Exhibit 4.1
Execution Copy
$150,000,000 Senior Notes
$50,000,000 2.91% Series 2011A Senior Notes, Tranche A,
due August 18, 2016
$50,000,000 3.59% Series 2011A Senior Notes, Tranche B,
due August 18, 2018
$50,000,000 4.28% Series 2011A Senior Notes, Tranche C,
due August 18, 2021
Note Purchase Agreement
Dated as of August 18, 2011
Table of Contents
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Heading |
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Section 1. Authorization of Notes |
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1 |
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Section 1.1. |
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Description of Notes |
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1 |
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Section 1.2. |
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Interest Rate |
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2 |
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Section 2. Sale and Purchase of Notes |
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Section 2.1. |
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Series 2011A Notes |
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2 |
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Section 2.2. |
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Additional Series of Notes |
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2 |
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Section 2.3. |
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Subsidiary Guaranty |
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Section 3. Closing |
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Section 4. Conditions to Closing |
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Section 4.1. |
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Representations and Warranties |
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5 |
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Section 4.2. |
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Performance; No Default |
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5 |
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Section 4.3. |
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Compliance Certificates |
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6 |
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Section 4.4. |
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Opinions of Counsel |
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Section 4.5. |
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Purchase Permitted By Applicable
Law, Etc. |
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6 |
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Section 4.6. |
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Sale of Other Notes |
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Section 4.7. |
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Payment of Special Counsel Fees |
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Section 4.8. |
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Private Placement Number |
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Section 4.9. |
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Changes in Corporate Structure |
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Section 4.10. |
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Subsidiary Guaranty |
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Section 4.11. |
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Funding Instructions |
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Section 4.12. |
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Proceedings and Documents |
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Section 5. Representations and Warranties of the Company |
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Section 5.1. |
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Organization; Power and Authority |
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Section 5.2. |
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Authorization, Etc. |
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8 |
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Section 5.3. |
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Disclosure |
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8 |
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Section 5.4. |
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Organization and Ownership of Subsidiaries |
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8 |
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Section 5.5. |
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Financial Statements; Material Liabilities |
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Section 5.6. |
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Compliance with Laws, Other
Instruments, Etc. |
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Section 5.7. |
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Governmental Authorizations, Etc. |
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Section 5.8. |
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Litigation; Observance of Statutes and Orders |
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Section 5.9. |
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Taxes |
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10 |
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Section 5.10. |
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Title to Property; Leases |
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10 |
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Section 5.11. |
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Licenses, Permits, Etc. |
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10 |
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Section 5.12. |
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Compliance with ERISA |
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10 |
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Section 5.13. |
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Private Offering by the Company |
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11 |
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Section 5.14. |
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Use of Proceeds; Margin Regulations |
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Section 5.15. |
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Existing Indebtedness |
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12 |
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Section 5.16. |
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Foreign Assets Control Regulations |
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12 |
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Section 5.17. |
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Status under Certain Statutes |
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13 |
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Section 5.18. |
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Notes Rank Pari Passu |
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13 |
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Section 6. Representations of the Purchaser |
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13 |
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Section 6.1. |
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Purchase for Investment |
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13 |
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Section 6.2. |
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Accredited Investor |
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13 |
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Section 6.3. |
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Source of Funds |
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13 |
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Section 7. Information as to Company |
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Section 7.1. |
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Financial and Business Information |
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Section 7.2. |
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Officer’s Certificate |
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18 |
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Section 7.3. |
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Visitation |
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Section 8. Payment of the Notes |
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Section 8.1. |
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Required Prepayments |
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Section 8.2. |
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Optional Prepayments with Make-Whole Amount |
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Section 8.3. |
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Allocation of Partial Prepayments |
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20 |
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Section 8.4. |
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Maturity; Surrender, Etc. |
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20 |
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Section 8.5. |
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Purchase of Notes |
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20 |
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Section 8.6. |
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Make-Whole Amount for the Series A Notes |
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21 |
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Section 8.7. |
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Change in Control |
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22 |
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Section 9. Affirmative Covenants |
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23 |
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Section 9.1. |
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Compliance with Law |
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Section 9.2. |
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Insurance |
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Section 9.3. |
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Maintenance of Properties |
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Section 9.4. |
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Payment of Taxes and Claims |
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24 |
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Section 9.5. |
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Corporate Existence, Etc. |
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Section 9.6. |
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Notes to Rank Pari Passu |
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24 |
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Section 9.7. |
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Additional Subsidiary Guarantors |
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Section 9.8. |
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Designation of Subsidiaries |
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Section 9.9. |
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Books and Records |
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25 |
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Section 10. Negative Covenants |
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Section 10.1. |
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Leverage Ratio |
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26 |
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Section 10.2. |
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Interest Coverage Ratio |
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26 |
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Section 10.3. |
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Priority Indebtedness |
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26 |
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Section 10.4. |
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Limitation on Liens |
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26 |
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Section 10.5. |
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Sales of Asset |
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28 |
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Section 10.6. |
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Merger and Consolidation |
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29 |
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Section 10.7. |
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Transactions with Affiliates |
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30 |
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Section 10.8. |
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Terrorism Sanctions Regulations |
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Section 10.9. |
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Restricted Subsidiaries |
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31 |
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Section 11. Events of Default |
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Section 12. Remedies on Default, Etc. |
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34 |
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Section 12.1. |
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Acceleration |
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Section 12.2. |
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Other Remedies |
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34 |
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Section 12.3. |
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Rescission |
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Section 12.4. |
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No Waivers or Election of Remedies,
Expenses, Etc. |
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35 |
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Section 13. Registration; Exchange; Substitution of Notes |
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Section 13.1. |
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Registration of Notes |
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Section 13.2. |
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Transfer and Exchange of Notes |
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Section 13.3. |
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Replacement of Notes |
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36 |
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Section 14. Payments on Notes |
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Section 14.1. |
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Place of Payment |
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Section 14.2. |
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Home Office Payment |
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36 |
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Section 15.
Expenses, Etc. |
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Section 15.1. |
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Transaction Expenses |
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37 |
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Section 15.2. |
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Survival |
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37 |
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Section 16. Survival of Representations and Warranties; Entire Agreement |
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38 |
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Section 17. Amendment and Waiver |
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38 |
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Section 17.1. |
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Requirements |
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38 |
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Section 17.2. |
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Solicitation of Holders of Notes |
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39 |
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Section 17.3. |
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Binding Effect, Etc. |
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Section 17.4. |
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Notes Held by Company, Etc. |
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39 |
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Section 18. Notices |
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40 |
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Section 19. Reproduction of Documents |
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40 |
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Section 20. Confidential Information |
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41 |
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Section 21. Substitution of Purchaser |
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42 |
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Section 22. Miscellaneous |
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42 |
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Section 22.1. |
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Successors and Assigns |
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42 |
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Section 22.2. |
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Payments Due on Non-Business Days |
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42 |
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Section 22.3. |
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Accounting Terms |
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43 |
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Section 22.4. |
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Severability |
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43 |
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Section 22.5. |
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Construction |
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43 |
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Section 22.6. |
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Counterparts |
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44 |
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Section 22.7. |
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Governing Law |
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44 |
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Section 22.8. |
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Jurisdiction and Process; Waiver of Jury Trial |
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44 |
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Schedule A
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Information Relating to Purchasers |
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Schedule B
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Defined Terms |
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Schedule 4.9
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Changes in Corporate Structure |
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Schedule 5.4
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Subsidiaries of the Company, Ownership of Subsidiary Stock,
Affiliates |
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Schedule 5.5
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Financial Statements |
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Schedule 5.15
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—
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Existing Indebtedness |
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Schedule 10.4
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Existing Liens |
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Exhibit 1.1(a)
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Form of 2.91% Series 2011A Senior Notes, Tranche A, due August 18,
2016 |
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Exhibit 1.1(b)
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Form of 3.59% Series 2011A Senior Notes, Tranche B, due August 18,
2018 |
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Exhibit 1.1(c)
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Form of 4.28% Series 2011A Senior Notes, Tranche C, due August 18,
2021 |
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Exhibit 2.3
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Form of Subsidiary Guaranty |
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Exhibit 4.4(a)
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Form of Opinion of Corporate Secretary to the Company |
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Exhibit 4.4(b)
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Form of Opinion of Special Counsel to the Company |
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Exhibit 4.4(c)
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Form of Opinion of Special Counsel to the Purchasers |
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Exhibit S
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Form of Supplement to Note Purchase Agreement |
-v-
Molex Incorporated
0000 Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
$150,000,000 Senior Notes
$50,000,000 2.91% Series 2011A Senior Notes, Tranche A,
due August 18, 2016
$50,000,000 3.59% Series 2011A Senior Notes, Tranche B,
due August 18, 2018
$50,000,000 4.28% Series 2011A Senior Notes, Tranche C,
due August 18, 2021
Dated as of
August 18, 2011
To the Purchasers listed in
the attached Schedule A:
Ladies and Gentlemen:
Molex Incorporated, a Delaware corporation (the
“Company”), agrees with the
Purchasers listed in the attached Schedule A (the
“Purchasers”) to this Note Purchase Agreement
(this
“Agreement”) as follows:
Section 1. Authorization of Notes.
Section 1.1. Description of Notes. The Company will authorize the issue and sale of the
following Senior Notes:
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Aggregate |
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Series and/or |
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Principal |
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Issue |
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Tranche |
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Amount |
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Interest Rate |
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Maturity Date |
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Senior Notes |
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Series 2011A,
Tranche A (“Tranche A Notes”) |
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$ |
50,000,000 |
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2.91 |
% |
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August 18, 2016 |
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Senior Notes |
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Series 2011A,
Tranche B (“Tranche B Notes”) |
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$ |
50,000,000 |
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3.59 |
% |
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August 18, 2018 |
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Aggregate |
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Series and/or |
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Principal |
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Issue |
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Tranche |
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Amount |
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Interest Rate |
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Maturity Date |
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Senior Notes |
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Series 2011A,
Tranche C (“Tranche C Notes”) |
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$ |
50,000,000 |
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4.28 |
% |
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August 18, 2021 |
The Senior Notes described above together with each Series of Additional Notes that may from
time to time be issued pursuant to the provisions of Section 2.2 are collectively referred to as
the “Notes” (such term shall also include any such notes issued in substitution therefor pursuant
to Section 13). The Tranche A Notes, the Tranche B Notes, and the Tranche C Notes (collectively,
the “Series 2011A Notes”) shall be substantially in the form set out in Exhibit 1.1(a), Exhibit
1.1(b) and Exhibit 1.1(c), 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.
Section 1.2. Interest Rate. (a) The Series 2011A Notes shall bear interest (computed on the
basis of a 360-day year of twelve 30-day months) on the unpaid principal thereof from the date of
issuance at their respective stated rate of interest payable semi-annually in arrears on the 18th
day of February and August in each year and at maturity commencing on February 18, 2012, until such
principal sum shall have become due and payable (whether at maturity, upon notice of prepayment or
otherwise) and interest (so computed) on any overdue principal, interest or Make-Whole Amount from
the due date thereof (whether by acceleration or otherwise) and, during the continuance of an Event
of Default, on the unpaid balance hereof, at the applicable Default Rate until paid.
Section 2. Sale and Purchase of Series 2011A Notes.
Section 2.1. Series 2011A Notes. Subject to the terms and conditions of this Agreement, the
Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at
the Closing provided for in Section 3, the Series 2011A Notes 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 by any other Purchaser hereunder.
Section 2.2. Additional Series of Notes. The Company may, from time to time, in its sole
discretion but subject to the terms hereof, issue and sell one or more additional Series of its
unsecured promissory notes under the provisions of this Agreement pursuant to a supplement (a
“Supplement”) substantially in the
form of Exhibit S, provided that the aggregate principal amount of Notes of all Series issued
pursuant to all Supplements in accordance with the terms of
-2-
this Section 2.2 shall not exceed
$600,000,000. Each additional Series of Notes (the “Additional Notes”) issued pursuant to a
Supplement shall be subject to the following terms and conditions:
(i) each Series of Additional Notes, when so issued, shall be differentiated from all
previous Series by sequential alphabetical designation inscribed thereon;
(ii) Additional Notes of the same Series may consist of more than one different and
separate tranches and may differ with respect to outstanding principal amounts, maturity
dates, interest rates and premiums, if any, and price and terms of redemption or payment
prior to maturity, but all such different and separate tranches of the same Series shall
vote as a single class and constitute one Series;
(iii) each Series of Additional Notes shall be dated the date of issue, bear interest
at such rate or rates, mature on such date or dates, be subject to such mandatory and
optional prepayment on the dates and at the premiums, if any, have such additional or
different conditions precedent to closing, such representations and warranties and such
additional covenants as shall be specified in the Supplement under which such Additional
Notes are issued and upon execution of any such Supplement, this Agreement shall be amended
(a) to reflect such additional covenants without further action on the part of the holders
of the Notes outstanding under this Agreement, provided, that any such additional covenants
shall inure to the benefit of all holders of Notes so long as any Additional Notes issued
pursuant to such Supplement remain outstanding, and (b) to reflect such representations and
warranties as are contained in such Supplement for the benefit of the holders of such
Additional Notes in accordance with the provisions of Section 16;
(iv) each Series of Additional Notes issued under this Agreement shall be in
substantially the form of Exhibit 1 to Exhibit S hereto with such variations, omissions and
insertions as are necessary or permitted hereunder;
(v) the minimum principal amount of any Note issued under a Supplement shall be
$100,000, except as may be necessary to evidence the outstanding amount of any Note
originally issued in a denomination of $100,000 or more;
(vi) all Additional Notes shall constitute Senior Indebtedness of the Company and shall
rank pari passu with all other outstanding Notes; and
(vii) no Additional Notes shall be issued hereunder if at the time of issuance thereof
and after giving effect to the application of the proceeds thereof, any Default or Event of
Default shall have occurred and be continuing.
The obligations of the Additional Purchasers to purchase any Additional Notes shall be subject
to the following conditions precedent, in addition to the conditions specified in the Supplement
pursuant to which such Additional Notes may be issued:
-3-
(a) Compliance Certificate. A duly authorized Senior Financial Officer shall execute
and deliver to each Additional Purchaser and each holder of Notes an Officer’s Certificate
dated the date of issue of such Series of Additional Notes stating that such officer has
reviewed the provisions of this Agreement (including any Supplements hereto) and setting
forth the information and computations (in sufficient detail) required in order to establish
whether after giving effect to the issuance of the Additional Notes and after giving effect
to the application of the proceeds thereof, the Company is in compliance with the
requirements of Sections 10.1 and 10.2 on such date (based upon the financial statements for
the most recent fiscal quarter ended prior to the date of such certificate).
(b) Execution and Delivery of Supplement. The Company and each such Additional
Purchaser shall execute and deliver a Supplement substantially in the form of Exhibit S
hereto.
(c) Representations of Additional Purchasers. Each Additional Purchaser shall have
confirmed in the Supplement that the representations set forth in Section 6 are true with
respect to such Additional Purchaser on and as of the date of issue of the Additional Notes.
(d) Execution and Delivery of Guaranty Ratification. Provided a Collateral Release
shall not have occurred, each Subsidiary Guarantor shall execute and deliver a Guaranty
Ratification in the form attached to the Subsidiary Guaranty.
Section 2.3. Subsidiary Guaranty. (a) The payment by the Company of all amounts due with
respect to the Notes and the performance by the Company of its obligations under this Agreement
will be absolutely and unconditionally guaranteed by the Subsidiary Guarantors pursuant to the
Subsidiary Guaranty Agreement dated as of even date herewith, which shall be substantially in the
form of Exhibit 2.3 attached hereto, and otherwise in accordance with the provisions of Section 9.6
hereof (the
“Subsidiary Guaranty”).
(b) The holders of the Notes agree to discharge and release any Subsidiary Guarantor from the
Subsidiary Guaranty upon the written request of the Company, provided that (i) such Subsidiary
Guarantor has been released and discharged (or will be released and discharged concurrently with
the release of such Subsidiary Guarantor under the Subsidiary Guaranty) as an obligor and guarantor
under and in respect of the Bank Credit Agreement and the Company so certifies to the holders of
the Notes in a certificate of a Responsible Officer, (ii) at the time of such release and
discharge, the Company shall deliver a certificate of a Responsible Officer to the holders of the
Notes stating that no Default or Event of Default exists, and (iii) if any fee or other form of
consideration is given to any holder of Indebtedness of the Company for the purpose of such
release, holders of the Notes shall receive equivalent consideration (a “Collateral Release”).
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Section 3. Closing.
The sale and purchase of the Series 2011A Notes to be purchased by each Purchaser shall occur
at the offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 at 10:00
a.m. Central time, at a closing (the “
Closing”) on August 18, 2011 or on such other Business Day
thereafter on or prior to September 16, 2011 as may be agreed upon by the Company and the
Purchasers. On the Closing Date, the Company will deliver to each Purchaser the Series 2011A
Notes to be purchased by such Purchaser in the form of a single Series 2011A Note (or such greater
number of Series 2011A Notes in denominations of at least $100,000 as such Purchaser may request)
dated the date of 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 to Account Number 89222, at Northern Trust Bank,
Chicago,
Illinois 60657, ABA Number 000000000, in the Account Name of “
Molex Incorporated.” If, on
the Closing Date, the Company shall fail to tender such Series 2011A 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.
Section 4. Conditions to Closing.
Each Purchaser’s obligation to purchase and pay for the Series 2011A 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 applicable to the Closing Date:
Section 4.1. Representations and Warranties.
(a) Representations and Warranties of the Company. The representations and warranties of the
Company in this Agreement shall be correct when made and at the time of the Closing.
(b) Representations and Warranties of the Subsidiary Guarantors. The representations and
warranties of the Subsidiary Guarantors in the Subsidiary Guaranty shall be correct when made and
at the time of the Closing.
Section 4.2. Performance; No Default. The Company and each Subsidiary Guarantor
shall have performed and complied with all agreements and conditions contained in this Agreement
and the Subsidiary Guaranty required to be performed or complied with by the Company and each such
Subsidiary Guarantor prior to or at the Closing, and after giving effect to the issue and sale of
the Series 2011A 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.
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Section 4.3. Compliance Certificates.
(a) Officer’s Certificate of the Company. The Company shall have delivered to such Purchaser
an Officer’s Certificate, dated the Closing Date, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary’s Certificate of the Company. 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 Series
2011A Notes and this Agreement.
(c) Officer’s Certificate of the Subsidiary Guarantors. Each Subsidiary Guarantor shall have
delivered to such Purchaser an Officer’s Certificate, dated the Closing Date, certifying that the
conditions specified in Sections 4.1(b), 4.2 and 4.9 have been fulfilled.
(d) Secretary’s Certificate of the Subsidiary Guarantors. Each Subsidiary Guarantor 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 Subsidiary Guaranty.
Section 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 Xxxx X. Xxxxxxx,
Esq., Corporate Secretary 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 Xxxxx Xxxxx, 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
Xxxxxxx and Xxxxxx 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.
Section 4.5. Purchase Permitted By Applicable Law, Etc. On the date of the Closing
such Purchaser’s purchase of Series 2011A Notes shall (a) be permitted by the laws and regulations
of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as
section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance
companies without restriction as to the character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or
liability under or pursuant to any applicable law or regulation, which law or regulation was not in
effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received an
Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably
specify to enable such Purchaser to determine whether such purchase is so permitted.
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Section 4.6. Sale of Other Notes. Contemporaneously with the Closing the Company
shall sell to each other Purchaser and each other Purchaser shall purchase the Series 2011A Notes
to be purchased by it at the Closing as specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees. Without limiting the provisions of Section
15.1, the Company shall have paid on or before the 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.
Section 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 the Notes.
Section 4.9. Changes in Corporate Structure. Neither the Company nor any Subsidiary
Guarantor shall have changed its jurisdiction of organization or, except as reflected in Schedule
4.9, been a party to any merger or consolidation, or shall have succeeded to all or any substantial
part of the liabilities of any other entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.
Section 4.10. Subsidiary Guaranty. The Subsidiary Guaranty shall have been duly authorized,
executed and delivered by each Subsidiary Guarantor, shall constitute the legal, valid and binding
contract and agreement of each Subsidiary Guarantor and such Purchaser shall have received a true,
correct and complete copy thereof.
Section 4.11. Funding Instructions. At least three Business Days prior to the date
of the Closing, each Purchaser shall have received written instructions signed by a Responsible
Officer on letterhead of the Company confirming the information specified in Section 3 including
(i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii)
the account name and number into which the purchase price for the Series 2011A Notes is to be
deposited.
