WEST PHARMACEUTICAL SERVICES,
INC.
$50,000,000 Floating Rate Series A
Senior Notes,
due July 28, 2012
$25,000,000 Floating Rate Series B
Senior Notes,
due July 28, 2015
________________
NOTE PURCHASE AGREEMENT
________________
Dated as of July 28, 2005
CTDOCS/1630373.11
TABLE OF CONTENTS
Page
|
Section 1.
|
AUTHORIZATION OF NOTES
|
1
|
|
Section 2.
|
SALE AND PURCHASE OF
NOTES
|
1
|
|
Section 3.
|
CLOSING
|
2
|
|
Section 4.
|
CONDITIONS TO CLOSING
|
2
|
|
|
Section 4.1.
|
Representations and
Warranties
|
2
|
|
|
Section 4.2.
|
Performance; No Default
|
2
|
|
|
Section 4.3.
|
Compliance Certificates
|
3
|
|
|
Section 4.4.
|
Opinions of Counsel
|
3
|
|
|
Section 4.5.
|
Purchase Permitted By Applicable
Law, Etc.
|
3
|
|
|
Section 4.6.
|
Sale of Other Notes
|
4
|
|
|
Section 4.7.
|
Payment of Special Counsel
Fees
|
4
|
|
|
Section 4.8.
|
Private Placement Number
|
4
|
|
|
Section 4.9.
|
Changes in Corporate
Structure
|
4
|
|
|
Section 4.10.
|
Subsidiary Guaranty
|
4
|
|
|
Section 4.11.
|
Sharing Agreement
|
4
|
|
|
Section 4.12.
|
Funding Instructions
|
4
|
|
|
Section 4.13.
|
Offeree Letter
|
5
|
|
|
Section 4.14.
|
Proceedings and Documents
|
5
|
|
Section 5.
|
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY
|
5
|
|
|
Section 5.1.
|
Organization; Power and
Authority
|
5
|
|
|
Section 5.2.
|
Authorization, Etc
|
5
|
|
|
Section 5.3.
|
Disclosure
|
6
|
|
|
|
|
|
|
|
Section 5.4.
|
Organization and Ownership of Shares
of Subsidiaries;
Affiliates 6
|
|
Section 5.5.
|
Financial Statements; Material
Liabilities
|
7
|
|
Section 5.6.
|
Compliance with Laws, Other
Instruments, Etc
|
7
|
|
Section 5.7.
|
Governmental Authorizations,
Etc.
|
8
|
|
Section 5.8.
|
Litigation; Observance of
Agreements, Statutes and Orders
|
8
|
CTDOCS/1630373.11
TABLE OF CONTENTS
(continued)
Page
|
|
Section 5.9.
|
Taxes.
|
8
|
|
|
Section 5.10.
|
Title to Property; Leases
|
8
|
|
|
Section 5.11.
|
Licenses, Permits, Etc.
|
9
|
|
|
Section 5.12.
|
Compliance with ERISA
|
9
|
|
|
Section 5.13.
|
Private Offering by the
Company
|
10
|
|
|
Section 5.14.
|
Use of Proceeds; Margin
Regulations
|
10
|
|
|
Section 5.15.
|
Existing Debt; Future
Liens
|
11
|
|
|
Section 5.16.
|
Foreign Assets Control Regulations,
Etc.
|
11
|
|
|
Section 5.17.
|
Status under Certain
Statutes
|
12
|
|
|
Section 5.18.
|
Environmental Matters
|
12
|
|
|
Section 5.19.
|
Notes Rank Pari Passu
|
12
|
|
Section 6.
|
REPRESENTATIONS OF THE
PURCHASER
|
12
|
|
|
Section 6.1.
|
Purchase for Investment.
|
12
|
|
|
Section 6.2.
|
Accredited Investor.
|
13
|
|
|
Section 6.3.
|
Source of Funds
|
13
|
|
Section 7.
|
INFORMATION AS TO COMPANY
|
14
|
|
|
Section 7.1.
|
Financial and Business
Information
|
14
|
|
|
Section 7.2.
|
Officer’s
Certificate
|
17
|
|
|
Section 7.3.
|
Visitation
|
18
|
|
Section 8.
|
PAYMENT OF THE NOTES
|
19
|
|
|
Section 8.1.
|
Required Prepayments
|
19
|
|
|
Section 8.2.
|
Optional Prepayments with Prepayment
Premium
|
19
|
|
|
Section 8.3.
|
Offer to Prepay upon the Sale of
Certain Assets
|
19
|
|
|
Section 8.4.
|
Allocation of Partial
Prepayments.
|
20
|
|
|
Section 8.5.
|
Maturity; Surrender, Etc
|
21
|
|
|
Section 8.6.
|
Purchase of Notes
|
21
|
|
|
Section 8.7.
|
Interest Rate and Interest Payment
Dates
|
21
|
|
|
Section 8.8.
|
Yield Protection and
Illegality
|
23
|
|
|
|
|
|
|
|
|
CTDOCS/1630373.11
TABLE OF CONTENTS
(continued)
Page
|
Section 9.
|
AFFIRMATIVE COVENANTS
|
26
|
|
|
Section 9.1.
|
Compliance with Law
|
26
|
|
|
Section 9.2.
|
Insurance
|
26
|
|
|
Section 9.3.
|
Maintenance of Properties
|
26
|
|
|
Section 9.4.
|
Payment of Taxes and
Claims
|
27
|
|
|
Section 9.5.
|
Corporate Existence, Etc
|
27
|
|
|
Section 9.6.
|
Designation of
Subsidiaries
|
27
|
|
|
Section 9.7.
|
Notes to Rank Pari Passu.
|
28
|
|
|
Section 9.8.
|
Books and Records.
|
28
|
|
|
Section 9.9.
|
Noteholder Guaranty
|
28
|
|
Section 10.
|
NEGATIVE COVENANTS
|
28
|
|
|
Section 10.1.
|
Transactions with
Affiliates.
|
28
|
|
|
Section 10.2.
