SEE SECTION 20 REGARDING NOTICE TO COMPANY OF DISCLOSURE OF CONFIDENTIAL INFORMATION INTERNATIONAL FLAVORS & FRAGRANCES INC. $250,000,000 6.25% Series A Senior Notes, due September 27, 2017 $100,000,000 6.35% Series B Senior Notes, due September 27,...
EXECUTION
COPY
EXHIBIT
4.7
SEE
SECTION 20 REGARDING NOTICE TO COMPANY
OF
DISCLOSURE OF CONFIDENTIAL INFORMATION
INTERNATIONAL
FLAVORS & FRAGRANCES INC.
$250,000,000
6.25% Series A Senior Notes,
due
September 27, 2017
$100,000,000
6.35% Series B Senior Notes,
due
September 27, 2019
$50,000,000
6.50% Series C Senior Notes,
due
September 27, 2022
$100,000,000
6.79% Series D Senior Notes,
due
September 27, 2027
________________
________________
DATED
AS
OF SEPTEMBER 27, 2007
TABLE
OF CONTENTS
Page
Authorization
of Notes
|
1
|
||
2.
|
Sale
and Purchase of Notes
|
2
|
|
3.
|
Closing
|
2
|
|
4.
|
Conditions
to Closing
|
2
|
|
4.1.
|
Representations
and Warranties
|
3
|
|
4.2.
|
Performance;
No Default
|
3
|
|
4.3.
|
Compliance
Certificates
|
3
|
|
4.4.
|
Opinions
of Counsel
|
3
|
|
4.5.
|
Purchase
Permitted By Applicable Law, Etc.
|
3
|
|
4.6.
|
Sale
of Other Notes
|
4
|
|
4.7.
|
Payment
of Special Counsel Fees
|
4
|
|
4.8.
|
Private
Placement Number
|
4
|
|
4.9.
|
Changes
in Corporate Structure
|
4
|
|
4.10.
|
Funding
Instructions
|
4
|
|
4.11.
|
Proceedings
and Documents
|
4
|
|
5.
|
Representations
and Warranties of the Company
|
5
|
|
5.1.
|
Organization;
Power and Authority
|
5
|
|
5.2.
|
Authorization,
Etc.
|
5
|
|
5.3.
|
Disclosure
|
5
|
|
5.4.
|
Organization
and Ownership of Shares of Subsidiaries; Affiliates
|
6
|
|
5.5.
|
Financial
Statements; Material Liabilities
|
6
|
|
5.6.
|
Compliance
with Laws, Other Instruments, Etc.
|
7
|
|
5.7.
|
Governmental
Authorizations, Etc.
|
7
|
|
5.8.
|
Litigation;
Observance of Agreements, Statutes and Orders
|
7
|
|
5.9.
|
Taxes
|
7
|
|
5.10.
|
Title
to Property; Leases
|
8
|
|
5.11.
|
Licenses,
Permits, Etc.
|
8
|
|
5.12.
|
Compliance
with ERISA
|
8
|
|
5.13.
|
Private
Offering by the Company
|
9
|
|
5.14.
|
Use
of Proceeds; Margin Regulations
|
9
|
i
TABLE
OF CONTENTS
(continued)
Page
5.15.
|
Existing
Debt; Future Liens
|
10
|
|
5.16.
|
Foreign
Assets Control Regulations, Etc.
|
10
|
|
5.17.
|
Status
under Certain Statutes
|
10
|
|
5.18.
|
Environmental
Matters
|
11
|
|
5.19.
|
Notes
Rank Pari Passu
|
11
|
|
5.20.
|
Solvency
|
11
|
|
6.
|
Representations
of the Purchaser
|
12
|
|
6.1.
|
Purchase
for Investment
|
12
|
|
6.2.
|
Accredited
Investor
|
12
|
|
6.3.
|
Source
of Funds
|
13
|
|
7.
|
Information
as to Company
|
14
|
|
7.1.
|
Financial
and Business Information
|
14
|
|
7.2.
|
Officer’s
Certificate; Reconciliation upon Change in GAAP
|
17
|
|
7.3.
|
Visitation
|
18
|
|
8.
|
Payment
of the Notes
|
18
|
|
8.1.
|
Payment
at Maturity
|
18
|
|
8.2.
|
Optional
Prepayments with Make-Whole Amount
|
18
|
|
8.3.
|
Allocation
of Partial Prepayments
|
19
|
|
8.4.
|
Maturity;
Surrender, Etc.
|
19
|
|
8.5.
|
Purchase
of Notes
|
19
|
|
8.6.
|
Make-Whole
Amount
|
20
|
|
8.7.
|
Prepayment
at Par Upon the Sale of Certain Assets
|
21
|
|
8.8.
|
Prepayment
of Notes Upon Change in Control
|
22
|
|
9.
|
Affirmative
Covenants
|
25
|
|
9.1.
|
Compliance
with Law
|
25
|
|
9.2.
|
Insurance
|
25
|
|
9.3.
|
Maintenance
of Properties
|
25
|
|
9.4.
|
Payment
of Taxes and Claims
|
25
|
|
9.5.
|
Corporate
Existence, Etc.
|
26
|
|
9.6.
|
Notes
to Rank Pari Passu
|
26
|
ii
TABLE
OF CONTENTS
(continued)
Page
9.7.
|
Books
and Records
|
26
|
|
9.8.
|
Future
Subsidiary Guarantors
|
26
|
|
10.
|
Negative
Covenants
|
28
|
|
10.1.
|
Consolidated
Net Debt to Consolidated EBITDA
|
28
|
|
10.2.
|
Subsidiary
Debt
|
29
|
|
10.3.
|
Limitation
on Liens
|
29
|
|
10.4.
|
Sales
of Assets
|
30
|
|
10.5.
|
Merger
and Consolidation
|
31
|
|
10.6.
|
Transactions
with Affiliates
|
33
|
|
10.7.
|
Nature
of Business
|
33
|
|
10.8.
|
Terrorism
Sanctions Regulations
|
33
|
|
11. | Events of Default |
33
|
|
12.
|
Remedies
on Default, Etc.
|
35
|
|
12.1.
|
Acceleration
|
35
|
|
12.2.
|
Other
Remedies
|
36
|
|
12.3.
|
Rescission
|
36
|
|
12.4.
|
No
Waivers or Election of Remedies, Expenses, Etc.
|
37
|
|
13.
|
Registration;
Exchange; Substitution of Notes
|
37
|
|
13.1.
|
Registration
of Notes
|
37
|
|
13.2.
|
Transfer
and Exchange of Notes
|
37
|
|
13.3.
|
Replacement
of Notes
|
38
|
|
14.
|
Payments
on Notes
|
38
|
|
14.1.
|
Place
of Payment
|
38
|
|
14.2.
|
Home
Office Payment
|
38
|
|
15.
|
Expenses,
Etc.
|
39
|
|
15.1.
|
Transaction
Expenses
|
39
|
|
15.2.
|
Survival
|
39
|
|
16.
|
Survival
of Representations and Warranties; Entire Agreement
|
40
|
|
17.
|
Amendment
and Waiver
|
40
|
|
17.1.
|
Requirements
|
40
|
iii
TABLE
OF CONTENTS
(continued)
Page
17.2.
|
Solicitation
of Holders of Notes
|
40
|
|
17.3.
|
Binding
Effect, Etc.
|
41
|
|
17.4.
|
Notes
Held by Company, Etc.
|
41
|
|
18.
|
Notices
|
42
|
|
19.
|
Reproduction
of Documents
|
42
|
|
20.
|
Confidential
Information
|
42
|
|
21.
|
Substitution
of Purchaser
|
44
|
|
22.
|
Miscellaneous
|
44
|
|
22.1.
|
Successors
and Assigns
|
44
|
|
22.2.
|
Payments
Due on Non-Business Days
|
44
|
|
22.3.
|
Accounting
Terms
|
44
|
|
22.4.
|
Severability
|
45
|
|
22.5.
|
Construction
|
45
|
|
22.6.
|
Counterparts
|
45
|
|
22.7.
|
Governing
Law
|
45
|
|
22.8.
|
Jurisdiction
and Process; Waiver of Jury Trial
|
45
|
iv
SCHEDULES
AND EXHIBITS
Schedule A
|
—
|
INFORMATION
RELATING TO PURCHASERS
|
Schedule B
|
—
|
DEFINED
TERMS
|
Schedule 4.9
|
—
|
CHANGES
IN CORPORATE STRUCTURE
|
Schedule 5.4
|
—
|
MATERIAL
SUBSIDIARIES OF THE COMPANY, OWNERSHIP OF MATERIAL SUBSIDIARY
STOCK,
AFFILIATES
|
Schedule 5.5
|
—
|
FINANCIAL
STATEMENTS
|
Schedule
5.8
|
—
|
LITIGATION
|
Schedule 5.11
|
—
|
LICENSES,
PERMITS, ETC.
|
Schedule 5.15
|
—
|
EXISTING
DEBT
|
Schedule 5.18
|
—
|
ENVIRONMENTAL
MATTERS
|
Exhibit 1
|
—
|
FORM
OF 6.25% SERIES A SENIOR NOTE DUE SEPTEMBER 27, 2017
|
Exhibit 2
|
—
|
FORM
OF 6.35% SERIES B SENIOR NOTE DUE SEPTEMBER 27, 2019
|
Exhibit 3
|
—
|
FORM
OF 6.50% SERIES C SENIOR NOTE DUE SEPTEMBER 27, 2022
|
Exhibit 4
|
—
|
FORM
OF 6.79% SERIES D SENIOR NOTE DUE SEPTEMBER 27, 2027
|
Exhibit 4.4(a)
|
—
|
FORM
OF OPINION OF GENERAL COUNSEL TO THE COMPANY
|
Exhibit 4.4(b)
|
—
|
FORM
OF OPINION OF SPECIAL COUNSEL TO THE COMPANY
|
Exhibit 4.4(c)
|
—
|
FORM
OF OPINION OF SPECIAL COUNSEL TO THE
PURCHASERS
|
v
INTERNATIONAL
FLAVORS & FRAGRANCES INC.
000
X. 00XX
XXXXXX
NEW
YORK, NY 10019
$250,000,000
6.25% SERIES A SENIOR NOTES,
DUE
SEPTEMBER 27, 2017
$100,000,000
6.35% SERIES B SENIOR NOTES,
DUE
SEPTEMBER 27, 2019
$50,000,000
6.50% SERIES C SENIOR NOTES,
DUE
SEPTEMBER 27, 2022
$100,000,000
6.79% SERIES D SENIOR NOTES,
DUE
SEPTEMBER 27, 2027
Dated
as
of
September
27, 2007
TO
THE
PURCHASERS LISTED IN
THE
ATTACHED SCHEDULE A:
Ladies
and Gentlemen:
International
Flavors & Fragrances
Inc., a New York corporation (the “Company”), agrees with the
Purchasers listed in the attached Schedule A (the “Purchasers”) to
this Note Purchase Agreement as follows:
1.
|
AUTHORIZATION
OF NOTES.
|
The
Company will authorize the issue
and sale of the following Senior Notes:
Issue
|
Series
|
Aggregate
Principal Amount
|
Interest
Rate
|
Maturity
Date
|
Senior
Notes
|
Series
A
|
$250,000,000
|
6.25%
|
September
27, 2017
|
Senior
Notes
|
Series
B
|
$100,000,000
|
6.35%
|
September
27, 2019
|
Senior
Notes
|
Series
C
|
$50,000,000
|
6.50%
|
September
27, 2022
|
Senior
Notes
|
Series
D
|
$100,000,000
|
6.79%
|
September
27, 2027
|
The
Senior Notes described above are
collectively referred to as the “Notes” (such term shall also include
any such notes as amended, restated or otherwise modified from time to time
and
any such notes issued in substitution therefor pursuant to Section 13 of
this
Agreement). The Series A Notes, Series B Notes, Series C Notes and
Series D Notes shall be substantially in the form set out in Exhibit 1, Exhibit
2, Exhibit 3 and Exhibit 4, respectively, with such changes therefrom, if
any,
as may be approved by the Purchasers 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. The payment of the
Notes and the performance by the Company of its obligations under this Agreement
may, pursuant to and in accordance with the provisions of Section 9.8, be
guaranteed by Subsidiaries of the Company.
2.
|
SALE
AND PURCHASE OF NOTES.
|
Subject
to the terms and conditions of
this Agreement, the Company will issue and sell to each Purchaser, and each
Purchaser will purchase from the Company, at the Closing provided for in
Section 3, Notes of the Series and in the principal amount specified
opposite such Purchaser’s name in Schedule A at the purchase price of 100% of
the principal amount thereof. The obligations of each Purchaser
hereunder are several and not joint obligations and each Purchaser shall
have no
obligation and no liability to any Person for the performance or nonperformance
of any obligation by any other Purchaser hereunder.