Section 4.12. Proceedings and Documents. All corporate and other organizational
proceedings in connection with the transactions contemplated by this Agreement and all documents
and instruments incident to such transactions shall be reasonably 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.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority. The Company is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
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incorporation, and is
duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, to execute and deliver this Agreement and the Notes and to
perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement and the Notes have been duly authorized by
all necessary corporate action on the part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.3. Disclosure. The Company, through its agent, Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated, has delivered to each Purchaser a copy of a Private Placement Memorandum, dated
May, 2011 (the “Memorandum”), relating to the transactions contemplated hereby. This Agreement,
the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or
on behalf of the Company in connection with the transactions contemplated hereby and identified in
Schedule 5.3, and the financial statements listed in Schedule 5.5 (this Agreement, the Memorandum
and such documents, certificates or other writings and such financial statements delivered to each
Purchaser prior to June 2, 2011 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 June 30, 2011,
there has been no change in the financial condition, operations, business or properties of the
Company or any of its Restricted Subsidiaries except changes that individually or in the aggregate
would not reasonably be expected to have a Material Adverse Effect.
Section 5.4. Organization and Ownership of Subsidiaries. (a) Schedule 5.4 is (except as noted
therein) a complete and correct list of the Company’s Restricted and Unrestricted Subsidiaries,
showing, as to each Subsidiary, the correct name thereof and the jurisdiction of its organization.
(b) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each
such Subsidiary has the corporate or other power and authority to own or hold under lease the
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properties it purports to own or hold under lease and to transact the business it transacts and
proposes to transact.
Section 5.5. Financial Statements; Material Liabilities. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its Subsidiaries listed on Schedule
5.5. All of said financial statements (including in each case the related schedules and notes)
fairly present in all material respects the consolidated financial position of the Company and its
Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of
their operations and cash flows for the respective periods so specified and have been prepared in
accordance with GAAP consistently applied throughout the periods involved except as set forth in
the notes thereto (subject, in the case of any interim financial statements, to normal year-end
adjustments). The Company and its Subsidiaries do not have any Material liabilities that are not
disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution, delivery and
performance by the Company of this Agreement and the Notes will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien in respect of any
property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other Material 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, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary.
Section 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.
Section 5.8. Litigation; Observance of Statutes and Orders. (a) There are no actions, suits,
investigations or proceedings pending or, to the knowledge of the Company, threatened against or
affecting the Company or any Restricted Subsidiary or any property of the Company or any Restricted
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 Restricted Subsidiary is in default under 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 or any of the other laws and regulations referred to in Section 5.16) of any
Governmental Authority, which default or violation, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
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Section 5.9. Taxes. The Company and its Subsidiaries have filed all income 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 payable by 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 (i) the amount of which is not individually or in the aggregate
Material or (ii) 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 U.S. 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 June 30, 2006.
Section 5.10. Title to Property; Leases. The Company and its Restricted Subsidiaries have
good and sufficient title to their respective Material properties, 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 Restricted 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, except for those defects in title and Liens that, individually or in
the aggregate, would not have a Material Adverse Effect. All Material leases are valid and
subsisting and are in full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. The Company and its Restricted Subsidiaries own or
possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary
software, service marks, trademarks and trade names, or rights thereto, that are Material, without
known conflict with the rights of others, except for those conflicts that, individually or in the
aggregate, would not have a Material Adverse Effect.
Section 5.12. Compliance with ERISA. (a) The Company and each ERISA Affiliate have operated
and administered each Plan (other than a Multiemployer Plan) in compliance with all applicable laws
except for such instances of noncompliance as have not resulted in and would not reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions
of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event,
transaction or condition has occurred or exists that would reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of
any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in
either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or
pursuant to section 401(a)(29) or 412 of the Code or section 4068 of ERISA, other than such
liabilities or Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the
basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent
actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan
allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified
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in
section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified
in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not
subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of
Multiemployer Plans that individually or in the aggregate are Material.
(d) The expected postretirement benefit obligation of the Company and its Subsidiaries,
determined in accordance with Financial Accounting Standards Board Statement No. 106 (without
regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code),
was, as of the last day of the Company’s most recently ended fiscal year, equal to $45,300,000.
(e) The execution and delivery of this Agreement and the issuance and sale of the Series 2011A
Notes hereunder will not constitute a non-exempt prohibited transaction within the meaning of
section 406 of ERISA or section 4975 of the Code. The representation by the Company to each
Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the
accuracy of such Purchaser’s representation in Section 6.3 as to the sources of the funds used to
pay the purchase price of the Notes to be purchased by such Purchaser.
Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting on its
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 25 other Institutional Investors, each of which has
been offered the Notes at 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.
Section 5.14. Use of Proceeds; Margin Regulations. (a) The Company will apply the proceeds of
the sale of the Notes to repay existing indebtedness and for other corporate purposes. No part of
the proceeds of the sale of the Series 2011A Notes shall be used directly or indirectly to (i)
finance or refinance dealings or transactions with any Person described or designated in the
Specially Designated Nationals and Blocked Person List (the “SDN List”) of the Office of Foreign
Asset
Control or in Section 1 of the Anti-Terrorism Order or (ii) for any purpose that is otherwise in
violation of any applicable Anti-Money Laundering Laws or applicable Anti-Corruption Laws.
(b) No part of the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation
U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of
buying or carrying or trading in any securities under such circumstances as to involve the Company
in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than
10% 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
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constitute more than 10% of the value of
such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying”
shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Indebtedness. Except as described therein, Schedule 5.15 sets forth a
complete and correct list of all outstanding Indebtedness of the Company and its Restricted
Subsidiaries as of July 29, 2011 (including a description of the obligors and obligees, principal
amount outstanding and collateral therefor, if any, and Guarantee thereof, if any), since which
date there has been no Material change in the amounts, interest rates, sinking funds, installment
payments or maturities of the Indebtedness of the Company or its Restricted Subsidiaries.
Neither the Company nor any Restricted Subsidiary is in default and no waiver of default is
currently in effect, in the payment of any principal or interest on any Indebtedness of the Company
or such Restricted Subsidiary and no event or condition exists with respect to any Indebtedness of
the Company or any Restricted Subsidiary the outstanding principal amount of which exceeds
$25,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one
or more Persons to cause such Indebtedness 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 Indebtedness of the Company or such Subsidiary,
any agreement relating thereto or any other agreement (including, but not limited to, its charter
or other organizational document) which limits the amount of, or otherwise imposes restrictions on
the incurring of, Indebtedness of the Company, except as specifically indicated in Schedule 5.15.
Section 5.16. Foreign Assets Control Regulations. (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 (the “Trading with the Enemy Act”), 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 (including, but not limited to the International Emergency Economic Powers
Act) or executive order relating thereto (collectively, “OFAC Sanctions Laws”).
(b) Neither the Company nor any Controlled Entity (i) is a Person described or designated in
the SDN List of the Office of Foreign Assets Control or in section 1 of the Anti-Terrorism Order or
is otherwise officially sanctioned pursuant to the OFAC Sanctions Laws, (ii) engages in any
dealings or transactions with any such Person where such dealings or transactions would result in
any holder of a Note being in violation in any material respect of the Foreign Activities Laws or
(iii) engages in any dealings or transactions with any Person where such dealings or transactions
would result in any Purchaser being in violation of any applicable Anti-Money Laundering Laws or
Applicable Anti-Corruption Laws. To the extent applicable thereto, the Company and its Controlled
Entities are in compliance, in all material respects, with the Foreign Activities Laws, the United
States Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the anti-money laundering
laws in the jurisdictions where they are located and/or conducting business (the “Anti-Money
Laundering Laws”) and the anti-corruption
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laws in the jurisdictions where they are located and/or
conducting business (collectively, the “Anti-Corruption Laws”).
(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
FCPA, assuming in all cases that such Act applies to the Company. The Company has taken reasonable
measures appropriate to the circumstances (in any event as required by applicable law), to ensure
that the Company and each Controlled Entity is and will continue to be in compliance with all
applicable current and future Anti-Corruption Laws.
Section 5.17. Status under Certain Statutes. Neither the Company nor any Restricted
Subsidiary is subject to regulation under the Investment Company Act of 1940, as amended, the
Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as
amended, or the Federal Power Act, as amended.
Section 5.18. 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 Indebtedness (actual
or contingent) of the Company, including, without limitation, all senior unsecured Indebtedness of
the Company described in Schedule 5.15 hereto.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment. Each Purchaser severally represents that it is
purchasing the Series 2011A 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 and not with a view to
the distribution thereof (other than any Notes purchased by Banc of America Securities LLC on the
Closing Date which are intended to be resold to a “qualified institutional buyer” pursuant to Rule
144A 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 Series 2011A Notes have not been registered under the Securities Act and may be resold
only if registered pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such registration nor such an
exemption is required by law, and that the Company is not required to register the Series 2011A
Notes.
Section 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 Series 2011A Notes.
Section 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
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be
used by such Purchaser to pay the purchase price of the Series 2011A 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 at least three Business Days prior to such
Purchaser’s purchase of the Series 2011A Notes 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
VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager”
or “QPAM” (within the meaning of Part VI 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 VI(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, as of the last day of its most recent calendar quarter, the QPAM does not own a
10% or more interest in the Company and no person controlling or controlled by the QPAM
(applying the definition of “control” in Section VI(e) of the QPAM Exemption) owns a 20% or
more interest in the Company (or less than 20% but greater than 10%, if such person
exercises control over the management or policies of the Company by reason of
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its ownership
interest) and (i) the identity of such QPAM and (ii) except where the Source satisfies the
exemption set forth in the last paragraph of Part I(a) of the QPAM Exemption, 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) by the Purchaser at least
three Business Days prior to such Purchaser’s purchase of the Series 2011A Notes; 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) by the Purchaser at least
three Business Days prior to such Purchaser’s purchase of the Series 2011A Notes; 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 been identified to
the Company by the Purchaser at least three Business Days prior to such Purchaser’s purchase
of the Series 2011A Notes 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 or section 4975 of the Code.
As used in this Section 6.3, the terms “employee benefit plan,” “governmental plan,” and “separate
account” shall have the respective meanings assigned to such terms in section 3 of
ERISA. The three-day notice requirement set forth in clauses (c), (d), (e) and (g) above shall not
apply to a transferee under Section 13.2.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The Company shall deliver to each holder of
Notes that is an Institutional Investor:
(a) Quarterly Statements — within 60 days (or such shorter period as is 15 days
greater than the period applicable to the filing of the Company’s Quarterly Report on Form
10-Q (the “Form 10-Q”) with the SEC regardless of whether the Company is subject to the
filing requirements thereof) after the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
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(i) a consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter, and
(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal year ending with such
quarter,
setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments, provided that delivery within the time period
specified above of copies of the Company’s Form 10-Q prepared in compliance with the
requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of
this Section 7.1(a), and provided, further, that the Company shall be deemed to have made
such delivery of such Form 10-Q if it shall have timely made such Form 10-Q available on
“XXXXX” and on its home page on the worldwide web (at the date of this Agreement located at:
http//xxx.xxxxx.xxx) and shall have given such holder prior notice of such availability on
XXXXX and on its home page in connection with each delivery (such availability and notice
thereof being referred to as “Electronic Delivery”);
(b) Annual Statements — within 105 days (or such shorter period as is 15 days greater
than the period applicable to the filing of the Company’s Annual Report on Form 10-K (the
“Form 10-K”) with the SEC regardless of whether the Company is subject to the filing
requirements thereof) after the end of each fiscal year of the Company, duplicate copies of,
(i) a consolidated balance sheet of the Company and its Subsidiaries, as at the
end of such year, and
(ii) consolidated statements of income, changes in shareholders’ equity and
cash flows of the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion
thereon of independent public accountants of recognized national standing, which opinion
shall state that such financial statements present fairly, in all material respects, the
financial position of the companies being reported upon and their results of operations and
cash flows and have been prepared in conformity with GAAP, and that the examination of such
accountants in connection with such financial statements has been made in accordance with
generally accepted auditing standards, and that such audit provides a reasonable basis for
such opinion in the circumstances, provided that the delivery within the time period
specified above of the Company’s Annual Report on
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Form 10-K for such fiscal year (together
with the Company’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3
under the Exchange Act) prepared in accordance with the requirements therefor and filed with
the SEC shall be deemed to satisfy the requirements of this Section 7.1(b), and provided,
further, that the Company shall be deemed to have made such delivery of such Form 10-K if it
shall have timely made Electronic Delivery thereof;
(c) SEC and Other Reports — promptly upon their becoming available, one copy of (i)
each financial statement, report, notice or proxy statement sent by the Company or any
Subsidiary to its principal lending banks as a whole (excluding information sent to such
banks in the ordinary course of administration of a bank facility, such as information
relating to pricing and borrowing availability) or to its public securities holders
generally, and (ii) each regular or periodic report, each registration statement that shall
have become effective (without exhibits except as expressly requested by such holder), and
each final prospectus and all amendments thereto filed by the Company or any Subsidiary with
the SEC;
(d) Notice of Default or Event of Default — promptly, and in any event within five
Business Days after a Responsible Officer becoming aware of the existence of any Default or
Event of Default, a written notice specifying the nature and period of existence thereof and
what action the Company is taking or proposes to take with respect thereto;
(e) ERISA Matters — promptly, and in any event within five Business Days after a
Responsible Officer becoming aware of any of the following, a written notice setting forth
the nature thereof and the action, if any, that the Company or an XXXXX Xxxxxxxxx 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 hereof; or
(ii) the taking by the PBGC of steps to institute, or the threatening by the
PBGC of the institution of, proceedings under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan
that such action has been taken by the PBGC with respect to such Multiemployer Plan;
or
(iii) any event, transaction or condition that could reasonably be expected to
result in the incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, or in the imposition of any Lien on any of
the rights, properties or assets of the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or such penalty or excise tax provisions, if
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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) Supplements — promptly and in any event within 10 Business Days after the
execution and delivery of any Supplement, a copy thereof;
(g) Requested Information — with reasonable promptness, such other data and
information relating to the business, operations, affairs, financial condition, assets or
properties of the Company or any of its Subsidiaries (including, but without limitation,
actual copies of the Company’s Form 10-Q and Form 10-K) or relating to the ability of the
Company to perform its obligations under this Agreement and under the Notes as from time to
time may be reasonably requested by such holder of Notes; and
(h) Unrestricted Subsidiaries — In the event that as of the last day of any fiscal
quarter of the Company one or more Unrestricted Subsidiaries shall either (i) own more than
10% of the total consolidated assets of the Company and its Subsidiaries, or (ii) earned
more than 10% of the consolidated gross revenues of the Company and its Subsidiaries during
the most recent period of four consecutive fiscal quarters, determined in each case in
accordance with GAAP, then, within the respective periods provided in Section 7.1(a) and (b)
above, the Company shall deliver to each holder of Notes that is an Institutional Investor,
unaudited financial statements of the character and for the dates and periods as in said
Section 7.1(a) and (b) covering such group of Unrestricted Subsidiaries (on a consolidated
basis), together with a consolidating statement reflecting eliminations or adjustments
required to reconcile the financial statements of such group of Unrestricted Subsidiaries to
the financial statements delivered pursuant to Section 7.1(a) and (b).
Section 7.2. Officer’s Certificate. Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such
financial statements, shall be by separate concurrent delivery of such certificate to each holder
of Notes):
(a) Covenant Compliance — the information (including detailed calculations) required
in order to establish whether the Company was in compliance with the requirements of Section
10.1 through Section 10.6, 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
(b) Event of Default — a statement that such Senior Financial Officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her supervision, a
review of the transactions and conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by the statements then being furnished
to the date of the certificate and that such review shall
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not have disclosed the existence
during such period of any condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists, specifying the nature and
period of existence thereof and what action the Company shall have taken or proposes to take
with respect thereto.
Section 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 and upon reasonable prior notice to the Company, to visit the principal executive
office of the Company, to discuss the affairs, finances and accounts of the Company and its
Restricted Subsidiaries with the Company’s officers, and, with the consent of the Company
(which consent will not be unreasonably withheld) to visit the other offices and properties
of the Company and each Material Subsidiary, all at such reasonable times and as often as
may be reasonably requested in writing; and
(b) Default — if a Default or Event of Default then exists, at the expense of the
Company to visit and inspect any of the offices or properties of the Company or any
Restricted 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 Restricted Subsidiaries, provided that
the Company is given the opportunity to be present for such discussions), all at such times
and as often as may be requested.
Section 8. Payment of the Notes. |
|
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Section 8.1. Required Prepayments. (a) The entire unpaid principal amount of the Tranche A
Notes shall become due and payable on August 18, 2016.
(b) The entire unpaid principal amount of the Tranche B Notes shall become due and payable on
August 18, 2018.
(c) The entire unpaid principal amount of the Tranche C Notes shall become due and payable on
August 18, 2021.
Section 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 to be
prepaid in the case of a partial prepayment (or such lesser amount as shall be required to effect a
partial prepayment resulting from an offer of prepayment pursuant to Section 10.5), 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
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less than 30 days and not more than 60 days prior to
the date fixed for such prepayment. Each such notice shall specify such date (which shall be a
Business Day), the aggregate principal amount of the Notes of the applicable Series to be prepaid
on such date, the principal amount of each Note held by such holder to be prepaid (determined in
accordance with Section 8.3), 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 respective 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 of the Series to be prepaid a certificate of a Senior
Financial Officer specifying the calculation of each such Make-Whole Amount as of the specified
prepayment date.
Section 8.3. Allocation of Partial Prepayments. In the case of each partial prepayment of the
Notes pursuant to the provisions of Section 8.2, the principal amount of the Notes shall be
allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable,
to the respective unpaid principal amounts thereof. All regularly scheduled partial prepayments
made with respect to any Series of Additional Notes pursuant to any Supplement shall be allocated
as provided therein.
Section 8.4. Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment (which shall be a Business Day), together with
interest on such principal amount accrued to such date and the 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 cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
Section 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
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 an offer to purchase made by the Company or an Affiliate
pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions.
Any such offer shall provide each holder with sufficient information to enable it to make an
informed decision with respect to such offer, and shall remain open for at least 15 Business Days.
If the holders of more than 50% of the principal amount of the Notes then outstanding accept such
offer, the Company shall promptly notify the remaining holders of such fact and the expiration date
for the acceptance by holders of Notes of such offer shall be extended by the number of days
necessary to give each such remaining holder at least 7 Business Days from its receipt of such
notice to accept such offer. The Company will promptly cancel all Notes acquired by it or any
Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or exchange for any such Notes.
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Section 8.6. Make-Whole Amount for the Series 2011A Notes. The term “Make-Whole Amount” means
with respect to any Series 2011A 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 Series 2011A
Note, minus 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 with respect to the Called Principal of such Series 2011A Note:
“Called Principal” means, the principal of the Series 2011A 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, 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 Series 2011A
Note is payable) equal to the Reinvestment Yield.
“Reinvestment Yield” means, 0.50% plus the yield to maturity calculated by using (i)
the yields reported, as of 10:00 A.M. (New York City time) on the second Business Day
preceding the Settlement Date on screen “PX-1” on the Bloomberg Financial Market Service (or
such other display as may replace Page PX1) on Bloomberg for the most recently issued
actively traded on the run U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date, or (ii) if such yields are
not reported as of such time or the yields reported as of such time are not ascertainable
(including by way of interpolation), the Treasury Constant Maturity Series Yields reported,
for the latest day for which such yields have been so reported as of the second Business Day
preceding the Settlement Date, in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of
such Called Principal as of such Settlement Date.
In the case of each determination under clause (i) or clause (ii), as the case may be,
of the preceding paragraph, such implied 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 between (1) the applicable U.S.
Treasury security with the maturity closest to and greater than such Remaining Average Life
and (2) the applicable U.S. Treasury security with the maturity closest to and less than
such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of
decimal places as appears in the interest rate of the applicable Series 2011A Note.
“Remaining Average Life” means, 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 by (b) the number of years (calculated to the nearest one-twelfth
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year) that will
elapse between the Settlement Date and the scheduled due date of such Remaining Scheduled
Payment.
“Remaining Scheduled Payments” means, all payments of such Called Principal and
interest thereon that would be due after the Settlement Date 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 Series
2011A 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, 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.
Section 8.7. Change in Control. Notice of Change in Control. (a) The Company will, within
15 Business Days after any Responsible Officer has knowledge of the occurrence of any Change in
Control, give written notice of such Change in Control to each holder of Notes unless notice in
respect of such Change in Control shall have been given pursuant to subparagraph (b) of this
Section 8.7 and such notice shall contain and constitute an offer to prepay Notes of each Series as
described in subparagraph (b) of this Section 8.7 and shall be accompanied by the certificate
described in subparagraph (g) of this Section 8.7.
