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First Supplemental Indenture

 

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Title:

First Supplemental Indenture

Entities:

McDATA Corp.; U.S. Bank, NA

Date:

2005

Size:

Preview shows 23KB of 89KB total

Price:

$57

ID:

#642832

 

 

► Financing ► Indentures ► Supplemental ► First Supplemental Indentures
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FIRST SUPPLEMENTAL INDENTURE

        THIS FIRST SUPPLEMENTAL INDENTURE dated as of June 1, 2005 (this "Supplemental Indenture"), is entered into by and among McDATA Corporation, a Delaware corporation ("McDATA"), Computer Network Technology Corporation, a Minnesota corporation (the "Company"), and U.S. Bank National Association, a national banking association, as trustee (the "Trustee"). Capitalized terms used herein and not otherwise defined have the meanings set forth in the Indenture referred to below.

RECITALS

        A.    The Company has heretofore executed and delivered to the Trustee an indenture dated as of February 20, 2002 (the "Indenture"), providing for the issuance of 3.00% Convertible Subordinated Notes due 2007 of the Company (the "Securities").

        B.    The Company has entered into an Agreement and Plan of Merger dated as of January 17, 2005, by and among McDATA, Condor Acquisition, Inc., a Minnesota corporation and a wholly-owned subsidiary of McDATA ("Merger Sub"), and the Company (the "Merger Agreement"), providing for the merger of Merger Sub with and into the Company with the Company as the surviving corporation and a wholly-owned subsidiary of McDATA (the "Merger").

        C.    Pursuant to Section 2.02(a) of the Merger Agreement, at the effective time of the Merger, each outstanding share of the Company's Common Stock, $0.01 par value per share ("Company Stock"), shall be converted into the right to receive 1.3 shares of McDATA's Class A Common Stock, $0.01 par value per share ("McDATA Stock") together with cash in lieu of fractional shares).

        D.    Pursuant to Section 4.11 of the Indenture, as a condition precedent to any merger effecting a change in the kind and amount of shares and other property issuable upon the conversion of the Securities, the Company and McDATA shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then outstanding shall have the right to convert such Security into such other securities and property receivable in the merger by a holder of Company Stock.

        E.    In accordance with Section 11.1(a) of the Indenture the Company and the Trustee may amend or supplement the Indenture or the Securities to comply with Section 4.11 without notice to or consent of any Securityholder.

        F.     The Company and McDATA desire and have requested the Trustee to enter into this Supplemental Indenture for the purpose of amending the Indenture to provide that, upon conversion of the Securities under the Indenture, a Holder of Securities will receive McDATA Stock in lieu of Company Stock to which such Holder otherwise would have been entitled upon conversion.

        G.    McDATA has agreed to become a co-obligor with respect to the Securities by assuming the guaranty obligation set forth in Article Three of this Supplemental Indenture.

        H.    Each of the Company and McDATA has duly authorized the execution and delivery of this Supplemental Indenture.



        NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:

ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS

        Section 1.01 Relation to Indenture. This Supplemental Indenture constitutes an integral part of the Indenture. In the event of inconsistencies between the Indenture and this Supplemental Indenture, the terms of this Supplemental Indenture shall govern.

        Section 1.02. Definitions. The definitions of "Board of Directors", "Common Stock", "Officer" and "Officers' Certificate" in Section 1.1 of the Indenture is hereby amended and restated in its entirety to read as follows:

ARTICLE TWO
AMENDMENTS

        Section 2.01 Conversion. Article IV of the Indenture is hereby amended and restated in its entirety to read as set forth on Annex A hereto.

        Section 2.02 Consolidation, Etc., on Certain Terms. Section 7.1 of the Indenture is hereby amended and restated to read as follows:

        Section 7.1 Company and McDATA May Consolidate, Etc., Only on Certain Terms

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        Section 2.03 Successor Substituted. Section 7.2 of the Indenture is hereby amended and restated in its entirety to read as follows:

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        Section 2.04 Events of Default. Section 8.1 of the Indenture is hereby amended to add new clauses (6) and (7) to read as follows:

        Section 2.05 No Recourse Against Others. Section 13.10 of the Indenture is hereby amended and restated in its entirety to read as follows:

        Section 2.06 Form of Security. Annex B of the Indenture is amended and restated in its entirety in the form attached to this Supplemental Indenture. Upon the execution of this Supplemental Indenture, the Company shall execute and the Trustee shall authenticate and deliver, Securities in the form set forth in Annex B, in substitution for, Securities then outstanding and all Securities presented or delivered to the Trustee on and after the date hereof shall be in the form of Annex B attached hereto to give effect to this Supplemental Indenture.

        The Trustee shall not at any time be under any responsibility to acquire or cause any Security now or hereafter outstanding to be presented or delivered to it for any purposes provided for in this Section 2.06.

ARTICLE THREE
MCDATA GUARANTY

        Section 3.01 McDATA Guaranty.

        (a)   Subject to the provisions of this Article Three, McDATA fully and unconditionally guarantees to each Holder of Securities hereunder and to the Trustee on behalf of the Holders: (1) the due and punctual payment of the principal of, premium, if any, and interest on each Security, when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, all in accordance with the terms of the Security and the Indenture and (2) in the case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due in accordance with the terms of the extension or renewal, at the stated

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maturity, by acceleration or otherwise, subject, however, in the case of clauses (1) and (2) above, to the limitations set forth in the next succeeding paragraph (the "McDATA Guaranty").

        (b)   McDATA hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger or bankruptcy of the Company, any right to require a Holder to pursue any right or take any action (including, without limitation, a presentment, protest, demand for payment, notice of dishonor or any other notice) against the Company, the benefit of discussion, protest or notice with respect to any such Security or the debt evidenced thereby and all demands whatsoever (except as specified above), and covenants that the McDATA Guaranty will not be discharged as to any such Security except by payment in full of the principal thereof and interest thereon or as provided in Section 10.1 of the Indenture. In the event of any declaration of acceleration of such obligations as provided in Article 8 of the Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by McDATA for the purposes of this Article Three. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 8 of the Indenture, the Trustee shall promptly make a demand for payment on the Securities under the McDATA Guaranty provided for in this Article Three.

        (c)   If the Trustee or any Holder is required by any court or otherwise to return to the Company or McDATA, or any custodian, receiver, liquidator, trustee, sequestrator or other similar official acting in relation to the Company or McDATA, any amount paid to the Trustee or such Holder in respect of a Security, the McDATA Guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect. McDATA further agrees, to the fullest extent that it may lawfully do so, that, as between it, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guarantied hereby may be accelerated as provided in Article 8 of the Indenture for the purposes of the McDATA Guaranty, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guarantied hereby.

        (d)   McDATA shall be subrogated to the rights of the Holders of any Security against the Company but only to the extent and in the amount that a joint and several obligor with the Company would be entitled to contribution from the Company, in respect of any amount paid by McDATA to any Holder pursuant to the provisions of the McDATA Guaranty; provided, that McDATA shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, premium, if any, and interest on all the Securities shall have been paid in full.


 

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