Exhibit 2.2
EXECUTION COPY
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
1
THIS AMENDMENT
is made and entered into this 30th day of November, 2010, by and among
ON Semiconductor Corporation
, a
Delaware corporation (“
Purchaser Parent
”),
Semiconductor Components Industries, LLC
, a Delaware limited liability company (“
Purchaser
”), and
SANYO Electric Co., Ltd.
, a Japanese
corporation (“
Seller
”). Each of Purchaser, Purchaser Parent and Seller is referred to as a “
party
” and collectively as the “
parties
.” Defined terms that are used but not
otherwise defined herein shall have the meanings set forth for such terms in that certain Purchase Agreement, dated as of July 15, 2010, by and among Purchaser, Purchaser Parent and Seller (the “
Purchase Agreement
”).
RECITALS
1. Purchaser, Purchaser Parent and Seller are parties to the Purchase Agreement; and
2. In accordance with
Section 15.6
of the Purchase Agreement, each of Purchaser, Purchaser Parent and Seller desires to modify the Purchase Agreement in certain respects as described herein.
AGREEMENT
ARTICLE I
AMENDMENTS
1.1
Closing Date.
Section 1.2
of the Purchase Agreement is hereby amended by deleting (x) the hour “10:00
A.M.” and inserting in lieu thereof the hour “03:00 A.M., U.S. Pacific Standard Time,” and (y) the date “November 1, 2010” and inserting in lieu thereof the date “January 1, 2011”.
1.2
Closing Payments; Loan Consideration; No Purchaser Parent Shares Consideration.
(a)
Section 1.3(c)(i)
of the Purchase Agreement is hereby amended by inserting immediately after the clause “(3)
minus
the Closing Cash and Cash Equivalents Shortfall,” a new clause that reads “(4)
plus
the amount equal to the Capital Registration Tax,”.
(b)
Section 1.3(c)(ii)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(ii) a portion of the Purchase Price in an aggregate amount (the “
Loan Consideration
”) equal to (1) the Purchase Price (as determined in accordance with
Section 1.4(a)
), (2)
minus
the Cash Consideration, (3)
plus or minus
, as the case may be, the Estimated Closing Net Working Capital Adjustment Amount (as
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Exhibits, schedules and similar attachments to this agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Any omitted exhibit,
schedule or similar attachment will be furnished supplementally to the SEC upon request.
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determined in accordance with Section
1.4(a)(vi)
), (4)
plus
the Closing Cash and Cash Equivalents Shortfall, (5)
minus
the amount equal to the Capital
Registration Tax; to be loaned to Purchaser by Seller pursuant to a loan agreement to be executed by Seller and Purchaser at Closing substantially in the form attached hereto as
Exhibit P
(the “
Loan Agreement
”).”
(c) Each of
Sections 1.4(a)(iv)
and
1.4(a)(vi)
of the Purchase Agreement is hereby amended by deleting the
defined term “
Stock Consideration
” each time it appears therein and inserting in lieu thereof the defined term “
Loan Consideration
”.
(d)
Section 1.4(a)(v)
is hereby amended and restated in its entirety to read as follows:
“(v) The Loan Consideration at the Closing shall accordingly be reduced in part on a Yen to Yen basis by the aggregate amount of the
Estimated Transferred Unfunded Benefit Liabilities.”
(e)
Sections 1.4(a)(viii)
and
1.4(o)
are hereby
deleted in their respective entireties.
(f)
Section 4.5
of the Purchase Agreement is hereby deleted in its
entirety.
(g)
Section 5.3
of the Purchase Agreement is hereby amended and restated in its entirety to read as
follows:
“Section 5.3 [
Intentionally omitted
]”
(h)
Section 7.9(a)(ii)
of the Purchase Agreement is hereby amended by (i) deleting in its entirety the clause that reads
“(5) holding of the Issued Shares;” and (ii) renumbering clause “(6)” as clause “(5)”.
(i)
Section 7.12
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“Section 7.12 [
Intentionally omitted
]”
(j)
Article XIV
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“ARTICLE XIV
[
Intentionally omitted
]”
(k) The form of Loan Agreement attached hereto as
Attachment 1
is hereby added as
Exhibit P
to the Purchase Agreement.
1.3
Illustrative Purchase Price Calculation.
Annex II
to the Purchase Agreement is hereby deleted in its
entirety and replaced with
Annex II
attached hereto as
Attachment 2
.
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1.4
Closing Balance Sheet.
Section 1.4(b)
of the Purchase Agreement is
hereby amended by deleting the clause “(i) a consolidated balance sheet of the Company Group Entities as of the Closing Adjustment Base Date, prepared in accordance with J-GAAP on a basis consistent with the Unaudited Financial
Statements” and inserting in lieu thereof the clause “(i) a consolidated balance sheet of the Company Group Entities as of the Closing Adjustment Base Date, prepared in accordance with U.S. GAAP reconciled to J-GAAP on a basis
consistent with the Audited Pro Forma Financial Statements with the exception that Amorton Business will not be included but the Transferred SCE Business will be included”.
1.5
Actuary.
Section 1.4(i)
of the Purchase Agreement is hereby amended by deleting the words “Sumitomo Life
Insurance Company, the pension actuary of Seller’s corporate pension fund (the “
Actuary
”)” in the first sentence thereof and inserting in lieu thereof the words “the Actuary”.
1.6
Closing Deliveries.
(a)
Section 2.1
of the Purchase Agreement is hereby amended by (i) inserting immediately after the word “Closing” in the first sentence thereof the words “or on such other
date specified below”, (ii) deleting the word “and” at the end of clause “(a)” thereof, (iii) deleting the period at the end of clause “(b)” thereof and inserting in lieu thereof “; and”, and
(iv) inserting a new clause “(c)” as follows:
“(c)
Letter to Purchaser
. No later than
December 30, 2010, a letter from Seller to Purchaser, which letter may be provided by Purchaser to the Escrow Agent, irrevocably stating that any Closing Cash Payment and Escrow Amount delivered by Purchaser to the Escrow Agent prior to the
Closing Date are, prior to the Closing, the sole property of Purchaser and Purchaser may, in its sole discretion and at any time prior to the Closing, without Seller’s approval, withdraw all such amounts from the Escrow Account. Such letter
shall include such other provisions and be in such form as agreed by the parties.”
(b)
Section 2.2
of the
Purchase Agreement is hereby amended by (i) inserting immediately after the word “Closing” in the first sentence thereof the words “or on such other date specified below” and (ii) deleting clauses “(a)” and
“(b)” thereof in their respective entireties and replacing them with the following provisions:
“(a)
Loan
Agreement
. The Loan Agreement, duly executed by Purchaser, Purchaser Parent and Seller; and
(b)
Letters to Seller
.
At Closing, (i) the original letter delivered by Seller to Purchaser pursuant to
Section 2.1(c)
and (ii) a letter from Purchaser to Seller, which letter may be provided by Seller to the Escrow Agent, irrevocably stating that
any Closing Cash Payment delivered by Purchaser to the Escrow Agent prior to the Closing Date may, without further Purchaser’s approval, be released to Seller upon Seller’s request in accordance with this Agreement and the Escrow
Agreement. The letter described in the preceding clause (ii) shall include such other provisions and be in such form as agreed by the parties.”
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1.7
Services Agreement.
(a)
Section 7.3
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“7.3
Services Agreement.
On or before the Closing, Company and Seller shall enter into a services agreement, substantially in
the form attached hereto as
Exhibit H-1
(the “
Services Agreement
”). The terms and conditions applicable to such services will be set forth on schedules to be attached to the Services Agreement, which, in the case of
each such service that has been identified by Purchaser and Seller as of the date hereof, shall be in accordance with the terms described in attached
Exhibit H-2
and which, in all cases, shall otherwise in form and substance reasonably
satisfactory to Purchaser and Seller.”
(b) The Purchase Agreement is hereby amended by deleting all references
throughout it to the defined term “Transition Services Agreement” and inserting in lieu thereof the defined term “Services Agreement”.
(c)
Exhibit H-1
(Form of Transition Services Agreement) to the Purchase Agreement is hereby deleted in its entirety and replaced with new
Exhibit H-1
(Form of Services Agreement) attached
hereto as
Attachment 3
.
1.8
Letter Agreement.
(a)
Article VII
of the Purchase Agreement is hereby amended by inserting new
Section 7.24
as follows:
“7.24
Letter Agreement.
On or before Closing, Purchaser and Seller shall enter into a letter agreement, substantially in the
form attached hereto as
Exhibit Q
(the “
Letter Agreement
”).”
(b) The form of Letter
Agreement attached hereto as
Attachment 4
is hereby added as
Exhibit Q
to the Purchase Agreement.
1.9
Transferred Fixtures.
(a)
Article III
of the Purchase Agreement is hereby amended by inserting new
Section 3.35
as follows:
“3.35
Transferred Fixtures.
Schedule 3.35
of the Seller Disclosure
Schedule contains a true and complete list as of November 30, 2010 of all fixtures owned by Company located in each real property owned by Seller to be leased to a Company Group Entity pursuant to this Agreement (the “
Transferred
Fixtures
”) specifying the location thereof.”
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(b)
Article VII
of the Purchase Agreement is hereby amended by inserting new
Section 7.25
as follows:
“7.25
Transfer of Transferred Fixtures.
Prior to Closing, Seller shall cause
Company to duly transfer title to the Transferred Fixtures to Seller pursuant to a transfer agreement in form and substance reasonably satisfactory to Purchaser and Seller (the “
Fixtures Transfer Agreement
”). The parties
agree that, upon the expiration of the term or other termination of any Lease Agreement, Purchaser shall have the right, exercisable by written notice delivered to Seller, to purchase (or have one or more designated Affiliates of Purchaser purchase)
any Transferred Fixtures located at the premises underlying such Lease Agreement at such Transferred Fixtures’ applicable book value as of the date of such expiration or other termination. In the event that Purchaser exercises such right,
Seller shall sell and duly transfer title to such Transferred Fixtures, free and clear of all Encumbrances, as soon as practicable after Purchaser’s notice, and Purchaser (or its designated Affiliate) shall purchase the same and remove them
from such premises on or before the evacuation therefrom;
provided, however,
that if Seller raises any objection with respect to the purchase of any such Transferred Fixtures, without limiting Purchaser’s rights pursuant to the preceding
sentence, prior to the transfer of such Transferred Fixtures, Seller and Purchaser shall discuss such objection in good faith.”
(c) The schedule of Transferred Fixtures attached hereto as
Attachment 5
is hereby added as
Schedule 3.35
to the Seller Disclosure Schedule.
1.10
NDSS IT Support Agreement.
(a)
Article VII
of the Purchase Agreement is hereby amended by inserting new
Section 7.26
as follows:
“7.26
NDSS IT Support Agreement.
On or before Closing, Purchaser and Seller shall enter into an agreement, substantially in the form attached hereto as
Exhibit R
(the “
NDSS
IT Support Agreement
”).”
(b) The form of NDSS IT Support Agreement attached hereto as
Attachment 6
is hereby added as
Exhibit R
to the Purchase Agreement.
1.11
Leases.
(a)
Section 7.5(a)
of the Purchase Agreement is hereby amended by inserting immediately after the word “parties” at
the end of such provision the words “, and, in connection with such lease agreements, Seller, the Company and the other Company Group Entities identified therein shall enter into the lease letter agreement substantially in the form attached
hereto as
Exhibit J-2
”.
(b)
Section 7.5(b)
of the Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(b) Purchaser and Seller shall enter into a memorandum of understanding
substantially in the form attached hereto as
Exhibit J-3
with respect to the assignment to Company (or another Company Group Entity designated by Purchaser) of certain employee accommodations leased as of the Closing Date by Seller as
contemplated thereby.”
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(c) The forms of lease letter agreement attached hereto as
Attachment 7
and
memorandum of understanding attached hereto as
Attachment 8
are hereby added as
Exhibit J-2
and
Exhibit J-3
, respectively, to the Purchase Agreement.
1.12
Secondment Agreements.
