SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
Quarterly Report Under Section 13 or 15(d) of the
Securities Exchange Act of 1934
For Quarter Ended September 30, 1997 Commission File Number 0-6611
SIMPSON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-1225111
(State or other jurisdiction of IRS Employer Identification No.)
incorporation or organization)
47603 Halyard Drive, Plymouth, Michigan 48170-2429
(Address of principal executive offices) (Zip Code)
(313)207-6200
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
At October 31, 1997 there were 18,131,212 outstanding shares of the
registrant's common stock, $1.00 par value each.
PAGE
<PAGE>
Consolidated Balance Sheets (Unaudited)
(In thousands)
September 30, 1997 and December 31, 1996
Sept. 30 Dec. 31
ASSETS
Current Assets
Cash and cash equivalents $ 2,787 $ 28,902
Accounts receivable 68,302 41,032
Inventories 19,690 14,034
Customer tooling in process 6,274 4,002
Prepaid expenses and other current
assets 6,362 6,256
Total Current Assets 103,415 94,226
Property, Plant and Equipment
Cost 312,786 278,229
Less Allowance 140,307 126,152
Total Property, Plant and Equipment 172,479 152,077
Unallocated Purchase Cost 38,843 -
Other Assets 15,315 2,653
$330,052 $248,956
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Notes payable $ 479 -
Current installment of long-term
debt 3,579 $ 3,579
Accounts payable 34,684 28,455
Compensation and amounts withheld 9,906 10,203
Taxes, other than income taxes 2,238 2,597
Other accrued expenses 12,805 4,354
Total Current Liabilities 63,691 49,188
Long-term debt, excluding current
installment 121,209 58,643
Accrued Retirement Benefits 15,058 14,015
Deferred Income Taxes 13,848 11,118
Shareholders' Equity 116,246 115,992
$330,052 $248,956
PAGE
<PAGE>
Consolidated Statements of Operations (Unaudited)
(Dollars in thousands, except per share amounts)
Periods Ended September 30, 1997 and 1996
Nine Months Three Months
1997 1996 1997 1996
Net sales $328,475 $309,698 $112,327 $ 98,228
Costs and expenses:
Cost of products sold 295,614 276,130 103,322 89,309
Administrative and selling 9,538 9,358 3,315 3,159
Provision for plant closing 8,769 - 8,769 -
313,921 285,488 115,406 92,468
Operating Earnings 14,554 24,210 (3,079) 5,760
Investment and other income, net 732 851 206 692
Interest expense (5,094) (4,045) (2,377) (1,321)
Earnings Before Income Taxes 10,192 21,016 (5,250) 5,131
Income taxes 3,724 7,645 (1,913) 1,688
Net Earnings $ 6,468 $13,371 $(3,337) $ 3,443
Net Earnings Per Share $0.36 $0.74 $(0.18) $0.19
Cash dividends per share $0.30 $0.30 $0.10 $0.10
Average number of common
equivalent shares 18,172,233 18,103,242 18,189,835 18,117,073
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<PAGE>
Consolidated Statements of Cash Flows (Unaudited)
(In thousands)
Nine Months Ended September 30, 1997 and 1996
1997 1996
OPERATING ACTIVITIES
Net earnings $ 6,468 $13,371
Depreciation and amortization 17,032 15,343
Provision for deferred income taxes 2,185 689
Other 165 471
Changes in operating assets and liabilities,
net of effects of acquisition of business (10,585) (376)
Cash Provided By Operating Activities 15,265 29,498
INVESTING ACTIVITIES
Acquisition of business, net of cash acquired (75,407) -
Capital expenditures (22,373) (15,141)
Proceeds from disposal of property
and equipment 321 97
Cash Used In Investing Activities (97,459) (15,044)
FINANCING ACTIVITIES
Cash dividends paid (5,439) (5,424)
Proceeds (repayments) of long-term debt, net 62,577 (1,933)
Cash provided by stock transactions, net - 243
Cash Provided From (Used In) Financing
Activities 57,116 (7,114)
Effect of foreign currency exchange
rate changes (1,037) 143
Increase (Decrease)In Cash and
Cash Equivalents (26,115) 7,483
Cash and cash equivalents at beginning
of period 28,902 13,490
Cash and Cash Equivalents at End of Period $ 2,787 $20,973
Supplemental Disclosures
Cash paid during the year for:
Interest $ 4,207 $ 4,045
Income Taxes 4,662 4,381
<PAGE>
<PAGE>
Note 1. Significant Accounting Principles
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial reporting. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. The results of operations for the period
ended September 30, 1997 are not necessarily indicative of the results to be
expected for the year ending December 31, 1997.
Goodwill, arising from the acquisition of the Vibration Attenuation division
(see below), is amortized on a straight-line basis over 40 years. Specific
intangibles are amortized on a straight-line basis over the estimated periods
benefited with periods ranging from 5 to 20 years. For further information
regarding the Company's accounting policies, refer to the Consolidated
Financial Statements and related notes included in the Company's Annual Report
on Form 10-K for the year ended December 31, 1996.
Note 2. Holset VA Acquisition
On June 27, the Company through a wholly owned subsidiary purchased the
Vibration Attenuation division of Holset Engineering Company Limited ("Holset
VA") from Cummins Engine Company. The aggregate purchase cost for the
acquisition of the Holset VA Business was $76.6 million. Funds for the Holset
VA Business acquisition, net of cash received, were provided by cash and
borrowings of $60 million under the Credit Agreements as described in Note 4.
The Holset VA Business has operations in the United Kingdom, France, Spain,
Mexico, Korea, Brazil, and the United States. The Holset VA Business is also
a minority partner in a joint venture in India. Holset VA manufactures rubber
and viscous dampers and supplies three main markets including heavy truck,
light truck and automotive and industrial.
The acquisition was accounted for as a purchase transaction. The purchase
cost of $76.6 million has been allocated to assets acquired and liabilities
assumed based upon their preliminary estimated fair values at the acquisition
date. The excess of the purchase price over the estimated values for assets
and liabilities has been reflected as unallocated purchase cost which is being
amortized over 40 years. The final allocation of the purchase costs to assets
and liabilities will depend on the final results of appraisals that are not
yet complete. Therefore, the final allocation will probably differ from the
estimated allocation, possibly by substantial amounts. The preliminary
allocation at June 27, 1997 of the $76.6 million purchase cost is summarized
as follows:
(In thousands)
Current assets $17,748
Property, plant and equipment 15,806
Unallocated purchase cost,
principally goodwill 38,843
Intangible assets 12,728
Other noncurrent assets 841
Current liabilities (9,346)
Total purchase cost $76,620
NOTE 3. Pro Forma Information
The following pro forma unaudited financial data is presented to illustrate
the estimated effects of (i) the Holset VA acquisition and (ii) the completion
of the new credit agreements (Note 4) as if the transactions had occurred as
of January 1 of each year presented (in thousands, except per share data).
________________________________________________________________________
Three Months Ended Nine Months Ended
Sept 30 Sept 30 Sept 30 Sept 30
1997 1996 1997 1996
Net sales 125,605 111,345 377,516 358,145
Net income (4,150) (2,866) 6,078 13,531
Net income per share $(.23) $.16 $0.33 $0.75
________________________________________________________________________
The pro forma information above does not purport to be indicative of the
results that actually would have been achieved if the transactions had
occurred prior to the years presented, and is not intended to be a projection
of future results or trends.
Note 4. Debt
On August 1, 1997 the Company issued and sold $35 million of its 7.03% Senior
Notes, Series A and $15 million of its 6.96% Senior Notes, Series B. Notes of
both series are due August 1, 2012. The proceeds of the Notes were used to
pay down and permanently reduce the 364-Day and five-year Credit Agreements
discussed below.
In June 1997, the Company entered into revolving credit agreements to allow
for borrowings of up to $50 million under a five-year agreement and up to $50
million under a 364-day agreement. In August 1997 these agreements were
permanently reduced to $25 million each. At September 30, 1997, borrowings
outstanding under the 364-day agreement were $17.5 million at interest rates
ranging from 6.32 % to 8.5%. There were no borrowings outstanding under the
five-year agreement. The 364-day agreement is classified as long-term based
on management's intent to maintain this level of borrowing for a period in
excess of one year and the Company's ability to transfer the borrowings to its
five-year line.
Borrowings under the credit agreements bear interest, at the election of the
Company, at a floating rate of interest equal to (a) the higher of ABN AMRO's
prime lending rate and the federal funds rate plus .5% or (b) the Eurodollar
rate plus the applicable borrowing margin.
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<PAGE>
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
Net sales for the third quarter increased 14.4% or $14.1 million over 1996.
Year-to-date sales increased 6.1% or $18.8 million over the prior year. The
inclusion of the acquisition of the vibration attenuation business ("VA
Business")of Holset Engineering Company Limited from Cummins Engine Co., Inc.
contributed $13.3 million to the increase in both periods with the remainder
coming from new program launches undertaken since the beginning of the year.
The increased sales year-to-date reflect strong sales to diesel engine
customers and a new wheel-end suspension program that went on line in late
1996 offset by the effects of a decline in auto production and strikes at two
key customers.
Cost of products sold as a percent of sales for the third quarter of 1997
compared to the third quarter of 1996 increased to 92.0% from 90.9%. This
increase is due to higher launch costs in the third quarter of 1997,
non-accruable plant closure costs (as discussed below) and the inclusion of
the VA Business which reflects the impact of the traditional August shutdown
in France and Spain. Cost of products sold as a percent of sales year-to-date
1997 compared to 1996 increased to 90.0% from 88.9%. In addition to the third
quarter events, the year-to-date increase also reflects the recovery of some
out-of-period start-up costs recorded in the second quarter of 1996.
Administrative and selling costs remained at approximately 3% of sales for the
nine- and three-month periods ending September, 30 1997 and 1996. Interest
expense increased $1.1 million and $1.0 million for the three and nine-month
periods ending September 30, 1997 respectively, over the same 1996 periods.
This increase was due to the additional debt incurred to fund the Holset
acquisition.
In July 1997, the Company announced the closing of its Jackson, Michigan
manufacturing plant. In September, 1997, the Company announced the closing of
its Gladwin, Michigan manufacturing plant. Pre-tax charges of approximately
$4.2 and $4.6 million for Jackson and Gladwin plants respectively, were
recorded in the third quarter ending September 30, 1997. Non-accruable plant
closure costs of $.6 million are included in the third quarter 1997 cost of
products sold. It is anticipated that an additional $.6 million of
non-accruable plant closure costs will be incurred in the fourth quarter of
1997. These closures are anticipated to provide annualized savings of
approximately $5.5 million a year before taxes beginning in 1998.
On August 1, 1997 the Company issued and sold $35 million of its 7.03% Senior
Notes, Series A and $15 million of its 6.96% Senior Notes, Series B. Notes of
both series are due August 1, 2012. The proceeds of the Notes were used to
pay down and permanently reduce the 364-Day and five-year Credit Agreements
discussed below.
In June 1997, the Company entered into revolving credit agreements to allow
for borrowings of up to $50 million under a five-year agreement and up to $50
million under a 364-day agreement. In August 1997 these agreements were
permanently reduced to $25 million each. At September 30, 1997, borrowings
outstanding under the 364-day agreement were $17.5 million at interest rates
ranging from 6.32 % to 8.5%. There were no borrowings outstanding under the
five-year agreement. The 364-day agreement is classified as long-term based
on management's intent to maintain this level of borrowing for a period in
excess of five years and the Company's ability to transfer the borrowings to
its five-year line.
Borrowings under the credit agreements bear interest, at the election of the
Company, at a floating rate of interest equal to (a) the higher of ABN AMRO's
prime lending rate and the federal funds rate plus .5% or (b) the Eurodollar
rate plus the applicable borrowing margin.
Cash flow from operations was $15.3 million for the first nine months of 1997.
Net cash used in investing activities was $97.5 million and $15.0 million for
the nine months ending September 30, 1997 and 1996, respectively. The primary
reason for the increase in investing activities was the Holset VA acquisition
which occurred in the second quarter of 1997. The Company's investment in
production capacity for new automotive, light truck and diesel engine programs
also increased from $15.1 million in 1996 to $22.4 million in 1997. The
increase was primarily due to the new program launches occurring in 1997.
Net cash used in investing activities and dividends paid during the nine
months ended September 30, 1997, exceeded cash flows from operations and net
proceeds from borrowings, discussed above, resulting in a reduction of $26
million in cash and cash equivalents. The Company believes that cash flows
from operations and available credit facilities will be sufficient to meet its
debt service requirements, projected capital expenditures and working capital
requirements.
Certain statements in this report may be "forward-looking statements" under
the Securities Exchange Act of 1934. Statements regarding future operating
performance, new programs expected to be launched and other future prospects
and developments are based on current expectations and involve certain risks
and uncertainties that could cause the actual results and developments to
differ materially from the forward-looking statements. Potential risks and
uncertainties include such factors as demand for the Company's products,
pricing and other actions taken by competitors, and general economic
conditions affecting the markets served by the Company.
<PAGE>
<PAGE>
Part II. Other Information
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed as part of this report.
EXHIBIT NO. DESCRIPTION
10.26 Note Agreement, dated August 1, 1997 with Northwestern
Mutual Life Insurance Company, Chubb Life Insurance
Company of America, Chubb Colonial Life Insurance
Company, Allstate Life Insurance Company and United of
Omaha Life Insurance Company
11 Computation of Earnings Per Share
27 Financial Data Schedule
(b) The following reports on Form 8-K were filed during the quarter ended
September 30, 1997.
(i) July 14, 1997 - Form 8-K relating to the Holset VA acquisition.
(ii) August 14, 1997 - Form 8-K relating to the Holset VA acquisition
(including pro forma financial statements of the business acquired).
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
SIMPSON INDUSTRIES, INC.
Registrant
/S/ ROY E. PARROTT
November 13, 1997 Roy E. Parrott
President and Chief Executive Officer
<PAGE>
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
10.26 Note Agreement, dated August 1, 1997 with Northwestern
Mutual Life Insurance Company, Chubb Life Insurance
Company of America, Chubb Colonial Life Insurance
Company, Allstate Life Insurance Company and United of
Omaha Life Insurance Company
11 Computation of Earnings Per Share
27 Financial Data Schedule
SIMPSON INDUSTRIES, INC.
