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Exhibit 10.3
TELEFLEX
INCORPORATED
155 South Limerick
Road
Limerick, Pennsylvania 19468
As of October 1,
2007
Re: First Amendment
(this “ Amendment ”) to the Note
Purchase Agreement dated as of July 8, 2004
TO THE NOTEHOLDERS
REFERENCED BELOW
Ladies and Gentlemen:
Reference
is made to the Note Purchase Agreement dated as of July 8,
2004 (as in effect on the date hereof, the “ Existing Note
Agreement ”, and as amended hereby, the “ Note
Agreement ”) among Teleflex Incorporated, a Delaware
corporation (the “ Company ”), and each of the
institutions named on the signature pages thereof (the “
Purchasers ”), pursuant to which the Purchasers
purchased U.S.$350,000,000 in aggregate principal amount of the
Company’s (a) 5.23% Series 2004-1 Tranche A Senior
Notes due 2011 (the “ Existing Tranche A Notes
”), (b) 5.75% Series 2004-1 Tranche B Senior Notes
due 2014 (the “ Existing Tranche B Notes ”) and
(c) 5.85% Series 2004-1 Tranche C Senior Notes due 2016
(the “ Existing Tranche C Notes ”, and together
with the Existing Tranche A Notes and the Existing Tranche B Notes,
collectively, the “ Existing Notes ”). Each
current holder of an Existing Note is herein referred to as a
“ Noteholder ”, and such holders collectively
are referred to as the “ Noteholders ”.
The
Company has requested that the Noteholders agree to amend certain
provisions of the Existing Note Agreement and the Existing Notes,
as more fully described herein, and the Noteholders are willing to
amend the Existing Note Agreement and the Existing Notes as
provided herein, subject to the satisfaction of the conditions
specified in Section 4 below.
Accordingly, in consideration of the promises and the mutual
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Noteholders agree as follows:
Section 1. Definitions . All capitalized terms used
herein but not defined herein shall have the respective meanings
ascribed thereto in Schedule B to the Note Agreement (which
Schedule B, as amended pursuant to this Amendment, is set
forth on Exhibit E hereto).
Section 2. Amendments . Subject to the satisfaction of
the conditions specified in Section 4:
(a) without
further action by any Person,
(i) the
form of Existing Tranche A Note attached as Exhibit 1-A to the
Existing Note Agreement, and each outstanding Existing Tranche A
Note, are hereby amended and restated to conform to the form of
Existing Tranche A Note attached hereto as Exhibit A
(in the case of each such Existing Tranche A Note outstanding, with
appropriate modifications to reflect the principal amount,
registration number, private placement number, date and registered
holder thereof) and each such outstanding Existing Tranche A Note,
as amended hereby, shall be referred to herein as a “
Tranche A Note ”;
(ii) the
form of Existing Tranche B Note attached as Exhibit 1-B to the
Existing Note Agreement, and each outstanding Existing Tranche B
Note, are hereby amended and restated to conform to the form of
Existing Tranche B Note attached hereto as Exhibit B
(in the case of each such Existing Tranche B Note outstanding, with
appropriate modifications to reflect the principal amount,
registration number, private placement number, date and registered
holder thereof) and each such outstanding Existing Tranche B Note,
as amended hereby, shall be referred to herein as a “
Tranche B Note ”; and
(iii) the
form of Existing Tranche C Note attached as Exhibit 1-C to the
Existing Note Agreement, and each outstanding Existing Tranche C
Note on the date hereof, are hereby amended and restated to conform
to the form of Existing Tranche C Note attached hereto as
Exhibit C (in the case of each such Existing Tranche C
Note outstanding, with appropriate modifications to reflect the
principal amount, registration number, private placement number,
date and registered holder thereof) and each such outstanding
Existing Tranche C Note, as amended hereby, shall be referred to
herein as a “ Tranche C Note ” and the Tranche C
Notes, together with the Tranche A Notes and the Tranche B Notes
shall be referred to herein collectively as the “
Notes ”;
and upon
the request of any Noteholder, the Company will issue a replacement
Note or Notes in favor of such Noteholder in the appropriate form
in exchange for the Note or Notes of such Noteholder;
(b) the
Existing Note Agreement (other than Schedule B thereto) is
hereby amended as set forth in Exhibit D hereto;
and
(c) Schedule B to the Existing Note Agreement is hereby
amended and restated in its entirety to read as set forth in
Exhibit E hereto.
Section 3. Representations and Warranties . The Company
represents and warrants to each Noteholder on the date hereof as
follows (and the parties hereto agree that the following
representations and warranties shall be deemed to have been made
pursuant to the Note Agreement for all relevant purposes
thereof):
3.1 Power and
Authority . Each Obligor has the corporate power and authority
to execute and deliver this Amendment and the other Financing
Documents to which it is a party that are being executed and
delivered in connection therewith (such documents, the “
Amendment Documents ”) and to perform its obligations
under the Financing Documents to which it is a party.
3.2
Authorization . The Amendment Documents have been duly
authorized by all necessary action on the part of the Obligors and
the Financing Documents constitute legal, valid and binding
obligations of the Obligors party thereto, enforceable against them
in accordance with their 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).
3.3 Valid,
Perfected Lien . The Lien of the Pledge Agreement constitutes a
valid, perfected, first priority Lien on the property covered
thereby, subject to no prior or equal Lien except as permitted
under Section 10.2 of the Note Agreement.
3.4 No
Defaults . No Default or Event of Default has occurred and is
continuing (either before or after giving effect to this
Amendment).
3.5
Disclosure . The documentation provided by the Company with
respect to the Transactions (including, without limitation, the
2007 Note Purchase Agreement and the schedules thereto), taken as a
whole, does 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; provided that, with respect to projected financial
information or estimates, the Company represents only that such
information was prepared in good faith based upon assumptions
believed to be reasonable as of the date of preparation thereof.
Except as disclosed in such documentation, since December 31,
2006, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any
Subsidiary except changes that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect.
There is no fact known to the Company that could reasonably be
expected to have a Material Adverse Effect that has not been set
forth herein or in such documentation.
3.6 Pro Forma
Financial Statements . The Pro Forma Financial Statements
(defined below), copies of which have heretofore been furnished to
each Noteholder, have been prepared in good faith, based on
assumptions believed by the Company to be reasonable as of the date
of preparation thereof.
