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EXHIBIT 10.46
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment"), dated as of
March 4, 1999, is entered into by and among:
(1) LSI LOGIC CORPORATION, a Delaware corporation ("LSI");
(2) LSI LOGIC JAPAN SEMICONDUCTOR, INC., a Japanese corporation ("LLJS");
(3) Each of the financial institutions which are listed in Schedule I of
the Credit Agreement referred to in Recital A below, as such schedule
has been amended by Assignment Agreements effective as of October 6,
1998 and October 12, 1998 (collectively, "Lenders"); and
(4) ABN AMRO BANK N.V., as agent for Lenders (in such capacity, "Agent").
RECITALS
A. LSI and LLJS (collectively, "Borrowers"), Lenders and Agent are
parties to an Amended and Restated Credit Agreement, dated as of September 22,
1998 (the "Credit Agreement").
B. LSI has requested Lenders and Agent to amend the Credit Agreement to
facilitate the issuance of Subordinated Indebtedness, the Net Proceeds of which
will be applied to prepay the U.S. Loans in accordance with Section 2.05(c)(iii)
of the Credit Agreement and to reduce the Commitments in accordance with Section
2.03(b)(ii) of the Credit Agreement.
C. Lenders and Agent are willing so to amend the Credit Agreement upon
the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers, Lenders and Agent hereby agree as follows:
1. DEFINITIONS, INTERPRETATION. Unless otherwise defined herein, all
capitalized terms used herein shall have the respective meanings given to those
terms in the Credit Agreement. The rules of construction set forth in Section I
of the Credit Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to Paragraphs 4 and 5 below,
the Credit Agreement is hereby amended as follows:
(a) The definition of "Subordinated Debt" in Paragraph 1.01 is
amended to read in its entirety as follows:
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"Subordinated Debt" shall mean any Indebtedness of LSI or
any of its Subsidiaries the stated maturity date of any scheduled
principal payment of which is not earlier than the first
anniversary of the Revolving Termination Date and which is
subordinated on terms and conditions reasonably acceptable to
Required Lenders; provided, that any Subordinated Debt having
subordination provisions no more favorable to the holder than
those attached as Exhibit K hereto shall be deemed to be
reasonably acceptable to Required Lenders for the purposes
hereof. Without limiting the foregoing, the terms of such
Subordinated Debt shall not include any requirement that the
holders thereof approve the issuance of the Senior Debt or
Designated Senior Debt (as defined in Exhibit K) entitled to the
benefit of such subordination provisions.
(b) Subparagraph 5.03(e) is amended to read in its entirety as
follows:
(e) Subordinated Debt. LSI will not permit Subordinated
Debt of LSI and its consolidated Subsidiaries to exceed
$750,000,000 at any time; and LSI will not, and will not permit
any of its Subsidiaries to, make any voluntary or optional
payment or repayment on, redemption, exchange or acquisition for
value of (other than any such payment, repayment, redemption,
exchange or acquisition which would not constitute a payment for
purposes of Section 13.10 of the subordination provisions
attached hereto as Exhibit K), or any sinking fund or similar
payment with respect to, any Subordinated Debt (a "restricted
payment") if a Default shall then exist or would occur as a
result thereof. In no event shall any restricted payment be made,
unless at the time any notice of such restricted payment is
required to be given to the holders of Subordinated Debt and at
the time of such restricted payment one of the following
conditions is satisfied: (i) LSI and its consolidated
Subsidiaries have consolidated cash balances or cash equivalents
equal to the maximum aggregate amount of such restricted payment
and all Commitments (and, if any Commitments have been
terminated, all Loans made pursuant to such terminated
Commitments) outstanding at such time or (ii) the amount of such
restricted payment together with all other restricted payments
made with respect to Subordinated Debt during the same four
consecutive fiscal quarters (including any restricted payments
made in accordance with clause (i) above) would not exceed the
limitations in Subparagraph 5.02(f) if such restricted payments
were deemed to be distributions subject to Subparagraph 5.02(f).