3.
|
CLOSING.
|
The
sale and purchase of the Notes to
be purchased by each Purchaser shall occur at the offices of Xxxxxxx XxXxxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00 a.m. Eastern time, at a
closing (the “Closing”) on September 27, 2007 or on such other Business
Day thereafter as may be agreed upon by the Company and the Purchasers (such
date, the “Closing Date”). On the Closing Date, the Company
will deliver to each Purchaser the Notes to be purchased by such Purchaser
in
the form of a single Note (or such greater number of Notes in denominations
of
at least $500,000 as such Purchaser may request) of the Series purchased
by such
Purchaser dated the Closing Date and registered in such Purchaser’s name (or in
the name of such Purchaser’s nominee), against delivery by such Purchaser 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 in accordance with the instructions provided by the
Company pursuant to Section 4.10. If, on the Closing Date, the
Company shall fail to tender such Notes to any Purchaser as provided above
in
this Section 3, or any of the conditions specified in Section 4 shall
not have been fulfilled to any Purchaser’s satisfaction, such Purchaser shall,
at such Purchaser’s election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights such Purchaser may have by
reason
of such failure or such nonfulfillment.
4.
|
CONDITIONS
TO CLOSING.
|
The
obligation of the Company to
deliver Notes to each Purchaser on the Closing Date is subject to the Company
receiving the purchase price therefor. Each Purchaser’s obligation to
purchase and pay for the Notes to be sold to such Purchaser at the Closing
is
subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the
Closing, of the following conditions:
2
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 (unless stated to relate to a specific earlier date, in which case
such
representations and warranties shall be correct as of such earlier
date).
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 the Company 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 Section 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 Section 10.4 or Section 10.6
hereof had such Sections applied since such date.
4.3. Compliance
Certificates.
(a) Officer’s
Certificate. The Company shall have delivered to such
Purchaser an Officer’s Certificate, dated the Closing Date, 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 such
Purchaser a certificate, dated the Closing Date, certifying as to the
resolutions attached thereto and other corporate proceedings relating to
the
authorization, execution and delivery of the Notes and this
Agreement.
4.4. Opinions
of Counsel.
Such
Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser, dated the
Closing
Date (a) from Xxxxx Xxxxx Xxxxxxxx, Deputy General Counsel of the Company,
covering the matters set forth in Exhibit 4.4(a) and covering such other
matters incident to the transactions contemplated hereby as such Purchaser
or
its counsel may reasonably request (and the Company hereby instructs its
counsel
to deliver such opinion to the Purchasers), (b) from Cravath, Swaine &
Xxxxx LLP, special counsel for the Company, covering the matters set forth
in
Exhibit 4.4(b) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request
(and
the Company hereby instructs its counsel to deliver such opinion to the
Purchasers), and (c) from Xxxxxxx XxXxxxxxx LLP, the Purchasers’ special
counsel in connection with such transactions, substantially in the form set
forth in Exhibit 4.4(c) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
4.5. Purchase
Permitted By Applicable Law, Etc.
On
the Closing Date such Purchaser’s
purchase of Notes shall (a) be permitted by the laws and regulations of
each jurisdiction to which such Purchaser is 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, (b) not violate any applicable
law or regulation (including, without limitation, Regulation T, U or X of
the Board of Governors of the Federal Reserve System) and (c) not subject
such Purchaser 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.
3
4.6. Sale
of Other Notes.
Contemporaneously
with the Closing the
Company shall sell to each other Purchaser and each other Purchaser shall
purchase the Notes to be purchased by it at the Closing as specified in
Schedule A.
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 Date,
the reasonable fees, reasonable charges and reasonable disbursements of the
Purchasers’ 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 Date.
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 each Series of Notes.
4.9. Changes
in Corporate Structure.
The
Company shall not have changed its
jurisdiction of incorporation or, except as reflected in Schedule 4.9, been
a
party to any merger or consolidation, or 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.
4.10. Funding
Instructions.
At
least two Business Days prior to the
Closing Date, each Purchaser shall have received written instructions from
the
Company including (i) the name and address of the transferee bank,
(ii) such transferee bank’s ABA number and (iii) the account name and
number into which the purchase price for such Purchaser’s Notes is to be
deposited.
4.11. 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
such Purchaser and its special counsel, and such Purchaser and its special
counsel shall have received all such counterpart originals or certified or
other
copies of such documents as such Purchaser or such special counsel may
reasonably request.
4
5.
|
REPRESENTATIONS
AND WARRANTIES OF THE
COMPANY.
|
The
Company represents and warrants to
each Purchaser that:
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 would 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 Notes
and to perform the provisions hereof and thereof.
5.2. Authorization,
Etc.
This
Agreement 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
such 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).
5.3. Disclosure.
The
Company, through its agent,
Citigroup Global Markets Inc., has delivered to each Purchaser a copy of
a
Private Placement Memorandum, dated September, 2007 (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. This
Agreement, the Memorandum, the documents, certificates or other writings
delivered to the Purchasers by or on behalf of the Company pursuant to this
Agreement and the financial statements listed in Schedule 5.5 (this
Agreement, the Memorandum and such documents, certificates or other writings
and
such financial statements being referred to, collectively, as the
“Disclosure Documents”), 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
Disclosure Documents, since December 31, 2006, there has been no change in
the
financial condition, operations, business or properties of the Company or
any of
its Subsidiaries except changes that individually or in the aggregate would
not
reasonably be expected to have a Material Adverse Effect. There is no
fact known to the Company that would reasonably be expected to have a Material
Adverse Effect that has not been set forth herein or in the Disclosure
Documents.
5
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 Material Subsidiaries, showing, as to each Material 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 Material 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
Material Subsidiary shown in Schedule 5.4 as being owned by the Company and
its Material 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
Material 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 would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Each such Material 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
Material 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 Material Subsidiary to pay dividends
out of profits or make any other similar distributions of profits to the
Company
or any of its Material Subsidiaries that owns outstanding shares of capital
stock or similar equity interests of such Material Subsidiary.
5.5. Financial
Statements; Material Liabilities.
The
Company has furnished 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 and the absence of footnotes).
6
5.6. Compliance
with Laws, Other Instruments, Etc.
The
execution, delivery and performance
by the Company of this Agreement and the Notes will not (a) 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 (i), any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, 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 except as would not
reasonably be expected to have a Material Adverse Effect or (ii) any corporate
charter or by-laws, (b) 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 except for such conflicts or breaches as would not reasonably
be
expected to have a Material Adverse Effect, or (c) violate any provision of
any statute or other rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary, except for such violations as
would
not reasonably be expected to have a Material Adverse Effect.
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 except for any such consent, approval,
authorization, registration, filing or declaration the failure to obtain
or make
which would not reasonably be expected to have a Material Adverse
Effect.
5.8. Litigation;
Observance of Agreements, Statutes and Orders.
(a) Except
as set forth in Schedule 5.8, there are no actions, suits or proceedings
pending
or, to the knowledge of the Company, threatened, nor, to the knowledge of
the
Company, are there any investigations pending or threatened, in each case
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,
would 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 or the USA Patriot Act) of any
Governmental Authority, which default or violation, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect.
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, to the extent such taxes and
assessments have become due and payable and before they have become delinquent,
except for any taxes and assessments (a) the failure to pay which would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or (b) 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 would 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 (whether by reason of completed audits or the statute of limitations
having run) for all fiscal years up to and including the fiscal year ended
December 31, 2001.
7
5.10. Title
to Property; Leases.
The
Company and its Subsidiaries have
good 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.
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, proprietary software, service marks,
trademarks and trade names, or rights thereto, that individually or in the
aggregate are Material, without known Material conflict with the rights of
others;
(b) to
the best knowledge of the Company, no product of the Company or any of its
Subsidiaries infringes in any Material respect any license, permit, franchise,
authorization, patent, copyright, proprietary software, 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, proprietary software, service mark, trademark, trade name
or
other right owned or used by the Company or any of its
Subsidiaries.
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 do not currently constitute and would not reasonably be expected to result
in
a Material Adverse Effect. Other than obligations to employees and
retirees under defined benefit plans, if any, 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 would 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 or section 4068 of ERISA, other than such liabilities
or
Liens as would not, individually or in the aggregate, reasonably be expected
to
result in a Material Adverse Effect.
8
(b) The
Company and its ERISA Affiliates have not incurred any withdrawal liabilities
(and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that would,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(c) 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 would 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(c)
is made in reliance upon and subject to the accuracy of each Purchaser’s
representation in Section 6.3 as to the sources of the funds to be used to
pay the purchase price of the Notes to be purchased by such
Purchaser.
5.13. Private
Offering by the Company.
Neither
the Company nor anyone
acting on the Company’s 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 the
Purchasers and not more than 60 other accredited investors (as defined in
Section 6.2), each of which has been offered the Notes in connection with
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 or to the registration requirements of any securities or blue
sky
laws of any applicable jurisdiction.
5.14. Use
of Proceeds; Margin Regulations.
The
Company intends to use the
proceeds of the sale of the Notes to repurchase the Company common stock
via an
accelerated share repurchase program. Margin stock does not
constitute more than 25% of the value of the consolidated assets of the Company
and its Subsidiaries and, after giving effect to the transactions contemplated
by the use of proceeds described in the first sentence of this Section 5.14,
margin stock will not constitute more than 25% of the value of such
assets. As used in this Section, the term “margin stock”
shall have the meaning assigned to it in Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221).
9
5.15. Existing
Debt; Future Liens.
(a) Except
as described therein, Schedule 5.15 sets forth a complete and correct list
of all outstanding items of Debt of the Company and its Subsidiaries as of
August 24, 2007 in excess of $15,000,000, 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 the Debt of the Company and its Subsidiaries described on
Schedule 5.15, and no event or condition exists with respect to such 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) Neither
the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or
such
Subsidiary described in Schedule 5.15, any agreement relating thereto or
any
other agreement (including, but not limited to, its charter or other
organizational document) which limits the amount of, or otherwise imposes
restrictions on the incurring of, Debt of the Company, except as specifically
indicated in Schedule 5.15.
5.16. Foreign
Assets Control Regulations, Etc.
(a) 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.
(b) Neither
the Company nor any Subsidiary is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of
Foreign
Assets Control or in Section 1 of the Anti-Terrorism Order or, to the
knowledge of the Company, engages in any dealings or transactions with any
such
Person. The Company and its Subsidiaries are in compliance, in all
material respects, with the USA Patriot Act.
(c) No
part of the proceeds from the sale of the Notes hereunder will be used, directly
or indirectly, for any payments to any governmental official or employee,
political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain
or
direct business or obtain any improper advantage, in violation of the United
States Foreign Corrupt Practices Act of 1977, as amended, assuming in all
cases
that such Act applies to the Company.
5.17. Status
under Certain Statutes.
Neither
the Company nor any
Subsidiary is an “investment company” registered or required to be registered
under the Investment Company Act of 1940, as amended, or is subject to
regulation under the Federal Power Act, as amended.
10
5.18. Environmental
Matters.
Except
as set forth in Schedule
5.18:
(a) neither
the Company nor any Subsidiary has knowledge of any liability or has received
any notice of any liability, and no proceeding has been instituted raising
any
liability 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 would not reasonably
be
expected to result in a Material Adverse Effect;
(b) neither
the Company nor any Subsidiary has knowledge of any facts which would give
rise
to any liability, 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 would not reasonably
be
expected to result in a Material Adverse Effect;
(c) 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 each case in a manner contrary to
any
Environmental Laws in each case in any manner that would reasonably be expected
to result in a Material Adverse Effect; and
(d) 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 would not reasonably be expected to result
in a
Material Adverse Effect.
5.19. Notes
Rank Pari Passu.
The
obligations of the Company
under this Agreement and the Notes rank pari passu in right of payment
with all other senior unsecured Debt (actual or contingent) of the Company,
including, without limitation, all senior unsecured Debt of the Company
described in Schedule 5.15 hereto.
5.20. Solvency.
Each
of the Company and its
Subsidiaries (both before and after giving effect to the transactions
contemplated by this Agreement ) (a) is solvent, (b) has assets having a
fair
value in excess of its liabilities, (c) has assets having a fair value in
excess
of the amount required to pay its liabilities on its debts as they become
due
and matured, and (d) has, and expects to continue to have, adequate capital
for
the conduct of its business. In computing the amount of contingent
and unliquidated liabilities at any time, such liabilities will be computed
as
the amount which, in light of all the facts and circumstances existing at
such
time, represents the amount that is probable to become an absolute and matured
liability.
11
6.
|
REPRESENTATIONS
OF THE PURCHASER.
|
6.1. Purchase
for Investment.
