EXHIBIT 4.5
FIRST SUPPLEMENTAL INDENTURE
Dated as of May 19, 1999
by and among
TELEHUB COMMUNICATIONS CORPORATION,
as Issuer,
TELEHUB NETWORK SERVICES CORPORATION,
TELEHUB TECHNOLOGIES CORPORATION, and
TELEHUB LEASING CORPORATION,
as Guarantors,
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee
to
INDENTURE
dated as of July 30, 1998
Relating to $125,000,000 Aggregate Principal Amount of
13-7/8% Senior Discount Notes due 2005
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE, dated as of May 19, 1999 (this
"Supplement"), by and among TELEHUB COMMUNICATIONS CORPORATION, a Nevada
corporation (the "Company"), TELEHUB NETWORK SERVICES CORPORATION, an Illinois
Corporation ("TNS"), TELEHUB TECHNOLOGIES CORPORATION, a Nevada Corporation
("TLC," and collectively with TNS and TTC, the "Guarantors"), and STATE STREET
BANK AND TRUST COMPANY, a Massachusetts trust company, as trustee ("Trustee").
WITNESSETH:
WHEREAS, the Company, the Guarantors and the Trustee are parties to the
Indenture, dated as of July 30, 1998, pursuant to which $125,000,000 aggregate
principal amount of the Company's 13-7/8% Senior Discount Notes due 2005 were
issued and with respect to which this Supplement relates;
WHEREAS, the Company desires to amend the Indenture in the manner set
forth in this Supplement;
WHEREAS, Section 9.2 of the Indenture provides that the Company and the
Trustee may from time to time amend or supplement the Indenture with the receipt
of consent of the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes;
WHEREAS, the Company undertook a consent solicitation (the
"Solicitation") seeking the written consent from Holders pursuant to a Consent
Solicitation Statement dated April 5, 1999 (the "Solicitation Statement");
WHEREAS, the Company has received in the Solicitation the valid written
consents of the Holders of more than a majority in aggregate principal amount of
the outstanding Notes, consenting to the substance of the amendments set forth
in this Supplement;
WHEREAS, all conditions and requirements necessary to make this
Supplement a valid, binding and legal instrument in accordance with the terms of
the Indenture have been performed and fulfilled and the execution and delivery
hereof have been in all respect duly authorized; and
WHEREAS, in accordance with the terms of the Indenture, the Company has
requested that the Trustee execute and deliver this Supplement;
NOW THEREFORE, in consideration of the above premises, each party
agrees, for the benefit of the other and for the equal and valuable benefit of
the Holders of Notes, as follows:
First Supplemental Indenture: Page 1
ARTICLE 1: DEFINITIONAL AMENDMENTS
Section 1.1 First Definitional Amendment. The Indenture is hereby
amended to modify the definition of "Asset Sale" to add new clauses (iv) and (v)
which will exclude the Newbridge Transaction and any Newco Sale/Distribution,
respectively, from the definition thereof, as follows:
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a
sale and leaseback), other than sales of inventory in the ordinary
course of business consistent with past practices (provided that the
sale, lease, conveyance or other disposition of all or substantially
all of the assets of the Company and its Subsidiaries taken as a whole
will be governed by the provisions of Section 4.15 and/or Article 5
hereof, and not by the provisions Section 4.14 hereof), and (ii) the
issue or sale by the Company or any of its Subsidiaries of Equity
Interests of any of the Company's Subsidiaries, whether in a single
transaction or a series of related transactions (a) that have a fair
market value in excess of $1.0 million or (b) for net proceeds in
excess of $1.0 million. Notwithstanding the foregoing: (i) a transfer
of assets by the Company to a Wholly Owned Subsidiary or by a Wholly
Owned Subsidiary to the Company or to another Wholly Owned Subsidiary,
(ii) a Restricted Payment that is permitted by Section 4.9 hereof,
(iii) a TNS/TTC Transaction, (iv) any sale of any Equity Interests of
Newco by the Company or Newco in connection with the Newbridge Initial
Investment and the Newbridge Transaction, and (v) a Newco
Sale/Distribution will not be deemed to be an Asset Sale.
Section 1.2 Second Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Collateral" thereto, as follows:
"Collateral" has the meaning ascribed to such term under the
Pledge Agreement.
Section 1.3 Third Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Collateral Agent" thereto, as follows:
"Collateral Agent" means State Street Bank and Trust Company,
in its capacity as collateral agent under the Collateral Document until
a successor replaces it in accordance with applicable provisions of
this Indenture, and thereafter means the successor serving hereunder.
Section 1.4 Fourth Definitional Amendment. The Indenture is hereby
amended to add the new defined term "Collateral Document" thereto, as follows:
First Supplemental Indenture: Page 2
"Collateral Document" means the Pledge Agreement, dated as of
May 19, 1999, by and between the Company, TTC and the Collateral Agent,
granting and governing the Security Interest.
Section 1.5 Fifth Definitional Amendment. The Indenture is hereby
amended to modify the definition of "Investments" to add a proviso to the end of
the definition thereof which will authorize the Newbridge Initial Investment and
the Proposed Transaction, as follows:
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in
the forms of direct or indirect loans (including guarantees of
Indebtedness or other obligations), advances or capital contributions
(excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or
other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance
with GAAP; provided that an acquisition of assets, Equity Interests or
other securities by the Company or any of its Subsidiaries for
consideration consisting of common equity securities of the Company
shall not be deemed to be an Investment. If the Company or any
Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Company such
that, after giving effect to any sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company shall be deemed to have
made an Investment on the date of any such sale or disposition equal to
the fair market value of the Equity Interests of such Subsidiary not
sold or disposed of in an amount determined as provided in Section 4.9
hereof; provided, however, that the Newco Contribution and the issuance
in exchange therefore of Equity Interests of Newco to the Company and
TTC shall not be deemed to be an Investment.
Section 1.6 Sixth Amendment Definitional Amendment. The Indenture is
hereby amended to modify the definition of "Net Proceeds" to include reference
in the second, fourth and ninth lines thereof to proceeds received in respect of
a Newco Sale/Distribution, as follows:
"Net Proceeds" means the aggregate cash proceeds or other
value received by the Company or any of its Subsidiaries in respect of
any Asset Sale or Newco Sale/ Distribution (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale or Newco Sale/
Distribution), net of the direct costs relating to such Asset Sale or
Newco Sale/ Distribution (including, without limitation, legal,
accounting and investment banking fees, and sales
First Supplemental Indenture: Page 3
commissions), any relocation expenses incurred as a result thereof, any
taxes paid or payable by the Company or any of its Subsidiaries as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be
applied to the repayment of Indebtedness secured by a Lien on the asset
or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets
established in accordance with GAAP.
Section 1.7 Seventh Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newbridge" thereto, as follows:
"Newbridge" shall mean Newbridge Networks Corporation, a
Canadian corporation.
Section 1.8 Eighth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newbridge Initial Investment" thereto, as
follows:
"Newbridge Initial Investment" shall mean the acquisition by
Newbridge of the initial 19% interest in Newco contemplated by the
Newbridge Transaction pursuant to the Newbridge Transaction Agreement
and Stockholders Agreement.
Section 1.9 Ninth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newbridge Transaction" thereto, as follows:
"Newbridge Transaction" shall mean the strategic joint venture
between Newbridge and the Company, whereby (i) Newco will be formed as
a Nevada corporation; (ii) the Company and TTC will transfer
substantially all of their respective VASP(TM)-related assets to Newco,
in exchange for all of the outstanding Equity Interests of Newco; (iii)
the Company will sell all of its Equity Interests in Newco to Newbridge
thereby making Newbridge and TTC the sole shareholders of Newco with
TTC owning 81% and Newbridge owning 19% of the Common Stock thereof;
(iv) Newco will grant the Company and TNS a perpetual license to use
VASP(TM) as specified in such license in their products and services;
(v) Newco will issue certain shares of its common stock to Newbridge;
(vi) Newco will repay certain Indebtedness owed by TTC to the Company;
and (vii) Newco will grant to Newbridge the option to purchase the
number of Equity Interests necessary for Newbridge to own 50% of the
issued and outstanding Equity Interests in Newco, all as more
particularly described in the Newbridge Transaction Agreement, the
Stockholders Agreement and the Option Agreement (as defined in the
Newbridge Transaction Agreement).
First Supplemental Indenture: Page 4
Section 1.10 Tenth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newbridge Transaction Agreement" thereto, as
follows:
"Newbridge Transaction Agreement" shall mean that certain
Organizational Agreement, dated as of March 31, 1999, by and among the
Company, TTC, Newco and Newbridge, as in effect on the date of the
Supplemental Indenture.
Section 1.11 Eleventh Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newco" thereto, as follows:
"Newco" means TERABridge Technologies Corporation, a Nevada
corporation.