Exhibit K-4
(Form of Secondment Agreement (New SSMC to Seller)) and
Exhibit K-6
(Form of Secondment Agreement (KSS to Seller)) to the Purchase Agreement
are hereby deleted in their respective entireties and each replaced with “[
Intentionally omitted
]”.
1.13
Transaction with Seller Group Entities.
Section 7.16
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“7.16
Transaction with Seller Group Entities.
The parties agree that agreements in effect as of the Closing Date between any Company Group Entity, on the one hand, and any Seller Group Entity,
on the other hand, listed on
Schedule 7.16(a)
, shall terminate as of the Closing Date and listed on
Schedule 7.16(b)
, shall continue in effect. Seller and Purchaser shall negotiate in good faith and mutually agree on each of
Schedule 7.16(a)
and
Schedule 7.16(b)
prior to the Closing Date, and no party shall take any position inconsistent with the Transaction Agreements. Seller shall not (and shall cause each other Seller Group Entity not to)
(x) change the terms of any agreement listed on
Schedule 7.16(b)
in effect as of the Closing Date, or (y) unilaterally terminate any such agreement during its respective current effective term without a cause for such termination;
provided
that, prior to giving any notice of termination with cause, Seller shall consult with Company or the relevant Company Group Entity. After the Closing, Purchaser shall cause the Company and the relevant Company Group Entities to use
their respective best efforts to operate their respective businesses independently from Seller and the other Seller Group Entities from a systems and business process perspective. If, despite such Company and Company Group Entities’ efforts,
the Company or the relevant Company Group Entity is not able to operate their respective businesses independently from Seller and the other Seller Group Entities from a systems and business process perspective, the Company or any such Company Group
Entity shall have the right to extend the effective term of any such agreement which does not renew automatically in accordance with its terms as necessary to operate its respective business until the Company or any such Company Group Entity, as the
case may be, is able to operate its respective business independently from a systems and business process perspective. If the Company or any Company Group Entity wishes to exercise such extension right, the Company shall give at least thirty
(30) Business Days’ prior notice to Seller. Upon receiving any such notice, Seller shall, and shall cause each other Seller Group Entity to, extend the effective term of such agreement until the earlier of (i) the termination date
that Seller and the Company agree upon, (ii) the date falling on the third (3rd) anniversary of the Closing Date or (iii) the date on which the Company or such Company Group Entity, as the
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case may be, has begun to operate its business independently from a systems and business process perspective, without any payment or other consideration being payable for such renewal or
extension, so long as the Company or such Company Group Entity, as the case may be, shall have used its respective best efforts to operate its respective business independently from a systems and business process perspective. To the extent the
Company or relevant Company Group Entity is not able to operate their respective businesses independently from Seller and the other Seller Group Entities from a systems and business process perspective, with respect to any such agreement which
renews automatically in accordance with its terms as necessary for the Company or any such Company Group Entity to operate its respective businesses until the Company or any such Company Group Entity, as the case may be, is able to operate its
respective businesses independently from a systems and business process perspective, the effective term of such agreement shall be automatically renewed and extended until the earlier of (i) the termination date that the Seller and the Company
agree upon, (ii) the date falling on the third (3rd) anniversary of the Closing Date or (iii) the date on which the Company or the Company Group Entity party to such agreement, as the case may be, has begun to operate its business
independently from a systems and business process perspective, without any payment or other consideration being payable for such renewal and extension, so long as the Company or such Company Group Entity, as the case may be, shall have used its
respective best efforts to operate its respective business independently from a systems and business process perspective. If the Company or the Company Group Entity, as the case may be, does not wish to automatically renew any such agreement, the
Company shall give at least thirty (30) Business Days’ prior notice of such intention to the Seller. Upon receiving any such notice, such agreement shall automatically terminate on the last day of its then current term. Notwithstanding the
foregoing, any other terms or provisions in this Agreement not consistent with the foregoing or any terms or provisions in the Services Agreement or NDSS IT Support Agreement not consistent with the foregoing shall prevail and the foregoing shall be
null and void to the extent not consistent with any such terms and provisions of this Agreement, Services Agreement or NDSS IT Support Agreement.”
1.14
SNA.
(a)
Section 7.20
of the Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
“7.20
SNA Assignment and Assumption Agreement.
Prior to September 29, 2010 Purchaser shall establish a newly formed limited liability company organized under the laws of the State of Delaware (
“SNA NewCo”
) and elect that such entity be treated as a
“regarded” entity for U.S. tax purposes. Purchaser hereby agrees not to change such tax election prior to Closing. As soon as reasonably practicable after September 29, 2010, Purchaser shall sell to Company and Seller shall cause
Company to purchase from Purchaser all of the equity of SNA NewCo for an aggregate purchase price of one dollar ($1.00) (
“SNA
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Transfer
”). Prior to Closing, Seller shall cause SNA NewCo and SNA to enter into an assignment and assumption agreement, substantially in the form attached hereto as
Exhibit
L
(the “
Transferred SNA Business Assignment and Assumption
”) and effectuate the purchase and sale of the Transferred SNA Business as contemplated thereby.”
(b)
Section 1.1(d)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(d) [
Intentionally omitted
]”
(c)
Section 1.3(b)(ii)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(ii)
Allocation and SNA Valuation
. Seller and Purchaser agree that Purchaser shall prepare and provide to Seller (i) a draft allocation (“
Allocation
”) of the
Purchase Price among the Purchased Business and (ii) a draft valuation of the Transferred SNA Business (the “
SNA Valuation
”) no later than thirty (30) days prior to Closing, and that the portion of the Purchase
Price allocated to the Transferred IP Assets shall be equal to the IP Appraisal set forth in Section 1.3(b)(i). Seller shall notify Purchaser within ten (10) days of receipt of such draft Allocation and valuation of any objection Seller
may have thereto. Seller and Purchaser agree to resolve any disagreement with respect to such Allocation or SNA Valuation in good faith. Seller and Purchaser hereby undertake and agree to (i) use the Allocation and SNA Valuation determined
pursuant to this
Section 1.3(b)
to report, act and file Tax Returns (including Internal Revenue Service Form 8594 and any amendments thereto) and (ii) use the SNA Valuation as determined pursuant to this
Section 1.3(b)
as the SNA Purchase Price in the Transferred SNA Business Assignment and Assumption attached hereto as
Exhibit L
.”
(d)
Exhibit L
to the Purchase Agreement is hereby deleted in its entirety and replaced with
Exhibit L
attached hereto as
Attachment 9
.
1.15
SCE.
(a)
Section 7.21
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“7.21
Transfer of Transferred SCE Business.
(a) At Closing, Seller
shall cause SCE to enter into a fixed assets transfer agreement, substantially in the form attached hereto as
Exhibit M-1
(the “
SCE Fixed Assets Transfer Agreement
”), with ON Semiconductor Germany GmbH (“
ON
Germany
”) and ON Semiconductor Limited (“
ON UK
”), and Purchaser shall cause each of ON Germany and ON UK to enter into the SCE Fixed Assets Transfer Agreement, to effectuate the purchase and sale of certain fixed
assets of the Transferred SCE Business as contemplated thereby.
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(b) On January 31, 2011 (the “
Second SCE Transfer Date
”),
Seller shall cause SCE to enter into an assignment and assumption agreement, substantially in the form attached hereto as
Exhibit M-2
(the “
Transferred SCE Business Assignment and Assumption
”), with ON UK and ON
Semiconductor Trading Ltd. (“
ON Bermuda
”), and Purchaser shall cause each of ON UK and ON Bermuda to enter into the Transferred SCE Business Assignment and Assumption, to effectuate the purchase and sale of the Transferred
SCE Business (except for the fixed assets subject to the SCE Fixed Assets Transfer Agreement) as contemplated thereby. For the avoidance of doubt, the parties acknowledge and agree that, with respect to the assets and liabilities subject to the
Transferred SCE Business Assignment and Assumption, (x) Purchaser shall not be required to pay any consideration other than the Purchase Price as provided in
Section 1.3
, which Purchase Price includes the full consideration for the
Transferred SCE Business, and (y) such assets and liabilities corresponding to the items to be adjusted as provided in
Section 1.4
as of the Closing Adjustment Base Date shall be subject to such adjustment as contemplated thereby
notwithstanding their transfer on the Second SCE Transfer Date. During the period commencing on the Closing Date and ending on the Second SCE Transfer Date, (x) Seller shall cause SCE to conduct its business activities in the ordinary course of
business consistent with past practice, including its past practice and timing regarding the payment of invoices and collection of receivables, and (y) all revenue generated by SCE shall belong to SCE.”
(b)
Section 1.3
of the Purchase Agreement is hereby amended by inserting a new clause “(e)” as follows
“(e) The parties acknowledge and agree that such portion of the Purchase Price allocated to the Transferred SCE Business will be paid
by Purchaser on behalf of each of its designated Affiliates acquiring a portion of the Transferred SCE Business pursuant to
Section 7.21
, and received by Seller on behalf of SCE.”
(c)
Exhibit M
(Form of Transferred SCE Business Assignment and Assumption) to the Purchase Agreement is hereby deleted in its
entirety, and the forms of SCE Fixed Assets Transfer Agreement attached hereto as
Attachment 10
and Transferred SCE Business Assignment and Assumption attached hereto as
Attachment 11
are hereby added as
Exhibit M-1
and
Exhibit M-2
, respectively, to the Purchase Agreement.
1.16
SSMPE.
(a)
Section 7.22
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“7.22
Transfer of SSMPE Interest.
The parties agree to work together in good faith after the Closing to arrange for the
transfer of all outstanding equity ownership interests in SSMPE that are not held by a Company Group Entity (such interests, the “
SSMPE Ownership Interest
”) to an entity in the Philippines to be designated by Purchaser. In
furtherance of the foregoing, the parties shall after
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the Closing discuss in good faith possible structures to transfer the SSMPE Ownership Interest, including the possibility of causing SSMPE to restate its financial statements to report in
Philippine Pesos. Additionally, Seller hereby agrees that (1) it shall cause Sanyo Marketing Corporation not to be dissolved or liquidated until completion of the transfer contemplated by this
Section 7.22
; and (2) it shall
cause Sanyo Marketing Corporation not to sell or otherwise dispose of any SSMPE Ownership Interests and SSMPE not to sell or otherwise dispose of any real property.”
(b)
Section 1.1(f)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(f) [
Intentionally omitted
]”
1.17
Employee Matters.
Annex III
(Employee Matters) to the Purchase Agreement is hereby deleted in its entirety and replaced with revised
Annex III
(Employee Matters) attached hereto as
Attachment 12
.
1.18
Bank Debt.
(a)
Section 6.7(a)
of the Purchase Agreement is hereby amended by (i) deleting clause “(i)” in its entirety and replacing it with clause “(i)” as set forth immediately
below, (ii) inserting new clauses “(ii)” and “(iii)” as set forth immediately below, and (iii) renumbering clauses “(ii)” and “(iii)” as clauses “(iv)” and “(v)”, respectively:
“(i) Each of Seller and Purchaser Parent shall use its commercially reasonable efforts (without being required to pay any
additional fees, premiums or other amounts) to have, if requested by Purchaser, the BOT Loan and the Shoko Loan remain in full force and effect from and after Closing on the same terms as those terms in effect as of the date hereof, or refinanced on
terms substantially economically equivalent in the aggregate thereto.
(ii) Prior to Closing, Seller shall (x) either
(A) cause the DBJ Loans to be transferred to Seller or its designated Affiliate (other than a Company Group Entity) or (B) cause the DBJ Loans to be repaid and (y) cause SSMC and the other Company Group Entities and their respective
properties and assets to be released from any and all Encumbrances created or arising in connection with the DBJ Loans.
(iii)
Prior to Closing, Seller shall (x) cause each of the Company Group Entities that are parties to the equipment lease agreements set forth in
Schedule 6.7(a)(iii)
to repay such leases in full, release or cause the release of all
Encumbrances upon or with respect to the equipment leased thereunder and, to the extent title is not held by such Company Group Entities, duly acquire title to such equipment, and (y) provide to Purchaser evidence of such repayment of
leases.”