$35,000,000
7.03% SENIOR NOTES, SERIES A, DUE AUGUST 1,2012
AND
$15,000,000
6.96% SENIOR NOTES, SERIES B,
DUE AUGUST 1, 2012______________
NOTE PURCHASE AGREEMENT_____________
DATED AS OF AUGUST 1, 1997
<PAGE>
<PAGE>
Table of Contents
(Not a part of the Agreement)
Section Header Page
Section 1. Authorization of Notes 1
Section 2. Sale and Purchase of Notes 1
Section 3. Closing 2
Section 4. Conditions to Closing 2
Section 4.1. Representations and Warranties 2
Section 4.2. Performance; No Default. 2
Section 4.3. Compliance Certificates 2
Section 4.4. Opinions of Counsel 3
Section 4.5. Purchase Permitted By Applicable Law, etc 3
Section 4.6. Sale of Other Notes 3
Section 4.7. Payment of Special Counsel Fees. 3
Section 4.8. Private Placement Number 3
Section 4.9. Changes in Corporate Structure 3
Section 4.10. Proceedings and Documents 4
Section 5. Representations and Warranties of the
Company 4
Section 5.1. Organization; Power and Authority 4
Section 5.2. Authorization, etc 4
Section 5.3. Disclosure 4
Section 5.4. Organization and Ownership of Shares of
Subsidiaries; Affiliates 5
Section 5.5. Financial Statements 5
Section 5.6. Compliance with Laws, Other Instruments, etc 6
Section 5.7. Governmental Authorizations, etc 6
Section 5.8. Litigation; Observance of Agreements,
Statutes and Orders 6
Section 5.9. Taxes 6
Section 5.10. Title to Property; Leases 7
Section 5.11. Licenses, Permits, etc 7
Section 5.12. Compliance with ERISA 7
Section 5.13. Private Offering by the Company 8
Section 5.14. Use of Proceeds; Margin Regulations 8
Section 5.15. Existing Debt; Future Liens 9
Section 5.16. Foreign Assets Control Regulations, etc 9
Section 5.17. Status under Certain Statutes 9
Section 5.18. Environmental Matters 9
Section 6. Representations of the Purchaser 10
Section 6.1. Purchase for Investment 10
Section 6.2. Source of Funds 10
Section 7. Information as to Company 11
Section 7.1. Financial and Business Information 11
Section 7.2. Officer's Certificate 14
Section 7.3. Inspection 14
Section 8. Prepayment of the Notes 15
Section 8.1. Required Prepayments 15
Section 8.2. Optional Prepayments with Make-Whole Amount 15
Section 8.3. Allocation of Partial Prepayments 16
Section 8.4. Maturity; Surrender, etc 16
Section 8.5. Purchase of Notes 16
Section 8.6. Make-Whole Amount 17
Section 8.7. Prepayment upon Change in Control 18
Section 9. Affirmative Covenants 21
Section 9.1. Compliance with Law 21
Section 9.2. Insurance 21
Section 9.3. Maintenance of Properties 21
Section 9.4. Payment of Taxes and Claims 21
Section 9.5. Corporate Existence, etc 22
Section 9.6 Designation of Unrestricted Subsidiaries 22
Section 9.7. Financial Records 22
Section 10. Negative Covenants 22
Section 10.1. Consolidated Net Worth 22
Section 10.2. Limitations on Debt 23
Section 10.3. Limitations on Priority Debt 23
Section 10.4. Limitation on Liens 23
Section 10.5. Merger, Consolidation, etc 25
Section 10.6. Sales of Assets 26
Section 10.7. Long Term Lease Rentals 26
Section 10.8. Nature of Business 26
Section 10.9. Transactions with Affiliates 27
Section 11. Events of Default 27
Section 12. Remedies on Default, etc 29
Section 12.1. Acceleration 29
Section 12.2. Other Remedies 30
Section 12.3. Rescission 30
Section 12.4. No Waivers or Election of Remedies,
Expenses, etc 30
Section 13. Registration; Exchange; Substitution of
Notes 30
Section 13.1. Registration of Notes 30
Section 13.2. Transfer and Exchange of Notes 31
Section 13.3. Replacement of Notes 31
Section 14. Payments on Notes 32
Section 14.1. Place of Payment 32
Section 14.2. Home Office Payment 32
Section 15. Expenses, Etc. 32
Section 15.1. Transaction Expenses 32
Section 15.2. Survival 33
Section 16. Survival of Representations and Warranties;
Entire Agreement 33
Section 17. Amendment and Waiver 33
Section 17.1. Requirements 33
Section 17.2. Solicitation of Holders of Notes 33
Section 17.3. Binding Effect, etc 34
Section 17.4. Notes Held by Company, etc 34
Section 18. Notices 34
Section 19. Reproduction of Documents 35
Section 20. Confidential Information 35
Section 21. Substitution of Purchaser 36
Section 22. Miscellaneous 36
Section 22.1. Successors and Assigns 36
Section 22.2. Payments Due on Non-Business Days 37
Section 22.3. Severability 37
Section 22.4. Construction 37
Section 22.5. Counterparts 37
Section 22.6. Governing Law 37
Signature 37
Schedule A Information Relating To Purchasers
Schedule B Defined Terms
Schedule 4.9 Changes in Corporate Structure
Schedule 5.3 Disclosure Materials
Schedule 5.4 Subsidiaries of the Company and Ownership of Subsidiary Stock
Schedule 5.5 Financial Statements
Schedule 5.8 Certain Litigation
Schedule 5.11 Patents, etc.
Schedule 5.14 Use of Proceeds
Schedule 5.15 Existing Indebtedness; Permitted Investments
Exhibit 1 Form of 7.03% Senior Note, Series A, due August 1, 2012
Exhibit 2 Form of 6.96% Senior Note, Series B, due August 1, 2012
Exhibit 4.4(a) Form of Opinion of Special Counsel for the Company
Exhibit 4.4(b) Form of Opinion of Special Counsel for the Purchasers
<PAGE>
<PAGE>
SIMPSON INDUSTRIES, INC.
47603 HALYARD DRIVE
PLYMOUTH, MICHIGAN 48170-2429
7.03% SENIOR NOTES, SERIES A, DUE AUGUST 1, 2012
AND
6.96% SENIOR NOTES, SERIES B, DUE AUGUST 1, 2012
AUGUST 1, 1997
To each of the Purchasers listed in
the attached Schedule A:
Ladies and Gentlemen:
Simpson Industries, Inc., a Michigan corporation (the "Company"), agrees with
you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of (i) $35,000,000 aggregate
principal amount of its 7.03% Senior Notes, Series A, due August 1, 2012 (the
"Series A Notes") and (ii) $15,000,000 aggregate principal amount of its 6.96%
Senior Notes, Series B, due August 1, 2012 (the "Series B Notes", and together
with the Series A Notes, the "Notes"). The term "Notes" shall include any
such notes issued in substitution therefor pursuant to Section 13 of this
Agreement or the Other Agreements (as hereinafter defined). The Series A
Notes and the Series B Notes shall be substantially in the form set out in
Exhibits 1 and 2, respectively with such changes therefrom, if any, as may be
approved by you and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a "Schedule" or an
"Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will issue
and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, the Notes in the principal amount specified
opposite your name in Schedule A at the purchase price of 100% of the
principal amount thereof. Contemporaneously with entering into this
Agreement, the Company is entering into separate Note Purchase Agreements (the
"Other Agreements") identical with this Agreement with each of the other
purchasers named in Schedule A (the "Other Purchasers"), providing for the
sale at such Closing to each of the Other Purchasers of the Notes in the
principal amount specified opposite its name in Schedule A. Your obligation
hereunder, and the obligations of the Other Purchasers under the Other
Agreements, are several and not joint obligations, and you shall have no
obligation under any Other Agreement and no liability to any Person for the
performance or nonperformance by any Other Purchaser thereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Chapman and Cutler, 111 West Monroe
Street, Chicago, Illinois 60603, at 10:00 a.m. Chicago time, at a closing (the
"Closing") on August 28, 1997 or on such other Business Day thereafter on or
prior to August 31, 1997 as may be agreed upon by the Company and you and the
Other Purchasers. At the Closing the Company will deliver to you the Notes to
be purchased by you in the form of a single Note (or such greater number of
Notes in denominations of at least $500,000 as you may request) dated the date
of the Closing and registered in your name (or in the name of your nominee),
against delivery by you to the Company or its order of immediately available
funds in the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Company to account number
1000-097616 at Comerica Bank, 500 Woodward Avenue, Detroit, Michigan, ABA#
072-000096. If at the Closing the Company shall fail to tender such Notes to
you as provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to your reasonable satisfaction, you
shall, at your election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights you may have by reason of such
failure or such nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your reasonable satisfaction, prior
to or at the Closing, of the following conditions:
Section 4.1. Representations and Warranties;. The representations and
warranties of the Company in this Agreement shall be correct when made and at
the time of the Closing.
Section 4.2. Performance; No Default. The Company shall have performed and
complied with all agreements and conditions contained in this Agreement
required to be performed or complied with by it prior to or at the Closing,
and after giving effect to the issue and sale of the Notes (and the
application of the proceeds thereof as contemplated by Schedule 5.14), no
Default or Event of Default shall have occurred and be continuing. Neither
the Company nor any Subsidiary shall have entered into any transaction since
the date of the Memorandum that would have been prohibited by the covenants
contained in Section 10 hereof had such covenants applied since such date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have delivered to you a
certificate certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and delivery of
the Notes and the Agreements.
Section 4.4. Opinions of Counsel. You shall have received
opinions in form and substance satisfactory to you, dated the date of the
Closing (a) from Dykema Gossett, counsel for the Company, covering the matters
set forth in Exhibit 4.4(a) and covering such other matters incident to the
transactions contemplated hereby as you or your counsel may reasonably request
(and the Company hereby instructs its counsel to deliver such opinion to you)
and (b) from Chapman and Cutler, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b) and
covering such other matters incident to such transactions as you may
reasonably request.
Section 4.5. Purchase Permitted By Applicable Law, etc. On the date of the
Closing your purchase of Notes shall (i) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as Section 1405(a)(8) of the New York Insurance Law)
permitting limited investments by insurance companies without restriction as
to the character of the particular investment, (ii) not violate any applicable
law or regulation (including, without limitation, Regulation G, T or X of the
Board of Governors of the Federal Reserve System) and (iii) not subject you to
any tax, penalty or liability under or pursuant to any applicable law or
regulation, which law or regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's Certificate certifying
as to such matters of fact as you may reasonably specify to enable you to
determine whether such purchase is so permitted.
Section 4.6. Sale of Other Notes. Contemporaneously with the
Closing, the Company shall sell to the Other Purchasers, and the Other
Purchasers shall purchase, the Notes to be purchased by them at the Closing as
specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions
of Section 15.1, the Company shall have paid on or before the Closing the
fees, charges and disbursements of your special counsel referred to in
Section 4.4 to the extent reflected in a statement of such counsel rendered to
the Company at least one Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement number issued by
Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
Section 4.9. Changes in Corporate Structure. Except as specified in
Schedule 4.9, the Company shall not have changed its jurisdiction of
incorporation or been a party to any merger or consolidation and shall not
have succeeded to all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent financial statements
referred to in Schedule 5.5.
Section 4.10. Proceedings and Documents. All corporate and other proceedings
in connection with the transactions contemplated by this Agreement and all
documents and instruments incident to such transactions shall be satisfactory
to you and your special counsel, and you and your special counsel shall have
received all such counterpart originals or certified or other copies of such
documents as you or they may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you that:
Section 5.1. Organization; Power and Authority. The Company is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and is duly qualified as a foreign corporation
and is in good standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The Company has the
corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts and
proposes to transact, to execute and deliver this Agreement and the Other
Agreements and the Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, etc. This Agreement, the Other Agreements and the
Notes have been duly authorized by all necessary corporate action on the part
of the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
Section 5.3. Disclosure. The Company, through its agent, ABN AMRO Chicago
Corporation, has delivered to you and each Other Purchaser a copy of a Private
Placement Memorandum, dated July 9, 1997 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries. Except as disclosed in Schedule 5.3,
this Agreement, the description of the general nature of the business and
principal properties of the Company set forth in the Memorandum, the
documents, certificates or other writings delivered to you by or on behalf of
the Company in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 5.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as disclosed in the
Memorandum or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified therein, or in the
financial statements listed in Schedule 5.5, since December 31, 1996, there
has been no change in the financial condition, operations, business,
properties or prospects of the Company or any Subsidiary except changes that
individually or in the aggregate could not reasonably be expected to have a
Material Adverse Effect. There is no fact known to the Company that could
reasonably be expected to have a Material Adverse Effect that has not been set
forth herein or in the Memorandum or in the other documents, certificates and
other writings delivered to you by or on behalf of the Company specifically
for use in connection with the transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.
(a) Schedule 5.4 contains (except as noted therein) complete and correct lists
(i) of the Company's Subsidiaries, showing, as to each Subsidiary, the correct
name thereof, the jurisdiction of its organization, and the percentage of
shares of each class of its capital stock or similar equity interests
outstanding owned by the Company and each other Subsidiary, (ii) of the
Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity interests
of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and nonassessable and
are owned by the Company or another Subsidiary free and clear of any Lien
(except as otherwise disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization, and is duly qualified as a foreign
corporation or other legal entity and is in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions
as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to own or hold
under lease and to transact the business it transacts and proposes to
transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal restriction
or any agreement (other than this Agreement, the agreements listed on
Schedule 5.4 and customary limitations imposed by corporate law statutes)
restricting the ability of such Subsidiary to pay dividends out of profits or
make any other similar distributions of profits to the Company or any of its
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial statements
(including in each case the related schedules and notes) fairly present in all
material respects the consolidated financial position of the Company and its
Subsidiaries as of the respective dates specified in such Schedule and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the notes thereto (subject, in the case of any interim financial statements,
to normal year-end adjustments).
Section 5.6. Compliance with Laws, Other Instruments, etc. The execution,
delivery and performance by the Company of this Agreement and the Notes will
not (i) contravene, result in any breach of, or constitute a default under, or
result in the creation of any Lien in respect of any property of the Company
or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any
other agreement or instrument to which the Company or any Subsidiary is bound
or by which the Company or any Subsidiary or any of their respective
properties may be bound or affected, (ii) conflict with or result in a breach
of any of the terms, conditions or provisions of any order, judgment, decree,
or ruling of any court, arbitrator or Governmental Authority applicable to the
Company or any Subsidiary or (iii) violate any provision of any statute or
other rule or regulation of any Governmental Authority applicable to the
Company or any Subsidiary.
Section 5.7. Governmental Authorizations, etc. No consent,
approval or authorization of, or registration, filing or declaration with, any
Governmental Authority is required in connection with the execution, delivery
or performance by the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no actions, suits or
proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or before or by
any Governmental Authority that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term of any
agreement or instrument to which it is a party or by which it is bound, or any
order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
regulation (including without limitation Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have
paid all taxes shown to be due and payable on such returns and all other taxes
and assessments levied upon them or their properties, assets, income or
franchises, to the extent such taxes and assessments have become due and
payable and before they have become delinquent, except for any taxes and
assessments (i) the amount of which is not individually or in the aggregate
Material or (ii) the amount, applicability or validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which the Company or a Subsidiary, as the case may be, has established
adequate reserves in accordance with GAAP. The Company knows of no basis for
any other tax or assessment that could reasonably be expected to have a
Material Adverse Effect. The charges, accruals and reserves on the books of
the Company and its Subsidiaries in respect of Federal, state or other taxes
for all fiscal periods are adequate. The Federal income tax liabilities of
the Company and its Subsidiaries have been finally determined except for
(i) fiscal years 1993 through 1996, the only years not closed by completion of
an audit or expiration of the statute of limitations, and (ii) in the case of
fiscal year 1985 and each subsequent year, items disclosed in the amended
Federal income tax returns filed by the Company relating to a claim by the
Company for a research and experimentation credit for such years.
Section 5.10. Title to Property; Leases. The Company and its Subsidiaries
have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in Section 5.5
or purported to have been acquired by the Company or any Subsidiary after said
date (except as sold or otherwise disposed of in the ordinary course of
business), in each case free and clear of Liens prohibited by this Agreement.
All leases that individually or in the aggregate are Material are valid and
subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, etc. Except as disclosed in
Schedule 5.11,
(a) the Company and its Subsidiaries own or possess all licenses, permits,
franchises, authorizations, patents, copyrights, service marks, trademarks and
trade names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others;
(b) to the best knowledge of the Company, no product of the Company infringes
in any Material respect any license, permit, franchise, authorization, patent,
copyright, service mark, trademark, trade name or other right owned by any
other Person; and
(c) to the best knowledge of the Company, there is no Material violation by
any Person of any right of the Company or any of its Subsidiaries with respect
to any patent, copyright, service mark, trademark, trade name or other right
owned or used by the Company or any of its Subsidiaries.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA Affiliate
have operated and administered each Plan in compliance with all applicable
laws except for such instances of noncompliance as have not resulted in and
could not reasonably be expected to result in a Material Adverse Effect.
