Common use of Subordinated Notes Clause in Contracts

Subordinated Notes. Agent and Lenders hereby consent to the amendment and restatement of each Subordinated Note as defined in the respective Intercreditor and Subordination Agreements dated August 13, 1999 executed by each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx, as Trustee of the Xxxxxxxxxx Family Trust, U/D/T dated 0/0/00, Xxxx Xxxxx, Xxxxxxx Xxxxx, Yoshinosuke Xxxxxx, Xxxx Xxxxxx Xxxxxx, Trentworth Securities, Inc., Xxxxx X. Xxxx and Xxxxx X. Xxxx, as Trustees of the Hall Living Trust dated April 12, 1994 ("Hall"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxxxx Xxx Xxxxxx, as Trustee of the Xxxxxxx Xxx Xxxxxx Intervivos Trust of September 6, 1996 ("Xxxxxx") (whose interest under the Subordinated Note has been assigned to Holdings, LLC) (collectively, other than Xxxxxx and Holdings LLC, the "Subordinated Noteholders"), provided that (a) the original principal amount of and the interest rate under each Subordinated Note remains unchanged (except that the interest payable to Hall and Xxxxxxx under their respective Subordinated Notes may be increased to a rate not to exceed 13.25% per annum) and the principal amount of certain of the Subordinated Notes may be increased in accordance with Schedule 1 attached hereto, (b) the Subordinated Noteholders each sign the acknowledgement at the end of this Amendment, (c) although the Subordinated Debt with CCS as debtor may be converted to preferred shares of SWI stock on the Amendment Effective Date, no cash payment in exchange for such preferred shares will be permitted until repayment and satisfaction in full of the Liabilities with respect to the Term Loan (subject to the provisions of Section 7), and then only from the proceeds of the Alloy Stock, and (d) Holdings LLC enters into an Intercreditor and Subordination Agreement in form and substance satisfactory to Agent and all the Lenders (the "LLC Subordination Agreement").

Subordinated Notes. Agent Each Restricted Definitive Subordinated Note and Lenders hereby consent Restricted Global Subordinated Note will bear a legend in substantially the following form: “THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR SECURITIES LAWS OF ANY STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT (A) PURSUANT TO, AND IN ACCORDANCE WITH, A REGISTRATION STATEMENT THAT IS EFFECTIVE UNDER THE SECURITIES ACT AT THE TIME OF SUCH TRANSFER; (B) TO A PERSON THAT YOU REASONABLY BELIEVE TO BE A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OR TO A PERSON THAT YOU REASONABLY BELIEVE TO BE AN INSTITUTIONAL ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT; OR (C) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (INCLUDING, IF AVAILABLE, THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT).” The Private Placement Legend set forth above will be removed and a new Subordinated Note of like tenor and principal amount without such Private Placement Legend will be executed by the Company, and upon written request of the Company (together with an Officers’ Certificate and an Opinion of Counsel) given at least three Business Days prior to the amendment proposed authentication date, the Trustee will authenticate and restatement of each deliver such new Subordinated Note as defined in to the respective Intercreditor Holder, if legal counsel to the Holder or owner of beneficial interests requesting the removal of such Private Placement Legend deliver to the Trustee, any Registrar and Subordination Agreements dated August 13, 1999 executed by each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx, as Trustee of Paying Agent (if a different Person than the Xxxxxxxxxx Family Trust, U/D/T dated 0/0/00, Xxxx Xxxxx, Xxxxxxx Xxxxx, Yoshinosuke Xxxxxx, Xxxx Xxxxxx Xxxxxx, Trentworth Securities, Inc., Xxxxx X. Xxxx and Xxxxx X. Xxxx, as Trustees of the Hall Living Trust dated April 12, 1994 ("Hall"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxxxx Xxx Xxxxxx, as Trustee of the Xxxxxxx Xxx Xxxxxx Intervivos Trust of September 6, 1996 ("Xxxxxx") (whose interest under the Subordinated Note has been assigned to Holdings, LLC) (collectively, other than Xxxxxx and Holdings LLC, the "Subordinated Noteholders"), provided that (a) the original principal amount of and the interest rate under each Subordinated Note remains unchanged (except that the interest payable to Hall and Xxxxxxx under their respective Subordinated Notes may be increased to a rate not to exceed 13.25% per annumTrustee) and the principal amount Company an opinion of certain of counsel in compliance with this Indenture and additionally opining that the Subordinated Notes may Private Placement Legend can be increased removed in connection with the transfer in accordance with Schedule 1 attached hereto, (b) the Subordinated Noteholders each sign the acknowledgement at the end of this Amendment, (c) although the Subordinated Debt with CCS as debtor may be converted to preferred shares of SWI stock on the Amendment Effective Date, no cash payment in exchange for such preferred shares will be permitted until repayment and satisfaction in full of the Liabilities with respect to the Term Loan (subject to the provisions of Section 7), and then only from the proceeds of the Alloy Stock, and (d) Holdings LLC enters into an Intercreditor and Subordination Agreement in form and substance satisfactory to Agent and all the Lenders (the "LLC Subordination Agreement")Securities Act.