Section 1.12 Twelfth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newco Contribution" thereto, as follows:
"Newco Contribution" shall mean the contribution of
VASP(TM)-related assets to Newco by the Company and TTC as contemplated
by the Newbridge Transaction Agreement.
Section 1.13 Thirteenth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Newco Sale/Distribution" thereto, as follows:
"Newco Sale/Distribution" means the sale, lease, conveyance or
other disposition by TTC or Newco of any assets of TTC or Newco other
than in the ordinary course of business consistent with past practice,
in which (in the case of a sale, lease, conveyance, or other
disposition by Newco only) Newco dividends, distributes or otherwise
pays any net cash proceeds from such sale, lease, conveyance or other
disposition, as the case may be, to the Company or any of its
Subsidiaries.
Section 1.14 Fourteenth Definitional Amendment. The Indenture is hereby
amended to modify the definition of "Permitted Investments" to (a) increase the
amount that the Company may invest in TTC or Newco from $3.0 million to $10.0
million, by amending the proviso in clause (vi) thereof to delete "$3.0
million," and insert in its place "$10.0 million," (b) permit any Investments in
Newco by TTC made after the Newbridge Initial Investment and (c) permit the
Newco Contribution, as follows:
"Permitted Investments" means (i) any Investment in the
Company or in a Wholly Owned Subsidiary of the Company (other than
TTC); (ii) any Investment in Cash Equivalents; (iii) any Investment by
the Company or any of its Subsidiaries in a Person if, as a result of
such Investment, (a) such
First Supplemental Indenture: Page 5
Person becomes a Wholly Owned Subsidiary of the Company or (b) such
Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Company or a Wholly Owned Subsidiary of the
Company; (iv) any Investment existing on the date of this Indenture;
(v) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 4.14 hereof; (vi) other Investments in any
Person (other than (x) an Affiliate that is not a Subsidiary or a
Person that is controlled by an Affiliate that is not a Subsidiary and
(y) Newco) engaged in a line of business that is similar, complementary
or ancillary to the business of the Company on the Issue Date, not to
exceed $3.0 million, provided, that, every $1.00 of Investment above
$7.0 million made by the Company under clause (vii) will reduce by
$1.00 the amount available for Investment under this clause (vi); or
(vii) any Investments in either TTC or Newco made after the Newco
Contribution and the Newbridge Initial Investment that, when taken
together with all other Investments made pursuant to this clause (vii),
do not, in the aggregate, exceed $10.0 million, provided, however, that
every $1.00 of Investment by the Company or a Wholly Owned Subsidiary
under clause (vi) will reduce by $1.00 the amount available under this
clause (vii), and, provided further, however, that to the extent the
Company makes any Investment in TTC, TTC shall further invest such
Investment in Newco, and, provided further, however, that each
Investment under this clause (vii) is evidenced by an instrument
pledged under the Pledge Agreement so as to create a valid first
priority Lien thereon for the benefit of the Holders.
Section 1.15 Fifteenth Definitional Amendment. The Indenture is hereby
amended to modify definition of "Permitted Liens" by adding (a) a new clause
(xiii) which will reference Liens on Collateral to the extent existing by virtue
of the Collateral Document and (b) a new clause (xiv) which will reference any
Liens to the extent granted under the Stockholders Agreement, as follows:
"Permitted Liens" means (i) Liens securing the Bank Credit
Facility; (ii) Liens in favor of the Company or any of its
Subsidiaries; (iii) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Company or any of
its Subsidiaries, provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to
any assets other than those of the Person merged into or consolidated
with the Company or any such Subsidiary; (iv) Liens on property
existing at the time of acquisition thereof by the Company or any of
its Subsidiaries, provided that such Liens were in existence prior to
the contemplation of such acquisition; (v) Liens to secure the
performance of statutory obligations, surety or appeal bonds,
performance bonds or other
First Supplemental Indenture: Page 6
obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness permitted by Section
4.8(iv)(A) hereof covering only the assets acquired with such
Indebtedness; (vii) Liens existing on the date of this Indenture
excluding Liens on Indebtedness to be repaid with the proceeds of the
Offering; (viii) Liens for taxes, assessments or governmental charges
or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall have been
made therefor; (ix) Liens incurred in the ordinary course of business
of the Company or any of its Subsidiaries with respect to obligations
that do not exceed $2.0 million at any one time outstanding and that
(a) are not incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially
detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or any such
Subsidiary; (x) renewals or refundings of any Liens referred to in
clauses (iii) through (ix) above, provided that any such renewal or
refunding does not extend to any assets or secure any Indebtedness not
securing or secured by the Liens being renewed or refinanced; (xi) any
Lien consisting of a deposit or pledge made in the ordinary course of
business in connection with, or to secure payment of, obligations under
worker's compensation, unemployment insurance or similar legislation;
(xii) any Lien constituting a renewal, extension or replacement of a
Lien constituting a Permitted Lien, but only if (1) at the time such
Lien is granted and immediately after giving effect thereto, no Default
would exist, (2) such Lien is limited to all or a part of the property
or asset that was subject to the Lien so renewed, extended or replaced
and to fixed improvements thereafter erected on such property or asset,
(3) the principal amount of the obligations secured by such Lien does
not exceed the principal amount of the obligation secured by the Lien
so renewed, extended or replaced, (4) the obligations secured by such
Lien bear interest at a rate per annum not exceeding the rate borne by
the obligations secured by the Lien so renewed, extended or replaced
except for any increase that is commercially reasonable at the time of
such increase and (5) the principal amount of the obligations has a
final maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of the
obligation secured by the Lien so renewed, extended or replaced;(xiii)
any Liens on Collateral to the extent granted under the Collateral
Document; and (xiv) any Liens to the extent granted under the
Stockholders Agreement.
Section 1.16 Sixteenth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Security Interest" thereto, as follows:
First Supplemental Indenture: Page 7
"Security Interest" means the security interest in the
Collateral or any part thereof granted to the Collateral Agent by the
Company or TTC for the benefit of the Holders under the Indenture
pursuant to the Collateral Document.
Section 1.17 Seventeenth Definitional Amendment. The Indenture is
hereby amended to add a new defined term "Stockholders Agreement" thereto, as
follows:
"Stockholders Agreement" means the Stockholders Agreement,
dated as of May 19, 1999, by and among Newco, Newbridge, TTC and the
Company.
Section 1.18 Eighteenth Definitional Amendment. The Indenture is hereby
amended to modify the definition of "Subsidiary" to exclude Newco therefrom by
adding a new second sentence to the definition, as follows:
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of such Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such Person
and/or one or more Subsidiaries of such Person (or any combination
thereof). Notwithstanding the foregoing, Newco shall not be deemed a
"Subsidiary" of the Company for purposes of this Indenture, unless
after the consummation of the Newco Contribution and the Newbridge
Initial Investment it shall become a Wholly-Owned Subsidiary of the
Company.
Section 1.19 Nineteenth Definitional Amendment. The title of the Notes
is hereby amended to refer to the Notes as "13-7/8% Senior Secured Discount
Notes due 2005."
Section 1.20 Twentieth Definitional Amendment. The Indenture is hereby
amended to add a new defined term "Supplemental Indenture" thereto, as follows:
"Supplemental Indenture" means the Supplemental Indenture,
dated May 19, 1999, by and among the Company, TNS, TCC, TeleHub Leasing
Corporation, and the Trustee.
First Supplemental Indenture: Page 8
Section 1.21 Twenty-First Definitional Amendment. The Indenture is
hereby amended to modify the defined term "TNS/TTC Transaction," to provide that
the Newco Contribution will constitute a "TTC Transaction" and that the term
"TNS/TTC Transaction" will no longer apply to TTC or Newco under the Indenture
thereafter, as follows:
"TNS/TTC Transaction" means (i) a sale, assignment, transfer,
lease conveyance or other disposition of all of the capital stock of
TNS or all or substantially all of the assets comprising TNS's ATM
Network, and/or (ii) a sale, assignment, transfer, lease, conveyance or
other disposition of all of the capital stock of TTC or all or
substantially all of the assets comprising TTC's business; provided
that no asset of the Company or any of its Subsidiaries shall have been
or will be transferred or licensed to the Subsidiary or business be
divested by the Company other than on an arm's length basis and in the
ordinary course of business (other than in respect of the Newbridge
Transaction and any of the transactions contemplated thereby, subject
to Section 4.9 of this Indenture); provided, further; that the Newco
Contribution constitutes a "TNS/TTC Transaction" for purposes thereof;
and provided, further, that after the consummation of the Newco
Contribution no subsequent transaction by the Company or any of its
Subsidiaries or Affiliates in respect of the assets or Equity
Securities of TTC or Newco will constitute a "TNS/TTC Transaction"
unless Newco shall be, immediately prior to the consummation thereof, a
Wholly-Owned Subsidiary of the Company; provided, however, that the
immediately preceding proviso shall not apply to the provisions of
Section 5.1 of the Indenture.