(b) Offer to Prepay Notes. The offer to prepay Notes contemplated by subparagraph (a) of this
Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section 8.7, all,
but not less than all, the Notes held by each holder (in this case only, “holder” in respect of any
Note registered in the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on a date specified in such offer (the “Proposed Prepayment Date”). If such
Proposed Prepayment Date is in connection with an offer contemplated by subparagraph (a) of this
Section 8.7, such date shall be not less than 20 days and not more than 30 days after the date of
such offer (if the Proposed Prepayment Date shall not be specified in such offer, the Proposed
Prepayment Date shall be the 20th day after the date of such offer).
(c) Acceptance; Rejection. A holder of Notes may accept or reject the offer to prepay made
pursuant to this Section 8.7 by causing a notice of such acceptance or rejection to be delivered to
the Company at least 5 Business Days prior to the Proposed Prepayment Date. A failure by a holder
of Notes to respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed to
constitute a rejection of such offer by such holder.
(e) Prepayment. Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be
at 100% of the principal amount of such Notes, together with interest on such Notes accrued to the
date of prepayment. The prepayment shall be made on the Proposed Prepayment Date except as provided
in subparagraph (f) of this Section 8.7.
(f) 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 of the Company
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and dated
the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.7; (iii) the principal amount of each Note offered to be prepaid; (v)
the interest that would be due on each Note offered to be prepaid, accrued to the Proposed
Prepayment Date; (v) that the conditions of this Section 8.7 have been fulfilled; and (vi) in
reasonable detail, the nature and date or proposed date of the Change in Control.
(g) Effect on Required Payments. The amount of each payment of the principal of the Notes
made pursuant to this Section 8.7 shall be applied against and reduce each of the then remaining
principal payments due pursuant to any Supplement by a percentage equal to the aggregate principal
amount of the Notes so paid divided by the aggregate principal amount of the Notes outstanding
immediately prior to such payment.
(h) “Change in Control” Defined. “Change in Control” means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), other than Permitted Holders (as defined below), of
Equity Interests representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of the Company; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of the Company by Persons who were
neither (i) nominated by the board of directors of the Company nor (ii) appointed by directors so
nominated; or (c) the acquisition of direct or indirect Control of the Company by any Person or
group other than Permitted Holders. For purposes of the foregoing, “Permitted Holders” means any
descendant of Xxxxxxxxx August Xxxxxxxx (deceased), any spouse of such a descendant, any trust
solely for the benefit of one or more of the foregoing and any partnership or other entity
Controlled by any of the foregoing.
Section 9. Affirmative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
Section 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, Environmental
Laws, the USA Patriot Act, and the other laws and regulations referred to in Section 5.16
(collectively, the “Applicable 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 reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause each of its Restricted 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-
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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.
Section 9.3. Maintenance of Properties. The Company will, and will cause each of its
Restricted 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), 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 Restricted Subsidiary from discontinuing the
operation or the maintenance of any of its properties if the discontinuance of such operation is
desirable in the conduct of its business and the Company has concluded that the discontinuance of
such operation or the failure to maintain such property would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes and Claims. The Company will, and will cause each of its
Subsidiaries to, file 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 or any of their properties, assets, income or
franchises, to the extent such taxes and assessments 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 not permitted by Section
10.4, provided that neither the Company nor any Subsidiary need pay any such tax or assessment or
claims 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 and
assessments in the aggregate would not reasonably be expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. Subject to Sections 10.5 and 10.6, 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 Restricted
Subsidiaries (unless merged into the Company or a Restricted Subsidiary) and all rights and
franchises of the Company and its Restricted 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, have a Material Adverse
Effect.
Section 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 Indebtedness outstanding under the Bank Credit Agreement and all other present and future
unsecured Indebtedness (actual or contingent) of the Company which is not expressed to be
subordinate or junior in rank to any other unsecured Indebtedness of the Company.
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Section 9.7. Additional Subsidiary Guarantors. The Company will cause any Subsidiary which
becomes a party to the Bank Credit Agreement, or otherwise Guarantees Indebtedness in respect of
the Bank Credit Agreement, to enter into the Subsidiary Guaranty and deliver to each of the holders
of the Notes (concurrently with the incurrence of any such obligation pursuant to the Bank Credit
Agreement) the following items:
(a) a joinder agreement in respect of the Subsidiary Guaranty;
(b) a certificate signed by an authorized Responsible Officer of the Company making
representations and warranties to the effect of those contained in Sections 5.4, 5.6 and
5.7, with respect to such Subsidiary and the Subsidiary Guaranty, as applicable; and
(c) an opinion of counsel (who may be in-house counsel for the Company) addressed to
each of the holders of the Notes reasonably satisfactory to the Required Holders, to the
effect that the Subsidiary Guaranty by such Person has been duly authorized, executed and
delivered and that the Subsidiary Guaranty constitutes the legal, valid and binding contract
and agreement of such Person enforceable in accordance with its terms, except as an
enforcement of such terms may be limited by bankruptcy, insolvency, fraudulent conveyance
and similar laws affecting the enforcement of creditors’ rights generally and by general
equitable principles.
Section 9.8. Designation of Subsidiaries. The Company may from time to time cause any
Subsidiary (other than a Subsidiary Guarantor) to be designated as an Unrestricted Subsidiary or
any Unrestricted Subsidiary to be designated a Restricted Subsidiary; provided, however, that at
the time of such designation and immediately after giving effect thereto, (a) no Default or Event
of Default would exist under the terms of this Agreement, and (b) the Company and its Restricted
Subsidiaries would be in compliance with all of the covenants set forth in this Section 9 and
Section 10 if tested on a pro forma basis as of the last day of the most recently ended fiscal
quarter; and, provided, further, that once a Subsidiary has been designated an Unrestricted
Subsidiary, it shall not thereafter be redesignated as a Restricted Subsidiary on more than one
occasion and once a Subsidiary has been designated a Restricted Subsidiary, it shall not thereafter
be redesignated as an Unrestricted Subsidiary on more than one occasion. Within ten (10) days
following any designation described above, the Company will deliver to each holder of Notes that is
an Institutional Investor a notice of such designation accompanied by a certificate signed by a
Senior Financial Officer of the Company certifying compliance with all requirements of this Section
9.8 and setting forth all information required in order to establish such compliance.
Section 9.9. Books and Records. The Company will, and will cause each of its Restricted
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 Restricted Subsidiary, as the case may be.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes are outstanding:
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Section 10.1. Leverage Ratio. The Company will not permit the Leverage Ratio as of the end of
any fiscal quarter of the Company to exceed 3.50 to 1.00.
Section 10.2. Interest Coverage Ratio. The Company will not permit the ratio of consolidated
EBITDA of the Company and its Restricted Subsidiaries to Interest Expense for each period of four
consecutive fiscal quarters (calculated as at the end of each fiscal quarter for the four
consecutive fiscal quarters then ended) to be less than 2.00 to 1.00.
Section 10.3. Priority Indebtedness. The Company will not at any time permit the aggregate
amount of all Priority Indebtedness to exceed 20% of Consolidated Net Worth (Consolidated Net Worth
to be determined as of the end of the then most recently ended fiscal quarter of the Company).
Section 10.4. Limitation on Liens. The Company will not, and will not permit any of its
Restricted 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
Restricted 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 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 and not in connection with the borrowing of money;
(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 Restricted
Subsidiaries, or 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;
(e) Liens securing Indebtedness of a Restricted Subsidiary to the Company or to a
Restricted Subsidiary;
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(f) Liens arising by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or
other funds maintained with depository institutions and/or Liens arising in the ordinary
course of business with respect to deposit accounts relating to intercompany cash pooling,
interest set-off and/or sweeping arrangements;
(g) licenses of patents, trademarks or other intellectual property rights granted in
the ordinary course of business;
(h) Liens deemed to exist in connection with repurchase agreements related to
investments;
(i) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the import or export of goods;
(j) Liens existing as of the Closing Date and reflected in Schedule 10.4;
(k) Liens incurred after the Closing Date given to secure the payment of the purchase
price incurred in connection with the acquisition, construction or improvement of property
(other than accounts receivable or inventory) useful and intended to be used in carrying on
the business of the Company or a Restricted Subsidiary, including Liens existing on such
property at the time of acquisition or construction thereof or Liens incurred within 365
days of such acquisition or completion of such construction or improvement, provided that
(i) the Lien shall attach solely to the property acquired, purchased, constructed or
improved; (ii) at the time of acquisition, construction or improvement of such property (or,
in the case of any Lien incurred within three hundred sixty-five (365) days of such
acquisition or completion of such construction or improvement, at the time of the incurrence
of the Indebtedness secured by such Lien), the aggregate amount remaining unpaid on all
Indebtedness secured by Liens on such property, whether or not assumed by the Company or a
Restricted Subsidiary, shall not exceed the lesser of (y) the cost of such acquisition,
construction or improvement or (z) 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
transaction has been delegated by the board of directors of the Company); and (iii) at the
time of such incurrence and after giving effect thereto, no Default or Event of Default
would exist;
(l) any Lien incurred after the Closing Date that is existing on property of a Person
immediately prior to its being consolidated with or merged into the Company or a Restricted
Subsidiary or its becoming a Restricted Subsidiary or any Lien existing on any property
acquired by the Company or any Restricted Subsidiary at the time such property is so
acquired (whether or not the Indebtedness secured thereby shall have been assumed), provided
that (i) no such Lien shall have been created or assumed in contemplation of such
consolidation or merger or such Person’s becoming a Restricted Subsidiary or such
acquisition of property, (ii) each such Lien shall extend solely to the item or items of
property so acquired and, if required by the terms of the instrument
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originally creating
such Lien, other property which is an improvement to or is acquired for specific use in
connection with such acquired property, and (iii) at the time of such incurrence and after
giving effect thereto, no Default or Event of Default would exist;
(m) Liens incurred after the Closing Date given to secure Indebtedness on property or
assets of the Company or its Restricted Subsidiaries which Liens were given after the
Closing Date, provided the Company 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 and, in any such case, the Notes shall have the benefit, to the fullest
extent that, and with such priority as, the holders of the Notes may be entitled under
applicable law, of an equitable Lien on such property;
(n) any extensions, renewals or replacements of any Lien permitted by the preceding
subparagraphs (j), (k), (l) and (m) of this Section 10.4, provided that (i) no additional
property shall be encumbered by such Liens, (ii) the unpaid principal amount
of the Indebtedness or other obligations secured thereby shall not be increased on or after
the date of any extension, renewal or replacement, and (iii) at such time and immediately
after giving effect thereto, no Default or Event of Default shall have occurred and be
continuing;
(o) Liens arising out of and securing Entrust Indebtedness;
(p) Liens on factored receivables securing Factoring Indebtedness not in excess of
$60,000,000, for so long as Molex Japan is a Restricted Subsidiary; and
(q) Liens securing Priority Indebtedness of the Company or any Restricted Subsidiary,
provided that the aggregate principal amount of any such Priority Indebtedness shall be
permitted by Section 10.3, and, provided further that, no such Liens may secure any
obligations under the Bank Credit Agreement.
Section 10.5. Sales of Assets. The Company will not, and will not permit any Restricted
Subsidiary to, sell, lease or otherwise dispose of any substantial part (as defined below) of the
assets of the Company and its Restricted Subsidiaries; provided, however, that the Company or any
Restricted Subsidiary may sell, lease or otherwise dispose of assets constituting a substantial
part of the assets of the Company and its Restricted Subsidiaries if such assets are sold
in an arms length transaction and, at such time and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing and an amount equal to the net proceeds
received from such sale, lease or other disposition (but only with respect to that portion of such
assets that exceeds the definition of “substantial part” set forth below) shall be used within 365
days of such sale, lease or disposition, in any combination:
(1) to acquire productive assets used or useful in carrying on the business of the
Company and its Restricted Subsidiaries and having a value at least equal to the value of
such assets sold, leased or otherwise disposed of; and/or
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(2) to prepay or retire Senior Indebtedness of the Company and/or its Restricted
Subsidiaries, provided that (i) the Company shall offer to prepay each outstanding Note in a
principal amount which equals the Ratable Portion for such Note, and (ii) any such
prepayment of the Notes shall be made at par, together with accrued interest thereon to the
date of such prepayment, but without the payment of the Make-Whole Amount. Any offer of
prepayment of the Notes pursuant to this Section 10.5 shall be given to each holder of the
Notes by written notice that shall be delivered not less than fifteen (15) days and not more
than sixty (60) days prior to the proposed prepayment date. Each such notice shall state
that it is given pursuant to this Section and that the offer set forth in such notice must
be accepted by such holder in writing and shall also set forth (i) the prepayment date, (ii)
a description of the circumstances which give rise to the proposed prepayment and (iii) a
calculation of the Ratable Portion for such holder’s Notes. Each holder of the Notes which
desires to have its Notes prepaid shall notify the Company in writing delivered not less
than five (5) Business Days prior to the proposed prepayment date of its acceptance of such
offer of prepayment. Prepayment of Notes
pursuant to this Section 10.5 shall be made in accordance with Section 8.2 (but without
payment of the Make-Whole Amount).
As used in this Section 10.5, a sale, lease or other disposition of assets shall be deemed to
be a “substantial part” of the assets of the Company and its Restricted Subsidiaries if the book
value of such assets, when added to the book value of all other assets sold, leased or otherwise
disposed of by the Company and its Restricted Subsidiaries during the period of 12 consecutive
months ending on the date of such sale, lease or other disposition, exceeds 10% of the book value
of the Consolidated Total Assets of the Company and its Restricted Subsidiaries, determined as of
the end of the fiscal quarter immediately preceding such sale, lease or other disposition; provided
that there shall be excluded from any determination of a “substantial part” any (i) sale or
disposition of assets in the ordinary course of business of the Company and its Restricted
Subsidiaries, (ii) any transfer of assets from the Company to any Restricted Subsidiary or from any
Restricted Subsidiary to the Company or a Restricted Subsidiary, (iii) any sale or transfer of
property acquired by the Company or any Restricted 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 Restricted Subsidiary if the Company or a Restricted Subsidiary shall concurrently
with such sale or transfer, lease such property, as lessee, and (iv) transfers of accounts
receivable (and rights ancillary thereto) of Molex Japan pursuant to, and in accordance with the
terms of, factoring agreements pursuant to which the Factoring Indebtedness is incurred, provided
such Factoring Indebtedness does not exceed $60,000,000 at any time outstanding.
Section 10.6. Merger and Consolidation. The Company will not, and will not permit any of its
Restricted 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:
(1) any Restricted 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 Restricted Subsidiary so long as in any merger or
consolidation involving the Company, the Company shall be the
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surviving or continuing
corporation or (ii) any other Person so long as the survivor is the Restricted Subsidiary,
or (y) convey, transfer or lease all of its assets in compliance with the provisions of
Section 10.5; and
(2) 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:
(a) 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;
(b) 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 each Supplement thereto) 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
(A) 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 (B) an acknowledgment from each Subsidiary Guarantor that the
Subsidiary Guaranty continues in full force and effect; and
(c) immediately after giving effect to such transaction no Default or Event of
Default would exist (it being agreed that, for purposes of determining compliance
with Sections 10.1 and 10.2, such transaction shall be treated on a pro forma basis
for the relevant period as having been consummated as of the last day of the
immediately preceding fiscal quarter).
Section 10.7. Transactions with Affiliates. Except with respect to the Hi-P Equity Buy Back,
the Company will not and will not permit any Restricted 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 Restricted Subsidiary), except in
the ordinary course and upon fair and reasonable terms that are not materially less favorable to
the Company or such Restricted Subsidiary, taken as a whole, than would be obtainable in a
comparable arm’s-length transaction with a Person not an Affiliate.
Section 10.8. Terrorism Sanctions Regulations. The Company will not and will not permit any
Controlled Entity to (a) become a Person described or designated in the SDN List or that is
officially sanctioned by the United States of America pursuant to the OFAC Sanctions Laws or by any
other Governmental Authority pursuant to any Applicable Laws similar in substance to the Foreign
Activities Laws or (b) engage in any dealings or transactions with any
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such Person where such
dealings or transactions would result in any holder of a Note being in violation in any material
respect of the Foreign Activities Laws or (c) engage in any dealings or transactions with any
Person where such dealings or transactions would result in any holder of a Note being in violation
of any Applicable Laws similar in substance to the Foreign Activities Laws.
Section 10.9. Restricted Subsidiaries. The Company will not permit as of each of (a) the last
day of any fiscal quarter and (b) the last day of the month prior to any designation under Section
9.8 of a Subsidiary to be an Unrestricted Subsidiary, (i) the Consolidated Total Assets of the
Company and its Restricted Subsidiaries to be less than 75% of the Consolidated Total Assets of the
Company and its Subsidiaries or (ii) the consolidated EBITDA of the Company and its Restricted
Subsidiaries to be less than 75% of the consolidated earnings before interest, taxes, depreciation
and
amortization of the Company and its Subsidiaries, for the most recent period of four consecutive
fiscal quarters.
Section 11. Events of Default.
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 any covenant in a Supplement which specifically provides that it shall have
the benefit of this paragraph (c) or any Subsidiary Guarantor defaults in the performance of
or compliance with any term of the Subsidiary Guaranty beyond any period of grace or cure
period provided with respect thereto; or
(d) the Company defaults in the performance of or compliance with any term contained
herein or in any Supplement (other than those referred to in paragraphs (a), (b) and (c) of
this Section 11) and such default is not remedied within 45 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 Subsidiary Guaranty ceases to be a legally valid, binding and enforceable
obligation or contract of a Subsidiary Guarantor (other than upon a release of any
Subsidiary Guarantor from a Subsidiary Guaranty in accordance with the terms of Section
2.3(b) hereof), or any Subsidiary Guarantor or any party by, through or on
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account of any
such Person, challenges the validity, binding nature or enforceability of any such
Subsidiary Guaranty; or
(f) any representation or warranty made in writing by or on behalf of the Company or
Subsidiary Guarantor in this Agreement or any Subsidiary Guaranty or by any officer of the
Company or any Subsidiary Guarantor in any writing furnished in connection with the
transactions contemplated hereby or by any Subsidiary Guaranty proves to have been false or
incorrect in any material respect on the date as of which made; or
(g) (i) the Company or any Restricted Subsidiary is in default (as principal or as
guarantor or other surety) in the payment of any principal of or premium or make-whole
amount or interest (in the payment amount of at least $100,000) on any
Indebtedness other than the Notes that is outstanding in an aggregate principal amount of at
least $20,000,000 beyond any period of grace provided with respect thereto, or (ii) the
Company or any Restricted Subsidiary is in default in the performance of or compliance with
any term of any instrument, mortgage, indenture or other agreement relating to any
Indebtedness other than the Notes in an aggregate principal amount of at least $20,000,000
or any other condition exists, and as a consequence of such default or condition such
Indebtedness has become, or has been declared, due and payable or one or more Persons has
the right to declare such Indebtedness to be due and payable before its stated maturity or
before its regularly scheduled dates of payment, 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 Indebtedness to convert such Indebtedness into equity interests), the Company
or any Restricted Subsidiary has become obligated to purchase or repay Indebtedness 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 $20,000,000 or one or more
Persons have the right to require the Company or any Restricted Subsidiary to purchase or
repay such Indebtedness; provided that, notwithstanding anything to the contrary herein, no
default under the Molex Japan Disputed Indebtedness shall constitute an Event of Default
hereunder, unless and until it shall be determined by a final non-appealable judgment (or
the Company or any Restricted Subsidiary shall agree in a settlement agreement or other
similar agreement) that the Company or any Restricted Subsidiary is liable for the Molex
Japan Disputed Indebtedness (or any portion thereof), and the amount of money that the
Company or any Subsidiary is obligated to pay with respect thereto shall remain due and
unpaid for 60 days after payment is required pursuant to the terms of such judgment or
settlement (or similar) agreement; or
(h) the Company, any Material Subsidiary or any Subsidiary Guarantor (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
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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
(i) a court or governmental authority of competent jurisdiction enters an order
appointing, without consent by the Company, any of its Material Subsidiaries or any
Subsidiary Guarantor, 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, any of its Material Subsidiaries or any Subsidiary Guarantor, or any such
petition shall be
filed against the Company, any of its Material Subsidiaries or any Subsidiary Guarantor and
such petition shall not be dismissed within 60 days; or
(j) a final non-appealable judgment or judgments at any one time outstanding for the
payment of money aggregating in excess of $20,000,000 are rendered against one or more of
the Company, its Restricted Subsidiaries or any Subsidiary Guarantor 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
(k) 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
aggregate “amount of unfunded benefit liabilities” (within the meaning of Section
4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA,
shall exceed $20,000,000, (iv) 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, (v) the Company or
any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) 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 (vi) above, either individually or together with any other such event or events,
could reasonably be expected to have a Material Adverse Effect.