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(b) The schedule of equipment lease agreements attached hereto as
Attachment 13
is
hereby added as
Schedule 6.7(a)(iii)
to the Purchase Agreement.
1.19
Capital Expenditures.
Section 6.11
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“6.11
Capital Expenditures.
Prior to the Closing Date, except as otherwise agreed by Purchaser or Purchaser Parent, Seller
shall, or shall cause the Company Group Entities to, make not less than eighty percent (80%) of the budgeted capital expenditures set forth, during the quarterly period set forth, on
Schedule 6.11
, and shall provide to Purchaser written
confirmation upon making each such capital expenditures;
provided
, that if prior to the Closing Date less than eighty percent (80%) of such budgeted capital expenditures have so been made, the difference between eighty percent
(80%) of such budgeted capital expenditures and the percentage of such budgeted capital expenditures actually so made shall constitute a “
Capital Expenditures Shortfall
” (and, for the avoidance of doubt, Seller shall not
be in breach of its obligation to make not less than eighty percent (80%) of such budgeted capital expenditures). Prior to the Closing Date, except as otherwise agreed by Purchaser or Purchaser Parent, Seller shall, or shall cause the Company
Group Entities to, pay for the budgeted capital expenditures actually made in accordance with past practices and in any event no later than six (6) months after the commitment for such capital expenditure was made, and shall provide to
Purchaser written confirmation upon such payment.”
1.20
Recapitalization of Seller Loan Receivables.
Section 6.15
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“
6.15 Recapitalization of Seller Loan Receivables.
(a)
Capital Contribution
. Following agreement by Seller and Purchaser of the Allocation in accordance with
Section 1.3(b)(ii)
hereof, but in any event no earlier than three weeks prior
to Closing, Seller shall make a capital contribution to Company in consideration of newly issued shares of common stock of Company (the “
Capital Contribution
”) in an amount equal to the difference between (i) the amount
of the Seller Loan Receivables and (ii) that portion of the Purchase Price allocated to the Seller Loan Receivables as determined in accordance with Section
1.3(b)(ii)
hereof (such difference, the “
Capital Contribution
Amount
”). Seller shall cause such Capital Contribution to be (i) allocated 50% to the Registered Capital of Company (
shihon-kin
) and 50% to the Capital Reserve of Company (
shihon-junbikin
) and (ii) effectuated in
consultation with Purchaser and in compliance with all applicable Legal Requirements, including the prompt payment by Company of any capital registration tax (
touroku-menkyo-zei
) payable in respect of that portion of the Capital Contribution
allocated to the Registered Capital of Company (
shihon-kin
) (“
Capital Registration Tax
”). As soon as practicable after completion of the Capital Contribution but in any event prior to Closing, Seller shall deliver to
Purchaser (1) a copy of the payment certificate (
noufu-sho
) with receipt stamp evidencing the full payment and receipt
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of the Capital Registration Tax necessary in connection with that portion of the Capital Contribution allocated to the Registered Capital of Company (
shihon-kin
); and (2) an original
copy of Company’s updated commercial registry reflecting the Capital Contribution
.
(b)
Repayment of Seller
Loan Receivables
. As soon as reasonably practicable after the completion of the Capital Contribution, but in any event prior to Closing, Seller shall cause Company to repay to Seller pursuant to that loan agreement attached hereto as
Exhibit
B
, the Capital Contribution Amount, such that after such repayment, the outstanding amount of loans made in respect of the Seller Loan Receivables shall equal that portion of the Purchase Price allocated to the Seller Loan Receivables as
determined in accordance with
Section 1.3(b)(ii)
hereof. Seller shall provide to Purchaser prior to Closing evidence that such repayment in respect of the Seller Loan Receivables was duly made.
(c)
Reimbursement to Seller
. Purchaser hereby agrees to reimburse Seller, on the earlier of (1) Closing or
(2) termination of this Agreement, the following amounts:
(i) the reasonable fees and expenses paid by
Seller in respect of (A) third party tax advisors relating to advising Seller with respect to the transactions contemplated by this Section 6.15 and (B) third party legal counsel fees and expenses relating solely to legal work
required in connection with the actual implementation of the Capital Contribution (which, for the avoidance of doubt, shall not include any other legal fees and expenses, including any fees and expenses relating to the negotiation of this
Amendment);
provided
that the aggregate amount of fees and expenses reimbursable by Purchaser pursuant to this Section 6.15(c)(i) shall not exceed twenty-five thousand dollars ($25,000); and
(ii) any amounts paid by Seller to a bank or other financial institution for interest (but not any other fees) on any loan
or borrowings required by Seller to fund the Capital Contribution,
provided
that the aggregate amount of such interest reimbursable by Purchaser pursuant to this Section 6.15(c)(ii) shall not exceed twenty-five thousand dollars
($25,000).
(d)
Additional Payment to Seller
. Purchaser hereby agrees to pay Seller the amount of the Capital
Registration Tax upon termination of this Agreement.
(e)
Other Taxes
. For the avoidance of doubt, the parties
acknowledge and agree that (i) Seller shall have no obligation with respect to any post-Closing Taxes related to any Business Scale Enterprise Tax (BSET) (
gaikei-hyoujun-kazei-shihon-wari
) and any Capital Levy (
kinto-wari
);
provided that to the extent any such taxes are annual taxes, Purchaser’s obligations shall be pro-rated for then-current tax year except that Purchaser shall be responsible for any increase in such taxes directly attributable to the
Recapitalization of Seller Loan Receivables set forth in this
Section 6.15
.
12
(f)
Net Operating Losses
. The parties hereby agree that notwithstanding anything to
the contrary in the Purchase Agreement, any reduction in the net operating losses of Company as a result of the transactions contemplated in this
Section 6.15
shall be deemed to have not occurred for the purpose of this Agreement.”
1.21
Audited Pro Forma Financial Statements.
Section 6.9
of the Purchase Agreement is hereby amended by
adding at the end thereof the following sentence: “Purchaser shall reimburse Seller for fifty percent (50%) of costs incurred by Seller as a result of preparing the Pro Forma Audited Financial Statements and the Interim Financial
Statements in accordance with U.S. GAAP, U.S. GAAS and SAS 116 pursuant to
Section 6.8
and
Section 6.9
,
provided
that in no event shall such amount of reimbursement by Purchaser, in the aggregate, exceed one hundred
fifty million Yen (¥150,000,000).”
1.22
SAS 116.
Each of
Sections 3.5(c)
and
6.8(c)
of the
Purchase Agreement is hereby amended by deleting the defined term “SAS 100” and inserting in lieu thereof the defined term “SAS 116”.
1.23
Intellectual Property.
(a)
Section 3.13(h)
of the
Purchase Agreement is hereby amended by (x) deleting the parenthetical “(excluding (i) any infringement or misappropriation following the Closing for which Seller indemnifies Purchaser Parties as set forth in
Schedules
12.2(a)(vii)
,
12.2(a)(viii)
and item 1 of
12.2(a)(ix)
and (ii) any infringement or misappropriation arising from or related to common law trademarks)” in the first sentence thereof and inserting in lieu thereof the
parenthetical “(excluding (i) any infringement or misappropriation for which Seller indemnifies Purchaser Parties as set forth in
Schedules 12.2(a)(vii)
,
12.2(a)(viii),
item 1, 4 or 5 of
12.2(a)(ix)
and (ii) any
infringement or misappropriation arising from or related to common law trademarks)”, and (y) deleting the words “
Schedule 3.13(g)
of the Seller Disclosure Schedule” in the last sentence thereof and inserting in lieu
thereof the words “
Schedule 3.13(h)
of the Seller Disclosure Schedule”.
(b) A description of amendments to
be made to
Exhibit I
(Form of IP Assignment Agreement) to the Purchase Agreement prior to its execution pursuant to the Purchase Agreement is attached hereto as
Attachment 14
.
(c)
Exhibit B
(List of Licensed Patents) to
Exhibit F
(Form of Intellectual Property License Agreement) to the Purchase
Agreement is hereby deleted in its entirety and replaced with new
Exhibit B
(List of Licensed Patents) to
Exhibit F
(Form of Intellectual Property License Agreement) to the Purchase Agreement attached hereto as
Attachment 15
.
1.24
Representations and Warranties Regarding Purchaser and Purchaser Parent.
(a)
Section 5.1
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“5.1
Organization and Good Standing.
Purchaser is a limited liability company and Purchaser Parent is a corporation, in each
case duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.”
13
(b)
Section 5.5(a)
of the Purchase Agreement is hereby amended by deleting the
defined term “the Company” in the first sentence thereof and inserting in lieu thereof the defined term “Purchaser Parent”.
1.25
July Disclosed Documents.
(a)
Section 6.16
of the
Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“6.16
July Disclosed
Documents
. Between July 9, 2010 and the date hereof, Seller has disclosed a number of documents to the VDR that have not been reviewed by Purchaser or its Representatives (such documents, collectively, the “
July Disclosed
Documents
”). With respect to the July Disclosed Documents, Seller hereby agrees to reimburse Purchaser fifty percent (50%) of the legal fees and expenses of Purchaser Parent’s legal advisors with respect to its due diligence
review of the July Disclosed Documents;
provided
that Seller’s portion of such fees and expenses do not exceed two hundred fifty thousand dollars ($250,000).”
(b) The parties agree that the letters from Purchaser to Seller dated as of September 1, 2010 and September 3, 2010 with respect to the July Disclosed Documents shall no longer have any effect.
1.26
Consents.
(a)
Section 9.1(iv)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(iv)
Consents
. Consents, in form and substance reasonably satisfactory to Purchaser, required in connection with the Transaction pursuant to each of the Contracts listed on
Schedule
9.1(c)(iv)
(the “
Contract Consents
”);”
(b)
Schedule 9.1(c)(iv)
to the Purchase
Agreement is hereby deleted in its entirety and replaced with
Schedule 9.1(c)(iv)
attached hereto as
Attachment 16
.
(c)
Schedule 3.4
of the Seller Disclosure Schedule is hereby deleted in its entirety and replaced with
Schedule 3.4
of the Seller Disclosure Schedule attached hereto as
Attachment 17
.
1.27
Other Conditions to Closing.
(a)
Section 9.1(g)
of the Purchase Agreement is hereby is hereby amended and restated in its entirety to read as follows:
“(g) [
Intentionally omitted
]”
14
(b)
Section 9.1(i)
of the Purchase Agreement is hereby amended by deleting the
amount “twelve billion seven hundred million Yen (¥12,700,000,000)” and inserting in lieu thereof the amount “one billion five hundred million Yen (¥1,500,000,000)”.
(c)
Section 9.1(j)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(j)
DBJ Loan
. Seller shall have delivered to Purchaser documentation evidencing the transfer or the repayment of the DBJ
Loans in accordance with
Section 6.7(a)(ii)
.”
(d)
Section 9.2(d)
of the Purchase Agreement is
hereby amended and restated in its entirety to read as follows:
“(d) [
Intentionally omitted
]”
1.28
Additional Matters.
Paragraph “(a)” of
Schedule 9.1(p)
of the Purchase Agreement is hereby amended by
deleting the words and numbers “one thousand three hundred (1300)” and “one thousand five hundred (1500)” and inserting in lieu thereof the words and numbers “one thousand one hundred (1100)” and “one thousand two
hundred fifty (1250)”, respectively.
1.29
Indemnification.
(a)
Section 12.1(b)
of the Purchase Agreement is hereby amended by (x) deleting the word “and” at the end of
clause “(v)” thereof; (y) deleting the period at the end of clause “(vi)” thereof and inserting in lieu thereof “; and”, and (z) inserting a new
Section 12.1(b)(vii)
as follows:
“(vii) the Special Indemnity in
Section 12.2(a)(xvi)
(SSMC) shall survive until the eighth (8
th
) anniversary of the Closing Date.”
