Exhibit 4.1


 






 


THIRD SUPPLEMENTAL INDENTURE


 


by and between


 


VITESSE SEMICONDUCTOR CORPORATION


 


and


 


U.S. BANK NATIONAL ASSOCIATION


as
Trustee


 






 


Dated
as of October 16, 2009


 






 


1.50%
CONVERTIBLE SUBORDINATED DEBENTURES DUE 2024


 


(Supplement
to the Indenture dated as of September 22, 2004)


 






 

















 


VITESSE SEMICONDUCTOR CORPORATION


 


THIRD SUPPLEMENTAL INDENTURE


 


This Third Supplemental
Indenture, dated as of October 16, 2009 (this “Third
Supplemental Indenture”), is entered into by and between Vitesse
Semiconductor Corporation, a Delaware corporation (the “Company”),
and U.S. Bank National Association, as trustee (the “Trustee”).  Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Indenture
(as defined below).


 


WITNESSETH:


 


WHEREAS, this Third
Supplemental Indenture modifies and supplements the Indenture dated as of September 22,
2004, between the Company and the Trustee, as amended by that certain First
Supplemental Indenture dated November 3, 2006 and that certain Second
Supplemental Indenture dated September 24, 2007 (as amended and
supplemented, the “Indenture”);


 


WHEREAS, the Company desires
to make certain amendments to the Indenture as set forth herein, and pursuant
to Section 7.2 of the Indenture such amendments may only be made with the
written consent of the Holders of a majority in aggregate principal amount of
the Outstanding Securities;


 


WHEREAS, the Company has
obtained consent to the amendments set forth herein from Holders of a majority
of the aggregate principal amount of the Outstanding Securities; and


 


WHEREAS, the Company hereby
certifies that all covenants and conditions precedent, if any, provided for in
the Indenture relating to the execution, delivery and performance of this Third
Supplemental Indenture have been complied with, and all things necessary to
make this Third Supplemental Indenture a valid agreement of the Company and the
Trustee, in accordance with its terms, and a valid amendment of, and supplement
to, the Indenture have been done;


 


NOW, THEREFORE, the parties hereto agree, as follows:


 


ARTICLE 1.


AMENDMENTS TO INDENTURE


 


Section 1.01         Amendments.  Subject to Section 2.01, the terms of the
Indenture are hereby amended, supplemented, modified or deleted as follows.


 


(a)           Section 1.1 of the
Indenture is hereby amended by adding the following definitions in alphabetical
order:


 


“Collateral”
has the meaning assigned to such term in the Second Lien Security Documents.


 


“Collateral
Agent” means the Trustee, in its capacity as Collateral Agent under this
Indenture and the Second Lien Security Documents.


 

















 


“Collateral
Assignment of IP” means the collateral assignment of intellectual property,
dated as of the Supplemental Indenture Effective Date, delivered by the Company
to the Collateral Agent, as so amended and supplemented, and as amended and
supplemented hereby, or otherwise modified.


 


“Company
Security Agreement” means the security agreement, dated as of the
Supplemental Indenture Effective Date, delivered by the Company to the
Collateral Agent, as so amended and supplemented, and as amended and
supplemented hereby, or otherwise modified.


 


“Deposit
Account Control Agreement” means the deposit account control agreement,
dated as of the Supplemental Indenture Effective Date, among the Company, the
Collateral Agent, Whitebox VSC, Ltd, as first lien agent, and Wells Fargo Bank,
National Association, as depositary bank, as so amended and supplemented, and
as amended and supplemented hereby, or otherwise modified.


 


“Domestic Subsidiary” means any
Subsidiary of the Company organized or existing under the laws of the United
States of America, or any state or territory thereof, or the District of
Columbia.


 


“First Lien Loan Agreement” means
that certain Loan Agreement, dated as of August 23, 2007, among the
Company, the lenders from time to time parties thereto, and Whitebox VSC, Ltd.,
as agent, as so amended and supplemented, and as amended and supplemented
hereby, or otherwise modified.


 


“First Lien Security Documents”
means the Collateral Documents as defined in the First Lien Loan Agreement.


