UNITED
STATES
SECURITIES
AND
EXCHANGE COMMISSION
WASHINGTON,
D.C.
20549
____________
FORM
8-K
CURRENT
REPORT
PURSUANT
TO
SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
|
Date
of
report (Date of earliest event reported)
|
July
12,
2006
|
INTERNATIONAL
FLAVORS
& FRAGRANCES INC.
(Exact
Name of
Registrant as Specified in Charter)
New
York 1-4858 13-1432060
(State
or Other
Jurisdiction (Commission
(I.R.S.
Employer
of
Incorporation) File
Number)
Identification
No.)
521
West 57th
Street, New York, New
York
10019
(Address
of
Principal Executive Offices) (Zip
Code)
|
Registrant’s
telephone number, including area code
|
(212)
765-5500
|
Check
the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see
General Instruction A.2.
below):
o Written
communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting
material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement.
To
the
extent required by Item 1.01 of Form 8-K, the information contained in or
incorporated by reference into Item 2.03 of this Current Report is hereby
incorporated by reference into this Item 1.01.
Item
2.03.
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
On
July 12, 2006, International Flavors & Fragrances Inc. (the
“Company”) completed the private placement of $375,000,000 of senior unsecured
notes (the “Notes”) with certain investors and entered into a Note Purchase
Agreement with respect to the Notes with such investors. The Notes were issued
in four series: (i) $50,000,000 in aggregate principal amount of 5.89%
Series A Senior Notes due July 12, 2009, (ii) $100,000,000 in
aggregate principal amount of 5.96% Series B Senior Notes due
July 12, 2011, (iii) $100,000,000 in aggregate principal amount
of 6.05% Series C Senior Notes due July 12, 2013 and (iv) $125,000,000
in aggregate principal amount of 6.14% Series D Senior Notes due
July 12, 2016. Interest on the Notes will be payable semiannually on
the 12th day of January and July of each year commencing
January 12, 2007. The Company will use the proceeds of the sale of the
Notes to refinance certain existing debt and for general corporate
purposes.
Under
the
Note Purchase Agreement, the Company may at any time, with notice, prepay all
or
a portion equal to or greater than 10% of the Notes, for an amount equal to
the
principal, accrued interest and a “make-whole” prepayment premium as calculated
under the Note Purchase Agreement. The Company may also prepay the Notes solely
for the principal and accrued interest thereon in connection with certain asset
sales.
Pursuant
to the Note Purchase Agreement, the Company will maintain a consolidated net
debt to consolidated EBITDA ratio of 3.5:1 (as calculated under the Note
Purchase Agreement), provided that such ratio may exceed 3.5:1 (but not 4:1)
upon the payment of certain additional interest. In addition, the Company will
not permit the aggregate amount of its subsidiaries’ debt to exceed $670,000,000
as calculated under the Note Purchase Agreement, with certain exceptions. The
Company and its subsidiaries will not incur any liens, subject to certain
permitted categories of liens and a general lien allowance of $120 million.
The
Company also makes certain affirmative covenants relating to (i) compliance
with law, (ii) insurance coverage, (iii) maintenance of properties,
(iv) payment of taxes and claims, (v) maintenance of corporate
existence, (vi) pari passu ranking of the Notes and (vii) the books
and records of the Company, and certain negative covenants relating to
(i) asset sales, (ii) mergers and consolidations,
(iii) transactions with affiliates, (iv) changes to the general nature
of its business and (v) terrorism sanctions regulations.
The
Notes
were not registered under the Securities Act of 1933, as amended, in reliance
upon the exemption set forth in Section 4(2) of the Securities Act relating
to transactions by an issuer not involving a public offering.
The
description set forth above is qualified in its entirety by the Note Purchase
Agreement and the forms of the Note, which are incorporated herein by reference
and are filed herewith as Exhibits 4.7 and 4.8, respectively.
Item
9.01.
Financial
Statements and Exhibits.
(d)
Exhibits
|
Exhibit
No.
|
Document
|
||
|
4.7
|
Note
Purchase
Agreement, dated as of July 12, 2006, by and among International
Flavors & Fragrances Inc. and the various purchasers named
therein.
|
||
|
4.8
|
Form
of Series A,
Series B, Series C and Series D Senior Notes.
|
SIGNATURE
Pursuant
to the
requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
| INTERNATIONAL FLAVORS & FRAGRANCES INC. | ||
| |
|
|
| Dated: July 12, 2006 | By: | /s/ Dennis M. Meany |
| Name: Dennis M. Meany | ||
| Title: Senior Vice President, General Counsel and Secretary | ||
EXHIBIT
4.7
SEE
SECTION 20
REGARDING NOTICE TO COMPANY
OF
DISCLOSURE OF
CONFIDENTIAL INFORMATION
INTERNATIONAL
FLAVORS & FRAGRANCES INC.
$50,000,000
5.89% Series A
Senior Notes,
due
July 12, 2009
$100,000,000
5.96% Series
B Senior Notes,
due
July 12, 2011
$100,000,000
6.05% Series
C Senior Notes,
due
July 12, 2013
$125,000,000
6.14% Series
D Senior Notes,
due
July 12, 2016
________________
NOTE
PURCHASE
AGREEMENT
________________
Dated
as of July 12, 2006
0; &#
160; Page
Page
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1.
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1
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2.
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2
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3.
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2
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4.
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2
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3
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3
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3
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4.4.
Opinions
of Counsel
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3
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3
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4.6. Sale
of Other Notes
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4
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4
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4
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4
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4.10. Funding
Instructions
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4
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4
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5.
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5
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5
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5.2. Authorization,
Etc
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5
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5.3. Disclosure
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5
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6
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6
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7
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7
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7
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5.9. Taxes
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7
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8
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5.11.
Licenses,
Permits, Etc
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8
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5.12. Compliance
with ERISA
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8
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9
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9
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i
TABLE
OF
CONTENTS
(continued)
Page
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9
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10
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10
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5.18. Environmental
Matters
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11
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5.19. Notes
Rank Pari Passu
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11
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6.
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11
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11
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12
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6.3 Source
of Funds
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12
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7.
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14
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14
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17
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7.3. Visitation
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17
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8.
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18
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8.1. Payment
at Maturity
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18
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18
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19
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19
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8.5. Purchase
of Notes
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19
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8.6. Make-Whole
Amount
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19
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21
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9.
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22
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9.1. Compliance
with Law
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22
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9.2. Insurance
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22
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22
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22
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23
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23
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9.7. Books
and Records
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23
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10.
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23
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ii
TABLE
OF
CONTENTS
(continued)
Page
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23
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10.2. Subsidiary
Debt
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23
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10.3. Limitation
on Liens
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24
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10.4. Sales
of Assets
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25
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10.5. Merger
and
Consolidation
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26
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27
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10.7. Nature
of Business
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27
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27
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11.
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27
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12.
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30
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12.1. Acceleration
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30
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12.2. Other
Remedies
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30
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12.3. Rescission
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30
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31
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13.
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31
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13.1. Registration
of Notes
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31
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.
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31
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13.3. Replacement
of Notes
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32
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14.
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32
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14.1. Place
of Payment
|
32
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14.2. Home
Office Payment
|
33
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15.
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33
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15.1. Transaction
Expenses
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33
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15.2. Survival
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34
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16.
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34
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17.
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34
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17.1. Requirements
|
34
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34
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17.3. Binding
Effect, Etc
|
35
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35
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iii
TABLE
OF
CONTENTS
(continued)
Page
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18.
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36
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19.
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36
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20.
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36
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21.
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38
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22.
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38
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22.1. Successors
and Assigns
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38
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38
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22.3. Accounting
Terms
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38
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22.4. Severability
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39
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22.5. Construction
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39
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22.6. Counterparts
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39
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22.7. Governing
Law
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39
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39
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iv
SCHEDULE
A
— INFORMATION
RELATING TO PRUCHASERS
SCHEDULE
B
—
DEFINED TERMS
SCHEDULE 4.9
— CHANGES
IN CORPORATE STRUCTURE
SCHEDULE 5.4
— MATERIAL
SUBSIDIARIES OF THE COMPANY, OWNERSHIP OF
MATERIAL
SUBSIDIARY
STOCK, AFFILIATES
SCHEDULE 5.5
— FINANCIAL
STATEMENTS
SCHEDULE
5.8 — LITIGATION
SCHEDULE 5.11
— LICENSES,
PERMITS, ETC.
SCHEDULE 5.14
— USE
OF PROCEEDS
SCHEDULE
5.15
—
EXISTING DEBT
SCHEDULE 5.18
— ENVIRONMENTAL
MATTERS
EXHIBIT
1 —
FORM OF 5.89% SERIES A SENIOR NOTE DUE JULY 12, 2009
EXHIBIT
2 —
FORM OF 5.96% SERIES B SENIOR NOTE DUE JULY 12, 2011
EXHIBIT
3 —
FORM OF 6.05% SERIES C SENIOR NOTE DUE JULY 12, 2013
EXHIBIT
4 —
FORM OF 6.14% SERIES D SENIOR NOTE DUE JULY 12, 2016
EXHIBIT
4.4(a)
— FORM OF OPINION OF
GENERAL COUNSEL TO THE
COMPANY
EXHIBIT
4.4(b)
— FORM OF OPINION
OF GENERAL COUNSEL TO THE
COMPANY
EXHIBIT
4.4(c)
— FORM OF OPINION
OF SPECIAL COUNSEL TO THE
PURCHASERS
v
INTERNATIONAL
FLAVORS & FRAGRANCES INC.
521
W. 57TH STREET
NEW
YORK,
NY10019
$50,000,000
5.89% SERIES A SENIOR NOTES,
DUE
JULY 12, 2009
$100,000,000
5.96% SERIES B SENIOR NOTES,
DUE
JULY 12, 2011
$100,000,000
6.05% SERIES C SENIOR NOTES,
DUE
JULY 12, 2013
$125,000,000
6.14% SERIES D SENIOR NOTES,
DUE
JULY 12, 2016
Dated
as
of
July
12,
2006
TO
THE
PURCHASERS LISTED IN
THE
ATTACHED SCHEDULE A:
Ladies
and Gentlemen:
International
Flavors
& Fragrances Inc., a New York corporation (the “Company”),
agrees with the
Purchasers listed in the attached Schedule A (the “Purchasers”)
to this Note Purchase
Agreement as follows:
The
Company will authorize the issue and sale of the following Senior
Notes:
|
Issue
|
Series
|
Aggregate
Principal
Amount
|
Interest
Rate
|
Maturity
Date
|
|
Senior
Notes
|
Series
A
|
$50,000,000
|
5.89%
|
July
12,
2009
|
|
Senior
Notes
|
Series
B
|
$100,000,000
|
5.96%
|
July
12,
2011
|
|
Senior
Notes
|
Series
C
|
$100,000,000
|
6.05%
|
July
12,
2013
|
|
Senior
Notes
|
Series
D
|
$125,000,000
|
6.14%
|
July
12,
2016
|
The
Senior Notes described above are collectively referred to as the “Notes”
(such term shall also
include any such notes as amended, restated or otherwise modified from time
to
time and any such notes issued in substitution therefor pursuant to Section
13
of this Agreement).
The
Series A Notes, Series B Notes, Series C Notes and Series D Notes shall be
substantially in the form set out in Exhibit 1, Exhibit 2, Exhibit 3 and Exhibit
4, respectively, with such changes therefrom, if any, as may be approved by
the
Purchasers and the Company. Certain capitalized terms used in this Agreement
are
defined in Schedule B; references to a “Schedule” or an “Exhibit” are,
unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to each Purchaser, and each Purchaser will purchase from the Company, at the
Closing provided for in Section 3, Notes of the Series and in the principal
amount specified opposite such Purchaser’s name in Schedule A at the purchase
price of 100% of the principal amount thereof. The obligations of each Purchaser
hereunder are several and not joint obligations and each Purchaser shall have
no
obligation and no liability to any Person for the performance or nonperformance
of any obligation by any other Purchaser hereunder.
| 3. |
The
sale
and purchase of the Notes to be purchased by each Purchaser shall occur at
the
offices of Bingham McCutchen LLP, 399 Park Avenue, New York, New York at 10:00
a.m. Eastern time, at a closing (the “Closing”)
on July 12, 2006 or on
such other Business Day thereafter as may be agreed upon by the Company and
the
Purchasers (such date, the “Closing
Date”).
On the Closing Date, the Company will deliver to each Purchaser the Notes to
be
purchased by such Purchaser in the form of a single Note (or such greater number
of Notes in denominations of at least $500,000 as such Purchaser may request)
of
the Series purchased by such Purchaser dated the Closing Date and registered
in
such Purchaser’s name (or in the name of such Purchaser’s nominee), against
delivery by such Purchaser to the Company or its order of immediately available
funds in the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Company in accordance with
the instructions provided by the Company pursuant to Section 4.10. If, on the
Closing Date, the Company shall fail to tender such Notes to any Purchaser
as
provided above in this Section 3, or any of the conditions specified in
Section 4 shall not have been fulfilled to any Purchaser’s satisfaction,
such Purchaser shall, at such Purchaser’s election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights such
Purchaser may have by reason of such failure or such
nonfulfillment.
The
obligation of the Company to deliver Notes to each Purchaser on the Closing
Date
is subject to the Company receiving the purchase price therefor. Each
Purchaser’s obligation to purchase and pay for the Notes to be sold to such
Purchaser at the Closing is subject to the fulfillment to such Purchaser’s
satisfaction, prior to or at the Closing, of the following
conditions:
The
representations and warranties of the Company in this Agreement shall be correct
when made and at the time of the Closing (unless stated to relate to a specific
earlier date, in which case such representations and warranties shall be correct
as of such earlier date).
4.2. Performance;
No Default.
The
Company shall have performed and complied with all agreements and conditions
contained in this Agreement required to be performed or complied with by the
Company prior to or at the Closing, and after giving effect to the issue and
sale of the Notes (and the application of the proceeds thereof as contemplated
by Section 5.14), no Default or Event of Default shall have occurred and be
continuing. Neither the Company nor any Subsidiary shall have entered into
any
transaction since the date of the Memorandum that would have been prohibited
by
Section 10.4 or Section 10.6 hereof had such Sections applied since such
date.
4.3. Compliance
Certificates.
(a) Officer’s
Certificate.
The Company shall have
delivered to such Purchaser an Officer’s Certificate, dated the Closing Date,
certifying that the conditions specified in Sections 4.1, 4.2 and 4.9 have
been fulfilled.
(b) Secretary’s
Certificate.
The Company shall have
delivered to such Purchaser a certificate, dated the Closing Date, certifying
as
to the resolutions attached thereto and other corporate proceedings relating
to
the authorization, execution and delivery of the Notes and this
Agreement.
4.4. Opinions
of Counsel.
Such
Purchaser shall have received opinions in form and substance satisfactory to
such Purchaser, dated the Closing Date (a) from Jodie Simon Friedman,
Deputy General Counsel of the Company, covering the matters set forth in
Exhibit 4.4(a) and covering such other matters incident to the transactions
contemplated hereby as such Purchaser or its counsel may reasonably request
(and
the Company hereby instructs its counsel to deliver such opinion to the
Purchasers), (b) from Cravath, Swaine & Moore LLP, special counsel for
the Company, covering the matters set forth in Exhibit 4.4(b) and covering
such other matters incident to the transactions contemplated hereby as such
Purchaser or its counsel may reasonably request (and the Company hereby
instructs its counsel to deliver such opinion to the Purchasers), and
(c) from Bingham McCutchen LLP, the Purchasers’ special counsel in
connection with such transactions, substantially in the form set forth in
Exhibit 4.4(c) and covering such other matters incident to such
transactions as such Purchaser may reasonably request.