At or prior to the time notice of such restricted payment is
given to the holders of Subordinated Debt (or if no such notice
is required, prior to the time of such restricted payment), LSI
shall give written notice to Agent of the maximum amount of such
restricted payment and of the satisfaction of one of the
foregoing conditions.
(c) Paragraph 6.01 is amended by deleting the final period at the end
of Subparagraph 6.01(o) and substituting ": or" and adding a new Subparagraph
6.01(p) as follows:
(p) Repurchase of Subordinated Debt. Any event shall occur
permitting the holders of any Subordinated Debt to require the repurchase of
such Subordinated Debt prior to its stated maturity, which shall not include
restricted payments made pursuant to Subparagraph 5.03(e).
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(d) Exhibit K is added to the Credit Agreement in the form attached
to this Amendment.
3. SUBORDINATION PROVISIONS. Each Lender agrees that Indebtedness of LSI
containing subordination provisions to the effect set forth in Exhibit K
attached hereto, with such changes as Agent may approve in its reasonable
discretion to cure any ambiguity or to modify any provision contained therein in
a manner which is no less favorable to Lenders than the provisions in Exhibit K,
are acceptable to such Lender for purposes of determining whether such
Indebtedness meets the definition of "Subordinated Debt".
4. REPRESENTATIONS AND WARRANTIES. Borrowers hereby represent and warrant
to Agent and Lenders that the following are true and correct on the date of this
Amendment and will be true and correct on the Effective Date (as defined below):
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in the
other Credit Documents are true and correct in all material respects (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
5. EFFECTIVE DATE. The amendments effected by Paragraph 2 above shall
become effective on the date this Amendment is duly executed by Borrowers,
Required Lenders and Agent (the "Effective Date").
6. EFFECT OF THIS AMENDMENT. On and after the Effective Date, each
reference in the Credit Agreement and the other Credit Documents to the Credit
Agreement shall mean the Credit Agreement as amended hereby. Except as
specifically amended above, (a) the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
confirmed and (b) the execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power, or remedy of Lenders or Agent, nor constitute a waiver of any
provision of the Credit Agreement or any other Credit Document.
7. MISCELLANEOUS.
(a) Counterparts. This Amendment may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
(b) Headings. Headings in this Amendment are for convenience of
reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of California without reference to
conflicts of law rules.
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IN WITNESS WHEREOF, Borrowers, Agent and Required Lenders have caused this
Amendment to be executed as of the day and year first above written.
BORROWERS: LSI LOGIC CORPORATION
BY: /S/ XXXX X. XXXX
--------------------------------------
NAME: XXXX X. XXXX
------------------------------------
TITLE: TREASURER
-----------------------------------
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
BY: /S/ X.X. XXXXX
--------------------------------------
NAME: X.X. XXXXX
------------------------------------
TITLE: E.V.P. AND C.F.O.
-----------------------------------
AGENT: ABN AMRO BANK N.V.
By: /s/ XXX X. XXXXXX
--------------------------------------
Name: Xxx X. Xxxxxx
------------------------------------
Title: Group Vice President
-----------------------------------
By: /s/ XXXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
------------------------------------
Title: Senior Vice President
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LENDERS: ABN AMRO BANK N.V.
By: /s/ XXX X. XXXXXX
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Name: Xxx X. Xxxxxx
------------------------------------
Title: Group Vice President
-----------------------------------
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------
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BANCA DI ROMA
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANKBOSTON, N.A.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: RM
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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BANQUE NATIONALE DE PARIS
By: /s/ XXXXXX X. XXXXXXXX
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Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By: /s/ XXXXXX XXXXX
--------------------------------------
Name: Xxxxxx Xxxxx
------------------------------------
Title: Assistant Vice President
-----------------------------------
XXXXX XXXX BANK CO., LTD.