ARTICLE 2: COVENANT AMENDMENTS
Section 2.1 First Covenant Amendment. The Indenture is hereby amended
to modify Section 4.4 thereof, to add references in paragraphs (a) and (c)
thereof to the Collateral Document, as follows:
SECTION 4.4. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, but not less often than annually, an
Officers' Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to
determining whether each of the Company and its Subsidiaries has kept,
observed, performed and fulfilled its obligations under this Indenture
and the Collateral Document, and further stating, as to each such
Officer signing such certificate, that to the best of his knowledge
each of the Company and its Subsidiaries has kept, observed, performed
and fulfilled each and every covenant contained in this
First Supplemental Indenture: Page 9
Indenture and the Collateral Document, and is not in default in the
performance or observance of any of the terms, provisions and
conditions hereof or thereof (or, if a Default or Event of Default
shall have occurred, describing all such Defaults or Events of Default
of which he may have knowledge and what action each is taking or
proposes to take with respect thereto).
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
Section 4.3(a) above shall be accompanied by a written statement of the
Company's independent certified public accountants (who shall be a firm
of established national reputation reasonably satisfactory to the
Trustee) that in making the examination necessary for certification of
such financial statements nothing has come to their attention which
would lead them to believe that either the Company or any of its
Subsidiaries has violated any provisions of Article 4, 5 or 6 of this
Indenture or, if any such violation has occurred, specifying the nature
and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person
for any failure to obtain knowledge of any such violation.
(c) The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default; (ii) any event
of default under any other mortgage, indenture or instrument referred
to in Section 6.1(5),or (iii) any other default or event of default
under the Collateral Document, an Officers' Certificate specifying such
Default, Event of Default or other default or event of default and what
action the Company is taking or proposes to take with respect thereto;
Section 2.2 Second Covenant Amendment. The Indenture is hereby amended
to modify Section 4.8 thereof, to increase the Company's ability to incur
indebtedness, notwithstanding that the Company may not be able to incur such
Indebtedness under the first paragraph of Section 4.8, from $10.0 million to
$30.0 million, by amending the proviso in clause (iv) thereof to delete "$10.0
million," and insert in its place "$30.0 million," and to limit the use of such
additional borrowing capacity to financing for property, plant or equipment, as
follows:
SECTION 4.8. Limitation on the Incurrence of Indebtedness.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect
First Supplemental Indenture: Page 10
to (collectively, "incur") any Indebtedness (including Acquired Debt);
provided, however, that, so long as no Default or Event of Default has
occurred and is continuing, the Company and any Guarantor may incur
Indebtedness (including Acquired Debt) if the Consolidated Leverage
Ratio is less than or equal to 5.50 to 1.00.
The foregoing provisions will not apply to:
(i) the incurrence by the Company and the Guarantors of
Indebtedness pursuant to the Bank Credit Facility in an aggregate
principal amount not to exceed 80% of the Company's receivables that
are less than 60 days past due at any one time outstanding less any Net
Proceeds of Asset Sales applied to permanently reduce the Bank Credit
Facility pursuant to the provisions described under Section 4.14.
(ii) the incurrence by the Company and its Subsidiaries of
Existing Indebtedness;
(iii) the incurrence by the Company and its Subsidiaries of
Indebtedness represented by the Notes, the Guarantees, the Exchange
Notes and the Guarantees thereunder, and this Indenture;
(iv) the incurrence by the Company or any of its Subsidiaries
of Indebtedness (A) represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvement of property, plant or equipment used in the
business of the Company or such Subsidiary or (B) in connection with
the acquisition of assets or a new Subsidiary; provided, that the
aggregate principal amount (or accreted value, as applicable) of
Indebtedness incurred pursuant to clause (A) and (B) of this clause
(iv), together with any other outstanding Indebtedness incurred
pursuant to this clause (iv), does not exceed $30.0 million at any one
time outstanding; provided further that, of such $30.0 million, $20.0
million shall only be available, and used by the Company, for financing
of acquisitions of property, plant or equipment; and provided further
that, if any such Indebtedness is or has been refinanced under clause
(vi), the amount of Indebtedness that may be incurred and may be
outstanding under this clause (iv) shall be reduced by the amount of
such Permitted Refinancing Debt;
(v) the incurrence of intercompany Indebtedness between or
among the Company and any of its Wholly Owned Subsidiaries; provided
that any subsequent issuance or transfer of Equity Interests that
results in any
First Supplemental Indenture: Page 11
such Indebtedness being held by a Person other than the Company or a
Wholly Owned Subsidiary of the Company, or any sale or other transfer
of any such Indebtedness to a Person that is neither the Company nor a
Wholly Owned Subsidiary of the Company, shall be deemed to constitute
an incurrence of such Indebtedness by the Company or such Subsidiary,
as the case may be;
(vi) the incurrence by the Company or any of its Subsidiaries
of Permitted Refinancing Debt in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund
Indebtedness that was permitted by this Indenture to be incurred (other
than Indebtedness incurred under clause (i) above);
(vii) the incurrence by the Company or any of its Subsidiaries
of Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate risk with respect to any floating rate
indebtedness that is permitted by the terms of this Indenture to be
outstanding; and
(viii) the incurrence by the Company of Indebtedness (other
than secured Acquired Debt) in an aggregate principal amount not to
exceed 1.0 times the sum of the net cash proceeds received by the
Company after the date of this Indenture (other than in respect of
Disqualified Stock) in connection with any Public Offerings; provided
that such Indebtedness (i) does not mature prior to the maturity of the
Notes, (ii) has a Weighted Average Life to Maturity at greater than the
Notes and (iii) is made expressly subordinated to the Notes.
Section 2.3 Third Covenant Amendment . The Indenture is hereby amended
to modify Section 4.11 thereof, to authorize the Newbridge Transaction, by
adding a new clause (b) to the last sentence thereof, as follows:
SECTION 4.11. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make any payment to, or sell,
lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or
amend any transaction, contract, agreement, understanding, loan,
advance or guarantee with, or for the benefit of, any Affiliate (each
of the foregoing, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Subsidiary than those that would have been
obtained in a comparable transaction (as determined in good faith by
the Board of Directors) with an unrelated Person and (ii) the
First Supplemental Indenture: Page 12
Company delivers to the Trustee (a) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $1.0 million, a resolution of the
Board of Directors set forth in an Officers' Certificate certifying
that such Affiliate Transaction complies with clause (i) above and that
such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to
any Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $5.0 million, an opinion
as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an unaffiliated accounting, appraisal
or investment banking firm of national standing. Notwithstanding the
foregoing, (a) transactions between or among the Company and its
Subsidiaries and Restricted Payments and Permitted Investments that are
permitted by the provisions under Section 4.9 hereof, and (b)
transactions between the Company, TTC and Newco as part of the
Newbridge Transaction, including transactions pursuant to the
Stockholders Agreement as in effect on the date of the Supplemental
Indenture, in each case shall not be deemed Affiliate Transactions,
subject to Section 4.9 of this Indenture.
Section 2.4 Fourth Covenant Amendment. The Indenture is hereby amended
to modify Section 4.13 thereof to restrict TTC's ability to own, control or
possess any assets other than certain Investments in Newco or otherwise engage
in any type of business activity, by adding a new subsection (b) thereto, as
follows:
SECTION 4.13. Business Activities.
(a) The Company shall not, directly or indirectly, engage in
any business other than the Telecommunications Business.
(b) Notwithstanding anything to the contrary set forth in this
Indenture, (A) TTC shall not (i) own any assets other than any
Investments in Newco permitted hereunder, (ii) and shall not otherwise
engage in any type of business activity or (iii) incur any
Indebtedness; and (B) all Investments in Newco of the Company and its
Subsidiaries shall be held directly by TTC (except for the temporary
Investment to be held by the Company as described in the definition
herein of "Newbridge Transaction").
Section 2.5 Fifth Covenant Amendment. The Indenture is hereby amended
to modify Section 4.14 thereof to require the Company, subsequent to the
Newbridge Initial Investment, to use the net proceeds from any sales of Equity
Interests of TTC or Newco held by the Company or any Subsidiary or from any
Newco Sale/Distribution, to make an offer to purchase Notes pursuant to the
provisions of Section 4.14 (and allow the Company to use proceeds remaining
thereafter for working capital and general corporate purposes) by
First Supplemental Indenture: Page 13
amending the second paragraph of Section 4.14 to add a new second sentence
thereto, as follows:
SECTION 4.14. Asset Sales.
The Company shall not, and shall not permit any of its
Subsidiaries to, engage in an Asset Sale unless (i) the Company or such
Subsidiary, as the case may be, receives consideration at the time of
such Asset Sale at least equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Equity Interests
issued or sold or otherwise disposed of and (ii) at least 80% of the
consideration therefor received by the Company or such Subsidiary is in
the form of Cash Equivalents; provided that the amount of (a) any
liabilities (as shown on the Company's or such Subsidiary's most recent
balance sheet) of the Company or any Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the
Notes) that are assumed by the transferee of any such assets pursuant
to a customary novation agreement that releases the Company or such
Subsidiary from further liability and (b) any notes or other
obligations received by the Company or such Subsidiary from such
transferee that are immediately converted by the Company or such
Subsidiary into Cash Equivalents (to the extent of the cash received)
shall be deemed to be Cash Equivalents for purposes of this provision.