(b)
Section 12.2(a)(xii)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(xii) the termination or cancellation of any Gas Contracts prior to the expiration of the term (not taking into account
any early termination rights that a party may have) as set forth in each respective Gas Contract, any reduction in purchase of any gas under any Gas Contracts, or any failure to meet any maximum or minimum purchase or similar obligations under any
Gas Contracts;”
(c)
Section 12.2(a)
of the Purchase Agreement is hereby amended by (x) deleting the
word “and” at the end of clause “(xiv)” thereof; (y) deleting the period at the end of clause “(xv)” thereof and inserting in lieu thereof “; and”, and (z) inserting a new
Section 12.2(a)(xvi)
as follows:
“(xvi) any Liabilities of SSMC (including any Liabilities of SSMC arising
out of the operation by SSMC of its business) other than those Liabilities expressly assumed by New SSMC pursuant to the absorb-type demerger agreement (
kyushu bunkatsu keiyakusyo
) executed on August 27, 2010.”
15
(d)
Section 12.4(c)
of the Purchase Agreement is hereby amended and restated in
its entirety to read as follows:
“(c) Notwithstanding the foregoing: (A) the provisions of
Schedule
12.4(c)(i)
shall apply with respect to the special indemnities set forth in (i)
Section 12.2(a)(vii)
(Patent Licenses), (ii) Section
12.2(a)(viii)
(Third Party Non-Patent Licenses), and
(iii)
Section 12.2(a)(ix)
(Known Claims), solely relating to item 1 of
Schedule 12.2(a)(ix)
and (B) the provisions of
Schedule 12.4(c)(ii)
shall apply with respect to the special indemnities set forth in
(i)
Section 12.2(a)(vii)
(Patent Licenses), (ii) Section
12.2(a)(viii)
(Third Party Non-Patent Licenses), (iii)
Section 12.2(a)(ix)
(Known Claims), solely relating to item 1, 4 and 5 of
Schedule
12.2(a)(ix)
.”
(e) Each of
Sections 12.5(b)(iii)
and
12.5(b)(iv)
is hereby amended by deleting the
words “Purchase Price as may be adjusted pursuant to
Section 1.4
”, and each of
Sections 12.5(b)(v)(y)
and
12.5(b)(v)(z)
of the Purchase Agreement is hereby amended by deleting the words “Purchase Price as it
may be adjusted pursuant to
Section 1.4
”, and inserting in each case in lieu thereof the words “Indemnification Cap Amount”.
(f)
Section 12.5(c)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(c) The limitations set forth in subsections (a) and (b) of this
Section 12.5
shall not apply to (i) any Seller indemnification obligation arising out of, relating to or
resulting from fraud by Seller with the intent to deceive or intentional misrepresentation by Seller with the intent to deceive, (ii) any claim pursuant to
Section 12.2(a)(ii)
with respect to (A) a Willful Breach by Seller of
any pre-Closing covenant or (B) breach of any covenant required to be performed by Seller after the Closing or (iii) any claim pursuant to
Section 12.2(a)(xvi)
.”
(g)
Section 12.5(i)
of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
“(i) Solely with respect to indemnification for a breach of the representation and warranty of Seller contained in
Section 3.13(h)
or
Section 3.8(c)
(solely to the extent such a breach of
Section 3.8(c)
would also constitute a breach of
Section 3.13(h)
) and indemnification under
Section 12.2(a)(ix)
,
Damages for which Seller shall indemnify Purchaser Parties shall be limited to Damages attributable to the period prior to the sixth (6th) anniversary of the Closing Date.”
16
1.30
Freescale and University of Illinois.
Schedule 12.2(a)(ix)
of the
Purchase Agreement is hereby amended by inserting the following provisions after the item set forth at “3.”:
“4. Infringement or misappropriation by Company Group Entities arising from the operation of the Business as it is currently
conducted, or as it is currently planned by Seller to be conducted, or when operated in the same manner following Closing (including but not limited to the design, development, use, import, branding, advertising, promotion, marketing, manufacture
and sale of the Company’s products and services) of any Patents issued, or any other Intellectual Property Rights (other than Patents) existing, prior to the sixth (6th) anniversary of the Closing Date of Freescale Semiconductor, Inc.
(“
Freescale
”) or any of its Affiliates.
5. Infringement or misappropriation by Company Group Entities
arising from the operation of the Business as it is currently conducted, or as it is currently planned by Seller to be conducted, or when operated in the same manner following Closing (including but not limited to the design, development, use,
import, branding, advertising, promotion, marketing, manufacture and sale of the Company’s products and services) of any Intellectual Property Right of Dr. Joseph Lyding, Dr. Karl Hess, and/or the University of Illinois (collectively,
“
U of I
”) addressed in the letter dated January 7, 2010, from the Law Offices of Stadheim & Grear Ltd. on behalf of U of I to Company.”
1.31
Special Procedures.
Clauses “(i)” and “(ii)” of
Schedule 12.4(c)
of the Purchase Agreement are
hereby amended and restated in their respective entireties to read as follows:
“(i) None of the indemnity obligations set
forth in
Section 12.2(a)(vii)
(Patent Licenses),
Section 12.2(a)(viii)
(Third Party Non-Patent Licenses),
Section 12.2(a)(ix)
solely relating to item 1 (Intel) of
Schedule
12.2(a)(ix)
(Known Claims)
shall apply with respect to Damages claimed by a Person (“
Claimant
”) against a Purchaser Party if the Purchaser Party or any of its Affiliates (A) initiates a Proceeding against such Claimant or any of its Affiliates
alleging infringement of Intellectual Property Rights or (B) expressly alleges, in a writing sent to such Claimant or any of its Affiliates, infringement of Intellectual Property Rights
prior to
such Claimant’s (X) initiating a
Proceeding against the Purchaser Party or any of its Affiliates (or a customer of the Purchaser Party or any of its Affiliates with respect to products purchased from the Purchaser Party or any of its Affiliates) alleging or based on infringement or
invalidity of Intellectual Property Rights or (Y) alleging infringement of or invalidity Intellectual Property Rights in a writing sent to the Purchaser Party or any of its Affiliates (or a customer of the Purchaser Party or any of its
Affiliates with respect to products purchased from the Purchaser Party or any of its Affiliates) (an “
Initial Assertion
”).
(ii) For the avoidance of doubt, the Purchaser Parties shall use commercially reasonable efforts to mitigate any Damages that are subject to the special indemnity obligations set forth in
Section 12.2(a)(vii)
(Patent Licenses),
Section 12.2(a)(viii)
(Third Party Non-Patent Licenses) and
Section 12.2(a)(ix)
(Known Claims) solely relating to item 1 (Intel), 4 (Freescale) and 5 (U of I). Without
limiting the generality of the foregoing, if a Purchaser Party proceeds with the
17
defense of a third-party infringement claim covered by any of the above-mentioned indemnity obligations, such Purchaser Party shall, in its reasonable discretion, (A) assert defenses of
non-infringement and/or invalidity (unless such defenses have no reasonable merit), (B) consider alleging claims or counterclaims of infringement of Intellectual Property Rights by the Claimant (unless the Claimant is a non-practicing entity,
or such claims or counterclaims otherwise have no reasonable merit) (for the avoidance of doubt, any such claim or counterclaim shall not be considered an Initial Assertion as set forth above in subsection (i)) and (C) consider having Purchaser
Parent or its Affiliates enter into a cross license with the Claimant. Notwithstanding anything to the contrary in this Agreement, solely with respect to item 4 (Freescale) of Section 12.2(a)(ix) (Known Claims Indemnity), Purchaser Party shall
reasonably assert relevant Freescale Subject Patents (
e.g.
, certain of the Freescale Subject Patents asserted prior to Closing by Seller against Freescale in the negotiations between Freescale and Seller conducted prior to Closing) in order
to mitigate any Damages that are subject to the special indemnity obligations with respect to item 4 (Freescale) of
Schedule 12.2(a)(ix)
. For the avoidance of doubt, Purchaser Parties shall have no obligation of any kind to initiate any
Proceeding against Freescale or any of its Affiliates. If a third-party infringement claim is resolved under a settlement or other agreement agreed to by Purchaser Parent, by means of a cross-license or otherwise, without any Purchaser Party making
any monetary payment to the Claimant, Seller will have no indemnification obligations solely with respect to such settlement or other agreement, but for the avoidance of doubt, Seller will continue to have indemnification obligations with respect to
defense costs or other Damages associated with such third-party infringement claim. Any settlement or other agreement to be entered into by a Purchaser Party that would result in Seller being obligated to make indemnification payments to a Purchaser
Party must be approved by Seller in advance and in writing, such approval not to be unreasonably withheld; provided that should Seller not approve such settlement or other agreement, Purchaser Parties shall be deemed to have satisfied their
obligation to mitigate Damages as set forth hereunder and in the Purchase Agreement, and Seller shall continue to indemnify Purchaser Parties as set forth hereunder and in the Purchase Agreement. “
1.32
Certain Definitions.
(a) The defined terms “
Actuary
”, “
Assumed Closing Date
”, “
Bank Debt
”, “
Closing Cash and Cash Equivalents
”,
“
Fundamental Reps
”, “
Gas Contracts
”, “
KSS Transfer Date
”, “
Lease Agreements
”, “
Specified Rep
”, “
SSMC Transfer
Date
”, “
Transaction Agreements
”, “
Transferred SCE Business
” and “
Transferred SNA Business
” in
Exhibit A
to the Purchase Agreement are hereby deleted in their
respective entireties and replaced with the following respective definitions:
““
Actuary
”
means Sumitomo Life Insurance Company;
provided, however
, that for purposes of any actuary determination hereunder with respect to SSMC, “
Actuary
” means Sumitomo Trust Bank.”
18
““
Assumed Closing Date
” means January 1, 2011.”
““
Bank Debt
”
means, collectively, the BOT Loan and the Shoko Loan.”
““
Closing Cash and Cash Equivalents
” means Cash and Cash Equivalents of the Company Group Entities as at
Closing Adjustment Base Date, (1)
plus
the amount equal to the Capital Registration Tax, (2)
plus
the amount equal to the compulsory deposit made by SSHK described in
Schedule 3.25
of the Seller Disclosure Schedule,
(3)
minus
the amount (if any) equal to the Capital Expenditures Shortfall;
provided, however
, that the amount of any such Capital Expenditures Shortfall shall not be subtracted from Closing Cash and Cash Equivalents for purposes
of
Section 9.1(h)
.”
““
Fundamental Reps
” means the representations and warranties
under
Sections 3.1
,
3.2(a)
,
4.1
and
4.2
.”
““
Gas
Contracts
”
means any agreements or other legally binding obligations (including those based on purchase orders) entered into by either a Company Group Entity or a Seller Group Entity and effective as of the Closing Date for the
provision of any gases (including, hydrogen and nitrogen) for the operations of the SSMC Gifu facilities and/or the SSMC Gunma facilities.”
““
KSS Transfer Date”
means a date specified by Purchaser, after consultation with Seller, for the transfer of the KSS Employees from New KSS to KSS, expected (but not
required) to be April 1, 2011, but in any event no later than September 30, 2011.”
““
Lease
Agreements
” means the lease agreements, the lease letter agreement and the memorandum of understanding contemplated by
Section 7.5
.”
““
Specified Rep
” means (i) with respect to Seller, the representations and warranties of Seller contained in
Section 3.1
(Organization, Good Standing,
Qualification),
Section 3.2(a)
(Company Group Entities),
Section 3.3(c)
(Capitalization),
Section 3.8
(Ownership and Sufficiency of Business Assets),
Section 3.13
(Intellectual Property),
Section 3.15
(Employee Benefits),
Section 3.19
(Environmental Matters),
Section 3.20
(Taxes),
Section 4.1
(Ownership of Purchased Shares) and
Section 4.2
(Authority: Validity of
Contemplated Transaction) and (ii) with respect to Purchaser, the representations and warranties of Purchaser contained in
Article V
, except for
Section 5.5
(SEC Filings, Financial Statements) and
Section 5.7
(Proceedings).”
““
SSMC Transfer Date
” means a date specified by Purchaser, after
consultation with Seller, for the transfer of the Gifu and Gunma Employees from SSMC to New SSMC, expected (but not required) to be in the fourth quarter of calendar year 2011, but in any event no later than December 31, 2012.”