Neither the Company nor any ERISA Affiliate has incurred any liability
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans (as defined in Section 3 of
ERISA), and no event, transaction or condition has occurred or exists that
could reasonably be expected to result in the incurrence of any such liability
by the Company or any ERISA Affiliate, or in the imposition of any Lien on any
of the rights, properties or assets of the Company or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty or excise
tax provisions or to Section 401(a)(29) or 412 of the Code, other than such
liabilities or Liens as would not be individually or in the aggregate
Material.
(b) The present value of the aggregate benefit liabilities under each of the
Plans (other than Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such Plan's most recent actuarial valuation
report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities by more than $219,897 in the case of any
single Plan and by more than $351,103 in the aggregate for all Plans. The
term "benefit liabilities" has the meaning specified in section 4001 of ERISA
and the terms "current value" and "present value" have the meanings specified
in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation (determined as of the last
day of the Company's most recently ended fiscal year in accordance with
Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and sale of
the Notes hereunder will not involve any transaction that is subject to the
prohibitions of section 406 of ERISA or in connection with which a tax could
be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The
representation by the Company in the first sentence of this Section 5.12(e) is
made in reliance upon and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds used to pay the purchase price of
the Notes to be purchased by you.
Section 5.13. Private Offering by the Company. Neither the Company nor anyone
acting on its behalf has offered the Notes or any similar securities for sale
to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any person other than you,
the Other Purchasers and not more than 26 other Institutional Investors, each
of which has been offered the Notes at a private sale for investment. Neither
the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the
registration requirements of Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the
proceeds of the sale of the Notes as set forth in
Schedule 5.14. No part of the proceeds from the sale of the Notes hereunder
will be used, directly or indirectly, for the purpose of buying or carrying
any margin stock within the meaning of Regulation G of the Board of Governors
of the Federal Reserve System (12 CFR 207), or for the purpose of buying or
carrying or trading in any securities under such circumstances as to involve
the Company in a violation of Regulation X of said Board (12 CFR 224) or to
involve any broker or dealer in a violation of Regulation T of said Board (12
CFR 220). Margin stock does not constitute more than 1% of the value of the
consolidated assets of the Company and its Subsidiaries and the Company does
not have any present intention that margin stock will constitute more than 1%
of the value of such assets. As used in this Section, the terms "margin
stock" and "purpose of buying or carrying" shall have the meanings assigned to
them in said Regulation G.
Section 5.15. Existing Debt; Future Liens. (a) Except as described therein,
Schedule 5.15 sets forth a complete and correct list of all outstanding Debt
of the Company and its Subsidiaries as of August 1, 1997, since which date
there has been no Material change in the amounts, interest rates, sinking
funds, installment payments or maturities of the Debt of the Company or its
Subsidiaries. Neither the Company nor any Subsidiary is in default and no
waiver of default is currently in effect, in the payment of any principal or
interest on any Debt of the Company or such Subsidiary and no event or
condition exists with respect to any Debt of the Company or any Subsidiary
that would permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Debt to become due and payable
before its stated maturity or before its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
happening of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.4.
Section 5.16. Foreign Assets Control Regulations, etc. Neither the sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Subsidiary is subject to regulation under the Investment Company Act of 1940,
as amended, the Public Utility Holding Company Act of 1935, as amended, the
ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18. Environmental Matters. Neither the Company nor any Subsidiary
has knowledge of any claim or has received any notice of any claim, and no
proceeding has been instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties now or formerly
owned, leased or operated by any of them or other assets, alleging any damage
to the environment or violation of any Environmental Laws, except, in each
case, such as could not reasonably be expected to result in a Material Adverse
Effect. Except as otherwise disclosed to you in writing:
(a) neither the Company nor any Subsidiary has knowledge of any facts which
would give rise to any claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from, occurring on or in any way
related to real properties now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any Hazardous
Materials on real properties now or formerly owned, leased or operated by any
of them or has disposed of any Hazardous Materials in a manner contrary to any
Environmental Laws in each case in any manner that could reasonably be
expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated by the
Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. You represent that you are purchasing
the Notes for your own account or for one or more separate accounts maintained
by you or for the account of one or more pension or trust funds and not with a
view to the distribution thereof, provided that the disposition of your or
their property shall at all times be within your or their control. You
understand that the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is
required by law, and that the Company is not required to register the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
following statements is an accurate representation as to each source of funds
(a "Source") to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) the Source is an "insurance company general account" within the meaning of
Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (issued
July 12, 1995) and there is no employee benefit plan, treating as a single
plan, all plans maintained by the same employer or employee organization, with
respect to which the amount of the general account reserves and liabilities
for all contracts held by or on behalf of such plan, exceeds ten percent (10%)
of the total reserves and liabilities of such general account (exclusive of
separate account liabilities) plus surplus, as set forth in the NAIC Annual
Statement filed with your state of domicile; or
(b) the Source is either (i) an insurance company pooled separate account,
within the meaning of PTE 90-1 (issued January 29, 1990), or (ii) a bank
collective investment fund, within the meaning of the PTE 91-38 (issued July
12, 1991) and, except as you have disclosed to the Company in writing pursuant
to this paragraph (b), no employee benefit plan or group of plans maintained
by the same employer or employee organization beneficially owns more than 10%
of all assets allocated to such pooled separate account or collective
investment fund; or
(c) the Source constitutes assets of an "investment fund" (within the meaning
of Part V of the QPAM Exemption) managed by a "qualified professional asset
manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no
employee benefit plan's assets that are included in such investment fund, when
combined with the assets of all other employee benefit plans established or
maintained by the same employer or by an affiliate (within the meaning of
Section V(c)(1) of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed 20% of the total client
assets managed by such QPAM, the conditions of Part l(c) and (g) of the QPAM
Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of "control" in Section V(e)
of the QPAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such QPAM and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the Company
in writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a separate account or
trust fund comprised of one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to this paragraph (e); or
(f) the Source does not include assets of any employee benefit plan, other
than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in
Section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information The Company shall deliver to
each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements within 60 days after the end of each quarterly
fiscal period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), duplicate copies of:
(i) an unaudited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) unaudited consolidated statements of income, changes in shareholders'
equity and cash flows of the Company and its Subsidiaries for such quarter and
(in the case of the second and third quarters) for the portion of the fiscal
year ending with such quarter, setting forth in each case in comparative form
the figures for the corresponding periods in the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP applicable to quarterly
financial statements generally, and certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows,
subject to changes resulting from year-end adjustments, provided that delivery
within the time period specified above of copies of the Company's Quarterly
Report on Form 10-Q prepared in compliance with the requirements therefor and
filed with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this Section 7.1(a);
(b) Annual Statements within 90 days after the end of each fiscal year of
the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at
the end of such year, and
(ii) consolidated statements of income, changes in shareholders' equity and
cash flows of the Company and its Subsidiaries, for such year, setting forth
in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied
(A) by an opinion thereon of independent certified public accountants of
recognized national standing, which opinion shall state that such financial
statements present fairly, in all material respects, the financial position of
the companies being reported upon and their results of operations and cash
flows and have been prepared in conformity with GAAP, and that the examination
of such accountants in connection with such financial statements has been made
in accordance with generally accepted auditing standards, and that such audit
provides a reasonable basis for such opinion in the circumstances, and
(B) a certificate of such accountants stating that they have reviewed this
Agreement and stating further whether, in making their audit, they have become
aware of any condition or event that then constitutes a Default or an Event of
Default, and, if they are aware that any such condition or event then exists,
specifying the nature and period of the existence thereof (it being understood
that such accountants shall not be liable, directly or indirectly, for any
failure to obtain knowledge of any Default or Event of Default unless such
accountants should have obtained knowledge thereof in making an audit in
accordance with generally accepted auditing standards or did not make such an
audit), provided that the delivery within the time period specified above of
the Company's Annual Report on Form 10-K for such fiscal year (together with
the Company's annual report to shareholders, if any, prepared pursuant to Rule
14a-3 under the Exchange Act) prepared in accordance with the requirements
therefor and filed with the Securities and Exchange Commission, together with
the accountant's certificate described in clause (B) above, shall be deemed to
satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports promptly upon their becoming available, one copy
of (i) each financial statement, report, notice or proxy statement sent by the
Company or any Subsidiary to public securities holders generally, and
(ii) each regular or periodic report, each registration statement (without
exhibits except as expressly requested by such holder), and each prospectus
and all amendments thereto filed by the Company or any Subsidiary with the
Securities and Exchange Commission and of all press releases and other
statements made available generally by the Company or any Subsidiary to the
public concerning developments that are Material;
(d) Notice of Default or Event of Default promptly, and in any event within
five days after a Responsible Officer becoming aware of the existence of any
Default or Event of Default or that any Person has given any notice or taken
any action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of the
type referred to in Section 11(f), a written notice specifying the nature and
period of existence thereof and what action the Company is taking or proposes
to take with respect thereto;
(e) ERISA Matters promptly, and in any event within five days after a
Responsible Officer becoming aware of any of the following, a written notice
setting forth the nature thereof and the action, if any, that the Company or
an ERISA Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any Reportable Event for which notice
thereof has not been waived pursuant to such regulations as in effect
on the date hereof; or
(ii) the taking by the PBGC of steps to institute, or the threatening
by the PBGC of the institution of, proceedings under section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt by the Company or any ERISA
Affiliate of a notice from a Multiemployer Plan that such action has
been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in the
incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse
Effect;
(f) Notices from Governmental Authority promptly, and in any event within 30
days of receipt thereof, copies of any notice to the Company or any Subsidiary
from any Federal or state Governmental Authority relating to any order,
ruling, statute or other law or regulation that could reasonably be expected
to have a Material Adverse Effect; and
(g) Requested Information with reasonable promptness, such other data and
information relating to the business, operations, affairs, financial
condition, assets or properties of the Company or any of its Subsidiaries or
relating to the ability of the Company to perform its obligations hereunder
and under the Notes as from time to time may be reasonably requested by any
such holder of Notes.
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 10.1 through Section 10.7 hereof,
inclusive, during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such Sections,
and the calculation of the amount, ratio or percentage then in existence); and
(b) Event of Default a statement that such officer has reviewed the relevant
terms hereof and has made, or caused to be made, under his or her supervision,
a review of the transactions and conditions of the Company and its
Subsidiaries from the beginning of the quarterly or annual period covered by
the statements then being furnished to the date of the certificate and that
such review shall not have disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of Default or, if
any such condition or event existed or exists (including, without limitation,
any such event or condition resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law), specifying the nature and
period of existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of each
holder of Notes that is an Institutional Investor:
(a) No Default if no Default or Event of Default then exists, at the expense
of such holder and upon reasonable prior notice to the Company, to visit the
principal executive office of the Company, to discuss the affairs, finances
and accounts of the Company and its Subsidiaries with the Company's officers,
and (with the consent of the Company, which consent will not be unreasonably
withheld) its independent public accountants, and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit the other
offices and properties of the Company and each Subsidiary, all at such
reasonable times and as often as may be reasonably requested in writing; and
(b) Default if a Default or Event of Default then exists, at the expense of
the Company to visit and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their respective books of account,
records, reports and other papers, to make copies and extracts therefrom, and
to discuss their respective affairs, finances and accounts with their
respective officers and independent public accountants (and by this provision
the Company authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times and as often
as may be requested.
SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments. (a) Series A Notes. On August 1, 2006 and
on each August 1 thereafter to and including August 1, 2011 the Company will
prepay $5,000,000 principal amount (or such lesser principal amount as shall
then be outstanding) of the Series A Notes at par and without payment of the
Make-Whole Amount or any premium. The entire remaining principal amount of
the Series A Notes shall become due and payable on August 1, 2012. For the
purposes of this Section 8.1(a), upon any partial prepayment of the Notes
pursuant to Section 8.2 or Section 8.7 or purchase of the Series A Notes
permitted by Section 8.5, the principal amount of each required prepayment of
the Series A Notes becoming due under this Section 8.1 on and after the date
of such prepayment or purchase shall be reduced in the same proportion as the
aggregate unpaid principal amount of the Series A Notes is reduced as a result
of such prepayment or purchase.
(b) Series B Notes. On August 1, 2002 and on each August 1 thereafter to and
including August 1, 2011 the Company will prepay $1,363,636 principal amount
(or such lesser principal amount as shall then be outstanding) of the Series B
Notes at par and without payment of the Make-Whole Amount or any premium. The
entire remaining principal amount of the Series B Notes shall become due and
payable on August 1, 2012. For purposes of this Section 8.1(b), upon any
partial prepayment of the Notes pursuant to Section 8.2 or Section 8.7 or
purchase of the Series B Notes permitted by Section 8.5, the principal amount
of each required prepayment of the Series B Notes becoming due under this
Section 8.1 on and after the date of such prepayment or purchase shall be
reduced in the same proportion as the aggregate unpaid principal amount of the
Series B Notes is reduced as a result of such prepayment or purchase.
Section 8.2. Optional Prepayments with Make-Whole Amount.
(a) The Company may, at its option, upon notice as provided below, prepay at
any time all, or from time to time any part of, the Notes, in an amount not
less than 5% of the aggregate principal amount of the Notes then outstanding
in the case of a partial prepayment, at 100% of the principal amount so
prepaid, plus the Make-Whole Amount determined for the prepayment date with
respect to such principal amount. In the case of any partial prepayment
pursuant to this Section 8.2(a) the Company shall be required to prepay the
Notes of each series at the time outstanding in proportion, as nearly as
practicable, to the proportion that the aggregate unpaid principal amount of
the Notes of the applicable series bears to the aggregate principal amount of
the Notes then outstanding.
(b) In addition to the right of the Company to prepay the Notes pursuant to
Section 8.2(a), the Company shall offer to prepay the Notes in connection with
a Debt Prepayment Application at 100% of the principal amount to be prepaid,
plus the Make-Whole Amount determined for the prepayment date with respect to
the principal amount to be prepaid. If any holder of a Note does not reject
such offer of prepayment in writing delivered to the Company not less than 10
days prior to the date fixed for prepayment, then such offer of prepayment
shall be deemed to have been accepted by such holder and the Ratable Portion
of such holders Notes shall be prepaid in accordance with Section 8.2(c).
(c) The Company will give each holder of Notes written notice of each optional
prepayment under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice shall
specify such date, the aggregate principal amount of the Notes to be prepaid
on such date, the principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the interest to be
paid on the prepayment date with respect to such principal amount being
prepaid, and shall be accompanied by a certificate of a Senior Financial
Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the
prepayment), setting forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each holder of Notes a
certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of each partial
prepayment of the Notes, the principal amount of the Notes to be prepaid (or
offered to be prepaid in the case of a Debt Prepayment Application) shall be
allocated among all of the Notes of the applicable Series at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment.
Section 8.4. Maturity; Surrender, etc. In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note to be
prepaid shall mature and become due and payable on the date fixed for such
prepayment, together with interest on such principal amount accrued to such
date and the applicable Make-Whole Amount, if any. From and after such date,
unless the Company shall fail to pay such principal amount when so due and
payable, together with the interest and Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to accrue. Any Note
paid or prepaid in full shall be canceled and shall not be reissued, and no
Note shall be issued in lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes. The Company will not and will not permit any
Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes.
The Company will promptly cancel all Notes acquired by it or any Affiliate
pursuant to any payment, prepayment or purchase of Notes pursuant to any
provision of this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
Section 8.6. Make-Whole Amount. The term "Make-Whole Amount" means, with
respect to any Note of any Series, an amount equal to the excess, if any, of
the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note of such Series over the amount of such Called
Principal, provided that the Make-Whole Amount may in no event be less than
zero. For the purposes of determining the Make-Whole Amount, the following
terms have the following meanings:
"Called Principal" means, with respect to any Note of any Series, the
principal of such Note of such Series that is to be prepaid pursuant to
Sections 8.2 or 8.7 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
"Discounted Value" means, with respect to the Called Principal of any Note of
any Series, the amount obtained by discounting all Remaining Scheduled
Payments with respect to such Called Principal from their respective scheduled
due dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied
on the same periodic basis as that on which interest on the Notes of such
Series is payable) equal to the Reinvestment Yield with respect to such Called
Principal.