Within 270 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or such Subsidiary may apply such Net Proceeds
(i) to permanently reduce borrowings under the Bank Credit Facility
(and to correspondingly reduce commitments with respect thereto) or
(ii) to make capital expenditures or acquire long-term assets in the
same line of business as the Company was engaged immediately prior to
such Asset Sale or, in the case of a sale of accounts receivable in
connection with any accounts receivable financing, for working capital
purposes. Subsequent to the consummation of the Newco Contribution, the
Newco Initial Investment and the repayment of Indebtedness described in
clause (v) of the definition herein of "Newbridge Transaction," in the
event (i) that the Company or any Subsidiary sells or otherwise
disposes of any Equity Interests or other Investments in TTC or (ii)
there shall occur any Newco Sale/Distribution, the Company shall with
the Net Proceeds derived therefrom to make offers to Holders of Notes
consistent with the Asset Sale Offer provisions of this Section 4.14
and with Section 3.9; provided, however, that if any Net Proceeds
remain after the Company complies with such Asset Sale Offer provision
the Company may use such remaining proceeds for working capital and
general corporate purposes. Pending the final application of any such
First Supplemental Indenture: Page 14
Net Proceeds, the Company may temporarily reduce senior indebtedness or
otherwise invest such Net Proceeds in any manner that is not prohibited
by this Indenture. Any Net Proceeds from Asset Sales that are not
applied or invested as provided in the first or second sentence of this
paragraph will be deemed to constitute "Excess Proceeds." When the
aggregate amount of Excess Proceeds exceeds $2.0 million, the Company
will be required to make an offer to all Holders of Notes (an "Asset
Sale Offer") to purchase the maximum principal amount at maturity of
Notes that may be purchased out of the Excess Proceeds, at an offer
price in cash in an amount equal to 101% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if
any, thereon (or, in the case of an offer to purchase that would be
consummated prior to July 31, 2001, at a purchase price equal to 101%
of the Accreted Value thereof, plus Liquidated Damages thereon, if any)
to the date of purchase, in accordance with the procedures set forth in
this Indenture. To the extent that the aggregate Accreted Value of
Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes (subject to the restrictions of this Indenture). If
the Accreted Value of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a pro rata basis. Upon completion of such offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
The Asset Sale Offer must be commenced within 30 days
following the Asset Sale or Newco Sale/Distribution that triggers the
Company's obligation to make the Asset Sale Offer and remain open for
at least 30 and not more than 40 days (unless required by applicable
law). The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes pursuant to an Asset Sale
Offer.
Section 2.6 Sixth Covenant Amendment. The Indenture is hereby amended
to modify Section 4.15 thereof, to clarify that the Company will not be required
to make a TNS/TTC Put Option Offer as a result of the Newbridge Transaction, by
adding a new sixth paragraph thereto, as follows:
SECTION 4.15. Change of Control or a TNS/TTC Transaction.
Upon the occurrence of a Change of Control, each Holder of
Notes will have the right to require the Company to repurchase all or
any part (equal to $1,000 face amount or an integral multiple thereof)
of such Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at an
First Supplemental Indenture: Page 15
offer price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the date of repurchase (or, in the case of
repurchase of Notes prior to July 31, 2001, at a purchase price equal
to 101% of the Accreted Value thereof, plus Liquidated Damages thereon,
if any, to the date of repurchase) (the "Change of Control Payment"). A
notice of a Change of Control Offer shall be prepared by the Company
and shall be mailed by the Company with a copy to the Trustee or, at
the option of the Company and at the expense of the Company, by the
Trustee within 10 days following a Change of Control to each Holder of
the Notes and such Change of Control Offer must remain open for at
least 30 and not more than 40 days (unless required by applicable law).
Upon the occurrence of a TNS/TTC Transaction, if the Company
does not exercise its right to redeem the Notes concurrently with the
consummation of the TNS/TTC Transaction or has not made an offer to
each Holder of Notes to repurchase the Notes at the TNS/TTC Transaction
Purchase Price concurrently with the consummation of such transaction
in a manner that otherwise complies with the notice requirements and
clauses (a) and (b) below of this sentence, the Company shall be
required to (a) deposit with the Trustee upon consummation of such
transaction sufficient monies to redeem in full the Notes, (b)
delivered to the Trustee with a solvency opinion (from a nationally
recognized investment bank with expertise in giving solvency opinions)
dated the date of the consummation of such transaction and stating that
after giving effect to the redemption of the Notes the Company will be
solvent and (c) within ten days of the consummation of such transaction
make an offer (a "TNS/TTC Put Option Offer") to each Holder to
repurchase all or any part (equal to $1,000 face amount or an integral
multiple thereof) of each Holder's Notes at an offer price (the
"TNS/TTC Transaction Purchase Price") in cash equal to, at any time on
or prior to July 31, 2002, the Accreted Value thereof, plus accrued and
unpaid interest and Liquidated Damages, if any thereon, and the
applicable Make- Whole Premium and after such date the amount that
would be payable to the Holders of each Note to be purchased if the
Company on such date were to redeem the Notes (the "TNS/TTC Put Option
Payment"). The Company shall have the right to make a TNS/TTC Put
Option Offer not more than 60 nor less than 30 days prior to the
consummation of the TNS/TTC Transaction.
The notice to each Holder of the Notes shall state: (1) that
the Change of Control Offer or the TNS/TTC Put Option Offer is being
made pursuant to this Section 4.15 and that all Notes tendered and not
withdrawn will be accepted for payment; (2) the purchase price,
separately stating the amount of any accrued and unpaid interest and
Liquidated Damages, if any,
First Supplemental Indenture: Page 16
and the purchase date, which will be no earlier than 30 days nor later
than 60 days from the date such notice is mailed (the "Change of
Control Payment Date" or the "TNS/TTC Put Option Payment Date"); (3)
that any Note not tendered will continue to accrue or accrete interest,
as the case may be; (4) that, unless the Company defaults in the
payment of the Change of Control Payment or the TNS/TTC Put Option
Payment, all Notes accepted for payment pursuant to the Change of
Control Offer or the TNS/TTC Put Option Offer will cease to accrue or
accrete interest, as the case may be, after the Change of Control
Payment Date or the TNS/TTC Put Option Payment Date; (5) that Holders
electing to have any Notes purchased pursuant to a Change of Control
Offer or the TNS/TTC Put Option Offer will be required to surrender the
Notes, with the form entitled "Option of Holder to Elect Purchase" on
the reverse of the Notes completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date or the
TNS/TTC Put Option Payment Date; (6) that Holders will be entitled to
withdraw their election if the Paying Agent receives, not later than
the close of business on the second Business Day preceding the Change
of Control Payment Date or the TNS/TTC Put Option Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holders, the principal amount at maturity of Notes
delivered for purchase, and a statement that such Holder is withdrawing
his election to have such Notes purchased; (7) that Holders whose Notes
are being purchased only in part will be issued new Notes equal in
principal amount at maturity to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in
principal amount at maturity or an integral multiple thereof; and (8)
the circumstances and material facts regarding the Change of Control or
TNS/TTC Transaction (including but not limited to information with
respect to the historical consolidated financial information of the
Company and pro forma consolidated financial information of the Company
after giving effect to the Change of Control or TNS/TTC Transaction,
information regarding the Person or Persons acquiring control, to the
extent reasonably available, and the business plans of such Person or
Persons with respect to the Company, to the extent reasonably
available). The Company shall comply with the requirements of Rule
14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes in connection
with a Change of Control or TNS/TTC Transaction.
On the Change of Control Payment Date or the TNS/TTC Put
Option Payment Date, as the case may be, the Company shall, to the
extent lawful, (i) accept for payment Notes or portions thereof
properly tendered pursuant to the Change of Control Offer or TNS/TTC
Put Option Offer, as the case
First Supplemental Indenture: Page 17
may be, (ii) deposit with the Paying Agent, unless previously
deposited, an amount equal to the Change of Control Payment or the
TNS/TTC Put Option Payment, as the case may be, in respect of all Notes
or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of the
Notes or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to each Holder of Notes so tendered the
Change of Control Payment or the TNS/TTC Put Option Payment, as the
case may be, for such Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book-entry) to
each Holder a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered, if any; provided that each such new
Note will be in a principal amount at maturity of $1,000 or an integral
multiple thereof. Prior to complying with the provisions of this
Section 4.15, and in any event within 90 days following a Change of
Control, the Company shall either repay all outstanding Senior Debt of
the Company or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Debt of the Company to permit
the repurchase of Notes required by this Section 4.15. The Company
shall publicly announce the results of the Change of Control Offer or
TNS/TTC Put Option Offer, as the case may be, on or as soon as
practicable after the Change of Control Payment Date or the TNS/TTC Put
Option Payment Date, as the case may be.