|
Limitation on Liens.
|
28
|
|
|
Section 10.3.
|
Sales of Assets
|
30
|
|
|
Section 10.4.
|
Merger and Consolidation.
|
31
|
|
|
Section 10.5.
|
Priority Debt.
|
32
|
|
|
Section 10.6.
|
Consolidated Leverage
Ratio
|
32
|
|
|
Section 10.7.
|
Interest Charges Coverage
Ratio
|
32
|
|
|
Section 10.8.
|
Line of Business
|
32
|
|
|
Section 10.9.
|
Terrorism Sanctions
Regulations
|
33
|
|
Section 11.
|
EVENTS OF DEFAULT
|
33
|
|
Section 12.
|
REMEDIES ON DEFAULT, ETC
|
35
|
|
|
Section 12.1.
|
Acceleration
|
35
|
|
|
Section 12.2.
|
Other Remedies
|
36
|
|
|
Section 12.3.
|
Rescission
|
36
|
|
|
Section 12.4.
|
No Waivers or Election of Remedies,
Expenses, Etc.
|
36
|
|
Section 13.
|
REGISTRATION; EXCHANGE; SUBSTITUTION
OF NOTES
|
37
|
|
|
Section 13.1.
|
Registration of Notes
|
37
|
|
|
|
|
|
|
CTDOCS/1630373.11
TABLE OF CONTENTS
(continued)
Page
|
|
Section 13.2.
|
Transfer and Exchange of
Notes
|
37
|
|
|
Section 13.3.
|
Replacement of Notes
|
38
|
|
Section 14.
|
PAYMENTS ON NOTES
|
38
|
|
|
Section 14.1.
|
Place of Payment.
|
38
|
|
|
Section 14.2.
|
Home Office Payment
|
38
|
|
Section 15.
|
EXPENSES, ETC
|
39
|
|
|
Section 15.1.
|
Transaction Expenses
|
39
|
|
|
Section 15.2.
|
Survival
|
39
|
|
|
|
|
|
|
|
Section 16.
|
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; ENTIRE
AGREEMENT 40
|
|
Section 17.
|
AMENDMENT AND WAIVER
|
40
|
|
|
Section 17.1.
|
Requirements
|
40
|
|
|
Section 17.2.
|
Solicitation of Holders of
Notes
|
40
|
|
|
Section 17.3.
|
Binding Effect, Etc
|
41
|
|
|
Section 17.4.
|
Notes Held by Company,
Etc
|
41
|
|
Section 18.
|
NOTICES
|
41
|
|
Section 19.
|
REPRODUCTION OF DOCUMENTS
|
42
|
|
Section 20.
|
CONFIDENTIAL INFORMATION
|
42
|
|
Section 21.
|
SUBSTITUTION OF PURCHASER
|
43
|
|
Section 22.
|
MISCELLANEOUS
|
43
|
|
|
Section 22.1.
|
Successors and Assigns
|
43
|
|
|
Section 22.2.
|
Payments Due on Non-Business
Days.
|
44
|
|
|
Section 22.3.
|
Accounting Terms
|
44
|
|
|
Section 22.4.
|
Severability
|
44
|
|
|
Section 22.5.
|
Construction
|
44
|
|
|
Section 22.6.
|
Counterparts
|
45
|
|
|
Section 22.7.
|
Governing Law
|
45
|
|
|
|
|
|
|
Section
22.8.
Jurisdiction and Process; Waiver of
Jury Trial 45
CTDOCS/1630373.11
|
SCHEDULE A
|
—
|
INFORMATION RELATING TO
PURCHASERS
|
|
SCHEDULE B
|
—
|
DEFINED TERMS
|
|
|
SCHEDULE 4.9
|
—
|
Changes in Corporate
Structure
|
|
|
SCHEDULE 5.3
|
—
|
Disclosure Materials
|
|
|
|
|
|
|
|
|
|
SCHEDULE 5.4
|
— Subsidiaries
of the Company, Ownership of Subsidiary Stock, Affiliates,
Restricted Subsidiary Status, etc.
|
|
SCHEDULE 5.5
|
—
|
Financial Statements
|
|
|
SCHEDULE 5.11
|
—
|
Licenses, Permits, Etc.
|
|
|
SCHEDULE 5.15
|
—
|
Existing Debt
|
|
|
SCHEDULE 10.2
|
—
|
Existing Liens
|
|
|
SCHEDULE 10.6
|
—
|
Consolidated EBITDA
Adjustments
|
|
|
|
|
|
|
|
|
|
EXHIBIT 1(a)
|
— Form
of Floating Rate Series A Senior Notes, due July 28,
2012
|
|
EXHIBIT 1(b)
|
— Form
of Floating Rate Series B Senior Notes, due July 28,
2015
|
|
EXHIBIT 4.4(a)
|
—
|
Form of Opinion of Special Counsel
to the Obligors
|
|
|
EXHIBIT 4.4(b)
|
—
|
Form of Opinion of Special Counsel
to the Purchasers
|
|
EXHIBIT 4.10
|
—
|
Form of Subsidiary
Guaranty
|
|
|
|
|
|
|
|
EXHIBIT 4.11
—Form of Sharing
Agreement
i
CTDOCS/1630373.11
WEST PHARMACEUTICAL SERVICES,
INC.
101 Gordon Drive
P.O. Box 645
Lionville, PA 19341
$50,000,000 FLOATING RATE SERIES A
SENIOR NOTES, DUE JULY 28, 2012]
$25,000,000 FLOATING RATE SERIES B
SENIOR NOTES, DUE JULY 28, 2015
Dated as of
July 28, 2005
TO EACH OF THE PURCHASERS LISTED IN
Ladies and Gentlemen:
WEST PHARMACEUTICAL SERVICES,
INC. , a Pennsylvania
corporation (together with its permitted successors and assigns
hereunder, the “ Company ”), agrees with each of
the purchasers listed in the attached Schedule A (each, a “
Purchaser ” and, collectively, the “
Purchasers ”) as follows:
|
SECTION 1.
|
AUTHORIZATION OF NOTES.
|
The Company will authorize the issue
and sale of (a) $50,000,000 aggregate principal amount of its
Floating Rate Series A Senior Notes, due July 28, 2012 (the “
Series A Notes ”, such term to include any such notes
issued in substitution therefor pursuant to Section 13) and (b)
$25,000,000 aggregate principal amount of its Floating Rate Series
B Senior Notes, due July 28, 2015 (the “ Series B
Notes ” such term to include any such notes issued in
substitution therefor pursuant to Section 13, and together with the
Series A Notes, collectively, the “ Notes ”).