Further,
the Company hereby makes to each Noteholder on the date hereof each
of the representations and warranties contained in
Sections 5.1, 5.4 (and attached hereto is Schedule 5.4
in connection therewith), 5.6 through 5.11 (inclusive), 5.12(a)-(d)
(inclusive), 5.15 (and attached hereto is Schedule 5.15
in connection therewith), 5.16(b), 5.17 and 5.18 of the 2007 Note
Purchase Agreement (and the parties hereto agree that such
representations and warranties shall be deemed to have been made
pursuant to the Amendment Documents and the Note Agreement for all
relevant purposes thereof); provided that, in connection therewith,
each capitalized term used in such provisions of the 2007 Note
Purchase Agreement shall be deemed to be a reference to the same
term as it is defined in Exhibit E hereto.
Section 4. Conditions to Effectiveness . This Amendment
shall become effective when each of the following shall have
occurred:
(a) this
Amendment and the other Amendment Documents shall have been
executed and delivered by the parties thereto;
(b) the
Company shall have delivered to the Noteholders (i) a
certificate of its Secretary or Assistant Secretary, dated the date
hereof, certifying as to the resolutions attached thereto and other
corporate proceedings relating to the authorization, execution and
delivery of the Amendment Documents to which the Company is a party
and (ii) a certificate of the Secretary or Assistant Secretary
of each Subsidiary Guarantor, dated the date hereof, certifying as
to the resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the
Amendment Documents to which such Subsidiary Guarantor is a
party.
(c) the
Company shall have delivered to the Noteholders the audited
consolidated financial statements of Arrow for the fiscal years
ended August 31, 2004, August 31, 2005 and
August 31, 2006; (ii) the unaudited consolidated
financial statements of Arrow for the fiscal quarters ended
November 30, 2006, February 28, 2007 and May 31,
2007; (iii) a pro forma consolidated balance sheet of the
Company and pro forma consolidated income statement of the Company,
each dated as of July 1, 2007, giving pro forma effect to the
Arrow Acquisition and the Transactions (the “ Pro Forma
Financial Statements ”) (as if the Arrow Acquisition and
the Transactions had occurred on such date or at the beginning of
such period, as the case may be); and (iv) a certificate,
dated the date hereof and signed by a Senior Financial Officer of
the Company, setting forth a reasonably detailed calculation of
Consolidated EBITDA showing as of June 30, 2007 on a pro forma
basis giving effect to the Arrow Acquisition and the Transactions
(as if the Arrow Acquisition and the Transactions had occurred on
such date or at the beginning of such period, as the case may be)
Consolidated EBITDA of not less than $500,000,000;
(d) the
Noteholders shall have received opinions in form and substance
satisfactory to such Noteholder, dated the date hereof from Simpson
Thacher & Bartlett LLP, special counsel for the Company, in
form and substance satisfactory to such Noteholder (and the Company
hereby instructs its counsel to deliver such opinion to the
Noteholders);
(e) the
Noteholders shall have received an executed copy of the following
documents, and each of the other agreements and instruments
executed in connection therewith, each in form and substance
satisfactory to such Noteholder and certified as true and correct
by a Senior Financial Officer, and each such agreement shall be in
full force and effect:
(i) the
Bank Credit Agreement;
(ii) the
2007 Note Purchase Agreement; and
(iii) the
2002 NPA Amendment;
and, in the
case of the Bank Credit Agreement and the 2007 Note Purchase
Agreement, the Company shall have received the proceeds of all
loans to be borrowed by it or all notes to be issued by it (as the
case may be) thereunder;
(f) the
Noteholders shall have received an executed copy of the Arrow
Acquisition Agreement and each of the other agreements and
instruments executed in connection therewith, each certified as
true and correct by a Senior Financial Officer, and the Arrow
Acquisition shall be consummated in accordance with the Arrow
Acquisition Agreement on the date hereof;
(g) the
Noteholders shall have received evidence satisfactory to them that
all amounts outstanding under the several Note Purchase Agreements,
dated as of November 1, 1992, among the Company and each of
the institutions named on the signature pages thereof, and under
the several Note Purchase Agreements, dated as of December 15,
1993, among the Company and each of the institutions named on the
signature pages thereof, have been paid in full;
(h) the
Noteholders shall have received evidence that, (i) the
principal of and interest on outstanding loans, and all accrued
fees and all other amounts owing, under that certain Amended and
Restated Credit Agreement, dated as of October 30, 2006 to
which the Company is a party shall have been paid in full, all
commitments to extend credit thereunder shall have been terminated,
and all letters of credit issued thereunder and outstanding
immediately prior to the date of Closing shall have been continued
pursuant to the Bank Credit Agreement, and all accrued and unpaid
fees in respect of such letters of credit shall have been paid; and
(ii) the principal of and interest on outstanding loans, and
all accrued fees and all other amounts owing, under the Loan
Agreement dated as of April 12, 2004 among Arrow and certain
of its Subsidiaries, Wachovia Bank, National Association (f/k/a
First Union National Bank) and Wachovia Bank, National Association,
London Branch (f/k/a First Union National Bank, London Branch)
(collectively, the “ Existing Arrow Indebtedness
”) shall have been paid in full, and all letters of credit
issued thereunder and outstanding immediately prior to the First
Amendment Effective Date shall have been terminated or replaced by
letters of credit issued under the Bank Credit Agreement, and all
Liens securing the Existing Arrow Indebtedness and all guaranties
issued in respect thereof shall have been discharged or released
(or arrangements for such discharge or release satisfactory to the
Noteholders shall have been made);
(i) the
Company shall have delivered to the Collateral Agent certificates
representing the Pledged Equity Interests (as defined in the Pledge
Agreement), accompanied by undated stock powers executed in
blank;
(j) a new
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;
(k) without
limiting the provisions of Section 15.1 of the Note Agreement,
the Company shall have paid on or before the date hereof the
reasonable fees, charges and disbursements of Bingham McCutchen
LLP, the Noteholders’ special counsel, to the extent
reflected in a statement of such counsel rendered to the Company at
least one Business Day prior to such date;
(l) the
Company has paid to each Noteholder an amendment fee in an amount
equal to 0.25% (25 basis points) of the aggregate outstanding
principal amount of Notes held by such Noteholder; and
(m) all
corporate and other proceedings in connection with the transactions
contemplated by this Amendment and all documents and instruments
incident to such transactions shall be satisfactory to the
Noteholders and their special counsel, and the Noteholders and
their special counsel shall have received all such counterpart
originals or certified or other copies of such documents as such
Noteholders or such special counsel may reasonably request.