On
the
Closing Date such Purchaser’s purchase of Notes shall (a) be permitted by
the laws and regulations of each jurisdiction to which such Purchaser is
subject, without recourse to provisions (such as section 1405(a)(8) of the
New York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular
investment,
(b) not
violate any applicable law or regulation (including, without limitation,
Regulation T, U or X of the Board of Governors of the Federal Reserve
System) and (c) not subject such Purchaser to any tax, penalty or liability
under or pursuant to any applicable law or regulation, which law or regulation
was not in effect on the date hereof.
4.6. Sale
of Other Notes.
Contemporaneously
with the
Closing the Company shall sell to each other Purchaser and each other Purchaser
shall purchase the Notes to be purchased by it at the Closing as specified
in
Schedule A.
Without
limiting the
provisions of Section 15.1, the Company shall have paid on or before the
Closing Date, the reasonable fees, reasonable charges and reasonable
disbursements of the Purchasers’ special counsel referred to in Section 4.4
to the extent reflected in a statement of such counsel rendered to the Company
at least one Business Day prior to the Closing Date.
4.8. Private
Placement Number.
A
Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau
(in cooperation with the Securities Valuation Office of the National Association
of Insurance Commissioners) shall have been obtained for each Series of
Notes.
The
Company shall not have changed its jurisdiction of incorporation or, except
as
reflected in Schedule 4.9, been a party to any merger or consolidation, or
succeeded to all or any substantial part of the liabilities of any other entity,
at any time following the date of the most recent financial statements referred
to in Schedule 5.5.
4.10. Funding
Instructions.
At
least two Business Days prior to the Closing Date, each Purchaser shall have
received written instructions from the Company including (i) the name and
address of the transferee bank, (ii) such transferee bank’s ABA number and
(iii) the account name and number into which the purchase price for such
Purchaser’s Notes is to be deposited.
4.11. Proceedings
and
Documents.
All
corporate and other proceedings in connection with the transactions contemplated
by this Agreement and all documents and instruments incident to such
transactions shall be satisfactory to such Purchaser and its special counsel,
and such Purchaser and its special counsel shall have received all such
counterpart originals or certified or other copies of such documents as such
Purchaser or such special counsel may reasonably request.
The
Company represents and warrants to each Purchaser that:
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation, and is duly qualified
as a
foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement and the Notes
and to perform the provisions hereof and thereof.
5.2. Authorization,
Etc.
This
Agreement and the Notes have been duly authorized by all necessary corporate
action on the part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each such Note will constitute, a legal, valid
and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3. Disclosure.
The
Company, through its agent, Banc of America Securities LLC, has delivered to
each Purchaser a copy of a Private Placement Memorandum, dated June 13, 2006
(the “Memorandum”),
relating to the
transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries. This Agreement, the Memorandum, the
documents, certificates or other writings delivered to the Purchasers by or
on
behalf of the Company pursuant to this Agreement and the financial statements
listed in Schedule 5.5 (this Agreement, the Memorandum and such documents,
certificates or other writings and such financial statements being referred
to,
collectively, as the “Disclosure
Documents”), taken
as a whole, do not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made. Except as disclosed in the Disclosure
Documents, since December 31, 2005, there has been no change in the financial
condition, operations, business or properties of the Company or any of its
Subsidiaries except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. There is no fact
known
to the Company that would reasonably be expected to have a Material Adverse
Effect that has not been set forth herein or in the Disclosure
Documents.
5.4. Organization
and Ownership of Shares of
Subsidiaries; Affiliates.
(a) Schedule 5.4
contains
(except as noted therein) complete and correct lists (i) of the Company’s
Material Subsidiaries, showing, as to each Material Subsidiary, the correct
name
thereof, the jurisdiction of its organization, and the percentage of shares
of
each class of its capital stock or similar equity interests outstanding owned
by
the Company and each other Material Subsidiary, (ii) of the Company’s
Affiliates, other than Subsidiaries, and (iii) of the Company’s directors
and senior officers.
(b) All
of the outstanding
shares of capital stock or similar equity interests of each Material Subsidiary
shown in Schedule 5.4 as being owned by the Company and its Material
Subsidiaries have been validly issued, are fully paid and nonassessable and
are
owned by the Company or another Subsidiary free and clear of any Lien (except
as
otherwise disclosed in Schedule 5.4).
(c) Each
Material Subsidiary
identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation
or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which
the
failure to be so qualified or in good standing would not, individually or in
the
aggregate, reasonably be expected to have a Material Adverse Effect. Each such
Material Subsidiary has the corporate or other power and authority to own or
hold under lease the properties it purports to own or hold under lease and
to
transact the business it transacts and proposes to transact.
(d) No
Material Subsidiary is
a party to, or otherwise subject to, any legal restriction or any agreement
(other than this Agreement, the agreements listed on Schedule 5.4 and
customary limitations imposed by corporate law statutes) restricting the ability
of such Material Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to the Company or any of its Material
Subsidiaries that owns outstanding shares of capital stock or similar equity
interests of such Material Subsidiary.
5.5. Financial
Statements; Material
Liabilities.
The
Company has furnished to each Purchaser copies of the financial statements
of
the Company and its Subsidiaries listed on Schedule 5.5. All of said
financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position
of
the Company and its Subsidiaries as of the respective dates specified in such
Schedule and the consolidated results of their operations and cash flows for
the
respective periods so specified and have been prepared in accordance with GAAP
consistently applied throughout the periods involved except as set forth in
the
notes thereto (subject, in the case of any interim financial statements, to
normal year-end adjustments and the absence of footnotes).
The
execution, delivery and performance by the Company of this Agreement and the
Notes will not (a) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of the Company or any Subsidiary under (i), any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, or any other agreement or
instrument to which the Company or any Subsidiary is bound or by which the
Company or any Subsidiary or any of their respective properties may be bound
or
affected except as would not reasonably be expected to have a Material Adverse
Effect or (ii) any corporate charter or by-laws, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Company or any Subsidiary except for such conflicts or
breaches as would not reasonably be expected to have a Material Adverse Effect,
or (c) violate any provision of any statute or other rule or
regulation of any Governmental Authority applicable to the Company or any
Subsidiary, except for such violations as would not reasonably be expected
to
have a Material Adverse Effect.
5.7. Governmental
Authorizations,
Etc.
No
consent, approval or authorization of, or registration, filing or declaration
with, any Governmental Authority is required in connection with the execution,
delivery or performance by the Company of this Agreement or the Notes except
for
any such consent, approval, authorization, registration, filing or declaration
the failure to obtain or make which would not reasonably be expected to have
a
Material Adverse Effect.
5.8. Litigation;
Observance of Agreements, Statutes
and Orders.
(a) Except
as set forth in
Schedule 5.8, there are no actions, suits or proceedings pending or, to the
knowledge of the Company, threatened, nor, to the knowledge of the Company,
are
there any investigations pending or threatened, in each case against or
affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or before or by
any
Governmental Authority that, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect.
(b) Neither
the Company nor
any Subsidiary is in default under any term of any agreement or instrument
to
which it is a party or by which it is bound, or any order, judgment, decree
or
ruling of any court, arbitrator or Governmental Authority or is in violation
of
any applicable law, ordinance, rule or regulation (including without limitation
Environmental Laws or the USA Patriot Act) of any Governmental Authority, which
default or violation, individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
5.9. Taxes.
The
Company and its Subsidiaries have filed all tax returns that are required to
have been filed in any jurisdiction, and have paid all taxes shown to be due
and
payable on such returns and all other taxes and assessments levied upon them,
to
the extent such taxes and assessments have
become
due and payable and before they have become delinquent, except for any taxes
and
assessments (a) the failure to pay which would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or
(b) the amount, applicability or validity of which is currently being
contested in good faith by appropriate proceedings and with respect to which
the
Company or a Subsidiary, as the case may be, has established adequate reserves
in accordance with GAAP. The Company knows of no basis for any other tax or
assessment that would reasonably be expected to have a Material Adverse Effect.
The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of federal, state or other taxes for all fiscal periods
are adequate. The federal income tax liabilities of the Company and its
Subsidiaries have been finally determined (whether by reason of completed audits
or the statute of limitations having run) for all fiscal years up to and
including the fiscal year ended December 31, 2001.
5.10. Title
to Property;
Leases.
The
Company and its Subsidiaries have good title to their respective properties
that
individually or in the aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred to in
Section 5.5 or purported to have been acquired by the Company or any
Subsidiary after said date (except as sold or otherwise disposed of in the
ordinary course of business), in each case free and clear of Liens prohibited
by
this Agreement. All leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material
respects.
5.11. Licenses,
Permits, Etc.
Except
as disclosed in Schedule 5.11, the Company and its Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents, copyrights,
proprietary software, service marks, trademarks and trade names, or rights
thereto, that individually or in the aggregate are Material, without known
Material conflict with the rights of others;
(a) to
the best knowledge of
the Company, no product of the Company or any of its Subsidiaries infringes
in
any Material respect any license, permit, franchise, authorization, patent,
copyright, proprietary software, service mark, trademark, trade name or other
right owned by any other Person; and
(b) to
the best knowledge of
the Company, there is no Material violation by any Person of any right of the
Company or any of its Subsidiaries with respect to any patent, copyright,
proprietary software, service mark, trademark, trade name or other right owned
or used by the Company or any of its Subsidiaries.
5.12. Compliance
with ERISA.
(a) The
Company and each ERISA
Affiliate have operated and administered each Plan in compliance with all
applicable laws except for such instances of noncompliance as do not currently
constitute and would not reasonably be expected to result in a Material Adverse
Effect. Other than obligations to employees and retirees under defined benefit
plans, if any, neither the Company nor any ERISA Affiliate has incurred any
liability pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions
of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and
no event, transaction or condition has occurred or exists that would reasonably
be expected to result in the incurrence of any such liability by the Company
or
any ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax
provisions or to section 401(a)(29) or 412 of the Code or section 4068 of
ERISA, other than such liabilities or Liens as would not, individually or in
the
aggregate, reasonably be expected to result in a Material Adverse
Effect.
(b) The
Company and its ERISA
Affiliates have not incurred any withdrawal liabilities (and are not subject
to
contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in
respect of Multiemployer Plans that would, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(c) The
execution and delivery
of this Agreement and the issuance and sale of the Notes hereunder will not
involve any transaction that is subject to the prohibitions of Section 406
of ERISA or in connection with which a tax would be imposed pursuant to
Section 4975(c)(1)(A)-(D) of the Code. The representation by the Company in
the first sentence of this Section 5.12(c) is made in reliance upon and
subject to the accuracy of each Purchaser’s representation
in Section 6.3 as to the sources of the funds to be used to pay the
purchase price of the Notes to be purchased by such Purchaser.
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 40 other accredited investors (as defined
in Section 6.2), each of which has been offered the Notes in connection with
a
private sale for investment. Neither the Company nor anyone acting on its behalf
has taken, or will take, any action that would subject the issuance or sale
of
the Notes to the registration requirements of Section 5 of the Securities
Act or to the registration requirements of any securities or blue sky laws
of
any applicable jurisdiction.
5.14. Use
of Proceeds; Margin
Regulations.
The
Company will apply the proceeds of the sale of the Notes to refinance the
existing Debt described in Schedule 5.14 and for general corporate purposes
of
the Company. Margin stock does not constitute more than 25% 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 25%
of
the value of such assets. As used in this Section, the term “margin
stock”
shall have the meaning assigned to it in Regulation U of the Board of
Governors of the Federal Reserve System (12 CFR 221).
5.15. Existing
Debt; Future
Liens.
(a) Except
as described
therein, Schedule 5.15 sets forth a complete and correct list of all
outstanding items of Debt of the Company and its Subsidiaries as of
May
31, 2006 in excess of $15,000,000, since which date there has been no Material
change in the amounts, interest rates, sinking funds, installment payments
or
maturities of the Debt of the Company or its Subsidiaries. Neither the Company
nor any Subsidiary is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on the Debt of the Company
and its Subsidiaries described on Schedule 5.15, and no event or condition
exists with respect to such Debt of the Company or any Subsidiary that would
permit (or that with notice or the lapse of time, or both, would permit) one
or
more Persons to cause such Debt to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
(b) Neither
the Company nor
any Subsidiary is a party to, or otherwise subject to any provision contained
in, any instrument evidencing Debt of the Company or such Subsidiary described
in Schedule 5.15, any agreement relating thereto or any other agreement
(including, but not limited to, its charter or other organizational document)
which limits the amount of, or otherwise imposes restrictions on the incurring
of, Debt of the Company, except as specifically indicated in
Schedule 5.15.
5.16. Foreign
Assets Control Regulations,
Etc.
(a) Neither
the sale of the
Notes by the Company hereunder nor its use of the proceeds thereof will violate
the Trading with the Enemy Act, as amended, or any of the foreign assets control
regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order
relating thereto.
(b) Neither
the Company nor
any Subsidiary is a Person described or designated in the Specially Designated
Nationals and Blocked Persons List of the Office of Foreign Assets Control
or in
Section 1 of the Anti-Terrorism Order or, to the knowledge of the Company,
engages in any dealings or transactions with any such Person. The Company and
its Subsidiaries are in compliance, in all material respects, with the USA
Patriot Act.
(c) No
part of the proceeds
from the sale of the Notes hereunder will be used, directly or indirectly,
for
any payments to any governmental official or employee, political party, official
of a political party, candidate for political office, or anyone else acting
in
an official capacity, in order to obtain, retain or direct business or obtain
any improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended, assuming in all cases that such Act applies
to the Company.
Neither
the Company nor
any Subsidiary is an “investment company” registered or required to be
registered under the Investment Company Act of 1940, as amended, or is subject
to regulation under the Federal Power Act, as amended.
5.18. Environmental
Matters.
Except
as set forth in Schedule 5.18:
(a) neither
the Company nor
any Subsidiary has knowledge of any liability or has received any notice of
any
liability, and no proceeding has been instituted raising any liability against
the Company or any of its Subsidiaries or any of their respective real
properties now or formerly owned, leased or operated by any of them, or other
assets, alleging any damage to the environment or violation of any Environmental
Laws, except, in each case, such as would not reasonably be expected to result
in a Material Adverse Effect;
(b) neither
the Company nor
any Subsidiary has knowledge of any facts which would give rise to any
liability, public or private, of violation of Environmental Laws or damage
to
the environment emanating from, occurring on or in any way related to real
properties now or formerly owned, leased or operated by any of them or to other
assets or their use, except, in each case, such as would not reasonably be
expected to result in a Material Adverse Effect;
(c) neither
the Company nor
any of its Subsidiaries has stored any Hazardous Materials on real properties
now or formerly owned, leased or operated by any of them or has disposed of
any
Hazardous Materials in each case in a manner contrary to any Environmental
Laws
in each case in any manner that would reasonably be expected to result in a
Material Adverse Effect; and
(d) all
buildings on all real
properties now owned, leased or operated by the Company or any of its
Subsidiaries are in compliance with applicable Environmental Laws, except where
failure to comply would not reasonably be expected to result in a Material
Adverse Effect.