The Series A Notes and the Series B Notes shall be substantially in
the forms set out in Exhibit 1(a) and Exhibit 1(b), respectively.
Certain capitalized and other terms used in this Agreement are
defined in Schedule B; references to a “Schedule” or an
“Exhibit” are, unless otherwise specified, to a
Schedule or an Exhibit attached to this Agreement.
|
SECTION 2.
|
SALE AND PURCHASE OF
NOTES.
|
Subject to the terms and conditions
of this Agreement, the Company will issue and sell to each
Purchaser and each Purchaser will purchase from the Company, at the
Closing provided for in Section 3, Notes in the principal amount
and in the Series specified opposite such Purchaser’s name in
Schedule A at the purchase price of 100% of the principal amount
thereof. The Purchasers’ obligations hereunder are several
and not joint obligations and no Purchaser shall have any liability
to any Person for the performance or non-performance of any
obligation by any other Purchaser hereunder.
1
CTDOCS/1630373.11
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 10022 at
10:00 a.m. eastern time, at a closing (the “ Closing
”) on July 28, 2005 or on such other Business Day thereafter
on or prior to July 29, 2005 as may be agreed upon by the Company
and the Purchasers. At the Closing the Company will deliver to each
Purchaser the Notes to be purchased by such Purchaser in the form
of a single Note for each Series (or such greater number of Notes
for each Series in denominations of $1,000,000 as such Purchaser
may request) dated the date of the Closing 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 to Account Number 2100010518545 at
Wachovia Bank, Philadelphia, PA ABA Number 031201467, in the
Account Name of “West Pharmaceutical Services, Inc.” If
at the Closing, 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
such Purchaser’s satisfaction, such Purchaser shall, at its
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.
|
SECTION 4.
|
CONDITIONS TO CLOSING.
|
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:
|
Section 4.1.
|
Representations and
Warranties .
|
The representations and warranties
of the Company in this Agreement shall be correct when made and at
the time of the Closing.
|
Section 4.2.
|
Performance; No Default.
|
The Company shall have performed and
complied with all agreements and conditions contained in this
Agreement required to be performed or complied with by 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 had
the provisions of such Section applied since such date.
|
Section 4.3.
|
Compliance Certificates.
|
(a) Officer’s
Certificate of the Company . The Company shall have delivered
to such Purchaser an Officer’s Certificate, dated the date of
the Closing, certifying that the conditions specified in Sections
4.1, 4.2 and 4.9 have been fulfilled.
2
CTDOCS/1630373.11
(b) Secretary’s
Certificate of the Company . The Company shall have delivered
to such Purchaser a certificate of its Secretary or Assistant
Secretary, dated the date of the Closing, certifying as to the
resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the Notes
and this Agreement.
(c) Subsidiary
Guarantors’ Secretary’s Certificate . Each of the
Subsidiary Guarantors shall have delivered to each Purchaser a
certificate certifying as to the resolutions attached thereto and
other corporate or other proceedings relating to the authorization,
execution and delivery by such Subsidiary Guarantor of the
Subsidiary Guaranty.
|
Section 4.4.
|
Opinions of Counsel
.
|
Such Purchaser shall have received
opinions in form and substance satisfactory to such Purchaser,
dated the date of the Closing (a) from Dechert LLP, special counsel
for the Obligors, 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), and (b) from Bingham McCutchen
LLP, the Purchasers’ special counsel in connection with such
transactions, substantially in the form set forth in Exhibit 4.4(b)
and covering such other matters incident to such transactions as
such Purchaser may reasonably request.
|
Section 4.5.
|
Purchase Permitted By Applicable
Law, Etc .
|
On the date of the Closing 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. If requested by such Purchaser, such Purchaser shall have
received an Officer’s Certificate certifying as to such
matters of fact as such Purchaser may reasonably specify to enable
such Purchaser to determine whether such purchase is so
permitted.
|
Section 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.
|
Section 4.7.
|
Payment of Special Counsel
Fees .
|
Without limiting the provisions of
Section 15.1, the Company shall have paid on or before the date of
the Closing, the fees, charges and disbursements of the
Purchasers’
3
CTDOCS/1630373.11
special counsel referred to in
Section 4.4 to the extent reflected in a statement of such counsel
rendered to the Company at least one Business Day prior to the
Closing.
|
Section 4.8.
|
Private Placement
Number .
|
A Private Placement Number issued by
Standard & Poor’s CUSIP Service Bureau (in cooperation
with the SVO) shall have been obtained for each Series of
Notes.
|
Section 4.9.
|
Changes in Corporate
Structure .
|
Except as reflected in Schedule 4.9,
no Obligor shall have changed its jurisdiction of incorporation or
organization, as applicable, or, except as reflected in Schedule
4.9, been a party to any merger or consolidation, or shall have
succeeded to all or any substantial part of the liabilities of any
other entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.
|
Section 4.10.
|
Subsidiary
Guaranty.
|
Each Restricted Subsidiary shall
have executed and delivered to the Purchasers a guaranty agreement
(as may be amended, restated or modified from time to time, the
“ Subsidiary Guaranty ”), substantially in the
form of Exhibit 4.10.
|
Section 4.11.
|
Sharing Agreement.
|
The Purchasers shall have executed
the Sharing Agreement, substantially in the form of Exhibit 4.11,
among themselves and the others parties thereto, and such Sharing
Agreement shall be in full force and effect as of the date of the
Closing.