"Reinvestment Yield" means, with respect to the Called Principal of any Note
of any Series, 0.50% over the yield to maturity implied by (i) the yields
reported, as of 10:00 A.M. (New York City time) on the second Business Day
preceding the Settlement Date with respect to such Called Principal, on the
display designated as "Page PX1" on the Bloomberg Financial Markets Services
Screen (or such other display as may replace Page PX1 on the Bloomberg
Financial Markets Services Screen) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date, or (ii) if such yields are not
reported as of such time or the yields reported as of such time are not
ascertainable, the Treasury Constant Maturity Series Yields reported, for the
latest day for which such yields have been so reported as of the second
Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a constant maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield will be determined,
if necessary, by (a) converting U.S. Treasury bill quotations to
bond-equivalent yields in accordance with accepted financial practice and
(b) interpolating linearly between (1) the actively traded U.S. Treasury
security with the maturity closest to and greater than the Remaining Average
Life and (2) the actively traded U.S. Treasury security with the maturity
closest to and less than the Remaining Average Life.
"Remaining Average Life" means, with respect to any Called Principal, the
number of years (calculated to the nearest one-twelfth year) obtained by
dividing (i) such Called Principal into (ii) the sum of the products obtained
by multiplying (a) the principal component of each Remaining Scheduled Payment
with respect to such Called Principal by (b) the number of years (calculated
to the nearest one-twelfth year) that will elapse between the Settlement Date
with respect to such Called Principal and the scheduled due date of such
Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect to the Called Principal of
any Note of any Series, all payments of such Called Principal and interest
thereon that would be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal were made prior to its
scheduled due date, provided that if such Settlement Date is not a date on
which interest payments are due to be made under the terms of the Notes of
such Series, then the amount of the next succeeding scheduled interest payment
will be reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Sections 8.2, 8.7 or
12.1.
"Settlement Date" means, with respect to the Called Principal of any Note of
any Series, the date on which such Called Principal is to be prepaid pursuant
to Sections 8.2 or 8.7 or has become or is declared to be immediately due and
payable pursuant to Section 12.1, as the context requires.
Section 8.7. Prepayment upon Change in Control. (a) Notice of Change in
Control or Control Event. The Company will, within two Business Days after
any Responsible Officer has knowledge of the occurrence of any Change in
Control or Control Event, give written notice of such Change in Control or
Control Event to each holder of Notes unless notice in respect of such Change
in Control (or the Change in Control contemplated by such Control Event) shall
have been given pursuant to subparagraph (b) of this Section 8.7. If a Change
in Control has occurred, such notice shall contain and constitute an offer to
prepay the Notes as described in subparagraph (c) of this Section 8.7 and
shall be accompanied by the certificate described in subparagraph (g) of this
Section 8.7.
(b) Condition to Company Action. The Company will not take any action that
consummates or finalizes a Change in Control unless (i) at least 15 days prior
to such action the Company shall have given to each holder of Notes written
notice containing and constituting an offer to prepay the Notes as described
in subparagraph (c) of this Section 8.7, accompanied by the certificate
described in subparagraph (g) of this Section 8.7, and (ii) contemporaneously
with such action, the Company prepays all Notes required to be prepaid in
accordance with this Section 8.7.
(c) Offer to Prepay Notes. The offer to prepay the Notes contemplated by
subparagraphs (a) and (b) of this Section 8.7 shall be an offer to prepay, in
accordance with and subject to this Section 8.7, all, but not less than all,
of the Notes held by each holder on a date specified in such offer (the
"Proposed Prepayment Date"). If such Proposed Prepayment Date is in
connection with an offer contemplated by subparagraph (a) of this Section 8.7,
such date shall be not less than 20 days and not more than 30 days after the
date of such offer.
(d) Acceptance; Rejection. A holder of Notes may accept or reject the offer
to prepay made pursuant to this Section 8.7 by causing a notice of such
acceptance or rejection to be delivered to the Company at least five days
prior to the Proposed Prepayment Date. A failure by a holder of Notes to
respond to an offer to prepay made pursuant to this Section 8.7 shall be
deemed to constitute acceptance of such offer by such holder.
(e) Prepayment. Prepayment of the Notes pursuant to this
Section 8.7 shall be at 100% of the principal amount of all Notes held by the
holder or holders accepting the Company' offer to prepay such Notes, plus a
premium equal to the Make-Whole Amount which would have been payable if the
Notes had been prepaid in accordance with Section 8.2, determined for such
prepayment date with respect to such principal amount, together with interest
on such Notes accrued to the date of prepayment. Two Business Days preceding
the date of prepayment, the Company shall deliver to each holder of Notes
being prepaid a statement showing the Make-Whole Amount due in connection with
such prepayment and setting forth the details of the computation of such
amount. The prepayment shall be made on the Proposed Prepayment Date except
as provided in subparagraph (f) of this Section 8.7.
(f) Deferral Pending Change in Control. The obligation of the Company to
prepay the Notes pursuant to the offers required by subparagraph (b) and
accepted in accordance with subparagraph (d) of this Section 8.7 is subject to
the occurrence of the Change in Control in respect of which such offers and
acceptances shall have been made. In the event that such Change in Control
does not occur on the Proposed Prepayment Date in respect thereof, the
prepayment shall be deferred until and shall be made on the date on which such
Change in Control occurs. The Company shall keep each holder of Notes
reasonably and timely informed of (i) any such deferral of the date of
prepayment, (ii) the date on which such Change in Control and the prepayment
are expected to occur, and (iii) any determination by the Company that efforts
to effect such Change in Control have ceased or been abandoned (in which case
the offers and acceptances made pursuant to this Section 8.7 in respect of
such Change in Control shall be deemed rescinded).
(g) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 8.7 shall be accompanied by a certificate, executed by a Senior
Financial Officer of the Company and dated the date of such offer, specifying:
(i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to
this Section 8.7; (iii) the principal amount of each Note offered to be
prepaid; (iv) the estimated Make-Whole Amount, if any, due in connection with
such prepayment (calculated as if the date of such Proposed Prepayment Date
were the date of the prepayment) setting forth the details of such
computation; (v) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (vi) that the conditions of
this Section 8.7 have been fulfilled; and (vii) in reasonable detail, the
nature and date or proposed date of the Change in Control.
(h) Effect on Required Payments. The amount of each payment of the principal
of the Notes made pursuant to this Section 8.7 shall be applied against and
reduce each of the then remaining principal payments due in respect of the
Notes of the applicable series pursuant to Section 2.1 by a percentage equal
to the aggregate principal amount of the Notes of such series so paid divided
by the aggregate principal amount of the Notes of such series outstanding
immediately prior to such payment.
(i) Terms Defined. The terms set forth below shall have the respective
meanings assigned thereto:
The term "Change in Control" means each and every issue, sale or other
disposition of shares of stock of the Company which results in any Person or
group of Persons acting in concert, other than any Designated Shareholders,
beneficially owning or controlling, directly or indirectly, more than 50% (by
number of votes) of the Voting Stock of the Company.
The term "control" means the possession of power to direct or cause the
direction of management and policies of such entity, whether through the
ownership of an equity interest, by contract or otherwise.
The term "Control Event" means:
(i)the execution by the Company or any of its Restricted Subsidiaries
or Affiliates of any agreement or letter of intent with respect to
any proposed transaction or event or series of transactions or events
which, individually or in the aggregate, may reasonably be expected
to result in a Change in Control,
(ii)the execution of any written agreement which, when fully
performed by the parties thereto, would result in a Change in
Control, or
(iii)the making of any written offer by any person (as such term is
used in section 13(d) and section 14(d)(2) of the Exchange Act), or
related persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act) to the holders of the Voting Stock of
the Company, which offer, if accepted by the requisite number of
holders, would result in a Change in Control.
The term "Current Management Team" shall mean Roy E. Parrott, Jeoffrey A.
Burris, Vinod Khilnani, Kathryn L. Williams, James A. Hug, James B. Painter
and James E. Garpow.
The term "Designated Shareholders" shall mean (i) the members of the Current
Management Team; (ii) the Principal Shareholders; (iii) the spouses, lineal
descendants and spouses of the lineal descendants of the Persons named in
clause (i); (iv) the estates or legal representatives of the Persons named in
clause (i); and (v) any trust, custodianship or other fiduciary arrangement in
respect of which one or more of the Persons described in clauses (i) and (iii)
are the principal beneficiaries and such Person or Persons shall have control
of such trust, custodianship or other fiduciary arrangement.
The term "Principal Shareholders" shall mean Pioneering Management Group, J.P.
Morgan & Co., Incorporated and Farmers Group Inc.
SECTION 9. AFFIRMATIVE COVENANTS. The Company covenants that so long as any
of the Notes are outstanding:
Section 9.1. Compliance with Law. The Company will and will cause each of its
Restricted Subsidiaries to comply with all laws, ordinances or governmental
rules or regulations to which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain in effect all
licenses, certificates, permits, franchises and other governmental
authorizations necessary to the ownership of their respective properties or to
the conduct of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws, ordinances or
governmental rules or regulations or failures to obtain or maintain in effect
such licenses, certificates, permits, franchises and other governmental
authorizations could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will and will cause each of its
Restricted Subsidiaries to maintain, with financially sound and reputable
insurers, insurance with respect to their respective properties and businesses
against such casualties and contingencies, of such types, on such terms and in
such amounts (including deductibles, co-insurance and self-insurance, if
adequate reserves are maintained with respect thereto) as is customary in the
case of entities of established reputations engaged in the same or a similar
business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will and will cause each
of its Restricted Subsidiaries to maintain and keep, or cause to be maintained
and kept, their respective properties in good repair, working order and
condition (other than ordinary wear and tear), so that the business carried on
in connection therewith may be properly conducted at all times, provided that
this Section shall not prevent the Company or any Restricted Subsidiary from
discontinuing the operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its business and the
Company has concluded that such discontinuance could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will and will cause
each of its Subsidiaries to file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to
the extent such taxes and assessments have become due and payable and before
they have become delinquent and all claims for which sums have become due and
payable that have or might become a Lien on properties or assets of the
Company or any Subsidiary, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment or claims if (i) the amount,
applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
the Company or a Subsidiary has established adequate reserves therefor in
accordance with GAAP on the books of the Company or such Subsidiary or
(ii) the nonpayment of all such taxes and assessments in the aggregate could
not reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, etc. The Company will at all times preserve
and keep in full force and effect its corporate existence. Subject to
Sections 10.5 and 10.6, the Company will at all times preserve and keep in
full force and effect the corporate existence of each of its Restricted
Subsidiaries (unless merged into the Company or a Restricted Subsidiary) and
all rights and franchises of the Company and its Restricted Subsidiaries
unless, in the good faith judgment of the Company, the termination of or
failure to preserve and keep in full force and effect such corporate
existence, right or franchise could not, individually or in the aggregate,
have a Material Adverse Effect.
Section 9.6. Designation of Unrestricted Subsidiaries. The Company will at
all times cause (i) the consolidated assets of the Company and its Restricted
Subsidiaries to constitute not less than 90% of the consolidated assets of the
Company and its Subsidiaries, and (ii) the Consolidated Net Income of the
Company and its Restricted Subsidiaries to constitute not less than 90% of the
consolidated net income of the Company and its Subsidiaries. Subject to the
limitations set forth in the immediately preceding sentence, the Company may
from time to time cause any Subsidiary to be designated as an Unrestricted
Subsidiary or any Unrestricted Subsidiary to be designated a Restricted
Subsidiary, provided, however, that at the time of such designation and
immediately thereafter and after giving effect thereto, (a) no Default or
Event of Default would exist under the terms of this Agreement, and (b) the
Company and its Restricted Subsidiaries would be in compliance with all of the
covenants set forth in this Section 9 and Section 10 if tested on the date of
such action and provided, further, that once a Restricted Subsidiary has been
designated an Unrestricted Subsidiary, it shall not thereafter be redesignated
as a Restricted Subsidiary without the approval (which will not be
unreasonably withheld) of the holders of 51% in aggregate principal amount of
the Notes then outstanding. Within ten (10) days following any designation
described above, the Company will deliver to you a notice of such designation
accompanied by a certificate signed by a Senior Financial Officer of the
Company certifying compliance with all requirements of this Section 9.6 and
setting forth all information required in order to establish such compliance.
Section 9.7. Financial Records. The Company will, and will cause its
Subsidiaries to, keep true and correct books of records and accounts in which
full and correct entries will be made of all of its business transactions, and
will reflect in its financial statements adequate accruals and appropriations
to reserves, all in accordance with GAAP.
SECTION 10. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Consolidated Net Worth. The Company will not, at any time,
permit Consolidated Net Worth to be less than the sum of (a) $95,000,000, plus
(b) 25% of its aggregate Consolidated Net Income (but only if a positive
number) for the period beginning on July 1, 1997 and ending at the end of the
then most recently completed fiscal year of the Company (or if such date of
determination is the last day of any fiscal year, then ending on such date),
computed on a cumulative basis for such entire period.
Section 10.2. Limitations on Debt. The Company will not, and will not permit
any Restricted Subsidiary to, create, assume or incur or in any manner be or
become liable in respect of any Consolidated Debt, except:
(a) Debt evidenced by the Notes;
(b) Consolidated Debt of the Company and its Restricted Subsidiaries
outstanding on the Closing Date and reflected on Schedule 5.15 hereto;
(c) additional Consolidated Debt of the Company and its Restricted
Subsidiaries, provided that at the time of issuance thereof and after giving
effect thereto and to the application of the proceeds thereof:
(i) no Default or Event of Default exists;
(ii) Consolidated Debt does not exceed 3.5 times EBITDA for the then
most recently ended period of four consecutive fiscal quarters of the
Company; and
(iii) in the case any such Debt is Priority Debt, such Debt is
permitted by Section 10.3.
Any corporation which becomes a Restricted Subsidiary after the date of this
Agreement shall, for all purposes of this Section 10.2, be deemed to have
created, assumed or incurred, at the time it becomes a Restricted Subsidiary,
all Debt of such corporation existing immediately after it becomes a
Restricted Subsidiary.
Section 10.3. Limitations on Priority Debt. The Company will not at any time
permit the aggregate principal amount of Priority Debt to exceed 15% of Total
Capitalization as of the last day of the then most recently ended fiscal
quarter of the Company.