5.19. Notes
Rank Pari Passu.
The
obligations of the Company under this Agreement and the Notes rank pari
passu in
right of payment with all other senior unsecured Debt (actual or contingent)
of
the Company, including, without limitation, all senior unsecured Debt of the
Company described in Schedule 5.15 hereto.
6.1. Purchase
for Investment.
(a) Each
Purchaser severally
represents that it is purchasing the Notes for its own account or for one or
more separate accounts maintained by it or for the account of one or more
pension or trust funds that are “accredited investors” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act), in each
case for which it manages some or all of the investments thereof, for
investment, and not with a view to the distribution thereof within the meaning
of the Securities Act, provided
that the disposition of
such Purchaser’s or such pension or trust funds’ property shall at all times
be
within such Purchaser’s or such pension or trust funds’ control.
Each
Purchaser understands that the Notes have not been registered under the
Securities Act and may be resold only if registered pursuant to the provisions
of the Securities Act or if an exemption from registration is available, and
that the Company is not required to register the Notes.
(b) Each
Purchaser agrees to
the imprinting, so long as required by law, of a legend on the Notes to the
following effect:
“THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
AN
EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE UNDER
SUCH
ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED
THE MERITS OF THIS NOTE.”
6.2. Accredited
Investor.
Each
Purchaser represents that it is an “accredited investor” (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) acting
for
its own account (and not for the account of others) or as a fiduciary or agent
for others (which others are also “accredited investors”). Each Purchaser
further represents that such Purchaser has had the opportunity to ask questions
of the Company and received answers concerning the terms and conditions of
the
sale of the Notes. The financial position of each Purchaser is such that it
can
afford to bear the economic risk of holding the Notes. Each Purchaser can afford
to suffer the complete loss of its investment in the Notes. The knowledge and
experience of each Purchaser in financial and business matters is such that
it
is capable of evaluating the risks of the investment in the Notes. Each
Purchaser acknowledges that no representations, express or implied, are being
made with respect to the Company or the Subsidiaries, the Notes or otherwise,
other than those expressly set forth herein or contemplated hereby.
6.3. Source
of Funds.
Each
Purchaser severally represents that at least one of the following statements
is
an accurate representation as to each source of funds (a “Source”)
to be used by such
Purchaser to pay the purchase price of the Notes to be purchased by such
Purchaser hereunder:
(a) the
Source is an
“insurance company general account” (as the term is defined in the United States
Department of Labor’s Prohibited Transaction Exemption
(“PTE”)
95-60) in respect of
which the reserves and liabilities (as defined by the annual statement for
life
insurance companies approved by the National Association of Insurance
Commissioners (the “NAIC
Annual
Statement”))
for the general account
contract(s) held by or on behalf of any employee benefit plan together with
the
amount of the reserves and liabilities for the general account contract(s)
held
by or on behalf of any other employee benefit plans maintained by the same
employer (or affiliate thereof as defined in PTE 95-60) or by the same employee
organization in the general account do not exceed 10% of the total reserves
and
liabilities of the general account (exclusive of separate account liabilities)
plus surplus as set forth in the NAIC Annual Statement filed with such
Purchaser’s state of domicile; or
(b) the
Source is a separate
account that is maintained solely in connection with such Purchaser’s fixed
contractual obligations under which the amounts payable, or credited, to any
employee benefit plan (or its related trust) that has any interest in such
separate account (or to any participant or beneficiary of such plan (including
any annuitant)) are not affected in any manner by the investment performance
of
the separate account; or
(c) the
Source is either (i)
an insurance company pooled separate account, within the meaning of PTE 90-1
or
(ii) a bank collective investment fund, within the meaning of the PTE 91-38
and,
except as disclosed by such Purchaser to the Company in writing pursuant to
this
clause (c), no employee benefit plan or group of plans maintained by the same
employer or employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund;
or
(d) the
Source constitutes
assets of an “investment fund” (within the meaning of Part V of PTE 84-14 (the
“QPAM
Exemption”))
managed by a “qualified
professional asset manager” or “QPAM” (within the meaning of Part V of the QPAM
Exemption), no employee benefit plan’s assets that are included in such
investment fund, when combined with the assets of all other employee benefit
plans established or maintained by the same employer or by an affiliate (within
the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by
the
same employee organization and managed by such QPAM, exceed 20% of the total
client assets managed by such QPAM, the conditions of Part I(c) and (g) of
the
QPAM Exemption are satisfied, neither the QPAM nor a person controlling or
controlled by the QPAM (applying the definition of “control” in Section V(e) of
the QPAM Exemption) owns a 5% or more interest in the Company and (i) the
identity of such QPAM and (ii) the names of all employee benefit plans whose
assets are included in such investment fund have been disclosed to the Company
in writing pursuant to this clause (d); or
(e) the
Source constitutes
assets of a “plan(s)” (within the meaning of Section IV of PTE 96-23 (the
“INHAM
Exemption”))
managed by an “in-house
asset manager” or “INHAM” (within the meaning of Part IV of the INHAM
Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption
are
satisfied, neither the INHAM nor a person controlling or controlled by the
INHAM
(applying the definition of “control” in Section IV(d) of the INHAM Exemption)
owns a 5% or more interest in the Company and (i) the identity of such INHAM
and
(ii) the name(s) of the employee benefit plan(s)
whose
assets constitute the Source have been disclosed to the Company in writing
pursuant to this clause (e); or
(f) the
Source is a
governmental plan; or
(g) the
Source is one or more
employee benefit plans, or a separate account or trust fund comprised of one
or
more employee benefit plans, each of which has previously been identified to
the
Company in writing pursuant to this clause (g); or
(h) the
Source does not
include assets of any employee benefit plan, other than a plan exempt from
the
coverage of ERISA.
As
used in this Section 6.2, the terms “employee
benefit
plan,” “governmental plan,” and
“separate
account”
shall have the respective meanings assigned to such terms in section 3 of
ERISA.
The
Company shall deliver to each holder of Notes that is an Institutional
Investor:
(a) Quarterly
Statements --
within 60 days after
the end of each quarterly fiscal period in each fiscal year of the Company
(other than the last quarterly fiscal period of each such fiscal
year),
(i) an
unaudited consolidated
balance sheet of the Company and its Subsidiaries as at the end of such quarter,
and
(ii) unaudited
consolidated
statements of income, shareholders’ equity and cash flows of the Company and its
Subsidiaries, for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such
quarter,
setting
forth in each case
in comparative form the figures for the corresponding periods in the previous
fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a
Senior Financial Officer as fairly presenting, in all material respects, the
financial position of the companies being reported on and their results of
operations and cash flows, subject to changes resulting from year-end
adjustments, provided
that the posting through
an Electronic Distribution Service (and the sending of a notification of such
posting via email to each holder of Notes that is an Institutional Investor)
within the time period specified above of the Company’s Quarterly Report on
Form 10-Q prepared in compliance with the requirements therefor shall be
deemed to satisfy the requirements of this Section 7.1(a);
(b) Annual
Statements --
within 105 days after
the end of each fiscal year of the Company,
(i) a
consolidated balance
sheet of the Company and its Subsidiaries, as at the end of such year,
and
(ii) consolidated
statements of
income, shareholders’ equity and cash flows of the Company and its Subsidiaries
for such year,
setting
forth in each case
in comparative form the figures for the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and accompanied by an opinion thereon
of independent certified public accountants of recognized national standing,
which opinion shall state that such financial statements present fairly, in
all
material respects, the financial position of the companies being reported upon
and their results of operations and cash flows and have been prepared in
conformity with GAAP, and that the examination of such accountants in connection
with such financial statements has been made in accordance with the standards
of
the Public Company Accounting Oversight Board, and that such audit provides
a
reasonable basis for such opinion in the circumstances, provided
that the posting through
an Electronic Distribution Service (and the sending of a notification of such
posting via email to each holder of Notes that is an Institutional Investor)
within the time period specified above of the Company’s Annual Report on Form
10-K for such fiscal year prepared in accordance with the requirements therefor
shall be deemed to satisfy the requirements of this
Section 7.1(b);
(c) SEC
and Other
Reports
-- except for filings referred to in Section 7.1(a) and (b) above, promptly
upon their becoming available and, to the extent applicable, the Company will
make the following items available to each holder of Notes that is an
Institutional Investor by posting the same through an Electronic Distribution
Service (and sending a notification of such posting via email to each such
Institutional Investor): (i) each financial statement, report, notice or
proxy statement sent by the Company or any Subsidiary to public securities
holders generally, and (ii) each regular or periodic report, each
registration statement (without exhibits except as expressly requested by such
holder), and each prospectus and all amendments thereto filed by the Company
or
any Subsidiary with the Securities and Exchange Commission and of all press
releases and other statements made available generally by the Company or any
Subsidiary to the public concerning developments that are Material and (iii)
the
Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act;
(d) Notice
of Default or
Event of Default --
promptly, and in any
event within five Business Days after a Senior Financial Officer becomes aware
of the existence of any Default or Event of Default or that any Person has
given
any notice or taken any action with respect to a claimed Default hereunder
or
that any Person has given any notice or taken any action with respect to a
claimed default of the type referred to in Section 11(f), a written notice
specifying the nature and period of existence thereof and what action the
Company is taking or proposes to take with respect thereto;
(e) ERISA
Matters
-- at any time that the Company is not a reporting company under the Exchange
Act, promptly, and in any event within five Business Days after a Responsible
Officer becomes aware of any of the following, a written notice setting forth
the nature thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with
respect to any Plan,
any reportable event, as defined in Section 4043(c) of ERISA and the
regulations thereunder, for which notice thereof has not been waived pursuant
to
such regulations as in effect on the date thereof; or
(ii) the
taking by the PBGC of
steps to institute, or the threatening by the PBGC of the institution of,
proceedings under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the receipt by the Company
or any ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any
event, transaction or
condition that would result in the incurrence of any liability by the Company
or
any ERISA Affiliate pursuant to Title I or IV of ERISA or the imposition of
a penalty or excise tax under the provisions of the Code relating to employee
benefit plans, or the imposition of any Lien on any of the rights, properties
or
assets of the Company or any ERISA Affiliate pursuant to Title I or IV of
ERISA or such penalty or excise tax provisions, if such liability or Lien,
taken
together with any other such liabilities or Liens then existing, would
reasonably be expected to have a Material Adverse Effect;
(f) Notices
from
Governmental Authority --
at any time that the
Company is not a reporting company under the Exchange Act, promptly, and in
any
event within 30 days of receipt thereof, copies of any notice to the Company
or
any Subsidiary from any federal or state Governmental Authority relating to
any
order, ruling, statute or other law or regulation that would reasonably be
expected to have a Material Adverse Effect; and
(g) Requested
Information --
with reasonable
promptness, such other data and information relating to the business,
operations, affairs, financial condition, assets or properties of the Company
or
any of its Subsidiaries to the extent relating to the ability of the Company
to
perform its obligations hereunder and under the Notes as from time to time
may
be reasonably requested by any holder of Notes that is an Institutional Investor
or such information regarding the Company required to satisfy the requirements
of 17 C.F.R. §230.144A, as amended from time to time, in connection with
any contemplated transfer of the Notes; provided,
that
nothing in this Section 7.1(g) shall obligate the Company or any Subsidiary
to
disclose to any such Institutional Investor information the disclosure of which
would (i) be a violation of any applicable law, statute or regulation of any
Governmental Authority applicable to the Company or Subsidiary disclosing such
information or (ii) be a breach of any contractual agreement (other than any
such agreement entered into in contemplation of this subclause (ii) or any
request for
information
under Section
7.1(g)) regarding confidentiality of information to which the Company or
Subsidiary disclosing such information is a party; provided,
further
that
the
Company agrees to work with each such Institutional Investor and any prospective
transferee of it Notes with respect to any request for information under this
Section 7.1(g), in good faith, to attempt to resolve any impediment to such
disclosure raised by clause (i) or clause (ii) hereof.
7.2. Officer’s
Certificate; Reconciliation
upon Change in GAAP.
Together
with each set of
financial statements made available to a holder of Notes that is an
Institutional Investor in accordance with Section 7.1(a) or
Section 7.1(b) hereof, the Company shall make available to such holder (in
the same manner in which such financial statements were made available to such
holder or as otherwise provided for the giving of notices in Section
18.1):
(a) a
certificate of a Senior
Financial Officer setting forth:
(i) Covenant
Compliance --
the information
required in order to establish whether the Company was in compliance with the
requirements of Section 10.1 through Section 10.4 hereof, inclusive,
during the quarterly or annual period covered by the statements then being
furnished (including with respect to each such Section, where applicable, the
calculations of the maximum or minimum amount, ratio or percentage, as the
case
may be, permissible under the terms of such Sections, and the calculation of
the
amount, ratio or percentage then in existence); and
(ii) Event
of
Default
-- a statement that such officer has reviewed the relevant terms hereof and
such
review shall not have disclosed the existence during the quarterly or annual
period covered by the statements then being furnished of any condition or event
that constitutes a Default or an Event of Default or, if any such condition
or
event existed or exists, specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with respect
thereto; and
(b) a
reconciliation
reflecting the effect on such financial statements of using GAAP as in effect
immediately prior to any change in GAAP referred to in the proviso to the
definition of “GAAP”.
7.3. Visitation.
The
Company shall permit the representatives of each holder of Notes that is an
Institutional Investor:
(a) No
Default
-- if no Default or Event of Default then exists, at the expense of such holder,
upon at least 10 days prior written notice to the Company and not more than
once
in each fiscal year of the Company, to visit the principal executive office
of
the Company, to discuss the affairs, finances and accounts of the Company and
its Subsidiaries with the Company’s officers, and (with the consent of the
Company, which consent will not be unreasonably withheld) its independent public
accountants (in the
presence
of an officer of
the Company, if requested by the Company), and (with the consent of the Company,
which consent will not be unreasonably withheld) to visit the other offices
and
properties of the Company and each Subsidiary, all such visitations and
discussions to occur during normal business hours; and
(b) Default
-- if a Default or Event
of Default then exists, at the expense of the Company, to visit and inspect
any
of the offices or properties of the Company or any Subsidiary, to examine all
their respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs, finances
and accounts with their respective officers and independent public accountants
(and by this provision the Company authorizes said accountants to discuss the
affairs, finances and accounts of the Company and its Subsidiaries), all at
such
times and as often as may be requested.
8.1. Payment
at Maturity.
(a) The
entire unpaid
principal amount of the Series A Notes shall become due and payable on July
12,
2009.
(b) The
entire unpaid
principal amount of the Series B Notes shall become due and payable on July
12,
2011.
(c) The
entire unpaid
principal amount of the Series C Notes shall become due and payable on July
12,
2013.
(d) The
entire unpaid
principal amount of the Series D Notes shall become due and payable on July
12,
2016.
8.2. Optional
Prepayments with Make-Whole
Amount.