|
Section 4.12.
|
Funding Instructions
.
|
At least three Business Days prior
to the date of the Closing, such Purchaser shall have received
written instructions signed by a Responsible Officer on letterhead
of the Company confirming the information specified in Section 3
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 the Notes is to be
deposited.
|
Section 4.13.
|
Offeree Letter
.
|
Banc of America Securities LLC shall
have delivered to the Company, its special counsel, each of the
Purchasers and the Purchasers’ special counsel an offeree
letter, in form and substance satisfactory to each Purchaser and
the Company, confirming the manner of the offering of the Notes by
Banc of America Securities LLC.
|
Section 4.14.
|
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
4
CTDOCS/1630373.11
certified or other copies of such
documents as such Purchaser or such special counsel may reasonably
request.
|
SECTION 5.
|
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY.
|
The Company represents and warrants
to each Purchaser that:
|
Section 5.1.
|
Organization; Power and
Authority .
|
The Company is a corporation duly
organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation, and is duly qualified as a
foreign corporation and is in good standing in each jurisdiction in
which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good
standing 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.
|
Section 5.2.
|
Authorization, Etc
.
|
(a) 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 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).
(b) The Subsidiary
Guaranty has been duly authorized by all necessary corporate action
on the part of each Subsidiary Guarantor party thereto, and the
Subsidiary Guaranty constitutes the legal, valid and binding
obligation of such Subsidiary Guarantor enforceable against such
Subsidiary Guarantor 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).
The Company, through its agent, Banc
of America Securities LLC, has delivered to each Purchaser a copy
of a Private Placement Memorandum, dated June, 2005 (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 (other than the projections set forth therein), the
documents, certificates or other writings identified in Schedule
5.3 (including written answers to investor questions) by or
on
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CTDOCS/1630373.11
behalf of the Company in connection
with the transactions contemplated hereby and the financial
statements listed in Schedule 5.5, in each case, delivered to the
Purchasers prior to June 28, 2005 (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. All projections provided by or on behalf of the Company are
based upon good faith estimates and assumptions, all of which are
believed to be reasonable in light of the conditions known to the
Company which existed at the time such projections were made, were
prepared on the basis of the assumptions stated therein, and
reflect as of the date of such projections and the date hereof the
good faith estimate of the Company of the results of operations and
other information projected therein (it being understood that
projections are subject to significant uncertainties and
contingencies, many of which are beyond the Company’s control
and that no assurance can be given that such projections will be
realized). Except as disclosed in the Disclosure Documents, since
December 31, 2004, there has been no change in the financial
condition, operations, business, properties or prospects of the
Company or any Subsidiary except changes that individually or in
the aggregate 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.
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Section 5.4.
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Organization and Ownership of
Shares of Subsidiaries; Affiliates .
|
(a) Schedule 5.4 contains
(except as noted therein) complete and correct lists (i) of the
Company’s Subsidiaries, showing, as to each Subsidiary, the
correct name thereof, the jurisdiction of its organization, the
percentage of shares of each class of its capital stock or similar
equity interests outstanding owned by the Company and each other
Subsidiary, whether or not such Subsidiary is a Restricted
Subsidiary or an Unrestricted Subsidiary, (ii) of the
Company’s Affiliates, other than Subsidiaries, and (iii) of
the Company’s directors and senior officers.
(b) All of the
outstanding shares of capital stock or similar equity interests of
each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another Subsidiary
free and clear of any Lien (except as otherwise disclosed in
Schedule 5.4).
(c) Each Subsidiary
identified in Schedule 5.4 is a corporation or other legal entity
duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and is duly qualified as
a foreign corporation or other legal entity and is in good standing
in each jurisdiction in which such qualification is required by
law, other than those jurisdictions as to which the failure to be
so qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. Each such Subsidiary has the corporate or other power and
authority to own or hold under lease the properties it purports to
own or hold under lease, to transact the business it transacts and
proposes to transact, and, if it is a party thereto, to
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CTDOCS/1630373.11
execute and deliver the Subsidiary
Guaranty and to perform its obligations under the provisions
thereof.
(d) No Subsidiary is
subject to any legal, regulatory, contractual or other restriction
(other than this Agreement, the agreements listed on Schedule 5.4
and customary limitations imposed by corporate law or similar
statutes) restricting the ability of such Subsidiary to pay
dividends out of profits or make any other similar distributions of
profits to the Company or any of its Subsidiaries that owns
outstanding shares of capital stock or similar equity interests of
such Subsidiary.
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Section 5.5.
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Financial Statements; Material
Liabilities .
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The Company has delivered to each
Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial
statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial
position of the Company and its Subsidiaries as of the respective
dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim
financial statements, to normal year-end adjustments and the
absence of footnotes). The Company and its Subsidiaries do not have
any Material liabilities that are not disclosed on such financial
statements or otherwise disclosed in the Disclosure
Documents.
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Section 5.6.
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Compliance with Laws, Other
Instruments, Etc .
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The execution, delivery and
performance by each Obligor of the Financing Documents to which it
is a party 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,
any indenture, mortgage, deed of trust, loan, purchase or credit
agreement, lease, corporate charter or by-laws, or any other
agreement or instrument to which the Company or any Subsidiary is
bound or by which the Company or any Subsidiary or any of their
respective properties may be bound or affected, (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, or (c) violate any provision of any statute or other
rule or regulation of any Governmental Authority applicable to the
Company or any Subsidiary.
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Section 5.7.
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Governmental Authorizations,
Etc.
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Assuming the accuracy of the
Purchasers’ representations made in Section 6.1, 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 any
Obligor of the Financing Documents to which it is a
party.
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Section 5.8.
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Litigation; Observance of
Agreements, Statutes and Orders .
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(a) There are no actions,
suits, investigations or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company or any
Subsidiary or any property of the Company or any Subsidiary in any
court or before any arbitrator of any kind or before or by any
Governmental Authority that, individually or in the aggregate,
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.