By: /s/ XXXXX-SI XXXX
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Name: Xxxxx-Si Xxxx
------------------------------------
Title: SVP & GM
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
CREDIT LYONNAIS,
LOS ANGELES BRANCH
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
------------------------------------
Title: First Vice President and Manager
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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DAI-ICHI KANGYO BANK, LIMITED
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Account Officer
-----------------------------------
By:
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Name:
------------------------------------
Title:
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
------------------------------------
Title: First Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIRST SECURITY BANK, N.A.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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FLEET NATIONAL BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
------------------------------------
Title: Assistant Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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MELLON BANK
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
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SANWA BANK CALIFORNIA
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
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SOCIETE GENERALE,
ACTING THROUGH ITS LOS ANGELES BRANCH
By: /s/ XXXXXXX XXXXX
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Name: Xxxxxxx Xxxxx
------------------------------------
Title: Director
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
U.S. BANK NATIONAL ASSOCIATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
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EXHIBIT K
SUBORDINATION PROVISIONS
When used in Article 13 below, the following capitalized terms shall have
the meanings set forth below and a cross-reference to any other Article or
Section shall refer to an Article or Section comparable to the Article or
Section which was similarly cross-referenced in Article 13 of the 5 1/2%
Convertible Subordinated Notes Due 2001:
"Designated Senior Debt" means (i) Senior Debt under the Existing Credit
Agreement, and (ii) any other particular Senior Debt in which the instrument
creating or evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which the Company is a party) expressly
provides that such Senior Debt shall be "Designated Senior Debt" for purposes of
this Indenture (provided that such instrument, agreement or other document may
place limitations and conditions on the right of such Senior Debt to exercise
the rights of Designated Senior Debt).
"Existing Credit Agreement" means that Amended and Restated Credit
Agreement, dated as of September 22, 1998, among the Company, LSI Logic Japan
Semiconductor, Inc., the lenders from time to time parties thereto (the
"Existing Lenders"), and ABN AMRO Bank N.V., as agent for the Existing Lenders,
as such agreement may be amended, amended and restated, supplemented or
otherwise modified from time to time.
"Indebtedness" means, with respect to any Person, (i) all obligations,
contingent or otherwise, of such Person (a) for borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (b) evidenced by a note, debenture, bond or written
instrument (including a purchase money obligation), (c) in respect of leases of
such Person required, in conformity with generally accepted accounting
principles, to be accounted for as capitalized lease obligations on the balance
sheet of such Person and all obligations and other liabilities (contingent or
otherwise) under any lease or related document (including a purchase agreement)
in connection with the lease of real property which provides that such person is
contractually obligated to purchase or cause a third party to purchase the
leased property and thereby guarantee a minimum residual value of the leased
property to the lessor and the obligations of such person under such lease or
related document to purchase or to cause a third party to purchase such leased
property; or (d) in respect of letters of credit (including reimbursement
obligations with respect thereto), local guarantees or bankers' acceptances;
(ii) all obligations of others of the type described in clause (i) above or
clause (iii), (iv) or (v) below assumed by or guaranteed in any manner by such
Person or in effect guaranteed by such Person through an agreement to purchase,
contingent or otherwise (and the obligations of such Person under any such
assumptions, guarantees or other such arrangements); (iii) all obligations
secured by a mortgage, pledge, lien, encumbrance, charge or adverse claim
affecting title or resulting in an encumbrance to which the property or assets
of such Person are subject, whether or not the obligation secured thereby shall
have been assumed by or shall otherwise be such Person's legal liability; (iv)
to the extent not otherwise included, all obligations of such Person under
interest rate and currency swap agreements, cap, floor and collar agreements,
spot and forward contracts and similar agreements and arrangements; and (v) all
obligations, contingent or otherwise, of such Person under or in respect of any
and all deferrals,
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renewals, extensions and refundings of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (i), (ii), (iii) or (iv).