Other than as specifically provided in this Section 4.15, any
purchase pursuant to this Section 4.15 shall be made pursuant to the
provisions of Section 3.1 through 3.6 hereof.
Notwithstanding any provision herein to the contrary, the
Company will not be required to make a TNS/TTC Put Option Offer as a
result of any of the transactions contemplated by the Newbridge
Transaction, including without limitation the Newco Contribution.
Section 2.7 Seventh Covenant Amendment. The Indenture is hereby amended
to modify Section 6.1 thereof, to include as an "Event of Default" a default
under the Collateral Document, by adding a new clause (10) thereto, as follows:
SECTION 6.1. Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of the
principal of or premium, if any, on any Note when the same
becomes due and payable (upon Stated Maturity, acceleration,
optional redemption,
First Supplemental Indenture: Page 18
required purchase (whether pursuant to Sections 4.14 or 4.15
or otherwise) or otherwise); or
(2) the Company defaults in the payment of an
installment of interest on, or Liquidated Damages, if any,
with respect to, any of the Notes, when the same becomes due
and payable, which default continues for a period of 30 days;
or
(3) the Company fails to comply with the provisions
described under Sections 4.9, 4.14, 4.15, 4.1or Article 5
hereof; or
(4) the Company or a Guarantor, if applicable, fails
to comply with any of its covenants or agreements contained in
the Notes or this Indenture (other than a default specified in
clause (1), (2) or (3) above) and such default continues for a
period of 30 days after notice of such default requiring the
Company to remedy the same shall have been given to the
Company; or
(5) a default under any mortgage, indenture or
instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness for money
borrowed by the Company or any of its Subsidiaries (or the
payment of which is guaranteed by the Company or any of its
Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which
default (a) is caused by failure to pay principal of or
premium, if any, or interest on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
(a "Payment Default") or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each
case described in clauses (a) and (b) of this subsection (5),
the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under
which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $2.0 million or
more; or
(6) the Company or any of its Subsidiaries fails to
pay one or more final judgments against the Company or any
Subsidiary in an aggregate amount in excess of $2.0 million
and either (a) any creditor commences enforcement proceedings
upon any such judgment or (b) such judgments are not paid,
discharged or stayed for a period of 60 days from the entry
thereof;
(7) any of the Guarantees of the Guarantors ceases to
be in full force and effect or any of such Guarantees is
declared to be
First Supplemental Indenture: Page 19
null and void and unenforceable or any of such Guarantees is
found to be invalid or any Guarantor, or any Person acting on
behalf of a Guarantor, denies such Guarantor's liability under
its Guarantee (other than by reason of release of a Guarantor
in accordance with the terms of this Indenture);
(8) the Company or any of its Subsidiaries, pursuant
to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief against it
in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) admits in writing its inability to pay debts as the same
become due; or
(9) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(a) is for relief against the Company or any of its
Subsidiaries in an involuntary case or proceeding,
(b) appoints a Custodian of the Company, or any of
its Subsidiaries, for all or substantially all of its
property,
(c) orders the liquidation of the Company or any of
its Subsidiaries, and in each case, the order or decree
remains unstayed and in effect for 60 days; or
(10) there exists any of the following:
(a) any failure by the Company or any Subsidiary
thereof to deposit with the Collateral Agent under the Pledge
Agreement any Equity Interest or other Investment in TTC or
Newco held by the Company or any of its Subsidiaries so as to
create a valid first priority perfected Lien therein; or the
Security Interest in any Collateral is declared to be null and
void and unenforceable, is found to be invalid
First Supplemental Indenture: Page 20
or ceases to be a first priority perfected Lien in the
Collateral; or the Company or any Person acting on behalf of
the Company denies the enforceability of the Pledge Agreement
or the enforceability or perfection of such Security Interest
(other than, in each case, by reason of a release of
Collateral in accordance with the terms of the Pledge
Agreement and this Indenture);
(b) a default by the Company or any Subsidiary
thereof under Sections 1, 5(b), 5(c) or 5(d) of the Pledge
Agreement; or
(c) any default by the Company or any Subsidiary
thereof under the Collateral Document (other than as a
consequence of a "Default" or "Event of Default" described in
clauses (1)-(9), (10)(a) or (10)(b) of this Section 6.1), and
such default remains continuing for a period of thirty (30)
days after notice of such default to the Company by the
Trustee or Collateral Agent or by Holders of 25% or more of
the aggregate principal amount of the Notes shall have been
given.
The term "Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
In the case of any Event of Default pursuant to the provisions
of this Section 6.1 occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company or the
Guarantors with the intention of avoiding payment of the premium that
the Company would have had to pay if the Company then had elected to
redeem the Notes pursuant to Section 3.7 hereof, an equivalent premium
shall also become and be immediately due and payable to the extent
permitted by law upon the acceleration of the Notes. If an Event of
Default occurs prior to July 31, 2002, by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company or
the Guarantors with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then the premium specified
in this Indenture shall also become immediately due and payable to the
extent permitted by law upon the acceleration of the Notes.
Section 2.8 Eighth Covenant Amendment. The Indenture is hereby amended
to modify Section 6.3 thereof to add a reference to the Collateral Document in
the sixth line of the first paragraph thereof, as follows:
SECTION 6.3. Other Remedies.
First Supplemental Indenture: Page 21
If an Event of Default occurs and is continuing, the Trustee
may and shall at the direction of the Holders of 25% in principal
amount at maturity of the then outstanding Notes pursue any available
remedy (under this Indenture or otherwise) to collect the payment of
principal, premium, interest or Liquidated Damages, if any, on the
Notes or to enforce the performance of any provision of the Notes, this
Indenture, the Registration Rights Agreement and/or the Collateral
Document.
The Trustee and Collateral Agent may maintain a proceeding
even if it does not possess any of the Notes or does not produce any of
them in the proceeding. A delay or omission by the Trustee or
Collateral Agent or any Holder of Notes in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. All remedies are cumulative to the extent permitted by law.
Section 2.9 Ninth Covenant Amendment. The Indenture is hereby amended
to modify Section 7.8 thereof to include references therein to the Collateral
Agent, as follows:
SECTION 7.8. Replacement of Trustee or Collateral Agent.
A resignation or removal of the Trustee or Collateral Agent,
as the case may be, and appointment of a successor Trustee or successor
Collateral Agent, as the case may be, shall become effective only upon
the successor Trustee's or successor Collateral Agent's, as the case
may be, acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the
trust hereby created, and the Collateral Agent may resign at any time
and be discharged of its responsibilities under the Pledge Agreement,
by so notifying the Company by at least 30 days' advance written
notice. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee or the Collateral Agent, as
the case may be, by so notifying the Trustee or the Collateral Agent,
as the case may be, and the Company in writing. The Company may remove
the Trustee or the Collateral Agent, as the case may be, if:
(a) in the case of the Trustee, the Trustee fails to
comply with Section 7.10;
(b) the Trustee or the Collateral Agent, as the case
may be, is adjudged a bankrupt or an insolvent or an order for
relief is
First Supplemental Indenture: Page 22
entered with respect to the Trustee or Collateral Agent, as
the case may be, under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the
Trustee or the Collateral Agent, as the case may be, or their
respective properties; or
(d) the Trustee or the Collateral Agent, as the case
may be, becomes incapable of acting.
If the Trustee or the Collateral Agent, as the case may be,
resigns or is removed or if a vacancy exists in the office of Trustee
or the Collateral Agent, as the case may be, for any reason, the
Company shall promptly appoint a successor Trustee or successor
Collateral Agent, as the case may be. Within one year after the
successor Trustee or successor Collateral Agent, as the case may be,
takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee or successor
Collateral Agent, as the case may be, to replace the successor Trustee
or successor Collateral Agent, as the case may be, appointed by the
Company.
If a successor Trustee or successor Collateral Agent, as the
case may be, does not take office within 60 days after the retiring
Trustee or retiring Collateral Agent, as the case may be, resigns or is
removed, the retiring Trustee or retiring Collateral Agent, as the case
may be, the Company or the Holders of at least 10% in principal amount
of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee or successor
Collateral Agent, as the case may be.
If the Trustee or Collateral Agent, as the case may be, after
written request by any Holder of Notes who has been a Holder of Notes
for at least six months fails to comply with Section 7.10, such Holder
of Notes may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee or Collateral Agent, as the case may be, and the appointment of
a successor Trustee or successor Collateral Agent, as the case may be.
The Company shall give or cause to be given notice of each
resignation and each removal of the Trustee or Collateral Agent, as the
case may be, to all Holders in the manner provided herein. Each notice
shall include the name of the successor Trustee or successor Collateral
Agent, as the case may be, and the address of its Corporate Trust
Office.
