Exhibit 99.4
================================================================================
COGENT COMMUNICATIONS GROUP, INC.,
SUCCESSOR,
AND
WILMINGTON TRUST COMPANY,
TRUSTEE
----------
FIRST SUPPLEMENTAL INDENTURE
Dated as of December ___, 2001
TO
INDENTURE
Dated as of June 28, 2000
----------
7.50% CONVERTIBLE SUBORDINATED NOTES DUE 2007
================================================================================
FIRST SUPPLEMENTAL INDENTURE, ("First Supplemental Indenture") dated as
of __________ ___, 200_, among COGENT COMMUNICATIONS GROUP, INC., a corporation
duly organized and existing under the laws of the State of Delaware, having its
principal office at 0000 Xxxxxx-Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000
(herein called the "Successor"), and WILMINGTON TRUST COMPANY, a banking
corporation, not in its individual capacity but solely as Trustee hereunder and
under the Indenture (as defined below) (herein called the "Trustee").
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Indenture.
RECITALS
WHEREAS, Allied Riser Communications Corporation ("Allied Riser") and
the Trustee have heretofore executed and delivered a certain Indenture, dated as
of June 28, 2000 (the "Indenture"), providing for the issuance of Securities
and, subject to and upon compliance with applicable provisions of the Indenture,
the conversion of any Security at the option of the Holder thereof into fully
paid and nonassessible shares of Common Stock of Allied Riser at the Conversion
Rate in effect at the time of conversion;
WHEREAS Allied Riser, Successor and Xxxxxxxx Xxxxxx Merger Sub, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
and a wholly owned subsidiary of the Successor (the "Merger Sub") have entered
into an Agreement and Plan of Merger, dated as of August 28, 2001, as amended by
Amendment No. 1, dated as of October 13, 2001 (as so amended, the "Merger
Agreement"), which contemplates the execution and filing of a certificate of
merger (the "Certificate of Merger") providing for the merger of the Merger Sub
with and into Allied Riser (the "Merger"), with Allied Riser continuing its
corporate existence under the laws of the State of Delaware;
WHEREAS, Section 7.1 of the Indenture provides, among other things,
that upon the merger of any other Person with or into the Company, the due and
punctual payment of the principal of, premium, if any, and interest on all of
the Securities as applicable, and the performance or observance of every
covenant of the Indenture to be performed or observed by the Company shall be
expressly assumed, by an indenture supplemental to the Indenture, executed and
delivered to the Trustee, in form satisfactory to the Trustee by the Person with
or into which Allied Riser shall have been merged;
WHEREAS, Section 7.2 of the Indenture provides, among other things,
that upon any consolidation of the Company with any other Person, the successor
Person shall 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 such
successor Person had been named as the Company therein and thereafter, the
predecessor person shall be relieved of all obligations and covenants thereunder
and under the Securities;
WHEREAS, Section 7.1 of the Indenture further provides, among other
things, that any successor of the covenants and obligations of the Company shall
have provided for conversion rights in accordance with Article XII;
WHEREAS, Section 8.1 of the Indenture provides, among other things,
that, without the
1
consent of any Holders of Securities, the Company, when authorized by a Board
Resolution of the Company, and the Trustee, at any time and from time to time,
may enter into one or more indentures supplemental to the Indenture to evidence
the succession of another Person to the Company and the assumption by any such
successor of the covenants and obligations of the Company in the Indenture and
in the Securities;
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by resolutions of the board of directors of
Successor;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and intending to be legally
bound hereby, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
REPRESENTATIONS OF THE COMPANY AND SUCCESSOR
Successor represents and warrants as of the date hereof and as of the
time the Merger becomes effective to the Trustee as follows:
SECTION 1.1. It is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware.
SECTION 1.2. The execution, delivery and performance by it of this
First Supplemental Indenture have been authorized and approved by all necessary
corporate action on its part.
ARTICLE II
SUCCESSION AND ASSUMPTION
SECTION 2.1. Successor hereby assumes, as of the date hereof, the due
and punctual payment of the principal of, premium, if any, and interest on all
of the Securities as applicable, and the performance or observance of every
covenant of the Indenture to be performed or observed by the Company.
SECTION 2.2. The Holder of each Security that is Outstanding as of the
date hereof shall have the right, during the period such Security shall be
convertible as specified in Section 12.1 of the Indenture, to convert such
Security only into the kind and amount of Common Stock of Successor receivable
upon the Merger by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately prior to
the Merger, assuming such holder of Common Stock of the Company is not a
Constituent Person or an Affiliate of a Constituent Person. From and after the
Effective Time, the Conversion Rate shall be subject to adjustments from time to
time which shall be as nearly equivalent as may be practicable to the
adjustments provided for in Article XII of the Indenture.
SECTION 2.3. Securities authenticated and delivered after the execution
of this First Supplemental Indenture may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
this First Supplemental Indenture.
2
SECTION 2.4. Upon the effective time of this First Supplemental
Indenture, Successor shall 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, and
hereupon, the Company shall be relieved of all obligations and covenants under
the Indenture and the Securities.
SECTION 2.5. Pursuant to Section 14.5 of the Indenture, as of the date
hereof, the provisions of the Indenture relating to the right of Holders to
cause repurchase of the Securities following a Change in Control are hereby
modified to make such provisions in the Indenture apply, in the event of a
Change in Control subsequent to the effective time of this First Supplemental
Indenture, to the Common Stock of Successor and to Successor, as follows:
The first sentence of the definition of "Common Stock" in
Section 1.1 of the Indenture is hereby modified and amended to read as
follows:
"Common Stock" means the Common Stock, par value $0.001 per
share, of the Company authorized as of the effective date of the First
Supplemental Indenture hereto.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. This First Supplemental Indenture constitutes an integral
part of the Indenture, which, as supplemented and amended by this First
Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
SECTION 3.2. Notice of the execution of this First Supplemental
Indenture shall be given by the Company to the Holder of each Security as
provided in Sections 1.6 and 12.11 of the Indenture promptly upon such execution
hereof.
SECTION 3.3. The recitals contained herein shall be taken as the
statements of the Company and Successor, and the Trustee does not assume any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this First Supplemental Indenture.
SECTION 3.4. The Trustee acknowledges that the Company has delivered to
the Trustee, in accordance with Sections 7.1(3) and 8.3 of the Indenture, an
Officers' Certificate and an Opinion of Counsel.
SECTION 3.5. If any provision of this First Supplemental Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control.
SECTION 3.6. Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors and assigns, any benefit or any legal or equitable right, remedy or
claim under this First Supplemental Indenture.
SECTION 3.7. This First Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York, and for all
purposes shall be governed by
3
and construed in accordance with the laws of such State, without regard to the
conflicts of laws principles thereof.
SECTION 3.8. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.9. This First Supplemental Indenture shall become effective
as of the date hereof.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed all as of the day and year first
above written.
COGENT COMMUNICATIONS GROUP, INC.
By:
--------------------------------------------
Name: [Xxxxx Xxxxxxxxx]
Title: [Chairman and Chief Executive Officer]
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Trustee
hereunder and under the Indenture
By:
--------------------------------------------------
Name: [Xxxxxxx X. Xxxx]
Title: [Authorized Signer]
4