"Senior Debt" means the principal of, premium, if any, and interest on,
rent payable under, and any other amounts due on or in connection with any and
all Indebtedness of the Company (including, without limitation, fees, costs,
expenses and any interest accruing after the filing of a petition initiating any
proceeding pursuant to any bankruptcy law, but only to the extent allowed or
permitted to the holder of such Indebtedness against the bankruptcy or other
insolvency estate of the Company in such proceeding), whether outstanding on the
date of the Indenture or thereafter created, incurred, assumed, guaranteed or in
effect guaranteed by the Company (including all deferrals, renewals, extensions
or refundings of, or amendments, modifications or supplements to the foregoing);
provided, however, that Senior Debt does not include (w) Indebtedness evidenced
by the Notes, (x) Indebtedness of the Company to any subsidiary of the Company,
a majority of the voting stock of which is owned by the Company except to the
extent such Indebtedness is pledged by such subsidiary as security for any
Senior Debt, (y) accounts payable of the Company to trade creditors arising in
the ordinary course of business, and (z) any particular Indebtedness in which
the instrument creating or evidencing the same or the assumption or guarantee
thereof expressly provides that such Indebtedness shall not be senior in right
of payment to, or is pari passu with, or is subordinated or junior to, the
Notes.
ARTICLE 13
SUBORDINATION
Section 13.1 Notes Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of Notes, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Notes and the payment of the principal of (and premium, if
any) and interest on each and all of the Notes is hereby expressly subordinate
and junior, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Debt.
(a) In the event of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company, whether
in bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, then the holders of all Senior Debt
shall first be entitled to receive payment of the full amount due thereon in
respect of principal (and premium, if any) and interest, or provision shall be
made for such amount in cash or other consideration satisfactory to the Existing
Lenders, before the Holders of any of the Notes are entitled to receive any
payment or distribution of any character, whether in cash, securities or other
property, on account of the principal of (or premium, if any) or interest on the
indebtedness evidenced by the Notes.
For purposes of this Article 13, the words, "cash, securities or other
property" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the
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payment of which is subordinated at least to the extent provided in this Article
13 with respect to the Notes to the payment of all Senior Debt which may at the
time be outstanding; provided that (i) the Senior Debt is assumed by the new
corporation, if any, resulting from any reorganization or readjustment, and (ii)
the rights of the holders of Senior Debt (other than leases which are not
assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another Person upon the terms and conditions
provided for in Article 7 [merger, consolidation covenant of Indenture] shall
not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 13.1(a) if such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions
stated in Article 7 [merger, consolidation covenant].
(b) In the event of any default in payment of the principal of or premium,
if any, or interest on or rent under, or any other payment obligation under any
Senior Debt beyond any applicable grace period with respect thereto, then,
unless and until all such payments due in respect of such Senior Debt have been
paid in full in cash or other consideration satisfactory to the Existing Lenders
or such default shall have been cured or waived or shall have ceased to exist,
no payment shall be made by the Company with respect to the principal of,
premium, if any, or interest on the Notes or to acquire any of the Notes
(including any repurchase pursuant to the repurchase right of a Holder upon a
Fundamental Change).
(c) In the event (i) any event of default with respect to any Designated
Senior Debt shall have occurred and be continuing permitting the holders of such
Designated Senior Debt (or a trustee or other representative on behalf of the
holders thereof) to declare such Designated Senior Debt due and payable prior to
the date on which it would otherwise have become due and payable, upon written
notice thereof to the Company and the Trustee by any holders of such Designated
Senior Debt (or a trustee or other representative on behalf of the holders
thereof) (the "Default Notice"), unless and until such event of default shall
have been cured or waived or shall have ceased to exist and such acceleration
shall have been rescinded or annulled, or (ii) any judicial proceeding shall be
pending with respect to any such default in payment or event of default, then no
payment shall be made by the Company, directly or indirectly, with respect to
principal of, premium, if any, or interest on the Notes (including any
repurchase pursuant to the exercise of the repurchase right of a Holder upon a
Fundamental Change) provided, however, that clause (i) of this paragraph shall
not prevent the making of any such payment by the Company with respect to the
Notes for more than 179 days after a Default Notice shall have been received by
the Trustee unless the Designated Senior Debt in respect of which such event of
default exists has been declared due and payable in its entirety in which case
no such payment may be made until such acceleration has been rescinded or
annulled or such Designated Senior Debt has been paid in full. Notwithstanding
the foregoing, no event of default which existed or was continuing on the date
of any Default Notice shall be made the basis for the giving of a second Default
Notice; provided, further, however, that no subsequent Default Notice shall be
effective for purposes of this Section 13.1(c) unless and until at least 365
days shall have elapsed since the initial effectiveness of the immediately prior
Default Notice.