(a) Each
Purchaser severally represents that it is purchasing the Notes for its own
account or for one or more separate accounts maintained by it or for the
account
of one or more pension or trust funds that are “accredited investors” (as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act), in each case for which it manages some or all of the investments thereof,
for investment, and not with a view to the distribution thereof within the
meaning of the Securities Act, provided that the disposition of such
Purchaser’s or such pension or trust funds’ property shall at all times be
within such Purchaser’s or such pension or trust funds’ control. Each
Purchaser understands 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,
and
that the Company is not required to register the Notes.
(b) Each
Purchaser agrees to the imprinting, so long as required by law, of a legend
on
the Notes to the following effect:
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION
OF THIS NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO
THIS
NOTE HAS BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION
AS MAY BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE,
OR AN EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE
UNDER
SUCH ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND
EXCHANGE COMMISSION NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS
PASSED ON OR ENDORSED THE MERITS OF THIS NOTE.”
6.2. Accredited
Investor.
Each
Purchaser represents that
it is an “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act) acting for its own account (and not
for
the account of others) or as a fiduciary or agent for others (which others
are
also “accredited investors”). Each Purchaser further represents that
such Purchaser has had the opportunity to ask questions of the Company and
received answers concerning the terms and conditions of the sale of the
Notes. The financial position of each Purchaser is such that it can
afford to bear the economic risk of holding the Notes. Each Purchaser
can afford to suffer the complete loss of its investment in the
Notes. The knowledge and experience of each Purchaser in financial
and business matters is such that it is capable of evaluating the risks of
the
investment in the Notes. Each Purchaser acknowledges that no
representations, express or implied, are being made with respect to the Company
or the Subsidiaries, the Notes or otherwise, other than those expressly set
forth herein or contemplated hereby.
12
6.3. Source
of Funds.
Each
Purchaser severally
represents that at least one of the following statements is an accurate
representation as to each source of funds (a “Source”) to be used by
such Purchaser to pay the purchase price of the Notes to be purchased by
such
Purchaser hereunder:
(a) the
Source is an “insurance company general account” (as the term is defined in the
United States Department of Labor’s Prohibited Transaction Exemption
(“PTE”) 95-60) in respect of which the reserves and liabilities (as
defined by the annual statement for life insurance companies approved by
the
National Association of Insurance Commissioners (the “NAIC Annual
Statement”)) for the general account contract(s) held by or on behalf of
any employee benefit plan together with the amount of the reserves and
liabilities for the general account contract(s) held by or on behalf of any
other employee benefit plans maintained by the same employer (or affiliate
thereof as defined in PTE 95-60) or by the same employee organization in
the
general account do not exceed 10% of the total reserves and liabilities of
the
general account (exclusive of separate account liabilities) plus surplus
as set
forth in the NAIC Annual Statement filed with such Purchaser’s state of
domicile; or
(b) the
Source is a separate account that is maintained solely in connection with
such
Purchaser’s fixed contractual obligations under which the amounts payable, or
credited, to any employee benefit plan (or its related trust) that has any
interest in such separate account (or to any participant or beneficiary of
such
plan (including any annuitant)) are not affected in any manner by the investment
performance of the separate account; or
(c) the
Source is either (i) an insurance company pooled separate account, within
the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the
Company in writing pursuant to this clause (c), 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
(d) the
Source constitutes assets of an “investment fund” (within the meaning of Part V
of PTE 84-14 (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 I(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 clause (d); or
13
(e) the
Source constitutes assets of a “plan(s)” (within the meaning of Section IV of
PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset
manager” or “INHAM” (within the meaning of Part IV of the INHAM Exemption), the
conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied,
neither the INHAM nor a person controlling or controlled by the INHAM (applying
the definition of “control” in Section IV(d) of the INHAM Exemption) owns a 5%
or more interest in the Company and (i) the identity of such INHAM and (ii)
the
name(s) of the employee benefit plan(s) whose assets constitute the Source
have
been disclosed to the Company in writing pursuant to this clause (e);
or
(f) the
Source is a governmental plan; or
(g) 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
previously been identified to the Company in writing pursuant to this clause
(g); or
(h) 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 6.3, the terms “employee benefit plan,” “governmental
plan,” and “separate account” shall have the respective meanings
assigned to such terms in section 3 of ERISA.
7.
|
INFORMATION
AS TO COMPANY.
|
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),
(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, 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 the posting through an Electronic
Distribution Service (and the sending of a notification of such posting via
email to each holder of Notes that is an Institutional Investor) within the
time
period specified above of the Company’s Quarterly Report on Form 10-Q
prepared in compliance with the requirements therefor shall be deemed to
satisfy
the requirements of this Section 7.1(a);
14
(b) Annual
Statements -- within 105 days after the end of each fiscal year of the
Company,
(i) a
consolidated balance sheet of the Company and its Subsidiaries, as at the
end of
such year, and
(ii) consolidated
statements of income, 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
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 the standards of the Public Company Accounting Oversight
Board,
and that such audit provides a reasonable basis for such opinion in the
circumstances, provided that the posting through an Electronic
Distribution Service (and the sending of a notification of such posting via
email to each holder of Notes that is an Institutional Investor) within the
time
period specified above of the Company’s Annual Report on Form 10-K for such
fiscal year prepared in accordance with the requirements therefor shall be
deemed to satisfy the requirements of this Section 7.1(b);
(c) SEC
and Other Reports -- except for filings referred to in Section 7.1(a)
and (b) above, promptly upon their becoming available and, to the extent
applicable, the Company will make the following items available to each holder
of Notes that is an Institutional Investor by posting the same through an
Electronic Distribution Service (and sending a notification of such posting
via
email to each such Institutional Investor): (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 and (iii) the Company’s annual report to shareholders, if any, prepared
pursuant to Rule 14a-3 under the Exchange Act;
15
(d) Notice
of Default or Event of Default -- promptly, and in any event within five
Business Days after a Senior Financial Officer becomes 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 -- at any time that the Company is not a reporting company under the
Exchange Act, promptly, and in any event within five Business Days after
a
Responsible Officer becomes 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, as defined
in Section 4043(c) of ERISA and the regulations thereunder, for
which notice thereof has not been waived pursuant to such regulations as
in
effect on the date thereof; 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 would result in the incurrence of any
liability by the Company or any ERISA Affiliate pursuant to Title I or IV
of ERISA or the imposition of a penalty or excise tax under the provisions
of
the Code relating to employee benefit plans, or 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, would reasonably be expected to have
a
Material Adverse Effect;
(f) Notices
from Governmental Authority -- at any time that the Company is not a
reporting company under the Exchange Act, 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 would 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 to the extent 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 holder of Notes
that is an Institutional Investor or such information regarding the Company
required to satisfy the requirements of 17 C.F.R. §230.144A, as amended
from time to time, in connection with any contemplated transfer of the Notes;
provided, that nothing in this Section 7.1(g) shall obligate the
Company or any Subsidiary to disclose to any such Institutional Investor
information the disclosure of which would (i) be a violation of any applicable
law, statute or regulation of any Governmental Authority applicable to the
Company or Subsidiary disclosing such information or (ii) be a breach of
any
contractual agreement (other than any such agreement entered into in
contemplation of this subclause (ii) or any request for information under
Section 7.1(g)) regarding confidentiality of information to which the Company
or
Subsidiary disclosing such information is a party; provided, further
that the Company agrees to work with each such Institutional Investor
and
any prospective transferee of it Notes with respect to any request for
information under this Section 7.1(g), in good faith, to attempt to resolve
any
impediment to such disclosure raised by clause (i) or clause (ii)
hereof.
16
7.2. Officer’s
Certificate; Reconciliation upon Change in GAAP.
Together
with each set of
financial statements made available to a holder of Notes that is an
Institutional Investor in accordance with Section 7.1(a) or
Section 7.1(b) hereof, the Company shall make available to such holder (in
the same manner in which such financial statements were made available to
such
holder or as otherwise provided for the giving of notices in Section
18):
(a) a
certificate of a Senior Financial Officer setting forth:
(i) Covenant
Compliance -- the information required in order to establish whether the
Company was in compliance with the requirements of Section 10.1 through
Section 10.4 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
(ii) Event
of Default -- a statement that such officer has reviewed the relevant terms
hereof and such review shall not have disclosed the existence during the
quarterly or annual period covered by the statements then being furnished
of any
condition or event that constitutes a Default or an Event of Default or,
if any
such condition or event existed or exists, specifying the nature and period
of
existence thereof and what action the Company shall have taken or proposes
to
take with respect thereto; and
(b) a
reconciliation reflecting the effect on such financial statements of using
GAAP
as in effect immediately prior to any change in GAAP referred to in the proviso
to the definition of “GAAP”.
17
7.3. Visitation.
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, upon at least 10 days prior written notice to the Company and
not
more than once in each fiscal year of 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 (in the presence of an officer of the Company,
if
requested by the Company), 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 such visitations and discussions to
occur
during normal business hours; 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.
8.
|
PAYMENT
OF THE NOTES.
|
8.1. Payment
at Maturity.
(a) The
entire unpaid principal amount of the Series A Notes shall become due and
payable on September 27, 2017.
(b) The
entire unpaid principal amount of the Series B Notes shall become due and
payable on September 27, 2019.
(c) The
entire unpaid principal amount of the Series C Notes shall become due and
payable on September 27, 2022.
(d) The
entire unpaid principal amount of the Series D Notes shall become due and
payable on September 27, 2027.
8.2.
Optional Prepayments with Make-Whole
Amount.
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 10% of the original aggregate
principal amount of the Notes in the case of a partial prepayment, at 100%
of
the principal amount so prepaid, together with interest accrued thereon to
the
date of such prepayment, plus the Make-Whole Amount determined for the
prepayment date with respect to such principal amount of each Note then
outstanding. 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 (which shall be a Business
Day)
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.
18
8.3. Allocation
of Partial Prepayments.
In
the case of each partial
prepayment of the Notes pursuant to the provisions of Section 8.2, the
principal amount of the Notes to be prepaid shall be allocated among all
the
Notes at the time outstanding in proportion, as nearly as practicable, to
the
respective unpaid principal amounts thereof.
8.4. Maturity;
Surrender, Etc.
In
the case of each prepayment
of Notes pursuant to Section 8.2 or Section 8.7, the principal amount of
each Note to be prepaid shall mature and become due and payable on the date
fixed for such prepayment (which shall be a Business Day), together with
interest on such principal amount accrued to such date and, in the case of
any
prepayment pursuant to Section 8.2, 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
surrendered to the Company and canceled and shall not be reissued, and no
Note
shall be issued in lieu of any prepaid principal amount of any
Note.
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 of any Series except (a) upon
the
payment or prepayment of the Notes in accordance with the terms of this
Agreement and the Notes or (b) pursuant to a written offer to purchase any
outstanding Notes of any Series made by the Company or an Affiliate pro rata
to
the holders of the Notes of such Series upon the same terms and
conditions. 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.
19
8.6. Make-Whole
Amount.
The
term “Make-Whole
Amount” means with respect to any Note 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, 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, the principal of such Note that is to be prepaid pursuant
to Section 8.2 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, the amount obtained by discounting
all Remaining Scheduled Payments 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 such Note is payable) equal to
the
Reinvestment Yield.
“Reinvestment
Yield” means,
with respect to the Called Principal of any Note, 0.50% plus the yield to
maturity calculated by using (i) the yields reported, as of 10:00 A.M. (New
York
City time) on the second Business Day preceding the Settlement Date on screen
“PX 1” on the Bloomberg Financial Market Service (or such other display on the
Bloomberg Financial Market Service as may be agreed upon by the Company and
the
Required Holders having the same information if “PX-1” is replaced by Bloomberg
Financial Market Service) for the most recently issued, actively traded,
on-the-run benchmark 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, (including by way of interpolation),
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, 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. In either case, the 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 on a straight line basis between (1) the applicable
U.S.
Treasury security with the maturity closest to and greater than the Remaining
Average Life and (2) the applicable U.S. Treasury security with the maturity
closest to and less than the Remaining Average Life. The Reinvestment
Yield shall be rounded to the number of decimal places as appears in the
interest rate of the applicable Note.
“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.
20
“Remaining
Scheduled Payments”
means, with respect to the Called Principal of any Note, 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 such Note, 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
Section 8.2 or 12.1.
“Settlement
Date” means, with
respect to the Called Principal of any Note, the date on which such Called
Principal is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to Section 12.1, as the
context requires.
8.7. Prepayment
at Par Upon the Sale of Certain Assets.