 


“Guarantor”
means (a) Vitesse Manufacturing & Development Corporation, (b) Vitesse
Semiconductor Sales Corporation and (c) any other Subsidiary that becomes
a Guarantor pursuant to Section 16.6 hereof.


 


“Guarantor
Security Agreement” means the security agreement dated as of the
Supplemental Indenture Effective Date, delivered by each Guarantor to the
Collateral Agent, as so amended and supplemented, and as amended and
supplemented hereby, or otherwise modified.


 


“Guaranty”
shall mean the guaranty agreement, dated as of the Supplemental Indenture
Effective Date, delivered by each Guarantor to the Collateral Agent, as so
amended and supplemented, and as amended and supplemented hereby, or otherwise modified.


 


“Indenture Documents” means the Indenture and the Second Lien
Security Documents.


 


“Intercreditor
Agreement” means the intercreditor agreement, dated as of the Supplemental
Indenture Effective Date, between the First Lien Agent, the 


 


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Trustee,
the Company and the Guarantors, as so amended and supplemented, and as amended
and supplemented hereby, or otherwise modified.


 


“Permitted
Liens” means (a) the Security Interest, (b) the Liens granted to
the First Lien Agent pursuant to the First Lien Security Documents, and (b) customary
permitted Liens incurred in the ordinary course.


 


“Pledge
Agreement” means the pledge agreement, dated as of the Supplemental
Indenture Effective Date, delivered by the Company to the Collateral Agent, as
so amended and supplemented, and as amended and supplemented hereby, or
otherwise modified.


 


“Second
Lien Security Documents” means the Company Security Agreement, the Pledge
Agreement, the Collateral Assignment of IP, the Guaranty, the Guarantor
Security Agreement and the Deposit Account Control Agreement.


 


“Security
Interest” has the meaning assigned to such term in the Second Lien Security
Documents.


 


“Supplemental
Indenture Effective Date” means October 16, 2009, provided all of the
conditions set forth in Section 2.01 of the Third Supplemental Indenture
have been satisfied.


 


Section 4.1(d) of
the Indenture is hereby amended by inserting the words “, any Indenture
Document” after the word “Indenture”.


 


(b)           Section 6.2 of the
Indenture is hereby deleted in its entirety and replaced with the following:


 


“Section 6.2 Successor
Corporation Substituted.


 


Upon
any consolidation or merger by the Company with or into any other corporation
or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety to any Person, in accordance with Section 6.1,
the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and shall expressly assume
all obligations of the Company under the Indenture and the other Indenture
Documents in a manner acceptable to the Holders of the Securities in their sole
discretion, and thereafter, except in the case of a lease to another Person,
the predecessor corporation shall be relieved of all obligations and covenants
under this Indenture and the Securities (provided that all assets securing the
Securities shall be transferred to the successor corporation in a manner
acceptable to the Holders of the Securities in their sole discretion).”


 


(c)           Section 7.2 of the
Indenture is hereby amended by:


 


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(i) 
deleting the period at the end of Section 7.2(k) and replace it with “;
or”; and


 


(ii) adding
the following subsection to the end of Section 7.2:


 


“(l) release
all or substantially all of the Collateral (except as permitted under the
Intercreditor Agreement) or release the Company or any Guarantor from their
payment obligations under any Indenture Document.”


 


(d)           Article 14 of the Indenture
is deleted in its entirety and replaced with the following:


 


ARTICLE 14


 


INTERCREDITOR AGREEMENT


 


“14.1 Second Priority Nature
of Liens.


 


The
liens and security interest granted to the Collateral Agent for the benefit of
the Holders pursuant to the Second Lien Security Documents and the exercise of
any rights or remedies by the Collateral Agent or any Holder thereunder is
subject to the provisions of the Intercreditor Agreement.”