Subordinated Notes. Agent and Lenders hereby consent to the amendment and restatement of each Subordinated Note as defined in the respective Intercreditor and Subordination Agreements dated August 13, 1999 executed by each of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx, as Trustee of the Xxxxxxxxxx Family Trust, U/D/T dated 0/0/00, Xxxx Xxxxx, Xxxxxxx Xxxxx, Yoshinosuke Xxxxxx, Xxxx Xxxxxx Xxxxxx, Trentworth Securities, Inc., Xxxxx X. Xxxx and Xxxxx X. Xxxx, as Trustees of the Hall Living Trust dated April 12, 1994 ("Hall"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxxxx Xxx Xxxxxx, as Trustee of the Xxxxxxx Xxx Xxxxxx Intervivos Trust of September 6, 1996 ("Xxxxxx") (whose interest under the Subordinated Note has been assigned to Holdings, LLC) (collectively, other than Xxxxxx and Holdings LLC, the "Subordinated Noteholders"), provided that (a) the original principal amount of and the interest rate under each Subordinated Note remains unchanged (except that the interest payable to Hall and Xxxxxxx under their respective The Subordinated Notes may be increased to a rate not to exceed 13.25% per annum) and or the principal amount of certain guarantees thereof (or any refinancing Indebtedness of the Subordinated Notes incurred pursuant to Section 11.12(b)) shall cease, for any reason, to be validly subordinated to the Payment Obligations as provided in the Subordinated Note Indenture (or the agreement governing such refinancing Indebtedness) or the trustee in respect of the Subordinated Notes (or the agreement governing such refinancing Indebtedness) or the holders of at least 25% in aggregate principal amount of the Subordinated Notes (or such refinancing Indebtedness) shall so assert; then, and in any such event, (x) if such event is an Event of Default specified in clause (i), (ii) or (iii) of paragraph (j) of this Section 12 with respect to any Loan Party, automatically the Commitments shall immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder), the Notes and the Drafts shall immediately become due and payable, and (y) if such event is any other Event of Default, any or all of the following actions may be increased in accordance taken: (i) with Schedule 1 attached hereto, (b) the Subordinated Noteholders each sign the acknowledgement at the end of this Amendment, (c) although the Subordinated Debt with CCS as debtor may be converted to preferred shares of SWI stock on the Amendment Effective Date, no cash payment in exchange for such preferred shares will be permitted until repayment and satisfaction in full consent of the Liabilities Required Multi-Currency Lenders, the Multi-Currency Administrative Agent may, or upon the request of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent shall, by notice to the Company, declare the Aggregate Multi-Currency Commitment to be terminated forthwith, whereupon the Aggregate Multi-Currency Commitment shall immediately terminate; and/or (ii) with respect the consent of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent may, or upon the request of the Required Multi-Currency Lenders, the Multi-Currency Administrative Agent shall, by notice to the Company (on its own behalf and as agent for the Borrowing Subsidiaries), declare all or any part of the Revolving Credit Loans, Swing Line Loans, Local Loans and Acceptances (with accrued interest thereon) and any other amounts owing under this Agreement to the Multi-Currency Lenders (including, without limitation, all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the documents required thereunder), the Revolving Credit Notes and the Drafts to be due and payable forthwith, whereupon the same shall immediately become due and payable; and/or (iii) with the consent of the Required Term Loan Lenders, the Term Loan Administrative Agent may, or upon the request of the Required Term Loan Lenders, the Term Loan Administrative Agent shall, by notice to the Company (on its own behalf and as agent for the Borrowing Subsidiaries), declare all or any part of the Term Loans (with accrued interest thereon) and any other amounts owing under this Agreement to the Term Loan (subject Lenders and the Term Loan Notes to be due and payable forthwith, whereupon the same shall immediately become due and payable. In addition to the provisions remedies set forth above, the Administrative Agents may direct the Collateral Agent to exercise any remedies provided for by the Security Documents in accordance with the terms thereof or any other remedies provided by applicable law. With respect to all Letters of Section 7)Credit with respect to which presentment for honor shall not have occurred at the time of an acceleration pursuant to the preceding paragraph, and then only from the proceeds Company shall at such time deposit as collateral security for such Letters of Credit in a Cash Collateral Account an amount of cash in Dollars equal to the Deposit Requirement in effect at such time. Amounts held in such Cash Collateral Account shall be applied by the Multi-Currency Administrative Agent (in such order as it shall elect) to the payment of the Alloy StockPayment Obligations on account of the Letters of Credit which are then or thereafter due and payable and to cause any then-outstanding Undrawn L/C Obligations to be Fully Secured. Following the payment of all such Payment Obligations and the termination of all Letters of Credit, and (d) Holdings LLC enters into an any balance remaining in such Cash Collateral Account shall be applied in accordance with the Intercreditor and Subordination Agreement Agreement. Except as expressly provided above in form and substance satisfactory to Agent this Article XII, presentment, demand, protest and all the Lenders (the "LLC Subordination Agreement")other notices of any kind are hereby expressly waived.

