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FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture") dated
as of March 5, 1997, by and between PRIME SERVICE, INC., a Delaware
corporation (the "Successor") and TEXAS COMMERCE BANK NATIONAL ASSOCIATION (the
"Trustee"), a national banking association.
RECITALS
A. Primeco Inc., a Texas corporation (the "Company") has heretofore
executed and delivered to the Trustee a certain Indenture dated as of March 6,
1995, (herein called the "Indenture") providing for the issue of $100,000,000
principal amount of its 12.75% Senior Subordinated Notes due 2005 (herein
called the "Notes"). All terms used in this First Supplemental Indenture which
are defined in the Indenture and not defined herein shall have the same
meanings assigned to them in the Indenture.
B. Pursuant to the Certificate and Articles of Merger dated as of
February , 1997, by the Company and the Successor, the Company is being
merged with and into the Successor (the "Merger"), under the laws of the States
of Texas and Delaware, with the Successor being the surviving corporation.
C. Section 5.01(a) of the Indenture provides that in the event that
the Company shall consolidate with or merge into a successor company, the
successor company shall expressly assume, by an indenture supplemental to the
Indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the Notes and the Indenture.
D. Section 9.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the
consent of any Holders to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants, agreements
and obligations of the Company in the Indenture and in the Notes, including
pursuant to the Merger.
E. The Company has furnished the Trustee with an Officers'
Certificate stating that the Merger and this First Supplemental Indenture
comply with Article Five of the Indenture.
AGREEMENT
NOW THEREFORE, for and in consideration of the foregoing premises, the
parties hereto do hereby mutually covenant and agree as follows:
SECTION 1. The Successor hereby expressly assumes, from and after the
consummation of the Merger, all the obligations and liabilities of the Company
under the Notes and the Indenture.
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SECTION 2. The Successor shall, from and after the consummation of
the Merger, by virtue of the aforesaid assumption and the delivery of this
First Supplemental Indenture, succeed to, and be substituted for, and may
exercise every right and power of, the Company under the Indenture with the
same effect as if the Successor had been named as the Company in the Indenture.
SECTION 3. Pursuant to Section 11.02 of the Indenture, any request,
demand, authorization, direction, notice, consent, waiver, Act of Holders or
other document provided or permitted by the Indenture to be made upon, given or
furnished to, or filed with the Successor shall be addressed to Prime Service,
Inc. at 00000 Xxxx Xxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, in each case to
the attention of the Chief Financial Officer and the General Counsel with a
copy to Xxxxxx, Xxxx & Xxxxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or
by telecopier to (000) 000-0000, in each case addressed to the attention of
Xxxxx Xxxxx or her designee, or at such other address or telecopier number, or
to such other Person's attention, as is set forth in a notice theretofore given
by the Successor to the Trustee, the Holders and the Administrative Agent.
SECTION 4. In case any provision in this First Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired hereby.
SECTION 5. This First Supplemental Indenture supplements the
Indenture and shall be a part and subject to all the terms hereof. Except as
supplemented hereby, the Indenture shall continue in full force and effect.
SECTION 6. This First Supplemental Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 7. This First Supplemental Indenture may be executed in one
or more counterparts each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instruments.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day of February,
1997.
PRIME SERVICE, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: President
Attest:
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title: Executive Vice President
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as Trustee
By: /s/ XXXXX XXXXX
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Name: Xxxxx Xxxxx
Title: Vice President
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