““
Transaction Agreements
” means (i) this Agreement; (ii) the Loan Agreement; (iii) the Letter
Agreement; (iv) the Escrow Agreement; (v) the Secondment
19
Agreements; (vi) the IP Assignment Agreement; (vii) the Intellectual Property License Agreement; (viii) the Services Agreement; (ix) Lease Agreements; (x) the
Intercompany Release; (xi) SCE Fixed Assets Transfer Agreement; (xii) Transferred SCE Business Assignment and Assumption; (xiii) Transferred SNA Business Assignment and Assumption; (xiv) the NDSS IT Support Agreement; and
(xv) the Fixtures Transfer Agreement.”
““
Transferred SCE Business
”
means all of
the assets and liabilities of SCE to be transferred under the SCE Fixed Assets Transfer Agreement and the Transferred SCE Business Assignment and Assumption.”
““
Transferred SNA Business
” means all of the assets and liabilities of SNA to be transferred under the Transferred SNA Business Assignment and Assumption.”
(b) The following definitions in
Exhibit A
to the Purchase Agreement are hereby deleted in their respective entireties:
“
Determination Period
”, “
Exempted Transactions
”, “
FIEL
”, “
Issued Shares
”, “
Offered Shares
”, “
Purchaser Parent Share
Price
”, “
Purchaser Parent Shares
”, “
Remaining Offered Shares
”, “
ROFO Exercise Notice
”, “
ROFO Exercise Period
”, “
ROFO
Notice
”, “
ROFO Notice Date
”, “
ROFO Price
”, “
ROFO Right
”, “
ROFO Shares
”, “
SAS 100
”, “
Stock
Consideration
” and “
Third Party Purchaser
”.
(c) The following definitions are added to
Exhibit A
to the Purchase Agreement in proper alphabetical order and shall read in their respective entireties as follows:
““
Capital Contribution
” has the meaning specified in
Section 6.15(a)
.”
““
Capital Contribution Amount
” has the meaning specified in
Section 6.15(a)
.”
““
Capital Expenditures Shortfall
” has the meaning specified in
Section 6.11
.”
““
Capital Registration Tax
” has the meaning specified in
Section 6.15(a)
.”
““
Fixtures Transfer Agreement
” has the meaning specified in
Section 7.25
.”
““
Freescale
” has the meaning specified in item 4 of
Schedule 12.2(a)(ix)
.”
““
Freescale Subject Patents
” means (a) the Transferred Patents; (b) all Patents that any of the Company Group Entities own as of the Closing Date; and (c) any
Patents for which a Seller Group Entity transfers a one-half (1/2) ownership interest to a Purchaser Party pursuant to the Intellectual Property Assignment Agreement.”
““Indemnification Cap Amount”
means the Purchase Price as may be adjusted pursuant to
Section 1.4
, (1)
minus
eight billion two hundred fifty-one million eight hundred thousand Yen (¥8,251,800,000), (2)
minus
the amount equal to the Capital Registration Tax, (3)
plus
the amount (if
any) equal to the Capital Expenditures Shortfall.”
20
““
Letter Agreement
” has the meaning specified in
Section 7.24
.”
““
Loan Agreement
” has the meaning specified in
Section 1.3(c)(ii)
.”
““
Loan Consideration
” has the meaning specified in
Section 1.3(c)(ii)
.”
““
NDSS IT Support Agreement
” has the meaning specified in
Section 7.26
.”
““
ON Bermuda
” has the meaning specified in
Section 7.21(b)
.”
““
ON Germany
” has the meaning specified in
Section 7.21(a)
.”
““
ON UK
” has the meaning specified in
Section 7.21(a)
.”
““
SAS 116
” means Statement of Auditing Standards 116: Interim
Financial Information.”
““
SCE Fixed Assets Transfer Agreement
” has the meaning specified in
Section 7.21(a)
.”
““
Second SCE Transfer Date
” has the meaning specified in
Section 7.21(b)
.”
““
SNA NewCo
” has the meaning specified in
Section 7.20
.”
““
SNA Transfer
” has the meaning specified in
Section 7.20
.”
““
SNA Valuation
” has the meaning specified in
Section 1.3(b)(ii)
.”
““
Transferred Fixtures
” has the meaning specified in
Section 3.35
.”
““
U of I
” has the meaning specified in item 5 of
Schedule
12.2(a)(ix)
.”
ARTICLE II
MISCELLANEOUS
2.1
Effect of Amendment.
(a) Except as set forth in
Article I
above, nothing herein or arising in connection with or relating to any discussion regarding
these matters shall constitute a waiver of any rights under the Purchase Agreement.
(b) Except as amended in
Article I
above, the Purchase Agreement shall remain unchanged and in full force and effect, and this Amendment shall be governed by and subject to the terms of the Purchase Agreement, as amended hereby. Unless otherwise expressly provided herein, all
references in this Amendment to “Section,” “Subsection,” “Article,” “Exhibit,” “Annex” shall be deemed to be references to a section, subsection, article, exhibit or annex to the Purchase Agreement.
From and after the date of this Amendment, each reference in the Purchase Agreement to “this Agreement,” “hereof,” “hereunder,” or works of like import,
21
and all references to the Purchase Agreement in any and all agreements, instruments, documents, notes, certificates and other writings of every kind of nature (other than in this Amendment or as
otherwise expressly provided) shall be deemed to mean the Purchase Agreement, as amended by this Amendment, whether or not such Amendment is expressly referenced.
2.2
Modifications, Amendments and Waivers.
This Amendment cannot be amended or changed nor any performance, term, or condition waived in whole or in part, except by a writing signed by the party
against whom enforcement of the amendment, change or waiver is sought. No delay or failure on the part of any party in exercising any rights hereunder, and no partial or single exercise thereof, will constitute a waiver of such rights or of any
other rights hereunder.
2.3
Governing Law.
This Amendment is to be construed in accordance with and governed by the
laws of Japan, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the laws of the Japan to the rights and duties of the parties.
2.4
Severability.
Should any one or more of the provisions of this Amendment be determined to be invalid, illegal or
unenforceable, such invalid, illegal or unenforceable provisions shall be deemed severed therefrom, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. The parties
shall replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as practicable to that of the invalid, illegal or unenforceable provisions.
2.5
Counterparts.
This Amendment may be executed in any number of counterparts which may be delivered by facsimile, each of which
shall be deemed to be an original, but all of which counterparts shall together constitute one and the same instrument.
2.6
No Third-Party Beneficiaries.
The terms and provisions of this Amendment are intended solely for the benefit of each party and their respective successors and permitted assigns, and the parties do not intend to confer third-party beneficiary
rights upon any other Person.
[Signatures Follow On a Separate Page]
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IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed on its
behalf by their respective officers thereunto duly authorized all as of the date first written above.
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PURCHASER:
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SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
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By:
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Its sole member
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ON Semiconductor Corporation
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By:
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/s/ Keith Jackson
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Name:
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Keith Jackson
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Title:
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President and Chief Executive Officer
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PURCHASER PARENT:
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ON SEMICONDUCTOR CORPORATION
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By:
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/s/ Keith Jackson
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Name:
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Keith Jackson
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Title:
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President and Chief Executive Officer
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SELLER:
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SANYO ELECTRIC CO., LTD.
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By:
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/s/ Seiichiro Sano
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Name:
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Seiichiro Sano
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Title:
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President
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Signature Page
– Amendment No. 1 to Purchase Agreement
Attachment 1
Form of Loan Agreement
Attachment 2
Revised
Annex II
(Illustrative Purchase Price Calculation)
Attachment 3
Form of Services Agreement
Attachment 4
Form of Letter Agreement
Attachment 5
Schedule of Transferred Fixtures
Attachment 6
Form of NDSS IT Support Agreement
Attachment 7
Form of Lease Letter Agreement
Attachment 8
Form of Memorandum of Understanding
Attachment 9
Form of Transferred SNA Business Assignment and Assumption
Attachment 10
Form of SCE Fixed Assets Transfer Agreement
Attachment 11
Form of Transferred SCE Business Assignment and Assumption
Attachment 12
Revised
Annex III
(Employee Matters)
Attachment 13
Schedule of Equipment Lease Agreements
Attachment 14
Amendments to Form of IP Assignment Agreement
Attachment 15
Revised
Exhibit B
(List of Licensed Patents)
to
Exhibit F
(Form of
Intellectual Property License Agreement)
Attachment 16
Revised
Schedule 9.1(c)(iv)
Attachment 17
Revised
Schedule 3.4
of Seller Disclosure Schedule
Exhibit 4.1
EXECUTION VERSION
Loan Agreement
This Loan Agreement (“Agreement”) is made and entered into this January
1
, 2011 (the “Drawdown Date”), by and between:
SEMICONDUCTOR COMPONENTS INDUSTRIES LLC, a Delaware limited liability company with address and place of business at 5005 E. McDowell Road, Phoenix,
Arizona 85008, United States (hereinafter referred to as the “Borrower”);
ON SEMICONDUCTOR CORPORATION, a Delaware corporation with
address and place of business at 5005 E. McDowell Road, Phoenix, Arizona 85008, United States (hereinafter referred to as the “Borrower Parent”); and
SANYO ELECTRIC CO., LTD, a Japanese
kabushiki kaisha
with address and place of business at 5-5 Keihan-hondori 2-chome, Moriguchi City, Osaka 570-8677, Japan (hereinafter referred to as the
“Lender”);
(Each of the Borrower, the Borrower Parent and the Lender in this Agreement may be referred to as a “Party” in
the singular, or the “Parties”, collectively.)
WITNESSETH: THAT
WHEREAS, the Borrower, the Lender and the Borrower Parent are parties to that certain Purchase Agreement, dated as of July 15, 2010, as may be
amended from time to time (the “Purchase Agreement”), pursuant to which the Borrower shall purchase from the Lender, all outstanding shares of Sanyo Semiconductor Co., Ltd. and other certain assets;
WHEREAS, pursuant to the Purchase Agreement the Lender has agreed to finance a portion of the purchase price to be paid by the Borrower to the Lender
(the “Purchase Price”) as a loan from the Lender to the Borrower;
WHEREAS, in connection therewith, the Borrower has requested a seven (7)-year term loan
of THREE HUNDRED SEVENTY-SEVEN MILLION, FIVE HUNDRED FOURTEEN THOUSAND AND EIGHT HUNDRED TWENTY-SIX U.S. DOLLARS and six cents (US$ 377,514,826.06) (the “Loan”) from the Lender, such amount being the U.S. Dollar equivalent of the Loan
Consideration (as defined in Section 1.3(c)(ii) of the Purchase Agreement), converted from Japanese Yen to U.S. Dollars at the Spot Rate (as defined below); “Spot Rate” means the arithmetic average of the rates quoted by The Bank of
Tokyo-Mitsubishi UFJ, Ltd. on each of December 16, December 17, December 20, December 21, and December 22, 2010, as the mid rate of the telegraphic transfer spot buying and selling exchange rate vis-a-vis customers of
U.S. Dollar against Japanese Yen at approximately 11 a.m. (Japan Time) on each such day (which average shall be calculated by rounding the arithmetic average of the rates on each such day to the nearest two decimal places);
WHEREAS, the Borrower Parent has agreed to jointly and severally guarantee the repayment of the Loan in accordance with the terms hereof; and
WHEREAS, the Lender has agreed to extend the Loan to the Borrower on the Drawdown Date, subject to the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing premises and of the mutual agreements hereinafter stated, the Parties hereto agree as follows:
Article 1 Drawdown; Interest
(a) Subject to and upon the terms and conditions of this Agreement and satisfaction of all of the conditions set forth in Section 9.1 (unless waived by the Borrower) and Sections 9.2 and 9.3 of
the Purchase Agreement, the Lender shall make the Loan to the Borrower for the purpose of paying a portion of the Purchase Price under the Purchase Agreement and the Borrower shall accept the Loan from the Lender for such purpose. In accordance
therewith, each of the Borrower and the Lender acknowledges and agrees that the full amount of the Loan equals the full amount of the Loan Consideration (as defined in Section 1.3(c)(ii) of the Purchase Agreement) and shall be applied directly
by the Lender to reduce the Purchase Price in accordance with the terms of the Purchase Agreement.