Section 10.4. Limitation on Liens. The Company will not, and will not permit
any of its Restricted Subsidiaries to, directly or indirectly create, incur,
assume or permit to exist (upon the happening of a contingency or otherwise)
any Lien on or with respect to any Property or asset (including, without
limitation, any document or instrument in respect of goods or accounts
receivable) of the Company or any such Restricted Subsidiary, whether now
owned or held or hereafter acquired, or any income or profits therefrom, or
assign or otherwise convey any right to receive income or profits, except:
(a) Liens for taxes, assessments or other governmental charges which are not
yet due and payable or the payment of which is not at the time required by
Section 9.4;
(b) any attachment or judgment Lien, unless the judgment it secures shall not,
within 30 days after the entry thereof, have been discharged or execution
thereof stayed pending appeal, or shall not have been discharged within 30
days after the expiration of any such stay (or such lesser period of time as
applicable law allows a judgment creditor to levy on such judgment);
(c) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other similar Liens, in each case, incurred in the
ordinary course of business for sums not yet due and payable or the payment of
which is not at the time required by Section 9.4;
(d) Liens (other than any Lien imposed by ERISA) incurred or deposits made in
the ordinary course of business (i) in connection with workers' compensation,
unemployment insurance and other types of social security or retirement
benefits, or (ii) to secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds, appeal bonds,
bids, leases (other than Capitalized Leases), performance bonds, purchase,
construction or sales contracts and other similar obligations, in each case
not incurred or made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase price of
Property;
(e) Liens existing on the date of this Agreement and securing the Debt of the
Company and its Restricted Subsidiaries referred to in Schedule 5.15 hereto;
(f) any Lien created to secure all or any part of the purchase price, or to
secure Debt incurred or assumed to pay all or any part of the purchase price
or cost of construction, of Property (other than accounts receivable or
inventory), or any improvement thereon, acquired or constructed by the Company
or a Restricted Subsidiary after the date of this Agreement, provided that (i)
any such Lien shall extend solely to the item or items of such Property (or
improvement thereon) so acquired or constructed and, if required by the terms
of the instrument originally creating such Lien, other Property (or
improvement thereon) which is an improvement to or is acquired for specific
use in connection with such acquired or constructed Property (or improvement
thereon) or which is real Property being improved by such acquired or
constructed Property (or improvement thereon),
(ii)the principal amount of the Debt secured by any such Lien shall at no time
exceed an amount equal to the lesser of (A) the cost to the Company or such
Restricted Subsidiary of the Property (or improvement thereon) so acquired or
constructed and (B) the Fair Market Value (as determined in good faith by the
board of directors of the Company) of such Property (or improvement thereon)
at the time of such acquisition or construction, and
(iii) any such Lien shall be created contemporaneously with the acquisition or
construction of such Property; and
(g) in addition to the Liens permitted by the preceding clauses (a)
through (f), inclusive, of this Section 10.4, Liens on Property (other than
accounts receivable or inventory of any Company) securing Priority Debt of the
Company or any Restricted Subsidiary, provided that such Priority Debt shall
be permitted by the applicable limitations set forth in Section 10.2 and 10.3.
Section 10.5. Merger, Consolidation, etc. The Company will not, and will not
permit any of its Restricted Subsidiaries to, consolidate with or merge with
any other Person or convey, transfer or lease substantially all of its assets
in a single transaction or series of transactions to any Person (except that a
Restricted Subsidiary of the Company may (x) consolidate with or merge with,
or convey, transfer or lease substantially all of its assets in a single
transaction or series of transactions to, the Company or a Wholly-Owned
Restricted Subsidiary of the Company or (y) convey, transfer or lease all of
its assets in compliance with the provisions of Section 10.6), provided that
the foregoing restriction does not apply to the consolidation or merger of the
Company with, or the conveyance, transfer or lease of substantially all of the
assets of the Company in a single transaction or series of transactions to,
any Person so long as:
(a) the successor formed by such consolidation or the survivor of such merger
or the Person that acquires by conveyance, transfer or lease substantially all
of the assets of the Company as an entirety, as the case may be (the
"Successor Corporation"), shall be a solvent corporation organized and
existing under the laws of the United States of America, any State thereof or
the District of Columbia;
(b) if the Company is not the Successor Corporation, such corporation shall
have executed and delivered to each holder of Notes its assumption of the due
and punctual performance and observance of each covenant and condition of this
Agreement and the Notes (pursuant to such agreements and instruments as shall
be reasonably satisfactory to the Required Holders), and the Company shall
have caused to be delivered to each holder of Notes an opinion of nationally
recognized independent counsel, to the effect that all agreements or
instruments effecting such assumption are enforceable in accordance with their
terms and comply with the terms hereof; and
(c) immediately after giving effect to such transaction:
(i) no Default or Event of Default would exist, and
(ii) the Successor Corporation would be permitted by the provisions
of Section 10.2 hereof to incur at least $1.00 of additional Debt
owing to a Person other than a Restricted Subsidiary of the Successor
Corporation.
No such conveyance, transfer or lease of substantially all of the assets of
the Company shall have the effect of releasing the Company or any Successor
Corporation from its liability under this Agreement or the Notes.
Section 10.6. Sales of Assets. Except as permitted under
Section 10.5, the Company will not, and will not permit any of its Restricted
Subsidiaries to, make any Asset Disposition unless:
(a) in the good faith opinion of the Company, the Asset Disposition is in
exchange for consideration having a Fair Market Value at least equal to that
of the Property exchanged and is in the best interest of the Company or such
Restricted Subsidiary; and
(b) immediately after giving effect to the Asset Disposition,
(i) the Company could incur $1 of additional Consolidated Debt
pursuant to Section 10.2(c), and (ii) no Default or Event of Default
would exist; and
(c) immediately after giving effect to the Asset Disposition:
(i) the Disposition Value of all Property that was the subject of any
Asset Disposition occurring in any period of four consecutive fiscal
quarters of the Company then next ending would not exceed 10% of
Consolidated Total Assets as of the last day of the then most
recently ended fiscal quarter of the Company, and
(ii) the Disposition Value of all Property that was the subject of
any Asset Disposition occurring on or after the date of this
Agreement would not exceed 25% of Consolidated Total Assets as of the
last day of the then most recently ended fiscal quarter of the
Company.
If the Net Proceeds Amount for any Transfer is applied to a Debt Prepayment
Application contemporaneously with such Transfer or a Property Reinvestment
Application within one year of such Transfer, then such Transfer, only for the
purpose of determining compliance with subsection (c) of this Section 10.6 as
of any date on or after the Net Proceeds Amount is so applied, shall be deemed
not to be an Asset Disposition.
Section 10.7. Long Term Lease Rentals. The Company will not, at any time,
permit Long Term Lease Rentals for any current or future period of 12
consecutive calendar months to exceed 10% of Total Capitalization as of the
last day of the then most recently ended fiscal quarter of the Company.
Section 10.8. Nature of Business. Neither the Company nor any Restricted
Subsidiary will engage in any business if, as a result, the general nature of
the business, taken on a consolidated basis, which would then be engaged in by
the Company and its Restricted Subsidiaries would be substantially changed
from the general nature of the business engaged in by the Company and its
Restricted Subsidiaries on the date of this Agreement.
Section 10.9. Transactions with Affiliates. The Company will not and will not
permit any Restricted Subsidiary to enter into directly or indirectly any
transaction or Material group of related transactions (including without
limitation the purchase, lease, sale or exchange of properties of any kind or
the rendering of any service) with any Affiliate (other than the Company or
another Restricted Subsidiary), except in the ordinary course and pursuant to
the reasonable requirements of the Company's or such Restricted Subsidiary's
business and upon fair and reasonable terms no less favorable to the Company
or such Restricted Subsidiary than would be obtainable in a comparable
arm's-length transaction with a Person not an Affiliate.
SECTION 11. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or events
shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount,
if any, on any Note when the same becomes due and payable, whether at maturity
or at a date fixed for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more
than five Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any covenant
contained in Sections 10.1 through 10.7, inclusive; or
(d) the Company defaults in the performance of or compliance with any covenant
contained herein (other than those referred to in paragraphs (a), (b) and (c)
of this Section 11) and such default is not remedied within 30 days after the
earlier of (i) a Responsible Officer obtaining actual knowledge of such
default and (ii) the Company receiving written notice of such default from any
holder of a Note (any such written notice to be identified as a "notice of
default" and to refer specifically to this paragraph (d) of Section 11); or
(e) any representation or warranty made in writing by or on behalf of the
Company or a Restricted Subsidiary or by any officer of the Company or a
Restricted Subsidiary in this Agreement or in any writing furnished in
connection with the transactions contemplated hereby proves to have been false
or incorrect in any Material respect on the date as of which made; or
(f)(i) the Company or any Restricted Subsidiary is in default (as principal or
as guarantor or other surety) in the payment of any principal of or premium or
make-whole amount or interest on any Debt that is outstanding in an aggregate
principal amount of at least $5,000,000 beyond any period of grace provided
with respect thereto, or (ii) the Company or any Restricted Subsidiary is in
default in the performance of or compliance with any term of any evidence of
any Debt in an aggregate outstanding principal amount of at least $5,000,000
or of any mortgage, indenture or other agreement relating thereto or any other
condition exists, and as a consequence of such default or condition such Debt
has become, or has been declared, due and payable before its stated maturity
or before its regularly scheduled dates of payment, or (iii) as a consequence
of the occurrence or continuation of any event or condition (other than the
passage of time or the right of the holder of Debt to convert such Debt into
equity interests), the Company or any Restricted Subsidiary has become
obligated to purchase or repay Debt before its regular maturity or before its
regularly scheduled dates of payment in an aggregate outstanding principal
amount of at least $5,000,000; or
(g) the Company or any Material Restricted Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they become
due, (ii) files, or consents by answer or otherwise to the filing against it
of, a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any
jurisdiction, (iii) makes an assignment for the benefit of its creditors,
(iv) consents to the appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with respect to any
substantial part of its property, (v) is adjudicated as insolvent or to be
liquidated, or (vi) takes corporate action for the purpose of any of the
foregoing; or
(h) a court or governmental authority of competent jurisdiction enters an
order appointing, without consent by the Company or any of its Restricted
Subsidiaries, a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, or constituting an order for relief or approving a petition for
relief or reorganization or any other petition in bankruptcy or for
liquidation or to take advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or liquidation of the
Company or any of its Material Restricted Subsidiaries, or any such petition
shall be filed against the Company or any of its Material Restricted
Subsidiaries and such petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in
excess of $5,000,000 are rendered against one or more of the Company and its
Restricted Subsidiaries and which judgments are not, within 60 days after
entry thereof, bonded, discharged or stayed pending appeal (or such lesser
period of time as applicable law or rules of court allow a judgment creditor
to levy on such judgments), or are not discharged within 60 days after the
expiration of such stay (or such lesser period of time as applicable law or
rules of court allow a judgment creditor to levy on such judgments); or
(j) if (i) any Plan shall fail to satisfy the minimum funding standards of
ERISA or the Code for any plan year or part thereof or a waiver of such
standards or extension of any amortization period is sought or granted under
section 412 of the Code, (ii) a notice of intent to terminate any Plan shall
have been or is reasonably expected to be filed with the PBGC or the PBGC
shall have instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a subject of any such
proceedings, (iii) the aggregate "amount of unfunded benefit liabilities"
(within the meaning of section 4001(a)(18) of ERISA) under all Plans,
determined in accordance with Title IV of ERISA, shall exceed $1,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is reasonably
expected to incur any liability pursuant to Title I or IV of ERISA or the
penalty or excise tax provisions of the Code relating to employee benefit
plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan, or (vi) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner that would increase the liability of the Company or any Subsidiary
thereunder; and any such event or events described in clauses (i) through (vi)
above, either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
SECTION 12. REMEDIES ON DEFAULT, ETC.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the
Company described in paragraph (g) or (h) of Section 11 (other than an Event
of Default described in clause (i) of paragraph (g) or described in clause
(vi) of paragraph (g) by virtue of the fact that such clause encompasses
clause (i) of paragraph (g)) has occurred, all the Notes then outstanding
shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any holder
or holders of more than 51% in principal amount of the Notes at the time
outstanding may at any time at its or their option, by notice or notices to
the Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 11
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it
or them to be immediately due and payable.
Upon any Note becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the
entire unpaid principal amount of such Note, plus (x) all accrued and unpaid
interest thereon and (y) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all
be immediately due and payable, in each and every case without presentment,
demand, protest or further notice, all of which are hereby waived. The
Company acknowledges, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free from repayment by
the Company (except as herein specifically provided for), and that the
provision for payment of a Make-Whole Amount by the Company in the event that
the Notes are prepaid or are accelerated as a result of an Event of Default,
is intended to provide compensation for the deprivation of such right under
such circumstances.
Section 12.2. Other Remedies. If any Default or Event of Default has occurred
and is continuing, and irrespective of whether any Notes have become or have
been declared immediately due and payable under Section 12.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
Section 12.3. Rescission. At any time after any Notes have been declared due
and payable pursuant to clause (b) or (c) of
Section 12.1, the holders of not less than 51% in principal amount of the
Notes then outstanding, by written notice to the Company, may rescind and
annul any such declaration and its consequences if (a) the Company has paid
all overdue interest on the Notes, all principal of and Make-Whole Amount, if
any, on any Notes that are due and payable and are unpaid other than by reason
of such declaration, and all interest on such overdue principal and Make-Whole
Amount, if any, and (to the extent permitted by applicable law) any overdue
interest in respect of the Notes, at the Default Rate, (b) all Events of
Default and Defaults, other than non-payment of amounts that have become due
solely by reason of such declaration, have been cured or have been waived
pursuant to Section 17, and (c) no judgment or decree has been entered for the
payment of any monies due pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect any subsequent
Event of Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, etc. No course
of dealing and no delay on the part of any holder of any Note in exercising
any right, power or remedy shall operate as a waiver thereof or otherwise
prejudice such holder's rights, powers or remedies. No right, power or remedy
conferred by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or therein or
now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the Company
will pay to the holder of each Note on demand such further amount as shall be
sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys' fees, expenses and disbursements.
SECTION 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 13.1. Registration of Notes. The Company shall keep at its principal
executive office a register for the registration and registration of transfers
of Notes. The name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be
registered shall be deemed and treated as the owner and holder thereof for all
purposes hereof, and the Company shall not be affected by any notice or
knowledge to the contrary. The Company shall give to any holder of a Note
that is an Institutional Investor promptly upon request therefor, a complete
and correct copy of the names and addresses of all registered holders of
Notes.
Section 13.2. Transfer and Exchange of Notes. Upon surrender of any Note at
the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by
the registered holder of such Note or its attorney duly authorized in writing
and accompanied by the address for notices of each transferee of such Note or
part thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially
in the form of Exhibit 1. Each such new Note shall be dated and bear interest
from the date to which interest shall have been paid on the surrendered Note
or dated the date of the surrendered Note if no interest shall have been paid
thereon. The Company may require payment of a sum sufficient to cover any
stamp tax or governmental charge imposed in respect of any such transfer of
Notes. Notes shall not be transferred in denominations of less than $500,000,
provided that if necessary to enable the registration of transfer by a holder
of its entire holding of Notes, one Note may be in a denomination of less than
$500,000. Any transferee, by its acceptance of a Note registered in its name
(or the name of its nominee), shall be deemed to have made the representation
set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or another holder of a Note with a minimum
net worth of at least $10,000,000, such Person's own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof, the
Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date
of such lost, stolen, destroyed or mutilated Note if no interest shall have
been paid thereon.
SECTION 14. PAYMENTS ON NOTES.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in Chicago, Illinois at the principal office of ABN
AMRO Bank N.V. in such jurisdiction. The Company may at any time, by notice
to each holder of a Note, change the place of payment of the Notes so long as
such place of payment shall be either the principal office of the Company in
such jurisdiction or the principal office of a bank or trust company in such
jurisdiction.
Section 14.2. Home Office Payment. So long as you or your nominee shall be
the holder of any Note, and notwithstanding anything contained in Section 14.1
or in such Note to the contrary, the Company will pay all sums becoming due on
such Note for principal, Make-Whole Amount, if any, and interest by the method
and at the address specified for such purpose below your name in Schedule A,
or by such other method or at such other address as you shall have from time
to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, you shall
surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 14.1.
Prior to any sale or other disposition of any Note held by you or your nominee
you will, at your election, either endorse thereon the amount of principal
paid thereon and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new Note or Notes
pursuant to Section 13.2. The Company will afford the benefits of this
Section 14.2 to any Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement and that has made
the same agreement relating to such Note as you have made in this
Section 14.2.
SECTION 15. EXPENSES, ETC.