(a) Notice
and Offer. In the event the Company or any Subsidiary elects
to prepay or retire Senior Debt with the net proceeds of any sale, lease
or
other disposition of assets in accordance with Section 10.4(b), the Company
will
give written notice thereof to each holder of Notes. Such written
notice shall contain, and such written notice shall constitute, an irrevocable
offer to prepay (the “Asset Sale Prepayment Offer”), at the election of
each holder, a portion of the aggregate principal amount of the Notes held
by
such holder equal to such holder’s Ratable Portion of such net proceeds being
applied by the Company and its Subsidiaries to the prepayment or retirement
of
Senior Debt on a date specified in such notice (the “Asset Sale Prepayment
Date”) that is not less than thirty (30) days and not more than sixty (60)
days after the date of such notice. If the Asset Sale Prepayment Date
shall not be specified in such notice, the Asset Sale Prepayment Date shall
be
the fortieth (40th) day after the date of such notice.
(b) Acceptance
and Payment. To accept such Asset Sale Prepayment Offer, a
holder of Notes shall cause a notice of such acceptance to be delivered to
the
Company not later than twenty (20) days after the date of receipt of such
written notice from the Company, provided, that failure to accept such offer
in
writing within twenty (20) days after the date of such written notice shall
be
deemed to be rejection of the Asset Sale Prepayment Offer. If so
accepted by any holder of a Note, such offered prepayment shall be due and
payable on the Asset Sale Prepayment Date. Such offered prepayment
shall be made at one hundred percent (100%) of the aggregate principal amount
of
such Notes being so prepaid together with interest on such principal amount
then
being prepaid accrued to the Asset Sale Prepayment Date.
(c) 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 and dated the date of such offer, specifying:
21
(i) the
Asset Sale Prepayment Date and the aggregate net proceeds of the sale, lease
or
other disposition of assets being applied by the Company and its Subsidiaries
to
the prepayment or retirement of Senior Debt in connection with such
offer;
(ii) that
such offer is being made pursuant to Section 8.7 and Section 10.4(b) of this
Agreement;
(iii) the
principal amount of each Note offered to be prepaid;
(iv) the
interest that would be due on the principal amount of each such Note offered
to
be prepaid, accrued to the Asset Sale Prepayment Date; and
(v) in
reasonable detail, the nature of the sale, lease or other disposition of
assets
giving rise to such offer.
8.8. Prepayment
of Notes Upon Change in Control.
(a) Notice
of Change in Control. The Company will, within five Business Days after
any Responsible Officer has knowledge of the occurrence of any Change in
Control, give written notice of such Change in Control to each holder of
Notes
unless notice in respect of such Change in Control shall have been given
pursuant to Section 8.8(b). If a Change in Control has occurred, such
notice shall contain and constitute an offer to prepay Notes as described
in
Section 8.8(c) and shall be accompanied by the certificate described in Section
8.8(g).
(b) Condition
to Company Action. The Company will not take any action that
consummates or finalizes a Change in Control unless (i) at least 30 days
prior to such action it shall have given to each holder of Notes written
notice
containing and constituting an offer to prepay Notes as described in Section
8.8(c), accompanied by the certificate described in 8.8(g), and
(ii) contemporaneously with such action, it prepays all Notes required to
be prepaid in accordance with this Section 8.8.
(c) Offer
to Prepay Notes. The offer to prepay Notes contemplated by
Sections 8.8(a) and (b) shall be an offer to prepay, in accordance with and
subject to this Section 8.8, all, but not less than all, the Notes held by
each
holder (in this case only, “holder” in respect of any Note registered
in the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on a date specified in such offer (the “Proposed
Prepayment Date”). If such Proposed Prepayment Date is in
connection with an offer contemplated by Section 8.8(a), such date shall
be not
less than 30 days and not more than 90 days after the date of such
offer (if the Proposed Prepayment Date shall not be specified in such offer,
the
Proposed Prepayment Date shall be the first Business Day after the 45th day
after the date of such offer).
(d) Acceptance/Rejection. A
holder of Notes may accept the offer to prepay made pursuant to this Section
8.8
by causing a notice of such acceptance to be delivered to the Company not
later
than 15 days after receipt by such holder of the most recent offer of
prepayment. A failure by a holder of Notes to respond to an offer to
prepay made pursuant to this Section 8.8 shall be deemed to constitute a
rejection of such offer by such holder.
22
(e) Prepayment. Prepayment
of the Notes to be prepaid pursuant to this Section 8.8 shall be at 100%
of the
principal amount of such Notes, together with interest on such Notes accrued
to
the date of prepayment, but without Make-Whole Amount or other
premium. The prepayment shall be made on the Proposed Prepayment Date
except as provided in Section 8.8(f).
(f) Deferral
Pending Change in Control. The obligation of the Company to
prepay Notes pursuant to the offers required by Section 8.8(c) and accepted
in
accordance with Section 8.8(d) 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 has not occurred 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 8.8 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
8.8 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 8.8; (iii) the principal amount of each Note
offered to be prepaid; (iv) the interest that would be due on each Note
offered to be prepaid, accrued to the Proposed Prepayment Date (including
the
per diem accrual of interest for each day after the Proposed Prepayment Date,
in
the event of a deferral of the prepayment date pursuant to Section 8.8(f)
above); (v) that the conditions of this Section 8.8 have been fulfilled;
and (vi) in reasonable detail, the nature and date or proposed date of the
Change in Control.
(h) Certain
Definitions.
As
used
in this Section 8.8:
(i) “Change
in Control” means (A) if any Person or two or more Persons acting in
concert (other than any Founder) acquire beneficial ownership (within the
meaning of Rule 13d-3 of the United States Securities and Exchange Commission
under the Exchange Act), directly or indirectly, of Voting Stock of the Company
representing 20% or more of the combined voting power of all Voting Stock
of the
Company or (B) any Person or two or more Persons acting in concert (other
than
any Founder) acquire by contract or otherwise, or enter into a contract or
arrangement that, upon consummation, will result in its or their acquisition
of
the power to exercise, directly or indirectly, a controlling influence over
the
management or policies of the Company; provided, however, that a Change of
Control shall be deemed not to have occurred for the purposes of this Agreement
if the Person or Persons referred to in clauses (A) or (B) above has or have
a
Public Debt Rating with a stable outlook which is equal to or better than
that
of the Company immediately before what would, but for this proviso, have
been a
Change of Control.
23
(ii) “Founder”
means:
(A) each
Person who is a beneficial owner (within the meaning of Rule 13d-3 of the
United
States Securities and Exchange Commission under the Exchange Act) of 20%
or more
of the outstanding shares of Voting Stock of the Company on the date of Closing
or any Person that is or becomes a fiduciary of any Person who is a beneficial
owner of (or any Person for whose account were held) outstanding shares of
Voting Stock of the Company on the date of Closing (in any such case, an
“Existing Shareholder”), including any group that is comprised solely
of Existing Shareholders; and
(B) any
such Existing Shareholder or group comprised solely of Existing Shareholders
who
shall become the beneficial owner of 20% or more of the outstanding shares
of
Voting Stock of the Company solely as a result of an acquisition by the Company
of shares of its Voting Stock,
in
each
case until such time as the Persons or group described in clauses (A) and
(B)
above shall become the beneficial owner (other than by means of a stock
dividend, stock split, gift or inheritance or receipt or exercise of, or
accrual
of any right to exercise, any stock options of shares of stock granted by
the
Company) of any additional shares of Voting Stock of the Company.
In
addition, the Company, any wholly-owned Subsidiary of the Company and any
employee stock ownership or other employee benefit plan of the Company or
a
wholly-owned Subsidiary of the Company shall be a
“Founder”.
(iii) “Public
Debt Rating” means, with respect to any Person, the rating that has been
most recently announced by either S&P or Xxxxx’x or both as the case may be
with respect to the overall financial capacity (the creditworthiness) of
such
Person to pay its financial obligations as they come due.
(i) All
calculations contemplated in this Section 8.8 involving the Voting Stock
of any
Person shall be made with the assumption that all convertible Securities
of such
Person then outstanding and all convertible Securities issuable upon the
exercise of any warrants, options and other rights outstanding at such time
were
converted at such time and that all options, warrants and similar rights
to
acquire shares of Voting Stock of such Person were exercised at such
time.
24
9.
|
AFFIRMATIVE
COVENANTS.
|
The
Company covenants that so
long as any of the Notes are outstanding:
9.1. Compliance
with Law.
Without
limiting
Section 10.8, the Company will, and will cause each of its Subsidiaries to,
comply with all laws, ordinances or governmental rules or regulations to
which
each of them is subject, including, without limitation, ERISA, the USA Patriot
Act and 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 would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. Insurance.
The
Company will, and will cause
each of its 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 except for any failure to maintain insurance
that would not reasonably be expected to have a Material Adverse
Effect.
9.3. Maintenance
of Properties.
The
Company will, and will cause each
of its 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) in all Material respects, so that the business
carried on in connection therewith may be properly conducted at all times,
provided that this Section 9.3 shall not prevent the Company or
any 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 would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.4. Payment
of Taxes and Claims.
The
Company will, and will cause each
of its Subsidiaries to, file or cause to be filed 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, to the extent such taxes, assessments governmental
charges or levies 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, assessment, charge, levy or claim 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 non-filing or
nonpayment, as the case may be, of all such taxes, assessments, charges,
levies
and claims in the aggregate would not reasonably be expected to have a Material
Adverse Effect.
25
9.5. Corporate
Existence, Etc.
Subject
to Sections 10.4 and 10.5,
the Company will at all times preserve and keep in full force and effect
its
corporate existence, and will at all times preserve and keep in full force
and
effect the corporate existence of each of its Subsidiaries (unless merged
into
the Company or a Subsidiary) and all rights and franchises of the Company
and
its 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 would not, individually or in the
aggregate, to have a Material Adverse Effect.
9.6 Notes
to Rank Pari Passu.
The
Notes and all other obligations
under this Agreement of the Company are and at all times shall remain direct
and
unsecured obligations of the Company ranking pari passu as against the
assets of the Company with all other Notes from time to time issued and
outstanding hereunder without any preference among themselves and pari
passu with all other present and future unsecured Debt (actual or
contingent) of the Company which is not expressed to be subordinate or junior
in
rank to any other unsecured Debt of the Company. The Company will
ensure that the payment obligations of all Subsidiary Guarantors under the
Subsidiary Guaranty Agreements to which they are a party are and at all times
shall remain direct and unsecured obligations of such Subsidiary Guarantors
ranking pari passu as against the assets of such Subsidiary Guarantors
with all other present and future unsecured Debt (actual or contingent) of
such
Subsidiary Guarantors which is not expressed to be subordinate or junior
in rank
to any other unsecured Debt of such Subsidiary Guarantors.
9.7. Books
and Records.
The
Company will, and will cause each
of its Subsidiaries to, maintain proper books of record and account in
conformity with GAAP and all applicable requirements of any Governmental
Authority having legal or regulatory jurisdiction over the Company or such
Subsidiary, as the case may be.
9.8. Future
Subsidiary Guarantors.
If,
at any time on or after the
date of the Closing, any Subsidiary of the Company shall become a guarantor
under any Principal Bank Facility, the Company shall, contemporaneously with
such Subsidiary becoming a guarantor thereunder, cause any such Subsidiary
which
is not then a Subsidiary Guarantor to become a Subsidiary Guarantor, which
condition shall be deemed to be met upon the receipt by each holder of a
Note of
the following:
26
(a) an
executed guaranty agreement, in form and substance reasonably satisfactory
to
the Required Holders, from such Subsidiary Guarantor (each such guaranty
agreement, a “Subsidiary Guaranty Agreement”);
(b) opinions
of reputable counsel of such Subsidiary Guarantor reasonably satisfactory
to the
Required Holders and of special US counsel for the Parent or other counsel
reasonably satisfactory to the Required Holders (which opinions shall be
reasonably satisfactory to the Required Holders and may be subject to customary
exceptions, qualifications and limitations under the circumstances none of
which
may relate to the absence of shareholder approval or be material to the
practical realization of the benefits and pari passu ranking with the right
of
pro rata recovery of a guarantee of unsecured and unsubordinated Debt) to
the
effect that such Subsidiary Guaranty Agreement has been duly authorized,
executed and delivered by such Subsidiary Guarantor and is valid, binding
and
enforceable in accordance with its terms and the claims of the holders of
the
Notes (having the benefits of such Subsidiary Guaranty Agreement) against
such
Subsidiary Guarantor will be enforced on a parity with the claims of other
unsecured and unsubordinated creditors of such Subsidiary Guarantor in a
bankruptcy, insolvency or other analogous proceeding arising in the jurisdiction
of incorporation or organization of such Subsidiary Guarantor;
(c) copies
of (i) the charter documents of such Subsidiary Guarantor, (ii) a resolution
of
the board of directors of such Subsidiary Guarantor (A) approving the terms
of,
and the transactions contemplated by, the Subsidiary Guaranty Agreement,
(B)
resolving that it execute the Subsidiary Guaranty Agreement and authorizing
a
specified person or persons to execute and deliver the Subsidiary Guaranty
Agreement and (C) authorizing a specified person or persons on its behalf,
to
sign or dispatch all documents to be signed or dispatched by it under or
in
connection with this Agreement and the Subsidiary Guaranty Agreement and
(iii) a
specimen of the signature of each person authorized by the resolutions referred
to in clause (ii) above;
(a) a
certificate of a director of such Subsidiary Guarantor certifying that execution
and delivery of the Subsidiary Guaranty Agreement would not cause any borrowing
limit binding on it to be exceeded.