2
(b) The Borrower shall pay interest on the Loan on each interest payment date (each, an “Interest
Payment Date”) as set out in the loan payment schedule attached hereto as Exhibit A (the “Loan Payment Schedule”) for the relevant interest period (the “Interest Period”) beginning on and including the Drawdown Date (for the
first such Interest Period) or beginning on and including the immediately prior Interest Payment Date and ending on but excluding such Interest Payment Date, at a floating rate per annum equal to the sum of three (3)-month U.S. Dollar London
Interbank Offered Rate (“LIBOR”) appearing on Reuters Screen LIBOR 01 two (2) London banking days prior to the beginning of the applicable Interest Period (each such date, an “Interest Rate Setting Date”) plus a spread of
one hundred seventy five (175) basis points (1.75%) per annum (“Interest Rate”). For each Interest Period, the applicable Interest Rate shall be reasonably determined by the Lender on each of the Interest Rate Setting Dates as
set out in Exhibit A and shall be communicated to the Borrower by the Lender on such date. LIBOR shall mean the three (3)-month LIBOR at approximately 11:00 a.m. (London Time) on the Interest Rate Setting Date. In the event that such rate or screen
page from Reuters is not available for any reason, the applicable LIBOR shall be determined by reference to the LIBOR of the immediately preceding London banking day or, if Reuters Screen LIBOR 01 is not generally available, then by reference to the
LIBOR determined by another reputable source selected by the Lender in its reasonable discretion.
(c) All payments for interest pursuant to
this Article shall be computed on the basis of a 360-day year for the actual days elapsed. Any calculation that would result in a payment that includes a fraction of less than one cent shall be rounded to the nearest cent. In the event that any
Interest Payment Date is not a Business Day, then such Interest Period and the corresponding Interest Payment Date shall be extended to the next succeeding Business Day. For purposes of this Agreement, “Business Day” means any day other
than (i) a Saturday or Sunday or (ii) a day on which banking institutions are authorized or required by law to be closed in the State of New York.
(d) Interest shall be payable on each Interest Payment Date in arrears computed based on the outstanding balance of the Loan, with payments to commence on April 1, 2011.
(e) If the Lender notifies the Borrower in writing (a “Payment Default Notice”) that it has failed to make payment when due of any sum
hereunder whether at the stated maturity, by acceleration or otherwise, then:
(i) interest shall accrue on the amount of such
defaulted payment at the Default Rate (as defined below) from and after the date of such Payment Default Notice to but excluding the date that such defaulted payment is repaid in full; and
3
(ii) if the Borrower has failed to cure such payment default no later than the date (the
“Payment Default Date”) that is five (5) Business Days after its receipt of the Payment Default Notice, then the Borrower shall pay the Default Rate on the entire principal amount outstanding under the Loan, payable from and after the
Payment Default Date to but excluding the date that such defaulted payment is repaid in full (upon which date the Interest Rate on the Loan shall resume to be the Interest Rate otherwise applicable to the Loan, as provided in Article 1(b)).
As used herein, the “Default Rate” shall mean a rate of interest equal to the Interest Rate otherwise applicable to
the Loan as provided in Article 1(b), plus three percent (3.00%) per annum, computed daily on a 360-day basis. The Default Rate payable by the Borrower under this Article 1(e) shall be payable in addition to any principal, interest
(without duplication of interest payable by reference to the Default Rate hereunder) and other amounts that may be due and payable under this Agreement.
Article 2 Loan Repayment
The Borrower shall fully pay the
Loan within seven (7) years from and after the Drawdown Date. Subject to Article 3, the Loan shall be repaid over twenty seven (27) equal quarterly principal installments of NINE MILLION, FOUR HUNDRED THIRTY-SEVEN THOUSAND, EIGHT
HUNDRED AND SEVENTY U.S. DOLLARS and sixty-five cents (US$ 9,437,870.65), with the balance of ONE HUNDRED TWENTY-TWO MILLION, SIX HUNDRED NINETY-TWO THOUSAND, THREE HUNDRED AND EIGHTEEN U.S. DOLLARS and fifty-one cents (US$ 122,692,318.51
)
(the “Final Payment”) to be repaid on January 2, 2018 (the “Maturity Date”). Each such quarterly principal installment shall be payable on the applicable loan repayment date (the “Loan Repayment Date”) as set forth
in the Loan Repayment Schedule.
Article 3 Voluntary Prepayment; Mandatory Prepayment
(a) The Borrower shall have the option, on any Interest Payment Date after the date of the three (3) year anniversary of the Drawdown Date (including
the January 2, 2014 Interest Payment Date, and any Interest Payment Date thereafter), to prepay the Loan, in full or in part, subject to the following terms and conditions:
(i) The Borrower shall give to the Lender written notice of the proposed prepayment (the “First Prepayment Notice”) not less
than ten (10) days prior to the date on which the Loan is proposed to be prepaid, which First Prepayment Notice shall state the amount proposed to be prepaid and the proposed prepayment date. The actual amount of the prepayment and the actual
date of prepayment (the “Prepayment Date”) shall
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be confirmed (or modified) in a written notice delivered by the Borrower to the Lender (the “Confirming Prepayment Notice”) not less than five (5) Business Days prior to the
Prepayment Date stated in the Confirming Prepayment Notice. The Confirming Prepayment Notice may not be revoked or modified.
(ii) The amount payable in respect of each prepayment shall be the full or partial outstanding principal amount of the Loan stated in the
Confirming Prepayment Notice plus any accrued but unpaid interest up to but excluding the Prepayment Date.
(iii) The
additional conditions for each partial prepayment are: (y) the minimum principal amount to be prepaid shall be TEN MILLION U.S. DOLLARS (US$10,000,000.00); and, (z) the principal of each prepayment shall be applied against the quarterly
principal installments of the Loan and the Final Payment in the inverse order of their maturities as set out herein and in the Loan Payment Schedule (i.e., each prepayment shall be applied first against the Final Payment and then against each
quarterly principal installment set out in the Loan Payment Schedule, in inverse order).
(b) Within ten (10) Business Days following any
Change of Control, the Borrower shall deliver to the Lender either (i) an irrevocable notice specifying a proposed prepayment date, which date shall be no later than forty-five (45) days from the date of the occurrence of the Change of
Control, in which case the Borrower shall repay the Loan, together with any unpaid interest up to but excluding the prepayment date, in full on or before the proposed prepayment date; or (ii) an irrevocable notice describing the transaction or
transactions that constitute the Change of Control and offering to repurchase the Loan (through Borrower or its designee) on the date specified in such notice, which date shall be no later than forty-five (45) days from the date of the
occurrence of the Change of Control, in which case, if the Lender has accepted such repurchase offer, the Borrower or such designee shall repurchase the Loan, at a price in cash equal to the outstanding principal amount hereof together with interest
on the principal amount up to but not including the date of such repurchase, and the Lender shall sell the Loan and transfer all related loan documents to the Borrower or such designee upon receipt of such purchase price. In the event that the
Borrower (itself or through its designee) offers to repurchase the Loan pursuant to the foregoing clause (ii) and the Lender does not accept such offer, then the Loan shall remain in place in accordance with the terms hereof.
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(c) “Change of Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any person or group (within the meaning of the U.S. Securities Exchange Act of 1934 of the U.S., as amended, and the rules of the U.S. Securities and Exchange Commission (the “SEC”) thereunder as in effect on
the date hereof) of equity interests representing more than 50% of either the aggregate ordinary voting power or the aggregate equity value of the Borrower Parent and (b) delisting of the Borrower Parent’s common shares from Nasdaq Stock
Market.
(d) Notwithstanding anything to the contrary contained herein or in any other document or agreement, upon the Borrower’s written
request, (i) the Lender may in its sole discretion permit the voluntary prepayment of the Loan or any part thereof at such time or times as are requested in such Borrower’s request; and (ii) in the event that any portion of the Loan
is sold, assigned or transferred in accordance with Article 11 hereof, any Lender may in its sole discretion, and without the consent or participation of any other Lender, permit a voluntary prepayment of the portion of the Loan held by such
Lender, or any part thereof, in accordance with this Article 3(d).
Article 4 Representations and Warranties
Each of the Borrower and the Borrower Parent (as applicable) represents and warrants solely as to itself to the Lender as of the
Drawdown Date, as follows:
(a)
Organization and Good Standing
. The Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of organization. The Borrower Parent is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.
(b)
Authority; Binding Nature of Agreements
. Each of the Borrower and the Borrower Parent has all requisite corporate power and authority to
execute and deliver this Agreement and to carry out the provisions of this Agreement. The execution, delivery and performance by the Borrower and the Borrower Parent of this Agreement have been approved by all requisite action on the part of the
Borrower. This Agreement has been duly and validly executed and delivered by the Borrower and the Borrower Parent. This Agreement constitutes the legal, valid and binding obligation of the Borrower and the Borrower Parent, enforceable against the
Borrower and the Borrower Parent in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and equitable principles related to or limiting creditors’ rights generally and
by general principles of equity.
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(c)
No Conflicts; Required Consents
. The execution, delivery and performance of this Agreement do not
and will not (with or without notice or lapse of time):
(i) violate or result in any breach of (v) any of the provisions
of the laws applicable to the Borrower or the Borrower Parent; (w) the organizational documents of the Borrower or the Borrower Parent; (x) any resolutions adopted by the member of the Borrower or the stockholders or board of directors or
committees of the Borrower Parent; (y) any of the terms or requirements of any material governmental approval held by the Borrower or the Borrower Parent or that otherwise relates to the Borrower’s or the Borrower Parent’s business;
or (z) any provision of a material contract to which the Borrower or the Borrower Parent is a party;
(ii) give any
governmental authority or other person or entity the right to (x) challenge the Loan or any other guaranty thereof; (y) exercise any remedy or obtain any relief under any applicable law or any order to which the Borrower, the Borrower
Parent or any of their respective assets is subject; or (z) declare a default of, exercise any remedy under, accelerate the performance of, cancel, terminate or modify any material contract to which the Borrower or the Borrower Parent is a
party; or
(iii) except for applicable requirements, if any, under any antitrust law, require the Borrower or the Borrower
Parent to obtain any consent or make or deliver any filing or notice to a governmental authority that has not so been made or delivered by the Borrower or the Borrower Parent.
(d)
Proceedings
. There are no proceedings pending or, to the Borrower’s and the Borrower Parent’s knowledge, threatened against or affecting the Borrower or the Borrower Parent
(i) challenging or seeking to restrain, delay or prohibit the Loan or any other transactions contemplated hereby or (ii) preventing the Borrower or the Borrower Parent from performing their respective obligations under this Agreement.
(e)
SEC Filings; Financial Statements
.
(i) The Borrower Parent has delivered or made available to the Lender accurate and complete copies of all registration statements, proxy statements and other statements, reports, schedules, forms and
other documents filed by the Borrower Parent with the SEC since January 1, 2009, and all amendments thereto (the “SEC Documents”). To the Borrower’s and the Borrower Parent’s knowledge, as of the time it was filed with the
SEC (or, if amended or superseded by a filing prior to the Drawdown Date, then on the date of such
7
filing): (x) each of the SEC Documents complied in all material respects with the applicable requirements of the U.S. Securities Act of 1933, as amended (the “Securities Act”) or
the U.S. Securities Exchange Act of 1934, as amended (as the case may be); and (y) none of the SEC Documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ii) The
financial statements (including any related notes) contained in the SEC Documents: (x) complied as to form in all material respects with the published rules and regulations of the SEC applicable thereto; (y) were prepared in accordance
with generally accepted accounting principles in the United States applied on a consistent basis throughout the periods covered (except as may be indicated in the notes to such financial statements and except that the unaudited financial statements
may not contain footnotes), and (z) fairly present the consolidated financial position of the Borrower Parent and its consolidated subsidiaries as of the respective dates thereof and the consolidated results of operations and cash flows of the
Borrower Parent and its consolidated subsidiaries for the periods covered thereby.
