EXHIBIT 10.4 AMENDMENT NO. 2 TO FISCAL AGENCY AGREEMENT ThisAMENDMENT NO. 2 TO FISCAL AGENCY AGREEMENT (this “Amendment”) dated as of May 29, 2003, is by and among iBASIS, INC., a Delaware corporation (together with its permitted successors and assigns, the “Company”), IBASIS GLOBAL, INC., a Delaware corporation (together with its permitted successors and assigns, “iBasisGlobal”, and collectively with the Company, the “Issuer”), and U.S. BANK NATIONAL ASSOCIATION, as the fiscal agent, paying agent, note registrar and authenticating agent (in such capacity, together with its permitted successors and assigns, the “FiscalAgent”). WHEREAS, the Issuer and the Fiscal Agent are parties to a Fiscal Agency Agreement dated as of January 30, 2003 (as amended and in effect from time to time, the “FiscalAgency Agreement”), pursuant to which the Issuer appointed the Fiscal Agent to act as paying agent, registrar and transfer agent in respect of the Issuer’s 11.5% Senior Secured Notes due 2005 (the “Notes”); WHEREAS,Section 17(a)(v) of the Fiscal Agency Agreement provides that the Issuer and the Fiscal Agent may enter into a supplemental agreement to cure any ambiguity, correct or supplement any provision which may be inconsistent with any provision in the Fiscal Agency Agreement, or to make any other provisions with respect to matters or questions arising from the Fiscal Agency Agreement upon receipt by the Fiscal Agent of written direction from the Issuer; WHEREAS, the Issuer maintains that the restrictions set forth in Section 10(b) of the Fiscal Agency Agreement apply solely to transfers of Notes and not to direct sales of Notes by the Issuer and the Issuer hereby directs the Fiscal Agent to amend such section; WHEREAS, the Issuer and the Fiscal Agent have agreed, on the terms and conditions set forth herein, to amend Section 10(b) of the Fiscal Agency Agreement to clarify that such section applies only to transfers of Notes and not to direct sales of Notes by the Issuer; and WHEREAS, capitalized terms which are used herein without definition and which are defined in the Fiscal Agency Agreement shall have the same meanings herein as in the Fiscal Agency Agreement. NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Issuer and the Fiscal Agent hereby agree as follows: §1. Amendment to Section 10(b) of the Fiscal Agency Agreement.Section 10(b) of the Fiscal Agency Agreement is hereby amended to insert at the beginning of the first sentence thereof “Except for sales by the Issuer directly to the Acceding Holders under that certain Joinder Agreement, dated as of May 29, 2003, among iBasis, Inc., iBasis Global, Inc., the Acceding Holders named therein, and U.S. Bank National Association, as Collateral Agent,”. §2. NoOtherAmendments. Except as expressly provided in this Amendment, all of the terms and conditions of the Fiscal Agency Agreement remain in full force and effect. |