First Supplemental Indenture: Page 23
A successor Trustee or successor Collateral Agent, as the case
may be, shall deliver a written acceptance of its appointment to the
retiring Trustee or retiring Collateral Agent, as the case may be, and
to the Company. Thereupon, the resignation or removal of the retiring
Trustee or retiring Collateral Agent, as the case may be, shall become
effective, and the successor Trustee or successor Collateral Agent, as
the case may be, shall, in the case of the Trustee, have all the
rights, powers and duties of the Trustee under this Indenture and
shall, in the case of the Collateral Agent, have all the rights, powers
and duties of the Collateral Agent under the Pledge Agreement. The
successor Trustee or successor Collateral Agent, as the case may be,
shall mail a notice of its succession to Holders of Notes. The retiring
Trustee or retiring Collateral Agent, as the case may be, shall
promptly transfer all property held by it as Trustee or Collateral
Agent, as the case may be, to the successor Trustee or successor
Collateral Agent, as the case may be, provided, in the case of the
Trustee, all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.7. Notwithstanding
replacement of the Trustee or Collateral Agent, as the case may be,
pursuant to this Section 7.8, the Company' obligations under Section
7.7 hereof shall continue for the benefit of the retiring Trustee or
Collateral Agent, as the case may be. No successor Trustee or successor
Collateral Agent, as the case may be, shall accept its appointment
unless at the time of such acceptance such successor Trustee or
successor Collateral Agent, as the case may be, shall be qualified and
eligible under this Article 7.
Section 2.10 Tenth Covenant Amendment . The Indenture is hereby amended
to modify Section 7.9 thereof, to include references therein to the Collateral
Agent, as follows:
SECTION 7.9. Successor Trustee or Collateral Agent by Merger, etc.
If the Trustee or Collateral Agent, as the case may be,
consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be
the successor Trustee or successor Collateral Agent, as the case may
be; provided that such successor is otherwise eligible hereunder.
Section 2.11 Eleventh Covenant Amendment. The Indenture is hereby
amended to modify Section 9.1 thereof, to add the phrase "or the Collateral
Document" in the second line of the first paragraph thereof, as follows:
SECTION 9.1. Without Consent of Holders.
First Supplemental Indenture: Page 24
The Company, the Guarantors and the Trustee may amend or
supplement this Indenture, the Notes, or the Collateral Document
without the consent of any Holder of Notes:
(1) to cure any ambiguity, defect or inconsistency; provided
that such amendment or supplement does not adversely affect
the rights of any Holder;
(2) to comply with Article 5;
(3) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(4) to provide for the assumption of the Company's and the
Guarantor's obligations to Holders of the Notes in the case of
a merger or consolidation;
(5) to provide additional security for the Notes;
(6) to add Guarantees with respect to the Notes;
(7) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does
not adversely affect the legal rights hereunder of any Holder
of the Notes; or
(8) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company, authorizing the execution of
any such supplemental indenture or amendment, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof required or
requested by the Trustee, the Trustee shall join with the Company in
the execution of any supplemental indenture or amendment authorized or
permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into such supplemental
indenture or amendment which affects its own rights, duties or
immunities under this Indenture or otherwise.
First Supplemental Indenture: Page 25
Section 2.12 Twelfth Covenant Amendment. The Indenture is hereby
amended to modify Section 9.2 thereof, to include references therein to the
Collateral Agent and the Collateral Document, as follows:
SECTION 9.2. With Consent of Holders.
Except as otherwise provided herein, the Company and the
Trustee may amend or supplement this Indenture or the Notes, and the
Company and the Collateral Agent may amend or supplement the Collateral
Document, in each case with the written consent of the Holders of at
least a majority in principal amount at maturity of the then
outstanding Notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for
the Notes).
Upon the request of the Company, accompanied by a resolution
of the Board of Directors of the Company authorizing the execution of
any such supplemental indenture or amendment or amendment to the
Collateral Document, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described
in Section 9.6 hereof, in respect of the Indenture the Trustee shall
join with the Company in the execution of such supplemental indenture
or amendment unless such supplemental indenture or amendment affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall
not be obligated to, enter into such supplemental indenture and in
respect of the Collateral Document the Collateral Agent shall join with
the Company in the execution of an amendment unless such amendment
affects the Collateral Agent's own rights, duties or immunities under
the Collateral Document or otherwise, in which case the Collateral
Agent may in its discretion, but shall not be obligated to, enter into
such amendment.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed
supplemental indenture or amendment, but it shall be sufficient if such
consent approves the substance thereof.
After a supplemental indenture or amendment under this Section
becomes effective, the Company shall mail to the Holders of each Note
affected thereby a notice briefly describing the amendment or waiver.
Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any
such supplemental indenture, amendment or waiver. Subject to Sections
6.4 and 6.7 hereof, the
First Supplemental Indenture: Page 26
Holders of a majority in principal amount at maturity of the Notes then
outstanding may waive compliance in a particular instance by the
Company with any provision of this Indenture or the Notes. However,
without the consent of each Holder of Notes affected, an amendment or
waiver under this Section may not (with respect to any Notes held by a
non-consenting Holder of Notes):
(1) reduce the principal amount at maturity of Notes whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, including default
interest, on any Note or change or have the effect of changing
the definition of Accreted Value;
(3) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the
redemption of the Notes (other than provisions relating to
Sections 4.14 and 4.15) or reduce the prices at which the
Company shall offer to purchase such Notes pursuant to
Sections 3.9, 4.14 or 4.15 hereof;
(4) make any Note payable in money other than that stated in
the Note;
(5) make any change in Section 6.4 or 6.7 hereof or in this
sentence of this Section 9.2;
(6) waive a Default or Event of Default in the payment of
principal or Accreted Value of or premium, interest or
Liquidated Damages, if any, on the Notes (other than a Default
in the payment of an amount due as a result of an acceleration
if the Holders of Notes rescind such acceleration pursuant to
Section 6.2);
(7) waive a redemption payment with respect to any Note (other
than a payment required under Section 4.14 or 4.15);
(8) release any Guarantor from any of its obligations under
its Guarantee or this Indenture otherwise than in accordance
with the terms of this Indenture; or
(9) release any of the Security Interests in the Collateral
otherwise than in accordance with the terms of the Pledge
Agreement and this Indenture.
First Supplemental Indenture: Page 27
Section 2.13 Thirteenth Covenant Amendment. The Indenture is hereby
amended to modify 10.1 thereof, to include references to the Collateral
Document, as follows:
SECTION 10.1. Unconditional Guarantee.
Each Guarantor hereby unconditionally, jointly and severally,
guarantees (such guarantee to be referred to herein as the "Guarantee")
to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, the Notes and the
Obligations of the Company hereunder, thereunder and under the Pledge
Agreement, and that (without limiting the generality of the foregoing):
(i) the principal of and interest on the Notes will be promptly paid in
full when due, subject to any applicable grace period, whether at
maturity, by acceleration or otherwise and interest on the overdue
principal, if any, and interest on any interest, to the extent lawful,
of the Notes and all other obligations of the Company 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; (ii) in
case of any extension of time of payment or renewal of any Notes or of
any such other obligations, the same will be promptly paid in full when
due or performed in accordance with the terms of the extension or
renewal, subject to any applicable grace period, whether at stated
maturity, by acceleration or otherwise and (iii) the obligations of the
Company and its Subsidiaries under the Collateral Document shall be
performed in accordance with the terms thereof; subject, however, in
the case of clauses (i) and (ii) above, to the limitations set forth in
Section 10.5. Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes, this Indenture or the
Collateral Document, as the case may be, 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 Company, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with
a court in the event of insolvency or bankruptcy of the Company, any
right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the
obligations contained in the Notes, this Indenture, the Collateral
Document and in this Guarantee. If any Noteholder or the Trustee is
required by any court or otherwise to return to the Company, any
Guarantor, or any custodian, trustee, liquidator or other similar
official acting in relation to the Company or any Guarantor, any amount
paid by the Company or any Guarantor to the Trustee or such Noteholder,
this Guarantee, to the extent theretofore
First Supplemental Indenture: Page 28
discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each Guarantor, 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 for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(y) in the event of any acceleration of such obligations as provided in
Article 6, such obligations (whether or not due and payable) shall
forthwith become due and payable by each Guarantor for the purpose of
this Guarantee.
Section 2.14 Fourteenth Covenant Amendment. The Indenture is hereby
amended to modify Section 10.5(b) thereof, to exclude the Newbridge Transaction
from the provisions thereof, as follows:
SECTION 10.5. Guarantors May Consolidate, etc. on Certain Terms.
(a) Nothing contained in this Indenture or in any of
the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor or
shall prevent any sale of assets or conveyance of the property
of a Guarantor as an entirety or substantially as an entirety,
to the Company or another Guarantor. Upon any such
consolidation, merger, sale or conveyance, the Guarantee given
by such Guarantor shall no longer have any force or effect.