The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of, the Notes, in an amount not less than
10%
of the original aggregate principal amount of the Notes in the case of a partial
prepayment, at 100% of the principal amount so prepaid, together with interest
accrued thereon to the date of such prepayment, plus the Make-Whole Amount
determined for the prepayment date with respect to such principal amount of
each
Note then outstanding. The Company will give each holder of Notes written notice
of each optional prepayment under this Section 8.2 not less than 30 days
and not more than 60 days prior to the date (which shall be a Business Day)
fixed for such prepayment. Each such notice shall specify such date, the
aggregate principal amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be prepaid (determined
in
accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer as to the estimated
Make-Whole Amount due in connection with such prepayment (calculated as if
the
date of such notice were the date of the prepayment), setting forth the details
of such computation. Two Business Days prior to such prepayment, the Company
shall deliver to each holder of Notes a certificate of a Senior Financial
Officer
specifying the
calculation of such Make-Whole Amount as of the specified prepayment
date.
In
the
case of each partial prepayment of the Notes pursuant to the provisions of
Section 8.2, the principal amount of the Notes shall be allocated among all
the Notes at the time outstanding in proportion, as nearly as practicable,
to
the respective unpaid principal amounts thereof.
8.4. Maturity;
Surrender, Etc.
In
the
case of each prepayment of Notes pursuant to Section 8.2 or Section 8.7,
the principal amount of each Note to be prepaid shall mature and become due
and
payable on the date fixed for such prepayment (which shall be a Business Day),
together with interest on such principal amount accrued to such date and, in
the
case of any prepayment pursuant to Section 8.2, the applicable Make-Whole
Amount, if any. From and after such date, unless the Company shall fail to
pay
such principal amount when so due and payable, together with the interest and
Make-Whole Amount, if any, as aforesaid, interest on such principal amount
shall
cease to accrue. Any Note paid or prepaid in full shall be surrendered to the
Company and canceled and shall not be reissued, and no Note shall be issued
in
lieu of any prepaid principal amount of any Note.
8.5. Purchase
of Notes.
The
Company will not and will not permit any Affiliate to purchase, redeem, prepay
or otherwise acquire, directly or indirectly, any of the outstanding Notes
of
any Series except (a) upon the payment or prepayment of the Notes in accordance
with the terms of this Agreement and the Notes or (b) pursuant to a written
offer to purchase any outstanding Notes of any Series made by the Company or
an
Affiliate pro rata to the holders of the Notes of such Series upon the same
terms and conditions. The Company will promptly cancel all Notes acquired by
it
or any Affiliate pursuant to any payment, prepayment or purchase of Notes
pursuant to any provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
8.6. Make-Whole
Amount.
The
term “Make-Whole
Amount”
means with respect to any Note an amount equal to the excess, if any, of the
Discounted Value of the Remaining Scheduled Payments with respect to the Called
Principal of such Note, over the amount of such Called Principal, provided
that the Make-Whole
Amount may in no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
“Called
Principal” means,
with respect to
any Note, the principal of such Note that is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 12.1, as the context requires.
“Discounted
Value”
means, with respect to the Called Principal of any Note, the amount obtained
by
discounting all Remaining Scheduled Payments from their respective scheduled
due
dates to the Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount factor (applied
on
the same periodic basis as that on which interest on such Note is payable)
equal
to the Reinvestment Yield.
“Reinvestment
Yield”
means, with respect to the Called Principal of any Note, 0.50% plus the yield
to
maturity calculated by using (i) the yields reported, as of 10:00 A.M.
(New York City time) on the second Business Day preceding the Settlement
Date on screen “PX-1” on the Bloomberg Financial Market Service (or such other
information service as may replace Bloomberg) for actively traded U.S. Treasury
securities, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second Business Day preceding the Settlement Date,
in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication). In either case, the yield will be determined, if necessary, by
(a) converting U.S. Treasury bill quotations to bond-equivalent yields in
accordance with accepted financial practice and (b) interpolating linearly
on a straight line basis between (1) the actively traded U.S. Treasury
security with the maturity closest to and greater than the Remaining Average
Life and (2) the actively traded U.S. Treasury security with the maturity
closest to and less than the Remaining Average Life. The Reinvestment Yield
shall be rounded to the number of decimal places as appears in the interest
rate
of the applicable Note.
“Remaining
Average
Life”
means, with respect to any Called Principal, the number of years (calculated
to
the nearest one-twelfth year) obtained by dividing (i) such Called
Principal into (ii) the sum of the products obtained by multiplying
(a) the principal component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of years (calculated to
the nearest one-twelfth year) that will elapse between the Settlement Date
with
respect to such Called Principal and the scheduled due date of such Remaining
Scheduled Payment.
“Remaining
Scheduled
Payments” means,
with respect to
the Called Principal of any Note, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date with respect to
such Called Principal if no payment of such Called Principal were made prior
to
its scheduled due date, provided
that if such Settlement
Date is not a date on which interest payments are due to be made under the
terms
of such Note, then the amount of the next succeeding scheduled interest payment
will be reduced by the amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to Section 8.2 or
12.1.
“Settlement
Date”
means, with respect to the Called Principal of any Note, the date on which
such
Called Principal is to be prepaid pursuant to Section 8.2 or has become or
is declared to be immediately due and payable pursuant to Section 12.1, as
the context requires.
8.7. Prepayment
at Par Upon the Sale of
Certain Assets.
(a) Notice
and
Offer.
In the event the Company
or any Subsidiary elects to prepay or retire Senior Debt with the net proceeds
of any sale, lease or other disposition of assets in accordance with Section
10.4(b), the Company will give written notice thereof to each holder of Notes.
Such written notice shall contain, and such written notice shall constitute,
an
irrevocable offer to prepay (the “Asset
Sale Prepayment
Offer”),
at the election of each holder, a portion of the aggregate principal amount
of
the Notes held by such holder equal to such holder’s Ratable Portion of such
net proceeds
being applied by the Company and its Subsidiaries to the prepayment or
retirement of Senior Debt on a date
specified in
such notice (the “Asset
Sale Prepayment
Date”)
that is not less than thirty (30) days and not more than sixty (60) days after
the date of such notice. If the Asset Sale Prepayment Date shall not be
specified in such notice, the Asset Sale Prepayment Date shall be the fortieth
(40th) day after the date of such notice.
(b) Acceptance
and
Payment.
To accept such Asset
Sale Prepayment Offer, a holder of Notes shall cause a notice of such acceptance
to be delivered to the Company not later than twenty (20) days after the date
of
receipt of such written notice from the Company, provided, that failure to
accept such offer in writing within twenty (20) days after the date of such
written notice shall be deemed to be rejection of the Asset Sale Prepayment
Offer. If so accepted by any holder of a Note, such offered prepayment shall
be
due and payable on the Asset Sale Prepayment Date. Such offered prepayment
shall
be made at one hundred percent (100%) of the aggregate principal amount of
such
Notes being so prepaid together with interest on such principal amount then
being prepaid accrued to the Asset Sale Prepayment Date.
(c) Officer’s
Certificate.
Each offer to prepay the
Notes pursuant to this Section 8.7 shall be accompanied by a certificate,
executed by a Senior Financial Officer and dated the date of such offer,
specifying:
(i) the
Asset Sale Prepayment
Date and the aggregate net proceeds of the sale, lease or other disposition
of
assets being
applied by the Company and its Subsidiaries to the prepayment or retirement
of
Senior Debt
in connection with such offer;
(ii) that
such offer is being
made pursuant to Section 8.7 and Section 10.4(b) of this Agreement;
(iii) the
principal amount of
each Note offered to be prepaid;
(iv) the
interest that would be
due on the principal amount of each such Note offered to be prepaid, accrued
to
the Asset Sale Prepayment Date; and
(v) in
reasonable detail, the
nature of the sale, lease or other disposition of assets giving rise to such
offer.
The
Company covenants that so long as any of the Notes are outstanding:
9.1. Compliance
with Law.
Without
limiting
Section 10.8, the Company will, and will cause each of its Subsidiaries to,
comply with all laws, ordinances or governmental rules or regulations to which
each of them is subject, including, without limitation, ERISA, the USA Patriot
Act and Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct
of
their respective businesses, in each case to the extent necessary to ensure
that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
9.2. Insurance.
The
Company will, and will cause each of its Subsidiaries to, maintain, with
financially sound and reputable insurers, insurance with respect to their
respective properties and businesses against such casualties and contingencies,
of such types, on such terms and in such amounts (including deductibles,
co-insurance and self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated
except for any failure to maintain insurance that would not reasonably be
expected to have a Material Adverse Effect.
The
Company will, and will cause each of its Subsidiaries to, maintain and keep,
or
cause to be maintained and kept, their respective properties in good repair,
working order and condition (other than ordinary wear and tear) in all Material
respects, so that the business carried on in connection therewith may be
properly conducted at all times, provided
that this
Section shall not prevent the Company or any Subsidiary from discontinuing
the operation and the maintenance of any of its properties if such
discontinuance is desirable in the conduct of its business and the Company
has
concluded that such discontinuance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
The
Company will, and will cause each of its Subsidiaries to, file or cause to
be
filed all tax returns required to be filed in any jurisdiction and to pay and
discharge all taxes shown to be due and payable on such returns and all other
taxes, assessments, governmental charges, or levies imposed on them, to the
extent such taxes, assessments governmental charges or levies have become due
and payable and before they have become delinquent and all claims for which
sums
have become due and payable that have or might become a Lien on properties
or
assets of the Company or any Subsidiary, provided
that neither the Company
nor any Subsidiary need pay any such tax, assessment, charge, levy or claim
if
(i) the amount, applicability or validity thereof is
contested
by the Company
or such Subsidiary on a timely basis in good faith and in appropriate
proceedings, and the Company or a Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Company or such Subsidiary
or (ii) the non-filing or nonpayment, as the case may be, of all such
taxes, assessments, charges, levies and claims in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
9.5. Corporate
Existence, Etc.
Subject
to
Sections 10.4 and 10.5, the Company will at all times preserve and keep in
full force and effect its corporate existence, and will at all times preserve
and keep in full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a Subsidiary) and all rights
and
franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep
in
full force and effect such corporate existence, right or franchise would not,
individually or in the aggregate, to have a Material Adverse
Effect.
9.6. Notes
to Rank Pari Passu.
The
Notes and all other obligations under this Agreement of the Company are and
at
all times shall remain direct and unsecured obligations of the Company ranking
pari
passu as
against the assets of the Company with all other Notes from time to time issued
and outstanding hereunder without any preference among themselves and
pari
passu
with all other present and future unsecured Debt (actual or contingent) of
the
Company which is not expressed to be subordinate or junior in rank to any other
unsecured Debt of the Company.
9.7. Books
and Records.
The
Company will, and will cause each of its Subsidiaries to, maintain proper books
of record and account in conformity with GAAP and all applicable requirements
of
any Governmental Authority having legal or regulatory jurisdiction over the
Company or such Subsidiary, as the case may be.
|
10.
|
The
Company covenants that so long as any of the Notes are outstanding:
10.1. Consolidated
Net Debt to Consolidated
EBITDA.
The
Company will not permit the ratio of Consolidated Net Debt to Consolidated
EBITDA (calculated as at the end of each Fiscal Quarter for the Reference Period
then ended) to exceed 3.50 to 1.00; provided, however, that such ratio may,
subject to the payment of Additional Interest during any Additional Interest
Period, exceed 3.50 to 1.00 at the end of any Fiscal Quarter so long as such
ratio does not exceed 4.00 to 1 at such time.
10.2. Subsidiary
Debt.
The
Company will not at any time permit the aggregate amount of all Subsidiary
Debt
(other than the Yen Facility Debt) at such time to exceed
$670,000,000.
10.3. Limitation
on Liens.
The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly create, incur, assume or permit to exist (upon the happening of
a
contingency or otherwise) any Lien on or with respect to any property or asset
(including, without limitation, any document or instrument in respect of goods
or accounts receivable) of the Company or any such Subsidiary, whether now
owned
or held or hereafter acquired, or any income or profits therefrom, or assign
or
otherwise convey any right to receive income or profits (unless it makes, or
causes to be made, effective provision whereby the Notes will be equally and
ratably secured with any and all other obligations thereby secured, such
security to be pursuant to an agreement reasonably satisfactory to the Required
Holders), except:
(a) Liens
for taxes,
assessments or other governmental charges that are not yet due and payable
or
the payment of which is not at the time required by
Section 9.4;
(b) any
attachment or judgment
Lien, unless the judgment it secures shall not, within 60 days after the entry
thereof, have been discharged or execution thereof stayed pending appeal, or
shall not have been discharged within 60 days after the expiration of any such
stay;
(c) Liens
incidental to the
conduct of business or the ownership of properties and assets (including
landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other
similar Liens for sums not yet due and payable) and Liens to secure the
performance of bids, tenders, leases, or trade contracts, or to secure statutory
obligations (including obligations under workers compensation, unemployment
insurance and other social security legislation), surety or appeal bonds or
other Liens incurred in the ordinary course of business, in each case, not
incurred or made in connection with the borrowing of money, the obtaining of
advances or credit or the payment of the deferred purchase price of
property;
(d) leases
or subleases
granted to others, easements, rights-of-way, restrictions and other similar
charges or encumbrances, in each case incidental to the ownership of property
or
assets or the ordinary conduct of the business of the Company or any of its
Subsidiaries, and Liens incidental to minor survey exceptions and the like,
provided that such Liens do not, in the aggregate, materially detract from
the
value of such property or assets;
(e) Liens
securing Debt of a
Subsidiary to the Company or to another Subsidiary;
(f) Liens
(i) existing on
property at the time of its acquisition, construction or improvement by the
Company or a Subsidiary and not created in contemplation thereof; (ii) on
property created contemporaneously with its acquisition or within 365 days
of
the acquisition or completion of construction or improvement thereof to secure
the purchase price or cost of construction or improvement thereof; or (iii)
existing on property of a Person at the time such Person is consolidated with
or
merged into the Company or a Subsidiary and not created in contemplation
thereof; provided
that (A) such Liens shall
attach
solely to the property acquired, constructed or improved, or to the property
that is subject to such Liens at the time such Person shall be so consolidated
or merged (as the case may be), (B) the principal amount of the Debt secured
by
such Lien shall not exceed the Fair Market Value of such property (as determined
in good faith by one or more officers of the Company to whom authority to enter
into the subject transaction has been delegated by the board of directors of
the
Company) or, in the case of the foregoing clause (i), if less, the cost of
acquisition, construction or improvement of such property, (C) at the time
of
the incurrence of such Lien, the acquisition of such property or the
consolidation or merger of such Person (as the case may be), and after giving
effect thereto, no Default or Event of Default would exist, and (D) the
aggregate principal amount of Debt secured by such Liens shall not exceed
$60,000,000 at any time;
(g) any
extensions, renewals
or replacements of any Lien permitted by the preceding subparagraph (f) of
this
Section 10.3, provided that (i) no additional property shall be encumbered
by such Liens, (ii) the unpaid principal amount of the Debt secured thereby
shall not be increased on or after the date of any extension, renewal or
replacement, and (iii) immediately after giving effect thereto, no Default
or Event of Default shall have occurred and be continuing; and
(h) Liens
securing Debt of the
Company or any Subsidiary not otherwise permitted under this Section 10.3 in
an
aggregate principal amount not to exceed $120,000,000 at any time.