Section 5. Miscellaneous .
5.1
Ratification; Agreement Unchanged . The Existing Note
Agreement and the Existing Notes are in all respects ratified and
confirmed, and the terms, covenants and agreements thereof shall
remain unchanged and in full force and effect except as amended
hereby.
5.2
References to Note Agreement and Notes . From and after the
effective date of this Amendment, all references to “this
Agreement” in the Existing Note Agreement and in the Existing
Notes shall be deemed to be references to the Note Agreement.
5.3 Payment
of Fees . Without limiting Section 15.1 of the Note
Agreement, the Company agrees to pay the reasonable fees and
expenses of Bingham McCutchen LLP, counsel for the Noteholders, in
connection with this Amendment.
5.4 Execution
in Counterparts . This Amendment may be executed in
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
Delivery of an executed counterpart of a signature page to this
Amendment by facsimile transmission or electronic mail shall be
effective as delivery of a manually executed counterpart of this
Amendment.
5.5 Governing
Law . This Amendment shall be construed and enforced in
accordance with, and the rights of the parties shall be governed
by, the law of the State of New York excluding choice-of-law
principles of the law of such State that would permit or require
the application of the laws of a jurisdiction other than such
State.
5.6
Post-Closing Letter . By their execution and delivery
hereof, the Noteholders hereby acknowledge and agree to that
certain letter agreement, dated as of the date hereof, by the
Company in favor of the Noteholders, relating to the delivery of
certain post-closing items, and agree that such letter shall be
considered a “Financing Document” for all purposes of
this Agreement.
* * * *
1
If you are
in agreement with the foregoing, please sign the form of acceptance
in the space provided below whereupon this Amendment shall become a
binding agreement among the Noteholders and the Company.
Very
truly yours,
TELEFLEX INCORPORATED
By: /s/
Kevin K. Gordon
Name: Kevin K. Gordon
Title: Executive Vice President and
Chief Financial Officer
THE FOREGOING AMENDMENT IS
HEREBY
ACCEPTED AS OF THE DATE FIRST ABOVE
WRITTEN:
Connecticut General Life
Insurance Company
By: CIGNA Investments, Inc.
(authorized agent)
By: /s/ Lori E. Hopkins
Name: Lori E. Hopkins
Title: Managing Director
Massachusetts Mutual Life
Insurance Company
By: Babson Capital
Management LLC
as Investment Adviser
By: /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
C.M. Life Insurance
Company
By: Babson Capital
Management LLC
as Investment Sub-Adviser
By: /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
MML Bay State Life
Insurance Company
By: Babson Capital
Management LLC
as Investment Sub-Adviser
By: /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
MassMutual Asia Limited
By: Babson Capital
Management LLC
as Investment Adviser
By: /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
Hakone Fund LLC
By: Babson Capital
Management LLC
as Investment Manager
By: /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
Principal Life Insurance
Company
By: Principal Global
Investors, LLC
a Delaware limited liability company,
its Authorized Signatory
By: /s/ Colin
Pennycooke
Name: Colin Pennycooke
Title: Counsel
By: /s/ Christopher
Henderson
Name: Christopher Henderson
Title: Associate General Counsel
Country Life Insurance Company
By: /s/ John Jacobs
Name: John Jacobs
Title: Director – Fixed Income
Hartford Life and Annuity Insurance Company
By: Hartford Investment
Management Company
Its Agent and Attorney-in-Fact
By: /s/ Matthew J.
Poznar
Name: Matthew J. Poznar
Title: Vice President
Hartford Life Insurance
Company
By: Hartford Investment
Management Company
Its Agent and Attorney-in-Fact
By: /s/ Matthew J.
Poznar
Name: Matthew J. Poznar
Title: Vice President
Physicians Life Insurance
Company
By: Hartford Investment
Management Company
Its Investment Manager
By: /s/ Matthew J.
Poznar
Name: Matthew J. Poznar
Title: Vice President
Modern Woodmen of
America
By: /s/ Nick S. Coin
Name: Nick S. Coin
Title: Treasurer & Investment Manager
Allstate Life Insurance Company
By: /s/ Robert B.
Bodett
Name: Robert B. Bodett
Title: Authorized Signatory
By: /s/ Breege A. Farrell
Name: Breege A. Farrell
Title: Authorized Signatory
American Heritage Life
Insurance Company
By: /s/ Robert B.
Bodett
Name: Robert B. Bodett
Title: Authorized Signatory
By: /s/ Breege A. Farrell
Name: Breege A. Farrell
Title: Authorized Signatory
State Farm Life Insurance
Company
By: /s/ Jeffrey T.
Attwood
Name: Jeffrey T. Attwood
Title: Investment Officer
By: /s/ Lisa L. Rogers
Name: Lisa L. Rogers
Title: Investment Officer
American General Life
Insurance Company
AIG Life Insurance Company
American International Life Assurance Company of New York
By: /s/ Gerald F.
Herman
Name: Gerald F. Herman
Title: Vice President
New York Life Insurance Company
By: /s/ Kathleen A.
Haberkern
Name: Kathleen A. Haberkern
Title: Director
New York Life Insurance And Annuity Corporation
By: New York Life
Investment Management, LLC,
Its Investment Manager
By: /s/ Kathleen A.
Haberkern
Name: Kathleen A. Haberkern
Title: Director
New York Life Insurance and
Annuity Corporation Institutionally
Owned Life Insurance Separate Account
By: New York Life
Investment Management, LLC,
Its Investment Manager
By: /s/ Kathleen A.
Haberkern
Name: Kathleen A. Haberkern
Title: Director
Genworth Life Insurance
Company
By: /s/ Stephen DeMotto
Name: Stephen DeMotto
Title: Investment Officer
Employers Reinsurance Company
By: Conning Asset
Management Company,
as Investment Manager
By: /s/ Robert M. Mills
Name: Robert M. Mills
Title: Director
Phoenix Life Insurance
Company
By: /s/ John H. Beers
Name: John H. Beers
Title: Vice President
The State Life Insurance Company
By: American United Life
Insurance Company, its Agent
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
Lafayette Life Insurance
Company
By: American United Life
Insurance Company, its Agent
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
American United Life
Insurance Company
By: /s/ Michael Bullock
Name: Michael Bullock
Title: V.P. Private Placements
Monumental Life Insurance Company
By: /s/ Christopher D.