As used in Section 11(k), the terms “employee benefit plan” and “employee welfare benefit plan”
shall have the respective meanings assigned to such terms in Section 3 of ERISA.
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Section 12. Remedies on Default, Etc.
Section 12.1. Acceleration. (a) If an Event of Default with respect to the Company described
in paragraph (h) or (i) of Section 11 (other than an Event of Default described in clause (i) of
paragraph (h) or described in clause (vi) of paragraph (h) by virtue of the fact that such clause
encompasses clause (i) of paragraph (h)) 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 its or 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 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.
Section 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.
Section 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 holders of not less than 51% in aggregate
principal amount of the Notes then outstanding, 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 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 and (to the extent permitted by applicable law) any overdue
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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.
Section 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.
Section 13. Registration; Exchange; Substitution of Notes.
Section 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.
Section 13.2. Transfer and Exchange 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(iv)),
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 (and of the same tranche if such Series has separate tranches) 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 or pursuant to any
Supplement. 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
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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, provided, that in lieu thereof such holder may (in reliance upon information provided
by the Company, which shall not be unreasonably withheld) make a representation to the effect that
the purchase by any holder of any Note will not constitute a non-exempt prohibited transaction
under section 406(a) of ERISA.
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.
Section 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(iv)) 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 or a Qualified
Institutional Buyer, 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 five Business Days following
satisfaction of such conditions, in lieu thereof, a new Note of the same Series (and of the same
tranche if such Series has separate tranches), 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.
Section 14. Payments on Notes.
Section 14.1. Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole
Amount and interest becoming due and payable on the Notes shall be made in Chicago,
Illinois at the
principal office of Bank of America, N.A. in such jurisdiction. 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.
Section 14.2. Home Office Payment. So long as any Purchaser or Additional Purchaser or such
Purchaser’s nominee or such Additional Purchaser’s nominee shall be the holder of any
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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 and interest by the
method and at the address specified for such purpose for such Purchaser on Schedule A hereto or, in
the case of any
Additional Purchaser, Schedule A attached to any Supplement pursuant to which such Additional
Purchaser is a party, or by such other method or at such other address as such Purchaser or
Additional 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 or Additional 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 any Purchaser
or Additional Purchaser or such Person’s nominee, such Person 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.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable and documented out-of-pocket costs and expenses
(including reasonable attorneys’ fees of a special counsel for the Purchasers or any Additional
Purchasers and, if reasonably required by the Required Holders, local or other counsel) incurred by
each Purchaser and each Additional 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 (including any Supplement) or the Notes (whether or not such amendment, waiver or
consent becomes effective), including, without limitation: (a) the reasonable and documented costs
and expenses incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under this Agreement (including any Supplement) or the Notes or in responding to
any subpoena or other legal process or informal investigative demand issued in connection with this
Agreement (including any Supplement) 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, provided that, in
connection with the Closing, the Company will not be required to pay the attorneys’ fees for more
than a single firm of special counsel acting for all Purchasers. The Company will pay, and will
save each Purchaser, each Additional 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).
Section 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
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provision of this
Agreement, any Supplement or the Notes, and the termination of this Agreement or any Supplement.
Section 16. Survival of Representations and Warranties; Entire Agreement.
All representations and warranties contained herein or in any Supplement shall survive the
execution and delivery of this Agreement, such Supplement and the Notes, the purchase or transfer
by any Purchaser or any Additional Purchaser of any such Note or portion thereof or interest
therein and the payment of any Note 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 Additional
Purchaser or any other holder of any such Note. All statements contained in any certificate or
other instrument delivered by or on behalf of the Company pursuant to this Agreement or any
Supplement shall be deemed representations and warranties of the Company under this Agreement;
provided, that the representations and warranties contained in any Supplement shall only be made
for the benefit of the Additional Purchasers which are party to such Supplement and the holders of
the Notes issued pursuant to such Supplement, including subsequent holders of any Note issued
pursuant to such Supplement, and shall not require the consent of the holders of existing Notes.
Subject to the preceding sentence, this Agreement (including every Supplement) and the Notes embody
the entire agreement and understanding between the Purchasers and the Additional Purchasers and the
Company and supersede all prior agreements and understandings relating to the subject matter
hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. (a) This Agreement (including any Supplement) 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 (i) no amendment or waiver of any of the provisions of Section 1, 2,
3, 4, 5, 6 or 21 hereof or the corresponding provision of any Supplement, or any defined term (as
it is used in any such Section or such corresponding provision of any Supplement), will be
effective as to any holder of Notes unless consented to by such holder of Notes in writing, and
(ii) no such amendment or waiver may, without the written consent of all of the holders of Notes at
the time outstanding affected thereby, (A) 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 results in a decrease in the interest rate) or of the Make-Whole Amount on, the Notes, (B)
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 (C) amend any of Sections 8, 11(a), 11(b), 12, 17 or
20.
(b) Supplements. Notwithstanding anything to the contrary contained herein, the Company may
enter into any Supplement providing for the issuance of one or more Series of Additional Notes
consistent with Sections 2.2 hereof without obtaining the consent of any holder of any other Series
of Notes.
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Section 17.2. Solicitation of Holders of Notes.
(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,
any Supplement 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 or any Supplement 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.
Section 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.
Section 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
-39-
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.
Section 18. Notices.
All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), (b) by a recognized overnight delivery service (with
charges prepaid) or (c) by posting to IntraLinks® or a similar service reasonably acceptable to the
Required Holders if the sender on the same day sends or causes to be sent notice of such posting by
email or in accordance with clause (a) or (b) above. Any such notice must be sent:
(i) if to a Purchaser or such Purchaser’s nominee, to such Purchaser or such
Purchaser’s nominee at the address or, in the case of clause (c) above, the email address,
specified for such communications in Schedule A to this Agreement, or at such other address
as such Purchaser or such Purchaser’s nominee shall have specified to the Company in writing
pursuant to this Section 18;
(ii) if to an Additional Purchaser or such Additional Purchaser’s nominee, to such
Additional Purchaser or such Additional Purchaser’s nominee at the address, or in the case
of clause (c) above, the email address, specified for such communications in Schedule A to
any Supplement, or at such other address as such Additional Purchaser or such Additional
Purchaser’s nominee shall have specified to the Company in writing,
(iii) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing pursuant to this Section 18, or
(iv) 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.
Section 19. Reproduction of Documents.
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 or by any Additional Purchaser (except the Notes themselves), and (c)
financial statements, certificates and other information previously or hereafter furnished to any
Purchaser or any Additional Purchaser, may be reproduced by such Purchaser or such Additional
Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such
Purchaser or such Additional Purchaser may destroy any original document so
reproduced. The Company agrees and stipulates that, to the extent permitted by applicable
law,
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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 or such Additional 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.
Section 20. Confidential Information.
For the purposes of this Section 20, “Confidential Information” means information delivered to
any Purchaser or any Additional 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 or
otherwise known to such Purchaser or such Additional Purchaser prior to the time of such
disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or
such Additional Purchaser or any Person acting on such Purchaser’s or such Additional Purchaser’s
behalf, (c) otherwise becomes known to such Purchaser or such Additional Purchaser other than
through disclosure by the Company or any Subsidiary or (d) constitutes financial statements
delivered to such Purchaser or such Additional Purchaser under Section 7.1 that are otherwise
publicly available. Each Purchaser and each Additional Purchaser will maintain the confidentiality
of such Confidential Information in accordance with procedures adopted by such Purchaser or such
Additional Purchaser in good faith to protect confidential information of third parties delivered
to such Purchaser or such Additional Purchaser, provided that such Purchaser or such Additional
Purchaser may deliver or disclose Confidential Information to (i) such Purchaser’s or such
Additional Purchaser’s directors, trustees, officers, employees, agents, attorneys and affiliates
(to the extent such disclosure reasonably relates to the administration of the investment
represented by such Purchaser’s or such Additional Purchaser’s Notes), (ii) such Purchaser’s or
such Additional Purchaser’s 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 such
Purchaser or such Additional Purchaser 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 such Purchaser or such Additional Purchaser 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 or such Additional Purchaser, (vii) the National Association of
Insurance Commissioners or any similar organization, or any nationally recognized rating agency
that requires access to information about such Purchaser’s or such Additional 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
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Purchaser or such Additional Purchaser, (x) in
response to any subpoena or other legal process, (y) in connection with any litigation to which
such Purchaser or such Additional Purchaser is a party or (z) if an Event of Default has occurred
and is continuing, to the extent such Purchaser or such Additional 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 or such Additional Purchaser’s Notes,
the Subsidiary Guaranty and this Agreement. 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.
Section 21. Substitution of Purchaser.
Each Purchaser and each Additional 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 or such Additional
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 or such Additional Purchaser in this Agreement (other than in this Section 21), shall be
deemed to refer to such Affiliate in lieu of such original Purchaser or such original Additional
Purchaser. In the event that such Affiliate is so substituted as a Purchaser or an Additional
Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser or such
original Additional 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” or an
“Additional 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 or such original Additional
Purchaser, and such original Purchaser or such original Additional Purchaser shall again have all
the rights of an original holder of the Notes under this Agreement.
Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and other agreements contained in this
Agreement (including all covenants and other agreements contained in any Supplement) 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.
Section 22.2. Payments Due on Non-Business Days. Anything in this Agreement or the Notes to
the contrary notwithstanding (but without limiting the requirement in Section 8.4 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
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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.
Section 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. For purposes of determining compliance with the covenants set
out in this Agreement, any election by the Company to measure an item of Indebtedness using fair
value (as permitted by Accounting Standard Codification Topic No. 820 — Fair Value Measurements
and Disclosures or 000-00-00 — Fair Value Option) shall be disregarded and such determination
shall be made by valuing indebtedness at 100% of the outstanding principal thereof.
Notwithstanding any other provision of this Agreement to the contrary, the determination of whether
a lease constitutes a capital lease or an operating lease, and whether obligations arising under a
lease are required to be capitalized on the balance sheet of the lessee thereunder and/or
recognized as interest expense, shall be determined by reference to GAAP as in effect on the date
of this Agreement; and (b) if the Company notifies the Purchasers that the Company requests an
amendment to any provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision (or if Required
Holders notify the Company that they request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such change in GAAP or in
the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
Section 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.
Section 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.
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Section 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.
Section 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
Illinois
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.
Section 22.8. Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably
submits to the non-exclusive jurisdiction of any
Illinois state or federal court sitting in Cook
County, Chicago,
Illinois 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.
* * * * *
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The execution hereof by the Purchasers shall constitute a contract among the Company and the
Purchasers for the uses and purposes hereinabove set forth. This Agreement may be executed in any
number of counterparts, each executed counterpart constituting an original but all together only
one agreement.
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Very truly yours,
Molex Incorporated
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By |
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Name: |
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Title: |
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Accepted as of the date first written above.
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Hartford Life Insurance Company
Hartford Life and Accident Insurance Company
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By: |
Hartford Investment Management Company
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Their Agent and Attorney-in-Fact |
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By: |
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Title: |
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Physicians Life Insurance Company
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By: |
Hartford Investment Management Company
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Its Investment Manager |
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By: |
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Accepted as of the date first written above.
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The Northwestern Mutual Life Insurance
Company
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By: |
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Its Authorized Representative |
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The Northwestern Mutual Life Insurance
Company for its Group Annuity Separate
Account
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By: |
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Its Authorized Representative |
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Xxxxxxx National Life Insurance Company
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By: |
PPM America, Inc., as attorney in fact, on
behalf of Xxxxxxx National Life Insurance Company |
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By: |
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Title: |
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Xxxxxxx National Life Insurance Company of New
York
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By: |
PPM America, Inc., as attorney in fact, on behalf of Xxxxxxx National Life Insurance
Company of New York |
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By: |
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Accepted as of the date first written above.
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Great-West Life & Annuity Insurance Company
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Massachusetts Mutual Life Insurance Company
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By: |
Babson Capital Management LLC as Investment Adviser |
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C.M. Life Insurance Company
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Babson Capital Management LLC as Investment Adviser |
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-48-
Accepted as of the date first written above.
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MassMutual Asia Limited
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Babson Capital Management LLC as Investment Adviser |
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American United Life Insurance Company
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Allstate Insurance Company
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Authorized Signatories
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-49-
Accepted as of the date first written above.
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Thrivent Financial For Lutherans
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Modern Woodmen of America
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Allianz Life Insurance Company of
North America
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United of Omaha Life Insurance Company
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-50-
Accepted as of the date first written above.
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Acacia Life Insurance Company — Closed Block
Ameritas Life Insurance Corp.
First Ameritas Life Insurance Corp. of New York
The Union Central Life Insurance Company
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Summit Investment Advisors Inc., as Agent
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Xxxxxx X. Xxxxx |
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Managing Director-Private Placements |
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-51-
Schedule A
(to Note Purchase Agreement)
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:
“Acquired Entity or Business” means either (a) the assets constituting a business, division,
facility, product line or line of business of any Person not already a Restricted Subsidiary or (b)
all or a portion of the capital stock of any such Person, which Person shall, as a result of an
acquisition or merger, become a Restricted Subsidiary of the Company (or shall be merged with the
Company or a Restricted Subsidiary, provided that the Company shall be the surviving Person of any
merger involving the Company and a Restricted Subsidiary shall be the surviving Person of any other
such merger).
“Additional Notes” is defined in Section 2.2.
“Additional Purchasers” means purchasers of Additional Notes.
“Administrative Agent” means JPMorgan Chase Bank, National Association, in its capacity as
administrative agent under the Bank Credit Agreement, together with its successors and assigns in
such capacity.
“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 (b) any Person beneficially owning or
holding, directly or indirectly, 10% 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, 10% 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.
“Anti-Corruption Laws” is defined in Section 5.16(b).
“Anti-Money Laundering Laws” is defined in Section 5.16(b).
“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.
“Applicable Laws” is defined in Section 9.1.
“Bank Credit Agreement” means the Credit Agreement dated as of June 9, 2009 by and among the
Company, certain Subsidiaries of the Company named therein, JPMorgan Chase Bank, National
Association, as administrative agent, and the other financial institutions party
Schedule B
(to Note Purchase Agreement)
thereto, as amended, restated, joined, supplemented or otherwise modified from time to time, and
any renewals, extensions or replacements thereof, which constitute the primary bank credit facility
of the Company and its Subsidiaries.
“Bank Lenders” means the banks and financial institutions party to the Bank Credit Agreement.
“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial
banks in Chicago,
Illinois are required or authorized to be closed.
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be classified and accounted
for as capital leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change in Control” is defined in Section 8.7(h).
“CISADA” means the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010,
United States Public Law 111195, as amended from time to time, and the rules and regulations
promulgated thereunder from time to time in effect.
“Closing” is defined in Section 3.
“Closing Date” means the date of the Closing.
“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” means
Molex Incorporated, a Delaware corporation.
“Confidential Information” is defined in Section 20.
“Consolidated Indebtedness” means as of any date of determination the total amount of all
Indebtedness of the Company and its Restricted Subsidiaries determined on a consolidated basis in
accordance with GAAP.
“Consolidated Net Worth” shall mean the consolidated stockholder’s equity of the Company and
its Restricted Subsidiaries, as defined according to GAAP.
“Consolidated Total Assets” means, for any Person, as of any date of determination, the total
amount of all assets of such Person, determined on a consolidated basis in accordance with GAAP.
B-2
“Controlled Entity” means any of the Subsidiaries of the Company and any of their or the
Company’s respective Controlled Affiliates. 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.
“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 stated in clause (a) of the first paragraph of the Notes of
such Series (and of such tranche if such Series has separate tranches).
“EBITDA” means, for any applicable computation period, Net Income from continuing operations
for such period, plus, to the extent included in the determination of such Net Income (but without
duplication), (a) income and franchise taxes paid or accrued, (b) Interest Expense, (c)
amortization and depreciation, (d) non-cash stock-based compensation expense, (e) non-cash
impairment charges, (f) other non-recurring non-cash charges, losses and expenses properly
deductible in determining Net Income for such period minus, to the extent included in the
determination of such Net Income, (g) non-cash gains or income arising in connection with the
Restructuring, and (h) other non-recurring non-cash gains or income for such period. For purposes
of the computation of the Leverage Ratio (i) for any period during which an Acquired Entity or
Business was acquired, EBITDA shall be calculated on a pro forma basis as if such Acquired Entity
or Business had been acquired (and any related Indebtedness incurred) on the first day of such
period and (ii) for any period during which a Restricted Subsidiary or business was disposed of,
EBITDA shall be calculated on a pro forma basis as if such Restricted Subsidiary or business had
been disposed of on the first day of such period.
“Entrust Indebtedness” means Indebtedness of a Restricted Subsidiary indirectly owed (through
a bank or other financial institution acting as an intermediary) to another Restricted Subsidiary
that is organized under the laws of the People’s Republic of China.
“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.
“Equity Interests” means shares of capital stock, partnership interests, membership interests
in a limited liability company, beneficial interests in a trust or other equity ownership interests
in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
B-3
“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.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Factoring Indebtedness” means, at any time, the amount at such time of outstanding
receivables or similar obligations sold by Molex Japan pursuant to a factoring agreement with a
non-affiliated third party that would be characterized as principal if such factoring agreement
were structured as a secured lending transaction rather than as a purchase of receivables.
“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.
“FCPA” is defined in Section 5.16(b).
“Foreign Activities Laws” means collectively the Trading with the Enemy Act, the OFAC
Sanctions Laws, the USA Patriot Act and CISADA.
“GAAP” means generally accepted accounting principles in the United States (which may include
International Financial Reporting Standards) that are applicable to the circumstances as of the
date of determination; provided that, (i) with respect to the financial statements of Foreign
Subsidiaries (except to the extent included in the consolidated financial statements of the
Company), “GAAP” shall mean the generally accepted accounting principles in the relevant foreign
jurisdiction which are set forth from time to time in the opinions and pronouncements of the
applicable accounting standards board (or similar agency) of such foreign jurisdiction which are
applicable to the circumstances as of the date of determination, and (ii) with respect to leases,
“GAAP” shall be subject to Section 22.3.
“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 Restricted Subsidiary
conducts all or any part of its business, or which has jurisdiction over any
properties of the Company or any Restricted Subsidiary, or
B-4
(b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.
“Government Obligations” shall mean direct obligations of the United States of America or any
agency or instrumentality of the United States of America, the payment or guarantee of which
constitutes a full faith and credit obligation of the United States of America.
“Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase of) any security
for the payment thereof, (b) to purchase or lease property, securities or services for the purpose
of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of business. The amount of
any Guarantee made by any guarantor shall be deemed to be the lower of (a) the stated or
determinable amount of the primary obligation in respect of which such Guarantee is made and (b)
the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument
embodying such Guarantee, unless (in the case of a primary obligation that is not Indebtedness)
such primary obligation and the maximum amount for which such guarantor may be liable are not
stated or determinable, in which case the amount of such Guarantee shall be such guarantor’s
maximum reasonably anticipated liability in respect thereof as determined by the Company in good
faith.
“Hi-P Equity Buy Back” means the sale in a single transaction or series of transactions by the
Company of its 178,236,020 shares in Hi-P International Limited that are owned and held by the
Company as of the Closing Date.
“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.
“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property acquired by such Person, (d) all obligations of such
Person in respect of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not
the Indebtedness secured thereby has been assumed (it being understood that if such Person has not
assumed or otherwise become personally liable for any such Indebtedness, the amount of
B-5
the Indebtedness of such Person in connection therewith shall be limited to the lesser of the
face amount of such Indebtedness or the Fair Market Value of all property of such Person securing
such Indebtedness), (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital
Lease Obligations of such Person, (h) all obligations of such Person as an account party in respect
of letters of credit and letters of guaranty for amounts drawn under such letters of credit and
letters of guaranty, (i) all obligations contingent or otherwise, of such Person in respect of
bankers’ acceptances, and (j) all Off Balance Sheet Liabilities. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.
“Institutional Investor” means (a) any original purchaser of a Note, (b) any holder of more
than $2,000,000 of the aggregate principal amount of the Notes then outstanding, and (c) any bank,
trust company, savings and loan association or other financial institution, any pension plan, any
investment company, any insurance company, any broker or dealer, or any other similar financial
institution or entity, regardless of legal form.
“Interest Expense” shall mean, for any period, the gross interest expense of the Company and
its Restricted Subsidiaries deducted in the calculation of Net Income for such period, determined
on a consolidated basis in accordance with GAAP.