In
the
event that any Lien exists on property of the Company or any Subsidiary in
violation of this Section 10.3, such violation shall constitute an Event of
Default, but the Notes shall have the benefit, to the fullest extent that,
and
with such priority as, the holders may be entitled under applicable law, of
an
equitable Lien on such property.
10.4. Sales
of Assets.
The
Company will not, and will not permit any Subsidiary to, sell, lease or
otherwise dispose of any substantial part (as defined below) of the assets
of
the Company and its Subsidiaries (including, without limitation, capital stock
of Subsidiaries and accounts receivable); provided,
however,
that the Company or any Subsidiary may sell, lease or otherwise dispose of
assets constituting a substantial part of the assets of the Company and its
Subsidiaries if (x) such assets are sold in an arm’s-length transaction for Fair
Market Value in the ordinary course of business, (y) at the time of such sale,
lease or other disposal, and after giving effect thereto, no Default or Event
of
Default shall have occurred and be continuing and (z) an amount of the net
proceeds received from such sale, lease or other disposition at least equal
to
the Excess Asset Sale Amount shall be used within 365 days of such sale, lease
or disposition, in any combination:
(a) to
acquire from Persons
that are not Affiliates of the Company or any Subsidiary productive assets
used
or useful in carrying on the business of the Company and its Subsidiaries and
having a value at least equal to the value of such assets sold, leased or
otherwise disposed of; and/or
(b) to
prepay or retire Senior
Debt of the Company and/or its Subsidiaries, provided,
that the availability
under any such Senior Debt so prepaid that constitutes a revolving credit or
similar facility is permanently reduced by the amount of such prepayment, and
provided
further
that,
in the course of making
such application, the Company shall offer to prepay each outstanding Note at
par, in accordance with Section 8.7, in a principal amount which equals the
Ratable Portion of the holder of such Note with respect to such prepayment
or
retirement of Senior Debt.
As
used in this Section 10.4, a sale, lease or other disposition of assets
shall be deemed to be a “substantial
part” of
the assets of the Company and its Subsidiaries if the Disposition Value of
such
assets, when added to the Disposition Value of all other assets sold, leased
or
otherwise disposed of by the Company and its Subsidiaries during the period
of
12 consecutive calendar months most recently ended as of the date on which
such
sale, lease or other disposition is consummated, exceeds 10% of Consolidated
Total Assets, determined as of the end of the Fiscal Quarter most recently
ended
as of such date (the amount of any such excess, subject to the proviso hereto,
being referred to herein as the “Excess
Asset Sale
Amount”);
provided
that there shall be excluded from any determination of a “substantial part” (i)
any sale or disposition of assets in the ordinary course of business of the
Company and its Subsidiaries, (ii) any transfer of assets from the Company
to any Subsidiary or from any Subsidiary to the Company or a Subsidiary, (iii)
any sale or transfer of property acquired by the Company or any Subsidiary
after
the date of this Agreement to any Person within 365 days following the
acquisition or construction of such property by the Company or any Subsidiary
if
the Company or a Subsidiary shall concurrently with such sale or transfer,
lease
such property, as lessee and (iv) the Disposition Value of any assets subject
to
any sale, lease or disposal to the extent that the net proceeds of such
transaction are applied to either or both of the applications provided for
in
clauses (a) and (b) of this Section 10.4.
10.5. Merger
and Consolidation.
The
Company will not, and will not permit any of its Subsidiaries to, consolidate
with or merge with any other Person or convey, transfer or lease substantially
all of its assets in a single transaction or series of transactions to any
Person; provided
that:
(a) any
Subsidiary of the
Company may (x) consolidate with or merge with, or convey, transfer or
lease substantially all of its assets in a single transaction or series of
transactions to, (i) the Company or a Subsidiary so long as in any merger or
consolidation involving the Company, the Company shall be the surviving or
continuing corporation or (ii) any other Person so long as the survivor is
the
Subsidiary, or (y) convey, transfer or lease all of its assets in
compliance with the provisions of Section 10.4; and
(b) the
foregoing restriction
does not apply to the consolidation or merger of the Company with, or the
conveyance, transfer or lease of substantially all of the assets of the Company
in a single transaction or series of transactions to, any Person so long
as:
(i) the
successor formed by
such consolidation or the survivor of such merger or the Person that acquires
by
conveyance, transfer or lease substantially all of the assets of the Company
as
an entirety, as the case may be (the “Successor
Corporation”),
shall be a solvent
entity organized and existing under the laws of the United States of America,
any State thereof or the District of Columbia;
(ii) if
the Company is not the
Successor Corporation, such Successor Corporation shall have executed and
delivered to each holder of Notes its assumption of the due and punctual
performance and observance of each covenant and condition of this Agreement
and
the Notes (pursuant to such agreements and instruments as shall be reasonably
satisfactory to the Required Holders) and the Successor Corporation shall have
caused to be delivered to each holder of Notes an opinion of nationally
recognized independent counsel, to the effect that all agreements or instruments
effecting such assumption are enforceable in accordance with their terms;
and
(iii) immediately
after giving
effect to such transaction no Default or Event of Default would
exist.
10.6. Transactions
with
Affiliates.
The
Company will not and will not permit any Subsidiary to enter into directly
or
indirectly any Material transaction or Material group of related transactions
(including without limitation the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except in the ordinary course
and upon fair and reasonable terms that are not materially less favorable to
the
Company or such Subsidiary, taking such transaction or group of related
transactions as a whole, than would be obtainable in a comparable arm’s-length
transaction with a Person not an Affiliate.
10.7. Nature
of Business.
The
Company will not and will not permit any Subsidiary to engage in any business
if, as a result, the general nature of the business in which the Company and
its
Subsidiaries, taken as a whole, would then be engaged would be substantially
changed from the general nature of the business in which the Company and its
Subsidiaries, taken as a whole, are engaged on the date of this Agreement as
described in the Memorandum.
The
Company will not, and will not permit any of its Subsidiaries to,
(a) become a Person described or designated in the Specially Designated
Nationals and Blocked Persons List of the Office of Foreign Assets Control
or in
Section 1 of the Anti-Terrorism Order or, (b) knowingly engage in any
dealings or transactions with any such Person.
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11.
|
An
“Event
of
Default”
shall exist if any of the following conditions or events shall occur and be
continuing:
(a) the
Company defaults in
the payment of any principal or Make-Whole Amount, if any, on any Note when
the
same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration or otherwise; or
(b) the
Company defaults in
the payment of any interest on any Note for more than five Business Days after
the same becomes due and payable; or
(c) the
Company defaults in
the performance of or compliance with any term contained in Section 10;
or
(d) the
Company defaults in
the performance of or compliance with any term contained herein (other than
those referred to in paragraphs (a), (b) and (c) of this Section 11) and
such default is not remedied within 30 days after the earlier of (i) a
Responsible Officer obtaining actual knowledge of such default or (ii) the
Company receiving written notice of such default from any holder of a Note
(any
such written notice to be identified as a “notice of default” and to refer
specifically to this paragraph (d) of Section 11); or
(e) any
representation or
warranty made in writing by or on behalf of the Company or by any officer of
the
Company in any writing furnished in connection with the transactions
contemplated hereby proves to have been false or incorrect in any material
respect on the date as of which made; or
(f) (i) the
Company or any
Subsidiary is in default (as principal or as guarantor or other surety) in
the
payment of any principal of or premium, make-whole amount or interest (in the
payment amount of at least $100,000) on any Debt, other than the Notes, that
is
outstanding in an aggregate principal amount of at least $25,000,000 beyond
any
period of grace provided with respect thereto, or (ii) the Company or any
Subsidiary is in default in the performance of or compliance with any term
of
any instrument, mortgage, indenture or other agreement relating to any Debt
other than the Notes in an aggregate principal amount of at least $25,000,000
or
any other condition exists, and as a consequence of such default or condition
such Debt has become, or has been declared, due and payable, or (iii) as a
consequence of the occurrence or continuation of any event or condition (other
than the passage of time or the right of the holder of Debt to convert such
Debt
into equity interests), the Company or any Subsidiary has become obligated
to
purchase or repay Debt other than the Notes before its regular maturity or
before its regularly scheduled dates of payment in an aggregate outstanding
principal amount of at least $25,000,000; or
(g) the
Company or any
Material Subsidiary (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency, reorganization,
moratorium or other similar law of any jurisdiction, (iii) makes an
assignment for the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other officer with similar
powers with respect to it or with respect to any substantial part of its
property, (v) is adjudicated as
insolvent
or to be
liquidated, or (vi) takes corporate action for the purpose of any of the
foregoing; or
(h) a
court or governmental
authority of competent jurisdiction enters an order appointing, without consent
by the Company or any of its Material Subsidiaries, a custodian, receiver,
trustee or other officer with similar powers with respect to it or with respect
to any substantial part of its property, or constituting an order for relief
or
approving a petition for relief or reorganization or any other petition in
bankruptcy or for liquidation or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, or ordering the dissolution, winding-up
or
liquidation of the Company or any of its Material Subsidiaries, or any such
petition shall be filed against the Company or any of its Material Subsidiaries
and such petition shall not be dismissed within 60 days; or
(i) a
final judgment or
judgments at any one time outstanding for the payment of money aggregating
in
excess of $25,000,000 are rendered against one or more of the Company or any
Subsidiary and which judgments are not, within 60 days after entry thereof,
bonded, discharged or stayed pending appeal, or are not discharged within 60
days after the expiration of such stay; or
(j) if
(i) any Plan shall
fail to satisfy the minimum funding standards of ERISA or the Code for any
plan
year or part thereof or a waiver of such standards or extension of any
amortization period is sought or granted under Section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the PBGC shall have instituted
proceedings under Section 4042 of ERISA to terminate or appoint a trustee
to administer any Plan or the PBGC shall have notified the Company or any ERISA
Affiliate that a Plan may become a subject of any such proceedings, (iii)
the Company or any ERISA Affiliate shall have incurred or is reasonably expected
to incur any liability pursuant to Title I or IV of ERISA or the penalty or
excise tax provisions of the Code relating to employee benefit plans,
(iv) the Company or any ERISA Affiliate withdraws from any Multiemployer
Plan or the Company or any ERISA Affiliate receives notice from a Multiemployer
Plan that action has been taken or threatened by the PBGC to terminate or to
appoint a trustee to administer any such Multiemployer Plan, or (v) the
Company or any Subsidiary establishes or amends any employee welfare benefit
plan that provides post-employment welfare benefits in a manner that could
increase the liability of the Company or any Subsidiary thereunder; and any
such
event or events described in clauses (i) through (v) above, either individually
or together with any other such event or events, would reasonably be expected
to
have a Material Adverse Effect.
As
used in Section 11(j), the terms “employee
benefit
plan”
and “employee
welfare
benefit plan” shall
have the respective
meanings assigned to such terms in Section 3 of ERISA.
12.1. Acceleration.
(a) If
an Event of Default
with respect to the Company described in paragraph (g) or (h) of Section 11
(other than an Event of Default described in clause (i) of paragraph (g) or
described in clause (vi) of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all the Notes of every
Series then outstanding shall automatically become immediately due and
payable.
(b) If
any other Event of
Default has occurred and is continuing, the Required Holders may at any time
at
their option, by notice or notices to the Company, declare all the Notes then
outstanding to be immediately due and payable.
(c) If
any Event of Default
described in paragraph (a) or (b) of Section 11 has occurred and is
continuing with respect to any Notes, any holder or holders of Notes at the
time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by
such
holder or holders to be immediately due and payable.
Upon
any Note’s becoming due and payable under this Section 12.1, whether
automatically or by declaration, such Note will forthwith mature and the entire
unpaid principal amount of such Note, plus (i) all accrued and unpaid
interest thereon (including, but not limited to, interest accrued thereon at
the
Default Rate) and (ii) the Make-Whole Amount determined in respect of such
principal amount (to the full extent permitted by applicable law), shall all
be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has
the
right to maintain its investment in the Notes free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that the Notes are prepaid
or
are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such
circumstances.
12.2. Other
Remedies.
If
any
Default or Event of Default has occurred and is continuing, and irrespective
of
whether any Notes have become or have been declared immediately due and payable
under Section 12.1, the holder of any Note at the time outstanding may
proceed to protect and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for the specific
performance of any agreement contained herein or in any Note, or for an
injunction against a violation of any of the terms hereof or thereof, or in
aid
of the exercise of any power granted hereby or thereby or by law or
otherwise.
12.3. Rescission.
At
any
time after the Notes have been declared due and payable pursuant to
clause (b) or (c) of Section 12.1, the Required Holders, by written
notice to the Company, may rescind and annul any such declaration and its
consequences if (a) the Company has paid all overdue interest
on
the
Notes, all principal of and Make-Whole Amount, if any, on any Notes that are
due
and payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Make-Whole Amount, if any and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) neither the Company nor any other Person
shall have paid any amounts which have become due solely by reason of such
declaration, (c) all Events of Default and Defaults, other than non-payment
of amounts that have become due solely by reason of such declaration, have
been
cured or have been waived pursuant to Section 17, and (d) no judgment
or decree has been entered for the payment of any monies due pursuant hereto
or
to any Notes. No rescission and annulment under this Section 12.3 will
extend to or affect any subsequent Event of Default or Default or impair any
right consequent thereon.
12.4. No
Waivers or Election of Remedies, Expenses,
Etc.
No
course of dealing and no delay on the part of any holder of any Note in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such holder’s rights, powers or remedies. No right, power or
remedy conferred by this Agreement or by any Note upon any holder thereof shall
be exclusive of any other right, power or remedy referred to herein or therein
or now or hereafter available at law, in equity, by statute or otherwise.
Without limiting the obligations of the Company under Section 15, the
Company will pay to the holder of each Note on demand such further amount as
shall be sufficient to cover all costs and expenses of such holder incurred
in
any enforcement or collection under this Section 12, including, without
limitation, reasonable attorneys’ fees, expenses and disbursements.
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13.
|
REGISTRATION;
EXCHANGE; SUBSTITUTION OF
NOTES.
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13.1. Registration
of Notes.
The
Company shall keep at its principal executive office a register for the
registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address
of each transferee of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the Person in whose
name
any Note shall be registered shall be deemed and treated as the owner and holder
thereof for all purposes hereof, and the Company shall not be affected by any
notice or knowledge to the contrary. The Company shall give to any holder of
a
Note that is an Institutional Investor, promptly upon request therefor, a
complete and correct copy of the names and addresses of all registered holders
of Notes.
Upon
surrender of any Note to the Company at the address and to the attention of
the
designated officer (all as specified in Section 18(iii)), for registration
of transfer or exchange (and in the case of a surrender for registration of
transfer accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or such holder’s attorney duly authorized in
writing and accompanied by the relevant name, address and other information
for
notices of each transferee of such Note or part thereof), within ten Business
Days thereafter, the Company shall execute and deliver, at the Company’s expense
(except as provided below), one
or
more new Notes (as requested by the holder thereof) of the same Series in
exchange therefor, in an aggregate principal amount equal to the unpaid
principal amount of the surrendered Note. Each such new Note shall be payable
to
such Person as such holder may request and shall be substantially in the form
of
the Note of such Series originally issued hereunder. Each such new Note shall
be
dated and bear interest from the date to which interest shall have been paid
on
the surrendered Note or dated the date of the surrendered Note if no interest
shall have been paid thereon. The Company may require payment of a sum
sufficient to cover any stamp tax or governmental charge imposed in respect
of
any such transfer of Notes. Notes shall not be transferred in denominations
of
less than $100,000, provided
that if necessary to
enable the registration of transfer by a holder of its entire holding of Notes,
one Note may be in a denomination of less than $100,000. Any transferee, by
its
acceptance of a Note registered in its name (or the name of its nominee), shall
be deemed to have made the representation set forth in
Section 6.3.
