SUPPLEMENTAL INDENTURE NO. 1
Exhibit-4.2
EXECUTION VERSION
SUPPLEMENTAL INDENTURE NO. 1
Supplemental Indenture (this “Supplemental Indenture”), dated as of April 11, 2006,
among Avago Technologies Sensor IP Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. (each, a
“Guaranteeing Subsidiary”), each a subsidiary of Avago Technologies Finance Pte. Ltd., a
private limited company organized under the laws of the Republic of Singapore, and The Bank of New
York, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, each of the Issuers and the Guarantors (as defined in the Indenture referred to
below) has heretofore executed and delivered to the Trustee an indenture (the “Indenture”),
dated as of December 1, 2005, providing for the issuance of an unlimited aggregate principal amount
of 10 1/8% Senior Notes due 2013 and Senior Floating Rate Notes due 2013 (together, the
“Notes”);
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 Issuers’ Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
“Guarantees”); and
WHEREAS, pursuant to Section 9.01 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 Notes 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 other Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Issuers hereunder or
thereunder, that:
(i) the principal of and interest, premium and Additional Interest, if any, on
the Notes 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 Notes, if any, if lawful, and all other obligations of the Issuers
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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 Notes 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 and the Guaranteeing Subsidiaries shall be jointly and severally
obligated to pay the same immediately. This is a guarantee of payment and not a
guarantee of collection.
(b) The obligations hereunder shall be unconditional (to the extent legally permitted
under such Guaranteeing Subsidiary’s jurisdiction of organization), irrespective of the
validity, regularity or enforceability of the Notes or the Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against the Issuers, 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 Issuers, any right to
require a proceeding first against the Issuers, protest, notice and all demands whatsoever.
(d) The Guarantees shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental Indenture, and each
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
Issuers, the Guarantors (including the Guaranteeing Subsidiaries), or any custodian,
trustee, liquidator or other similar official acting in relation to either the Issuers or
the Guarantors, any amount paid either to the Trustee or such Holder, the Guarantees, to the
extent theretofore discharged, shall be reinstated in full force and effect.
(f) No Guaranteeing Subsidiary shall 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 Guaranteeing Subsidiaries, 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 6 of the Indenture for the purposes of the Guarantees,
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 6 of the Indenture,
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such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guaranteeing Subsidiaries for the purpose of the Guarantees.
(h) Each Guaranteeing Subsidiary 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 Guarantees.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable Bankruptcy Law 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 10 of the Indenture, the new
Guarantees shall be limited to the maximum amount permissible such that the obligations of
each Guaranteeing Subsidiary under the Guarantees will not constitute a fraudulent transfer
or conveyance or otherwise violate applicable law as set out in Article 10 of the Indenture.
(j) The Guarantees shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Issuers for liquidation, reorganization,
should the Issuers become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of the Issuers’
assets, and shall, to the fullest extent permitted by law, continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes and Guarantees, whether as a “voidable preference,”
“fraudulent transfer” or otherwise, all as though such payment or performance had not been
made. In the event that any payment or any part thereof, is rescinded, reduced, restored or
returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(k) In case any provision of the Guarantees shall be invalid, illegal or unenforceable,
the validity, legality, and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
(l) The Guarantees shall be general unsecured senior obligations of each Guaranteeing
Subsidiary, ranking pari passu with any other future Senior Indebtedness of each
Guaranteeing Subsidiary, if any.
(m) Each payment to be made by each Guaranteeing Subsidiary in respect of the
Guarantees shall be made without set-off, counterclaim, reduction or diminution of any kind
or nature.
(3) Execution and Delivery. Each Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantees on the Notes.
(4) Merger, Consolidation or Sale of All or Substantially All Assets.
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(a) Except as otherwise provided in Section 5.01(c) of the Indenture, no Guaranteeing
Subsidiary may consolidate or merge with or into or wind up into (whether or not the Issuers or a
Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i) (A) the Guaranteeing Subsidiary is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the Guaranteeing Subsidiary)
or to which such sale, assignment, transfer, lease, conveyance or other disposition will
have been made is a corporation organized or existing under the laws of the jurisdiction of
organization of the Guaranteeing Subsidiary, as the case may be, or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof (the
Guaranteeing Subsidiary or such Person, as the case may be, being herein called the
“Successor Person”);
(B) the Successor Person, if other than the Guaranteeing Subsidiary, expressly assumes
all the obligations of the Guaranteeing Subsidiary under the Indenture and the Guaranteeing
Subsidiary’s related Guarantee pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists; and
(D) the Issuers shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with the Indenture; or
(ii) the transaction is made in compliance with Section 4.10 of the Indenture.