 


(e)           The Indenture is hereby
amended and supplemented by adding the following as Article 16:


 


ARTICLE 16


 


COLLATERAL


 


SECTION 16.1.         Security
Documents.  The payment of the principal of and interest
and premium, if any, on the Notes when due, whether on an interest payment
date, at maturity, by acceleration, repurchase, redemption or otherwise and
whether by the Company pursuant to the Notes or by the Guarantor pursuant to
its Guaranty, the payment and the performance of all other obligations of the
Company and the Guarantors under the Indenture, the Notes and the Guaranty are secured
as provided in the Second Lien Security Documents which the Company and the
Guarantor have entered into on the Supplemental Indenture Effective Date and
will be secured by Second Lien Security Documents hereafter delivered as
required or permitted by the Indenture (as amended on the Supplemental
Indenture Effective Date).  The Company
shall, and shall cause each Guarantor to, and each Guarantor shall, make all
filings (including filings of continuation statements and amendments to UCC
financing statements that may be necessary to continue the effectiveness of
such UCC financing statements) and all other actions as are necessary or
required by the Second Lien Security Documents to maintain (at the sole cost
and expense of the Company and the Guarantors) the security interest created by
the Second Lien Security Documents in the Collateral (other than with respect
to any Collateral the security 


 


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interest
in which is not required to be perfected under the Security Documents) as a
perfected security interest subject only to Permitted Liens.


 


SECTION 16.2.         Collateral
Agent.


 


(a) 
Subject to Section 5.1, neither the Trustee nor the Collateral Agent nor
any of their respective officers, directors, employees, attorneys or agents
will be responsible or liable for the existence, genuineness, value or
protection of any Collateral, for the legality, enforceability, effectiveness
or sufficiency of the Second Lien Security Documents, for the creation,
perfection, priority, sufficiency or protection of Security Interest, or for
any defect or deficiency as to any such matters, or for any failure to demand,
collect, foreclose or realize upon or otherwise enforce any of the Second
Priority Liens or Second Lien Security Documents or any delay in doing so.


 


SECTION 16.3          Opinions
as to Recording.


 


(a) 
Company represents that it has caused or will promptly cause to be executed and
delivered, filed and recorded and covenants that it will promptly cause to be
executed and delivered and filed and recorded, all instruments and documents,
and represents that it has done and will do or will cause to be done all such
acts and other things, at the Company’s expense, as applicable, as are
necessary to subject the applicable Collateral to valid Security Interests and
to perfect those Security Interests to the extent contemplated by the Second
Lien Security Documents.


 


(b) 
The Company shall furnish to the Trustee and the Collateral Agent upon the
execution and delivery of this Indenture an Opinion of Counsel either (i) stating
that in the opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, financing statements
or other instruments or otherwise necessary to make effective the Security
Interests intended to be created by the Second Lien Security Documents and
reciting the details of such action, or (ii) stating that, in the opinion
of such counsel, no such action is necessary to make such Lien effective.  Such Opinion of Counsel may contain such
qualifications, assumptions and limitations as are customary for such opinions.


 


(c) 
The Company shall furnish to the Trustee and the Collateral Agent within three
months after each anniversary of the Execution Date, an Opinion of Counsel,
dated as of such date, stating either that (i) in the opinion of such
counsel, all action has been taken with respect to the recording, filing,
re-recording, and refilling of the Indenture and related financing statements,
continuation statements and other instruments and documents as is necessary to
maintain the effectiveness of the Security Interests intended to be created by
the Second Lien Security Documents and reciting the details of such action or (ii) in
the opinion of such counsel, no such action is necessary to maintain the
effectiveness of such Security Interests. 
Such Opinion of Counsel may contain such qualifications, assumptions and
limitations as are customary for such opinons.


 


(d) 
The Company and the Subsidiary Guarantors shall otherwise comply with the
provisions of § 314(b) and, as applicable §§ 314(c), (d) and
(e) of the TIA.


 


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SECTION 16.4.         Authorization
of Actions to Be Taken.  (a) Each Holder, by its acceptance
thereof, consents and agrees to the terms of each Second Lien Security Document
and the Intercreditor Agreement, as originally in effect and as amended,
supplemented or replaced from time to time in accordance with its terms or the
terms of the Indenture, authorizes and directs the Trustee and the Collateral
Agent to enter into the Second Lien Security Documents to which it is a party,
authorizes and empowers the Trustee to direct the Collateral Agent to enter
into, and the Collateral Agent to execute and deliver, the Intercreditor
Agreement, and authorizes and empowers the Trustee and the Collateral Agent to
bind the holders of Notes and other holders of obligations as set forth in the
Second Lien Security Documents and the Intercreditor Agreement and to perform
its obligations and exercise its rights and powers thereunder.


