Exhibit 4.4
Execution Copy
CATALENT US HOLDING I,
LLC
CATALENT US HOLDING II,
LLC
and
THE BANK OF NEW YORK
MELLON
Trustee
FIRST SUPPLEMENTAL
INDENTURE
Dated as of July 3,
2008
TO
INDENTURE
Dated as of April 10,
2007
$565,000,000
9 1 / 2 %/10 1 / 4 % Senior PIK-Election Notes due
2015
Execution Copy
First Supplemental Indenture (this
“ First Supplemental Indenture ”), dated as of
July 3, 2008, among Catalent US Holding I, LLC and Catalent US
Holding II, LLC (each, an “ Additional Guarantor
Subsidiary ,” and collectively, the “ Additional
Guarantor Subsidiaries ”), each a subsidiary of Catalent
Pharma Solutions, Inc., a Delaware corporation (the “
Issuer ”), and The Bank of New York Mellon (formerly
known as The Bank of New York), as trustee (the “
Trustee ”).
W I T N E S S E T H
WHEREAS, each of PTS Acquisition
Corp., Cardinal Health 409, Inc. and the Guarantors (as defined in
the Indenture referred to below) has heretofore executed and
delivered to the Trustee a Senior Indenture (the “
Indenture ”), dated as of April 10, 2007,
providing for the issuance of an $565,000,000 aggregate principal
amount of 9.50%/10.25% Senior PIK-Election Notes due 2015 (the
“ Notes ”);
WHEREAS, the Indenture provides that
under certain circumstances each of the Additional Guarantor
Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each of the Additional
Guarantor Subsidiaries shall unconditionally guarantee all of the
Issuer’s Obligations under the Notes and the Indenture on the
terms and conditions set forth herein and under the Indenture (the
“ Guarantee ”); and
WHEREAS, pursuant to
Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this First Supplemental Indenture.
NOW THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders
of the Notes as follows:
(1) Capitalized Terms .
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
(2) Agreement to Guarantee .
Each of the Additional Guarantor Subsidiaries hereby agrees as
follows:
(a) Along with all other Guarantors
named in the Indenture (including pursuant to any supplemental
indentures), to jointly and severally unconditionally guarantee to
each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of the Indenture, the Notes or the
obligations of the Issuer hereunder or thereunder, that:
(i) the principal of and interest
and premium, if any, on the Notes shall be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on
the Notes, if any, if lawful, and all other obligations of the
Issuer to the Holders or the Trustee thereunder shall be promptly
paid in full or performed, all in accordance with the terms
thereof; and
(ii) in case of any extension of
time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal,
whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors and each of the
Additional Guarantor Subsidiaries shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of
payment and not a guarantee of collection.
(b) The obligations hereunder shall
be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Issuer or any Guarantor, any
action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor. !
(c) Each of the Additional Guarantor
Subsidiaries hereby waives: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency
or bankruptcy of the Issuer, any right to require a proceeding
first against the Issuer, protest, notice and all demands
whatsoever.
(d) This Guarantee shall not be
discharged except by complete performance of the obligations
contained in the Notes, the Indenture and this First Supplemental
Indenture. Each of the Additional Guarantor Subsidiaries accepts
all obligations applicable to a Guarantor under the Indenture,
including Article X of the Indenture (which is deemed incorporated
in this First Supplemental Indenture and applicable to this
Guarantee) and, as applicable, Section 12.18 of the Indenture.
Each of the Additional Guarantor Subsidiaries acknowledges that by
executing this First Supplemental Indenture, it will become a
Subsidiary Guarantor under the Indenture and subject to all the
terms and conditions applicable to Subsidiary Guarantors contained
therein.
(e) If any Holder or the Trustee is
required by any court or otherwise to return to the Issuer, the
Guarantors (including the Additional Guarantor Subsidiaries), or
any custodian, trustee, liquidator or other similar official acting
in relation to either the Issuer or the Guarantors, any amount paid
either to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect.
(f) The Additional Guarantor
Subsidiaries shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed
hereby.
(g) As between each of the
Additional Guarantor Subsidiaries, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in
Article VI of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VI of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by each of the Additional
Guarantor Subsidiaries for the purpose of this
Guarantee.
(h) Each o