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EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
April 14, 2000, by and among Fenix Communications, Inc., a Wisconsin corporation
("Fenix Inc."), and Fenix Limited Partnership, a Wisconsin limited partnership
("Fenix L.P.," and together with Fenix Inc., the "Guaranteeing Subsidiaries"),
NATG Holdings, Inc., a Delaware limited liability company ("NATG"), Orius
Capital Corp., a Delaware corporation (together with NATG, the "Issuers"), Orius
Corp., a Florida corporation ("Parent"), the subsidiaries of Parent named in the
Indenture (as hereinafter defined) as guarantors (together with Parent, the
"Original Guarantors") and United States Trust Company of New York, as trustee
(the "Trustee") under the Indenture. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
W I T N E S S E T H
WHEREAS, the Issuers and the Original Guarantors have previously
executed and delivered to the Trustee an indenture (the "Indenture"), dated as
of February 9, 2000, providing for the issuance of an aggregate principal amount
of up to $300,000,000 of 12 3/4% Senior Subordinated Notes due 2010;
WHEREAS, the Indenture provides that the Guaranteeing Subsidiaries
shall execute and deliver to the Trustee a supplemental indenture pursuant to
which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the
Issuers' obligations under the Securities and the Indenture on the terms and
conditions set forth in the Indenture; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto mutually covenant and agree for the equal and ratable benefit of the
Holders of the Securities as follows:
1. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree
as follows:
(a) Along with all Guarantors named in the Indenture, to jointly
and severally, unconditionally and irrevocably guarantee, on a
senior subordinated basis (each such guarantee to be referred
to herein as a "Note Guarantee") to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, this Supplemental
Indenture, the Securities or the obligations of the Issuers or
any other Guarantors to the Holders or the Trustee hereunder
or thereunder, that: (i) the principal of, premium, if any,
and interest on the Securities shall be duly and punctually
paid in full when due, whether at maturity, upon redemption at
the option of Holders pursuant to the provisions of the
Securities relating thereto, by acceleration or otherwise, and
interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Securities and all other
obligations of the
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Issuers or the Guarantors to the Holders or the Trustee
hereunder or thereunder (including amounts due the Trustee
under Section 7.7 of the Indenture) and all other obligations
shall be promptly paid in full or performed, all in accordance
with the terms hereof and thereof; and (ii) in case of any
extension of time of payment or renewal of any Securities or
any of such other obligations, the same shall be promptly paid
in full when due or performed in accordance with the terms of
the extension or renewal, whether at maturity, by acceleration
or otherwise. Failing payment when due of any amount so
guaranteed, or failing performance of any other obligation of
the Issuers to the Holders under the Indenture or under the
Securities, for whatever reason, each Guaranteeing Subsidiary
shall be obligated to pay, or to perform or cause the
performance of, the same immediately. An Event of Default
under the Indenture or the Securities shall constitute an
event of default under this Note Guarantee, and shall entitle
the Holders of Securities to accelerate the obligations of the
Guaranteeing Subsidiaries hereunder in the same manner and to
the same extent as the obligations of the Issuers.
(b) The Guaranteeing Subsidiaries' obligations hereunder shall be
unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Supplemental
Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect
to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against an Issuer, any
action to enforce the same, whether or not a Guarantee is
affixed to any particular Security, or any other circumstance
which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each of the Guaranteeing
Subsidiaries hereby waive the benefit of diligence,
presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of an Issuer, any
right to require a proceeding first against an Issuer,
protest, notice and all demands whatsoever and covenants that
its Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities,
the Indenture and this Note Guarantee. This Note Guarantee is
a guarantee of payment and not of collection. If any Holder or
the Trustee is required by any court or otherwise to return to
the Issuers or to any Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to an
Issuer or such Guarantor, any amount paid by an Issuer or such
Guarantor to the Trustee or such Holder, this Note Guarantee,
to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Guarantor further agrees that, as
between it, on the one hand, and the Holders of Securities and
the Trustee, on the other hand, (i) subject to the provisions
hereof, the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article Six of the Indenture for
the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (ii) in
the event of any acceleration of such obligations as provided
in Article Six of the Indenture, such obligations (whether or
not due and payable) shall forthwith become due and payable by
the Guaranteeing Subsidiaries for the purpose of this Note
Guarantee.
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(c) Each Guaranteeing Subsidiary that makes a payment or
distribution under a Note Guarantee shall be entitled to a
contribution from each other Guarantor on a pro rata basis,
based on the net assets of each Guarantor, determined in
accordance with GAAP.
(d) The Obligations of each Guaranteeing Subsidiary under its Note
Guarantee are limited to the maximum amount which, after
giving effect to all other contingent and of the Senior
Secured Credit Agreement and any other Guarantor Senior Debt,
and after giving effect to any collections from or payments
made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or
pursuant to its contribution obligations under the Indenture,
will result in the obligations of such Guaranteeing Subsidiary
under the Note Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
4. Incorporation of Terms of Indenture. The obligations of the
Guaranteeing Subsidiaries under the Note Guarantees shall be governed in all
respects by the terms of the Indenture and shall constitute a Guarantee
thereunder. Each of the parties hereto shall be bound by the terms of the
Indenture as they relate to the Note Guarantees.
5. No Recourse Against Others. No stockholder, officer, director,
employee or incorporator, past, present or future, or any Guaranteeing
Subsidiary, as such, shall have any personal liability under this Note Guarantee
by reason of his, her or its status as such stockholder, officer, director,
employee or incorporator.
6. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
8. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
9. Disclaimer by Trustee. The Trustee makes no representation as to the
validity of this Supplemental Indenture or the proper authorization or due
execution of this Supplemental Indenture by the Issuers, the Original Guarantors
or the Guaranteeing Subsidiaries.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: April 14, 2000
FENIX COMMUNICATIONS, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
FENIX LIMITED PARTNERSHIP
By: LISN, Inc., its General Partner
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
NATG HOLDINGS, LLC
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Chief Executive Officer and
President
ORIUS CAPITAL CORP.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, President
ORIUS CORP.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Chief Executive Officer and
President
NORTH AMERICAN TEL-COM GROUP, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Chief Executive Officer and
President
SCHATZ UNDERGROUND CABLE, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
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[Signature Page to Supplemental Indenture cont.]
TEXEL CORPORATION
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
U.S. CABLE, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
STATE WIDE CATV, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
NETWORK CABLING SERVICES, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
MICH-COM CABLE SERVICES, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
EXCEL CABLE CONSTRUCTION, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
DAS-CO OF IDAHO, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
COPENHAGEN UTILITIES & CONSTRUCTION, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
CHANNEL COMMUNICATIONS, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
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[Signature Page to Supplemental Indenture cont.]
CABLEMASTERS CORP.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
CATV SUBSCRIBER SERVICES, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
LISN COMPANY
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
LISN, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
ARION, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
IRWIN TELECOM SERVICES, L.P.
By: SCHATZ UNDERGROUND CABLE,
INC.Its: General Partner
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
IRWIN TELECOM HOLDINGS, INC.
By: /s/ WILLIAM J. MERCURIO
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William J. Mercurio, President
UNITED STATES TRUST COMPANY OF NEW
YORK, AS TRUSTEE
By: /s/ MARGARET M. CIESMELEWSKI
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Name: Margaret M. Ciesmelewski
Title: Assistant Vice President