Pahlke
Name: Christopher D. Pahlke
Title: Vice President
Transamerica Life Insurance Company
By: /s/ Christopher D.
Pahlke
Name: Christopher D. Pahlke
Title: Vice President
Transamerica Occidental Life Insurance Company
By: /s/ Christopher D.
Pahlke
Name: Christopher D. Pahlke
Title: Vice President
Teachers Insurance And Annuity Association of America
By: /s/ Brian K. Roelke
Name: Brian K. Roelke
Title: Director
The Union Central Life Insurance Company
By: Summit Investment
Advisors Inc., as Agent
By: /s/ Andrew S. White
Name: Andrew S. White
Title: Managing Director – Private Placements
Ameritas Life Insurance
Corp.
By: Summit Investment
Advisors Inc., as Agent
By: /s/ Andrew S. White
Name: Andrew S. White
Title: Managing Director – Private Placements
Acacia Life Insurance
Company
By: Summit Investment
Advisors Inc., as Agent
By: /s/ Andrew S. White
Name: Andrew S. White
Title: Managing Director – Private Placements
American Family Life
Insurance Company
By: /s/ Phillip
Hannifan
Name: Phillip Hannifan
Title: Investment Director
Assurity Life Insurance Company
By: /s/ Victor Weber
Name: Victor Weber
Title: Senior Director – Investments
The Prudential Insurance Company of America
By: /s/ Yvonne Guajardo
Name: Yvonne Guajardo
Title:Vice President
Prudential Retirement Insurance and Annuity Company
By: Prudential Investment Management, Inc.,
as investment manager
By: /s/ Yvonne Guajardo
Name: Yvonne Guajardo
Title:Vice President
Farmers New World Life Insurance Company
By: Prudential Private
Placement Investors, L.P.
(as Investment Advisor)
By: Prudential Private
Placement Investors, Inc.
(as its General Partner)
By: /s/ Yvonne Guajardo
Name: Yvonne Guajardo
Title:Vice President
United of Omaha Life Insurance Company
By: Prudential Private
Placement Investors, L.P.
(as Investment Advisor)
By: Prudential Private
Placement Investors, Inc.
(as its General Partner)
By: /s/ Yvonne Guajardo
Name: Yvonne Guajardo
Title:Vice President
Baystate Investments, LLC
By: Prudential Private
Placement Investors, L.P.
(as Investment Advisor)
By: Prudential Private
Placement Investors, Inc.
(as its General Partner)
By: /s/ Yvonne Guajardo
Name: Yvonne Guajardo
Title:Vice President
Metropolitan Life Insurance Company of Connecticut
By: /s/ Judith A.
Gulotta
Name: Judith A. Gulotta
Title: Director
Woodmen of the World Life Insurance Society
By: /s/ Mark D. Theisen
Name: Mark D. Theisen
Title: Executive Vice President of Finance and Treasurer
By: /s/ Danny E. Cummins
Name: Danny E. Cummins
Title: Executive Vice President for Operations and Secretary
Protective Life Insurance
Company
By: /s/ Lance P. Black
Name: Lance P. Black
Title: Vice President
Genworth Life and Health Insurance Company
By: /s/ Amy C. King
Name: Amy C. King
Title: Authorized Signer
By: /s/ Deborah J. Foss
Name: Deborah J. Foss
Title: Authorized Signer
EXHIBIT A
[FORM OF SERIES 2004-1
TRANCHE A NOTE]
TELEFLEX INCORPORATED
SERIES 2004-1 TRANCHE A
SENIOR NOTE DUE 2011
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No. 2004-1-A-[
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$[ ]
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[Date]
PPN: 879369 E@1 |
FOR VALUE
RECEIVED, the undersigned, TELEFLEX INCORPORATED (herein called the
“Company”), a corporation organized and existing under
the laws of the State of Delaware hereby promises to pay to [
], or registered assigns, the
principal sum of [ ] DOLLARS
(or so much thereof as shall not have been prepaid) on July 8,
2011, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the
rate in effect pursuant to the terms of Section 8.9 of the
Note Purchase Agreement referred to below, payable semiannually, on
the 8 th day of January and July in each year,
commencing with the January 8 or July 8 next succeeding the
date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any
overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the Default Rate (as defined in
the Note Purchase Agreement referred to below).
Payments
of principal of, interest on and any Make-Whole Amount with respect
to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A. in New
York, New York or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided
in the Note Purchase Agreement referred to below.
This Note
is one of a series of Senior Notes (herein called the
“Notes”) issued pursuant to the Note Purchase Agreement
dated as of July 8, 2004 (as from time to time amended and
supplemented, the “Note Purchase Agreement”), between
the Company and the respective Purchasers named therein and is
entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and to have made the representation set forth in
Section 6.2 of the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for registration
of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note
is subject to prepayment at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price
(including any applicable Make-Whole Amount) and with the effect
provided in the Note Purchase Agreement.
This Note
shall be construed and enforced in accordance with the laws of the
State of New York.
TELEFLEX
INCORPORATED
By
Title:
2
EXHIBIT B
[FORM OF SERIES 2004-1
TRANCHE B NOTE]
TELEFLEX INCORPORATED
SERIES 2004-1 TRANCHE B
SENIOR NOTE DUE 2014
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No. 2004-1-B-[
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$[ ]
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[Date]
PPN: 879369 E#9 |
FOR VALUE
RECEIVED, the undersigned, TELEFLEX INCORPORATED (herein called the
“Company”), a corporation organized and existing under
the laws of the State of Delaware hereby promises to pay to [
], or registered assigns, the
principal sum of [ ] DOLLARS
(or so much thereof as shall not have been prepaid) on July 8,
2014, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the
rate in effect pursuant to the terms of Section 8.9 of the
Note Purchase Agreement referred to below, payable semiannually, on
the 8 th day of January and July in each year,
commencing with the January 8 or July 8 next succeeding the
date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any
overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the Default Rate (as defined in
the Note Purchase Agreement referred to below).
