the Related Agreements, including, without limitation, all
reasonable fees and out-of-pocket expenses of counsel for DaimlerChrysler
incurred by DaimlerChrysler in connection therewith.
SECTION 5.2 Indemnity. (a) Metaldyne hereby agrees to indemnify and hold
harmless DaimlerChrysler and its directors, officers, employees, agents,
incorporators, Affiliates and stockholders (collectively, the "DaimlerChrysler
Indemnified Parties") from and against any and all damages, losses, liabilities,
costs and expenses (including reasonable attorney's fees and expenses) incurred
by a DaimlerChrysler Indemnified Party (except to the extent that such damages,
losses, liabilities, costs and expenses result from the gross negligence or
willful misconduct of the DaimlerChrysler Indemnified Party in performing (or
failing to perform) its obligations under this Agreement) as a result of, or in
connection with, the following:
(i) reliance on any representation or warranty made by Metaldyne in
this Agreement, which shall have been false or incorrect in any material
respect when made or deemed made or delivered; and
(ii) the failure by Metaldyne to comply with any term, provision or
covenant contained in this Agreement or any Related Agreement, or with any
applicable Law with respect to the Shares or the Notes, or the
nonconformity of the Shares or the Notes with any such applicable Law.
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A DaimlerChrysler Indemnified Party shall immediately notify Metaldyne of any
damage, loss, liability, cost or expense which such DaimlerChrysler Indemnified
Party has determined has given, or would give, rise to a right of
indemnification under this Agreement and Metaldyne shall have the exclusive
right to compromise or defend any such liability or claim at its own expense,
which decision shall be binding and conclusive upon such Indemnified Party.
Failure to give such notice shall not relieve Metaldyne of its indemnity
obligations under this Agreement; provided that Metaldyne shall not be held
responsible for any damage, loss, liability, cost or expense resulting from the
failure to give such notice.
(b) DaimlerChrysler hereby agrees to indemnify and hold harmless Metaldyne
and its directors, officers, employees, agents, incorporators, Affiliates and
stockholders (collectively, the "Metaldyne Indemnified Parties") from and
against any and all damages, losses, liabilities, costs and expenses (including
reasonable attorney's fees and expenses) incurred by a Metaldyne Indemnified
Party (except to the extent that such damages, losses, liabilities, costs and
expenses result from the gross negligence or willful misconduct of the Metaldyne
Indemnified Party in performing (or failing to perform) its obligations under
this Agreement) as a result of, or in connection with, the following:
(i) reliance on any representation or warranty made by DaimlerChrysler
in this Agreement, which shall have been false or incorrect in any material
respect when made or deemed made or delivered; and
(ii) the failure by DaimlerChrysler to comply with any term, provision
or covenant contained in this Agreement or any Related Agreement
A Metaldyne Indemnified Party shall immediately notify DaimlerChrysler of any
damage, loss, liability, cost or expense which such Metaldyne Indemnified Party
has determined has given, or would give, rise to a right of indemnification
under this Agreement and DaimlerChrysler shall have the exclusive right to
compromise or defend any such liability or claim at its own expense, which
decision shall be binding and conclusive upon such Metaldyne Indemnified Party.
Failure to give such notice shall not relieve DaimlerChrysler of its indemnity
obligations under this Agreement; provided that DaimlerChrysler shall not be
held responsible for any damage, loss, liability, cost or expense resulting from
the failure to give such notice.
ARTICLE VI
Miscellaneous Provisions
SECTION 6.1 Governing Law. This Agreement shall be governed in all respects
by the internal laws of the State of New York, without regard to the principles
of conflicts thereof.
SECTION 6.2 Survival. The representations, warranties, covenants and
agreements made herein shall survive (i) any investigation made by
DaimlerChrysler or Metaldyne and (ii) the closing of the transactions
contemplated by this Agreement.
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SECTION 6.3 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto. Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto or their respective
successors or assigns any rights, remedies, obligations or liabilities under or
by reason of this Agreement, except as expressly provided in this Agreement.
SECTION 6.4 Entire Agreement; Amendment. This Agreement and the other
documents delivered pursuant hereto constitute the full and entire understanding
and agreement between the parties with regard to the subjects hereof and
thereof. Neither this Agreement nor any term hereof may be amended, waived,
charged or terminated, except by a written instrument signed by Metaldyne and
DaimlerChrysler.
SECTION 6.5 Notices, etc. All notices, requests, instructions, demands or
other communications to be given or delivered under or by reason of the
provisions of this Agreement shall be in writing and shall be deemed to have
been duly given or made (a) on the date of receipt if given in person, (b) on
the date of transmission if sent by telecopy or e-mail with receipt of delivery
confirmation, (c) three (3) business days after being deposited in the U.S.
mail, certified or registered mail (postage prepaid, return receipt requested),
or (d) one (1) business day following sending by overnight delivery via an
internationally recognized courier service, in each case, to the applicable
party at the following addresses or facsimile numbers (or at such other address
or facsimile number for a party as shall be specified by like notice). Such
notices, demands and other communications shall be sent to the address for such
recipient set forth in the JV's books and records, or to such other address or
to the attention of such other Person as the recipient party has specified by
prior written notice to the sending party.
SECTION 6.6 Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing to any holder of any of the Shares or the Notes
or Metaldyne, upon any breach or default under this Agreement of another party
hereto, shall impair any such right, power or remedy of such holder nor shall it
be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver, permit,
consent or approval of any kind or character on the part of any holder of Shares
or Notes or Metaldyne of any breach or default under this Agreement, or any
waiver on the part of any holder or Metaldyne of any provisions or conditions of
this Agreement, must be made in writing and shall be effective only to the
extent specifically set forth in such writing.
SECTION 6.7 Expenses. Except as provided in Section 5.1, each party hereto
shall bear its own expenses incurred on its behalf with respect to this
Agreement and the transactions contemplated hereby.
SECTION 6.8 Title and Subtitles. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
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SECTION 6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
METALDYNE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman, President & CEO
DAIMLERCHRYSLER CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