“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, Indebtedness or other
obligations or securities or by loan, advance, capital contribution or otherwise.
“Leverage Ratio” means, at any time, the ratio of Total Debt at such time to EBITDA for the
most recently completed four fiscal quarters of the Company, all calculated for the Company and its
Restricted Subsidiaries on a consolidated basis in accordance with GAAP.
“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, shareholder agreements, voting trust agreements and
all similar arrangements).
“Make-Whole Amount” shall have the meaning (i) set forth in Section 8.6 with respect to any
Series 2011A Note and (ii) set forth in the applicable Supplement with respect to any other Series
of Notes.
“Material” means material in relation to the business, operations, financial condition, assets
or properties of the Company and its Restricted Subsidiaries taken as a whole.
B-6
“Material Adverse Effect” means a material adverse effect on (a) the business, operations,
financial condition, assets or properties of the Company and its Restricted Subsidiaries taken as a
whole, or (b) the ability of the Company to perform its obligations under this Agreement (including
any Supplement) and the Notes, (c) the ability of any Subsidiary Guarantor to perform its
obligations under the Subsidiary Guaranty or (d) the validity or enforceability of this Agreement
(including any Supplement), the Notes or the Subsidiary Guaranty.
“Material Subsidiary” means, at any time, any Restricted Subsidiary of the Company which,
together with all other Restricted Subsidiaries of such Restricted Subsidiary, accounts for more
than (i) 5% of the consolidated assets of the Company and its Restricted Subsidiaries or (ii) 5% of
consolidated revenue of the Company and its Restricted Subsidiaries.
“Memorandum” is defined in Section 5.3.
“Molex Japan” means Molex Japan Co., LTD., a company organized under the laws of Japan.
“Molex Japan Disputed Indebtedness” means the disputed liability of the Company and/or its
Restricted Subsidiaries relating to unauthorized activities at Molex Japan, as described in the
Company’s Form 10-K filed with the Securities and Exchange Commission for the fiscal year ended
June 30, 2011.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in
Section 4001(a)(3) of ERISA).
“Net Income” shall mean, for any period, the consolidated net income (or loss) of the Company
and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP.
“Notes” is defined in Section 1.
“OFAC Sanctions Laws” is defined in Section 5.16(a).
“Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability of
such Person with respect to accounts or notes receivable sold by such Person, (b) any liability
under any Sale and Leaseback Transaction other than Capital Lease Obligations, (c) any liability
under any so-called “synthetic lease” arrangement or transaction entered into by such Person, or
(d) any obligation arising with respect to any other transaction which is the functional equivalent
of or takes the place of borrowing but which does not constitute a liability on the balance sheet
of such Person.
“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.
B-7
“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) 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.
“Priority Indebtedness” means (without duplication), as of the date of any determination
thereof, the sum of (i) all unsecured Indebtedness of Restricted Subsidiaries (including all
Guaranties of Indebtedness of the Company but excluding (w) Indebtedness owing to the Company or
any other Restricted Subsidiary, (x) Indebtedness outstanding at the time such Person became a
Restricted Subsidiary (other than an Unrestricted Subsidiary which is designated as a Restricted
Subsidiary pursuant to Section 9.8 hereof), provided that such Indebtedness shall have not been
incurred in contemplation of such person becoming a Restricted Subsidiary, and (y) all Indebtedness
of any Restricted Subsidiary which has also guaranteed the Notes), and (ii) all Indebtedness of the
Company and its Restricted Subsidiaries secured by Liens other than Indebtedness secured by Xxxxx
permitted by subparagraphs (a) through (p), inclusive, of Section 10.4.
“property” or “properties” means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, xxxxxx or inchoate.
“Purchasers” means the purchasers of the Notes named in Schedule A hereto.
“QPAM Exemption” means Prohibited Transaction Class Exemption 84-14 issued by the United
States Department of Labor.
“Qualified Institutional Buyer” means any Person who is a qualified institutional buyer within
the meaning of such term as set forth in Rule 144(a)(1) under the Securities Act.
“Ratable Portion” means, with respect to any Note, an amount equal to the product of (x) the
amount equal to the net proceeds being so applied to the prepayment of Senior Indebtedness in
accordance with Section 10.5(2), multiplied by (y) a fraction the numerator of which is the
outstanding principal amount of such Note and the denominator of which is the aggregate principal
amount of Senior Indebtedness of the Company and its Restricted Subsidiaries being prepaid pursuant
to Section 10.5(2).
“Required Holders” means, at any time, the holders of not less than 51% in principal amount of
the Notes of all Series at the time outstanding (exclusive of Notes then owned by the
B-8
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.
“Restricted Subsidiary” means any Subsidiary (i) in which at least a majority of the voting
securities are owned by the Company and/or one or more Restricted Subsidiaries and (ii) which the
Company has not designated an Unrestricted Subsidiary by notice in writing given to the holders of
the Notes.
“S&P” means Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies, Inc.
“Sale and Leaseback Transaction” means any sale or other transfer of property by any Person
with the intent to lease such property as lessee.
“SDN List” is defined in Section 5.14(a).
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“Senior Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, corporate treasury manager or comptroller of the Company.
“Senior Indebtedness” means, as of the date of any determination thereof, all Consolidated
Indebtedness, other than Subordinated Indebtedness.
“Series” means any series of Notes issued pursuant to this Agreement or any Supplement hereto.
“Series 2011A Notes” is defined in Section 1.
“Subordinated Indebtedness” means all unsecured Indebtedness of the Company which shall
contain or have applicable thereto subordination provisions providing for the subordination thereof
to other Indebtedness of the Company (including, without limitation, the obligations of the Company
under this Agreement, any Supplement 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 can and
does ordinarily take major business actions without the prior approval of such Person or one or
B-9
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 Guarantor” means each Subsidiary which is party to the Subsidiary Guaranty.
“Subsidiary Guaranty” is defined in Section 2.3.
“Supplement” is defined in Section 2.2.
“Trading with the Enemy Act” is defined in Section 5.16(a).
“tranche” means all Notes of a Series having the same maturity, interest rate and schedule for
mandatory prepayments.
“Tranche A Notes” is defined in Section 1.1.
“Tranche B Notes” is defined in Section 1.1.
“Tranche C Notes” is defined in Section 1.1.
“Total Debt” means the sum, without duplication, of (a) all Indebtedness of the Company and
its Restricted Subsidiaries on a consolidated basis, calculated in accordance with GAAP, plus (b)
the face amount of all outstanding letters of credit (other than trade letters of credit) in
respect of which the Company or any Restricted Subsidiary has any actual reimbursement obligation,
plus (c) the principal amount of all Guarantees by the Company and its Restricted Subsidiaries of
Indebtedness, plus (d) the stated amount of all obligations of the Company and its Restricted
Subsidiaries under letters of guarantee, plus (e) the amount of all Factoring Indebtedness.
Notwithstanding the foregoing, “Total Debt” shall not include contingent obligations of the Company
or any Restricted Subsidiary under letters of credit issued and letters of guaranty obtained to
support underlying obligations that do not constitute Indebtedness or any Guarantee of any such
contingent obligation, except to the extent that the aggregate amount of all such contingent
obligations (without duplication and excluding obligations under trade letters of credit) exceeds
$15,000,000.
“Unrestricted Subsidiary” means any Subsidiary so designated by the Company.
“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.
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Schedule 4.9
Changes in Corporate Structure
None.
Schedule 4.9
(to Note Purchase Agreement)
Schedule 5.4
Subsidiaries of the Company, Ownership of Subsidiary Stock, Affiliates
[See Attached]
Schedule 5.4
(to Note Purchase Agreement)
Schedule 5.5
Financial Statements
Annual report on Form 10-K for the fiscal year ended June 30, 2010
Current report on Form 8-K dated August 6, 2010
Current report on Form 8-K dated October 26, 2010
Quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2010
Current report on Form 8-K dated November 3, 2010
Current report on Form 8-K dated November 25, 2010
Quarterly report on Form 10-Q for the fiscal quarter ended December 31, 2010
Current report on Form 8-K dated February 3, 2011
Current report on Form 8-K dated March 25, 2011
Quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2011
Current report on Form 8-K dated April 25, 2011
Current report on Form 8-K dated May 3, 2011
Annual report on Form 10-K for the fiscal year ended June 30, 2011
Current report on Form 8-K dated August 3, 2011
Schedule 5.5
(to Note Purchase Agreement)
Schedule 5.15
Existing Indebtedness
[See Attached].
Schedule 5.15
(to Note Purchase Agreement)
Schedule 10.4
Existing Liens
[See Attached].
Schedule 10.4
(to Note Purchase Agreement)
[Form of Tranche A Note]
2.91% Series 2011A Senior Note, Tranche A, due August 18, 2016
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No. [_______]
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[Date] |
$[__________]
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PPN 608554 A*2 |
For Value Received, the undersigned,
Molex Incorporated (herein called the
“Company”), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [_____________________] or registered assigns, the principal sum of
[______________]
Dollars (or so much thereof as shall not have been prepaid) on August 18,
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 2.91% per annum from the date hereof, payable semi-annually,
on the 18th day of February and August in each year and at maturity, commencing on February 18,
2012, 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 4.91% 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, 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 Chicago,
Illinois 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 August 18, 2011 (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 Sections
6.2 and 6.3 of the Note Purchase Agreement, provided, that in lieu thereof such holder may (in
reliance upon information provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by any holder of any Note will not constitute a
non-exempt prohibited transaction under section 406(a) of ERISA. 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
Exhibit 1.1(a)
(to Note Purchase Agreement)
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.
The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. 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.
Pursuant to the
Subsidiary Guaranty Agreement dated as of August 18, 2011 (as amended,
restated or otherwise modified from time to time, the
“Subsidiary Guaranty”), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.
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
Illinois 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.
E-1.1(a)-2
[Form of Tranche B Note]
3.59% Series 2011A Senior Note, Tranche B, due August 18, 2018
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No. [_______]
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[Date] |
$[__________]
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PPN 608554 A@0 |
For Value Received, the undersigned, Molex Incorporated (herein called the
“Company”), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [_____________________] or registered assigns, the principal sum of
[______________] Dollars (or so much thereof as shall not have been prepaid) on August 18,
2018 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 3.59% per annum from the date hereof, payable semi-annually,
on the 18th day of February and August in each year and at maturity, commencing on February 18,
2012, 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 5.59% 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, 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 Chicago,
Illinois 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 August 18, 2011 (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 Sections
6.2 and 6.3 of the Note Purchase Agreement, provided, that in lieu thereof such holder may (in
reliance upon information provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by any holder of any Note will not constitute a
non-exempt prohibited transaction under section 406(a) of ERISA. 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
Exhibit 1.1(b)
(to Note Purchase Agreement)
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.
The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. 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.
Pursuant to the
Subsidiary Guaranty Agreement dated as of August 18, 2011 (as amended,
restated or otherwise modified from time to time, the
“Subsidiary Guaranty”), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.
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
Illinois 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.
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Molex Incorporated
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By |
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Name: |
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Title: |
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E-1.1(b)-2
[Form of Tranche C Note]
Molex Incorporated
4.28% Series 2011A Senior Note, Tranche C, due August 18, 2021
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No. [_______]
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[Date] |
$[__________]
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PPN 608554 A#8 |
For Value Received, the undersigned, Molex Incorporated (herein called the
“Company”), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [_____________________] or registered assigns, the principal sum of
[______________] Dollars (or so much thereof as shall not have been prepaid) on August 18,
2021 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 4.28% per annum from the date hereof, payable semi-annually,
on the 18th day of February and August in each year and at maturity, commencing on February 18,
2012, 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 6.28% 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, 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 Chicago, Illinois 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 August 18, 2011 (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 Sections
6.2 and 6.3 of the Note Purchase Agreement, provided, that in lieu thereof such holder may (in
reliance upon information provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by any holder of any Note will not constitute a
non-exempt prohibited transaction under section 406(a) of ERISA. 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
Exhibit 1.1(c)
(to Note Purchase Agreement)
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.
The Company will make required prepayments of principal on the date and in the amounts
specified in the Note Agreement. 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.
Pursuant to the
Subsidiary Guaranty Agreement dated as of August 18, 2011 (as amended,
restated or otherwise modified from time to time, the
“Subsidiary Guaranty”), certain Subsidiaries
of the Company have absolutely and unconditionally guaranteed payment in full of the principal of,
Make-Whole Amount, if any, and interest on this Note and the performance by the Company of its
obligations contained in the Note Purchase Agreement all as more fully set forth in said Subsidiary
Guaranty.
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 Illinois 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.
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Molex Incorporated
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By |
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Name: |
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Title: |
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E-1.1(c)-2
Form of Subsidiary Guaranty
Dated as of August 18, 2011
from
The Subsidiary Guarantors Named Herein
for the benefit of
The Holders of the Notes
Re:
$50,000,000 2.91% Series 2011A Senior Notes, Tranche A, due August 18, 2016
$50,000,000 3.59% Series 2011A Senior Notes, Tranche B, due August 18, 2018
$50,000,000 4.28% Series 2011A Senior Notes, Tranche C, due August 18, 2021
of
Molex Incorporated
Exhibit 2.3
(to Note Purchase Agreement)
Table of Contents
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Section |
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Heading |
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Page |
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Section 1.
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Guaranty
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2 |
Section 2.
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Representations and Warranties
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3 |
Section 3.
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Subsidiary Guarantor’s Obligations Unconditional
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5 |
Section 4.
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Full Recourse Obligations; Pari Passu Ranking
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10 |
Section 5.
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Waiver
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10 |
Section 6.
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Waiver of Subrogation
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11 |
Section 7.
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Subordination
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12 |
Section 8.
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Effect of Bankruptcy Proceedings, Etc.
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12 |
Section 9.
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Term of Guaranty
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13 |
Section 10.
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Contribution
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13 |
Section 11.
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Limitation of Liability
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14 |
Section 12.
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Reserved
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14 |
Section 13.
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Supplemental Agreement
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14 |
Section 14.
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Definitions and Terms Generally
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14 |
Section 15.
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Notices
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15 |
Section 16.
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Amendments, Etc.
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16 |
Section 17.
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Consent to Jurisdiction; Service of Process
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16 |
-i-
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Section |
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Heading |
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Page |
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Section 18.
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Waiver of Jury Trial
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17 |
Section 19.
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Survival
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17 |
Section 20.
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Severability
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17 |
Section 21.
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Successors and Assigns
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18 |
Section 22.
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Table of Contents; Headings
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18 |
Section 23.
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Counterparts
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18 |
Section 24.
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Governing Law
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18 |
Section 25.
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Release
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18 |
Section 26.
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Covenant Compliance
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18 |
-ii-
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(i) |
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Aero-Motive Company, a Michigan corporation; |
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(ii) |
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Xxxxxxx Corporation, a Michigan corporation; |
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(iii) |
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Central Rubber Company, an Illinois corporation; |
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(iv) |
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Xxxxxx Xxxxxxxx Company, a Delaware corporation; |
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(v) |
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DW Holding LLC, a Delaware limited liability company; |
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(vi) |
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Molex Connector Corporation, a Delaware corporation; |
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(vii) |
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Molex Copper Flex Products, Inc., a Minnesota corporation; |
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(viii) |
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Molex CV Holdings, Inc., a Delaware corporation; |
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(ix) |
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Molex International, Inc., a Delaware corporation; |
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(x) |
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Polymicro Technologies, LLC, a Delaware limited liability company; |
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(xi) |
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Woodhead Industries, Inc., a Delaware corporation; |
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(xii) |
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Woodhead Interconnect, Inc., a Delaware corporation; |
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(xiii) |
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Xxxxxxxx XX, a Texas limited partnership; |
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(xiv) |
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WH Two, LLC, a Delaware limited liability company; and |
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(xv) |
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such Subsidiaries as shall become parties hereto in accordance
with Section 13 hereof (each a “Subsidiary Guarantor” and collectively the
“Subsidiary Guarantors”), |
for the benefit of the holders from time to time of the Notes (as defined below) (the “Holders”).
Capitalized terms used herein are defined in Section 14 hereof or the Note Purchase Agreement
referred to below.
Whereas, Molex Incorporated, a Delaware corporation (the “Company”) will authorize
the issue and sale of (i) $50,000,000 2.91% Series 2011A Senior Notes, Tranche A, due August 18,
2016 (the “Tranche A Notes”), (ii) $50,000,000 3.59% Series 2011A Senior Notes, Tranche B, due
August 18, 2018 (the “Tranche B Notes”) and (iii) $50,000,000 4.28% Series 2011A Senior Notes,
Tranche C, due August 18, 2021 (the “Tranche C Notes” and, together with the Tranche A Notes and
the Trance C Notes, the “Series 2011A Notes”), pursuant to a Note Purchase Agreement, dated as of
the date hereof (as amended, modified or supplemented from time to time, the “Note Purchase
Agreement”) among the Company and the purchasers named therein.
Whereas, the Company is authorized to issue Additional Notes (as such term is defined
in the Note Purchase Agreement) of one or more separate series from time to time in an aggregate
principal amount of Additional Notes of all series not to exceed $600,000,000 pursuant to Section
2.2 of the Note Purchase Agreement.
Whereas, the Additional Notes together with the Series 2011A Notes are collectively
referred to as the “Notes”.
Whereas, each of the Subsidiary Guarantors is a Subsidiary of the Company.
Whereas, the Company has agreed that certain of its Subsidiaries will guarantee the
Company’s obligations under the Notes and the Note Purchase Agreement.
Whereas, the Subsidiary Guarantors each acknowledge that they will derive substantial
benefits from the issuance of the Notes.
Now, Therefore, in consideration of the premises and to induce the Holders to
purchase the Notes, each of the Subsidiary Guarantors, intending to be legally bound, hereby agrees
for the benefit of the Holders, as follows:
Section 1. Guaranty.
Each Subsidiary Guarantor with all other Subsidiary Guarantors, hereby absolutely,
unconditionally and irrevocably guarantees, jointly and severally, as a primary obligor and not
merely as a surety, to each Holder, and its successors and assigns permitted under the Note
Purchase Agreement, the full and punctual payment and performance when due, whether at stated
maturity, by acceleration or otherwise, of the principal of and Make-Whole Amount, if any, and
interest on (including, without limitation, interest, whether or not an allowable claim, accruing
after the date of filing of any petition in bankruptcy, or the commencement of any bankruptcy,
insolvency or similar proceeding relating to the Company) the Notes and all other amounts under the
Note Purchase Agreement and all other obligations, agreements and covenants of the Company now or
hereafter existing under the Note Purchase Agreement whether for principal, Make-Whole Amount,
interest (including interest accruing or becoming owing both prior to and subsequent to the
commencement of any proceeding against or with respect to the Company under any chapter of the
Bankruptcy Code), indemnification payments, expenses (including reasonable attorneys’ fees and
expenses) or otherwise, and all reasonable costs and expenses, if any, incurred by any Holder in
connection with enforcing any rights under this Guaranty (all such obligations being the
“Guaranteed Obligations”), and agrees to pay any and all reasonable expenses incurred by each
Holder in enforcing this Guaranty; provided that, notwithstanding anything contained herein or in
the Note Purchase Agreement to the contrary, the maximum liability of each Subsidiary Guarantor
hereunder and under the Note Purchase Agreement shall in no event exceed such Guarantor’s Maximum
Guaranteed Amount, and, provided further, each Subsidiary Guarantor shall be unconditionally
required to pay all amounts demanded of it hereunder prior to any determination of such Maximum
Guaranteed Amount and the recipient of such payment, if so required by a final non-appealable order
of a court of competent jurisdiction, shall then be liable for the refund of any excess amounts.
If any such rebate or refund is ever required, all other Subsidiary Guarantors (and the Company)
shall be fully liable for the repayment thereof to the maximum extent allowed by applicable law.
This Guaranty is an absolute, unconditional, present and continuing guaranty of payment and not of
collectibility and is in no way conditioned upon any attempt to collect from the Company or any
other action, occurrence or circumstance whatsoever. Each Subsidiary Guarantor agrees that the
Guaranteed Obligations may at any time and from to time exceed the Maximum Guaranteed Amount of
such Subsidiary Guarantor without impairing this Guaranty or affecting the rights and remedies of
the Holders hereunder.