Payments
of principal of, interest on and any Make-Whole Amount with respect
to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A. in New
York, New York or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided
in the Note Purchase Agreement referred to below.
This Note
is one of a series of Senior Notes (herein called the
“Notes”) issued pursuant to the Note Purchase Agreement
dated as of July 8, 2004 (as from time to time amended and
supplemented, the “Note Purchase Agreement”), between
the Company and the respective Purchasers named therein and is
entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and to have made the representation set forth in
Section 6.2 of the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for registration
of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note
is subject to prepayment at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price
(including any applicable Make-Whole Amount) and with the effect
provided in the Note Purchase Agreement.
This Note
shall be construed and enforced in accordance with the laws of the
State of New York.
TELEFLEX
INCORPORATED
By
Title:
3
EXHIBIT C
[FORM OF SERIES 2004-1
TRANCHE C NOTE]
TELEFLEX INCORPORATED
SERIES 2004-1 TRANCHE C
SENIOR NOTE DUE 2016
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No. 2004-1-C-[
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$[ ]
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[Date]
PPN: 879369 F*2 |
FOR VALUE
RECEIVED, the undersigned, TELEFLEX INCORPORATED (herein called the
“Company”), a corporation organized and existing under
the laws of the State of Delaware hereby promises to pay to [
], or registered assigns, the
principal sum of [ ] DOLLARS
(or so much thereof as shall not have been prepaid) on July 8,
2016, with interest (computed on the basis of a 360-day year of
twelve 30-day months) (a) on the unpaid balance thereof at the
rate in effect pursuant to the terms of Section 8.9 of the
Note Purchase Agreement referred to below, payable semiannually, on
the 8 th day of January and July in each year,
commencing with the January 8 or July 8 next succeeding the
date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any
overdue payment (including any overdue prepayment) of principal,
any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement
referred to below), payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand), at a rate per
annum from time to time equal to the Default Rate (as defined in
the Note Purchase Agreement referred to below).
Payments
of principal of, interest on and any Make-Whole Amount with respect
to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A. in New
York, New York or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided
in the Note Purchase Agreement referred to below.
This Note
is one of a series of Senior Notes (herein called the
“Notes”) issued pursuant to the Note Purchase Agreement
dated as of July 8, 2004 (as from time to time amended and
supplemented, the “Note Purchase Agreement”), between
the Company and the respective Purchasers named therein and is
entitled to the benefits thereof. Each holder of this Note will be
deemed, by its acceptance hereof, to have agreed to the
confidentiality provisions set forth in Section 20 of the Note
Purchase Agreement and to have made the representation set forth in
Section 6.2 of the Note Purchase Agreement.
This Note
is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of
transfer, duly endorsed, or accompanied by a written instrument of
transfer duly executed, by the registered holder hereof or such
holder’s attorney duly authorized in writing, a new Note for
a like principal amount will be issued to, and registered in the
name of, the transferee. Prior to due presentment for registration
of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving
payment and for all other purposes, and the Company will not be
affected by any notice to the contrary.
This Note
is subject to prepayment at the times and on the terms specified in
the Note Purchase Agreement, but not otherwise.
If an
Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or
otherwise become due and payable in the manner, at the price
(including any applicable Make-Whole Amount) and with the effect
provided in the Note Purchase Agreement.
This Note
shall be construed and enforced in accordance with the laws of the
State of New York.
TELEFLEX
INCORPORATED
By
Title:
4
EXHIBIT D
1. Section 1.2
of the Existing Note Agreement is hereby amended and restated in
its entirety as follows:
1.2 The
Series 2004-1 Notes.
The
Company will authorize, as the initial Series of Notes hereunder,
the issue and sale, in three tranches, of $350,000,000 aggregate
principal amount of its senior notes, of which $150,000,000
aggregate principal amount shall be its Series 2004-1 Tranche
A Senior Notes due 2011 (as such notes may be amended, restated or
otherwise modified and in effect from time to time, the “
Series 2004-1 Tranche A Notes ”), $100,000,000
aggregate principal amount shall be its Series 2004-1 Tranche B
Senior Notes due 2014 (as such notes may be amended, restated or
otherwise modified and in effect from time to time, the “
Series 2004-1 Tranche B Notes ”) and $100,000,000
aggregate principal amount shall be its Series 2004-1 Tranche
C Senior Notes due 2016 (as such notes may be amended, restated or
otherwise modified and in effect from time to time, the “
Series 2004-1 Tranche C Notes ” and, together with the
Series 2004-1 Tranche A Notes and the Series 2004-1
Tranche B Notes, the “ Series 2004-1 Notes
”, such term to include any such notes issued in substitution
therefor pursuant to Section 13). The Series 2004-1
Tranche A Notes, Series 2004-1 Tranche B Notes and
Series 2004-1 Tranche C Notes shall be substantially in the
form set out in Exhibits 1-A, 1-B and 1-C, respectively, with such
changes therefrom, if any, as may be approved by each Purchaser and
the Company.
2. Section 7. 1(a) of the Existing Note
Agreement is hereby amended by replacing the number
“60” in the first line thereof with the number
“50”.
3. Section 7. 1(b) of the Existing Note
Agreement is hereby amended by:
(a) replacing the number “105” in the first line
thereof with the number “75”;
(b) in the second line of the paragraph following clause
(ii) thereof, (i) inserting “(A)” after the
phrase “and accompanied by”, and creating a new clause
(A) with the remainder of such paragraph (beginning with the
newly inserted “(A)”) and adding the word
“and” immediately following the comma at the end of
such newly created paragraph, and (ii) after the phrase
“an opinion thereon of independent certified public
accountants of recognized national standing”, adding the
parenthetical expression “(without a “going
concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit)”;
and
(c) inserting a new clause (B) thereof, immediately
following such newly created clause (A), to read in its entirety as
follows:
(B) if
requested by the Required Holders or if delivered to the Bank
Lenders, a certificate of such accountants stating that they have
reviewed this Agreement and stating whether, in making their audit,
they have become aware of any condition or event that then
constitutes a Default or an Event of Default, and, if they are
aware that any such condition or event then exists, specifying the
nature and period of the existence thereof (it being understood
that such accountants shall not be liable, directly or indirectly,
for any failure to obtain knowledge of any Default or Event of
Default unless such accountants should have obtained knowledge
thereof in making an audit in accordance with generally accepted
auditing standards or did not make such an audit),
4. Section 7. 1(c) of the Existing Note
Agreement is hereby amended and restated in its entirety as
follows:
(c) [Intentionally Omitted]
5. Section 7. 1(d) of the Existing Note
Agreement is hereby amended and restated in its entirety as
follows:
(d)
SEC and Other Reports — promptly upon their becoming
available, one copy of (i) each financial statement, report, notice
or proxy statement sent by the Company or any Subsidiary to the
Bank Lenders or other principal lending banks (excluding
information sent to the Bank Lenders or such other banks in the
ordinary course of administration of the Bank Credit Agreement or
their other bank facilities) or 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 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;
6. Section 7. 1(f) of the Existing Note
Agreement is hereby amended by inserting at the end of such section
“accompanied in each case by a statement of a Responsible
Officer setting forth the details of such event and the action
taken or proposed to be taken with respect thereto;”.