Section 15.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all costs and
expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of
this Agreement or the Notes (whether or not such amendment, waiver or consent
becomes effective), including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce
or defend) any rights under this Agreement or the Notes or in responding to
any subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder of
any Note, and (b) the costs and expenses, including financial advisors' fees,
incurred in connection with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses, if any, of brokers and finders (other
than those retained by you).
Section 15.2. Survival. The obligations of the Company under this Section 15
will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes, and the termination
of this Agreement.
SECTION 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or
transfer by you of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a
Note, regardless of any investigation made at any time by or on behalf of you
or any other holder of a Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed representations and warranties of the Company under
this Agreement. Subject to the preceding sentence, this Agreement and the
Notes embody the entire agreement and understanding between you and the
Company and supersede all prior agreements and understandings relating to the
subject matter hereof.
SECTION 17. AMENDMENT AND WAIVER.
Section 17.1. Requirements. This Agreement and the Notes may be amended, and
the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of
the Company and the Required Holders, except that (a) no amendment or waiver
of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any
defined term (as it is used therein), will be effective as to you unless
consented to by you in writing, and (b) no such amendment or waiver may,
without the written consent of the holder of each Note at the time outstanding
affected thereby, (i) subject to the provisions of Section 12 relating to
acceleration or rescission, change the amount or time of any prepayment or
payment of principal of, or change the rate or change the time of payment or
method of computation of interest or of the Make-Whole Amount on, the Notes,
(ii) change the percentage of the principal amount of the Notes the holders of
which are required to consent to any such amendment or waiver, or (iii) amend
any of Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required,
to enable such holder to make an informed and considered decision with respect
to any proposed amendment, waiver or consent in respect of any of the
provisions hereof or of the Notes. The Company will deliver executed or true
and correct copies of each amendment, waiver or consent effected pursuant to
the provisions of this Section 17 to each holder of outstanding Notes promptly
following the date on which it is executed and delivered by, or receives the
consent or approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into by any holder of
Notes or any waiver or amendment of any of the terms and provisions hereof
unless such remuneration is concurrently paid, or security is concurrently
granted, on the same terms, ratably to each holder of Notes then outstanding
even if such holder did not consent to such waiver or amendment.
Section 17.3. Binding Effect, etc. Any amendment or waiver consented to as
provided in this Section 17 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly
amended or waived or impair any right consequent thereon. No course of
dealing between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate as a waiver of
any rights of any holder of such Note. As used herein, the term "this
Agreement" and references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4. Notes Held by Company, etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not
to be outstanding.
SECTION 18. NOTICES.
All notices and communications provided for hereunder shall be in writing and
sent (a) by telefacsimile if the sender on the same day sends a confirming
copy of such notice by a recognized overnight delivery service (charges
prepaid), or (b) by registered or certified mail with return receipt requested
(postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified for such
communications in Schedule A, or at such other address as you or it shall have
specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as
such other holder shall have specified to the Company in writing, or
(iii) if to the Company, to the Company at its address set forth at the
beginning hereof to the attention of the President, or at such other address
as the Company shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually
received.
SECTION 19. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other similar process and you may destroy any original document so reproduced.
The Company agrees and stipulates that, to the extent permitted by applicable
law, any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made by you
in the regular course of business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
This Section 19 shall not prohibit the Company or any other holder of Notes
from contesting any such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate the inaccuracy of
any such reproduction.
SECTION 20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to you by or on behalf of the Company or any Subsidiary
in connection with the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature and that was clearly marked or
labeled or otherwise adequately identified when received by you as being
confidential information of the Company or such Subsidiary, provided that such
term does not include information that (a) was publicly known or otherwise
known to you prior to the time of such disclosure, (b) subsequently becomes
publicly known through no act or omission by you or any person acting on your
behalf, (c) otherwise becomes known to you other than through disclosure by
the Company or any Subsidiary or (d) constitutes financial statements
delivered to you under Section 7.1 that are otherwise publicly available. You
will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect
confidential information of third parties delivered to you, provided that you
may deliver or disclose Confidential Information to (i) your directors,
trustees, officers, employees, agents, attorneys and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by your Notes), (ii) your financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20,
(iii) any other holder of any Note, (iv) any Institutional Investor to which
you sell or offer to sell such Note or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20),
(v) any Person from which you offer to purchase any security of the Company
(if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20),
(vi) any federal or state regulatory authority having jurisdiction over you,
(vii) the National Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency that requires access
to information about your investment portfolio or (viii) any other Person to
which such delivery or disclosure may be necessary or appropriate (w) to
effect compliance with any law, rule, regulation or order applicable to you,
(x) in response to any subpoena or other legal process, (y) in connection with
any litigation to which you are a party or (z) if an Event of Default has
occurred and is continuing, to the extent you may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or
for the protection of the rights and remedies under your Notes and this
Agreement. Each holder of a Note, by its acceptance of a Note, will be deemed
to have agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On reasonable request
by the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this
Agreement or its nominee), such holder will enter into an agreement with the
Company embodying the provisions of this Section 20.
SECTION 21. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon
receipt of such notice, wherever the word "you" is used in this Agreement
(other than in this Section 21), such word shall be deemed to refer to such
Affiliate in lieu of you. In the event that such Affiliate is so substituted
as a purchaser hereunder and such Affiliate thereafter transfers to you all of
the Notes then held by such Affiliate, upon receipt by the Company of notice
of such transfer, wherever the word "you" is used in this Agreement (other
than in this Section 21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to you, and you shall have all the rights of an
original holder of the Notes under this Agreement.
SECTION 22. MISCELLANEOUS.
Section 22.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 22.2. Payments Due on Non-Business Days. Anything in this Agreement
or the Notes to the contrary notwithstanding, any payment of principal of or
Make-Whole Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest
payable on such next succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 22.4. Construction. Each covenant contained herein shall be construed
(absent express provision to the contrary) as being independent of each other
covenant contained herein, so that compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance
with any other covenant. Where any provision herein refers to action to be
taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 22.5. 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. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together signed by all, of
the parties hereto.
Section 22.6. Governing Law. This Agreement shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the
law of the State of Illinois excluding choice-of-law principles of the law of
such State that would require the application of the laws of a jurisdiction
other than such State.
* * * * *
If you are in agreement with the foregoing, please sign the form of agreement
on the accompanying counterpart of this Agreement and return it to the
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
SIMPSON INDUSTRIES, INC.
By
Its President
The foregoing is hereby agreed
to as of the date thereof.
By
Its
<PAGE>
<PAGE>
PRINCIPAL AMOUNT OF
NAME AND ADDRESS SERIES A NOTES
OF PURCHASER TO BE PURCHASED
The Northwestern Mutual $20,000,000
Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Attention: Securities Department
Telecopier Number: (414) 299-7124
PAYMENTS
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
"Simpson Industries, Inc., 7.03% Senior Notes, Series A, Due August 1, 2012,
PPN 829060 A@1, principal, premium or interest") to:
Bankers Trust Company (ABA #0210-01033)
16 Wall Street
Insurance Unit, 4th Floor
New York, New York 10005
for credit to: The Northwestern Mutual Life Insurance Company
Account Number 00-000-027
NOTICES
All notices and communications to be addressed as first provided above, except
notices with respect to payments and written confirmation of each such payment
to be addressed, Attention: Investment Operations.
NAME OF NOMINEE IN WHICH NOTES ARE TO BE ISSUED: None
TAXPAYER I.D. NUMBER: 39-0509570
<PAGE>
<PAGE>
PRINCIPAL AMOUNT OF
NAME AND ADDRESS SERIES A NOTES
OF PURCHASER TO BE PURCHASED
United of Omaha Life Insurance Company $5,000,000
Mutual of Omaha Plaza
Omaha, Nebraska 68175
Attention: Investment Division
Telefacsimile: (402) 978-2913
Confirmation: (402) 978-2583
PAYMENTS
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Simpson Industries, Inc., 7.03% Senior Notes, Series A, due August 1, 2012,
PPN 829060 A@1, principal, premium or interest") to:
First Bank, N.A.
ABA #1040-0002-9
17th & Farnam Streets
Omaha, Nebraska 68102
for credit to
United of Omaha Life Insurance Company
Account No. 1-4871447-0769
NOTICES
All notices and communications, to be addressed as first provided above,
except notices with respect to payment, and written confirmation of each such
payment, to be addressed: Attention: Investments/ Securities Accounting.
NAME OF NOMINEE IN WHICH NOTES ARE TO BE ISSUED: None
TAXPAYER I.D. #47-0322111.
<PAGE>
<PAGE>
PRINCIPAL AMOUNT OF
NAME AND ADDRESS SERIES A NOTES
OF PURCHASER TO BE PURCHASED
(Two Notes)
Allstate Life Insurance Company $8,000,000
3075 Sanders Road, STE G3A $7,000,000
Northbrook, Illinois 60062-7127
Attention: Private Placements Department
Telephone Number: (847) 402-4394
Telecopier Number: (847) 402-3092
PAYMENTS
All payments on or in respect of the Notes to be made by Fedwire transfer of
immediately available funds (identifying each payment as Simpson Industries,
Inc., DPP 829060 A#9, and the payment as principal, interest or premium) in
the exact format as follows:
BBK =Harris Trust and Savings Bank
ABA #071000288
BNF =Allstate Life Insurance Company
Collection Account #168-117-0
ORG =Simpson Industries, Inc.
OBI =DPP - 829060 A#9
Payment Due Date (for example, 08/01/12)
P ______ (enter "P" and the amount of principal being remitted,
for example, P5000000.00)
I ______ (enter "I" and the amount of interest being remitted,
for example, I225000.00)
NOTICES
All notices of scheduled payments and written confirmation of each such
payment, to be addressed:
Allstate Life Insurance Company
Investment Operations Private Placements
3075 Sanders Road, STE G4A
Northbrook, Illinois 60062-7127
Telephone: (847) 402-2769
Telecopy: (847) 326-5040
All financial reports, compliance certificates and all other written
communications, including notice of prepayments to be addressed as first
provided above.
NAME OF NOMINEE IN WHICH NOTES ARE TO BE ISSUED: None
TAXPAYER I.D. NUMBER: 36-2554642
<PAGE>
<PAGE>
PRINCIPAL AMOUNT OF
NAME AND ADDRESS SERIES A NOTES
OF PURCHASER TO BE PURCHASED
Chubb Colonial Life Insurance Company $5,000,000
P. O. Box 21008
Greensboro, North Carolina 27420
Attention: Securities Administration - 3630
Telefacsimile: (910) 691-3025
PAYMENTS
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Simpson Industries, Inc., 7.03% Senior Notes, Series A, due August 1, 2012,
PPN 829060 A@1, principal, premium or interest") to:
Chubb Colonial Life Insurance Company
c/o The Bank of New York
ABA #021 000 018 BNF: IOC566
Attention: P&I Department
NOTICES
All notices of payment on or in respect of the Notes and written confirmation
of each such payment, to be addressed to:
Chubb Colonial Life Insurance Company
c/o The Bank of New York
P. O. Box 19266
Newark, NJ 07195
with duplicate notice to Chubb Colonial Life Insurance Company at the address
first provided above.
All notices and communications other than those in respect to payments to be
addressed as first provided above.
NAME OF NOMINEE IN WHICH NOTES ARE TO BE ISSUED: None
TAXPAYER I.D. NUMBER: 22-0832760
<PAGE>
<PAGE>
PRINCIPAL AMOUNT OF
NAME AND ADDRESS SERIES A NOTES
OF PURCHASER TO BE PURCHASED
Chubb Life Insurance Company of America $5,000,000
P. O. Box 21008
Greensboro, North Carolina 27420
Attention: Securities Administration - 3630
Telefacsimile: (910) 691-3025
PAYMENTS
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Simpson Industries, Inc., 7.03% Senior Notes, Series A, due August 1, 2012,
PPN 829060 A@1, principal, premium or interest") to:
Chubb Life Insurance Company of America
c/o The Bank of New York
ABA #021 000 018 BNF: IOC566
Attention: P&I Department
NOTICES
All notices of payment on or in respect of the Notes and written confirmation
of each such payment, to be addressed to:
Chubb Life Insurance Company of America
c/o The Bank of New York
P. O. Box 19266
Newark, NJ 07195
with duplicate notice to Chubb Life Insurance Company of America at the
address first provided above.
All notices and communications other than those in respect to payments to be
addressed as first provided above.
NAME OF NOMINEE IN WHICH NOTES ARE TO BE ISSUED: None
TAXPAYER I.D. NUMBER: 62-0395665
<PAGE>
<PAGE>
DEFINED TERMS
As used herein, the following terms have the respective meanings set
forth below or set forth in the Section hereof following such term:
Acceptable Bank" means any bank or trust company (i) which is organized under
the laws of the United States of America or any State thereof or a
jurisdiction of any nation whose government is an Acceptable Foreign
Government (or any jurisdiction therein), (ii) which has capital, surplus and
undivided profits aggregating at least $250,000,000, and (iii) whose long-term
unsecured debt obligations (or the long-term unsecured debt obligations of the
bank holding company owning all of the capital stock of such bank or trust
company) shall have been given a rating of "A-" or better by Standard & Poor's
Rating Group, a division of The McGraw-Hill Companies, Inc., or "A3" or better
by Moody's Investors Service, Inc.
"Acceptable Broker-Dealer" means any Person other than a natural person
(i) which is registered as a broker or dealer pursuant to the Exchange Act,
and (ii) whose long-term unsecured debt obligations shall have been given a
rating of "A" or better by Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc., "A2" or better by Moody's Investors Service, Inc.
"Acceptable Foreign Government" means the government of any foreign nation
whose debt obligations are rated at least "A-" by Standard & Poor's Rating
Group, a division of The McGraw-Hill Companies, Inc., or at least "A3" by
Moody's Investors Service, Inc.
"Acquired Business Entity" means for any period of determination hereunder
(i) any business entity the assets and related liabilities of which have been
acquired substantially as an entirety by the Company or any Restricted
Subsidiary by purchase, merger or consolidation, and (ii) any other assets
which were operated as an identifiable business unit, i.e. a branch or
division of a business entity and which have been acquired substantially as an
entirety by the Company or any Restricted Subsidiary.
"Affiliate" means, at any time, and with respect to any Person, (a) any other
Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests. As used
in this definition, "Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Unless the context otherwise clearly requires, any reference to an
"Affiliate" is a reference to an Affiliate of the Company.
"Asset Disposition" means any Transfer except:
(a) any
(i) Transfer from a Restricted Subsidiary to the Company or a
Wholly-Owned Restricted Subsidiary;
(ii) Transfer from the Company to a Wholly-Owned Restricted
Subsidiary; and
(iii) Transfer from the Company to a Restricted Subsidiary (other
than a Wholly-Owned Restricted Subsidiary) or from a Restricted
Subsidiary to another Restricted Subsidiary (other than a
Wholly-Owned Restricted Subsidiary), which in either case is for Fair
Market Value,
so long as immediately before and immediately after the consummation
of any such Transfer and after giving effect thereto, no Default or
Event of Default exists; and
(b) any Transfer made in the ordinary course of business and
involving only Property that is either (i) inventory held for sale or
(ii) equipment, fixtures, supplies or materials no longer required in
the operation of the business of the Company or any of its Restricted
Subsidiaries or that is obsolete.
"Business Day" means (a) for the purposes of Section 8.6 only, any day other
than a Saturday, a Sunday or a day on which commercial banks in New York City
are required or authorized to be closed, and (b) for the purposes of any other
provision of this Agreement, any day other than a Saturday, a Sunday or a day
on which commercial banks in Detroit, Michigan, or New York City are required
or authorized to be closed.
