Contract
EXHIBIT
4.1
SUPPLEMENTAL
INDENTURE
(this
“Supplemental
Indenture”),
dated
as of April 3, 2007, among Jazz Semiconductor, Inc., a Delaware
corporation, Newport Fab, LLC, a Delaware limited liability company, Jazz/Hua
Hong, LLC, a Delaware limited liability company, and Jazz IT Holding, LLC,
a
Delaware limited liability company (together the “Guaranteeing
Subsidiaries”),
each
a subsidiary of Jazz Technologies, Inc., a Delaware corporation (the
“Company”),
and
U.S. Bank National Association, as trustee under the indenture referred to
below
(the “Trustee”).
RECITALS
WHEREAS,
the Company has heretofore executed and delivered to the Trustee an indenture
(the “Indenture”),
dated
as of December 19, 2006 providing for the issuance of 8% Convertible Senior
Notes due 2011 (the “Securities”);
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiaries shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee
all of the Company’s obligations under the Securities and the Indenture on the
terms and conditions set forth herein (the “Subsidiary
Guarantees”);
and
WHEREAS,
pursuant to Article
IX
of the
Indenture, the Trustee is authorized to execute and deliver this Supplemental
Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders of the
Securities as follows:
1. CAPITALIZED
TERMS.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
2. AGREEMENT
TO GUARANTEE.
Each Guaranteeing Subsidiary hereby agrees as follows:
(a)
Along
with all Guarantors named in the Indenture, to jointly and severally Guarantee
to each Holder of Securities authenticated and delivered by the Trustee and
to
the Trustee and its successors and assigns, the Securities or the obligations
of
the Company hereunder or thereunder, that:
(i)
the
principal of, and premium and interest on the Securities will be promptly paid
in full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Securities, if
any,
if lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or performed,
all
in accordance with the terms hereof and thereof; and
(ii)
in case
of any extension of time of payment or renewal of any Securities or any of
such
other obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise.
Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors shall be jointly and severally obligated
to
pay the same immediately.
(b)
The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or the Indenture, the absence
of
any action to enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof, the recovery of
any
judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a Guarantor.
(c)
The
following is hereby waived: diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.
(d)
This
Subsidiary Guarantee shall not be discharged except by complete performance
of
the obligations contained in the Securities and the Indenture, and such
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(e)
If any
Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors, or any custodian, trustee, liquidator or other similar
official acting in relation to either the Company or the Guarantors, any amount
paid by either to the Trustee or such Holder, this Subsidiary Guarantee, to
the
extent theretofore discharged, shall be reinstated in full force and
effect.
(f)
Such
Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
(g)
As
between the Guarantors, on the one hand, and the Holders and the Trustee, on
the
other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 4 of the Indenture for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations
as
provided in Article 4 of the Indenture, such obligations (whether or not due
and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of this Subsidiary Guarantee.
(h)
The
Guarantors shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights
of
the Holders under the Subsidiary Guarantee.
(i)
Pursuant
to Section 15.2 of the Indenture, after giving effect to any maximum amount
and
all other contingent and fixed liabilities that are relevant under any
applicable bankruptcy or fraudulent conveyance laws, and after giving effect
to
any collections from, rights to receive contribution from or payments made
by or
on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article 15 of the Indenture, this new Subsidiary Guarantee
shall
be limited to the maximum amount permissible such that the obligations of such
Guarantor under this Subsidiary Guarantee will not constitute a fraudulent
transfer or conveyance.
3. EXECUTION
AND DELIVERY.
The Guaranteeing Subsidiaries agree that the Subsidiary Guarantees shall remain
in full force and effect notwithstanding any failure to endorse on each Security
a notation of the Subsidiary Guarantees.
4. GUARANTEEING
SUBSIDIARIES MAY
CONSOLIDATE, ETC.
ON
CERTAIN TERMS; RELEASES.
Nothing
contained in the Indenture or in any of the Securities shall prevent any sale
or
other disposition of all or substantially all of the assets of the Guaranteeing
Subsidiaries, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the capital stock of any Guarantor; provided,
that
such
sale or disposition does not constitute a Fundamental Change. Upon delivery
by
the Company to the Trustee of an Officer’s Certificate and an Opinion of Counsel
to the effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, the Trustee will execute any
documents reasonably required in order to evidence the release of such
Guaranteeing Subsidiary from its obligations under its Subsidiary
Guarantee.
5. NO
RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee, incorporator,
stockholder, member, managing member, partner or agent of any Guaranteeing
Subsidiary, in such capacity, shall have any liability for any obligations
of
the Company or any Guaranteeing Subsidiary under the Securities, any Subsidiary
Guarantees, the Indenture or this Supplemental Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation.
Each Holder of the Securities by accepting Securities waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Securities. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC
that
such a waiver is against public policy.
6.
THIS
SUPPLEMENTAL INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA,
INCLUDING, WITHOUT LIMITATION, THE NEW YORK GENERAL OBLIGATIONS LAW
§5-1401.
7. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
8. EFFECT
OF
HEADINGS.
The Section headings herein are for convenience only and shall not affect the
construction hereof.
9. THE
TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this Supplemental Indenture or for or in
respect of the recitals contained herein, all of which recitals are made solely
by the Guaranteeing Subsidiaries and the Company.
IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
Dated:
April
3, 2007
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JAZZ
SEMICONDUCTOR, INC.
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Chief Executive Officer
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NEWPORT
FAB, LLC
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Manager
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JAZZ/HUA
HONG, LLC
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| By: | /s/ Xxx Xx | |
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Name:
Xxx Xx
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Title:
Manager
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JAZZ
IT HOLDINGS, LLC
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| By: | /s/ Xxx Xx | |
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Name:
Xxx Xx
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Title:
Manager
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| By: | /s/ Xxxxxxx X. Xxxxxx | |
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Chief Executive Officer
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U.S.
BANK NATIONAL ASSOCIATION,
as
Trustee
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| By: |
/s/
Xxxxxxx Xxxxxxxx
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Authorized
Signatory
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