E-2.3-2
Notwithstanding any stay, injunction or other prohibition preventing such action against the
Company, if for any reason whatsoever the Company shall fail or be unable duly, punctually and
fully to perform and (in the case of the payment of Guaranteed Obligations) pay such amounts as and
when the same shall become due and (in the case of the payment of Guaranteed Obligations) payable
or to perform or comply with any other Guaranteed Obligation, whether or not such failure or
inability shall constitute an “Event of Default” under the Note Purchase Agreement or the Notes,
each Subsidiary Guarantor will forthwith (in the case of the payment of Guaranteed Obligations) pay
or cause to be paid such amounts to the Holders, in lawful money of the United States of America,
at the place specified in the Note Purchase Agreement, or perform or comply with such Guaranteed
Obligations or cause such Guaranteed Obligations to be performed or complied with, (in the case of
the payment of Guaranteed Obligations) together with interest (in the amounts and to the extent
required under such Notes) on any amount due and owing.
Section 2. Representations and Warranties.
Each Subsidiary Guarantor hereby represents and warrants as follows:
(a) All representations and warranties contained in the Note Purchase Agreement that relate to
such Subsidiary Guarantor are true and correct in all respects and are incorporated by reference
with the same force and effect as though set forth herein in full.
(b) Such Subsidiary Guarantor acknowledges that any default in the due observance or
performance by such Subsidiary Guarantor of any covenant, condition or agreement contained herein
(if, after the running of any applicable notice and opportunity to cure periods provided in the
Note Purchase Agreement, such default or event of default remains uncured) shall constitute an
Event of Default.
(c) There are no conditions precedent to the effectiveness of this Guaranty that have not been
satisfied or expressly waived.
(d) Such Subsidiary Guarantor has, independently and without reliance upon the Holders and
based on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Guaranty. Such Subsidiary Guarantor has investigated fully the
benefits and advantages which will be derived by it from execution of this Guaranty, and the Board
of Directors (or other equivalent authority) of such Subsidiary Guarantor has decided that a direct
and/or an indirect benefit will accrue to such Subsidiary Guarantor by reason of the execution of
this Guaranty.
(e) (i) This Guaranty is not given with actual intent to hinder, delay or defraud any Person
to which such Subsidiary Guarantor is or will become, on or after the date hereof, indebted; (ii)
such Subsidiary Guarantor has received at least a reasonably equivalent value in exchange for the
giving of this Guaranty; (iii) such Subsidiary Guarantor is not insolvent on the date hereof and
will not become insolvent as a result of the giving of this Guaranty; (iv) such Subsidiary
Guarantor is not engaged in a business or transaction, nor is about to engage in a
business or transaction, for which any property remaining with such Subsidiary Guarantor
E-2.3-3
constitutes an unreasonably small amount of capital; and (v) such Subsidiary Guarantor does not
intend to incur debts that will be beyond such Subsidiary Guarantor’s ability to pay as such debts
mature.
(f) Such Subsidiary Guarantor is a corporation, limited liability company, partnership or
other legal entity duly organized and validly existing under the laws of its state of organization,
and has the requisite power, authority and legal right under the laws of its state of organization
to conduct its business as presently conducted and to execute, deliver and perform its obligations
under this Guaranty.
(g) The execution, delivery and performance of this Guaranty have been duly authorized by all
necessary corporate, limited liability or limited partnership, as applicable, action on the part of
such Subsidiary Guarantor. This Guaranty constitutes a legal, valid and binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in accordance with its terms,
except that such enforceability is subject to any limitations arising from bankruptcy, insolvency,
liquidation, moratorium, reorganization and other similar laws of general application relating to
or affecting the rights of creditors or pledgees and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance of this Guaranty do not and will not conflict with
or result in any violation of or default under any provision of the Certificate/Articles of
Incorporation, Certificate of Formation or Certificate of Limited Liability Partnership, or
by-laws, limited liability company agreement, operating agreement or partnership agreement, as the
case may be, of such Subsidiary Guarantor, or any indenture, mortgage, deed of trust, instrument,
law, rule or regulation binding on such Subsidiary Guarantor or to which such Subsidiary Guarantor
is a party.
(i) The execution, delivery and performance of this Guaranty do not and will not result in
violation of any judgment or order applicable to such Subsidiary Guarantor or result in the
creation or imposition of any Lien on any of the properties of such Subsidiary Guarantor pursuant
to any requirement of law or any indenture, mortgage, deed of trust or other Material agreement to
which such Subsidiary Guarantor is a party.
(j) The execution, delivery and performance of this Guaranty do not and will not require any
consent, approval or authorization of, or registration or filing with, any governmental authority
or agency of the state of organization of such Subsidiary Guarantor or of the United States or any
State.
(k) There are no pending or, to the knowledge of such Subsidiary Guarantor, threatened actions
or proceedings against or affecting such Subsidiary Guarantor or any of its properties by or before
any court or administrative agency or arbiter that would adversely affect the ability of such
Subsidiary Guarantor to perform its obligations hereunder or call into question the validity or
enforceability of this Guaranty.
E-2.3-4
(l) Such Subsidiary Guarantor’s obligations under this Guaranty are at least pari passu in
right of payment with all other unsecured claims of the general creditors of such Subsidiary
Guarantor.
(m) No Subsidiary Guarantor is in breach of or default under or with respect to any
instrument, document or agreement binding upon such Subsidiary Guarantor which breach or default is
reasonably probable to have a Material Adverse Effect or result in the creation of a Lien on any
property of such Subsidiary Guarantor other than Liens permitted under Section 10.4 of the Note
Purchase Agreement. Such Subsidiary Guarantor is in compliance with all applicable requirements of
law except such non-compliance as would not have a Material Adverse Effect.
Section 3. Subsidiary Guarantor’s Obligations Unconditional.
(a) This Guaranty shall constitute a guarantee of payment, performance and compliance and not
of collection, and each Subsidiary Guarantor specifically agrees that it shall not be necessary,
and that such Subsidiary Guarantor shall not be entitled to require, before or as a condition of
enforcing the liability of such Subsidiary Guarantor under this Guaranty or requiring payment or
performance of the Guaranteed Obligations by any Subsidiary Guarantor hereunder, or at any time
thereafter, that any Holder: (a) file suit or proceed to obtain or assert a claim for personal
judgment against the Company or any other Person that may be liable for or with respect to any
Guaranteed Obligation; (b) make any other effort to obtain payment or performance of any Guaranteed
Obligation from the Company or any other Person that may be liable for or with respect to such
Guaranteed Obligation, except for the making of the demands, when appropriate, described in Section
1; (c) foreclose against, or seek to realize upon security now or hereafter existing for such
Guaranteed Obligations; (d) except to the extent set forth in Section 1, exercise or assert any
other right or remedy to which such Holder is or may be entitled in connection with any Guaranteed
Obligation or any security or other guaranty therefor; or (e) assert or file any claim against the
assets of the Company or any other Person liable for any Guaranteed Obligation. Each Subsidiary
Guarantor agrees that this Guaranty shall be continuing, and that the Guaranteed Obligations will
be paid and performed in accordance with their terms and the terms of this Guaranty, and are the
primary, absolute and unconditional obligations of such Subsidiary Guarantor, irrespective of the
value, genuineness, validity, legality, regularity or enforceability or lack thereof of any part of
the Guaranteed Obligations or any agreement or instrument relating to the Guaranteed Obligations or
this Guaranty, or the existence of any indemnities with respect to the existence of any other
guarantee of or security for any of the Guaranteed Obligations, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever that
might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it
being the intent of this Section 3 that the obligations of each Subsidiary Guarantor hereunder
shall be irrevocable, primary, absolute and unconditional under any and all circumstances.
(b) Each Subsidiary Guarantor hereby expressly waives notice of acceptance of and reliance
upon this Guaranty, diligence, presentment, demand of payment or performance, protest and all other
notices (except as otherwise provided for in Section 1) whatsoever, any requirement
E-2.3-5
that the Holders exhaust any right, power or remedy or proceed against the Company or against
any other Person under any other guarantee of, or security for, or any other agreement, regarding
any of the Guaranteed Obligations. Each Subsidiary Guarantor further agrees that, subject solely
to the requirement of making demands under Section 1, the occurrence of any event or other
circumstance that might otherwise vary the risk of the Company or such Subsidiary Guarantor or
constitute a defense (legal or equitable) available to, or a discharge of, or a counterclaim or
right of set-off by, the Company or such Subsidiary Guarantor (other than the full and indefeasible
due payment and performance of the Guaranteed Obligations), shall not affect the liability of such
Subsidiary Guarantor hereunder.
(c) The obligations of each Subsidiary Guarantor under this Guaranty are not subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension, deferment or
defense based upon any claim such Subsidiary Guarantor or any other Person may have against the
Company, any Holder or any other Person, and shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any circumstances or condition
whatsoever (whether or not such Subsidiary Guarantor or the Company shall have any knowledge or
notice thereof), including:
(i) any renewal, extension, modification, increase, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument executed in
connection therewith, or any contract or understanding with the Company, the Holders, or any
of them, or any other Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or compromise that might be granted or
given by any Holder to the Company or any other Person liable on the Guaranteed Obligations,
or the failure of any Holder to assert any claim or demand or to exercise any right or
remedy against the Company or any other Person under the provisions of the Note Purchase
Agreement, the Notes or otherwise; or any rescission, waiver, amendment or modification of,
or any release from any of the terms or provisions of, the Note Purchase Agreement, the
Notes, any guarantee or any other agreement;
(iii) the insolvency, bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution or lack of power of the Company or any other Person at any time
liable for the payment of all or part of the Guaranteed Obligations; or any dissolution of
the Company or any other such Person, or any change, restructuring or termination of the
existence of the Company or any other such Person, or any sale, lease or transfer of any or
all of the assets of the Company or any other such Person, or any change in the
shareholders, partners, or members of the Company or any other such Person; or any default,
failure or delay, willful or otherwise, in the performance of the Guaranteed Obligations;
(iv) the invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection with the
Guaranteed Obligations, for any reason whatsoever, including the fact that the Guaranteed
Obligations, or any part thereof, exceed the amount permitted by law, the act
E-2.3-6
of creating
the Guaranteed Obligations or any part is ultra xxxxx, the officers or representatives
executing the documents or otherwise creating the Guaranteed Obligations acted in excess of
their authority, the Guaranteed Obligations violate applicable usury laws, the Company or
any other Person has valid defenses, claims or offsets (whether at law, in equity or by
agreement) which render the Guaranteed Obligations wholly or partially uncollectible from
the Company or any other Person, the creation, performance or repayment of the Guaranteed
Obligations (or the execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations or executed in connection with the
Guaranteed Obligations or given to secure the repayment of the Guaranteed Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise are irregular or not
genuine or authentic;
(v) any full or partial release of the liability of the Company on the Guaranteed
Obligations or any part thereof, of any co-guarantors, or of any other Person now or
hereafter liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or
any part thereof, it being recognized, acknowledged and agreed by each Subsidiary Guarantor
that such Subsidiary Guarantor may be required to pay the Guaranteed Obligations in full
without assistance or support of any other Person, and such Subsidiary Guarantor has not
been induced to enter into this Guaranty on the basis of a contemplation, belief,
understanding or agreement that any parties other than the Company will be liable to perform
the Guaranteed Obligations, or that the Holders will look to other parties to perform the
Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other
assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or
impairment (including negligent, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection with, or assuring or
securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of any Holder or any other Person to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the Guaranteed
Obligations shall not be properly perfected or created, or shall prove to be unenforceable
or subordinate to any other security interest or lien, it being recognized and agreed by
each Subsidiary Guarantor that such Subsidiary Guarantor is not entering into this Guaranty
in reliance on, or in contemplation of the benefits of, the validity, enforceability,
collectibility or value of any of the collateral;
E-2.3-7
(x) any payment by the Company to any Holder being held to constitute a preference
under any Fraudulent Conveyance Law, or for any reason any Holder being required to refund
such payment or pay such amount to the Company or someone else;
(xi) any other action taken or omitted to be taken with respect to the Guaranteed
Obligations, or the security and collateral therefor, whether or not such action or omission
prejudices such Subsidiary Guarantor or increases the likelihood that such Subsidiary
Guarantor will be required to pay the Guaranteed Obligations pursuant to the terms hereof,
it being the unambiguous and unequivocal intention of such Subsidiary Guarantor that it
shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action or omission whatsoever, whether or not contemplated,
and whether or not otherwise or particularly described herein, except for the full and final
payment and satisfaction of the Guaranteed Obligations in cash;
(xii) the fact that all or any of the Guaranteed Obligations cease to exist by
operation of law, including by way of a discharge, limitation or tolling thereof under
applicable bankruptcy laws with respect to the Company or any other Person;
(xiii) any other circumstance that might in any manner or to any extent otherwise
constitute a defense available to, vary the risk of, or operate as a discharge of, the
Company or any other Person as a matter of law or equity;
(xiv) any merger or consolidation of the Company or any Subsidiary Guarantor into or
with any other Person or any sale, lease or transfer of any of the assets of the Company to
any other Person;
(xv) any change in the ownership of any shares of capital stock of the Company, or any
change in the relationship between the Company and such Subsidiary Guarantor or any
termination of any such relationship;
(xvi) any default, failure or delay, willful or otherwise, in the performance by the
Company, any Subsidiary Guarantor or any other Person of any obligations of any kind or
character whatsoever under the Note Purchase Agreement or any other agreement;
(xvii) in respect of the Company, any Subsidiary Guarantor or any other Person, any
change of circumstances, whether or not foreseen or foreseeable, whether or not imputable to
the Company, any Subsidiary Guarantor or any other Person, or other impossibility of
performance through fire, explosion, accident, labor disturbance, floods, droughts,
embargoes, wars (whether or not declared), civil commotion, acts of God or the public enemy,
delays or failure of suppliers or carriers, inability to obtain materials, action of any
Federal or state regulatory body or agency, change of law or any other causes affecting
performance, or any other force majeure, whether or not beyond the control of the Company,
any Subsidiary Guarantor or any other Person and whether or not of the kind hereinbefore
specified; or
E-2.3-8
(xviii) any other occurrence, circumstance, or event whatsoever, whether similar or
dissimilar to the foregoing, whether foreseen or unforeseen, and any other circumstance
which might otherwise constitute a legal or equitable defense or discharge of the
liabilities of a guarantor or surety or which might otherwise limit recourse against such
Subsidiary Guarantor;
provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not
be deemed to exclude any other acts, failures or omissions, though not specifically mentioned
above, it being the purpose and intent of this Guaranty and the parties hereto that the obligations
of each Subsidiary Guarantor shall be absolute and unconditional and shall not be discharged,
impaired or varied except by the payment and performance of all obligations of the Company under
the Note Purchase Agreement and the Notes in accordance with their respective terms as each may be
amended or modified from time to time. Without limiting the foregoing, it is understood that
repeated and successive demands may be made and recoveries may be had hereunder as and when, from
time to time, the Company or any Subsidiary Guarantor shall default under or in respect of the
terms of the Note Purchase Agreement and that notwithstanding recovery hereunder for or in respect
of any given default or defaults by the Company or any Subsidiary Guarantor under the Note Purchase
Agreement, this Guaranty shall remain in full force and effect and shall apply to each and every
subsequent default. All waivers herein contained shall be without prejudice to the Holders at
their respective options to proceed against the Company, any Subsidiary Guarantor or other Person,
whether by separate action or by joinder.
(d) Each Subsidiary Guarantor hereby consents and agrees that any Holder or Holders from time
to time, with or without any further notice to or assent from any other Subsidiary Guarantor may,
without in any manner affecting the liability of any Subsidiary Guarantor under this Guaranty, and
upon such terms and conditions as any such Holder or Holders may deem advisable:
(i) extend in whole or in part (by renewal or otherwise), modify, change, compromise,
release or extend the duration of the time for the performance or payment of any debt,
liability or obligation of the Company or any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligations of the Company on the
Note Purchase Agreement or the Notes, or waive any Default or Event of Default with respect
thereto, or waive, modify, amend or change any provision of any other agreement or waive
this Guaranty; or
(ii) sell, release, surrender, modify, impair, exchange or substitute any and all
property, of any nature and from whomsoever received, held by, or for the benefit of, any
such Holder as direct or indirect security for the payment or performance of any debt,
liability or obligation of the Company, any Subsidiary Guarantor or of any other Person
secondarily or otherwise liable for any debt, liability or obligation of the Company on the
Note Purchase Agreement or the Notes; or
E-2.3-9
(iii) settle, adjust or compromise any claim of the Company or any Subsidiary Guarantor
against any other Person secondarily or otherwise liable for any debt, liability or
obligation of the Company on the Note Purchase Agreement or the Notes; or
(iv) purchase Additional Notes from time to time from the Company pursuant to the terms
and provisions of the Note Purchase Agreement.
Each Subsidiary Guarantor hereby ratifies and confirms any such extension, renewal, change, sale,
release, waiver, surrender, exchange, modification, amendment, impairment, substitution,
settlement, adjustment, compromise or purchase of Additional Notes and that the same shall be
binding upon it, and hereby waives, to the fullest extent permitted by law, any and all defenses,
counterclaims or offsets which it might or could have by reason thereof, it being understood that
such Subsidiary Guarantor shall at all times be bound by this Guaranty and remain liable hereunder.
(e) All rights of any Holder may be transferred or assigned at any time in accordance with the
Note Purchase Agreement and shall be considered to be transferred or assigned at any time or from
time to time upon the transfer of such Note in accordance with the Note Purchase Agreement without
the consent of or notice to the Subsidiary Guarantors under this Guaranty.
(f) No Holder shall be under any obligation: (i) to marshal any assets in favor of the
Subsidiary Guarantors or in payment of any or all of the liabilities of the Company or any
Subsidiary Guarantor under or in respect of the Notes or the obligations of the Company and the
Subsidiary Guarantors under the Note Purchase Agreement or (ii) to pursue any other remedy that the
Subsidiary Guarantors may or may not be able to pursue themselves and that may lighten the
Subsidiary Guarantors’ burden, any right to which each Subsidiary Guarantor hereby expressly
waives.
Section 4. Full Recourse Obligations; Pari Passu Ranking.
Subject to the Maximum Guaranteed Amount specified above, the obligations of each Subsidiary
Guarantor set forth herein constitute the full recourse obligations of such Subsidiary Guarantor
enforceable against it to the full extent of all its assets and properties.
The respective obligations under this Guaranty of the Subsidiary Guarantors are and at all
times shall remain direct and unsecured obligations of the Subsidiary Guarantors ranking pari passu
with all other present and future unsecured Indebtedness (actual or contingent) of the Subsidiary
Guarantors which is not expressed to be subordinate or junior in rank to any other unsecured
Indebtedness of the Subsidiary Guarantors.
Section 5. Waiver.
Each Subsidiary Guarantor unconditionally waives, to the extent permitted by applicable law:
(a) notice of any of the matters referred to in Section 3;
E-2.3-10
(b) notice to such Subsidiary Guarantor of the incurrence of any of the Guaranteed
Obligations, notice to such Subsidiary Guarantor of any breach or default by the Company or
such Subsidiary Guarantor with respect to any of the Guaranteed Obligations or any other
notice that may be required, by statute, rule of law or otherwise, to preserve any rights of
any Holder against such Subsidiary Guarantor;
(c) presentment to the Company or such Subsidiary Guarantor or of payment from the
Company or such Subsidiary Guarantor with respect to any Note or other Guaranteed Obligation
or protest for nonpayment or dishonor;
(d) any right to the enforcement, assertion, exercise or exhaustion by any Holder of
any right, power, privilege or remedy conferred in any Note, the Note Purchase Agreement or
otherwise;
(e) any requirement of diligence on the part of any Holder;
(f) any requirement to mitigate the damages resulting from any default under the Notes
or the Note Purchase Agreement;
(g) any notice of any sale, transfer or other disposition of any right, title to or
interest in any Note or other Guaranteed Obligation by any Holder, assignee or participant
thereof, or in the Note Purchase Agreement;
(h) any release of any Subsidiary Guarantor from its obligations hereunder resulting
from any loss by it of its rights of subrogation hereunder; and
(i) any other circumstance whatsoever which might otherwise constitute a legal or
equitable discharge, release or defense of a guarantor or surety or which might otherwise
limit recourse against such Subsidiary Guarantor.
Section 6. Waiver of Subrogation.