7. Section 7. 1(g) of the Existing Note
Agreement is hereby amended by replacing the phrase “have a
Material Adverse Effect” in the fourth line thereof with
“result in liability of the Company and its Subsidiaries in
an aggregate amount exceeding $35,000,000”;
8. Section 7. 1(i) of the Existing Note
Agreement is hereby deleted and replaced with a new Section 7.
1(i) to read in its entirety as follows:
(i)
Material Adverse Effect — promptly upon any
Responsible Officer becoming aware thereof, notice of any
development that has, or could reasonably be expected to have a
Material Adverse Effect;
9. Existing
Section 7.1(j) is hereby relettered as Section 7.1(k) and
a new Section 7.1(j) is hereby added immediately following
Section 7.1(i) to read in its entirety as follows:
(j)
Bank Credit Agreement and Other Senior Note Agreement
Amendments — promptly after the execution thereof, copies
of all amendments to the Bank Credit Agreement and the Other Senior
Note Agreements; and
10. Section 7. 2(a) of the Existing Note
Agreement is hereby amended and restated in its entirety as
follows:
(a)
Covenant Compliance — the information (including
detailed calculations) required in order to establish whether the
Company was in compliance with the requirements of
Sections 10.1, 10.2, 10.4, 10.4A, 10.5, 10.6 and 10.9, 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, to the extent the conditions set
forth in Section 8.9 have been satisfied in respect of any
decrease in the interest rate applicable to the Series 2004-1
Notes, a certification that such conditions have been satisfied,
together with a statement setting forth the interest rate
applicable to each Series of the Series 2004-1 Notes and the
date from which such interest rate shall have been applicable (or,
in the event that the Company shall be required to make a payment
of additional interest pursuant to Section 8.9(e), setting
forth the interest rate which is then in effect); and
11. Section 8.4 of the Existing Note Agreement is
hereby amended and restated in its entirety as follows:
8.4.
Prepayments in Connection with the Certain Events.
(a) If after the First Amendment Effective Date the Company or
any of its Subsidiaries shall receive Section 8.4(a) Net
Proceeds from any Section 8.4(a) Proceeds Event, the Company
will promptly give written notice thereof to each holder of a Note,
which notice shall (i) refer specifically to this
Section 8.4(a) and describe in reasonable detail the
Section 8.4(a) Proceeds Event giving rise to such offer to
prepay Notes, (ii) specify the Relevant Share of such Section
8.4(a) Net Proceeds to be applied to the prepayment of the Notes
and the ratable portion thereof to be prepaid in respect of each
Note (determined based on the unpaid principal amount of each Note
in proportion to the aggregate unpaid principal amount of all Notes
of all Series at the time outstanding), (iii) specify a
Business Day not less than 30 days and not more than
60 days after the date of such notice (the “
Section 8. 4(a) Prepayment Date ”)
and specify the Section 8.4(a) Response Date (as defined
below) and (iv) offer to prepay on the Section 8.4(a)
Prepayment Date such ratable portion of each Note together with
interest accrued thereon to the Section 8.4(a) Prepayment
Date. Each holder of a Note shall notify the Company of such
holder’s acceptance or rejection of such offer by giving
written notice of such acceptance or rejection to the Company on a
date at least 10 Business Days prior to the Section 8.4(a)
Prepayment Date (such date 10 Business Days prior to the
Section 8.4(a) Prepayment Date being the “
Section 8. 4(a) Response Date ”),
and the Company shall prepay on the Section 8.4(a) Prepayment
Date such ratable portion of each Note held by the holders who have
accepted such offer in accordance with this Section 8.4(a) at
a price in respect of each Note held by such holder equal to the
principal amount of such ratable portion of such Note, together
with interest accrued thereon to the Section 8.4(a) Prepayment
Date; provided , however , that the failure by a
holder of any Note to respond to such offer in writing on or before
the Section 8.4(a) Response Date shall be deemed to be a
rejection of such offer.
(b) If the Company elects to offer to prepay Notes in
accordance with Section 10.4A, the Company will promptly give
written notice thereof to each holder of a Note, which notice shall
(i) refer specifically to this Section 8.4(b) and describe in
reasonable detail the Section 8.4(b) Disposition giving rise
to such offer to prepay Notes, (ii) specify the Relevant Share
of the Section 8.4(b) Net Proceeds to be applied to the
prepayment of the Notes and the ratable portion thereof to be
prepaid in respect of each Note (determined based on the unpaid
principal amount of each Note in proportion to the aggregate unpaid
principal amount of all Notes of all Series at the time
outstanding), (iii) specify a Business Day not less than
30 days and not more than 60 days after the date of such
notice (the “ Section 8. 4(b)
Prepayment Date ”) and specify the Section 8.4(b)
Response Date (as defined below) and (iv) offer to prepay on
the Section 8.4(b) Prepayment Date such ratable portion of
each Note together with interest accrued thereon to the
Section 8.4(b) Prepayment Date. Each holder of a Note shall
notify the Company of such holder’s acceptance or rejection
of such offer by giving written notice of such acceptance or
rejection to the Company on a date at least 10 Business Days prior
to the Section 8.4(b) Prepayment Date (such date 10 Business
Days prior to the Section 8.4(b) Prepayment Date being the
“ Section 8. 4(b) Response Date
”), and the Company shall prepay on the Section 8.4(b)
Prepayment Date such ratable portion of each Note held by the
holders who have accepted such offer in accordance with this
Section 8.4(b) at a price in respect of each Note held by such
holder equal to the principal amount of such ratable portion of
such Note, together with interest accrued thereon to the
Section 8.4(b) Prepayment Date; provided ,
however , that the failure by a holder of any Note to
respond to such offer in writing on or before the
Section 8.4(b) Response Date shall be deemed to be a rejection
of such offer.