(b) Except as set forth in Articles 4 and 5 hereof,
nothing contained in this Indenture or in any of the Notes
shall prevent any consolidation or merger of a Guarantor with
or into a corporation or corporations other than the Company
or another Guarantor (whether or not affiliated with the
Guarantor) or shall prevent any sale of assets or conveyance
of the property of a Guarantor as an entirety or substantially
as an entirety, to a corporation or corporations other than
the Company or another Guarantor (whether or not affiliated
with the Guarantor); provided, however, that, subject to
Sections 10.3 and 10.5(a), immediately after such transaction,
and giving effect thereto such transaction does not (a)
violate any covenants set forth herein or (b) results in a
Default or Event of Default under this Indenture that is
continuing. Nothing in this Indenture shall prevent the
transfer of VASP(TM)-related assets or sale of Equity
Interests pursuant to the Newco Contribution in connection
with the Newbridge Transaction.
First Supplemental Indenture: Page 29
Section 2.15 Fifteenth Covenant Amendment to Indenture. The Indenture
is hereby amended to add a new Section 12.1 thereto, which will provide for the
execution and delivery of the Collateral Document, which will establish the
means of securing the performance of the Company's obligations under the Notes
through a pledge of Investments in TTC by the Company, as follows:
SECTION 12.1. Collateral Document.
The due and punctual payment of the principal of and interest
on the Notes when and as the same shall be due and payable, whether on
an interest payment date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of and
interest (to the extent permitted by law), if any, on the Notes and the
performance of all other obligations of the Company and the Guarantors
to the Holders of Notes under this Indenture, the Notes and the
Collateral Document, according to the terms hereunder or thereunder,
shall be secured as provided in the Collateral Document, which the
Company has entered into simultaneously with the execution of the
Supplemental Indenture. Each Holder of Notes, by its acceptance
thereof, consents and agrees to the terms of the Collateral Document
(including, without limitation, the provisions providing for
foreclosure and release of Collateral) as the same may be in effect or
(subject to Article 9) may be amended from time to time in accordance
with its terms and authorizes and directs the Collateral Agent to enter
into the Collateral Document and to perform its obligations and
exercise its rights thereunder in accordance therewith. The Company
shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the
Collateral Document, to assure and confirm to the Collateral Agent the
security interest in the Collateral contemplated hereby, by the
Collateral Document or any part thereof, as from time to time
constituted, so as to render the same available for the security and
benefit of this Indenture, and of the Notes and Collateral Document
secured thereby, according to the intent and purposes herein expressed.
The Company shall take, or shall cause TTC to take, and, if requested
by the Collateral Agent, shall request Newbridge and/or Newco to take
(in respect of the Collateral consisting of Equity Interests of, or
Investments in, Newco), any and all actions reasonably required to
cause the Collateral Document to create and maintain, as security for
the Obligations of the Company and Guarantors hereunder and thereunder,
a valid and enforceable first priority perfected Lien in and on all the
Collateral, in favor of the Collateral Agent for the benefit of the
Holders of Notes, superior to and prior to the rights of all third
Persons and subject to no other Liens (other than Permitted Liens
described in clauses (v) (in respect of statutory obligations), (viii)
and (xiv) of the definition of Permitted Liens).
First Supplemental Indenture: Page 30
Section 2.16 Sixteenth Covenant Amendment . The Indenture is hereby
amended to add a new Section 12.2 thereto, which will require an opinion of
Company's counsel as to creation and maintenance of the Security Interest
effected by the Collateral Document, as follows:
SECTION 12.2. Recording and Opinions.
(a) The Company shall furnish to the Collateral Agent
simultaneously with the execution and delivery of the
Supplemental Indenture an Opinion of Counsel, which may
contain customary qualifications, stating that in the opinion
of such counsel (i) the Collateral Document has been duly
executed and delivered by the Company and TTC and constitutes
the legal, valid and binding obligations of the Company and
TTC enforceable against the Company and TTC in accordance with
its terms, (ii) the Security Interests purportedly granted and
created by the Company and TTC are valid and enforceable
security interests in the Collateral described in the
Collateral Document for the benefit of the Holders under this
Indenture, and (iii) with respect to the Security Interests in
the Collateral, all action has been taken with respect to the
recording, registering and filing of the Collateral Document,
financing statements or other instruments necessary to make
effective the first priority perfected Lien intended to be
created by the Collateral Document, and the details of such
action.
(b) The Company shall furnish to the Collateral
Agent, simultaneously with the pledge and delivery as
additional Collateral under the Collateral Document of any
Investments (or evidences thereof) made by the Company or any
Subsidiary in TTC or Newco after the date of the Supplemental
Indenture (1) in the event that such Subsidiary is not already
a party to the Collateral Document, an instrument reasonably
satisfactory to the Collateral Agent by which such Subsidiary
shall agree to become an additional "Pledgor" party thereto,
and (2) an Opinion of Counsel, which may contain customary
qualifications, stating that in the opinion of such counsel
(i) if applicable, the Collateral Document has been duly
executed and delivered by such Subsidiary and constitutes the
legal, valid and binding obligation of such Subsidiary
enforceable against such Subsidiary in accordance with its
terms, (ii) the Security Interests purportedly granted and
created by such Pledgor are validly created and binding
security interests in such Investments for the benefit of
Holders under this Indenture, and (iii) with respect to the
Security Interests in such Investments, all action has been
taken with respect
First Supplemental Indenture: Page 31
to the recording, registering and filing of the Collateral
Document, financing statements or other instruments necessary
to make effect the first priority perfected Lien intended to
be created by the Collateral Document in such Investments, and
the details of such action.
(c) The Company shall furnish to the Collateral Agent
on May 31 in each year beginning with May 31, 1999 an Opinion
of Counsel, dated as of such date, either (i) (A) stating
that, in the opinion of such counsel, all action has been
taken as is necessary to maintain the first priority perfected
status of the Lien of the Collateral Document and reciting the
details of such action or referring to prior Opinions of
Counsel in which such details are given and (B) based on
relevant laws as in effect on the date of such Opinion of
Counsel, all financing statements and continuation statements
have been executed and filed that are necessary as of such
date and during the succeeding 12 months fully to preserve and
protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the
Collateral Agent hereunder and under the Collateral Document
with respect to the Security Interests in the Collateral, or
(ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and such first
priority perfected status.
Section 2.17 Seventeenth Covenant Amendment. The Indenture is hereby
amended to add a new Section 12.3 thereto, which will establish the means by
which the Security Interest may be released, as follows:
SECTION 12.3. Release of Collateral.
(a) Subject to subsections (b), (d) and (e) of this
Section 12.3, Collateral may be released from the Lien and
Security Interest created by the Collateral Document at any
time or from time to time in accordance with the provisions of
the Collateral Document and as provided hereby. Upon the
request of the Company pursuant to an Officers' Certificate
certifying and Opinion of Counsel opining that all conditions
precedent hereunder have been met and stating whether or not
such release is in connection with an Asset Sale or Newco
Sale/Distribution, the Collateral Agent shall release (at the
sole cost and expense of the Company) Collateral which is
sold, conveyed or disposed of in compliance with the
provisions of this Indenture. Without limiting the generality
of the foregoing, if such sale, conveyance or disposition
constitutes an Asset Sale or Newco
First Supplemental Indenture: Page 32
Sale/Distribution, the Company shall apply the Net Proceeds in
accordance with Section 4.14. Upon receipt of such Officers'
Certificate and Opinion of Counsel, the Collateral Agent shall
execute, deliver or acknowledge any necessary or proper
instruments of termination, satisfaction or release to
evidence the release of any Collateral permitted to be
released pursuant to this Indenture and the Collateral
Document.
(b) The Company may at any time after the date hereof
transfer, assign, sell or otherwise dispose of any or all of
the Collateral; provided that (i) no Default or Event of
Default shall have occurred and be continuing or would occur
as a consequence thereof, (ii) without limiting the generality
of the foregoing, such transfer, assignment, sale or other
disposition (as the case may be) shall be in compliance with
Section 4.14 and (iii) the Company must give ten (10) days
prior notice to Collateral Agent of the terms, conditions and
proposed date of such transfer, assignment, sale or other
disposition (as the case may be). In such event, Collateral
Agent shall (a) make available to the Company at the closing
of such transfer, assignment, sale or other disposition (as
the case may be) certificates representing the Collateral
proposed to be sold in such transfer, assignment, sale or
other disposition (as the case may be); and (b) release the
Security Interest in such Collateral against delivery of the
proceeds from such transfer, assignment, sale or other
disposition (as the case may be) (net of the out-of-pocket
costs incurred in connection with such transfer, assignment,
sale or other disposition (as the case may be)). The proceeds
of any such transfer, assignment, sale or other disposition
(as the case may be) shall be immediately transferred to the
Pledge Account (as defined in the Collateral Document).