The Company and its Subsidiaries
have filed all tax returns that are required to have been filed in
any jurisdiction, and have paid all taxes shown to be due and
payable on such returns and all other taxes and assessments levied
upon them or their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and payable and
before they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or in the
aggregate Material 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 1997.
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Section 5.10.
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Title to Property;
Leases .
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The Company and its Subsidiaries
have good and sufficient title to their respective properties that
individually or in the aggregate are Material, including all such
properties reflected in the most recent audited balance sheet
referred to in Section 5.5 or purported to have been acquired by
the Company or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business), in each
case free and clear of Liens prohibited by this Agreement. All
leases that individually or in the aggregate are Material are valid
and subsisting and are in full force and effect in all material
respects.
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Section 5.11.
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Licenses, Permits, Etc
.
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Except as disclosed in Schedule
5.11:
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(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
conflict with the rights of others, except for conflicts that,
individually or in the aggregate, would not have a Material Adverse
Effect;
(b) to the best knowledge
of the Company, no product of the Company or any of its
Subsidiaries infringes in any Material respect any Material
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 which would reasonably be expected to have a
Material Adverse Effect.
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Section 5.12.
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Compliance with ERISA
.
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(a) The Company and each
ERISA Affiliate have operated and administered each Plan in
compliance with all applicable laws except for such instances of
noncompliance as have not resulted in and could not reasonably be
expected to result in a Material Adverse Effect. Neither the
Company nor any ERISA Affiliate has incurred any liability pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions
of the Code relating to employee benefit plans (as defined in
section 3 of ERISA), and no event, transaction or condition has
occurred or exists that 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 be individually or in the aggregate
Material.
(b) The present value of
the aggregate benefit liabilities under each of the Plans (other
than Multiemployer Plans), determined as of the end of such
Plan’s most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such
Plan’s most recent actuarial valuation report, did not exceed
the aggregate current value of the assets of such Plan allocable to
such benefit liabilities. The term “ benefit
liabilities ” has the meaning specified in section 4001
of ERISA and the terms “ current value ” and
“ present value ” have the meaning specified in
section 3 of ERISA.
(c) The Company and its
ERISA Affiliates have not incurred withdrawal liabilities (and are
not subject to contingent withdrawal liabilities) under section
4201 or section 4204 of ERISA in respect of Multiemployer Plans
that individually or in the aggregate are Material.
(d) The expected
post-retirement benefit obligation (determined as of the last day
of the Company’s most recently ended fiscal year in
accordance with Financial
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CTDOCS/1630373.11
Accounting Standards Board Statement
No. 106, without regard to liabilities attributable to continuation
coverage mandated by section 4980B of the Code) of the Company and
its Subsidiaries is not Material.
(e) The execution and
delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the
prohibitions of section 406 of ERISA or in connection with which a
tax would be imposed pursuant to section 4975(c)(1)(A) (D) of the
Code. The representation by the Company to each Purchaser in the
first sentence of this Section 5.12(e) is made in reliance upon and
subject to the accuracy of such Purchaser’s representation in
Section 6.3 as to the sources of the funds used to pay the purchase
price of the Notes to be purchased by such Purchaser.
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Section 5.13.
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Private Offering by the
Company .
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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 5 other Institutional Investors (as defined in clause (c) of
the definition of such term), 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.
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Section 5.14.
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Use of Proceeds; Margin
Regulations .
|
The Company will apply the proceeds
of the sale of the Notes to repay a portion of its obligations
under the Credit Agreement and for general corporate purposes of
the Company. No part of the proceeds from the sale of the Notes
hereunder will be used, directly or indirectly, for the purpose of
buying or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve
System (12 CFR 221), or for the purpose of buying or carrying or
trading in any securities under such circumstances as to involve
the Company in a violation of Regulation X of said Board (12 CFR
224) or to involve any broker or dealer in a violation of
Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 5% of the value of the consolidated assets of
the Company and its Subsidiaries and the Company does not have any
present intention that margin stock will constitute more than 5% of
the value of such assets. As used in this Section, the terms
“ margin stock ” and “ purpose of
buying or carrying ” shall have the meanings assigned to
them in said Regulation U.
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Section 5.15.
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Existing Debt; Future
Liens .
|
(a) Except as described
therein, Schedule 5.15 sets forth a complete and correct list of
all outstanding Debt of the Company and its Subsidiaries as of May
31, 2005 (including a description of the obligors and obligees,
principal amount outstanding and collateral therefor, if any, and
Guaranty thereof, if any), 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
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CTDOCS/1630373.11
Subsidiary is in default, and no
waiver of default is currently in effect, in the payment of any
principal or interest on any Debt of the Company or such
Subsidiary, and no event or condition exists with respect to any
Debt of the Company or any Subsidiary that would permit (or that
with notice or the lapse of time, or both, would permit) one or
more Persons to cause such Debt to become due and payable before
its stated maturity or before its regularly scheduled dates of
payment.
(b) Except as disclosed
in Schedule 5.15, neither the Company nor any Subsidiary has agreed
or consented to cause or permit in the future (upon the happening
of a contingency or otherwise) any of its property, whether now
owned or hereafter acquired, to be subject to a Lien not permitted
by Section 10.2.
(c) 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, 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.
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Section 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 (i) 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 (ii) 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.
|
Section 5.17.
|
Status under Certain
Statutes .
|
Neither the Company nor any
Subsidiary is subject to regulation under the Investment Company
Act of 1940, as amended, the Public Utility Holding Company Act of
1935, as amended, or the Federal Power Act, as amended.
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Section 5.18.
|
Environmental Matters
.
|
11
CTDOCS/1630373.11
(a) Neither the Company
nor any Subsidiary has knowledge of any claim or has received any
notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of
their respective real properties now or formerly owned, leased or
operated by any of them, or other assets, alleging any damage to
the environment or violation of any Environmental Laws, except, in
each case, such as could not reasonably be expected to result in a
Material Adverse Effect.