The
Notes have not been registered under the Securities Act or under the securities
laws of any state and may not be transferred or resold unless registered under
the Securities Act and all applicable state securities laws or unless an
exemption from the requirement for such registration is available.
13.3. Replacement
of Notes.
Upon
receipt by the Company at the address and to the attention of the designated
officer (all as specified in Section 18(iii)) of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Note (which evidence shall be, in the case of an Institutional
Investor, notice from such Institutional Investor of such ownership and such
loss, theft, destruction or mutilation), and
(a) in
the case of loss, theft
or destruction, of indemnity reasonably satisfactory to it (provided that if
the
holder of such Note is, or is a nominee for, an original Purchaser or another
holder of a Note with a minimum net worth of at least $50,000,000 in excess
of
the outstanding principal amount of such Note, such Person’s own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(b) in
the case of mutilation,
upon surrender and cancellation thereof,
the
Company at its own expense shall execute and deliver not more than 30 days
following satisfaction of such conditions, in lieu thereof, a new Note of the
same Series as such lost, stolen, destroyed or mutilated Note, dated and bearing
interest from the date to which interest shall have been paid on such lost,
stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid
thereon.
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14.
|
14.1. Place
of Payment.
Subject
to
Section 14.2, payments of principal, Make-Whole Amount, if any and interest
becoming due and payable on the Notes shall be made in New York,
New York at the principal office in such jurisdiction of the Company’s
Paying Agent (on the date hereof, Bank of America,
N.A.).
The Company may at any time, by notice to each holder of a Note, change the
place of payment of the Notes so long as such place of payment shall be either
the principal office of the Company in such jurisdiction or the principal office
of a bank or trust company in such jurisdiction. Notwithstanding that payments
on the Notes will be made by or through the Paying Agent, the Company is and
shall remain primarily liable for all of its obligations hereunder and in
respect of the Notes.
14.2. Home
Office Payment.
So
long as any Purchaser or its nominee shall be the holder of any Note, and
notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal,
Make-Whole Amount, if any, and interest by the method and at the address
specified for such purpose below such Purchaser’s name in Schedule A, or by such
other method or at such other address as such Purchaser shall have from time
to
time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, such
Purchaser shall surrender such Note for cancellation, reasonably promptly after
any such request, to the Company at its principal executive office or at the
place of payment most recently designated by the Company pursuant to
Section 14.1. Prior to any sale or other disposition of any Note held by a
Purchaser or its nominee, such Purchaser will, at its election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Company in exchange for
a
new Note or Notes pursuant to Section 13.2. The Company will afford the
benefits of this Section 14.2 to any Institutional Investor that is the
direct or indirect transferee of any Note purchased by a Purchaser under this
Agreement and that has made the same agreement relating to such Note as the
Purchasers have made in this Section 14.2.
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15.
|
15.1. Transaction
Expenses.
Whether
or not the
transactions contemplated hereby are consummated, the Company will pay all
reasonable, out-of-pocket costs and expenses (including reasonable attorneys’
fees of a special counsel for the Purchasers and, if reasonably required by
the
Required Holders, local or other counsel) incurred by each Purchaser and each
other holder of a Note in connection with such transactions and in connection
with any amendments, waivers or consents under or in respect of this Agreement
or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce
or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder
of
any Note, and (b) the costs and expenses, including financial advisors’
fees, incurred in connection with the insolvency or bankruptcy of the Company
or
any Subsidiary or in connection with any work-out or restructuring of the
transactions contemplated hereby and by the Notes. The Company will pay, and
will save each Purchaser, and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses if any, of brokers and finders
(other
than those, if any, retained by a Purchaser or other holder in connection with
its purchase of the Notes).
15.2. Survival.
The
obligations of the Company under this Section 15 will survive the payment
or transfer of any Note, the enforcement, amendment or waiver of any provision
of this Agreement or the Notes, and the termination of this
Agreement.
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16.
|
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES;
ENTIRE AGREEMENT.
|
All
representations and warranties contained herein shall survive the execution
and
delivery of this Agreement and the Notes, the purchase or transfer by any
Purchaser of any Note or portion thereof or interest therein and the payment
of
any Note, and may be relied upon by any subsequent holder of any such Note,
regardless of any investigation made at any time by or on behalf of any
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of
the
Company under this Agreement. Subject to the preceding sentence, this Agreement
and the Notes embody the entire agreement and understanding between the
Purchasers and the Company and supersede all prior agreements and understandings
relating to the subject matter hereof.
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17.
|
17.1. Requirements.
This
Agreement and the Notes may be amended, and the observance of any term hereof
or
of the Notes may be waived (either retroactively or prospectively), with (and
only with) the written consent of the Company and the Required Holders, except
that (a) no amendment or waiver of any of the provisions of Section 6
hereof, or any defined term (as it is used therein), will be effective as to
any
Purchaser unless consented to by such Purchaser in writing, and (b) no such
amendment or waiver may, without the written consent of all of the holders
of
Notes at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or rescission, change the
amount or time of any prepayment or payment of principal of, or reduce the
rate
or change the time of payment or method of computation of interest (if such
change in the method of computation of interest results in a decrease in the
interest rate) or of the Make-Whole Amount on, the Notes, (ii) change the
percentage of the principal amount of the Notes the holders of which are
required to consent to any such amendment or waiver, or (iii) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
(a) Solicitation.
The Company will provide
each holder of the Notes (irrespective of the amount of Notes then owned by
it)
with sufficient information, sufficiently far in advance of the date a decision
is required, to enable such holder to make an informed and considered decision
with respect to any proposed amendment, waiver or consent in respect of any
of
the provisions hereof, or of the Notes. The
Company
will deliver
executed or true and correct copies of each amendment, waiver or consent
effected pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is executed and
delivered by, or receives the consent or approval of, the requisite holders
of
Notes.
(b) Payment.
The Company will not
directly or indirectly pay or cause to be paid any remuneration, whether by
way
of supplemental or additional interest, fee or otherwise, or grant any security
or provide other credit support, to any holder of Notes as consideration for
or
as an inducement to the entering into by any holder of Notes of any waiver
or
amendment of any of the terms and provisions hereof unless such remuneration
is
concurrently paid, or security is concurrently granted or other credit support
is concurrently provided, on the same terms, ratably to each holder of Notes
then outstanding even if such holder did not consent to such waiver or
amendment.
(c) Consent
in
Contemplation of Transfer. Any
consent made
pursuant to this Section 17 by a holder of Notes that has transferred or has
agreed to transfer its Notes to the Company, any Subsidiary or any Affiliate
of
the Company and has provided or has agreed to provide such written consent
as a
condition to such transfer shall be void and of no force or effect except solely
as to such holder, and any amendments effected or waivers granted or to be
effected or granted that would not have been or would not be so effected or
granted but for such consent (and the consents of all other holders of Notes
that were acquired under the same or similar conditions) shall be void and
of no
force or effect except solely as to such holder.
17.3. Binding
Effect, Etc.
Any
amendment or waiver consented to as provided in this Section 17 applies
equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note
has
been marked to indicate such amendment or waiver. No such amendment or waiver
will extend to or affect any obligation, covenant, agreement, Default or Event
of Default not expressly amended or waived or impair any right consequent
thereon. No course of dealing between the Company and the holder of any Note
nor
any delay in exercising any rights hereunder or under any Note shall operate
as
a waiver of any rights of any holder of such Note. As used herein, the term
“this
Agreement” and references thereto shall mean this Agreement as it may from time
to time be amended or supplemented.
17.4. Notes
Held by Company,
Etc.
Solely
for the purpose of determining whether the holders of the requisite percentage
of the aggregate principal amount of Notes then outstanding approved or
consented to any amendment, waiver or consent to be given under this Agreement
or the Notes, or have directed the taking of any action provided herein or
in
the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by the Company or any of its Affiliates shall
be
deemed not to be outstanding.
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18.
|
All
notices and communications provided for hereunder shall be in writing and sent
(a) by fax if the sender on the same day sends a confirming copy of such
notice by a recognized overnight delivery service (with charges prepaid),
(b) by a recognized overnight delivery service (charges prepaid) or (c) by
a posting through an Electronic Distribution Service, if the sender on the
same
day sends or causes to be sent notice to each holder of Notes of such posting
by
electronic mail. Any such notice must be sent:
(i) if
to any Purchaser or its
nominee, to such Purchaser or its nominee at the fax number or address or,
in
the case of clause (c) above, the e-mail address specified for such
communications in Schedule A to this Agreement, or at such other address or
e-mail address as such Purchaser or nominee shall have specified to the Company
in writing pursuant to this Section 18;
(ii) if
to any other holder of
any Note, to such holder at such address or, in the case of clause (c) above,
such e-mail address as such other holder shall have specified to the Company
in
writing pursuant to this Section 18; or
(iii) if
to the Company, to the
Company at its address set forth at the beginning hereof to the attention of
Chief Financial Officer, with a copy to the General Counsel, or at such other
address as the Company shall have specified to the holder of each Note in
writing.
Notices
under this
Section 18 will be deemed given only when actually received.
This
Agreement and all documents relating thereto, including, without limitation,
(a) consents, waivers and modifications that may hereafter be executed,
(b) documents received by any Purchaser at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, electronic,
digital, or other similar process and such Purchaser may destroy any original
document so reproduced. The Company agrees and stipulates that, to the extent
permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by such Purchaser in the regular course of business)
and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction
to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
For
the purposes of this Section 20, “Confidential
Information”
means
information
delivered to any Purchaser by or on behalf of the Company or any Subsidiary
in
connection with the transactions contemplated by or otherwise pursuant to this
Agreement that is proprietary in
nature
and that was clearly marked or labeled or otherwise adequately identified when
received by such Purchaser as being confidential information of the Company
or
such Subsidiary, provided
that such term does not
include information that (a) was publicly known (other than through the
wrongful disclosure by any Purchaser) or otherwise known to such Purchaser
prior
to the time of such disclosure from a source other than the Company, its
Subsidiaries or any Affiliate or agent of the Company or any Subsidiary known
by
such Purchaser to be an Affiliate or agent thereof, (b) subsequently
becomes publicly known through no act or omission by such Purchaser or any
person acting on such Purchaser’s behalf, (c) otherwise becomes known to
such Purchaser other than through disclosure by the Company or any Subsidiary,
or any Affiliate or agent of the Company or any Subsidiary known by such
Purchaser to be an Affiliate or agent thereof or (d) constitutes financial
statements delivered to such Purchaser under Section 7.1 that are otherwise
publicly available. Each Purchaser will maintain the confidentiality of such
Confidential Information in accordance with procedures adopted by such Purchaser
in good faith to protect confidential information of third parties delivered
to
such Purchaser, provided
that such Purchaser may
deliver or disclose Confidential Information to (i) its directors,
officers, employees, agents, attorneys, trustees and affiliates (to the extent
such disclosure reasonably relates to the administration of the investment
represented by its Notes), (ii) its financial advisors and other
professional advisors who agree to hold confidential the Confidential
Information substantially in accordance with the terms of this Section 20,
(iii) any other holder of any Note, (iv) any Institutional Investor to
which it sells or offers to sell such Note or any part thereof or any
participation therein (if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the provisions of this
Section 20), (v) any Person from which it offers to purchase any
security of the Company (if such Person has agreed in writing prior to its
receipt of such Confidential Information to be bound by the provisions of this
Section 20), (vi) any federal or state regulatory authority having
jurisdiction over such Purchaser, (vii) the National Association of
Insurance Commissioners (including its Securities Valuation Office) or any
similar organization, or any nationally recognized rating agency that requires
access to information about such Purchaser’s investment portfolio, or
(viii) any other Person to which such delivery or disclosure may be
necessary or appropriate (w) to effect compliance with any law, rule,
regulation or order applicable to such Purchaser, (x) in response to any
subpoena or other legal process, (y) in connection with any litigation to
which such Purchaser is a party or (z) if an Event of Default has occurred
and is continuing, to the extent such Purchaser may reasonably determine such
delivery and disclosure to be necessary or appropriate in the enforcement or
for
the protection of the rights and remedies under such Purchaser’s Notes and this
Agreement; provided,
that such Purchaser
shall, unless prohibited by law, notify the Company of any disclosure required
pursuant to clause (x) or (y) above as far in advance as reasonably practicable
to enable the Company to seek a protective order or other appropriate relief.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 20
as though it were a party to this Agreement. On reasonable request by the
Company in connection with the delivery to any holder of a Note of information
required to be delivered to such holder under this Agreement or requested by
such holder (other than a holder that is a party to this Agreement or its
nominee), such holder will enter into an agreement with the Company embodying
the provisions of this Section 20.
Each
Purchaser shall have the right to substitute any one of its Affiliates as the
purchaser of the Notes that it has agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both such Purchaser
and
such Affiliate, shall contain such Affiliate’s agreement
to be
bound by this Agreement and shall contain a confirmation by such Affiliate
of
the accuracy with respect to it of the representations set forth in Section
6.
Upon receipt of such notice, any reference to such Purchaser in this Agreement
(other than in this Section 21), shall be deemed to refer to such Affiliate
in
lieu of such original Purchaser. In the event that such Affiliate is so
substituted as a Purchaser hereunder and such Affiliate thereafter transfers
to
such original Purchaser all of the Notes then held by such Affiliate, upon
receipt by the Company of notice of such transfer, any reference to such
Affiliate as a “Purchaser” in this Agreement (other than in this Section 21),
shall no longer be deemed to refer to such Affiliate, but shall refer to such
original Purchaser, and such original Purchaser shall again have all the rights
of an original holder of the Notes under this Agreement.
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22.
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22.1. Successors
and Assigns.
All
covenants and other agreements contained in this Agreement by or on behalf
of
any of the parties hereto bind and inure to the benefit of their respective
successors and assigns (including, without limitation, any subsequent holder
of
a Note) whether so expressed or not.
Anything
in this Agreement
or the Notes to the contrary notwithstanding (but without limiting the
requirement in Section 8.2 that the notice of any optional prepayment
specify a Business Day as the date fixed for such prepayment), any payment
of
principal of or Make-Whole Amount or interest on any Note that is due on a
date
other than a Business Day shall be made on the next succeeding Business Day
without including the additional days elapsed in the computation of the interest
payable on such next succeeding Business Day; provided
that if the maturity date
of any Note is a date other than a Business Day, the payment otherwise due
on
such maturity date shall be made on the next succeeding Business Day and shall
include the additional days elapsed in the computation of interest payable
on
such next succeeding Business Day.
22.3. Accounting
Terms.
All
accounting terms used herein which are not expressly defined in this Agreement
have the meanings respectively given to them in accordance with GAAP. Except
as
otherwise specifically provided herein, (i) all computations made pursuant
to this Agreement shall be made in accordance with GAAP, and (ii) all
financial statements shall be prepared in accordance with GAAP.