"Capitalized Lease" shall mean any lease the obligation for Rentals with
respect to which is required to be capitalized on a consolidated balance sheet
of the lessee and its subsidiaries in accordance with GAAP.
"Change of Control" is defined in Section 8.7(i).
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to time,
and the rules and regulations promulgated thereunder from time to time.
"Company" means Simpson Industries, Inc., a Michigan corporation.
"Confidential Information" is defined in Section 20.
"Consolidated Debt" means the total amount of all Debt of the Company and its
Restricted Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"Consolidated Net Income" means for any period the net income of the Company
and its Restricted Subsidiaries, determined in accordance with GAAP on a
consolidated basis.
"Consolidated Net Worth" means, as of the date of any determination thereof,
(a) the total amount of Shareholders' Equity, minus
(b) all Restricted Investments.
"Consolidated Total Assets" means, as of the date of any determination
thereof, the total amount of assets of the Company and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Debt" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money;
(b) its liabilities for the deferred purchase price of Property
acquired by such Person (excluding accounts payable arising in the
ordinary course of business but including, without limitation, all
liabilities created or arising under any conditional sale or other
title retention agreement with respect to any such Property);
(c) all liabilities appearing on its balance sheet in accordance with
GAAP in respect of Capitalized Leases;
(d) all liabilities for borrowed money secured by any Lien with
respect to any Property owned by such Person (whether or not it has
assumed or otherwise become liable for such liabilities);
(e) all of its liabilities in respect of letters of credit or
instruments serving a similar function issued or accepted for its
account by banks and other financial institutions (whether or not
representing obligations for borrowed money);
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
Debt of any Person shall include all obligations of such Person of the
character described in clauses (a) through (g) to the extent such Person
remains legally liable in respect thereof notwithstanding that any such
obligation is deemed to be extinguished under GAAP.
"Debt Prepayment Application" means, with respect to any Transfer of Property,
the application by the Company or its Restricted Subsidiaries of cash in an
amount equal to the Net Proceeds Amount with respect to such Transfer to pay
Senior Debt of the Company, provided that in the course of making such
application the Company shall offer to prepay each outstanding Note in
accordance with Section 8.2(b) in a principal amount which equals the Ratable
Portion for such Note. If any holder of a Note rejects such offer of
prepayment, then, for purposes of the preceding sentence only, the Company
nevertheless will be deemed to have paid Senior Debt in an amount equal to the
Ratable Portion for such Note. "Ratable Portion" for any Note means an amount
equal to the product of (x) the Net Proceeds Amount being so applied to the
payment of Senior Debt multiplied by (y) a fraction the numerator of which is
the outstanding principal amount of such Note and the denominator of which is
the aggregate principal amount of all Senior Debt of the Company.
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means that rate of interest that is the greater of (i) 2% per
annum above the rate of interest stated in clause (a) of the first paragraph
of the Notes of the applicable series or (ii) 2% over the rate of interest
publicly announced by ABN AMRO Bank N.V. in Chicago, Illinois as its "base" or
"prime" rate.
"Disposition Value" means, at any time, with respect to any Property
(a) in the case of Property that does not constitute Subsidiary
Stock, the book value thereof, valued at the time of such disposition
in good faith by the Company, and
(b) in the case of Property that constitutes Subsidiary Stock, an
amount equal to that percentage of book value of the assets of the
Subsidiary that issued such stock as is equal to the percentage that
the book value of such Subsidiary Stock represents of the book value
of all of the outstanding capital stock of such Subsidiary (assuming,
in making such calculations, that all Securities convertible into
such capital stock are so converted and giving full effect to all
transactions that would occur or be required in connection with such
conversion) determined at the time of the disposition thereof, in
good faith by the Company.
"Divested Business Entity" means for any period of determination hereunder
(i) any business entity the assets and related liabilities of which have been
sold, disposed of or otherwise divested substantially as an entirety by the
Company or any Restricted Subsidiary, and (ii) any other assets which were
operated as an identifiable business unit, i.e. a branch or division of a
business entity and which have been sold, disposed of or otherwise divested
substantially as an entirety by the Company or any Restricted Subsidiary.
"EBITDA" means for any period the difference between (a) sum of
(i) Consolidated Net Income during such period plus (to the extent deducted in
determining Consolidated Net Income), (ii) all provisions for any Federal,
state or other income taxes made by the Company and its Restricted
Subsidiaries during such period, (iii) all Interest Charges on Consolidated
Debt (including the interest component on Rentals on Capital Leases), (iv) all
depreciation and amortization expense and all other non-cash charges or
expenses of the Company and its Restricted Subsidiaries during such period,
and (v) charge-offs or reductions in Consolidated Net Income (whether cash or
non cash in nature) resulting from the two plant closings described on page
six of the Memorandum in an aggregate amount of up to $10,000,000 during the
third quarter of 1997, and (b) the sum of (to the extent included in
determining Consolidated Net Income) (i) all interest income, and (ii) all
non-cash credits or income of the Company and its Restricted Subsidiaries
during such period. For purposes of determining EBITDA in connection with the
incurrence of any Debt in which the proceeds shall be used to fund the
acquisition of any Acquired Business Entity, EBITDA shall be computed on a pro
forma basis for such Acquired Business Entity during such period, provided
that such pro forma calculation shall be derived from audited financial
statements of the Acquired Business Entity (to the extent available) for such
period and other financial information reflecting the actual results of
operations for the Acquired Business Entity which shall be reasonably
satisfactory to the Required Holders. EBITDA shall exclude all amounts
attributable to any Divested Business Entity which has been divested by the
Company or any Restricted Subsidiary during such period.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or
the release of any materials into the environment, including but not limited
to those related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the rules and regulations promulgated thereunder from
time to time in effect.
"ERISA Affiliate" shall mean any corporation, trade or business that is, along
with the Company, a member of a controlled group of corporations or a
controlled group of trades or businesses, as described in Sections 414(b) and
414(c), respectively, of the Code or Section 4001 of ERISA.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means, at any time and with respect to any Property, the
sale value of such Property that would be realized in an arm's-length sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"GAAP" means generally accepted accounting principles as in effect from time
to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary
conducts all or any part of its business, or which asserts
jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial,
regulatory or administrative functions of, or pertaining to, any such
government.
"Governmental Security" means any direct obligations of, or obligation
guaranteed by, the United States of America or any Acceptable Foreign
Government or any agency or instrumentality thereof, so long as such
obligation or guarantee shall have the benefit of the full faith and credit of
the United States of America or such Acceptable Foreign Government, as the
case may be.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing or in effect guaranteeing
any indebtedness, dividend or other obligation of any other Person in any
manner, whether directly or indirectly, including (without limitation)
obligations incurred through an agreement, contingent or otherwise, by such
Person:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of
such indebtedness or obligation, or (ii) to maintain any working
capital or other balance sheet condition or any income statement
condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such indebtedness or
obligation;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such indebtedness
or obligation of the ability of any other Person to make payment of
the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation
against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor
under any Guaranty, the indebtedness or other obligations that are the subject
of such Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous wastes
or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation,
transfer, use, disposal, release, discharge, spillage, seepage, or filtration
of which is or shall be restricted, prohibited or penalized by any applicable
law (including, without limitation, asbestos, urea formaldehyde foam
insulation and polychlorinated biphenyls).
"Holder" means, with respect to any Note, the Person in whose name such Note
is registered in the register maintained by the Company pursuant to
Section 13.1.
"Institutional Investor" means (a) any original purchaser of a Note, (b) any
holder of a Note holding more than 5% of the aggregate principal amount of the
Notes then outstanding, and (c) any bank, trust company, savings and loan
association or other financial institution, any pension plan, any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"Interest Charges" for any period means all interest and all amortization of
debt discount and expense on any particular Debt for which such calculations
are being made, including, without limitation, all commissions, fees and other
charges owed with respect to letters of credit and bankers' acceptances.
"Investment" means any investment, made in cash or by delivery of property, by
the Company or any of its Subsidiaries (i) in any Person, whether by
acquisition of stock, indebtedness or other obligation or Security, or by
loan, Guaranty, advance, capital contribution or otherwise, or (ii) in any
property.
"Lien" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether the interest
is based on common law, statute or contract (including the security interest
lien arising from a mortgage, encumbrance, pledge, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes). The term
"Lien" shall not include minor reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions and other minor
title exceptions affecting Property, provided that they do not constitute
security for a monetary obligation. For the purposes of this Agreement, the
Company or a Restricted Subsidiary shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale
agreement, financing lease or other arrangement pursuant to which title to the
Property has been retained by or vested in some other Person for security
purposes, and such retention or vesting shall be deemed to be a Lien.
"Long Term Lease Rentals" means, with respect to any period, the sum of the
rental and other obligations required to be paid during such period by the
Company or any Restricted Subsidiary as lessee under all leases of real or
personal Property (other than Capitalized Leases) having a term (including
terms of renewal or extension at the option of the lessor or the lessee,
whether or not such option has been exercised) expiring more than one year
after the commencement of the initial term, excluding any amount required to
be paid by the lessee (whether or not therein designated as rental or
additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges, provided that, if at the date of
determination, any such rental or other obligations are contingent or not
otherwise definitely determinable by the terms of the related lease, the
amount of such obligations (i) shall be assumed to be equal to the amount of
such obligations for the period of 12 consecutive calendar months immediately
preceding the date of determination or (ii) if the related lease was not in
effect during such preceding 12-month period, shall be the amount estimated by
a Senior Financial Officer of the Company on a reasonable basis and in good
faith.
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties, or prospects of the Company and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of the Company
and its Restricted Subsidiaries taken as a whole, or (b) the ability of the
Company to perform its obligations under this Agreement and the Notes, or
(c) the validity or enforceability of this Agreement or the Notes.
"Material Restricted Subsidiary" means any Restricted Subsidiary accounting
for (i) at least 5% of the Company's Consolidated Net Income during one of the
two immediately preceding fiscal years or (ii) at least 5% of the Company's
Consolidated Total Assets as of the end of either of the two immediately
preceding fiscal years.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any Property by
any Person, an amount equal to the difference of
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of
such Transfer) received by such Person in respect of such Transfer,
minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by such Person in connection with such Transfer.
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial Officer or
of any other officer of the Company whose responsibilities extend to the
subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and defined
in ERISA or any successor thereto.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of ERISA)
that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate
or with respect to which the Company or any ERISA Affiliate may have any
liability.
"Preferred Stock" means any class of capital stock of a corporation that is
preferred over any other class of capital stock of such corporation as to the
payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Debt" means the sum of (a) all Debt of the Company secured by Liens
permitted by Section 10.4(g), and (b) all Debt of Restricted Subsidiaries
(excluding Debt owing to the Company or another Restricted Subsidiary.
"Property" means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.
"Property Reinvestment Application" means, with respect to any Transfer of
Property, the application of an amount equal to the Net Proceeds Amount with
respect to such Transfer to the acquisition by the Company of Property of a
similar nature and having a value at least equal to the value of such Property
subject to such Transfer.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14 issued by
the United States Department of Labor.
"Rentals" means, and includes as of the date of any determination thereof, all
fixed payments (including as such all payments which the lessee is obligated
to make to the lessor on termination of the lease or surrender of the
property) payable by the Company or a Restricted Subsidiary, as lessee or
sublessee under a lease of real or personal property, but shall be exclusive
of any amounts required to be paid by the Company or a Restricted Subsidiary
(whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any "percentage leases" shall be computed solely on the basis of the minimum
rents, if any, required to be paid by the lessee regardless of sales volumes
or gross revenues.
"Reportable Event" shall have the same meaning as in ERISA.
"Repurchase Agreement" means any written agreement
(a) that provides for (i) the transfer of one or more Governmental
Securities in an aggregate principal amount at least equal to the
amount of the Transfer Price (defined below) to the Company or any of
its Restricted Subsidiaries from an Acceptable Bank or an Acceptable
Broker-Dealer against a transfer of funds (the "Transfer Price") by
the Company or such Restricted Subsidiary to such Acceptable Bank or
Acceptable Broker-Dealer, and (ii) a simultaneous agreement by the
Company or such Restricted Subsidiary, in connection with such
transfer of funds, to transfer to such Acceptable Bank or Acceptable
Broker-Dealer the same or substantially similar Governmental
Securities for a price not less than the Transfer Price plus a
reasonable return thereon at a date certain not later than 365 days
after such transfer of funds,
(b) in respect of which the Company or such Restricted Subsidiary
shall have the right, whether by contract or pursuant to applicable
law, to liquidate such agreement upon the occurrence of any default
thereunder, and
(c) in connection with which the Company or such Restricted
Subsidiary, or an agent thereof, shall have taken all action required
by applicable law or regulations to perfect a Lien in such
Governmental Securities.
"Required Holders" means, at any time, the holders of at least 51% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Affiliates).
"Responsible Officer" means any Senior Financial Officer and any other officer
of the Company with responsibility for the administration of the relevant
portion of this agreement.
"Restricted Investments" means all Investments except the following:
(a) Property to be used in the ordinary course of business of the
Company and its Restricted Subsidiaries;
(b) Investments in one or more Restricted Subsidiaries or any Person
that concurrently with such Investment becomes a Restricted
Subsidiary;
(c) Investments existing as of the date of this Agreement and
disclosed in Schedule 5.15;
(d) Investments in direct obligations of the United States of America
or any Acceptable Foreign Government or any agency or instrumentality
thereof, the payment or guarantee of which constitutes a full faith
and credit obligation of the United States of America or such
Acceptable Foreign Government, in either case, maturing within three
years for the date of acquisition thereof;
(e) Investments in certificates of deposit or time deposits issued by
an Acceptable Bank, provided that such obligations mature within 365
days from the date of acquisition thereof;
(f) Investments in commercial paper maturing in 270 days or less from
the date of issuance which, at the time of acquisition by the Company
or any Restricted Subsidiary, are rated at least "A-1" by Standard &
Poor's Rating Group, a division of McGraw-Hill, Inc., or at least
"P-2" by Moody's Investors Service, Inc.;
(g) Investments in Repurchase Agreements; and
(h) Investments other than described in the foregoing clauses (a)
through (g), above, provided that such Investments do not exceed 5%
of Consolidated Net Worth.
For purposes of this Agreement, any Investment which involves an Acceptable
Bank which is organized under the laws of a jurisdiction of a nation whose
government is an Acceptable Foreign Government, shall become a Restricted
Investment at such time as the debt obligations of such government are not
rated at least "A-" by Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc., or at least "A3" by Moody's Investors Service,
Inc.
As of any date of determination, each Restricted Investment shall be valued at
the greater of:
(x) the amount at which such Restricted Investment is shown on the
books of the Company or any of its Restricted Subsidiaries (or zero
if such Restricted Investment is not shown on any such books); and
(y) either
(i) in the case of any Guaranty of the obligation of any Person,
the amount which the Company or any of its Restricted Subsidiaries
has paid on account of such obligation less any recoupment by the
Company or such Subsidiary of any such payments, or
(ii) in the case of any other Restricted Investment, the excess of
(x) the greater of (A) the amount originally entered on the books
of the Company or any of its Restricted Subsidiaries with respect
thereto and (B) the cost thereof to the Company or its Restricted
Subsidiary over (y) any return of capital (after income taxes
applicable thereto) upon such Restricted Investment through the
sale or other liquidation thereof or part thereof or otherwise.
"Restricted Subsidiary" shall mean any Subsidiary listed as a Restricted
Subsidiary on Schedule 5.4 to this Agreement and any other Subsidiary,
(1) organized under the laws of the United States or a jurisdiction
of any nation whose government is an Acceptable Foreign Government
(or any jurisdiction thereof);
(2) which conducts substantially all of its business and has
substantially all of its Property within the United States or the
jurisdiction of any national whose government is an Acceptable
Foreign Government;
(3) a majority of each class of common stock of which is legally and
beneficially owned by the Company and its Restricted Subsidiaries;
and
(4) which is not an Unrestricted Subsidiary.