(d) confirmation
that all reasonable fees and expenses of the holders of the Notes, including,
without limitation, the reasonable fees of not more than one special counsel
representing all of the holders of the Notes in each applicable jurisdiction,
incurred in connection with the execution and delivery of the Subsidiary
Guaranty Agreement shall have been paid by the Company;
(e) with
respect to any Subsidiary Guarantor not organized in the United States or
any
State thereof, evidence of the appointment of an agent for service of process,
reasonably acceptable to the Required Holders, as such Subsidiary’s agent to
receive, for it and on its behalf service of process in the State of New
York
with respect thereto; and
27
(f) an
Officer’s Certificate of such Subsidiary Guarantor certifying that each document
required to be delivered by or on behalf of such Subsidiary Guarantor pursuant
to this Section 9.8 is correct, complete and in full force and
effect.
If
any Subsidiary Guarantor
shall have been released from its obligations as a guarantor under any Principal
Bank Facility, at the election of the Company and by written notice to each
holder of Notes, such Subsidiary Guarantor may be discharged from all of
its
obligations and liabilities under its Subsidiary Guaranty Agreement and shall
be
automatically released from its obligations thereunder without the need for
the
execution or delivery of any other document by such holders or any other
Person,
provided, in each case, that (i) after giving effect to such release no Default
or Event of Default shall have occurred and be continuing, (ii) no amount
is
then due and payable under such Subsidiary Guaranty Agreement, (iii) any
fee
paid to any lender under such Principal Bank Facility in connection with
the
release of such Subsidiary Guarantor is paid to each holder of Notes at the
same
time and in an amount calculated in the same manner in which the fee paid
to
such lender under such Principal Bank Facility was calculated and (iv) each
holder of Notes shall have received a certificate of a Senior Financial Officer
to the foregoing effect and setting forth the information (including reasonably
detailed computations) reasonably required to establish compliance with the
foregoing requirements (including, without limitation, a description of the
fee,
if any, paid by the Company in respect of such release under such Principal
Bank
Facility). Notwithstanding anything in this Section 9.8 to the
contrary, however, the Company shall not be required to cause any Subsidiary
to
become a Subsidiary Guarantor pursuant to this Section 9.8 if it
is unlawful for the relevant Subsidiary to become a Subsidiary
Guarantor or it would result in personal or criminal liability for that
Subsidiary’s directors or other management. The Company shall use,
and shall ensure that the relevant Person uses, all reasonable endeavors
lawfully available to avoid such unlawfulness or personal or criminal
liability. This includes agreeing to a limit on the amount guaranteed
(a “Guaranty Cap”). The Required Holders may (but shall not
be obliged to) agree to such a Guaranty Cap if, in their reasonable opinion,
to
do so would avoid the relevant unlawfulness or personal or criminal
liability.
10.
|
NEGATIVE
COVENANTS.
|
The
Company covenants that so
long as any of the Notes are outstanding:
10.1. Consolidated
Net Debt to Consolidated EBITDA.
The
Company will not permit the
ratio of Consolidated Net Debt to Consolidated EBITDA (calculated as at the
end
of each Fiscal Quarter for the Reference Period then ended) to exceed 3.50
to
1.00; provided, however, that such ratio may, subject to the payment of
Additional Interest during any Additional Interest Period, exceed 3.50 to
1.00
at the end of any Fiscal Quarter so long as such ratio does not exceed 4.00
to 1
at such time; further provided, however, that notwithstanding anything in
this
Section 10.1 to the contrary, the Company will not permit such ratio to exceed
3.50 to 1.00 for more than eight consecutive Fiscal Quarters.
28
10.2.
Subsidiary Debt.
The
Company will not at any time permit
the aggregate amount of all Subsidiary Debt at such time to exceed 20% of
Consolidated Total Assets, determined as of the last day of the then most
recently ended Fiscal Quarter.
10.3. Limitation
on Liens.
The
Company will not, and will not
permit any of its 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 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 (unless it makes, or causes to be made, effective
provision whereby the Notes will be equally and ratably secured with any
and all
other obligations thereby secured, such security to be pursuant to an agreement
reasonably satisfactory to the Required Holders), except:
(a) Liens
for taxes, assessments or other governmental charges that 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
60
days after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall not have been discharged within 60 days after the
expiration of any such stay;
(c) Liens
incidental to the conduct of business or the ownership of properties and
assets
(including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and
other similar Liens for sums not yet due and payable) and Liens to secure
the
performance of bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation, unemployment
insurance and other social security legislation), surety or appeal bonds
or
other Liens incurred in the ordinary course of business, 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;
(d) leases
or subleases granted to others, easements, rights-of-way, restrictions and
other
similar charges or encumbrances, in each case incidental to the ownership
of
property or assets or the ordinary conduct of the business of the Company
or any
of its Subsidiaries, and Liens incidental to minor survey exceptions and
the
like, provided that such Liens do not, in the aggregate, materially detract
from
the value of such property or assets;
(e) Liens
securing Debt of a Subsidiary which is not a Subsidiary Guarantor to the
Company
or to another Subsidiary or Liens securing Debt of a Subsidiary Guarantor
to the
Company or another Subsidiary Guarantor;
29
(f) Liens
(i) existing on property at the time of its acquisition, construction or
improvement by the Company or a Subsidiary and not created in contemplation
thereof; (ii) on property created contemporaneously with its acquisition
or
within 365 days of the acquisition or completion of construction or improvement
thereof to secure the purchase price or cost of construction or improvement
thereof; or (iii) existing on property of a Person at the time such Person
is
consolidated with or merged into the Company or a Subsidiary and not created
in
contemplation thereof; provided that (A) such Liens shall attach solely
to the property acquired, constructed or improved, or to the property that
is
subject to such Liens at the time such Person shall be so consolidated or
merged
(as the case may be), (B) the principal amount of the Debt secured by such
Lien
shall not exceed the Fair Market Value of such property (as determined in
good
faith by one or more officers of the Company to whom authority to enter into
the
subject transaction has been delegated by the board of directors of the Company)
or, in the case of the foregoing clause (i), if less, the cost of acquisition,
construction or improvement of such property, (C) at the time of the incurrence
of such Lien, the acquisition of such property or the consolidation or merger
of
such Person (as the case may be), and after giving effect thereto, no Default
or
Event of Default would exist, and (D) the aggregate principal amount of Debt
secured by such Liens shall not exceed $60,000,000 at any time;
(g) any
extensions, renewals or replacements of any Lien permitted by the preceding
subparagraph (f) of this Section 10.3, provided that (i) no additional
property shall be encumbered by such Liens, (ii) the unpaid principal
amount of the Debt secured thereby shall not be increased on or after the
date
of any extension, renewal or replacement, and (iii) immediately after
giving effect thereto, no Default or Event of Default shall have occurred
and be
continuing; and
(h) Liens
securing Debt of the Company or any Subsidiary not otherwise permitted under
this Section 10.3 in an aggregate principal amount not to exceed $120,000,000
at
any time.
In
the
event that any Lien exists on property of the Company or any Subsidiary in
violation of this Section 10.3, such violation shall constitute an Event
of
Default, but the Notes shall have the benefit, to the fullest extent that,
and
with such priority as, the holders may be entitled under applicable law,
of an
equitable Lien on such property.
10.4. Sales
of Assets.
The
Company will not, and will not
permit any Subsidiary to, sell, lease or otherwise dispose of any substantial
part (as defined below) of the assets of the Company and its Subsidiaries
(including, without limitation, capital stock of Subsidiaries and accounts
receivable); provided, however, that the Company or any Subsidiary may
sell, lease or otherwise dispose of assets constituting a substantial part
of
the assets of the Company and its Subsidiaries if (x) such assets are sold
in an
arm’s-length transaction for Fair Market Value in the ordinary course of
business, (y) at the time of such sale, lease or other disposal, and after
giving effect thereto, no Default or Event of Default shall have occurred
and be
continuing and (z) an amount of the net proceeds received from such sale,
lease
or other disposition at least equal to the Excess Asset Sale Amount shall
be
used within 365 days of such sale, lease or disposition, in any
combination:
30
(a) to
acquire from Persons that are not Affiliates of the Company or any Subsidiary
productive assets used or useful in carrying on the business of the Company
and
its Subsidiaries and having a value at least equal to the value of such assets
sold, leased or otherwise disposed of; and/or
(b) to
prepay or retire Senior Debt of the Company and/or its Subsidiaries,
provided, that the availability under any such Senior Debt so prepaid
that constitutes a revolving credit or similar facility is permanently reduced
by the amount of such prepayment, and provided further that,
in the course of making such application, the Company shall offer to prepay
each
outstanding Note at par, in accordance with Section 8.7, in a principal amount
which equals the Ratable Portion of the holder of such Note with respect to such
prepayment or retirement of Senior Debt.
As
used in this Section 10.4, a
sale, lease or other disposition of assets shall be deemed to be a
“substantial part” of the assets of the Company and its Subsidiaries if
the Disposition Value of such assets, when added to the Disposition Value
of all
other assets sold, leased or otherwise disposed of by the Company and its
Subsidiaries during the period of 12 consecutive calendar months most recently
ended as of the date on which such sale, lease or other disposition is
consummated, exceeds 10% of Consolidated Total Assets, determined as of the
end
of the Fiscal Quarter most recently ended as of such date (the amount of
any
such excess, subject to the proviso hereto, being referred to herein as the
“Excess Asset Sale Amount”); provided that there shall be
excluded from any determination of a “substantial part” (i) any sale or
disposition of assets in the ordinary course of business of the Company and
its
Subsidiaries, (ii) any transfer of assets from the Company to any
Subsidiary or from any Subsidiary to the Company or a Subsidiary, (iii) any
sale
or transfer of property acquired by the Company or any Subsidiary after the
date
of this Agreement to any Person within 365 days following the acquisition
or
construction of such property by the Company or any Subsidiary if the Company
or
a Subsidiary shall concurrently with such sale or transfer, lease such property,
as lessee and (iv) the Disposition Value of any assets subject to any sale,
lease or disposal to the extent that the net proceeds of such transaction
are
applied to either or both of the applications provided for in clauses (a)
and
(b) of this Section 10.4.
10.5. Merger
and Consolidation.
The
Company will not, and will not
permit any of its 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; provided
that:
(a) any
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, (i) the Company or a Subsidiary
(other
than a Subsidiary Guarantor) so long as in any merger or consolidation involving
the Company, the Company shall be the surviving or continuing entity, (ii)
a
Subsidiary Guarantor so long as in any merger or consolidation involving
a
Subsidiary Guarantor (and not involving the Company), such Subsidiary Guarantor
shall be the surviving or continuing entity or (iii) any other Person so
long as
the survivor is the Subsidiary, or (y) convey, transfer or lease all of its
assets in compliance with the provisions of Section 10.4; and
31
(b) the
foregoing restrictions do not apply to the consolidation or merger of the
Company or any Subsidiary Guarantor with, or the conveyance, transfer or
lease
of substantially all of the assets of the Company or such Subsidiary Guarantor
in a single transaction or series of transactions to, any Person so long
as:
(i) in
the case of the Company, 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 entity
organized and existing under the laws of the United States of America, any
State
thereof or the District of Columbia and, if the Company is not the Successor
Corporation, such Successor 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) ;
(ii) in
the case of any Subsidiary Guarantor, the successor formed by such consolidation
or the survivor of such merger or the Person that acquires by conveyance,
transfer or lease all or substantially all of the assets of such Subsidiary
Guarantor as an entirety, as the case may be (the “Successor Guarantor
Corporation”), shall be a solvent entity organized and existing under the
laws of the United States of America, any State thereof or the District of
Columbia or the jurisdiction in which such Subsidiary Guarantor was organized
prior to such consolidation or merger, and, if such Subsidiary Guarantor
is not
such Successor Guarantor Corporation, such Successor Guarantor 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
the
Subsidiary Guaranty Agreement of such Subsidiary Guarantor (pursuant to such
agreements and instruments as shall be reasonably satisfactory to the Required
Holders);
(iii) in
each case under clauses (i) and (ii) above, the Successor Corporation or
Successor Guarantor Corporation, as applicable, 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
(iv) immediately
after giving effect to such transaction no Default or Event of Default would
exist.
32
10.6. Transactions
with Affiliates.
The
Company will not and will not
permit any Subsidiary to enter into directly or indirectly any Material
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 Subsidiary), except in the ordinary course and upon fair and reasonable
terms that are not materially less favorable to the Company or such Subsidiary,
taking such transaction or group of related transactions as a whole, than
would
be obtainable in a comparable arm’s-length transaction with a Person not an
Affiliate.