Notwithstanding any payment or payments made by any Subsidiary Guarantor hereunder, or any
application by any Holder of any security or of any credits or claims, no Subsidiary Guarantor will
assert or exercise any rights of any Holder or of such Subsidiary Guarantor against the Company to
recover the amount of any payment made by such Subsidiary Guarantor to any Holder hereunder by way
of any claim, remedy or subrogation, reimbursement, exoneration, contribution, indemnity,
participation or otherwise arising by contract, by statute, under common law or otherwise, and such
Subsidiary Guarantor shall not have any right of recourse to or any claim against assets or
property of the Company, in each case unless and until the Guaranteed Obligations have been paid in
full. Until such time (but not thereafter), each Subsidiary Guarantor hereby expressly waives any
right to exercise any claim, right or remedy which such Subsidiary Guarantor may now have or
hereafter acquire against the Company or any
other Subsidiary Guarantor that arises under the Notes, the Note Purchase Agreement or from
the performance by any Subsidiary Guarantor of the guaranty hereunder including any claim, remedy
or right of subrogation, reimbursement, exoneration, contribution, indemnification
E-2.3-11
or participation
in any claim, right or remedy of any Holder against the Company or any Subsidiary Guarantor, or any
security that any Holder now has or hereafter acquires, whether or not such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise. If any amount shall
be paid to a Subsidiary Guarantor by the Company or another Subsidiary Guarantor after payment in
full of the Guaranteed Obligations, and all or any portion of the Guaranteed Obligations shall
thereafter be reinstated in whole or in part and any Holder is required to repay any sums received
by any of them in payment of the Guaranteed Obligations, this Guaranty shall be automatically
reinstated and such amount shall be held in trust for the benefit of the Holders and shall
forthwith be paid to the Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured. The provisions of this paragraph shall survive the termination of this
Guaranty, and any satisfaction and discharge of the Company by virtue of any payment, court order
or any Federal or state law.
Section 7. Subordination.
If any Subsidiary Guarantor is or becomes the holder of any indebtedness payable by the
Company or another Subsidiary Guarantor, each Subsidiary Guarantor hereby subordinates all such
indebtedness owing to it from the Company or such other Subsidiary Guarantor to all indebtedness of
the Company to the Holders, and agrees that, during the continuance of any Event of Default, it
shall not accept any payment on the same until payment in full of the Guaranteed Obligations and
shall in no circumstance whatsoever attempt to set-off or reduce any obligations hereunder because
of such indebtedness. If any amount shall nevertheless be paid in violation of the foregoing to a
Subsidiary Guarantor by the Company or another Subsidiary Guarantor prior to payment in full of the
Guaranteed Obligations, such amount shall be held in trust for the benefit of the Holders and shall
forthwith be paid to the Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured.
Section 8. Effect of Bankruptcy Proceedings, Etc.
(a) If after receipt of any payment of, or proceeds of any security applied (or intended to be
applied) to the payment of all or any part of, the Guaranteed Obligations, any Holder is for any
reason compelled to surrender or voluntarily surrenders (under circumstances in which it believes
it could reasonably be expected to be so compelled if it did not voluntarily surrender), such
payment or proceeds to any Person (i) because such payment or application of proceeds is or may be
avoided, invalidated, declared fraudulent, set aside, determined to be void or voidable as a
preference, fraudulent conveyance, fraudulent transfer, impermissible set-off or a diversion of
trust funds or (ii) for any other similar reason, including, without limitation, (x) any judgment,
decree or order of any court or administrative body having jurisdiction over any Holder or any of
their respective properties or (y) any settlement or compromise of any such claim effected by any
Holder with any such claimant (including the Company), then the Guaranteed Obligations or part
thereof intended to be satisfied shall be reinstated and continue, and this Guaranty shall continue
in full force as if such payment or proceeds had not been received, notwithstanding any revocation
thereof or the cancellation of any Note or any other instrument evidencing any Guaranteed
Obligations or otherwise, and the Subsidiary Guarantors, jointly and severally, shall be liable to
pay the Holders, and hereby do indemnify the Holders and hold them harmless for, the amount of such
payment or proceeds so surrendered and all expenses (including reasonable
E-2.3-12
attorneys’ fees, court
costs and expenses attributable thereto) incurred by any Holder in defense of any claim made
against any of them that any payment or proceeds received by any Holder in respect of all or part
of the Guaranteed Obligations must be surrendered. The provisions of this paragraph shall survive
the termination of this Guaranty, and any satisfaction and discharge of the Company by virtue of
any payment, court order or any Federal or state law.
(b) If an event permitting the acceleration of the maturity of any of the Guaranteed
Obligations shall at any time have occurred and be continuing, and such acceleration shall at such
time be prevented by reason of the pendency against the Company or any other Person of any case or
proceeding contemplated by Section 8(a) hereof, then, for the purpose of defining the obligation of
any Subsidiary Guarantor under this Guaranty, the maturity of the principal amount of the
Guaranteed Obligations shall be deemed to have been accelerated with the same effect as if an
acceleration had occurred in accordance with the terms of such Guaranteed Obligations, and such
Subsidiary Guarantor shall forthwith pay such principal amount, all accrued and unpaid interest
thereon, and all other Guaranteed Obligations, due or that would have become due but for such case
or proceeding, without further notice or demand.
Section 9. Term of Guaranty.
This Guaranty and all guarantees, covenants and agreements of each Subsidiary Guarantor
contained herein shall continue in full force and effect and shall not be discharged until such
time as all of the principal of and interest on the Notes, the other Guaranteed Obligations and
other independent payment obligations of such Subsidiary Guarantor under this Guaranty shall be
paid in cash and performed in full, and all of the agreements of each of the other Subsidiary
Guarantors hereunder shall be duly paid in cash and performed in full.
Section 10. Contribution.
In order to provide for just and equitable contribution among the Subsidiary Guarantors, each
Subsidiary Guarantor agrees that, to the extent any Subsidiary Guarantor makes any payment
hereunder on any date which, when added to all preceding payments made by such Subsidiary Guarantor
hereunder, would result in the aggregate payments by such Subsidiary Guarantor hereunder exceeding
its Percentage (as defined below) of all payments then or theretofore made by all Subsidiary
Guarantors hereunder, such Subsidiary Guarantor shall have a right of contribution against each
other Subsidiary Guarantor whose aggregate payments then or theretofore made hereunder are less
than its Percentage of all payments by all Subsidiary Guarantors then or theretofore made
hereunder, in an amount such that, after giving effect to any such contribution rights, each
Subsidiary Guarantor will have paid only its Percentage of all payments by all Subsidiary
Guarantors then or theretofore made hereunder. A Subsidiary Guarantor’s “Percentage” on any date
shall mean the percentage obtained by dividing (a) the
Adjusted Net Assets of such Subsidiary Guarantor on such date by (b) the sum of the Adjusted
Net Assets of all Subsidiary Guarantors on such date. “Adjusted Net Assets” means, for each
Subsidiary Guarantor on any date, the lesser of (i) the amount by which the fair value of the
property of such Subsidiary Guarantor exceeds the total amount of liabilities, including contingent
liabilities, but excluding liabilities under this Guaranty, of such Subsidiary Guarantor on such
date and (ii) the amount by which the present fair salable value of the assets of such
E-2.3-13
Subsidiary
Guarantor on such date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts, excluding debt in respect of this Guaranty, as they become
absolute and matured.
Section 11. Limitation of Liability.
Each Subsidiary Guarantor hereby confirms that it is the intention of such Subsidiary
Guarantor that the guarantee by such Subsidiary Guarantor pursuant to this Guaranty not constitute
a fraudulent transfer or conveyance for purposes of Title 11 of the United States Code, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar applicable Federal or
state law (all such statutes and laws are collectively referred to as “Fraudulent Conveyance
Laws”). To effectuate the foregoing intention, each Subsidiary Guarantor hereby irrevocably agrees
that the obligations of such Subsidiary Guarantor under this Guaranty shall be limited to the
amount as will, after giving effect to all rights to receive any collections from or payments by or
on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor pursuant to Section 10 hereof, result in the obligations of such Subsidiary Guarantor
under this Guaranty not constituting such a fraudulent transfer or conveyance. In the event that
the liability of any Subsidiary Guarantor hereunder is limited pursuant to this Section 11 to an
amount that is less than the total amount of the Guaranteed Obligations, then it is understood and
agreed that the portion of the Guaranteed Obligations for which such Subsidiary Guarantor is liable
hereunder shall be the last portion of the Guaranteed Obligations to be repaid.
Section 12. Reserved.
[Reserved.]
Section 13. Supplemental Agreement.
Upon execution and delivery by a Subsidiary of a Supplemental Agreement substantially in the
form of Exhibit A hereto, such Subsidiary shall become a Subsidiary Guarantor hereunder with the
same force and effect as if originally named as a Subsidiary Guarantor herein. The execution and
delivery of any such instrument shall not require the consent of any other Subsidiary Guarantor
hereunder. The rights and obligations of each Subsidiary Guarantor hereunder shall remain in full
force and effect notwithstanding the addition of any new Subsidiary Guarantor as a party to this
Guaranty.
Section 14. Definitions and Terms Generally.
(a) Unless otherwise defined herein, capitalized terms defined in the Note Purchase Agreement
are used herein as defined therein. In addition, the following terms shall have the following
meanings.
“Adjusted Net Assets” has the meaning specified in Section 10 hereof.
E-2.3-14
“Fraudulent Conveyance Laws” has the meaning specified in Section 11 hereof.
“Guaranteed Obligations” has the meaning specified in Section 1 hereof.
“Guaranty” has the meaning specified in the introduction hereto.
“Holders” has the meaning specified in the introduction hereto.
“Material Adverse Effect” means a material adverse effect (a) on the business, financial
condition, operations or Properties of a Subsidiary Guarantor taken as a whole or (b) on its
ability to perform its obligations hereunder.
“Maximum Guaranteed Amount” shall mean, for each Subsidiary Guarantor, the maximum amount
which any Subsidiary Guarantor could pay under this Guaranty without having such payment set aside
as a fraudulent transfer or conveyance or similar action under Fraudulent Conveyance Law.
“Note Purchase Agreement” has the meaning specified in the Recitals hereto.
“Notes” has the meaning specified in the Recitals hereto.
“Percentage” has the meaning specified in Section 10 hereof.
“Subsidiary Guarantor” has the meaning specified in the introduction hereto.
(b) Whenever the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be
followed by the phrase “without limitation.” All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and Exhibits and Schedules
to, this Guaranty unless the context shall otherwise require.
Section 15. Notices.
All notices under the terms and provisions hereof shall be in writing (with charges prepaid),
and shall be delivered or sent by hand, by telecopy, by express courier service or by registered or
certified mail, return receipt requested, postage prepaid, addressed,
(a) if to any Holder, at the address set forth in the Note Purchase Agreement, or at
such other address as any such Holder shall from time to time designate to the Company,
(b) if to a Subsidiary Guarantor, at the address of such Subsidiary Guarantor set forth
on the signature pages hereto or at such other address as such Subsidiary Guarantor shall
from time to time designate in writing to each Holder.
A notice or communication shall be deemed to have been duly given and effective:
E-2.3-15
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(a) |
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when delivered (whether or not accepted), if personally delivered; |
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(b) |
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five business days after being deposited in the mail, postage prepaid, if
delivered by first-class mail (whether or not accepted); |
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(c) |
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when sent, if sent via facsimile; |
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(d) |
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when delivered if sent by registered or certified mail (whether or not
accepted); and |
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(e) |
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on the next Business Day if timely delivered by an overnight air courier, with
charges prepaid (whether or not accepted). |
Section 16. Amendments, Etc.
No amendment, alteration, modification or waiver of any term or provision of this Guaranty,
nor consent to any departure by any Subsidiary Guarantor therefrom, shall in any event be effective
unless the same shall be in writing and consented to by the Required Holders provided, however,
that any amendment, alteration, modification or waiver of the terms and conditions contained in
Section 1 hereof shall require consent from all Holders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given.
Section 17. Consent to Jurisdiction; Service of Process.
(a) Each Subsidiary Guarantor irrevocably submits to the nonexclusive in personam jurisdiction
of any Illinois State or federal court sitting in Cook County, Chicago, Illinois, over any suit,
action or proceeding arising out of or relating to this Guaranty or the Notes. To the fullest
extent it may effectively do so under applicable law, each Subsidiary Guarantor 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 in personam 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) Each Subsidiary Guarantor agrees, to the fullest extent it may effectively do so under
applicable law, that a final judgment in any suit, action or proceeding of the nature referred to
in paragraph (a) of this Section 17 brought in any such court shall be conclusive and binding upon
such party, subject to rights of appeal and may be enforced in the courts of the United States of
America or the State of Illinois (or any other courts to the jurisdiction of which such party is or
may be subject) by a suit upon such judgment.
(c) Each Subsidiary Guarantor consents to process being served in any suit, action or
proceeding of the nature referred to in paragraph (a) of this Section 17 by mailing a copy thereof
by registered or certified mail, postage prepaid, return receipt requested, to the address of each
Subsidiary Guarantor specified in Section 15 or at such other address of which you shall then
E-2.3-16
have
been notified pursuant to said Section. Each Subsidiary Guarantor 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 full extent permitted by applicable law, be taken and
held to be valid personal service upon and personal delivery to such party. 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.
(d) Nothing in this Section 17 shall affect the right of any holder of Notes 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 any Subsidiary Guarantor in the courts of any appropriate jurisdiction or
to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
Section 18. Waiver of Jury Trial.
Each Subsidiary Guarantor and by its acceptance hereof each Holder, to the fullest extent
permitted by applicable law, irrevocably and unconditionally waives the right to trial by jury in
any legal or equitable action, suit or proceeding arising out of or relating to this Guaranty or
the Note Purchase Agreement or any transaction contemplated hereby or thereby or the subject matter
of any of the foregoing.
Section 19. Survival.
All warranties, representations and covenants made by each Subsidiary Guarantor herein or in
any written certificate or other instrument required to be delivered by it or on its behalf
hereunder or under the Note Purchase Agreement shall be considered to have been relied upon by the
Holders and shall survive the execution and delivery of this Guaranty, regardless of any
investigation made by any Holder or on such Xxxxxx’s behalf. All statements in any such
certificate or other instrument shall constitute warranties and representations by such Subsidiary
Guarantor hereunder.
Section 20. Severability.
Any provision of this Guaranty which 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 not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, each Subsidiary Guarantor hereby waives
any provision of law that renders any provisions hereof prohibited or unenforceable in any respect.
E-2.3-17
Section 21. Successors and Assigns.
The terms of this Guaranty shall be binding upon each Subsidiary Guarantor and its successors
and permitted assigns and shall inure to the benefit of the Holders and their respective successors
and assigns permitted by the Note Purchase Agreement.
Section 22. Table of Contents; Headings.
The section and paragraph headings in this Guaranty and the table of contents are for
convenience of reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof, and all references herein to numbered sections, unless otherwise indicated, are
to sections in this Guaranty.
Section 23. Counterparts.
This Guaranty may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
Section 24. Governing Law.
This Guaranty shall in all respects be governed by, and construed and interpreted in
accordance with, the laws of the State of Illinois, without regard to the conflicts of laws
principles of such state.
Section 25. Release.
Notwithstanding any other provision hereof to the contrary, including without limitation
Section 3(c)(v), 3(c)(xiv) and 3(c)(xv), a Subsidiary Guarantor shall be automatically released
from its guaranty hereunder upon (a) the sale or exchange of all or substantially all of the stock
or the assets of such Subsidiary Guarantor permitted pursuant to Section 10.5 of the Note Purchase
Agreement and (b) the occurrence of a Collateral Release.
Section 26. Covenant Compliance.
Each Subsidiary Guarantor agrees to comply with each of the covenants contained herein and in
the Note Purchase Agreement that imposes or purports to impose, by reference to such Subsidiary
Guarantor, express or otherwise, through agreements with the Company, restrictions or obligations
on such Subsidiary Guarantor.
E-2.3-18
In Witness Whereof, each party hereto has caused this Guaranty to be duly executed as
of the date first above written.
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Address:
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AERO-MOTIVE COMPANY
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c/o Molex Incorporated |
By |
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0000 Xxxxxxxxxx Xxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Lisle, Illinois 60532 |
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Title: |
Vice President |
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XXXXXXX CORPORATION
MOLEX COPPER FLEX PRODUCTS, INC.
WOODHEAD INTERCONNECT, INC.
CENTRAL RUBBER COMPANY
XXXXXX XXXXXXXX COMPANY
DW HOLDING L.L.C.
XXXXXXXX X.X.
WH TWO, LLC
MOLEX INTERNATIONAL, INC.
MOLEX CV HOLDINGS, INC.
MOLEX CONNECTOR CORPORATION
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Name: |
Xxxxx X. Xxxxxxx |
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Treasurer |
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POLYMICRO TECHNOLOGIES, LLC WOODHEAD INDUSTRIES, INC.
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E-2.3-19
Exhibit A
Form of Supplemental Agreement
Supplemental Agreement dated as of ____________, ____ from ______________, a _______
corporation (the
“New Subsidiary”), for the benefit of the Holders (as defined in the Guaranty
referred to below). Capitalized terms used herein without definition shall have the respective
meanings ascribed thereto in the
Subsidiary Guaranty Agreement, dated as of August 18, 2011 (the
“Guaranty”), from each of: [names of guarantors] and such other Subsidiaries (as defined below) as
shall become parties thereto in accordance therewith, for the benefit of the Holders (as such term
is defined in such Guaranty).
Whereas, Molex Incorporated, a Delaware corporation (the “Company”) will authorize
the issue and sale of (i) $50,000,000 2.91% Series 2011A Senior Notes, Tranche A, due August 18,
2016 (the “Tranche A Notes”), (ii) $50,000,000 3.59% Series 2011A Senior Notes, Tranche B, due
August 18, 2018 (the “Tranche B Notes”) and (iii) $50,000,000 4.28% Series 2011A Senior Notes,
Tranche C, due August 18, 2021 (the “Tranche C Notes” and, together with the Tranche A Notes and
the Trance C Notes, the “Series 2011A Notes”), pursuant to a Note Purchase Agreement, dated as of
the date hereof (as amended, modified or supplemented from time to time, the “Note Purchase
Agreement”) among the Company and the purchasers named therein.
Whereas, the Company is authorized to issue Additional Notes (as such term is defined
in the Note Purchase Agreement) of one or more separate series from time to time in an aggregate
principal amount of Additional Notes of all series not to exceed $600,000,000 pursuant to Section
2.2 of the Note Purchase Agreement.
Whereas, the Additional Notes together with the Series 2011A Notes are collectively
referred to as the “Notes”.
Whereas, the New Subsidiary is a Subsidiary of the Company.
Whereas, certain of the existing Subsidiaries of the Company have entered into the
Guaranty.
Whereas, the Note Purchase Agreement requires that certain Subsidiaries become party
to the Guaranty (as a Subsidiary Guarantor).
Whereas, the New Subsidiary acknowledges that it will derive substantial benefits
from the issuance of the Notes.
Whereas, the Guaranty specifies that additional Subsidiaries may become Subsidiary
Guarantors under such Guaranty by execution and delivery of an instrument in the form of this
Agreement. The undersigned Subsidiary is executing this Agreement in accordance with the
requirements of the Note Purchase Agreement in order to become a Subsidiary Guarantor under the
Guaranty as consideration for the Notes previously purchased.
Exhibit 2.3
(to Note Purchase Agreement)
Now, Therefore, the New Subsidiary Guarantor agrees as follows:
Section 1. Guaranty. In accordance with Section 13 of the Guaranty, the New Subsidiary by its
signature hereto shall become a Subsidiary Guarantor under such Guaranty with the same force and
effect as if originally named therein as a Subsidiary Guarantor and the New Subsidiary hereby (a)
agrees to all the terms and provisions of such Guaranty applicable to it as a Subsidiary Guarantor
thereunder, (b) represents and warrants that the representations and warranties made by it as a
Subsidiary Guarantor are true and correct on and as of the date hereof with the same effect as
though made on and as of the date hereof, (c) acknowledges receipt of a copy of and agrees to be
obligated and bound by the terms of such Guaranty, and (d) agrees that each reference to a
“Subsidiary Guarantor” in such Guaranty shall be deemed to include the New Subsidiary.
Section 2. Enforceability. The New Subsidiary hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered by the New Subsidiary and constitutes a
legal, valid and binding obligation of the New Subsidiary enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the applicability of creditors’ rights generally and by
equitable principles of general applicability (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 3. Effect on Guaranty. Except as expressly supplemented hereby, the Guaranty shall
continue in full force and effect.
Section 4. Governing Law. This Agreement shall in all respects be governed by,
and construed and interpreted in accordance with, the laws of the State of Illinois, without regard
to the conflicts of laws principles of such state.
Section 5. Savings Clause. To the fullest extent permitted under applicable law, in the event
any one or more of the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect with respect to the New Subsidiary, no party hereto shall be required
to comply with such provision for so long as such provision is held to be invalid, illegal or
unenforceable, and the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. The parties shall endeavor in good-faith
negotiations to replace any invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
Section 6. Notices. All communications to the New Subsidiary shall be given to it at the
address or telecopy number set forth under its signature hereto.