12. Section 8.7 of the Existing Note Agreement is
hereby amended and restated in its entirety to read as
follows:
8.7.
Purchase of Notes.
The
Company will not and will not permit any Affiliate to purchase,
redeem, prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except (a) upon the payment or
prepayment of the Notes in accordance with the terms of this
Agreement and the Notes or (b) at any time when the
Consolidated Leverage Ratio is equal to or less than 2.50 to 1.00
as of the last day of the fiscal quarter then most recently ended,
pursuant to an offer to purchase made by the Company or an
Affiliate pro rata to the holders of all Notes at the time
outstanding upon the same terms and conditions. Any such offer
shall provide each holder with sufficient information to enable it
to make an informed decision with respect to such offer, and shall
remain open for at least 20 Business Days. If the holders of more
than 50% 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 for the acceptance by
holders of Notes of such offer shall be extended by the number of
days necessary to give each such remaining holder at least five
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.
13. The definition
of Remaining Scheduled Payments contained in Section 8.8 of
the Existing Note Agreement is hereby amended and restated in its
entirety as follows:
“
Remaining Scheduled Payments ” means, with respect to
the Called Principal of any Series 2004-1 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 the Series 2004-1 Notes, then the amount of the next
succeeding scheduled interest payment will be reduced by the amount
of interest accrued to such Settlement Date pursuant to
Section 8.2 or 12.1; further provided , that in
calculating the Remaining Scheduled Payments in respect of any
Series 2004-1 Note, the interest rate for such
Series 2004-1 Note shall be assumed to be (a) 5.23% per
annum in respect of each Series 2004-1 Tranche A Note ,
(b) 5.75% per annum in respect of each Series 2004-1
Tranche B Note and (c) 5.85% per annum in respect of each
Series 2004-1 Tranche C Note.
14. A new
Section 8.9 is hereby added to the Existing Note Agreement
immediately following Section 8.8 to read in its entirety as
follows:
8.9.
Interest on Series 2004-1 Notes.
Notwithstanding anything to the contrary contained herein, interest
shall be payable in respect of the outstanding principal amounts of
each of the Series 2004-1 Notes as follows:
(a) Prior to the First Amendment Effective Date, interest on
the outstanding principal amount of each Series 2004-1 Note
shall accrue and be payable at the rate per annum of (i) 5.23%
in respect of each Series 2004-1 Tranche A Note,
(ii) 5.75% in respect of each Series 2004-1 Tranche B
Note and (iii) 5.85% in respect of each Series 2004-1
Tranche C Note.
(b) Subject to the provisions of Sections 8.9(c) or (d),
beginning on and after the First Amendment Effective Date, interest
on the outstanding principal amount of each Series 2004-1 Note
shall accrue and be payable at the rate per annum of (i) 7.66%
in respect of each Series 2004-1 Tranche A Note ,
(ii) 8.14% in respect of each Series 2004-1 Tranche B
Note and (iii) 8.46% in respect of each Series 2004-1
Tranche C Note.
(c) If, as of the last day of each of two consecutive
quarterly fiscal periods of the Company ending after the First
Amendment Effective Date, the ratio of (i) Consolidated Total
Indebtedness, determined as of the first and second of such last
days, to (ii) Consolidated Actual EBITDA for the periods of
four consecutive quarterly fiscal periods of the Company ending on
the first and second of such last days, respectively, was less than
3.50 to 1.00, then, beginning on the first day of the quarterly
fiscal period of the Company beginning after the end of the second
of such consecutive quarterly fiscal periods, interest on the
outstanding principal amount of the Series 2004-1 Notes shall
accrue and be payable at the rate per annum of (i) 7.41% in
respect of each Series 2004-1 Tranche A Note, (ii) 7.89%
in respect of each Series 2004-1 Tranche B Note and (iii)
8.21% in respect of each Series 2004-1 Tranche C Note; for the
avoidance of doubt, the interest rate applicable to the
Series 2004-1 Notes shall not be subject to subsequent
increase pursuant to this Section 8.9, but may subsequently be
decreased pursuant to Section 8.9(d).
(d) If, as of the last day of each of two consecutive
quarterly fiscal periods of the Company ending after the First
Amendment Effective Date, the ratio of (i) Consolidated Total
Indebtedness, determined as of the first and second of such last
days, to (ii) Consolidated Actual EBITDA for the periods of
four consecutive quarterly fiscal periods of the Company ending on
the first and second of such last days, respectively, was less than
3.00 to 1.00, then, beginning on the first day of the quarterly
fiscal period of the Company beginning after the end of the second
of such consecutive quarterly fiscal periods, interest on the
outstanding principal amount of the Series 2004-1 Notes shall
accrue and be payable at the rate per annum of (i) 6.66% in
respect of each Series 2004-1 Tranche A Note, (ii) 7.14%
in respect of each Series 2004-1 Tranche B Note and (iii)
7.46% in respect of each Series 2004-1 Tranche C Note; for the
avoidance of doubt, the interest rate applicable to the
Series 2004-1 Notes shall not be subject to any subsequent
increase or decrease pursuant to this Section 8.9, but,
subject to the other terms of this Agreement, shall remain in
effect until the applicable maturity date of each Series of
Series 2004-1 Notes.