(b) Neither the Company
nor any Subsidiary has knowledge of any facts which would give rise
to any claim, public or private, of violation of Environmental Laws
or damage to the environment emanating from, occurring on or in any
way related to real properties now or formerly owned, leased or
operated by any of them or to other assets or their use, except, in
each case, such as could not reasonably be expected to result in a
Material Adverse Effect.
(c) Neither the Company
nor any Subsidiary has stored any Hazardous Material on real
properties now or formerly owned, leased or operated by any of them
and has not disposed of any Hazardous Material in a manner contrary
to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse
Effect.
(d) All buildings on all
real properties now owned, leased or operated by the Company or any
Subsidiary are in compliance with applicable Environmental Laws,
except where failure to comply could not reasonably be expected to
result in a Material Adverse Effect.
|
Section 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 unsecured Senior Debt
of the Company described in Schedule 5.15 hereto.
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SECTION 6.
|
REPRESENTATIONS OF THE
PURCHASER.
|
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Section 6.1.
|
Purchase for
Investment.
|
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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’s or trust funds and not with a view to the
distribution thereof, 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’s 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, except under circumstances where neither
such registration nor such an exemption is required by law, and
that the Company is not required to register the Notes.
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Section 6.2.
|
Accredited
Investor.
|
12
CTDOCS/1630373.11
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.
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Section 6.3.
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Source of Funds
.
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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 (as further defined in Schedule B, “
PTE ”) 95-60) in respect of which the reserves and
liabilities (as defined by the annual statement for life insurance
companies approved by the NAIC (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 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
13
CTDOCS/1630373.11
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
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(f)
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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
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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SECTION 7.
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INFORMATION AS TO
COMPANY.
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Section 7.1.
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Financial and Business
Information .
|
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The Company shall deliver to each
holder of Notes that is an Institutional Investor:
(a) Quarterly Statements
- within 45 days (or such shorter period as is 15 days
greater than the period applicable to the filing of the
Company’s Quarterly Report on Form 10-Q (the “ Form
10-Q ”) with the SEC regardless of whether the Company is
subject to the filing requirements thereof) after the end of each
quarterly fiscal period in each fiscal year of the Company (other
than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such quarter, and
14
CTDOCS/1630373.11
(ii) consolidated
statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters) for the portion
of the fiscal year ending with such quarter,
setting forth in each case in
comparative form the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial statements
generally, and certified by a Senior Financial Officer as fairly
presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and
cash flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified
above of copies of the Company’s Form 10-Q prepared in
compliance with the requirements therefor and filed with the SEC
shall be deemed to satisfy the requirements of this Section 7.1(a),
provided, further, that the Company shall be deemed to have
made such delivery of such Form 10-Q if it shall have timely made
such Form 10-Q available on “EDGAR” and on its home
page on the worldwide web (at the date of this Agreement located
at: http//www.westpharma.com) and shall have given each Purchaser
prior notice of such availability on EDGAR and on its home page in
connection with each delivery (such availability and notice thereof
being referred to as “ Electronic Delivery
”);
(b) Annual
Statements - within 90 days (or such shorter period as is 15
days greater than the period applicable to the filing of the
Company’s Annual Report on Form 10-K (the “ Form
10-K ”) with the SEC regardless of whether the Company is
subject to the filing requirements thereof) after the end of each
fiscal year of the Company, duplicate copies of
(i) a
consolidated balance sheet of the Company and its Subsidiaries as
at the end of such year, and
(ii) consolidated
statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries for such
year,
setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and
accompanied by an opinion thereon of independent 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 (United States), and that such audit
provides a reasonable basis for such opinion in the circumstances,
provided that the delivery within the time period specified
above of the Company’s Form 10-K for such fiscal year
(together with the Company’s annual report to shareholders,
if any, prepared pursuant to Rule 14a-3 under the Exchange Act)
prepared in accordance with the requirements therefor and filed
with the SEC, shall be deemed to satisfy the requirements of this
Section 7.1(b), provided, further, that the
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CTDOCS/1630373.11
Company shall be deemed to have made
such delivery of such Form 10-K if it shall have timely made
Electronic Delivery thereof;
(c) SEC and Other
Reports - except for filings referred to in Section 7.1(a) and
(b), promptly upon their becoming available, one copy of (i) each
financial statement, report, notice or proxy statement sent by or
to the Company or any Subsidiary to its 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
SEC;
(d) Notice of Default
or Event of Default - promptly, and in any event within five
Business Days after a Responsible 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
- 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 could result in the incurrence
of any liability by the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise tax provisions of
the Code relating to employee benefit plans, or in the imposition
of any Lien on any of the rights, properties or assets of the
Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or
Lien, taken together with any other such liabilities or Liens then
existing, could reasonably be expected to have a Material Adverse
Effect;
(f) Notices
from Governmental Authority - promptly, and in any event within
30 days of receipt thereof, copies of any notice to the Company or
any Subsidiary from any Federal or state Governmental Authority
relating to any order, ruling, statute or other law or regulation
that could reasonably be expected to have a Material Adverse
Effect; and
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(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 (including, but without limitation, actual copies
of the Company’s Form 10-Q and Form 10-K) or relating to the
ability of any Obligor to perform its obligations under any
Financing Document to which it is a party as from time to time may
be reasonably requested by any such holder of Notes including
without limitation 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.
Notwithstanding the foregoing, in
the event that one or more Unrestricted Subsidiaries shall either
(i) own more than 10% of the total consolidated assets of the
Company and its Subsidiaries, or (ii) account for more than 10% of
the consolidated gross revenues of the Company and its
Subsidiaries, determined in each case in accordance with GAAP,
then, within the respective periods provided in Section 7.1(a) and
(b) above, the Company shall also deliver to each holder of Notes
that is an Institutional Investor unaudited financial statements of
the character and for the dates and periods as in said Sections
7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on
a consolidated basis), together with a consolidating statement
reflecting eliminations or adjustments required to reconcile the
financial statements of such group of Unrestricted Subsidiaries to
the financial statements delivered pursuant to Sections 7.1(a) and
(b).