10.7. Nature
of Business.
The Company
will not and will not permit any Subsidiary to engage in any business if,
as a
result, the general nature of the business in which the Company and its
Subsidiaries, taken as a whole, would then be engaged would be substantially
changed from the general nature of the business in which the Company and
its
Subsidiaries, taken as a whole, are engaged on the date of this Agreement
as
described in the Memorandum.
10.8. Terrorism
Sanctions Regulations.
The
Company will not, and will
not permit any of its Subsidiaries to, (a) become a Person described or
designated in the Specially Designated Nationals and Blocked Persons List
of the
Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism
Order or, (b) knowingly engage in any dealings or transactions with any
such Person.
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 term contained
in
Section 10; or
(d) the
Company defaults in the performance of or compliance with any term 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 or (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
33
(e) any
representation or warranty made in writing by or on behalf of the Company
or by
any officer of the Company in this Agreement or by or on behalf of any
Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in the
Subsidiary Guaranty Agreement to which it is a party or in any writing furnished
in connection with the transactions contemplated hereby or thereby 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 Subsidiary is in default (as principal or as guarantor or
other
surety) in the payment of any principal of or premium, make-whole amount
or
interest (in the payment amount of at least $100,000) on any Debt, other
than
the Notes, that is outstanding in an aggregate principal amount of at least
$25,000,000 beyond any period of grace provided with respect thereto, or
(ii) the Company or any Subsidiary is in default in the performance of or
compliance with any term of any instrument, mortgage, indenture or other
agreement relating to any Debt other than the Notes in an aggregate principal
amount of at least $25,000,000 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, 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 Subsidiary has become obligated to purchase or repay Debt
other
than the Notes before its regular maturity or before its regularly scheduled
dates of payment in an aggregate outstanding principal amount of at least
$25,000,000; or
(g) the
Company or any Material 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 Material 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 Subsidiaries,
or
any such petition shall be filed against the Company or any of its Material
Subsidiaries and such petition shall not be dismissed within 60 days;
or
(i) a
final judgment or judgments at any one time outstanding for the payment of
money
aggregating in excess of $25,000,000 are rendered against one or more of
the
Company or any Subsidiary and which judgments are not, within 60 days after
entry thereof, bonded, discharged or stayed pending appeal, or are not
discharged within 60 days after the expiration of such stay; or
34
(j) any
Subsidiary Guarantor fails or neglects in any material respect to observe,
perform or comply with any term, provision or covenant contained in the
Subsidiary Guaranty Agreement to which it is party or any Subsidiary Guaranty
Agreement is not or ceases to be effective against the Subsidiary Guarantor
party thereto or is alleged by the Company or any Subsidiary to be ineffective
against such Subsidiary Guarantor for any reason other than, with respect
to
such Subsidiary Guarantor only, as a result of the sale of such Subsidiary
Guarantor as permitted by Section 10.4;
(k) 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 Section 4042 of ERISA 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 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, (iv) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan or the Company or any ERISA Affiliate receives notice
from a
Multiemployer Plan that action has been taken or threatened by the PBGC to
terminate or to appoint a trustee to administer any such Multiemployer Plan,
or
(v) the Company or any Subsidiary establishes or amends any employee
welfare benefit plan that provides post-employment welfare benefits in a
manner
that could increase the liability of the Company or any Subsidiary thereunder;
and any such event or events described in clauses (i) through (v) above,
either
individually or together with any other such event or events, would reasonably
be expected to have a Material Adverse Effect.
As
used
in Section 11(k), the terms “employee benefit plan” and
“employee welfare benefit plan” shall have the respective meanings
assigned to such terms in Section 3 of ERISA.
12.
|
REMEDIES
ON DEFAULT, ETC.
|
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 of every Series then outstanding shall automatically become
immediately due and payable.
(b) If
any other Event of Default has occurred and is continuing, the Required Holders
may at any time at their option, by notice or notices to the Company, declare
all the Notes then outstanding to be immediately due and payable.
35
(c) If
any Event of Default described in paragraph (a) or (b) of Section 11 has
occurred and is continuing with respect to any Notes, 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 such holder or holders to be immediately due and
payable.
Upon
any Note’s 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 (i) all accrued and unpaid interest thereon (including, but not
limited to, interest accrued thereon at the Default Rate) and (ii) 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.
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.
12.3. Rescission.
At
any time after the Notes have
been declared due and payable pursuant to clause (b) or (c) of
Section 12.1, the Required Holders, 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) neither the Company nor any other Person shall have paid any
amounts which have become due solely by reason of such declaration, (c) 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 (d) no judgment or decree has been
entered for the payment of any monies due pursuant hereto or to any
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.
36
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.
13.
|
REGISTRATION;
EXCHANGE; SUBSTITUTION OF
NOTES.
|
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.
13.2. Transfer
and Exchange of Notes.
Upon
surrender of any Note to the
Company at the address and to the attention of the designated officer (all
as
specified in Section 18(iii)), for registration of transfer or exchange
(and in the case of a surrender for registration of transfer accompanied
by a
written instrument of transfer duly executed by the registered holder of
such
Note or such holder’s attorney duly authorized in writing and accompanied by the
relevant name, address and other information for notices of each transferee
of
such Note or part thereof), within ten Business Days thereafter, 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) of the same Series
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 the Note of such Series originally issued hereunder. 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
$100,000, 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 $100,000. 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 6.3.
37
The
Notes have not been
registered under the Securities Act or under the securities laws of any state
and may not be transferred or resold unless registered under the Securities
Act
and all applicable state securities laws or unless an exemption from the
requirement for such registration is available.
13.3. Replacement
of Notes.
Upon
receipt by the Company at
the address and to the attention of the designated officer (all as specified
in
Section 18(iii)) 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 $50,000,000 in excess of the outstanding principal amount of such Note,
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 not more than 30 days
following satisfaction of such conditions, in lieu thereof, a new Note of
the
same Series as such lost, stolen, destroyed or mutilated 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.
14.
|
PAYMENTS
ON NOTES.
|
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 New York, New York at the
principal office in such jurisdiction of the Company’s Paying Agent (on the date
hereof, Citibank, N.A.). 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. Notwithstanding that payments on the Notes will be made
by or through the Paying Agent, the Company is and shall remain primarily
liable
for all of its obligations hereunder and in respect of the Notes.
14.2. Home
Office Payment.
So
long as any Purchaser or its
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
such
Purchaser’s name in Schedule A, or by such other method or at such other address
as such Purchaser 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, such Purchaser 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 a Purchaser or its nominee, such Purchaser
will, at its 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 a Purchaser under this Agreement and
that
has made the same agreement relating to such Note as the Purchasers have
made in
this Section 14.2.
38
15.
|
EXPENSES,
ETC.
|
15.1. Transaction
Expenses.
Whether
or not the transactions
contemplated hereby are consummated, the Company will pay all reasonable,
out-of-pocket costs and expenses (including reasonable attorneys’ fees of a
special counsel and, if reasonably required by the Required Holders, local
or
other counsel) incurred by each Purchaser and each other 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, the Notes and any Subsidiary
Guaranty Agreement (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, the Notes and any Subsidiary Guaranty Agreement
or in responding to any subpoena or other legal process or informal
investigative demand issued in connection with this Agreement, the Notes
and any
Subsidiary Guaranty Agreement, 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 each Purchaser 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, if any, retained by a Purchaser or other holder in connection
with
its purchase of the Notes).
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, the
Notes
or any Subsidiary Guaranty Agreement, and the termination of this
Agreement.
39
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 any Purchaser 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 any such Note, regardless of any
investigation made at any time by or on behalf of any Purchaser 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 the Purchasers
and the Company and supersede all prior agreements and understandings relating
to the subject matter hereof.
17.
|
AMENDMENT
AND WAIVER.
|
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 6 hereof, or any
defined term (as it is used therein), will be effective as to any Purchaser
unless consented to by such Purchaser in writing, and (b) no such amendment
or waiver may, without the written consent of all of the holders of Notes
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 reduce the rate or
change
the time of payment or method of computation of interest (if such change
in the
method of computation of interest results in a decrease in the interest rate)
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.
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 or provide other credit support, to any
holder
of Notes as consideration for or as an inducement to the entering into by
any
holder of Notes of any waiver or amendment of any of the terms and provisions
hereof unless such remuneration is concurrently paid, or security is
concurrently granted or other credit support is concurrently provided, on
the
same terms, ratably to each holder of Notes then outstanding even if such
holder
did not consent to such waiver or amendment.
40
(c) Consent
in Contemplation of Transfer. Any consent made pursuant to this
Section 17 by a holder of Notes that has transferred or has agreed to transfer
its Notes to the Company, any Subsidiary or any Affiliate of the Company
and has
provided or has agreed to provide such written consent as a condition to
such
transfer shall be void and of no force or effect except solely as to such
holder, and any amendments effected or waivers granted or to be effected
or
granted that would not have been or would not be so effected or granted but
for
such consent (and the consents of all other holders of Notes that were acquired
under the same or similar conditions) shall be void and of no force or effect
except solely as to such holder.
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.
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.
41
18.
|
NOTICES.
|
All
notices and communications
provided for hereunder shall be in writing and sent (a) by fax if the
sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (with charges prepaid), (b) by a recognized
overnight delivery service (charges prepaid) or (c) by a posting through
an
Electronic Distribution Service, if the sender on the same day sends or causes
to be sent notice to each holder of Notes of such posting by electronic
mail. Any such notice must be sent:
(i) if
to any Purchaser or its nominee, to such Purchaser or its nominee at the
fax
number or address or, in the case of clause (c) above, the e-mail address
specified for such communications in Schedule A to this Agreement, or at
such other address or e-mail address as such Purchaser or nominee shall have
specified to the Company in writing pursuant to this
Section 18;
(ii) if
to any other holder of any Note, to such holder at such address or, in the
case
of clause (c) above, such e-mail address as such other holder shall have
specified to the Company in writing pursuant to this Section 18;
or
(iii) if
to the Company, to the Company at its address set forth at the beginning
hereof
to the attention of Chief Financial Officer, with a copy to the General Counsel,
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.
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 any
Purchaser at the Closing (except the Notes themselves), and (c) financial
statements, certificates and other information previously or hereafter furnished
to any Purchaser, may be reproduced by such Purchaser by any photographic,
photostatic, electronic, digital, or other similar process and such Purchaser
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 such Purchaser
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.
42
20.
|
CONFIDENTIAL
INFORMATION.
|
For
the purposes of this
Section 20, “Confidential Information” means information delivered
to any Purchaser 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 such Purchaser as being
confidential information of the Company or such Subsidiary, provided
that such term does not include information that (a) was publicly known
(other than through the wrongful disclosure by any Purchaser) or otherwise
known
to such Purchaser prior to the time of such disclosure from a source other
than
the Company, its Subsidiaries or any Affiliate or agent of the Company or
any
Subsidiary known by such Purchaser to be an Affiliate or agent thereof,
(b) subsequently becomes publicly known through no act or omission by such
Purchaser or any person acting on such Purchaser’s behalf, (c) otherwise
becomes known to such Purchaser other than through disclosure by the Company
or
any Subsidiary, or any Affiliate or agent of the Company or any Subsidiary
known
by such Purchaser to be an Affiliate or agent thereof or (d) constitutes
financial statements delivered to such Purchaser under Section 7.1 that are
otherwise publicly available. Each Purchaser will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such Purchaser in good faith to protect confidential information
of
third parties delivered to such Purchaser, provided that such Purchaser
may deliver or disclose Confidential Information to (i) its directors,
officers, employees, agents, attorneys, trustees and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by its Notes), (ii) its 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 it sells or offers 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 it offers 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 such Purchaser, (vii) the National Association of
Insurance Commissioners (including its Securities Valuation Office) or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Purchaser’s 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 such Purchaser, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to
which such Purchaser is a party or (z) if an Event of Default has occurred
and is continuing, to the extent such Purchaser 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 such Purchaser’s Notes and this
Agreement; provided, that such Purchaser shall, unless prohibited by
law, notify the Company of any disclosure required pursuant to clause (x)
or (y)
above as far in advance as reasonably practicable to enable the Company to
seek
a protective order or other appropriate relief. 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.
43
21.
|
SUBSTITUTION
OF PURCHASER.
|
Each
Purchaser shall have the
right to substitute any one of its Affiliates as the purchaser of the Notes
that
it has agreed to purchase hereunder, by written notice to the Company, which
notice shall be signed by both such Purchaser 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,
any reference to such Purchaser in this Agreement (other than in this Section
21), shall be deemed to refer to such Affiliate in lieu of such original
Purchaser. In the event that such Affiliate is so substituted as a
Purchaser hereunder and such Affiliate thereafter transfers to such original
Purchaser all of the Notes then held by such Affiliate, upon receipt by the
Company of notice of such transfer, any reference to such Affiliate as a
“Purchaser” in this Agreement (other than in this Section 21), shall no longer
be deemed to refer to such Affiliate, but shall refer to such original
Purchaser, and such original Purchaser shall again have all the rights of
an
original holder of the Notes under this Agreement.