(b) Subject to certain limitations set forth in the Indenture, the Successor Person will
succeed to, and be substituted for, the Guaranteeing Subsidiary under the Indenture and the
Guaranteeing Subsidiary’s Guarantee. Notwithstanding the foregoing, each Guaranteeing Subsidiary
may merge into or transfer all or part of its properties and assets to another Guarantor or the
Issuers.
(5) Releases.
The Guarantee of each Guaranteeing Subsidiary shall be automatically and unconditionally
released and discharged, and no further action by the applicable Guaranteeing Subsidiary, the
Issuers or the Trustee is required for the release of such Guaranteeing Subsidiary’s Guarantee,
upon:
(a) (i) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of
the Guaranteeing Subsidiary (including any sale, exchange or transfer), after which the
Guaranteeing Subsidiary is no longer a Restricted Subsidiary or all or substantially all the
assets of the Guaranteeing Subsidiary which sale, exchange or transfer is made in compliance
with the applicable provisions of the Indenture;
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(ii) the release or discharge of the guarantee by the Guaranteeing Subsidiary of the
Senior Credit Facilities or the guarantee which resulted in the creation of the Guarantee,
except a discharge or release by or as a result of payment under such guarantee;
(iii) the proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or
(iv) the Issuers’ exercising their Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 of the Indenture or the Issuers’ obligations under the
Indenture being discharged in accordance with the terms of the Indenture; and
(b) the Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate
stating that all conditions precedent provided for in the Indenture relating to such
transaction have been complied with.
(6) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiaries shall have any liability for any obligations of the
Issuers or the Guarantors (including the Guaranteeing Subsidiaries) under the Notes, any
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 by accepting Notes waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes.
(7) Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(8) 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.
(9) Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
(10) 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.
(11) Subrogation. The Guaranteeing Subsidiaries shall be subrogated to all rights of
Holders of Notes against the Issuers in respect of any amounts paid by the Guaranteeing
Subsidiaries pursuant to the provisions of Section 2 hereof and Section 10.01 of the Indenture;
provided that, if an Event of Default has occurred and is continuing, the Guaranteeing
Subsidiaries shall not be entitled to enforce or receive any payments arising out of, or based
upon, such right of subrogation until all amounts then due and payable by the Issuers under the
Indenture or the Notes shall have been paid in full.
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(12) Benefits Acknowledged. The Guaranteeing Subsidiaries’ Guarantees are subject to
the terms and conditions set forth in the Indenture. The Guaranteeing Subsidiaries acknowledge
that they will receive direct and indirect benefits from the financing arrangements contemplated by
the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it
pursuant to the Guarantees are knowingly made in contemplation of such benefits.
(13) Successors. All agreements of the Guaranteeing Subsidiaries in this Supplemental
Indenture shall bind their Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
| Avago Technologies Sensor IP Pte. Ltd. |
||||||||
| The Common Seal of Avago | ) | |||||||
| Technologies Sensor IP Pte. | ) | |||||||
| Ltd. was hereunto affixed | ) | |||||||
| /s/ Xxx Xxxxxxx | Director | |||||||
| Xxx Xxxxxxx | ||||||||
| /s/ Xxxxxxxx Xxxxxxx | Director | |||||||
| Xxxxxxxx Xxxxxxx |
| AVAGO
TECHNOLOGIES SENSOR (U.S.A.) INC. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | President | |||
| THE
BANK OF NEW YORK, as Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Senior Notes Supplemental Indenture
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed,
all as of the date first above written.
| Avago Technologies Sensor IP Pte. Ltd. |
||||||||
| The Common Seal of Avago | ) | |||||||
| Technologies Sensor IP Pte. | ) | |||||||
| Ltd. was hereunto affixed | ) | |||||||
| Director | ||||||||
| Xxx Xxxxxxx | ||||||||
| Director | ||||||||
| Xxxxxxxx Xxxxxxx |
| AVAGO
TECHNOLOGIES SENSOR (U.S.A.) INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK, as Trustee |
||||
| By: | /s/XXXXXXXXX XXXXXXX | |||
| Name: | XXXXXXXXX XXXXXXX | |||
| Title: | ASSISTANT TREASURER | |||
Senior Notes Supplemental Indenture