For purposes of this Agreement, any Restricted Subsidiary which is organized
under, and conducts substantially all of its business and has substantially
all of its Property within, the jurisdiction of any nation whose government is
an Acceptable Foreign Government, shall be designated as an Unrestricted
Subsidiary at such time as the debt obligations of such government are not
rated at least "A-" by Standard & Poor's Rating Group, a division of The
McGraw-Hill Companies, Inc., or at least "A3" by Moody's Investors Service,
Inc.
"Security" shall have the same meaning as in Section 2(1) of the Securities
Act of 1933, as amended.
"Senior Debt" means all Consolidated Debt of the Company other than
(i) Subordinated Debt, (ii) Senior Debt owing to the Company, any of its
Subsidiaries or any Affiliate, and (iii) Senior Debt in respect of any
revolving credit or similar credit facility providing the Company or any of
its Subsidiaries with the right to obtain loans or other extensions of credit
from time to time, except to the extent that in connection with a Debt
Prepayment Application the availability of credit under such credit facility
is permanently reduced by an amount not less than the Net Proceeds Amount
applied to the payment of such Senior Debt.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer, assistant treasurer, or comptroller of the
Company.
"Series A Notes" is defined in Section 1.
"Series B Notes" is defined in Section 1
"Shareholders' Equity" means the total amount of shareholders' equity of the
Company and its Restricted Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Subordinated Debt" means all unsecured Debt of the Company which shall
contain or have applicable thereto subordination provisions providing for the
subordination thereof to other Debt of the Company (including, without
limitation, the Notes).
"Subsidiary" means, as to any Person, any corporation, association or other
business entity in which such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries owns sufficient equity or
voting interests to enable it or them (as a group) ordinarily, in the absence
of contingencies, to elect a majority of the directors (or Persons performing
similar functions) of such entity, and any partnership or joint venture if
more than a 50% interest in the profits or capital thereof is owned by such
Person or one or more of its Subsidiaries or such Person and one or more of
its Subsidiaries (unless such partnership can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its Subsidiaries). Unless the context otherwise clearly requires, any
reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Subsidiary Stock" means, with respect to any Person, the stock (or any
options or warrants to purchase stock or other Securities exchangeable for or
convertible into stock) of any Subsidiary of such Person.
"Successor Corporation" is defined in Section 10.5.
"Swaps" means, with respect to any Person, payment obligations with respect to
interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter,
and in making such determination, if any agreement relating to such Swap
provides for the netting of amounts payable by and to such Person thereunder
or if any such agreement provides for the simultaneous payment of amounts by
and to such Person, then in each such case, the amount of such obligation
shall be the net amount so determined.
"Total Capitalization" shall mean the sum of Consolidated Net Worth and
Consolidated Debt.
"Transfer" means, with respect to any Person, any transaction in which such
Person sells, conveys, transfers or leases (as lessor) any of its Property,
including, without limitation, Subsidiary Stock. For purposes of determining
the application of the Net Proceeds Amount in respect of any Transfer, the
Company may designate any Transfer as one or more separate Transfers each
yielding a separate Net Proceeds Amount. In any such case,
(a) the Disposition Value of any Property subject to each such separate
Transfer and (b) the amount of Consolidated Total Assets attributable to any
Property subject to each such separate Transfer shall be determined by ratably
allocating the aggregate Disposition Value of, and the aggregate Consolidated
Total Assets attributable to, all Property subject to all such separate
Transfers to each such separate Transfer on a proportionate basis.
"Unrestricted Subsidiary" shall mean any Subsidiary other than a Restricted
Subsidiary.
"Voting Stock" shall mean Securities of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
"Wholly-Owned Restricted Subsidiary" means, at any time, any Restricted
Subsidiary one hundred percent (100%) of all of the equity interests (except
directors' qualifying shares) and voting interests of which are owned by any
one or more of the Company and the Company's other Wholly-Owned Restricted
Subsidiaries at such time.
<PAGE>
<PAGE>
FORM OF SERIES A NOTE
SIMPSON INDUSTRIES, INC.
7.03% SENIOR NOTE, SERIES A DUE AUGUST 1, 2012
No. [_________] [Date]$[____________] PN 829060 A@1
For Value Received, the undersigned, Simpson Industries, Inc. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Michigan, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars on
August 1, 2012, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 7.03%
per annum from the date hereof, payable semiannually, on the first day of
February and August in each year, commencing on the first of such dates after
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreements referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 9.03% or (ii) 2% over the rate of
interest publicly announced by ABN AMRO Bank N.V. from time to time in
Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with respect
to this Note are to be made in lawful money of the United States of America at
the principal office of ABN AMRO Bank N.V. in Chicago, Illinois or at such
other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of 7.03% Senior Notes, Series A (the
"Series A Notes") issued together with the 6.96% Senior Notes, Series B (the
"Series B Notes" and together with the Series A Notes, the "Notes") pursuant
to separate Note Purchase Agreements, dated as of August 1, 1997 (as from time
to time amended, the "Note Purchase Agreements"), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Company will not be affected by any notice
to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is
also subject to optional prepayment, in whole or from time to time in part, at
the times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
SIMPSON INDUSTRIES, INC.
By
Its President
<PAGE>
<PAGE>
Form of Series B Note
Simpson Industries, Inc.
6.96% Senior Note, Series B, due August 1, 2012
No. [_________] [Date]$[____________] PPN 829060 A#9
For Value Received the undersigned, Simpson Industries, Inc. (herein
called the "Company"), a corporation organized and existing under the laws of
the State of Michigan, hereby promises to pay to [________________], or
registered assigns, the principal sum of [________________] Dollars on
August 1, 2012, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the rate of 6.96%
per annum from the date hereof, payable semiannually, on the first day of
February and August in each year, commencing on the first of such dates after
the date hereof, until the principal hereof shall have become due and payable,
and (b) to the extent permitted by law on any overdue payment (including any
overdue prepayment) of principal, any overdue payment of interest and any
overdue payment of any Make-Whole Amount (as defined in the Note Purchase
Agreements referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per annum from
time to time equal to the greater of (i) 8.96% or (ii) 2% over the rate of
interest publicly announced by ABN AMRO Bank N.V. from time to time in
Chicago, Illinois as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with respect
to this Note are to be made in lawful money of the United States of America at
the principal office of ABN AMRO Bank N.V. in Chicago, Illinois or at such
other place as the Company shall have designated by written notice to the
holder of this Note as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of 6.96% Senior Notes, Series B (the
"Series B Notes") issued together with the 7.03% Senior Notes, Series A (the
"Series A Notes" and together with the Series B Notes, the "Notes") pursuant
to separate Note Purchase Agreements, dated as of August 1, 1997 (as from time
to time amended, the "Note Purchase Agreements"), between the Company and the
respective Purchasers named therein and is entitled to the benefits thereof.
Each holder of this Note will be deemed, by its acceptance hereof, (i) to have
agreed to the confidentiality provisions set forth in Section 20 of the Note
Purchase Agreements and (ii) to have made the representation set forth in
Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment
and for all other purposes, and the Company will not be affected by any notice
to the contrary.
The Company will make required prepayments of principal on the dates
and in the amounts specified in the Note Purchase Agreements. This Note is
also subject to optional prepayment, in whole or from time to time in part, at
the times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements,
occurs and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price (including any
applicable Make-Whole Amount) and with the effect provided in the Note
Purchase Agreements.
This Note shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the law of the State of Illinois
excluding choice-of-law principles of the law of such State that would require
the application of the laws of a jurisdiction other than such State.
SIMPSON INDUSTRIES, INC.
By
Its President
<PAGE>
<PAGE>
FORM OF OPINION OF
SPECIAL COUNSEL TO THE COMPANY
The closing opinion of Dykema Gossett, counsel to the Company, which is called
for by Section 4.4 of the Note Purchase Agreements, shall be dated the date of
Closing and addressed to the Purchasers, shall be satisfactory in scope and
form to each Purchaser and shall be to the effect that:
1. The Company is a corporation, duly incorporated, validly existing and
in good standing under the laws of the State of Michigan, has the corporate
power and the corporate authority to execute and perform the Note Purchase
Agreements and to issue the Notes and has the full corporate power and the
corporate authority to conduct the activities in which it is now engaged and
is duly licensed or qualified and is in good standing as a foreign corporation
in each jurisdiction in which the character of the properties owned or leased
by it or the nature of the business transacted by it makes such licensing or
qualification necessary except in jurisdictions where the failure to be so
qualified or licensed would not have a material adverse affect on the business
of the Company.
2. Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly licensed or qualified and is in good standing in
each jurisdiction in which the character of the properties owned or leased by
it or the nature of the business transacted by it makes such licensing or
qualification necessary except in jurisdictions where the failure to be so
qualified or licensed would not have a material adverse affect on the business
of such Subsidiary, and all of the issued and outstanding shares of capital
stock of each such Subsidiary have been duly issued, are fully paid and
non-assessable and are owned by the Company, by one or more Subsidiaries, or
by the Company and one or more Subsidiaries.
3. Each Note Purchase Agreement has been duly authorized by all
necessary corporate action on the part of the Company, has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
4. The Notes have been duly authorized by all necessary corporate action
on the part of the Company, have been duly executed and delivered by the
Company and constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors' rights generally,
and general principles of equity (regardless of whether the application of
such principles is considered in a proceeding in equity or at law).
5. No approval, consent or withholding of objection on the part of, or
filing, registration or qualification with, any governmental body, Federal or
state, is necessary in connection with the execution and delivery of the Note
Purchase Agreements or the Notes.
6. The execution, delivery and performance by the Company of the Note
Purchase Agreements and issuance and sale of the Notes thereunder do not
conflict with or result in any breach of any of the provisions of or
constitute a default under or result in the creation or imposition of any Lien
upon any of the property of the Company pursuant to the provisions of the
Articles of Incorporation or By-laws of the Company or any agreement or other
instrument known to such counsel to which the Company is a party or by which
the Company may be bound.
7. The issuance, sale and delivery of the Notes under the circumstances
contemplated by the Note Purchase Agreements do not, under existing law,
require the registration of the Notes under the Securities Act of 1933, as
amended, or the qualification of an indenture under the Trust Indenture Act of
1939, as amended.
8. Neither the issuance of the Notes nor the application of the proceeds
of the sale of the Notes will violate or result in a violation of Section 7 of
the Securities Exchange Act of 1934, as amended, or any regulation issued
pursuant thereto, including, without limitation, Regulation G, T or X of the
Board of Governors of the Federal Reserve System.
9. To the knowledge of such counsel after due inquiry, there are no
actions, suits or proceedings pending or, to the knowledge of such counsel
after due inquiry, threatened against or affecting the Company or any
Subsidiary in any court or before any governmental authority or arbitration
board or tribunal which, if adversely determined, would have a materially
adverse effect on the properties, business, or condition, (financial or
otherwise) of the Company and its Restricted Subsidiaries or the ability of
the Company to perform its obligations under the Note Purchase Agreements and
the Notes or on the legality, validity or enforceability of the Company's
obligations under the Note Purchase Agreements or the Notes. To the knowledge
of such counsel, neither the Company nor any Subsidiary is in default with
respect to any court or governmental authority, or arbitration board or
tribunal.
10. The Company is not an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act
of 1940, as amended.
The opinion of Dykema Gossett shall cover such other matters relating to the
sale of the Notes as each Purchaser may reasonably request. With respect to
matters of fact on which such opinion is based, such counsel shall be entitled
to rely on appropriate certificates of public officials and other officers of
the Company.
<PAGE>
<PAGE>
FORM OF OPINION
OF SPECIAL COUNSEL TO THE PURCHASERS
The closing opinion of Chapman and Cutler, special counsel to the Purchasers,
called for by Section 4.4 of the Note Purchase Agreements, shall be dated the
date of Closing and addressed to each Purchaser, shall be satisfactory in form
and substance to each Purchaser and shall be to the effect that:
1. The Company is a corporation, validly existing and in good standing
under the laws of the State of Michigan and has the corporate power and the
corporate authority to execute and deliver the Note Purchase Agreements and to
issue the Notes.
2. Each Note Purchase Agreement has been duly authorized by all
necessary corporate action on the part of the Company, has been duly executed
and delivered by the Company and constitutes the legal, valid and binding
contract of the Company enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting
creditors' rights generally, and general principles of equity (regardless of
whether the application of such principles is considered in a proceeding in
equity or at law).
3. The Notes have been duly authorized by all necessary corporate action
on the part of the Company, and the Notes being delivered on the date hereof
have been duly executed and delivered by the Company and constitute the legal,
valid and binding obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent conveyance and
similar laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is considered
in a proceeding in equity or at law).
4. The issuance, sale and delivery of the Notes under the circumstances
contemplated by the Note Purchase Agreements do not, under existing law,
require the registration of the Notes under the Securities Act of 1933, as
amended, or the qualification of an indenture under the Trust Indenture Act of
1939, as amended.
The opinion of Chapman and Cutler shall also state that the opinion of Dykema
Gossett, counsel to the Company, is satisfactory in scope and form to Chapman
and Cutler and that, in their opinion, the Purchasers are justified in relying
thereon.
With respect to matters of fact upon which such opinion is based, Chapman and
Cutler may rely on appropriate certificates of public officials and officers
of the Company and upon representations of the Company and the Purchasers
delivered in connection with the issuance and sale of the Notes.
In rendering the opinion set forth in paragraph 1 above, Chapman and Cutler
may rely, as to matters referred to in paragraph 1, solely upon an examination
of the Articles of Incorporation certified by, and a certificate of good
standing of the Company from, the Secretary of State of the State of Michigan,
the By-laws of the Company and the general business corporation law of the
State of Michigan. The opinion of Chapman and Cutler is limited to the laws
of the State of Illinois, the general business corporation law of the State of
Michigan and the Federal laws of the United States.
Nine Months Ended Three Months Ended
September 30 September 30
1997 1996 1997 1996
Primary
Average number of
common shares
outstanding 18,121,209 18,063,133 18,129,647 18,075,159
Dilutive stock
options outstanding 51,024 40,108 60,188 41,914
Average number of
common and common
equivalent shares 18,172,233 18,103,242 18,189,835 18,117,073
Net earnings appli-
cable to common
stock and common
stock equivalents $6,468,000 $13,371,000 $(3,337,000) $3,443,000
Primary earnings
per share $0.36 $0.74 $(0.18) $0.19
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL
INFORMATION EXTRACTED FROM THE
COMPANY'S UNAUDITED FINANCIAL STATEMENTS
AS OF AND FOR THE PERIOD ENDING SEPTEMBER 30,
1997, AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS
<MULTIPLIER> 1,000
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<PERIOD-TYPE> 9-MOS
<CASH> 2,787
<SECURITIES> 0
<RECEIVABLES> 68,302
<ALLOWANCES> 0
<INVENTORY> 19,690
<CURRENT-ASSETS> 103,415
<PP&E> 312,786
<DEPRECIATION> 140,307
<TOTAL-ASSETS> 330,052
<CURRENT-LIABILITIES> 63,691
<BONDS> 121,209
<COMMON> 18,131
0
0
<OTHER-SE> 98,115
<TOTAL-LIABILITY-AND-EQUITY> 330,052
<SALES> 328,475
<TOTAL-REVENUES> 328,475
<CGS> 295,614
<TOTAL-COSTS> 295,614
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 5,094
<INCOME-PRETAX> 10,192
<INCOME-TAX> 3,724
<INCOME-CONTINUING> 6,468
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 6,468
<EPS-PRIMARY> 0.36
<EPS-DILUTED> 0.36
</TABLE>