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Section 7.2.
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Officer’s
Certificate .
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Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1 (a) or
Section 7.1(b) shall be accompanied by a certificate of a Senior
Financial Officer setting forth (which, in the case of Electronic
Delivery of any such financial statements, shall be by separate
concurrent delivery of such certificate to each holder of
Notes):
(a) Covenant
Compliance - the information (including detailed calculations)
required in order to establish whether the Company was in
compliance with the requirements of Sections 10.3, 10.5, 10.6, 10.7
and 10.8 during the quarterly or annual period covered by the
statements then being furnished (including with respect to each
such Section, where applicable, the calculations of the maximum or
minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the calculation
of the amount, ratio or percentage then in existence);
and
(b) Event of
Default - a statement that such Senior Financial Officer has
reviewed the relevant terms hereof and has made, or caused to be
made, under his or her supervision, a review of the transactions
and conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by the
statements then being furnished to the date of the certificate and
that such review shall not have disclosed the existence during such
period of any condition or event that constitutes a Default or an
Event of Default or, if any such condition or event existed or
exists (including, without limitation, any such event or condition
resulting from the failure of the Company or any Subsidiary to
comply with any Environmental Law),
17
CTDOCS/1630373.11
specifying the nature and period of
existence thereof and what action the Company shall have taken or
proposes to take with respect thereto.
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Section 7.3.
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Visitation
.
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The Company shall permit the
representatives of each holder of Notes that is an Institutional
Investor:
(a) No Default -
if no Default or Event of Default then exists, at the expense of
such holder and upon reasonable prior notice to the Company, to
visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries
with the Company’s officers and (with the consent of the
Company, which consent will not be unreasonably withheld) to visit
the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be
reasonably requested in writing; and
(b) Default - if
a Default or Event of Default then exists, at the expense of the
Company to visit and inspect any of the offices or properties of
the Company or any Subsidiary, to examine all their respective
books of account, records, reports and other papers, to make copies
and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the affairs, finances and
accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
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SECTION 8.
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PAYMENT OF THE NOTES.
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Section 8.1.
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Required Prepayments
.
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(a) The entire unpaid
principal amount of the Series A Notes outstanding shall become due
and payable at par and without payment of the LIBOR Breakage Amount
or Prepayment Premium, on the Series A Maturity Date.
(b) The entire unpaid
principal amount of the Series B Notes outstanding shall become due
and payable at par and without payment of the LIBOR Breakage Amount
or Prepayment Premium, on the Series B Maturity Date.
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Section 8.2.
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Optional Prepayments with
Prepayment Premium .
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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 $1,000,000
of the aggregate principal amount of the Notes then outstanding to
be prepaid in the case of a partial prepayment (or such lesser
amount as shall be required to effect a partial prepayment
resulting from an offer of prepayment pursuant to Section 10.3), at
100% of the principal amount so prepaid, together with interest
accrued thereon to the date of such prepayment, plus the Prepayment
Premium, if any, determined for the prepayment date with respect to
such principal amount of each Note to be prepaid, plus the LIBOR
Breakage Amount (unless the date specified for prepayment is an
Interest
18
CTDOCS/1630373.11
Payment Date). The Company will give
each holder of Notes written notice of each optional prepayment
under this Section 8.2 not less than 30 days and not more than 60
days prior to the date fixed for such prepayment. Each such notice
shall specify such date (which shall be a Business Day), the
aggregate principal amount and Series of the Notes of each Series
to be prepaid on such date, the principal amount of each Note held
by such holder to be prepaid (determined in accordance with Section
8.4), 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 respective Prepayment Premium, if any, due in connection with
such prepayment, setting forth the details of such computation. At
the request of the Company, the holders of the Notes will provide a
certificate to the Company setting forth, in reasonable detail, the
calculation of the LIBOR Breakage Amount, if any due in respect of
such prepayment. 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 date of such prepayment,
the calculation of the Prepayment Premium and LIBOR Breakage
Amount, if any, and the calculation of interest to be paid on the
prepayment date with respect to such principal amount being
prepaid, as of the specified prepayment date.
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Section 8.3.
|
Offer to Prepay upon the Sale of
Certain Assets.
|
(a) Notice and
Offer . In the event of any Debt Prepayment Application under
Section 10.3, the Company will, within ten (10) days of the
occurrence of the Asset Disposition (a “ Debt Prepayment
Transfer ”) in respect of which an offer to prepay the
Notes is being made to comply with the provisions for a Debt
Prepayment Application (as set forth in the definition thereof),
give written notice of such Debt Prepayment Transfer to each holder
of Notes. Such written notice shall contain, and such written
notice shall constitute, an irrevocable offer (the “
Transfer Prepayment Offer ”) to prepay, at the
election of each holder, a portion of the Notes held by such holder
equal to such holder’s Ratable Portion of the Net Proceeds in
respect of such Debt Prepayment Transfer on a date specified in
such notice (the “ Transfer Prepayment Date ”)
that is not less than thirty (30) days and not more than sixty (60)
days after the date of such notice, together with interest on the
amount to be so prepaid accrued to the Transfer Prepayment Date and
the LIBOR Breakage Amount, if any, with respect thereto. If the
Transfer Prepayment Date shall not be specified in such notice, the
Transfer Prepayment Date shall be the fortieth (40th) day after the
date of such notice.
(b) Acceptance and
Payment. To accept such Transfer Prepayment Offer, a holder of
Notes shall cause a notice of such acceptance to be delivered to
the Company not later than fifteen (15) days after the date of such
written notice from the Company, provided, that failure to accept
such offer in writing within fifteen (15) days after the date of
such written notice shall be deemed to constitute a rejection of
the Transfer Prepayment Offer. If so accepted by any holder of a
Note, such offered prepayment (equal to or not less than such
holder’s Ratable Portion of the Net Proceeds in respect of
such Debt Prepayment Transfer) shall be due and payable on the
Transfer Prepayment Date. Such offered prepayment shall be made at
one hundred percent (100%) of the principal amount of such Notes
being so prepaid, together with interest on such principal amount
then being prepaid accrued to the Transfer Prepayment Date and the
LIBOR Breakage Amount, if any, with respect thereto.