22.
|
MISCELLANEOUS.
|
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.
22.2. Payments
Due on Non-Business Days.
Anything
in this Agreement or the Notes
to the contrary notwithstanding (but without limiting the requirement in
Section 8.2 that the notice of any optional prepayment specify a Business
Day as the date fixed for such prepayment), 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; provided that if the maturity date of any
Note is a date other than a Business Day, the payment otherwise due on such
maturity date shall be made on the next succeeding Business Day and shall
include the additional days elapsed in the computation of interest payable
on
such next succeeding Business Day.
22.3. Accounting
Terms.
All
accounting terms used herein which
are not expressly defined in this Agreement have the meanings respectively
given
to them in accordance with GAAP. Except as otherwise specifically
provided herein, (i) all computations made pursuant to this Agreement shall
be made in accordance with GAAP, and (ii) all financial statements shall be
prepared in accordance with GAAP.
44
22.4. 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.
22.5. 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.
For
the avoidance of doubt, all
Schedules and Exhibits attached to this Agreement shall be deemed to be a
part
hereof.
22.6. 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.
22.7. 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 New York excluding choice-of-law principles of
the law of such State that would permit the application of the laws of a
jurisdiction other than such State.
22.8. Jurisdiction
and Process; Waiver of Jury Trial.
(a) The
Company irrevocably submits to the non-exclusive jurisdiction of any New
York
State or federal court sitting in the Borough of Manhattan, The City of New
York, over any suit, action or proceeding arising out of or relating to this
Agreement or the Notes. To the fullest extent permitted by applicable
law, the Company irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any claim that it is not subject to the jurisdiction
of any such court, any objection that it may now or hereafter have to the
laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that any such suit, action or proceeding brought in any such
court
has been brought in an inconvenient forum.
(b) The
Company consents to process being served by or on behalf of any holder of
Notes
in any suit, action or proceeding of the nature referred to in
Section 22.8(a) by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, return receipt
requested, to it at its address specified in Section 18 or at such other
address of which such holder shall then have been notified pursuant to said
Section. The Company agrees that such service upon receipt
(i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest
extent permitted by applicable law, be taken and held to be valid personal
service upon and personal delivery to it. Notices hereunder shall be
conclusively presumed received as evidenced by a delivery receipt furnished
by
the United States Postal Service or any reputable commercial delivery
service.
45
(c) Nothing
in this Section 22.8 shall affect the right of any holder of a Note to
serve process in any manner permitted by law, or limit any right that the
holders of any of the Notes may have to bring proceedings against the Company
in
the courts of any appropriate jurisdiction or to enforce in any lawful manner
a
judgment obtained in one jurisdiction in any other jurisdiction.
(d) The
parties hereto hereby waive trial by jury in any action brought on or with
respect to this Agreement, the Notes or any other document executed in
connection herewith or therewith.
* * * * *
46
The
execution hereof by the
Purchasers shall constitute a contract among the Company and the Purchasers
for
the uses and purposes hereinabove set forth.
Very
truly
yours,
INTERNATIONAL
FLAVORS
&
FRAGRANCES
INC.
By:________________________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title: Senior
Vice President & Chief Financial Officer
Accepted
as of the date first written above.
[PURCHASERS]
By:_____________________________________________
Name:
Title:
Schedule
B
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:
“Additional
Interest” means,
with respect to any Note, additional interest at the rate of 0.75% per annum
(75
basis points) added to the stated rate of interest on such Note, which shall
accrue and be payable in respect of such Note during each Additional Interest
Period on the same dates and in the same manner as all other accrued interest
on
such Note is payable.
“Additional
Interest Period”
means the period (a) commencing on (and including) the first day of
the
Fiscal Quarter following any Reference Period in respect of which the Net
Debt
to EBITDA Ratio calculated as of the last day of such Reference Period exceeds
3.50 to 1, and (b) ending on (and including) the last day of any subsequent
Reference Period in respect of which the Net Debt to EBITDA Ratio calculated
as
of the last day of such Reference Period does not exceed 3.50 to 1.
“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, with
respect to the Company, shall include (b) any Person beneficially owning or
holding, directly or indirectly, 15% or more of any class of voting or equity
interests of the Company or any Subsidiary or any Person of which the Company
and its Subsidiaries beneficially own or hold, in the aggregate, directly
or
indirectly, 15% 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.
“Agreement,
this” is defined
in Section 17.3.
“Anti-Terrorism
Order” means
Executive Order No. 13,224 of September 24, 2001, Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“Asset
Sale Prepayment Date”
is defined in Section 8.7(a).
“Asset
Sale Prepayment Offer”
is defined in Section 8.7(a).
“Business
Day” means any day
other than a Saturday, a Sunday or a day on which commercial banks in New
York,
New York are required or authorized to be closed.
“Capital
Lease” means, at any
time, a lease with respect to which the lessee is required concurrently to
recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
Schedule
B-1
“Capital
Lease Obligation”
means, with respect to any Person and a Capital Lease, the amount of the
obligation of such Person as the lessee under such Capital Lease which would,
in
accordance with GAAP, appear as a liability on a balance sheet of such
Person.
“Cash”
means, at any time,
“cash” (as defined in the Audit and Accounting Guides issued by the American
Institute of Certified Public Accountants of the United States of America,
as
amended from time to time) of the Company or any Subsidiary, including, without
limitation, as of the date of this Agreement, currency on hand, demand deposits
with financial institutions and other similar deposit accounts.
“Cash
Equivalents” means, at
any time, “cash equivalents” (as defined in the Audit and Accounting Guides
issued by the American Institute of Certified Public Accountants of the United
States of America, as amended from time to time) of the Company or any
Subsidiary, including, without limitation, as of the date of this Agreement,
short term instruments having not more than three months to final maturity
and
highly liquid instruments readily convertible to known amounts of
cash.
“Change
in Control” is defined
in Section 8.8(h)(i).
“Closing”
is defined in
Section 3.
“Closing
Date” 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”
is defined in the
introductory paragraph hereof.
“Confidential
Information” is
defined in Section 20.
“Consolidated
Debt” means as
of any date of determination the total amount of all Debt of the Company
and its
Subsidiaries determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Debt
for
Borrowed Money” of a person means all items that, in accordance
with GAAP, would be classified as indebtedness on a consolidated balance
sheet
of such person other than any amounts which would be classified as indebtedness,
in accordance with GAAP, arising under any current or consummated Hedge
Agreements.
“Consolidated EBITDA” for the Company and
its Subsidiaries shall mean, for any relevant period, the result without
duplication of (a) Consolidated Net Income, plus (b) to the extent deducted
in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income taxes, (iii) depreciation and amortization expense,
(iv)
all other non-cash charges and (v) extraordinary or unusual losses, minus
(c)
extraordinary or unusual gains added in determining Consolidated Net Income
for
such period, all determined on a consolidated basis in accordance with GAAP;
provided that if, during any period for which Consolidated EBITDA is being
determined, the Company or a Subsidiary has completed an acquisition or
divestiture Consolidated EBITDA shall be determined on the basis that (A)
such
acquisition or divestiture occurred on the first day of such period, (B)
any
non-recurring expenses associated with such acquisition or divestiture had
not
been incurred and (C) for the avoidance of doubt, any reductions in expenses
expected to be achieved as a result of such acquisition or divestiture will
not
be taken into account in giving pro forma effect thereto.
Schedule
B-2
“Consolidated Interest Expense” means, for any relevant period, the
aggregate of all interest expense deducted in the calculation of Consolidated
Net Income for such period determined in accordance with GAAP.
“Consolidated Net Debt” means as of any date of determination, the
result of Consolidated Debt for Borrowed Money of the Company and its
Subsidiaries less Cash and Cash Equivalents as determined on a consolidated
basis in accordance with GAAP.
“Consolidated Net Income” means for any
relevant period the
consolidated net income (or loss) of the Company and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP.
“Consolidated Total Assets” means, as of any date of determination, the
total assets of the Company and its Subsidiaries which would be reflected
on a
consolidated balance sheet of the Company and its Subsidiaries prepared as
at
such date in accordance with GAAP.
“Debt”
means, with respect to
any Person, without duplication,
(a) its
liabilities for borrowed money (including, without limitation, its reimbursement
obligations under bankers’ acceptances, letters of credit and similar extensions
of credit that have been drawn upon and are not subject to any
contingency);
(b) its
liabilities for the deferred purchase price of property acquired by such
Person
(excluding accounts payable and other accrued liabilities 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) its
Capital Lease Obligations;
(d) its
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); and
(e) Guaranties
by such Person with respect to liabilities of a Person that is not a Subsidiary
of such first Person of a type described in any of clauses (a) through (d)
hereof.
“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, with
respect to the Notes of any Series, that rate of interest that is 2% per
annum
above the rate of interest then in effect for Notes of such Series.
Schedule
B-3
“Disclosure
Documents” is
defined in Section 5.3.
“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.
“Electronic
Distribution
Service” means IntraLinks® or a comparable internet document posting and
distribution service accessible by the holders of the Notes.
“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” means any
trade or business (whether or not incorporated) that is treated as a single
employer together with the Company under section 414 of the
Code.
“Event
of Default” is defined
in Section 11.
“Excess
Asset Sale Amount” is
defined in Section 10.4.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended.
“Existing
Shareholder” is
defined in Section 8.8(h)(ii)(A).
“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), as reasonably determined in the good faith opinion
of the Company’s board of directors.
“Fiscal
Quarter” means a
fiscal quarter of the Company.
“Founder”
is
defined in
Section 8.8(h)(ii).
Schedule
B-4
“GAAP”
means those generally
accepted accounting principles as in effect from time to time in the United
States of America; provided that, if the Company notifies the Required Holders
that the Company wishes to amend any covenant (or the definition of any defined
term used therein) to eliminate the effect of any change in such generally
accepted accounting principles on the operation of such covenant or definition,
then the Company’s compliance with such covenant or the meaning of such
definition shall be determined on the basis of such generally accepted
accounting principles in effect immediately before the relevant change in
generally accepted accounting principles became effective, until either such
notice is withdrawn or such covenant is amended in a manner satisfactory
to the
Company and the Required Holders.
“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 has 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.
“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 Debt, 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 Debt or obligation or any property constituting security therefor
primarily for the purpose of assuring the owner of such Debt or obligation
of
the ability of any other Person to make payment of the Debt or
obligation;
(b) to
advance or supply funds (i) for the purchase or payment of such Debt 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 Debt
or
obligation;
(c) to
lease properties or to purchase properties or services primarily for the
purpose
of assuring the owner of such Debt or obligation of the ability of any other
Person to make payment of the Debt or obligation; or
(d) otherwise
to assure the owner of such Debt or obligation against loss in respect
thereof.
In
any computation of the Debt or other
liabilities of the obligor under any Guaranty, the Debt or other obligations
that are the subject of such Guaranty shall be assumed to be direct obligations
of such obligor, provided that the amount of such Debt outstanding for
purposes of this Agreement shall not exceed the maximum amount of Debt that
is
the subject of such Guaranty.
Schedule
B-5
“Guaranty
Cap” is defined in
Section 9.8.
“Hazardous
Material” means any
and all pollutants, toxic or hazardous wastes or other substances that might
pose a hazard to health and 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, but not limited to, asbestos,
urea
formaldehyde foam insulation, polychlorinated biphenyls, petroleum, petroleum
products, lead based paint, radon gas or similar restricted, prohibited or
penalized substances.
“Hedge
Agreements” means
interest rate swap, cap or collar agreements, interest rate future or option
contracts, currency swap agreements, currency future or option contracts
and
other similar agreements.
“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.
“INHAM
Exemption” is defined
in Section 6.3(e).
“Institutional
Investor” means
(a) any original purchaser of a Note, (b) any holder of a Note holding
(together with one or more of its affiliates) more than $5,000,000 of the
aggregate principal amount of the Notes then outstanding and (c) any bank,
trust company or other financial institution, pension plan, investment company,
insurance company, broker or dealer, or other similar financial institution
or
entity, regardless of legal form.
“Lien”
means, with respect to
any Person, any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title
retention agreement (other than an operating lease) or Capital Lease, upon
or
with respect to any property or asset of such Person (including, in the case
of
stock, any purchase option, call or similar right of a third party with respect
to such stock).
“Make-Whole
Amount” shall have
the meaning set forth in Section 8.6.
“Material”
means material in
relation to the business, operations, affairs, financial condition, assets
or
properties 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 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.