(iii) Except as disclosed in the SEC
Documents, to the Borrower’s and the Borrower Parent’s knowledge, there are no material matters relating to the Borrower or the Borrower Parent that would have a Material Adverse Effect (as defined below).
For the purposes of this Agreement, “Material Adverse Effect” means any event that has (i) a material adverse effect on
the enforceability of this Agreement, or (ii) a material adverse effect on the performance of the Borrower’s or the Borrower Parent’s payment obligations hereunder.
Article 5 the Borrower Covenants
Until the principal of and interest on the
Loan shall have been paid in full, each of the Borrower and the Borrower Parent, as to itself only, covenants and agrees with the Lender that:
(a)
Notice of Events of Default
. The Borrower shall notify the Lender promptly upon learning of any Event of Default (as defined in Article 6
below).
(b)
Maintenance of Properties
. The Borrower and the Borrower Parent shall keep and maintain all tangible property material to
the conduct of its business, taken as a whole, in good working order and condition, ordinary wear and tear excepted.
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(c)
Insurance
. The Borrower, either directly or through the Borrower Parent, shall maintain, with
financially sound and reputable insurance companies insurance in such amounts and against such risks as are customarily maintained by companies of established repute engaged in the same or similar businesses. The Borrower shall furnish to the
Lender, upon reasonable request of the Lender, information in reasonable detail as to the insurance so maintained.
(d)
Books and Records;
Discussion Rights
. Solely for the purpose of determining compliance with this Agreement, the Borrower shall (i) keep proper books of record and account in which full, true and correct entries are made of all material dealings and
transactions in relation to this Agreement, (ii) permit any representatives designated by the Lender, upon reasonable prior written notice, to discuss the financial condition of the Borrower and the Borrower Parent with its officers and
independent accountants, all at such reasonable times during normal business hours as may be reasonably requested; provided, however, that (y) as long as no Event of Default shall have occurred and be continuing, only two such requests pursuant
to this clause (ii) may be made in any calendar year, with the exception of informal telephonic or email requests, which informal telephonic or email requests may be made no more than twice in any calendar quarter, and (z) the information
that may be obtained from the Borrower and the Borrower Parent pursuant to this Article 5(d) shall only include information that is or would be included in the SEC Documents and reasonable explanations thereof.
(e)
Compliance with Laws and Agreement
. The Borrower and the Borrower Parent shall comply with all laws, rules, regulations and orders of any
governmental authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower and the Borrower Parent shall comply
with the obligations set out in this Agreement.
Article 6 Events of Default
If any one of the following events (“Event of Default”) shall have occurred, then at any time thereafter, if any such event shall then be
continuing, and not remedied during the cure period (where it is provided for in this Agreement), the Borrower’s obligations to the Lender shall, upon the Lender’s written notice to the Borrower (or in the case of clause (d) below,
automatically without any notice) become immediately due and payable.
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(a)
Payment Default
. The Borrower or the Borrower Parent fails to pay (i) any principal of the
Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise, and such failure continues unremedied for a period of five (5) Business Days after notice from the
Lender; or (ii) any interest on the Loan payable under this Agreement, when and as the same shall become due and payable, and such failure to pay interest or such other amount continues unremedied for a period of five (5) Business Days
after notice from the Lender;
(b)
Misrepresentation Default
. Any representation or warranty made by or on behalf of the Borrower or
the Borrower Parent under this Agreement shall be found to be incorrect in any material respect when made; provided, however, that such untrue representation or warranty shall not be an Event of Default:
(i) if the incorrect nature of any representation or warranty set forth in Article 4(a), (b), (c) or (d) hereof is capable of
being cured or corrected and the Borrower or the Borrower Parent, as applicable, cures such incorrect representation or warranty within forty-five (45) days after the earlier of (y) written notice from the Lender, or (z) the
Borrower’s or the Borrower Parent’s knowledge of the incorrect nature of such representation or warranty; or
(ii)
if the false nature of any representation or warranty made herein has not resulted in a Material Adverse Effect;
(c)
Other Provisions
Default
. The Borrower or the Borrower Parent fails to perform or comply with any term or obligation contained in this Agreement and, only in case of failure to perform or comply with any term or obligation other than Article 5(a) and
Article 3(b), any such failure, violation, or non-compliance is not remediable or if remediable, continues unremedied for a period of forty five (45) days from the date after written notice thereof shall have been given by the Lender to
the Borrower or the Borrower Parent; provided that the Borrower or the Borrower Parent, as applicable, shall have up to an additional thirty (30) days to remedy such failure if (i) such failure cannot reasonably be cured within such
forty-five (45) day period, (ii) the Borrower or the Borrower Parent has commenced to cure such failure within such forty-five (45)-day period and thereafter cures such failure within such additional thirty (30) day period, and
(iii) no Material Adverse Effect is reasonably likely to occur as a result of the Borrower or the Borrower Parent having the additional thirty (30) day period to cure such failure;
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(d)
Insolvency Default
. The Borrower or the Borrower Parent becomes insolvent or unable to pay its
debts when due or commits or permits any act of bankruptcy, which act shall include (i) the filing of a petition in any bankruptcy, reorganization, winding up or liquidation of the Borrower or the Borrower Parent, or any other proceeding
analogous in purpose and effect; provided, however, that in case the foregoing petition is filed by any other party, other than the Borrower or the Borrower Parent, such event shall only be an Event of Default if such petition is consented to, or
not objected to, by the Borrower or the Borrower Parent, or continues undismissed for sixty (60) consecutive days or a final order or decree of any court approving or ordering any of the foregoing is entered, (ii) the making of an
assignment by the Borrower or the Borrower Parent for the benefit of its creditors, (iii) the admission in writing by the Borrower or the Borrower Parent of its inability to pay its debts, or (iv) the entry of any final order or judgment
of any court, tribunal or administrative agency, in each case, having appropriate jurisdiction confirming the bankruptcy or insolvency of the Borrower or the Borrower Parent or approving any reorganization, winding up or liquidation of the Borrower
or the Borrower Parent, or (v) the filing of an application for the appointment of a receiver, liquidator, assignee or trustee of the Borrower or the Borrower Parent or a substantial part of its property or assets or a substantial part of its
capital stock or to assume custody or control of the Borrower or the Borrower Parent or the ordering of its dissolution, winding-up or liquidation of its affairs;
(e)
Cross Default
. The Borrower or the Borrower Parent (i) fails to pay an indebtedness when due and, where applicable, within any applicable grace period, or (ii) defaults beyond the
period of grace, if any, under any agreement of indebtedness, which default is not waived by the holders of such indebtedness, and as a result of either (i) or (ii), the holders of such indebtedness accelerate the scheduled maturity thereof or
demand in writing that such defaulted payment be immediately paid; provided that this clause (e) shall not apply if the aggregate amount of such indebtedness is equal to or less than $30,000,000 (or its equivalence in another currency); or
(f)
Closure Default
. Cessation of the entire business of the Borrower or the Borrower Parent.
If an Event of Default shall have occurred, then at any time thereafter, if any such event shall then be continuing, and not remedied during any
applicable cure period (where it is provided for in this Agreement), the Lender shall have the right at its election, (i) by written notice to the Borrower, to declare the entire outstanding Loan amount to be immediately due and payable, and
the Loan shall thereupon become immediately due and payable (or in the case of clause (d) above, automatically); and (ii) after accelerating the Loan, to exercise any and all remedies available to the Lender under applicable law.
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All monies realized and received by the Lender in the exercise of its rights, powers and remedies hereunder
shall be applied by the Lender, to the extent permitted, to the payment of the Loan.
Section 7 Continuing Guarantee
The Borrower Parent hereby absolutely and unconditionally, jointly and severally, guarantees, as a guaranty of payment and not merely
as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, or upon acceleration, of any and all of the payment obligations, whether for principal, interest, damages or otherwise, of the Borrower,
arising under this Agreement (the “Guaranty”). This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the obligations or any instrument or agreement evidencing any obligations, or by the
existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the obligations which might otherwise constitute a defense to the obligations of the Borrower Parent
under this Guaranty (other than the defense of payment), and the Borrower Parent hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing (other than the defense of payment). This
Guaranty is a continuing and irrevocable guaranty of all payment obligations now or hereafter existing under this Agreement and shall remain in full force and effect until all principal, interest and other amounts payable to the Lender under this
Agreement are indefeasibly paid in full in cash.
Article 8 No Set-off
In no event shall the Borrower or the Borrower Parent be entitled to set-off any obligation due to it against any obligation owed by it pursuant to the
this Agreement.
Article 9 Notices
(a) All notices, requests, demands and other communications hereunder shall be either (i) delivered in person; (ii) sent by international courier service or other express commercial delivery
service; or (iii) sent by facsimile with confirmation of receipt, and, in each case, addressed as follows:
If to the
Lender:
SANYO Electric Co., Ltd.
Finance Headquarters, Corporate Finance Department
5-5 Keihan-hondori 2-chome
Moriguchi City, Osaka 570-8677 Japan
Fax: + 81-6-6992-0009
12
with copies to (which copy shall not constitute notice):
SANYO Electric Co., Ltd.
Legal Headquarters
5-5 Keihan-hondori 2-chome
Moriguchi City, Osaka 570-8677 Japan
Fax: +81-6-6994-0992
If to the Borrower:
SEMICONDUCTOR COMPONENTS INDUSTRIES LLC
5005 E. McDowell Road
Phoenix, AZ 85008 U.S.A.
Attn: Ken Rizvi, Treasurer, and Sonny Cave, General Counsel
Fax: +1-602-244-5139
with copies to (which copy shall not constitute notice):
Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105 U.S.A.
Attn: Eric McCrath, Esq. and Randy Laxer, Esq.
Fax: +1-415-268-7522
If to the Borrower Parent: Same as the Borrower
(b) All notices, requests, instructions or documents given to any party in accordance with this Article 9 shall be deemed to have been
given on the date of mailing or transmission, whether delivered by hand, by international courier service, or by facsimile, with confirmation of receipt on such date.
(c) Any party may change its address specified for notices herein by designating a new address by notice given in accordance with this Article 9.
13
Article 10 Confidentiality; No Disparagement
(a) The Lender agrees to maintain the confidentiality of the Information (as defined below) until the earlier of (x) one (1) year after the Loan
is paid in full, or (y) one (1) year after the Maturity Date, except that Information may be disclosed (i) to its and its parent’s or Affiliates’ directors, officers, employees and agents, including accountants, legal
counsel and other advisors (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority, (iii) to the extent required by applicable laws or regulations (including any regulations of any applicable stock exchange) or by any subpoena or similar legal process, (iv) to any other party to this
Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this Article, to any assignee of or participant in, or any prospective assignee of or participant in, any of its rights or obligations under this Agreement, or to any direct or indirect contractual counterparties in swap
agreements or such contractual counterparties’ professional advisors, (vii) with the consent of the Borrower or (viii) to the extent such Information (y) becomes publicly available other than as a result of a breach of this
Article or (z) becomes available to the Lender on a nonconfidential basis from a source other than the Borrower, the Borrower Parent or any Affiliate of the Borrower or the Borrower Parent. For the purposes of this Section, the term
“Information” means all information received from the Borrower, the Borrower Parent or any Affiliate of the Borrower or the Borrower Parent relating to any such entity or its business in connection with this Agreement, other than any such
information that is available to the Lender on a nonconfidential basis prior to disclosure by any of them. Any person or entity required to maintain the confidentiality of Information as provided in this Article shall be considered to have
complied with its obligation to do so if such person or entity has exercised the same degree of care to maintain the confidentiality of such Information as such person or entities would accord to its own confidential information.
For purposes of this Agreement, “Affiliate” means, with respect to any person, any other person directly or indirectly controlling, controlled
by, or under common control with such person. For the purposes of this definition, “control,” “controlled by” and “under common control with,” with respect to the relationship between
14
or among two or more persons, means (A) the ownership of a majority of the voting share capital of a person or (B) the possession, directly or indirectly, of the power to direct or
cause the direction of the affairs or management of a person, whether through the ownership of voting securities, by agreement or otherwise.