19
CTDOCS/1630373.11
(c) Officer’s
Certificate . Each offer to prepay the Notes pursuant to
this Section 8.3 shall be accompanied by a certificate, executed by
a Senior Financial Officer and dated the date of such offer,
specifying (i) the Transfer Prepayment Date, (ii) the Net Proceeds
in respect of the applicable Debt Prepayment Transfer, (iii) that
such offer is being made pursuant to Section 8.3 and Section 10.3,
(iv) the principal amount of each Note offered to be prepaid, (v)
the interest that would be due on each Note offered to be prepaid,
accrued to the Transfer Prepayment Date, and (vi) in reasonable
detail, the nature of the Transfer giving rise to such Debt
Prepayment Transfer and certifying that no Default or Event of
Default exists or would exist after giving effect to the prepayment
contemplated by such offer.
(d) Notice Concerning
Status of Holders of Notes . Promptly after each Transfer
Prepayment Date and the making of all prepayments contemplated on
such Transfer Prepayment Date under this Section 8.3 (and, in any
event, within thirty (30) days thereafter), the Company shall
deliver to each holder of Notes a certificate signed by a Senior
Financial Officer containing a list of the then current holders of
Notes (together with their addresses) and setting forth as to each
such holder the outstanding principal amount of Notes held by such
holder at such time.
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Section 8.4.
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Allocation of Partial
Prepayments .
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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 of the Notes at the time outstanding in proportion, as
nearly as practicable, to the respective unpaid principal amounts
thereof not theretofore called for prepayment, without regard to
the Series of such Notes.
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Section 8.5.
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Maturity; Surrender,
Etc .
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In the case of each prepayment of
Notes pursuant to this Section 8, the principal amount of each Note
to be prepaid shall mature and become due and payable on the date
fixed for such prepayment (which shall be a Business Day), together
with interest on such principal amount accrued to such date and the
Prepayment Premium and LIBOR Breakage Amount, if applicable, 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 Prepayment Premium and LIBOR Breakage 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 cancelled and shall not be reissued, and no Note
shall be issued in lieu of any prepaid principal amount of any
Note.
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Section 8.6.
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Purchase of Notes
.
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The Company will not and will not
permit any Affiliate to purchase, redeem, prepay or otherwise
acquire, directly or indirectly, any of the outstanding Notes
except (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 made
by the Company or an Affiliate pro rata to the holders of the Notes
upon the same terms and conditions. Any such offer shall provide
each holder with sufficient
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CTDOCS/1630373.11
information to enable it to make an
informed decision with respect to such offer, and shall remain open
for at least 15 Business Days. If the holders of greater than or
equal to 25% of the principal amount of the Notes then outstanding
accept such offer, the Company shall promptly notify the remaining
holders of such fact and the expiration date necessary to give each
such remaining holder at least 10 Business Days from its receipt of
such notice to accept such offer. 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.
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Section 8.7.
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Interest Rate and Interest
Payment Dates .
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(a) Interest Rate
. Subject to Section 8.7(d), Section 8.7(f)(i) and Section 8.8, the
outstanding principal amount of each Note shall bear interest, for
each Interest Period, at the relevant LIBOR Rate for such Series
for such Interest Period.
(b) Calculation of
Interest . Interest on the Notes shall be calculated on the
basis of a 360 day year and the actual number of days elapsed,
calculated as to each Interest Period or other period during which
interest accrues from and including the first day thereof to but
excluding the last day thereof.
(c) Payment of
Interest. Subject to Section 8.7(a), interest on each Note
shall be payable on the last Business Day of each applicable
Interest Period (each such date, an “ Interest Payment
Date ”).
(d) Inability to
Determine LIBOR Rate . If, prior to the first Business Day of
any Interest Period, the basis for determining the LIBOR Rate
ceases to be reported on Bloomberg page “Currency BBAM
1” (or in such other manner as provided for in the definition
of LIBOR Rate) or such other service as has been nominated by the
British Bankers’ Association as an authorized information
vendor for purposes of displaying the basis for determining such
rate) and if the Required Holders, or their designated agent, shall
have reasonably determined (which determination shall be conclusive
and binding upon the Company) that, by reason of circumstances
affecting the relevant market, other adequate and reasonable means
do not exist for ascertaining the LIBOR Rate for such Interest
Period, then the Required Holders shall forthwith give notice
thereof to the Company. If such notice is given, (i) the interest
rate applicable to all LIBOR-Based Loans for such Interest Period
shall be the Prime Rate, determined and effective as of the first
day of such Interest Period, (ii) each reference herein and in the
Notes to the “LIBOR Rate” shall be deemed thereafter to
be a reference to the Prime Rate, and (iii) subject to Section
8.7(e) below, such substituted rate shall thereafter be determined
by the Required Holders in accordance with the terms hereof. Until
notice contemplated by Section 8.7(e) is furnished by the Required
Holders, the LIBOR Rate (defined without giving effect to clause
(ii) of this Section 8.7(d)) shall not apply to any LIBOR-Based
Loan.
(e) Reinstatement of
LIBOR Rate . If there has been at any time an interest rate
substituted for the LIBOR Rate in accordance with Section 8.7(a) or
Section 8.7(d) and if in the reasonable opinion of the Required
Holders, the circumstances causing such
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CTDOCS/1630373.11
substitution have ceased, then the
Required Holders shall promptly notify the Company in writing of
such cessation, and on the first day of the next succeeding
Interest Period the LIBOR Rate shall be determined as originally
defined hereby. Nevertheless, thereafter the provisions of Section
8.7(a) and Section 8.7(d) above shall continue to be
effective.
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(f)
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Default Rate; Overdue
Amounts.
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(i)
Increase in Interest Rate; Event of Default. Upon