22.4. Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
22.5. Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
For
the avoidance of doubt, all Schedules and Exhibits attached to this Agreement
shall be deemed to be a part hereof.
22.6. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than
all, but together signed by all, of the parties hereto.
22.7. Governing
Law.
This
Agreement shall be construed and enforced in accordance with, and the rights
of
the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit
the application of the laws of a jurisdiction other than such
State.
22.8. Jurisdiction
and Process; Waiver of Jury
Trial.
(a) The
Company irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal
court
sitting in the Borough of Manhattan, The City of New York, over any suit, action
or proceeding arising out of or relating to this Agreement or the Notes. To
the
fullest extent permitted by applicable law, the Company irrevocably waives
and
agrees not to assert, by way of motion, as a defense or otherwise, any claim
that it is not subject to the jurisdiction of any such court, any objection
that
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any such court and any claim that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum.
(b) The
Company consents to
process being served by or on behalf of any holder of Notes in any suit, action
or proceeding of the nature referred to in
Section 22.8(a)
by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, return receipt requested, to it at
its
address specified in Section 18 or at such other address of which such
holder shall then have been notified pursuant to said Section. The Company
agrees that such service upon receipt (i) shall be deemed in every respect
effective service of process upon it in any such suit, action or proceeding
and
(ii) shall, to the fullest extent permitted by applicable law, be taken and
held to be valid personal service upon and personal delivery to it. Notices
hereunder shall be conclusively presumed received as evidenced by a delivery
receipt furnished by the United States Postal Service or any reputable
commercial delivery service.
(c) Nothing
in this
Section 22.8 shall affect the right of any holder of a Note to serve
process in any manner permitted by law, or limit any right that the holders
of
any of the Notes may have to bring proceedings against the Company in the courts
of any appropriate jurisdiction or to enforce in any lawful manner a judgment
obtained in one jurisdiction in any other jurisdiction.
(d) The
parties hereto hereby
waive trial by jury in any action brought on or with respect to this Agreement,
the Notes or any other document executed in connection herewith or
therewith.
*
* * * *
The
execution hereof by the Purchasers shall constitute a contract among the Company
and the Purchasers for the uses and purposes hereinabove set forth.
Very
truly
yours,
INTERNATIONAL
FLAVORS
& FRAGRANCES INC.
By
Name:______________________________________________
Title:
Accepted
as of the date first written above.
[PURCHASERS]
By_______________________________________
Name:
Title:
Defined
Terms
As
used herein, the following terms have the respective meanings set forth below
or
set forth in the Section hereof following such term:
“Additional
Interest”
means,
with respect to any Note, additional interest at the rate of 0.75% per annum
(75
basis points) added to the stated rate of interest on such Note, which shall
accrue and be payable in respect of such Note during each Additional Interest
Period on the same dates and in the same manner as all other accrued interest
on
such Note is payable.
“Additional
Interest
Period” means
the period (a)
commencing on (and including) the first day of the Fiscal Quarter following
any
Reference Period in respect of which the Net Debt to EBITDA Ratio calculated
as
of the last day of such Reference Period exceeds 3.50 to 1, and (b) ending
on
(and including) the last day of any subsequent Reference Period in respect
of
which the Net Debt to EBITDA Ratio calculated as of the last day of such
Reference Period does not exceed 3.50 to 1.
“Affiliate”
means, at any time, and
with respect to any Person, (a) any other Person that at such time directly
or indirectly through one or more intermediaries Controls, or is Controlled
by,
or is under common Control with, such first Person, and, with respect to the
Company, shall include (b) any Person beneficially owning or holding,
directly or indirectly, 15% or more of any class of voting or equity interests
of the Company or any Subsidiary or any Person of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
15% or more of any class of voting or equity interests. As used in this
definition, “Control”
means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly
requires, any reference to an “Affiliate”
is a reference to an
Affiliate of the Company.
“Agreement,
this”
is
defined in Section 17.3.
“Anti-Terrorism
Order”
means Executive Order No. 13,224 of September 24, 2001, Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or
Support Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
“Asset
Sale Prepayment
Date” is
defined in Section 8.7(a).
“Asset
Sale Prepayment
Offer”
is defined in Section 8.7(a).
“Business
Day”
means any day other than a Saturday, a Sunday or a day on which commercial
banks
in New York, New York are required or authorized to be closed.
“Capital
Lease”
means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of
a
liability in accordance with GAAP.
“Capital
Lease
Obligation” means,
with respect to
any Person and a Capital Lease, the amount of the obligation of such Person
as
the lessee under such Capital Lease which would, in accordance with GAAP, appear
as a liability on a balance sheet of such Person.
“Cash”
means, at any time,
“cash” (as defined in the Audit and Accounting Guides issued by the American
Institute of Certified Public Accountants of the United States of America,
as
amended from time to time) of the Company or any Subsidiary, including, without
limitation, as of the date of this Agreement, currency on hand, demand deposits
with financial institutions and other similar deposit accounts.
“Cash
Equivalents” means,
at any time, “cash
equivalents” (as defined in the Audit and Accounting Guides issued by the
American Institute of Certified Public Accountants of the United States of
America, as amended from time to time) of the Company or any Subsidiary,
including, without limitation, as of the date of this Agreement, short term
instruments having not more than three months to final maturity and highly
liquid instruments readily convertible to known amounts of cash.
“Closing”
is defined in
Section 3.
“Closing
Date” is
defined in Section 3.
“Code”
means the Internal
Revenue Code of 1986, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time.
“Company”
is defined in the
introductory paragraph hereof.
“Confidential
Information” is
defined in
Section 20.
“Consolidated
Debt”
means as of any date of determination the total amount of all Debt of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
“Consolidated
Debt
for Borrowed Money”
of a person means all
items that, in accordance with GAAP, would be classified as indebtedness on
a
consolidated balance sheet of such person other than any amounts which would
be
classified as indebtedness, in accordance with GAAP, which arise under any
current or consummated Hedge Agreements.
“Consolidated
EBITDA” for
the Company and its
Subsidiaries shall mean, for any relevant period, the result without duplication
of (a) Consolidated Net Income, plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense,
(ii)
income taxes, (iii) depreciation and amortization expense, (iv) all other
non-cash charges and (v) extraordinary or unusual losses, minus (c)
extraordinary or unusual gains added in determining Consolidated Net Income
for
such period, all determined on a consolidated basis in accordance with GAAP;
provided that if, during any period for which Consolidated EBITDA is being
determined, the Company or a Subsidiary has completed an acquisition or
divestiture Consolidated EBITDA shall be determined on the basis that (A) such
acquisition or divestiture occurred on the first day of such period, (B) any
non-recurring expenses associated with such acquisition or divestiture had
not
been incurred and (C) for the avoidance of doubt, any reductions
in
expenses expected to be achieved as a result of such acquisition or divestiture
will not be taken into account in giving pro forma effect thereto.
“Consolidated
Interest
Expense”
means, for any relevant
period, the aggregate of all interest expense deducted in the calculation of
Consolidated Net Income for such period determined in accordance with
GAAP.
“Consolidated
Net
Debt”
means as of any date of determination, the result of Consolidated Debt for
Borrowed Money of the Company and its Subsidiaries less Cash and Cash
Equivalents as determined on a consolidated basis in accordance with
GAAP.
“Consolidated
Net
Income”
means for any relevant period the consolidated net income (or loss) of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance
with GAAP.
“Consolidated
Total
Assets”
means, as of any date of determination, the total assets of the Company and
its
Subsidiaries which would be reflected on a consolidated balance sheet of the
Company and its Subsidiaries prepared as at such date in accordance with
GAAP.
“Debt”
means, with respect to
any Person, without duplication,
(a) its
liabilities for
borrowed money (including, without limitation, its reimbursement obligations
under bankers’ acceptances,
letters of credit and similar extensions of credit that have been drawn upon
and
are not subject to any contingency);
(b) its
liabilities for the
deferred purchase price of property acquired by such Person (excluding accounts
payable and other accrued liabilities arising in the ordinary course of business
but including, without limitation, all liabilities created or arising under
any
conditional sale or other title retention agreement with respect to any such
property);
(c) its
Capital Lease
Obligations;
(d) its
liabilities for
borrowed money secured by any Lien with respect to any property owned by such
Person (whether or not it has assumed or otherwise become liable for such
liabilities); and
(e) Guaranties
by such Person
with respect to liabilities of a Person that is not a Subsidiary of such first
Person of a type described in any of clauses (a) through (d)
hereof.
“Default”
means an event or
condition the occurrence or existence of which would, with the lapse of time
or
the giving of notice or both, become an Event of Default.
“Default
Rate”
means, with respect to the Notes of any Series, that rate of interest that
is 2%
per annum above the rate of interest then in effect for Notes of such
Series.
“Disclosure
Documents” is
defined in Section
5.3.
“Disposition
Value”
means, at any time, with respect to any property (a) in the case of property
that does not constitute Subsidiary Stock, the book value thereof, valued at
the
time of such disposition in good faith by the Company and (b) in the case of
property that constitutes Subsidiary Stock, an amount equal to that percentage
of book value of the assets of the Subsidiary that issued such stock as is
equal
to the percentage that the book value of such Subsidiary Stock represents of
the
book value of all of the outstanding capital stock of such Subsidiary (assuming,
in making such calculations, that all securities convertible into such capital
stock are so converted and giving full effect to all transactions that would
occur or be required in connection with such conversion) determined at the
time
of the disposition thereof, in good faith by the Company.
“Electronic
Distribution Service” means
IntraLinks® or a
comparable internet document posting and distribution service accessible by
the
holders of the Notes.
“Environmental
Laws”
means any and all federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or
the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges
to
waste or public systems.
“ERISA”
means the Employee
Retirement Income Security Act of 1974, as amended from time to time, and the
rules and regulations promulgated thereunder from time to time in
effect.
“ERISA
Affiliate” means
any trade or
business (whether or not incorporated) that is treated as a single employer
together with the Company under section 414 of the Code.
“Event
of
Default”
is defined in Section 11.
“Excess
Asset Sale
Amount”
is defined in Section 10.4.
“Exchange
Act”
means the Securities Exchange Act of 1934, as amended.
“Fair
Market Value”
means,
at any time and with respect to any property, the sale value of such property
that would be realized in an arm’s-length
sale at
such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell), as reasonably
determined in the good faith opinion of the Company’s board
of
directors.
“Fiscal
Quarter”
means
a
fiscal quarter of the Company.
“GAAP”
means those generally
accepted accounting principles as in effect from time to time in the United
States of America; provided that, if the Company notifies the Required Holders
that the Company wishes to amend any covenant (or the definition of any defined
term used therein) to eliminate the effect of any change in such generally
accepted accounting principles on the operation of such covenant or definition,
then the Company’s compliance with such covenant or the meaning of such
definition shall be determined on the basis of such generally accepted
accounting principles in effect immediately before the relevant change in
generally
accepted
accounting principles became effective, until either such notice is withdrawn
or
such covenant is amended in a manner satisfactory to the Company and the
Required Holders.
“Governmental
Authority” means
(a) the
government
of
(i) the
United States of
America or any state or other political subdivision thereof, or
(ii) any
jurisdiction in which
the Company or any Subsidiary conducts all or any part of its business, or
which
has jurisdiction over any properties of the Company or any Subsidiary,
or
(b) any
entity exercising
executive, legislative, judicial, regulatory or administrative functions of,
or
pertaining to, any such government.
“Guaranty”
means, with respect to
any Person, any obligation (except the endorsement in the ordinary course of
business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any Debt, dividend or other obligation
of
any other Person in any manner, whether directly or indirectly, including
(without limitation) obligations incurred through an agreement, contingent
or
otherwise, by such Person:
(a) to
purchase such Debt or
obligation or any property constituting security therefor primarily for the
purpose of assuring the owner of such Debt or obligation of the ability of
any
other Person to make payment of the Debt or obligation;
(b) to
advance or supply funds
(i) for the purchase or payment of such Debt or obligation, or (ii) to
maintain any working capital or other balance sheet condition or any income
statement condition of any other Person or otherwise to advance or make
available funds for the purchase or payment of such Debt or
obligation;
(c) to
lease properties or to
purchase properties or services primarily for the purpose of assuring the owner
of such Debt or obligation of the ability of any other Person to make payment
of
the Debt or obligation; or
(d) otherwise
to assure the
owner of such Debt or obligation against loss in respect thereof.
In
any
computation of the Debt or other liabilities of the obligor under any Guaranty,
the Debt or other obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor, provided
that the amount of such
Debt outstanding for purposes of this Agreement shall not exceed the maximum
amount of Debt that is the subject of such Guaranty.
“Hazardous
Material” means
any and all
pollutants, toxic or hazardous wastes or other substances that might pose a
hazard to health and safety, the removal of which may be required or the
generation, manufacture, refining, production, processing, treatment, storage,
handling,
transportation,
transfer,
use, disposal, release, discharge, spillage, seepage or filtration of which
is
or shall be restricted, prohibited or penalized by any applicable law including,
but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum, petroleum products, lead based paint, radon gas or similar
restricted, prohibited or penalized substances.
“Hedge
Agreements” means
interest rate swap,
cap or collar agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts and other similar
agreements.
“holder”
means, with respect to
any Note, the Person in whose name such Note is registered in the register
maintained by the Company pursuant to Section 13.1.
“INHAM
Exemption” is
defined in Section
6.3(e).
“Institutional
Investor” means
(a) any
original purchaser of a Note, (b) any holder of a Note holding (together
with one or more of its affiliates) more than $5,000,000 of the aggregate
principal amount of the Notes then outstanding and (c) any bank, trust
company or other financial institution, pension plan, investment company,
insurance company, broker or dealer, or other similar financial institution
or
entity, regardless of legal form.
“Investments”
shall mean all
investments, in cash or by delivery of property made, directly or indirectly
in
any Person, whether by acquisition of shares of capital stock, Debt or other
obligations or securities or by loan, advance, capital contribution or
otherwise.
“Lien”
means, with respect to
any Person, any mortgage, lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor, lender or other
secured party to or of such Person under any conditional sale or other title
retention agreement (other than an operating lease) or Capital Lease, upon
or
with respect to any property or asset of such Person (including, in the case
of
stock, any purchase option, call or similar right of a third party with respect
to such stock).
“Make-Whole
Amount”
shall have the meaning set forth in Section 8.6.
“Material”
means material in
relation to the business, operations, affairs, financial condition, assets
or
properties of the Company and its Subsidiaries taken as a whole.
“Material
Adverse
Effect”
means a material adverse effect on (a) the business, operations, affairs,
financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole, or (b) the ability of the Company to perform its
obligations under this Agreement and the Notes, or (c) the validity or
enforceability of this Agreement or the Notes.
“Material
Subsidiary”
means,
at any time, any Subsidiary of the Company which, together with all other
Subsidiaries of such Subsidiary, accounts for more than (i) 10% of
Consolidated Total Assets at such time or (ii) 10% of consolidated revenue
of the Company and its Subsidiaries for the Reference Period most recently
ended
at such time.
“Memorandum”
is defined in
Section 5.3.
“Multiemployer
Plan”
means any Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).
“NAIC
Annual
Statement” is
defined in Section
6.3(a).
“Net
Debt to EBITDA
Ratio”
means the ratio set forth in Section 10.1 hereof.
“Notes”
is defined in
Section 1.