Schedule
B-6
“Material
Subsidiary” means,
at any time, (a) any Subsidiary Guarantor and (b) any Subsidiary of the Company
which, together with all other Subsidiaries of such Subsidiary, accounts
for
more than (i) 10% of Consolidated Total Assets at such time or
(ii) 10% of consolidated revenue of the Company and its Subsidiaries for
the Reference Period most recently ended at such time.
“Memorandum”
is defined in
Section 5.3.
“Moody’s”
means
Xxxxx’x
Investor Services, Inc., or any successor by merger or change of name which
is a
nationally recognized rating agency in the United States of
America.
“Multiemployer
Plan” means any
Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).
“NAIC
Annual Statement” is
defined in Section 6.3(a).
“Net
Debt to EBITDA Ratio”
means the ratio set forth in Section 10.1 hereof.
“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.
“Paying
Agency Agreement”
means the Paying Agency and Servicing Agreement, dated as of the date hereof,
by
and between the Company and the Paying Agent.
“Paying
Agent” means Citibank,
N.A., as paying agent and servicer under the Paying Agency Agreement and
any
successor in such capacity thereunder.
“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), other than a
Multiemployer Plan, 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.
“Principal
Bank Facility”
means that certain Multicurrency Revolving Facility Agreement, dated November
23, 2005, among the Company, as Guarantor and Parent, certain Subsidiaries
of
the Company as Borrowers thereunder, Citibank International PLC as Agent
and
Euro Swingline Agent and the other lenders party thereto from time to time,
as
the same may be amended, supplemented or modified from time to time and any
additional, successor or replacement syndicated credit facility or credit
facility of the Company entered into to augment, refinance or replace any
of the
foregoing.
Schedule
B-7
“property”
or
“properties” means, unless otherwise specifically limited, real or
personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
“Proposed
Prepayment Date” is
defined in Section 8.8(c).
“PTE”
is
defined in Section
6.3(a).
“Purchasers”
is defined in the
introductory paragraph hereof.
“Public
Debt Rating” is
defined in Section 8.8(h)(iii).
“QPAM
Exemption” is defined in
Section 6.3(d).
“Ratable
Portion” means, in
respect of any offered prepayment of any Note in accordance with Section
8.7
hereof, an amount equal to the product of (a) the aggregate net proceeds
received from any sale, lease or other disposition of assets of the Company
or
any Subsidiary being applied to the prepayment or retirement of Senior Debt
multiplied by (b) a fraction the numerator of which is the outstanding principal
amount of such Note at the time of such offered prepayment and the denominator
of which is the aggregate principal amount of Senior Debt of the Company
and its
Subsidiaries at such time determined on a consolidated basis in accordance
with
GAAP.
“Reference
Period” means any
period of four complete consecutive Fiscal Quarters of the Company.
“Required
Holders” means, at
any time, the holders of at least a majority in principal amount of the Notes
of
all Series at the time outstanding (exclusive of Notes then owned by the
Company
or any of its Affiliates and any Notes held by parties who are contractually
required to abstain from voting with respect to matters affecting the holders
of
the Notes).
“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.
“S&P”
means
Standard &
Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or any
successor by merger or change of name which is a nationally recognized rating
agency in the United States of America.
“Securities
Act” means the
Securities Act of 1933, as amended from time to time.
“Securities”
or
“Security”
shall have the meaning specified in Section 2(1) of the Securities
Act.
“Senior
Debt” means, as of the
date of any determination thereof, all Consolidated Debt, other than
Subordinated Debt.
Schedule
B-8
“Senior
Financial Officer”
means the chief financial officer, principal accounting officer, treasurer
or
comptroller of the Company.
“Series”
means
any series of
Notes issued pursuant to this Agreement.
“Series
A Notes” means the
Notes designated as “Series A” in the chart set forth in Section 1.1, together
with any such Notes issued in substitution therefor pursuant to Section 13
of
this Agreement, as amended, restated or otherwise modified from time to
time.
“Series
B Notes” means the
Notes designated as “Series B” in the chart set forth in Section 1.1, together
with any such Notes issued in substitution therefor pursuant to Section 13
of
this Agreement, as amended, restated or otherwise modified from time to
time.
“Series
C Notes” means the
Notes designated as “Series C” in the chart set forth in Section 1.1, together
with any such Notes issued in substitution therefor pursuant to Section 13
of
this Agreement, as amended, restated or otherwise modified from time to
time.
“Series
D Notes” means the
Notes designated as “Series D” in the chart set forth in Section 1.1, together
with any such Notes issued in substitution therefor pursuant to Section 13
of
this Agreement, as amended, restated or otherwise modified from time to
time.
“Source”
is
defined in Section
6.3.
“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 obligations of the Company
under this Agreement or 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
or
joint venture 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
Debt” means
(without duplication) Debt of Subsidiaries other than (a) Debt owed to the
Company or any other Subsidiary, (b) for a period of 18 months after a Person
becomes a Subsidiary, all Debt of such Person outstanding at the time it
becomes
a Subsidiary provided that such Debt was not incurred in contemplation of
such
Person becoming a Subsidiary and (c) Debt of any Subsidiary Guarantor (provided,
however, that if the Subsidiary Guaranty Agreement of such Subsidiary Guarantor
contains any Guaranty Cap, then all Debt of such Subsidiary Guarantor (other
than Debt in respect of such Subsidiary Guaranty Agreement) in excess of
the
amount of such Guaranty Cap shall be deemed to be Subsidiary Debt.
Schedule
B-9
“Subsidiary
Guarantor” means,
at any time, any Subsidiary of the Company which has delivered a Subsidiary
Guaranty Agreement pursuant to the terms of Section 9.8 or has assumed the
obligations under a Subsidiary Guaranty, in each case so long as such Subsidiary
has not been released from its obligations under its respective Subsidiary
Guaranty Agreement pursuant to the terms of Section 9.8.
“Subsidiary
Guaranty
Agreement” is defined in Section 9.8.
“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(b)(i).
“Successor
Guarantor
Corporation” is defined in Section 10.5(b)(ii).
“USA
Patriot Act” means United
States Public Law 107-56, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT)
Act of 2001, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
“Voting
Stock” means capital
stock issued by a corporation, or equivalent interest in any other Person,
the
holders of which are ordinarily, in the absence of contingencies, entitled
to
vote for the election of directors (or persons performing similar functions)
of
such Person, even if the right so to vote have been suspended by the happening
of such a contingency.
Schedule
B-10
Schedule
4.9
Changes
in Corporate Structure
None
Schedule
4.9-1
Schedule
5.4
LIST
OF MATERIAL SUBSIDIARIES OF INTERNATIONAL FLAVORS
&
FRAGRANCES
INC.
Below
is
a list of the Material Subsidiaries of the Company. Each Material Subsidiary
does business under the name identified below. All of the voting stock of
each
subsidiary is owned, either directly or indirectly, by the Company, except
where
noted and except, in certain instances for directors' qualifying
shares.
NAME
OF MATERIAL SUBSIDIARY
|
INCORPORATED
IN
|
IFF
International Inc.
|
New
York
|
International
Flavors & Fragrances I.F.F. (Nederland) B.V.
|
The
Netherlands
|
IFF
Trading Company B.V.
|
The
Netherlands
|
International
Flavors & Fragrances (Nederland) Holding B.V.
|
The
Netherlands
|
International
Flavors & Fragrances Ardenne S.a.r.l.
|
Luxembourg
|
International
Flavors & Fragrances (Luxembourg) S.a.r.l.
|
Luxembourg
|
International
Flavors & Fragrances (Luxembourg) Holding S.a.r.l.
|
Luxembourg
|
International
Flavors & Fragrances Global Holding S.a.r.l.
|
Luxembourg
|
IFF
Latin American Holdings (España) SL
|
Spain
|
Schedule
5.4-1
Schedule
5.4
LIST
OF DIRECTORS AND OFFICERS OF THE COMPANY
DIRECTORS
Xxxxxxxx
Xxxxx Xxxxx
Xxxxxx
X.
Xxxx
Giinter
Xxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxx
X.
Xxxx
X.
Xxxxxxx Xxxx
Xxxxx
X.
Xxxxxxxxx
Xxxxxxxxx
X. Xxxxxx
Xxxxx
X.
Xxxxxx, Xx.
Xxxxxx
X.
Xxxxxxxx
Xxxxxx
X.
Xxxxxx
OFFICERS
Chairman
of the Board and CEO
|
Xxxxxx
X. Xxxx
|
Group
President, Fragrances
|
Xxxxxxx
Xxxxxxxxxx
|
Group
President, Flavors
|
Xxxxxx
Xxxxxxx
|
Senior
Vice President,
|
|
Chief
Transition Officer
|
Xxxxx
X. Xxxxxxx
|
Senior
Vice President,
|
|
Human
Resources
|
Xxxxxx
X. Xxxxxxx
|
Senior
Vice President,
|
|
General
Counsel and Secretary
|
Xxxxxx
X. Xxxxx
|
Schedule
5.4-2
Senior
Vice President,
|
|
Chief
Financial Officer
|
Xxxxxxx
X. Xxxxxxx
|
Vice
President and Chief Marketing Officer
|
Xxxxxx
Xxxxxxx
|
Vice
President, Flavors,
|
|
India
and Southern Asia
|
Xxxxxx
Xxxxx
|
Vice
President,
|
|
Europe
Flavors
|
Xxxxx
Xxxxxx-Hotston
|
Vice
President,
|
|
North
America Fragrances
|
Xxxxxxxxxx
Xx Xxxxxxxxx
|
Vice
President,
|
|
Europe
Fragrances
|
Xxxx-Xxxxxxxx
Xxxxxx
|
Vice
President,
|
|
Fragrances
Ingredients
|
Xxx
X. X. Xxxxxxx
|
Vice
President, Manufacturing
|
Xxxxxxxxx
Xxxxxxxx
|
Vice
President, North America Flavors
|
Xxxxxxxxxxx
X. Xxxxxx
|
Vice
President, Manufacturing
|
Xxxx
X. Xxxx
|
Vice
President, Corporate Development
|
Xxxx
X’Xxxxx
|
Vice
President, Flavors,
|
|
China
and Northern Asia
|
Xxxxxx
Xxxx
|
Controller
|
Xxxxxxxx
X. Xxxxxxxxx
|
Assistant
Treasurer
|
Xxxxx
X. Xxxxx, Xx.
|
Assistant
Secretary
|
Xxxxx
Xxxxx Xxxxxxxx
|
Assistant
Secretary
|
Xxxxxx
X. Xxxxxxxxx
|
Schedule
5.4-3
Schedule
5.5
Financial
Statements
2006
Annual Report on Form 10-K
2007
2nd Quarter
Form 10-Q
Form
8-K
dated September 18, 2007, August 7, 2007, July 25, 2007, and July 16,
2007
Schedule
5.5-1
Schedule
5.8
Litigation
See
the
Company's 2006 Annual Report on Form 10-K filed with the SEC, in particular,
Part I, Item 3, Part 11, Item 7 (financial condition) and Note 17.
See
the
Company's Quarterly Report on Form 10-Q for the quarterly period ended June
30,
2007 filed with the SEC, in particular, Note 12 and Part II, Item
1.
Based
on
information presently available and in light of the merits of its defenses
and
the availability of insurance, the Company does not expect the outcome of
any
claims and legal actions described in the above reports, singly or in the
aggregate, to have an adverse effect on the Company's financial condition,
results of operations or liquidity.
Schedule
5.8-1
Schedule
5.11
Licenses,
Permits, Etc.
None
Schedule
5.11-1
Schedule
5.15
Debt
of the Companv and its Subsidiaries as of August 24,
2007
in
excess of $15 Million USD
International
Flavors & Fragrances
Inc. 375,000,000
International
Flavors & Fragrances (Nederland) Holding
BV 121,878,000
International
Flavors & Fragrances (Japan)
Limited 132,539,918
International
Flavors & Fragrances I.F.F. (Nederland)
B.V. 102,837,073
______________________
Grand
Total $ 732,254,991
======================
The
Debt
set forth above constitutes at least 90% of the consolidated Debt of
the
Company
and its Subsidiaries as at August 24, 2007.
Schedule
5.15-1
Schedule
5.18
Environmental
Matters
See
the
Company's 2006 Annual Report on Form 10-K filed with the SEC, in particular,
Part I, Item 3, Part 11, Item 7 (financial condition) and Note 17.
See
the
Company's Quarterly Report on Form 10-Q for the quarterly period ended June
30,
2007 filed with the SEC, in particular, Note 12 and Part II, Item
1.
Based
on
information presently available and in light of the merits of its defenses
and
the availability of insurance, the Company does not expect the outcome of
any
claims and legal actions described in the above reports, singly or in the
aggregate, to have an adverse effect on the Company's financial condition,
results of operations or liquidity.
Schedule 5.18-1