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(d) If the maturity of the Notes is accelerated, no payment may be made on
the Notes until all amounts due or to become due on Senior Debt has been paid in
full in cash or other consideration satisfactory to the Existing Lenders or
until such acceleration has been cured or waived.
(e) In the event that, notwithstanding the foregoing provisions of
Sections 13.1 (a), (b), (c) and (d), any payment on account of principal of or
interest on the Notes shall be made by or on behalf of the Company and received
by the Trustee, by any Holder or by any Paying Agent (or, if the Company is
acting as its own Paying Agent, money for any such payment shall be segregated
and held in trust), at a time when such payment is not permitted by any of such
provisions, then, unless and until all Senior Debt (or Designated Senior Debt,
in the case of Section 13.1(c)) is paid in full in cash or other consideration
satisfactory to the Existing Lenders, or such payment is otherwise permitted to
be made by the provisions of each of Sections 13.1(a), 13.1(b), 13.1(c) and
13.1(d) (subject, in each case, to the provisions of Section 13.7), such payment
on account of principal of or interest on the Notes shall be held in trust for
the benefit of, and shall be immediately paid over to, the holders of Senior
Debt (or Designated Senior Debt, in the case of Section 13.1(c)) or their
representative or representatives or the trustee or trustees under any indenture
under which any instruments evidencing any of the Senior Debt (or Designated
Senior Debt, in the case of Section 13.1(c)) may have been issued, as their
interests may appear.
Regardless of anything to the contrary herein, nothing shall prevent (a)
any payment by the Company or the Trustee to Holders of amounts in connection
with a redemption of Notes if (i) notice of such redemption has been given
pursuant to Section 11.5 prior to the receipt by the Trustee of written notice
as aforesaid, and (ii) such notice of redemption is given not earlier than 75
days before the Redemption Date, or (b) any payment by the Trustee to the
Holders of amounts deposited with it pursuant to Sections 4.1 and 4.2.
SECTION 13.2 Subrogation.
Subject to the payment in full of all Senior Debt to which the indebtedness
evidenced by the Notes is in the circumstances subordinated as provided in
Section 13.1, the Holders of the Notes (together with the holders of any other
indebtedness of the Company which is subordinate in right of payment to the
payment in full of all Senior Debt, which is not subordinate in right of payment
to the Notes and which by its terms grants such right of subrogation to the
holders thereof) shall be subrogated to the rights of the holders of such Senior
Debt to receive payments or distributions of cash, property or securities of the
Company applicable to such Senior Debt until all amounts owing on the Notes
shall be paid in full, and, as between the Company, its creditors other than
holders of such Senior Debt, and the Holders of the Notes, no such payment or
distribution made to the holders of Senior Debt by virtue of this Article which
otherwise would have been made to the Holders of the Notes shall be deemed to be
a payment by the Company on account of such Senior Debt, it being understood
that the provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Notes, on the one hand,
and the holders of Senior Debt, on the other hand.
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Section 13.3 Obligation of Company Unconditional.
Nothing contained in this Article or elsewhere in this Indenture or in the
Notes is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders of the Notes the principal of (and premium, if any) and interest on the
Notes as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the Holders of
the Notes and creditors of the Company other than the holders of Senior Debt,
nor shall anything herein or therein prevent the Trustee or the Holder of any
Note from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Section 13.4 Modification of Terms of Senior Debt.
Any renewal or extension of the time of payment of any Senior Debt or the
exercise by the holders of Senior Debt of any of their rights under any
instrument creating or evidencing Senior Debt, including without limitation the
waiver of default thereunder, may be made or done all without notice to or
assent from the Holders of the Notes or the Trustee.