 


(b) The
Collateral Agent and the Trustee are authorized and empowered to receive for
the benefit of the Holders any funds collected or distributed under the
Security Documents to which the Collateral Agent or Trustee is a party and to
make further distributions of such funds as permitted or required in any Second
Lien Security Document or the Intercreditor Agreement.


 


SECTION 16.5.
Release of Liens.  Subject to Section 7.2(l),
Collateral may be released from the Security Interest at any time or from time
to time in accordance with the provisions of the Second Lien Security Documents
and the Intercreditor Agreement.  The
applicable assets included in the Collateral shall be released at the Company’s
sole cost and expense.


 


SECTION 16.6.
Additional Guarantors.  If any Domestic
Subsidiary of the Company shall be required to join the Security Documents (as
defined in the First Lien Loan Agreement) pursuant to Section 6.5 of the
First Lien Loan Agreement, such Subsidiary shall, simultaneously therewith,
execute and deliver to the Collateral Agent, (a) a Joinder Agreement in
the form of Exhibit A to the
Guaranty, (b) a Joinder Agreement in the form of Exhibit A
to the Guarantor Security Agreement, (c) such additional documents
reasonably required by the Collateral Agent, and (d) no Default of Event
of Default shall result from the joinder contemplated herein.


 


ARTICLE 2.


 


MISCELLANEOUS PROVISIONS


 


Section 2.01         Effective Date of the Third Supplemental
Indenture.  If  (and only
if ) each of the following conditions precedent are satisfied, the provisions
of Article 1 of this Third Supplemental Indenture shall be deemed to be
effective as of the date first written above:


 


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(a)   the Trustee shall have received a written direction
from the Holders of a majority of the aggregate principal amount of the
Outstanding Securities directing the Trustee to execute this Third Supplemental
Indenture;


 


(b)   the Trustee shall have received a copy of (i) this
Third Supplemental Indenture, (ii) the Intercreditor Agreement and (iii) each
Second Lien Security Document, in each case executed by each party thereto
other than the Trustee;


 


(c)   the Trustee shall have received an Officer’s Certificate
stating that this Third Supplemental Indenture is authorized and permitted by
the Indenture, in accordance with Sections 7.6, 15.5 and 15.6 of the Indenture;
and


 


(d)   the Trustee shall have received an Opinion of
Counsel stating that this Third Supplemental Indenture is authorized and
permitted by the Indenture, in accordance with Sections 7.6, 15.5 and 15.6 of
the Indenture.


 


Section 2.02         Governing Law.  This Third
Supplemental Indenture shall be governed by, and construed in accordance with,
the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws
of another jurisdiction would be required thereby.  In connection with any dispute arising out of
or related to this Third Supplemental Indenture, the Company hereby consents to
jurisdiction in the State and Federal Courts in the Borough of Manhattan.


 


Section 2.03         Counterparts.  This Third
Supplemental Indenture may be executed by facsimile signatures and/or in any
number of counterparts, each of which when so executed shall be deemed to be an
original but all such counterparts shall together constitute but one and the
same instrument.


 


Section 2.04         No Adverse Interpretation of
Other Agreements.  This Third Supplemental Indenture may not be
used to interpret another indenture, loan or debt agreement of the Company. Any
such indenture, loan or debt agreement may not be used to interpret this Third
Supplemental Indenture.


 


Section 2.05         Severability.  In case any one or more of the provisions contained in this Third
Supplemental Indenture shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Third Supplemental Indenture.


 


[Signature page to
follow.]


 


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IN WITNESS WHEREOF, the parties hereto have
caused this Third Supplemental Indenture to be duly executed as of the date
first written above.


 


 


	
   

  	
  VITESSE
  SEMICONDUCTOR CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Christopher R. Gardner 

  
	
   

  	
   

  	
  Name: 

  	
  Christopher
  R. Gardner 

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, in its capacity 

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Stephen Rivero

  
	
   

  	
   

  	
  Name:

  	
  Stephen
  Rivero

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature Page to Third Supplemental Indenture