E-2.3-21
In Witness Whereof, the New Subsidiary has duly executed this Agreement as of the day
and year first above written.
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[New Subsidiary]
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Title: Address:
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E-2.3-22
Form of Opinion of Corporate Secretary
to the Company
The closing opinion of Xxxx X. Xxxxxxx, Esq., Corporate Secretary of the Company, which is
called for by Section 4.4 of the Note Purchase Agreement, shall be dated the date of Closing and
addressed to the Purchasers, shall be satisfactory in scope and form to each Purchaser and shall be
to the effect that:
1. The Company is a corporation, duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the corporate power and authority to
execute and perform the Note Purchase Agreement and to issue the Notes.
2. The Company has the full corporate power and the corporate authority to conduct the
activities in which it is now engaged and is duly licensed or qualified and is in good standing as
a foreign corporation in each jurisdiction in which the character of the properties owned or leased
by it or the nature of the business transacted by it makes such licensing or qualification
necessary except in jurisdictions where the failure to be so qualified or licensed would not have a
material adverse effect on the business of the Company.
3. The Note Purchase Agreement has been duly authorized by all necessary corporate action on
the part of the Company and has been duly executed and delivered by the Company.
4. The Series 2011A Notes have been duly authorized by all necessary corporate action on the
part of the Company and have been duly executed and delivered by the Company.
5. The Subsidiary Guaranty has been duly authorized by all necessary corporate or other
organizational action on the part of each Subsidiary Guarantor (other than Xxxxxxxx X.X., a Texas
limited partnership (“LP”)), and has been duly executed and delivered by each Subsidiary Guarantor
other than LP.
6. Each Subsidiary Guarantor (other than LP) is a corporation or similar legal entity, duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly licensed or qualified and is in good standing in each jurisdiction in
which the character of the properties owned or leased by it or the nature of the business
transacted by it makes such licensing or qualification necessary except in jurisdictions where the
failure to be so qualified or licensed would not have a material adverse effect on the business of
such Subsidiary.
7. No approval, consent or withholding of objection on the part of, or filing, registration or
qualification with, any governmental body, Federal or state, is necessary in connection with the
execution and delivery of the Note Purchase Agreement, the Series 2011A Notes or the Subsidiary
Guaranty.
8. The issuance and sale of the Series 2011A Notes, the execution, delivery and performance by
the Company of the Note Purchase Agreement, and the execution, delivery and performance by each
Subsidiary Guarantor of the Subsidiary Guaranty do not conflict with or
Exhibit 4.4(a)
(to Note Purchase Agreement)
result in any breach of any of the provisions of or constitute a default under or to the best of my
knowledge result in the creation or imposition of any Lien upon any property of the Company or any
such Subsidiary Guarantor pursuant to the provisions of the Articles or Certificate of
Incorporation or By-laws, or such similar organizational or governing instrument, as the case may
be, of the Company or such Subsidiary Guarantor or any agreement or other instrument known to such
counsel to which the Company or any such Subsidiary Guarantor is a party or by which the Company or
any such Subsidiary Guarantor may be bound.
9. To the knowledge of such counsel after due inquiry, there are no actions, suits or
proceedings pending or threatened against or affecting the Company or any Subsidiary Guarantor in
any court or before any governmental authority or arbitration board or tribunal which, if adversely
determined, would have a materially adverse effect on the properties, business, profits or
condition, (financial or otherwise) of the Company and its Subsidiaries or the ability of the
Company to perform its obligations under the Note Purchase Agreement and the Series 2011A Notes or
on the legality, validity or enforceability of the Company’s obligations under the Note Purchase
Agreement and the Series 2011A Notes.
The opinion of Xxxx X. Xxxxxxx, Esq., shall cover such other matters relating to the sale of
the Notes as each Purchaser may reasonably request and successors and assigns of the Purchasers
shall be entitled to rely on such opinion. With respect to matters of fact on which such opinion
is based, such counsel shall be entitled to rely on appropriate certificates of public officials
and other officers of the Company and its Subsidiaries.
E-4.4(a)-2
Form of Opinion of Special Counsel
to the Company
The closing opinion of Xxxxx Xxxxx, LLP, special counsel to the Company, which is called for
by Section 4.4 of the Note Purchase Agreement, shall be dated the date of Closing and addressed to
the Purchasers, shall be satisfactory in scope and form to each Purchaser and shall be to the
effect that:
1. The Subsidiary Guaranty has been duly authorized by all necessary corporate or other
organizational action on the part of Xxxxxxxx X.X., a Texas limited partnership (“LP”), and has
been duly executed and delivered by LP.
2. LP is a limited partnership, duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization, and is duly licensed or qualified and is in good
standing in each jurisdiction in which the character of the properties owned or leased by it or the
nature of the business transacted by it makes such licensing or qualification necessary except in
jurisdictions where the failure to be so qualified or licensed would not have a material adverse
effect on the business of LP. All of the issued and outstanding shares of capital stock or similar
equity interests of LP have been duly issued, are fully paid and non-assessable and are owned by
the Company, by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
3. The Note Purchase Agreement constitutes the legal, valid and binding contract of the
Company enforceable against the Company in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance and similar laws affecting creditors’ rights generally, and
general principles of equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
4. The Series 2011A Notes constitute the legal, valid and binding contract of the Company
enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent conveyance and similar laws affecting creditors’ rights generally, and general
principles of equity (regardless of whether the application of such principles is considered in a
proceeding in equity or at law).
5. The Subsidiary Guaranty constitutes the legal, valid and binding contract of each
Subsidiary Guarantor enforceable against such Subsidiary Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent conveyance and similar laws affecting creditors’
rights generally, and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
6. The issuance and sale of the Series 2011A Notes, the execution, delivery and performance by
the Company of the Note Purchase Agreement, and the execution, delivery and performance by each
Subsidiary Guarantor of the Subsidiary Guaranty do not violate any provision of any law or other
rule or regulation of any Governmental Authority applicable to the Company or any such Subsidiary
Guarantor.
Exhibit 4.4(b)
(to Note Purchase Agreement)
7. The issuance, sale and delivery of the Series 2011A Notes and the execution and delivery of
the Subsidiary Guaranty by the Subsidiary Guarantors under the circumstances contemplated by the
Note Purchase Agreement and the Subsidiary Guaranty do not, under existing law, require the
registration of the Series 2011A Notes or the Subsidiary Guaranty under the Securities Act of 1933,
as amended, or the qualification of an indenture under the Trust Indenture Act of 1939, as amended.
8. Neither the issuance of the Series 2011A Notes nor the application of the proceeds of the
sale of the Series 2011A Notes will violate or result in a violation of Section 7 of the Securities
Exchange Act of 1934, as amended, or any regulation issued pursuant thereto, including, without
limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System.
9. The Company is not an “investment company” or a company “controlled” by an “investment
company,” within the meaning of the Investment Company Act of 1940, as amended.
The opinion of Xxxxx Xxxxx, LLP, shall cover such other matters relating to the sale of the
Notes as each Purchaser may reasonably request and successors and assigns of the Purchasers shall
be entitled to rely on such opinion. With respect to matters of fact on which such opinion is
based, such counsel shall be entitled to rely on appropriate certificates of public officials and
other officers of the Company and its Subsidiaries.
E-4.4(b)-2
Form of Opinion of Special Counsel
to the Purchasers
The closing opinion of Xxxxxxx and Xxxxxx LLP, special counsel to the Purchasers, called for
by Section 4.4 of the Note Purchase Agreement, shall be dated the date of Closing and addressed to
each Purchaser, shall be satisfactory in form and substance to each Purchaser and shall be to the
effect that:
1. The Note Purchase Agreement has been duly authorized by all necessary corporate action on
the part of the Company, has been duly executed and delivered by the Company and constitutes the
legal, valid and binding contract of the Company enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent conveyance and similar laws affecting creditors’ rights
generally, and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
2. The Series 2011A Notes have been duly authorized by all necessary corporate action on the
part of the Company, and the Notes being delivered on the date hereof have been duly executed and
delivered by the Company and constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting creditors’ rights generally, and general principles of equity
(regardless of whether the application of such principles is considered in a proceeding in equity
or at law).
3. The issuance, sale and delivery of the Series 2011A Notes and the execution and delivery of
the Subsidiary Guaranty under the circumstances contemplated by the Note Purchase Agreement and the
Subsidiary Guaranty do not, under existing law, require the registration of the Series 2011A Notes
or the Subsidiary Guaranty under the Securities Act of 1933, as amended, or the qualification of an
indenture under the Trust Indenture Act of 1939, as amended.
With respect to matters of fact upon which such opinion is based, Xxxxxxx and Xxxxxx LLP may
rely on appropriate certificates of public officials and officers of the Company and upon
representations of the Company and the Purchasers delivered in connection with the issuance and
sale of the Series 2011A Notes.
The opinion of Xxxxxxx and Xxxxxx LLP is limited to the laws of the State of Illinois and the
Federal laws of the United States.
Exhibit 4.4(c)
(to Note Purchase Agreement)
Molex Incorporated
[Number] Supplement to Note Purchase Agreement
Dated as of ______________________
Re: $____________ _____% Series _______ Senior Notes
Due _____________________
Exhibit S
(to Note Purchase Agreement)
Molex Incorporated
0000 Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Dated as of
____________________, 20__
To the Purchaser(s) named in
Schedule A hereto
Ladies and Gentlemen:
This [Number] Supplement to Note Purchase Agreement (the “Supplement”) is between Molex
Incorporated, a Delaware corporation (the “Company”), and the institutional investors named on
Schedule A attached hereto (the “Purchasers”).
Reference is hereby made to that certain Note Purchase Agreement dated as of August 18, 2011
(the “Note Purchase Agreement”) between the Company and the purchasers listed on Schedule A
thereto. All capitalized terms not otherwise defined herein shall have the same meaning as
specified in the Note Purchase Agreement. Reference is further made to Section 4.14 of the Note
Purchase Agreement which requires that, prior to the delivery of any Additional Notes, the Company
and each Additional Purchaser shall execute and deliver a Supplement.
The Company hereby agrees with the Purchaser(s) as follows:
1. The Company has authorized the issue and sale of $__________ aggregate principal amount of
its _____% Series ______ Senior Notes due _________, ____ (the “Series ______ Notes”). The Series
____ Notes, together with the Series 2011A Notes [and the Series ____ Notes] initially issued
pursuant to the Note Purchase Agreement [and the _________ Supplement] and each series of
Additional Notes which may from time to time hereafter be issued pursuant to the provisions of
Section 2.2 of the Note Purchase Agreement, are collectively referred to as the “Notes” (such term
shall also include any such notes issued in substitution therefor pursuant to Section 13 of the
Note Purchase Agreement). The Series _____ Notes shall be substantially in the form set out in
Exhibit 1 hereto with such changes therefrom, if any, as may be approved by the Purchaser(s) and
the Company.
2. Subject to the terms and conditions hereof and as set forth in the Note Purchase Agreement
and on the basis of the representations and warranties hereinafter set forth, the Company agrees to
issue and sell to each Purchaser, and each Purchaser agrees to purchase from the Company, Series
_____ Notes in the principal amount set forth opposite such Purchaser’s name on Schedule A hereto
at a price of 100% of the principal amount thereof on the closing date hereinafter mentioned.
3. The sale and purchase of the Series ______ Notes to be purchased by each Purchaser shall
occur at the offices of [______________________] at 10:00 a.m. Chicago time, at a closing
(the “Closing”) on ______, ____ or on such other Business Day thereafter on or prior to _______,
____ as may be agreed upon by the Company and the Purchasers. At the Closing, the Company will
deliver to each Purchaser the Series ______ Notes to be purchased by such Purchaser in the form of
a single Series ______ Note (or such greater number of Series ______ Notes in denominations of at
least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such
Purchaser’s name (or in the name of such Purchaser’s nominee), against delivery by such Purchaser
to the Company or its order of immediately available funds in the amount of the purchase price
therefor by wire transfer of immediately available funds for the account of the Company to account
number [__________________________] at ____________ Bank, [Insert Bank address, ABA number for wire
transfers, and any other relevant wire transfer information]. If, at the Closing, the Company
shall fail to tender such Series ______ Notes to any Purchaser as provided above in this Section 3,
or any of the conditions specified in Section 4 shall not have been fulfilled to any Purchaser’s
satisfaction, such Purchaser shall, at such Purchaser’s election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights such Purchaser may have by
reason of such failure or such nonfulfillment.
4. The obligation of each Purchaser to purchase and pay for the Series ______ Notes to be sold
to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction,
prior to the Closing, of the conditions set forth in Section 4 of the Note Purchase Agreement with
respect to the Series ______ Notes to be purchased at the Closing, and to the following additional
conditions:
(a) Except as supplemented, amended or superceded by the representations and warranties
set forth in Exhibit A hereto, each of the representations and warranties of the Company set
forth in Section 5 of the Note Purchase Agreement shall be correct as of the date of Closing
and the Company shall have delivered to each Purchaser an Officer’s Certificate, dated the
date of the Closing certifying that such condition has been fulfilled.
(b) Contemporaneously with the Closing, the Company shall sell to each Purchaser, and
each Purchaser shall purchase, the Series ______ Notes to be purchased by such Purchaser at
the Closing as specified in Schedule A.
5. [Here insert special provisions for Series ______ Notes including prepayment provisions
applicable to Series ______ Notes (including Make-Whole Amount) and closing conditions applicable
to Series ______ Notes].
6. Each Purchaser represents and warrants that the representations and warranties set forth in
Section 6 of the Note Purchase Agreement are true and correct on the date hereof with respect to
the purchase of the Series ______ Notes by such Purchaser.
7. The Company and each Purchaser agree to be bound by and comply with the terms and
provisions of the Note Purchase Agreement as fully and completely as if such Purchaser were an
original signatory to the Note Purchase Agreement.
-2-
The execution hereof shall constitute a contract between the Company and the Purchaser(s) for
the uses and purposes hereinabove set forth, and this agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.
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Molex Incorporated
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Accepted as of __________, _____
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Information Relating to Purchasers
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(1) All payments by wire transfer of
immediately available funds to: |
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with sufficient information to identify the
source and application of such funds. |
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(2) All notices of payments and written
confirmations of such wire transfers: |
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(3) All other communications: |
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Schedule A
(to Supplement)
Supplemental Representations
The Company represents and warrants to each Purchaser that except as hereinafter set forth in
this Exhibit A, each of the representations and warranties set forth in Section 5 of the Note
Purchase Agreement is true and correct in all material respects as of the date hereof with respect
to the Series ______ Notes with the same force and effect as if each reference to “Series 2011A
Notes” set forth therein was modified to refer the “Series ______ Notes” and each reference to
“this Agreement” therein was modified to refer to the Note Purchase Agreement as supplemented by
the _______ Supplement. The Section references hereinafter set forth correspond to the similar
sections of the Note Purchase Agreement which are supplemented hereby:
Section 5.3. Disclosure. The Company, through its agent, Xxxxxxx Lynch, Xxxxxx, Xxxxxx &
Xxxxx Incorporated has delivered to each Purchaser a copy of a Private Placement Memorandum, dated
____________ (the “Memorandum”), relating to the transactions contemplated by the ______
Supplement. The Memorandum fairly describes, in all material respects, the general nature of the
business and principal properties of the Company and its Restricted Subsidiaries. The Note
Purchase Agreement, the Memorandum, the documents, certificates or other writings delivered to each
Purchaser by or on behalf of the Company in connection with the transactions contemplated by the
Note Purchase Agreement and the _______ Supplement and the financial statements listed in Schedule
5.5 to the _____ Supplement, 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. Since ____________, there has been no
change in the financial condition, operations, business, properties or prospects of the Company
or any Restricted Subsidiary except changes that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company
that would reasonably be expected to have a Material Adverse Effect that has not been set forth
herein or in the Memorandum or in the other documents, certificates and other writings delivered to
each Purchaser by or on behalf of the Company specifically for use in connection with the
transactions contemplated hereby.
Section 5.4. Organization and Ownership of Shares of Subsidiaries. (a) Schedule 5.4 to the
______ Supplement contains (except as noted therein) complete and correct list of the Company’s
Restricted and Unrestricted Subsidiaries, and showing, as to each Subsidiary, the correct name
thereof and the jurisdiction of its organization.
Section 5.13. Private Offering by the Company. Neither the Company nor anyone acting on its
behalf has offered the Series __ 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 [______] other Institutional Investors, each
of which has been offered the Series ______ Notes at 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.
Schedule A
(to Supplement)
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the
sale of the Series ______ Notes to ____________________ and for general corporate purposes. No part
of the proceeds of the sale of the Series _______ Notes shall be used directly or indirectly to (i)
finance or refinance dealings or transactions with any Person described or designated in the
Specially Designated Nationals and Blocked Person List (the “SDN List”) of the Office of Foreign
Asset Control or in Section 1 of the Anti-Terrorism Order or (ii) for any purpose that is otherwise
in violation of any applicable Anti-Money Laundering Laws or applicable Anti-Corruption Laws.
(b) No part of the proceeds from the sale of the Series ______ Notes pursuant to the _____
Supplement will be used, directly or indirectly, for the purpose of buying or carrying any margin
stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224)
or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).
Margin stock does not constitute more than 10% 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 10% of the value of such assets. As used in this Section, the terms
“margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said
Regulation U.
Section 5.15. Existing Indebtedness; Future Liens. (a) Schedule 5.15 to the _________
Supplement sets forth a complete and correct list of all outstanding Indebtedness of the Company
and its Restricted Subsidiaries as of _____________ (including a description of the obligors and
obliges, principal amount outstanding and collateral therefor, if any, and Guarantee thereof, if
any), since which date there has been no Material change in the amounts, interest rates, sinking
funds, installment payments or maturities of the Indebtedness of the Company or its Restricted
Subsidiaries. Neither the Company nor any Restricted Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any principal or interest on any Indebtedness of
the Company or such Restricted Subsidiary and no event or condition exists with respect to any
Indebtedness of the Company or any Restricted Subsidiary the outstanding principal amount of which
exceeds $25,000,000 that would permit (or that with notice or the lapse of time, or both, would
permit) one or more Persons to cause such Indebtedness to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
[Add any additional Sections as appropriate at the time the Series ______ Notes are issued]
-2-
[Form of Series ______ Note]
Molex Incorporated
___% Series ______ Senior Note due ______________
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No. [_________]
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[Date] |
$[____________]
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PPN [____________] |
For Value Received, the undersigned, Molex Incorporated, a Delaware
corporation (herein called the “Company”), a corporation organized and existing under the laws of
the State of ____________, hereby promises to pay to [________________], or registered assigns, the
principal sum of [________________] Dollars (or so much thereof as shall not have been
prepaid) on _______________, 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 ____% per annum from the date
hereof, payable semiannually, on the _____ day of ______ and ______ in each year, commencing on the
first of such dates after 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 [2%
above the stated rate], 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,
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 ______________________, in
______________________, 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 (the “Notes”) issued pursuant to a Supplement to
the Note Purchase Agreement dated as of August 18, 2011 (as from time to time amended, supplemented
or modified, the “Note Purchase Agreement”), between the Company, the Purchasers named therein and
Additional Purchasers of Notes from time to time issued pursuant to any Supplement to the Note
Purchase Agreement. This Note and the holder hereof are entitled equally and ratably with the
holders of all other Notes of all series from time to time outstanding under the Note Purchase
Agreement to all the benefits provided for thereby or referred to therein. 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 Sections 6.2 and 6.3 of the Note Purchase Agreement, provided that such holder may (in reliance
upon information provided by the Company, which shall not be unreasonably withheld) make a
representation to the effect that the purchase by such holder of any Note will not constitute a
non-exempt prohibited transaction
Exhibit 1
(to Supplement)
under Section 406(a) of ERISA. 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 registered with the Company 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 of the same series 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.
[The Company will make required prepayments of principal on the dates and in the amounts
specified in the Note Purchase Agreement.] [This Note is not subject to regularly scheduled
prepayments of principal.] This Note is [also] 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.
Pursuant to the
Subsidiary Guaranty Agreement dated as of August 18, 2011 (as amended or
modified from time to time, the
“Subsidiary Guaranty”), certain Subsidiaries of the Company have
absolutely and unconditionally guaranteed payment in full of the principal of, Make-Whole Amount,
if any, and interest on this Note and the performance by the Company of its obligations contained
in the Note Purchase Agreement all as more fully set forth in said Subsidiary Guaranty.
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 parties
shall be governed by, the law of the State of Illinois 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.
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Molex Incorporated
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By |
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Name: |
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Title: |
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E-1-2