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
________________
NOTE PURCHASE AGREEMENT
________________
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
|
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
|
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
|
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
|
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
|
INTERNATIONAL FLAVORS & FRAGRANCES INC.
521 W. 57 TH
STREET
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.
The sale and purchase of
the Notes to be purchased by each Purchaser shall occur at
the offices of Bingham McCutchen LLP, 399 Park Avenue, New
York, New York 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:
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 Jodie Simon
Friedman, 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 & Moore 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 Bingham McCutchen 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.
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.
|
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.
5.4.
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).
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.
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.
(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).
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.
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.
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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.
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
(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.
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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);
(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;
(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.
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”.
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.
8.1. 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.
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.
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.
“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:
(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.
(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
