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EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
July 11, 2000, by and among Fenix Holdings, Inc., a Florida corporation ("Fenix
Holdings"), Hattech, Inc., a Florida corporation ("Hattech"), Irwin Telecom
Services, Inc., a Florida corporation ("Irwin"), Fenix Telecommunications
Services, Inc., a Florida corporation ("Fenix Telecomm"), Network Comprehensive
Telecom, LP, a Texas limited partnership ("Network Telecomm"), Network Cabling
Holdings, Inc., a Florida corporation ("Network Holdings"), Midwest Splicing &
Activation, Inc., a Minnesota corporation ("Midwest" and together with Fenix
Holdings, Hattech, Irwin, Fenix Telecomm, Network Telecomm and Network
Holdings, 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.
WITNESSETH
WHEREAS, the Issuers and the Original Guarantors have previously
executed and delivered to the Trustee an indenture (as supplemented from time
to time, 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
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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 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
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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.
(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.
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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: June __, 2000 ORIUS CORP.*
ORIUS CAPITAL CORP.*
NORTH AMERICAN TEL-COM GROUP, INC.*
CATV SUBSCRIBER SERVICES, INC.
CABLEMASTERS CORP.
CHANNEL COMMUNICATIONS, INC.
EXCEL CABLE CONSTRUCTION, INC.
MICH-COM CABLE SERVICES INCORPORATED
STATE WIDE CATV, INC.
U.S. CABLE, INC.
DAS-CO OF IDAHO, INC.
NETWORK CABLING SERVICES, INC.
NETWORK CABLING HOLDINGS, INC.*
SCHATZ UNDERGROUND CABLE, INC.
COPENHAGEN UTILITIES & CONSTRUCTION, INC.
TEXEL CORPORATION*
LISN COMPANY
ARION SUB, INC.
LISN, INC.
IRWIN TELECOM HOLDINGS, INC.
IRWIN TELECOM SERVICES, INC.
FENIX HOLDINGS, INC.*
FENIX TELECOMMUNICATIONS SERVICES, INC.*
MIDWEST SPLICING & ACTIVATION, INC.
HATTECH, INC.
/s/ WILLIAM J. MERCURIO
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William J. Mercurio, Executive Vice President
President of those companies designated
with an asterix
FENIX TELECOM SERVICES LIMITED PARTNERSHIP
By: Fenix Telecommunications Services, Inc.
Its: General Partner
/s/ WILLIAM J. MERCURIO
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William J. Mercurio
President
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[Signature Page to Supplemental Indenture cont.]
IRWIN TELECOM SERVICES, L.P.
By: Irwin Telecom Services, Inc.
Its: General Partner
/s/ WILLIAM J. MERCURIO
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William J. Mercurio
Executive Vice President
NETWORK COMPREHENSIVE TELECOM, L.P.
By: Network Cabling Services, Inc.
Its: General Partner
/s/ WILLIAM J. MERCURIO
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William J. Mercurio
Executive Vice President
NATG HOLDINGS, LLC
By: Orius Corp.
Its: Sole Member
/s/ WILLIAM J. MERCURIO
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William J. Mercurio
President
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[Signature Page to Supplemental Indenture cont.]
UNITED STATES TRUST COMPANY OF NEW YORK, AS
TRUSTEE
By:
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Name:
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Its:
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