Subordinated Notes. Agent and Lenders hereby consent Each Subordinated Note will be imprinted ------------------ with a legend substantially in the following form: THIS NOTE WAS ORIGINALLY ISSUED ON _______ __, 1998, AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS SET FORTH IN THE PURCHASE AGREEMENT. THE ISSUER OF THIS NOTE WILL FURNISH A COPY OF THESE PROVISIONS TO THE HOLDER HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST. The transfer of any Subordinated Note is subject to the amendment and restatement following condition: In connection with the transfer of each any Subordinated Note, the holder thereof shall deliver written notice to the Company describing in reasonable detail the transfer or proposed transfer, together with an opinion of Xxxxxxxx Xxxxxx or other counsel which (to the Company's reasonable satisfaction) is knowledgeable in securities law matters, or other evidence satisfactory to the Company to the effect that such transfer of a Subordinated Note as defined in may be effected without registration of such Subordinated Note under the respective Intercreditor and Subordination Agreements dated August 13, 1999 executed by each Securities Act of Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx1933, as Trustee amended. In addition, if the holder of the Xxxxxxxxxx Family Trust, U/D/T dated 0/0/00, Xxxx Xxxxx, Xxxxxxx Xxxxx, Yoshinosuke Xxxxxx, Xxxx Xxxxxx Xxxxxx, Trentworth Securities, Inc., Xxxxx X. Xxxx and Xxxxx X. Xxxx, as Trustees of the Hall Living Trust dated April 12, 1994 ("Hall"), Xxxxxxx Xxxxxxx ("Xxxxxxx"), and Xxxxxxx Xxx Xxxxxx, as Trustee of the Xxxxxxx Xxx Xxxxxx Intervivos Trust of September 6, 1996 ("Xxxxxx") (whose interest under the Subordinated Note has been assigned delivers to Holdingsthe Company an opinion of Xxxxxxxx Xxxxxx or such other counsel that no subsequent transfer of such Subordinated Note shall require registration under the Securities Act of 1933, LLC) (collectively, other than Xxxxxx and Holdings LLCas amended, the "Company shall promptly upon such contemplated transfer deliver a new copy of such Subordinated Noteholders")Note which does not bear the Securities Act portion of the legend set forth in this Section 10.1. Notwithstanding the foregoing, provided that (a) the original principal amount of Sellers shall be entitled to transfer Subordinated Notes among themselves and the interest rate under each beneficiaries and partners of Sellers which are trusts or limited partnerships without furnishing an opinion of counsel. If the Company is not required to deliver a new copy of such Subordinated Note remains unchanged (except that the interest payable to Hall and Xxxxxxx under their respective Subordinated Notes may be increased to a rate not to exceed 13.25% per annum) and the principal amount of certain bearing such portion of the Subordinated Notes may be increased in accordance with Schedule 1 attached heretolegend, (b) the Subordinated Noteholders each sign holder thereof shall not transfer the acknowledgement at same until the end of this Amendment, (c) although the Subordinated Debt with CCS as debtor may be converted to preferred shares of SWI stock on the Amendment Effective Date, no cash payment in exchange for such preferred shares will be permitted until repayment and satisfaction in full of the Liabilities with respect prospective transferee has confirmed to the Term Loan (subject Company in writing its agreement to be bound by the provisions of Section 7), and then only from the proceeds of the Alloy Stock, and (d) Holdings LLC enters into an Intercreditor and Subordination Agreement conditions contained in form and substance satisfactory to Agent and all the Lenders (the "LLC Subordination Agreement")this paragraph.