Promptly (but in any case within 30 days) after receipt of
such proceeds, the Company shall make an offer to Holders of
Notes to purchase the Notes consistent with the Asset Sale
Offer provisions of Section 4.14 of this Indenture. If any
proceeds remain after compliance with such Asset Sale Offer
provisions, the Collateral Agent shall transfer such proceeds
to the Company, which may use such remaining proceeds for
working capital and general corporate purposes.
(c) Except to the extent that any Lien on the
proceeds of Collateral is automatically released by operation
of Section 9-306 of the Uniform Commercial Code or other
similar law, no Collateral shall be released from the Lien and
Security Interest created by the
First Supplemental Indenture: Page 33
Collateral Document pursuant to the provisions of the
Collateral Document unless in compliance with Section 12.3(a)
and (b).
(d) Notwithstanding anything in the Indenture or the
Collateral Document to the contrary, at any time when a
Default or an Event of Default shall have occurred and be
continuing, no Collateral shall be released from the Lien and
Security Interest pursuant to the provisions of the Collateral
Document, and no release of Collateral in contravention of
this Section 11.3(d) shall be effective as against the Holders
of Notes.
(e) The release of any Collateral from the Liens and
Security Interests created by this Indenture and the
Collateral Document shall not be deemed to impair the security
under this Indenture in contravention of the provisions hereof
if and to the extent the Collateral is released pursuant to
the terms hereof or, subject to complying with the
requirements of this Section 12.3, pursuant to the terms of
the Collateral Document. To the extent applicable, the Company
shall cause TIA ss. 314(d), relating to the release of
property or securities from the Lien and Security Interest of
the Collateral Document and relating to the substitution
therefor of any property or securities to be subjected to the
Lien and Security Interest of the Collateral Document, to be
complied with. Any certificate or opinion required by TIA ss.
314(d) may be made by an Officer of the Company except in
cases where TIA ss. 314(d) requires that such certificate or
opinion be made by an independent Person, which Person shall
be an independent, appraiser or other expert selected or
approved by the Collateral Agent in the exercise of reasonable
care.
Section 2.18 Eighteenth Covenant Amendment. The Indenture is hereby
amended to add a new Section 12.4 thereto, which will require compliance with
the reporting provisions of the Trust Indenture Act of 1939, as follows:
SECTION 12.4. Certificates of the Company.
The Company shall furnish to the Collateral Agent, prior to each
proposed release of Collateral pursuant to the Collateral Document, (i)
all documents required by Section 314(d) of the TIA, (ii) an Opinion of
Counsel, to the effect that such accompanying documents constitute all
documents required by Section 314(d) of the TIA and (iii) an Opinion of
Counsel and Officer's Certificate to the effect that the release
complies with the requirements of the Indenture and the Collateral
Document. The Collateral Agent may, to the
First Supplemental Indenture: Page 34
extent permitted by Sections 7.1 and 7.2 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel and
Officer's Certificate.
Section 2.19 Nineteenth Covenant Amendment. The Indenture is hereby
amended to add a new Section 12.5 thereto, which will permit the Collateral
Agent to take actions that it deems necessary or appropriate in connection with
the Collateral Document, as follows:
SECTION 12.5. Authorization of Actions to be Taken by the Collateral
Agent Under the Collateral Document.
Subject to the provisions of Section 7.1 and 7.2 hereof, the
Collateral Agent may, in its sole discretion and without the consent of
the Holders of Notes, on behalf of the Holders of Notes, take all
actions it deems necessary or appropriate in order to (a) enforce any
of the terms of the Collateral Document and (b) collect and receive any
and all amounts payable in respect of the Obligations of the Company
and Guarantors hereunder and thereunder. The Collateral Agent shall
have the power to institute and maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Collateral by
any acts that may be unlawful or in violation of the Collateral
Document or this Indenture, and such suits and proceedings as the
Collateral Agent may deem expedient to preserve or protect its
interests and the interests of the Holders of Notes in the Collateral
(including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such
enactment, rule or order would impair the security interest hereunder
or be prejudicial to the interests of the Holders of Notes or of the
Collateral Agent).
Section 2.20 Twentieth Covenant Amendment. The Indenture is hereby
amended to add a new Section 12.6 thereto, relating to termination of Security
Interest granted under the Collateral Document, as follows:
SECTION 12.6. Termination of Security Interest.
Upon (a) the payment in full of all Obligations of the Company
and Guarantors under this Indenture and the Notes and the Collateral
Document, or (b) the sale of all the Collateral pursuant to Section
12.3(b) and the consummation of the offer to purchase Notes acquired
under Section 4.14 in connection therewith, the Collateral Agent shall,
at the request of the Company, and after receipt of an Officers'
Certificate and Opinion of
First Supplemental Indenture: Page 35
Counsel stating that all conditions to release set forth in the
Indenture and the Collateral Document have been met, release the Liens
pursuant to this Indenture and the Collateral Document.
Section 2.21 Twenty-first Covenant Amendment. The Indenture is hereby
amended to amend the form of Note to eliminate the reference in Paragraph 4
thereof to the Notes as "unsecured" general obligations of the Company, as
follows:
4. Indenture. The Company issued the Notes under an Indenture, dated as
of July 30, 1998 (the "Indenture"), among the Company, the Guarantors and the
Trustee. Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbb) as in effect on the date
of the Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Notes are senior general obligations of
the Company, secured to the extent provided in Article 12 of the Indenture, and
limited to $125,000,000 aggregate principal amount at maturity (subject to
Section 2.7 of the Indenture).
ARTICLE 3: NOTIFICATION OF HOLDERS
Section 3.1 Notification of Holders. The Company shall notify Holders
in accordance with Section 9.2 of the Indenture of the execution of this
Supplement. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of this
Supplement.
ARTICLE 4: MISCELLANEOUS
Section 4.1 Notices. Any notice or communication by the Company, the
Guarantors or the Trustee to the others is duly given if in writing and
delivered by hand delivery, by first-class mail (registered or certified, return
receipt requested), by facsimile or by overnight air courier guaranteeing next
day delivery, to the others' addresses as follows:
If to the Company or any Guarantor:
TeleHub Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier No: [(▇▇▇) ▇▇▇-▇▇▇▇]
First Supplemental Indenture: Page 36
If to the Trustee:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division:
TeleHub Communications Corporation--
13-7/8% Senior Discount Notes due 2005
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Company, the Guarantors or the Trustee, by notice to the others,
may designate additional or different addresses of subsequent notices or
communications.
All notices and communications (other than those sent to Holders of
Notes) shall be deemed to have been duly received: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when receipt is confirmed, if sent by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder of Notes shall be mailed by
first-class mail, certified or registered requested, to his address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a
Holder of Notes or any defect in it shall not affect its sufficiency with
respect to other Holders of Notes.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders of Notes, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 4.2 Governing Law. THIS SUPPLEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SUPPLEMENT.
Section 4.3 No Adverse Interpretation of Other Agreements. This
Supplement may not be used to interpret another indenture, loan or debt
agreement of the Company or its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Supplement.
First Supplemental Indenture: Page 37
Section 4.4 Successors. All agreements of the Company in this
Supplement shall bind its successor. All agreements of the Trustee in this
Supplement shall bind its successor.
Section 4.5 Severability. In case any one or more of the provisions in
this Supplement shall be held invalid, illegal or unenforceable in any
jurisdiction, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other jurisdiction and in every
other respect, and of the remaining provisions, shall not in any way be affected
or impaired thereby, it being intended that all of the provisions hereof shall
be enforceable to the full extent permitted by law.
Section 4.6 Counterpart Originals. This Supplement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all of them together shall represent the same agreement.
Section 4.7 Table of Contents, Headings, etc. The Table of Contents,
Cross- Reference Table and Headings of the Articles and Sections of this
Supplement have been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any of the terms
or provisions hereof.
Section 4.8 Indenture. Except as amended hereby, the Indenture and the
Notes are in all respects ratified and confirmed and all their terms shall
remain in full force and effect. From and after the effectiveness of this
Supplement, any reference to the Indenture or to the Notes shall mean the
Indenture or the Notes, as the case may be, as so amended by this Supplement or
the Notes, as the case may be, as so amended by this Supplement.
Section 4.9 Effectiveness. The provisions of this Supplement will take
effect immediately upon its execution and delivery by the Trustee in accordance
with the provisions of Section 9.2 of the Indenture.
[signatures appear on following page]
First Supplemental Indenture: Page 38
IN WITNESS WHEREOF, the undersigned have caused this
Supplement to be executed as of the date first above written.
TELEHUB COMMUNICATIONS CORPORATION
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
TELEHUB NETWORK SERVICES CORPORATION
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
TELEHUB TECHNOLOGIES CORPORATION
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
TELEHUB LEASING CORPORATION
By:___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman
STATE STREET BANK AND TRUST COMPANY,
as trustee
By:___________________________________________
▇▇▇ ▇▇
Assistant Vice President