“Officer’s
Certificate” means
a certificate of a
Senior Financial Officer or of any other officer of the Company whose
responsibilities extend to the subject matter of such certificate.
“Paying
Agency
Agreement” means
the Paying Agency
and Servicing Agreement, dated as of the date hereof, by and between the Company
and the Paying Agent.
“Paying
Agent”
means
Bank of America, N.A., as paying agent and servicer under the Paying Agency
Agreement and any successor in such capacity thereunder.
“PBGC”
means the Pension Benefit
Guaranty Corporation referred to and defined in ERISA or any successor
thereto.
“Person”
means an individual,
partnership, corporation, limited liability company, association, trust,
unincorporated organization, or a government or agency or political subdivision
thereof.
“Plan”
means an “employee
benefit plan” (as defined in Section 3(3) of ERISA), other than a
Multiemployer Plan, that is or, within the preceding five years, has been
established or maintained, or to which contributions are or, within the
preceding five years, have been made or required to be made, by the Company
or
any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate
may have any liability.
“property”
or “properties”
means, unless otherwise
specifically limited, real or personal property of any kind, tangible or
intangible, choate or inchoate.
“PTE”
is
defined in Section 6.3(a).
“Purchasers”
is defined in the
introductory paragraph hereof.
“QPAM
Exemption” is
defined in Section
6.3(d).
“Ratable
Portion”
means, in respect of any offered prepayment of any Note in accordance with
Section 8.7 hereof, an amount equal to the product of (a) the aggregate net
proceeds received from any sale, lease or other disposition of assets of the
Company or any Subsidiary being applied to the prepayment or retirement of
Senior Debt multiplied by (b) a fraction the numerator of which is the
outstanding principal amount of such Note at the time of such offered prepayment
and the denominator of which is the aggregate principal amount of Senior Debt
of
the Company and its Subsidiaries at such time determined on a consolidated
basis
in accordance with GAAP.
“Reference
Period”
means any period of four complete consecutive Fiscal Quarters of the
Company.
“Required
Holders”
means, at any time, the holders of at least a majority in principal amount
of
the Notes of all Series at the time outstanding (exclusive of Notes then owned
by the Company or any of its Affiliates and any Notes held by parties who are
contractually required to abstain from voting with respect to matters affecting
the holders of the Notes).
“Responsible
Officer”
means any Senior Financial Officer and any other officer of the Company with
responsibility for the administration of the relevant portion of this
Agreement.
“Securities
Act”
means the Securities Act of 1933, as amended from time to time.
“Senior
Debt”
means, as of the date of any determination thereof, all Consolidated Debt,
other
than Subordinated Debt.
“Senior
Financial
Officer”
means the chief financial officer, principal accounting officer, treasurer
or
comptroller of the Company.
“Series”
means
any series of Notes issued pursuant to this Agreement.
“Series
A Notes”
means
the Notes designated as “Series A” in the chart set forth in Section 1.1,
together with any such Notes issued in substitution therefor pursuant to Section
13 of this Agreement, as amended, restated or otherwise modified from time
to
time.
“Series
B Notes”
means
the Notes designated as “Series B” in the chart set forth in Section 1.1,
together with any such Notes issued in substitution therefor pursuant to Section
13 of this Agreement, as amended, restated or otherwise modified from time
to
time.
“Series
C Notes”
means
the Notes designated as “Series C” in the chart set forth in Section 1.1,
together with any such Notes issued in substitution therefor pursuant to Section
13 of this Agreement, as amended, restated or otherwise modified from time
to
time.
“Series
D Notes”
means
the Notes designated as “Series D” in the chart set forth in Section 1.1,
together with any such Notes issued in substitution therefor pursuant to Section
13 of this Agreement, as amended, restated or otherwise modified from time
to
time.
“Source”
is
defined in Section 6.3.
“Subordinated
Debt”
means all unsecured Debt of the Company which shall contain or have applicable
thereto subordination provisions providing for the subordination thereof to
other Debt of the Company (including, without limitation, the obligations of
the
Company under this Agreement or the Notes).
“Subsidiary”
means, as to any Person,
any corporation, association or other business entity in which such Person
or
one or more of its Subsidiaries or such Person and one or more of its
Subsidiaries owns sufficient equity or voting interests to enable it or them
(as
a group) ordinarily, in the absence of contingencies, to elect a majority of
the
directors (or Persons
performing
similar
functions) of such entity, and any partnership or joint venture if more than
a
50% interest in the profits or capital thereof is owned by such Person or one
or
more of its Subsidiaries or such Person and one or more of its Subsidiaries
(unless such partnership or joint venture can and does ordinarily take major
business actions without the prior approval of such Person or one or more of
its
Subsidiaries). Unless the context otherwise clearly requires, any reference
to a
“Subsidiary” is a reference to a Subsidiary of the Company.
“Subsidiary
Debt”
means (without duplication) Debt of Subsidiaries other than (i) Debt owed to
the
Company or any other Subsidiary and (ii) for a period of 18 months after a
Person becomes a Subsidiary, all Debt of such Person outstanding at the time
it
becomes a Subsidiary provided that such Debt was not incurred in contemplation
of such Person becoming a Subsidiary.
“Subsidiary
Stock”
means, with respect to any Person, the stock (or any options or warrants to
purchase stock or other securities exchangeable for or convertible into stock)
of any Subsidiary of such Person.
“Successor
Corporation” is
defined in Section
10.5(b)(i).
“USA
Patriot
Act”
means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in effect.
“Yen
Facility
Debt”
means Debt of International Flavors & Fragrances (Japan) Ltd. (“IFF
Japan”),
as borrower, and the Debt of other Subsidiaries from time to time, as
guarantors, in respect of not more than ¥15,150,000,000 in aggregate principal
amount of the Guaranteed Senior Notes (the “IFF
Japan
Notes”)
issued by IFF Japan under those certain separate Note Purchase Agreements,
each
dated as of November 19, 2001, among IFF Japan, the Company and each of the
purchasers of the IFF Japan Notes party thereto, as amended and in effect from
time to time, together with any Yen denominated replacements or refinancings
by
IFF Japan of the IFF Japan Notes in an aggregate principal amount not to exceed
¥15,150,000,000.
Schedule
B-9
EXHIBIT
4.8
Exhibit
1
[Form
of Series A Senior Note]
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
AN
EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE UNDER
SUCH
ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED
THE MERITS OF THIS NOTE.
International
Flavors & Fragrances Inc.
5.89%
Series A Senior Note, due July 12, 2009
|
No.
RA-[_________]
|
[Date]
|
|
$[_____________]
|
PPN:
459506 A * 2
|
FOR
VALUE RECEIVED, the undersigned,
INTERNATIONAL FLAVORS & FRAGRANCES INC. (herein called the
“Company”), a corporation organized and existing under the laws of the
State of the State of New York, 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 12, 2009 with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance hereof at the rate of 5.89% per
annum (subject to the payment of Additional Interest during each Additional
Interest Period, as such terms are defined in the Note Purchase Agreement
referred to below) from the date hereof, payable semi-annually, on the 12th
day
of July and January in each year and at maturity, commencing with the July
12 or
January 12 next succeeding the date hereof, until the principal hereof shall
have become due and payable, and (b) to the extent permitted by law, at a
rate per annum from time to time equal to the Default Rate (as defined in
the
Note Purchase Agreement referred to below), on any overdue payment of interest
and, during the continuance of an Event of Default, on the unpaid balance
hereof
and on 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).
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 12, 2006 (as from time to time amended, supplemented
or modified, 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
(i) agreed to the confidentiality provisions set forth in Section 20
of the Note Purchase Agreement and (ii) made the representations set forth
in Section 6 of the Note Purchase Agreement (except that, if such holder is
not the initial holder hereof, it shall be deemed either to have made the
representations in Sections 6.1(a) and 6.2 or to have represented that it is
a
qualified institutional buyer, as defined in Rule 144A under the Securities
Act,
in addition to the other representations in Section 6). Unless otherwise
indicated, capitalized terms used in this Note shall have the respective
meanings ascribed to such terms in 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 optional
prepayment, in whole or from time to time in part, 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, and the rights of the issuer and holder hereof
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 require the application of
the
laws of a jurisdiction other than such State.
|
INTERNATIONAL
FLAVORS &
FRAGRANCES
INC.
|
|
By___________________________________________
Name:
Title:
|
Exhibit
2
[Form
of Series B Senior Note]
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
AN
EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE UNDER
SUCH
ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED
THE MERITS OF THIS NOTE.
International
Flavors & Fragrances Inc.
5.96%
Series B Senior Note, due July 12, 2011
|
No.
RB-[_________]
|
[Date]
|
|
$[____________]
|
PPN:
459506 A@ 0
|
FOR
VALUE RECEIVED, the undersigned,
INTERNATIONAL FLAVORS & FRAGRANCES INC. (herein called the
“Company”), a corporation organized and existing under the laws of the
State of the State of New York, 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 12, 2011 with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance hereof at the rate of 5.96% per
annum (subject to the payment of Additional Interest during each Additional
Interest Period, as such terms are defined in the Note Purchase Agreement
referred to below) from the date hereof, payable semi-annually, on the 12th
day
of July and January in each year and at maturity, commencing with the July
12 or
January 12 next succeeding the date hereof, until the principal hereof shall
have become due and payable, (b) to the extent permitted by law, at a rate
per annum from time to time equal to the Default Rate (as defined in the Note
Purchase Agreement referred to below), on any overdue payment of interest and,
during the continuance of an Event of Default, on the unpaid balance hereof
and
on 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).
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 the Series B Senior
Notes (herein called the “Notes”) issued pursuant to the Note Purchase
Agreement, dated as of July 12, 2006 (as from time to time amended, supplemented
or modified, 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
(i) agreed to the confidentiality provisions set forth in Section 20
of the Note Purchase Agreement and (ii) made the representations set forth
in Section 6 of the Note Purchase Agreement (except that, if such holder is
not
the initial holder hereof, it shall be deemed either to have made the
representations in Sections 6.1(a) and 6.2 or to have represented that it is
a
qualified institutional buyer, as defined in Rule 144A under the Securities
Act,
in addition to the other representations in Section 6). Unless otherwise
indicated, capitalized terms used in this Note shall have the respective
meanings ascribed to such terms in 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 optional
prepayment, in whole or from time to time in part, 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, and the rights of the issuer
and holder hereof 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 require
the application of the laws of a jurisdiction other than such
State.
|
INTERNATIONAL
FLAVORS &
FRAGRANCES
INC.
|
|
By________________________________
Name:
Title:
|
Exhibit
3
[Form
of Series C Senior Note]
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
AN
EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE UNDER
SUCH
ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED
THE MERITS OF THIS NOTE.
International
Flavors & Fragrances Inc.
6.05%
Series C Senior Note, due July 12, 2013
|
No.
RC-[_________]
|
[Date]
|
|
$[____________]
|
PPN:
459506 A# 8
|
FOR
VALUE RECEIVED, the undersigned,
INTERNATIONAL FLAVORS & FRAGRANCES INC. (herein called the
“Company”), a corporation organized and existing under the laws of the
State of the State of New York, 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 12, 2013 with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance hereof at the rate of 6.05% per
annum (subject to the payment of Additional Interest during each Additional
Interest Period, as such terms are defined in the Note Purchase Agreement
referred to below) from the date hereof, payable semi-annually, on the 12th
day
of July and January in each year and at maturity, commencing with the July
12 or
January 12 next succeeding the date hereof, until the principal hereof shall
have become due and payable, (b) to the extent permitted by law, at a rate
per annum from time to time equal to the Default Rate (as defined in the Note
Purchase Agreement referred to below), on any overdue payment of interest and,
during the continuance of an Event of Default, on the unpaid balance hereof
and
on 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).
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 the Series C Senior
Notes (herein called the “Notes”) issued pursuant to the Note Purchase
Agreement, dated as of July 12, 2006 (as from time to time amended, supplemented
or modified, 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
(i) agreed to the confidentiality provisions set forth in Section 20
of the Note Purchase Agreement and (ii) made the representations set forth
in Section 6 of the Note Purchase Agreement (except that, if such holder is
not
the initial holder hereof, it shall be deemed either to have made the
representations in Sections 6.1(a) and 6.2 or to have represented that it is
a
qualified institutional buyer, as defined in Rule 144A under the Securities
Act,
in addition to the other representations in Section 6). Unless otherwise
indicated, capitalized terms used in this Note shall have the respective
meanings ascribed to such terms in 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 optional
prepayment, in whole or from time to time in part, 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, and the rights of the issuer
and holder hereof 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 require
the application of the laws of a jurisdiction other than such
State.
|
INTERNATIONAL
FLAVORS &
FRAGRANCES
INC.
|
|
By________________________________
Name:
Title:
|
Exhibit
4
[Form
of Series D Senior Note]
THIS
NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE
SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SUCH ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
AN
EXEMPTION FROM SUCH REGISTRATIONS AND/OR QUALIFICATIONS IS AVAILABLE UNDER
SUCH
ACT AND SUCH LAWS. NEITHER THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION
NOR ANY OTHER FEDERAL OR STATE REGULATORY AUTHORITY HAS PASSED ON OR ENDORSED
THE MERITS OF THIS NOTE.
International
Flavors & Fragrances Inc.
6.14%
Series D Senior Note, due July 12, 2016
|
No.
RD-[_________]
|
[Date]
|
|
$[____________]
|
PPN:
459506 B* 1
|
FOR
VALUE RECEIVED, the undersigned,
INTERNATIONAL FLAVORS & FRAGRANCES INC. (herein called the
“Company”), a corporation organized and existing under the laws of the
State of the State of New York, 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 12, 2016 with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance hereof at the rate of 6.14% per
annum (subject to the payment of Additional Interest during each Additional
Interest Period, as such terms are defined in the Note Purchase Agreement
referred to below) from the date hereof, payable semi-annually, on the 12th
day
of July and January in each year and at maturity, commencing with the July
12 or
January 12 next succeeding the date hereof, until the principal hereof shall
have become due and payable, (b) to the extent permitted by law, at a rate
per annum from time to time equal to the Default Rate (as defined in the Note
Purchase Agreement referred to below), on any overdue payment of interest and,
during the continuance of an Event of Default, on the unpaid balance hereof
and
on 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).
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.
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 the Series D Senior
Notes (herein called the “Notes”) issued pursuant to the Note Purchase
Agreement, dated as of July 12, 2006 (as from time to time amended, supplemented
or modified, 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
(i) agreed to the confidentiality provisions set forth in Section 20
of the Note Purchase Agreement and (ii) made the representations set forth
in Section 6 of the Note Purchase Agreement (except that, if such holder is
not
the initial holder hereof, it shall be deemed either to have made the
representations in Sections 6.1(a) and 6.2 or to have represented that it is
a
qualified institutional buyer, as defined in Rule 144A under the Securities
Act,
in addition to the other representations in Section 6). Unless otherwise
indicated, capitalized terms used in this Note shall have the respective
meanings ascribed to such terms in 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 optional
prepayment, in whole or from time to time in part, 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, and the rights of the issuer
and holder hereof 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 require
the application of the laws of a jurisdiction other than such
State.
|
INTERNATIONAL
FLAVORS &
FRAGRANCES
INC.
|
|
By________________________________
Name:
Title:
|
Exhibit
4-3