EXHIBIT 99.1
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT THIS AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT (this "Amendment") is made as of June 30, 2003 and amends the
Asset Purchase Agreement (the "Purchase Agreement"), dated as of February 7,
2003, by and among XXXX CORPORATION, a Virginia corporation ("Dana"), AUTOMOTIVE
CONTROLS CORP., a Connecticut corporation, BWD AUTOMOTIVE CORPORATION, a
Delaware corporation ("BWD"), PACER INDUSTRIES, INC., a Missouri corporation,
RISTANCE CORPORATION, an Indiana corporation ("Ristance"), ENGINE CONTROLS
DISTRIBUTION SERVICES, INC., a Delaware corporation (each a "Seller" and,
collectively, "Sellers"), and STANDARD MOTOR PRODUCTS, INC., a New York
corporation ("Buyer"). Capitalized terms are used herein with the meanings
assigned those terms in the Purchase Agreement.
RECITAL:
A. The Parties wish to amend the Purchase Agreement as
provided in this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the
agreements set forth herein, Sellers and Buyer hereby agree as follows:
1. Xxxxxx Consent.
(a) Buyer acknowledges that despite Sellers' performance of
their obligations under Section 7.9(b) of the Purchase Agreement, Sellers have
not been able to obtain consent for assignment to Buyer of the Non-Exclusive
License Agreement and Project Order Agreement dated May 27, 1994 between Xxxxxx
Associates, Inc. and Echlin, Inc. ("Xxxxxx Agreement").
(b) Buyer hereby waives, as a condition to Closing, obtaining
consent for the assignment of the Xxxxxx Agreement and, in consideration
thereof, Sellers agree that any costs or expenses (including reasonable
attorneys' fees), judgments, liens, liabilities, losses, claims and damages
resulting from the absence of consent for assignment of the Xxxxxx Agreement
(including without limitation payments required in order to obtain a license to
replace all or part of Seller's rights under the Xxxxxx Agreement insofar as
they relate to the EMG Business) shall be Damages and for purposes of the
Purchase Agreement treated as though they resulted from a Retained Liability.
(c) Buyer and Sellers hereby confirm that their respective
rights and obligations under Section 7.9(b) of the Purchase Agreement in respect
of the Xxxxxx Agreement and obtaining consent for its assignment shall continue
to apply.
2. Ristance and BWD Names. The definition of the Acquired Assets in the
Purchase Agreement is hereby amended to include all of Sellers' right, title and
interest in and to the names "Ristance" and "BWD Automotive." Buyer will, at its
sole cost and expense, prepare for Sellers' review and approval and file with
the appropriate offices all necessary amendments to BWD's and Ristance's
certificates of incorporation, authority to do business and alternate names.
3. Disclosure Schedules. The definition of the Disclosure Schedules is
hereby amended to refer to the Disclosure Schedules as amended and restated as
of the Closing Date and attached hereto as Exhibit 1. Buyer acknowledges that
all of the amendments contained in the amended and restated Disclosure Schedules
disclose New Facts of the type described in the second sentence of Section 13.11
of the Purchase Agreement.
4. Certain Acquired Assets. The following representations are hereby
added as a new Section 5.27 to the Purchase Agreement: The Acquired Assets do
not include any Accounts Receivable, inventory or equipment owned by Dana. No
Collateral Trigger (as referred to in the Third Omnibus Amendment, dated as of
December 31, 2002, to the Receivables Purchase Agreement, dated as of March 29,
2001 and as amended through the date hereof, by and among Xxxx Asset Funding
LLC, Citicorp North America, Inc., Dana and the other parties thereto) has
occurred as of the date hereof.
5. DCCC/DFL Leases. The following representation is hereby added as a
new Section 5.28 to the Purchase Agreement: Sellers hereby represent and warrant
that the economic terms of the lease schedules to the equipment and motor
vehicle leases being assigned to Buyer pursuant to the Replacement Leases are
the same as those provided to the EMG Business prior to Closing.
6. Retained Liabilities. Sellers confirm that they will be solely
responsible for performing or causing to be performed those repair obligations
described in the letter dated June 12, 2003 from Prime Group Realty Trust to Xx.
Xxxxx Xxxxxx and written in reference to leased real property at 00000 Xxxx
Xxxxxx xx Xxxxxxxx Xxxx, Xxxxxxxx. As between Sellers and Buyer, the parties
agree that all such repair obligations shall be Retained Liabilities.
7. Nashville Racking. The Retained Assets shall include $2,100,000
worth of the Racking located at the Nashville facility and all references to
retained Nashville racking in the Specified Accounting Principles and in the
Disclosure Schedules are hereby amended accordingly.
8. Estimated Purchase Price. Despite their dispute about whether the
Estimated Closing Net Book Value Statement and the most recent financial
statements delivered to Buyer pursuant to Section 7.17 of the Purchase Agreement
have been prepared in accordance with the Specified Accounting Principles, Buyer
and Sellers agree that the Estimated Purchase Price is $121,000,000. In light of
their disputes, Buyer and Sellers confirm that the Agreement requires the
Closing Net Book Value Statement to be prepared in accordance with the Specified
Accounting Principles and that neither the most recent financial statements
delivered to Buyer pursuant to Section 7.17 of the Purchase Agreement nor the
discussions between Buyer and Sellers concerning the Estimated Purchase Price
shall be deemed to have amended the Specified Accounting Principles.