(b) Until the date that is the earlier of (x) one (1) year after the Loan is paid in full, or (y) one (1) year after the Maturity
Date, each of the Borrower and the Borrower Parent agrees in favor of the Lender, and the Lender agrees in favor of the Borrower and the Borrower Parent, that they shall not disparage the other Party, the products of the other Party or the business
or business practices of the other Party, and will not take any action or make any comment or communication, either orally or in writing, that disparages, disrupts, harms, damages or impairs or otherwise interferes with the business or reputation of
the other Party, or reflects on the other Party or any of its officers, directors, employees or business in a negative or critical manner.
Article 11 Successors and Assigns
(a) Subject to the Borrower’s rights under Article 11(d) below, the Lender
(i) may assign its rights and obligations under this Agreement in amounts of US$20,000,000 or more (as long as no Lender holds less than
US$20,000,000 of original Loan principal (without taking into account any principal repayments made to such Lender)): (y) to any financial institution or any other entity whose primary business is extending credit and/ or investing in debt or
debt and equity securities of third parties without the Borrower’s prior written consent; or (z) to any other person with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed so long as the
proposed assignee is not a competitor of the Borrower or the Borrower Parent); and
(ii) shall not structure any assignment of
its rights and obligations under this Agreement (including all or a portion of the Loan at the time owing to it) in such a manner that the Borrower shall be required to make payments on the amount of the Loan then outstanding to, or seek approvals
from, or allow the exercise of discussion rights under Article 5(d) from, more than one party. If there is more than one Lender, then one lead lender, agent, trustee or servicer shall be designated to act for all of the lenders and shall have
unrestricted authority with respect to granting consents and waivers under, agreeing to amendments and/or modifications of, asserting discussion rights under Article 5(d) and exercising remedies under this Agreement (subject to receiving any
required consent from the other lenders), and the Lender shall permit the Borrower to be a party to any intercompany agreement between the lenders.
15
(b) If requested by the Lender at any time, the Borrower and the Borrower Parent agree to promptly enter
into amendments to this Agreement, in a form reasonably acceptable to the Parties hereto, and to take any other reasonable actions, to the extent necessary to provide for multiple lenders hereunder, including without limitation (i) provisions
for an administrative agent acting on behalf of the Lender hereunder (which may be the initial Lender or another entity designated by the Lender), and (ii) provisions for the Lender approvals for actions taken by such administrative agent
(which, other than for customary all the Lender approvals, shall be holders of 51% of the principal amount of the Loan); provided that the Loan Agreement shall remain in its current form, and no new representations, warranties, covenants, events of
default, indemnifications or other agreements that increase the liabilities or obligations of the Borrower or the Borrower Parent in any material respect shall be added.
(c) Notwithstanding anything to the contrary contained herein, the Lender shall deliver to the Borrower no less than fifteen (15) Business Days prior written notice of any intent to sell, assign or
transfer any portion of the Loan or any of its rights and obligations hereunder to any other person or entity, which notice shall include the amount of the Loan that is proposed to be sold, assigned or transferred, and the Borrower shall have the
right to present a proposal to the Lender with respect to the purchase of the Loan or any portion thereof by the Borrower or its designee, any which proposal must be (i) delivered by the Borrower to the Lender no later than twelve
(12) Business Days after the Lender’s notice under this Article 11(c); and (ii) made by the Borrower and considered by the Lender, each in good faith.
(d) The provision of this Agreement shall be binding upon and inure to the benefit of the Borrower and its successors and permitted assigns and the Lender and its successors and permitted assigns.
Article 12 Expenses
The Borrower shall pay all reasonable out-of-pocket expenses incurred by the Lender, including the reasonable fees, charges and disbursements of any counsel for the Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement, including its rights under this Article or in connection with the enforcement of the Loan made hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of the Loan. In the event that there is more than one Lender due to the operation of Article 11 hereof, the Borrower shall only be responsible for paying the expenses, charges and disbursements
of one Lender or of one agent acting on behalf of all of the Lenders.
16
Article 13 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
Article 14 Resolution of Dispute
(a) Each Party agrees that, upon written
request of the other Party, it shall use commercially reasonable efforts to settle amicably through good faith discussions any dispute or disagreement which may arise under or pursuant to this Agreement.
(b) Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the Parties hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the
extent permitted by law, in such Federal court. Each of the Parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
(c) Each Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so,
any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Article. Each of the Parties hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Each Party irrevocably consents to service of process in the manner provided for notices in Article 9. Nothing in this Agreement will affect the right of any Party to serve process in any other
manner permitted by law.
17
Article 15 Miscellaneous
(a)
Language
. This Agreement has been made and entered into in the English language. If this Agreement is translated into Japanese or any other language, this English language version shall for all
purposes be deemed to be the definitive and binding version hereof
(b)
Amendments, Modifications and Waivers
. No amendment,
modification or waiver of any provision of this Agreement, nor any consent to any departure by the Borrower, the Borrower Parent or the Lender therefrom, shall in any event be effective unless the same shall be in writing and signed by the relevant
Party to be charged, and such amendment, modification, waiver or consent shall be effective only in the specific instance and for the purpose for which it was given. No notice to or demand on the Borrower, the Borrower Parent or the Lender in any
case shall entitle the Borrower, the Borrower Parent or the Lender to any other or further notice or demand in the same, similar or other circumstances.
(c)
Invalid Provisions – Severability
. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom or therefrom; and in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible to be legal, valid and enforceable.
(d)
Headings
. Article headings used herein are for
convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
18
IN WITNESS WHEREOF,
the Borrower, the Borrower Parent and the Lender have each caused
this Agreement to be duly executed by its respective duly authorized officer as of the date and year first written above.
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BORROWER:
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SEMICONDUCTOR COMPONENTS INDUSTRIES, LLC
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By: its sole member,
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ON Semiconductor Corporation
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|
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By:
|
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/s/ Keith Jackson
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Name:
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Keith Jackson
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Title:
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President and Chief Executive Officer
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BORROWER PARENT:
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ON SEMICONDUCTOR CORPORATION
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By:
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/s/ Keith Jackson
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Name:
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Keith Jackson
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Title:
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President and Chief Executive Officer
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LENDER
:
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SANYO ELECTRIC CO., LTD.
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By:
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/s/ Seiichiro Sano
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Name:
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Seiichiro Sano
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Title:
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President
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19
Exhibit A
LOAN PAYMENT SCHEDULE
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|
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|
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|
|
|
Period
|
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Interest Rate Setting Date
|
|
Interest Payment Date &
Loan Repayment Date
|
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No.
of
Days
|
|
|
Loan
Repayment
(US$)
|
|
|
Total Outstanding
Principal (US$)
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|
Drawdown Date
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|
Thursday, December 30, 2010
|
|
Saturday, January 1, 2011
|
|
|
|
|
|
|
|
|
|
$
|
377,514,826.06
|
|
|
1
|
|
Wednesday, March 30, 2011
|
|
Friday, April 01, 2011
|
|
|
90
|
|
|
$
|
9,437,870.65
|
|
|
$
|
368,076,955.41
|
|
|
2
|
|
Wednesday, June 29, 2011
|
|
Friday, July 01, 2011
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
358,639,084.76
|
|
|
3
|
|
Thursday, September 29, 2011
|
|
Monday, October 03, 2011
|
|
|
94
|
|
|
$
|
9,437,870.65
|
|
|
$
|
349,201,214.11
|
|
|
4
|
|
Thursday, December 29, 2011
|
|
Tuesday, January 03, 2012
|
|
|
92
|
|
|
$
|
9,437,870.65
|
|
|
$
|
339,763,343.46
|
|
|
5
|
|
Thursday, March 29, 2012
|
|
Monday, April 02, 2012
|
|
|
90
|
|
|
$
|
9,437,870.65
|
|
|
$
|
330,325,472.81
|
|
|
6
|
|
Thursday, June 28, 2012
|
|
Monday, July 02, 2012
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
320,887,602.16
|
|
|
7
|
|
Thursday, September 27, 2012
|
|
Monday, October 01, 2012
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
311,449,731.51
|
|
|
8
|
|
Friday, December 28, 2012
|
|
Wednesday, January 02, 2013
|
|
|
93
|
|
|
$
|
9,437,870.65
|
|
|
$
|
302,011,860.86
|
|
|
9
|
|
Wednesday, March 27, 2013
|
|
Monday, April 01, 2013
|
|
|
89
|
|
|
$
|
9,437,870.65
|
|
|
$
|
292,573,990.21
|
|
|
10
|
|
Thursday, June 27, 2013
|
|
Monday, July 01, 2013
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
283,136,119.56
|
|
|
11
|
|
Friday, September 27, 2013
|
|
Tuesday, October 01, 2013
|
|
|
92
|
|
|
$
|
9,437,870.65
|
|
|
$
|
273,698,248.91
|
|
|
12
|
|
Monday, December 30, 2013
|
|
Thursday, January 02, 2014
|
|
|
93
|
|
|
$
|
9,437,870.65
|
|
|
$
|
264,260,378.26
|
|
|
13
|
|
Friday, March 28, 2014
|
|
Tuesday, April 01, 2014
|
|
|
89
|
|
|
$
|
9,437,870.65
|
|
|
$
|
254,822,507.61
|
|
|
14
|
|
Friday, June 27, 2014
|
|
Tuesday, July 01, 2014
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
245,384,636.96
|
|
|
15
|
|
Monday, September 29, 2014
|
|
Wednesday, October 01, 2014
|
|
|
92
|
|
|
$
|
9,437,870.65
|
|
|
$
|
235,946,766.31
|
|
|
16
|
|
Tuesday, December 30, 2014
|
|
Friday, January 02, 2015
|
|
|
93
|
|
|
$
|
9,437,870.65
|
|
|
$
|
226,508,895.66
|
|
|
17
|
|
Monday, March 30, 2015
|
|
Wednesday, April 01, 2015
|
|
|
89
|
|
|
$
|
9,437,870.65
|
|
|
$
|
217,071,025.01
|
|
|
18
|
|
Monday, June 29, 2015
|
|
Wednesday, July 01, 2015
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
207,633,154.36
|
|
|
19
|
|
Tuesday, September 29, 2015
|
|
Thursday, October 01, 2015
|
|
|
92
|
|
|
$
|
9,437,870.65
|
|
|
$
|
198,195,283.71
|
|
|
20
|
|
Wednesday, December 30, 2015
|
|
Monday, January 04, 2016
|
|
|
95
|
|
|
$
|
9,437,870.65
|
|
|
$
|
188,757,413.06
|
|
|
21
|
|
Wednesday, March 30, 2016
|
|
Friday, April 01, 2016
|
|
|
88
|
|
|
$
|
9,437,870.65
|
|
|
$
|
179,319,542.41
|
|
|
22
|
|
Wednesday, June 29, 2016
|
|
Friday, July 01, 2016
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
169,881,671.76
|
|
|
23
|
|
Thursday, September 29, 2016
|
|
Monday, October 03, 2016
|
|
|
94
|
|
|
$
|
9,437,870.65
|
|
|
$
|
160,443,801.11
|
|
|
24
|
|
Thursday, December 29, 2016
|
|
Tuesday, January 03, 2017
|
|
|
92
|
|
|
$
|
9,437,870.65
|
|
|
$
|
151,005,930.46
|
|
|
25
|
|
Thursday, March 30, 2017
|
|
Monday, April 03, 2017
|
|
|
90
|
|
|
$
|
9,437,870.65
|
|
|
$
|
141,568,059.81
|
|
|
26
|
|
Thursday, June 29, 2017
|
|
Monday, July 03, 2017
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
132,130,189.16
|
|
|
27
|
|
Thursday, September 28, 2017
|
|
Monday, October 02, 2017
|
|
|
91
|
|
|
$
|
9,437,870.65
|
|
|
$
|
122,692,318.51
|
|
|
Maturity Date
Final Payment
|
|
|
|
Tuesday, January 02, 2018
|
|
|
92
|
|
|
$
|
122,692,318.51
|
|
|
|
0.00
|
|
20