(e) If (i) an interest payment date shall occur after the
end of a quarterly fiscal period of the Company, but prior to the
time the Company is required to deliver a certificate of a Senior
Financial Officer pursuant to Section 7.2 in respect of such
quarterly fiscal period (or fiscal year, in the case of the fourth
quarterly fiscal period) and (ii) the Company believes, in
good faith, that the conditions set forth in Section 8.9(c) or
Section 8.9(d), as applicable, were satisfied as of the end of
such quarterly fiscal period, then the Company may pay interest on
such interest payment date computed taking into account the
reduction provided for in the applicable Section, so long as it
shall deliver to each holder of Notes, together with such interest
payment, an Officer’s Certificate specifying in reasonable
detail the computation of interest for the period ending on such
interest payment date. If the Company gives effect to such
reduction but the certificate in respect of such quarterly fiscal
period (or fiscal year, as the case may be) delivered pursuant to
Section 7.2 shows that such conditions were not satisfied, the
Company shall, together with delivery of such certificate, pay to
each holder such additional amount as would have been paid had such
reduction not been given effect and shall set forth in such
certificate the explanation for such payment. If the Company does
not give effect to such reduction but the certificate delivered
pursuant to Section 7.2 shows that such conditions were
satisfied, the Company shall reduce the amount of interest payable
on the next succeeding interest payment date by the amount of the
reduction that should have been applied to the immediately
preceding interest payment date and the payment of interest on such
next succeeding interest payment date shall be accompanied by an
explanation of such reduced payment.
15. Section 9.1 of the Existing Note Agreement is
hereby amended by inserting the phrase “Without limiting
Section 10.13,” at the beginning of such sentence (and
by replacing the capital “T” with a lower case
“t” in the word “the” immediately following
such phrase), and inserting “ERISA, the USA Patriot Act
and” between “without limitation,” and
“Environmental Laws” in the third and fourth lines
thereof.
16. Section 9.5 of the Existing Note Agreement is
hereby amended and restated in its entirety to read as
follows:
9.5
Corporate Existence, etc.
The
Company will at all times preserve and keep in full force and
effect its corporate existence, and, subject to Section 10.3,
the Company will at all times preserve and keep in full force and
effect the corporate existence of each of its Subsidiaries and all
rights and franchises of the Company and its Subsidiaries unless,
in the good faith judgment of the Company, the termination of or
failure to preserve and keep in full force and effect the corporate
existence of any Subsidiary, or any such right or franchise could
not, individually or in the aggregate, have a Material Adverse
Effect.
17. Section 9.6 of the Existing Note Agreement is
hereby deleted and a new Section 9.6 is hereby added in its
place to read in its entirety as follows:
9.6
Books and Records.
The
Company will, and will cause each of its Subsidiaries to, maintain
proper books of record and account in conformity with GAAP and all
applicable requirements of any Governmental Authority having legal
or regulatory jurisdiction over the Company or such Subsidiary, as
the case may be.
18. A new
Section 9.7 is hereby added to the Existing Note Agreement
immediately following new Section 9.6 to read in its entirety
as follows:
9.7
Guarantors and Collateral; Further Assurances.
(a) The Company will take, and will cause each of its
Subsidiaries to take, such action from time to time as shall be
necessary to ensure that (i) each Subsidiary is a
“Subsidiary Guarantor” hereunder and (if applicable) a
“Loan Party” under the Pledge Agreement (other than any
Excluded Subsidiary, except, in the case of any Domestic Subsidiary
that is an Immaterial Subsidiary, to the extent necessary to comply
with clause (ii) of the definition of “Immaterial
Subsidiary”) and (ii) 100% of the Capital Stock of each
Subsidiary (other than any Excluded Equity Interests) shall be
pledged pursuant to the Pledge Agreement; provided that, in the
case of voting Capital Stock of each First-Tier Foreign Subsidiary
(other than any Immaterial Subsidiary, except to the extent
necessary to comply with clause (ii) of the definition of
“Immaterial Subsidiary”) not more than 65% of such
voting Capital Stock shall be pledged in favor of the Collateral
Agent for the benefit of the Secured Parties pursuant to the Pledge
Agreement.
Promptly
but in no event later than 45 days (which period may be
extended by the Collateral Agent in its sole discretion) following
the formation or acquisition of any Subsidiary after the First
Amendment Effective Date, the Company will, and will cause each of
its Subsidiaries to, take such action to cause (x) such
Subsidiary to become a “Subsidiary Guarantor” hereunder
by executing and delivering to the holders of the Notes a Guaranty
Joinder Agreement in the form of Annex B to the Subsidiary Guaranty
Agreement and (if applicable) to become a “Loan Party”
under the Pledge Agreement, to the extent required under clause
(i) of the immediately preceding paragraph and (y) the Capital
Stock of such Subsidiary, to the extent required under clause
(ii) of the immediately preceding paragraph, to be pledged in
favor of the Collateral Agent for the benefit of the Secured
Parties, pursuant to the Pledge Agreement or such other local law
pledge, charge or similar agreement in respect of such Capital
Stock as the Collateral Agent shall reasonably request and (z) such
Subsidiary or any other relevant Obligor to deliver such proof of
corporate action, incumbency of officers, opinions of counsel and
other documents as is consistent with those delivered by the
Obligors pursuant to the First Amendment on the First Amendment
Effective Date as the Collateral Agent shall reasonably
request.
(b) The Company will, and will cause each of its Subsidiaries
to, take such action from time to time as shall reasonably be
requested by the Required Holders or the Collateral Agent to
effectuate the purposes and objectives of this Agreement. Without
limiting the foregoing, in the event that any additional Capital
Stock shall be issued by any Subsidiary, subject to Section 9.7(a),
the Company agrees forthwith to or to cause such Subsidiary to
deliver to the Collateral Agent pursuant to the Pledge Agreement
the certificates evidencing such Capital Stock, accompanied by
undated stock powers executed in blank and to take such other
action as the Collateral Agent shall request to perfect the
security interest created therein pursuant to the Pledge
Agreement.
19. Section 10
of the Existing Note Agreement is hereby amended and restated in
its entirety to read as follows:
10. NEGATIVE COVENANTS.
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The Company covenants
that so long as any of the Notes are outstanding:
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10.1
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Indebtedness. |
The
Company will not, and will not permit any of its Subsidiaries to,
create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness outstanding on the First Amendment Effective
Date and listed in Schedule 5.15 to the First Amendment
(including the Other Senior Notes and any Guarantees thereof by the
Subsidiary Guarantors) and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding
principal amount thereof;
(b) In
addition to the Indebtedness outstanding on the First Amendment
Effective Date and listed in Schedule 5.15 ,
(i) Indebtedness of any Obligor owing to any other Obligor or
to any Subsidiary that is not an Obligor and (ii) Indebtedness
of any Subsidiary that is not an Obligor owing to the Company or
any Subsidiary; provided that, if the Consolidated Leverage
Ratio (ca
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