9. Interest on Purchase Price Adjustment. If the Purchase Price as
determined from the Closing Net Book Value Statement exceeds the Purchase Price
as determined from the Final Net Book Value Statement by more than $500,000 (the
amount of such excess being referred to as the "Excess Price") then, in addition
to their obligations, if any, under Section 3.3(h) of the Purchase Agreement,
Sellers shall pay Buyer interest on the Excess Price at the rate of 10% per
annum from the Closing Date, such payment to be made at the same time and in the
same manner as cash payments are to be made in accordance with the terms of
Section 3.3(h) of the Purchase Agreement.
10. Baan User Licenses. Of the total of 2,010 Concurrent User Licenses
(as defined in Schedule A to that certain Software License and Support Agreement
dated December 31, 1996, as amended, by and between Echlin Inc., as licensee,
and Baan U.S.A., Inc., as licensor), 550 shall be Acquired Assets and 1460 shall
be Retained Assets.
11. Catalyst Consent.
(a) Buyer acknowledges that under the Transition Services
Agreement, Seller will be providing maintenance and support for the Catalyst
software in lieu of assigning to Buyer the maintenance support schedule to the
Composite Agreement dated November 5, 1998 between Catalyst International, Inc.
("Catalyst") and Dana (together with the schedules thereto, the "Catalyst
Agreement").
(b) Buyer hereby waives, as a condition to Closing, obtaining
Catalyst's consent for the assignment of the maintenance support schedule of the
Catalyst Agreement and, in consideration thereof, Sellers agree that if at any
time from the Closing Date until October 31, 2003, Sellers cannot make available
to the EMG Business maintenance support services under the Transition Services
Agreement comparable to those services provided prior to the date hereof to the
EMG Business under the Catalyst Agreement, then Sellers shall provide
replacement services for Buyer from Catalyst or another supplier of maintenance
services; provided that in no event shall Sellers be required to expend more
than $196,000 to provide those replacement services.
12. Oracle Consent.
(a) Buyer acknowledges that despite Sellers' performance of
their obligations under Section 7.9(b) of the Purchase Agreement, Sellers have
not been able to obtain consent for assignment to Buyer of the Oracle licenses
included in the Acquired Assets. Buyer hereby waives, as a condition to Closing,
obtaining consent for the assignment of the Oracle licenses and, in
consideration thereof, Sellers agree that if the consent of Oracle for the
assignment of the Oracle licenses is not obtained by October 31, 2003 or such
earlier date upon which Sellers become unable to provide the EMG Business with
use of the software licensed under the Oracle licenses due to the lack of
Oracle's consent for assignment, then Sellers shall provide Buyer with
replacement Oracle licenses; provided that in no event shall Sellers be required
to expend more than $300,000 for such replacement licenses.
(b) Buyer and Sellers agree Sellers shall have no
responsibility for obtaining consent for assignment of the licenses embedded in
the Catalyst Agreement except as provided in Section 12(a) hereof.
13. Borgwarner License. The following covenant is hereby added as a new
Section 7.26 to the Purchase Agreement: Buyer and Borgwarner Inc. are entering
into a Trademark License Agreement dated as of July 1, 2003. Buyer agrees that
it will not amend, modify or terminate Section 2.4 or Section 3.1 of that
agreement without Dana's prior written consent.
14. Incorporation into Purchase Agreement. The matters described in
this Amendment are intended to have been incorporated into all appropriate
sections of the Purchase Agreement and the Disclosure Schedules; e.g., any
representations made in this Amendment will be deemed to have been added to
Section 5 or 6 of the Purchase Agreement, as the case may be; any covenant made
in this Amendment will be deemed to have been added to Section 7 of the Purchase
Agreement; and Buyer will not be deemed to be assuming any Acquired Contract to
the extent that this Amendment describes or refers to Buyer's entering into a
new Contract in lieu of such assignment.
15. References to Purchase Agreement. All references to the Purchase
Agreement in the Ancillary Agreements will be deemed to refer to the Purchase
Agreement as amended by this Amendment.
16. No Other Amendment. Except as expressly amended hereby, the
Purchase Agreement shall remain in full force and effect.
(Signatures are on the following page.)
IN WITNESS WHEREOF, Buyer and Sellers have caused this
Amendment to be executed by their duly authorized officers as of the day and
year first above written.
BUYER:
STANDARD MOTOR PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President Finance, CFO
SELLERS:
XXXX CORPORATION BWD AUTOMOTIVE CORPORATION
By: /s/ A. Xxxxx Xxxxx By: /s/ A. Xxxxx Xxxxx
------------------------------------ ------------------------------------
Name: A. Xxxxx Xxxxx Name: A. Xxxxx Xxxxx
Title: Vice President and Treasurer Title: Vice President and Treasurer
AUTOMOTIVE CONTROLS CORP. RISTANCE CORPORATION
By: /s/ A. Xxxxx Xxxxx By: /s/ A. Xxxxx Xxxxx
------------------------------------ ------------------------------------
Name: A. Xxxxx Xxxxx Name: A. Xxxxx Xxxxx
Title: Vice President and Treasurer Title: Vice President and Treasurer
PACER INDUSTRIES, INC. ENGINE CONTROLS DISTRIBUTION
SERVICES, INC.
By: /s/ A. Xxxxx Xxxxx By: /s/ A. Xxxxx Xxxxx
------------------------------------ ------------------------------------
Name: A. Xxxxx Xxxxx Name: A. Xxxxx Xxxxx
Title: Vice President and Treasurer