No compromise, alteration, amendment, modification, extension, renewal or
other change of, or waiver, consent or other action in respect of, any liability
or obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior Debt is
outstanding or of such Senior Debt, whether or not such release is in accordance
with the provisions of any applicable document, shall in any way alter or affect
any of the provisions of this Article or of the Notes relating to the
subordination thereof.
Section 13.5 Payments on Notes Permitted.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Notes, shall affect the obligation of the Company to make, or prevent the
Company from making, payments of the principal of, or premium, if any, or
interest on the Notes in accordance with the provisions hereof and thereof, or
shall prevent the Trustee or any Paying Agent from applying any moneys deposited
with it hereunder to the payment of the principal of, or premium, if any, or
interest on the Notes, in each case except as otherwise provided in this
Article.
Section 13.6 Effectuation of Subordination by Trustee.
Each Holder of Notes, by his acceptance thereof, authorizes and directs the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Notes shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or
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other Person making any payment or distribution, delivered to the Trustee or to
the Holders of the Notes, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, and as to other facts pertinent
to the right of such Persons under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Persons pending judicial
determination as to the right of such Persons to receive such payment.
Section 13.7 Knowledge of Trustee.
Notwithstanding the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any Senior Debt, of any default in payment of principal, premium (if any) or
interest on any Senior Debt, or of any facts which would prohibit the making of
any payment of moneys to or by the Trustee, or the taking of any other action by
the Trustee, unless and until a Responsible Officer of the Trustee having
responsibility for the administration of the trust established by this Indenture
shall have received written notice thereof from the Company, any Holder of
Notes, any Paying or Conversion Agent of the Company or the holder or
representative of any class of Senior Debt, and, prior to the receipt of any
such written notice, the Trustee shall be entitled in all respects to assume
that no such default or facts exist; provided, however, that unless on the third
Business Day prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (other than a payment under Article 11) the
Trustee shall have received the notice provided for in this Section 13.7, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and apply the same to the
purpose for which they were received, and shall not be affected by any notice to
the contrary which may be received by it on or after such date.
Section 13.8 Trustee's Relation to Senior Debt.
The Trustee shall be entitled to all the rights set forth in this Article
with respect to any Senior Debt at the time held by it, to the same extent as
any other holder of Senior Debt and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of or payments to the Trustee
under or pursuant to Section 6.7.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt and the Trustee shall not be liable to any holder
of Senior Debt if it shall pay over or deliver to Holders, the Company or any
other Person moneys or assets to which any holder of Senior Debt shall be
entitled by virtue of this Article or otherwise.
Section 13.9 Rights of Holders of Senior Debt Not Impaired.
No right of any present or future holder of any Senior Debt to enforce the
subordination herein shall at any time or in any way be prejudiced or impaired
by any act or failure to act on the part of the Company or by any noncompliance
by the Company with the terms, provisions and
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covenants of this Indenture, regardless of any knowledge thereof any such holder
may have or be otherwise charged with.
Section 13.10 Certain Conversions Not Deemed Payment.
For the purposes of this Article 13 only, (1) the issuance and delivery of
junior securities upon conversion of Notes in accordance with Article 12
[conversion] shall not be deemed to constitute a payment or distribution on
account of the principal of, premium, if any, or interest (including Liquidated
Damages, if any) on Notes or on account of the purchase or other acquisition of
Notes, and (2) the payment, issuance or delivery of cash (except in satisfaction
of fractional shares pursuant to Section 12.3), property or securities (other
than junior securities) upon conversion of a Note shall be deemed to constitute
payment on account of the principal of, premium, if any, or interest (including
Liquidated Damages, if any) on such Note. For the purposes of this Section
13.10, the term "junior securities" means (a) shares of any stock of any class
of the Company or (b) securities of the Company that are subordinated in right
of payment to all Senior Debt to substantially the same extent as, or to a
greater extent than, the Notes are so subordinated as provided in this Article.
Nothing contained in this Article 13 or elsewhere in this Indenture or in the
Notes is intended to or shall impair, as among the Company, its creditors (other
than holders of Senior Debt) and the Holders, the right, which is absolute and
unconditional, of the holder of any Note to convert such note in accordance with
Article 12 [conversion].
