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Exhibit 4.7
FIFTH SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
April 9, 2001, by and among Orius Telecommunication Services (WI), Inc., a
Florida corporation ("Orius Telecommunication Services (WI)"), Orius
Telecommunication Holdings (WI), Inc., a Florida corporation ("Orius
Telecommunication Holdings (WI)"), and Orius Telecommunication Services (WI)
Limited Partnership, a Wisconsin limited partnership ("Orius Telecom LP" and
together with Orius Telecommunication Services (WI) and Orius Telecommunication
Holdings (WI), the "Guaranteeing Subsidiaries"), NATG Holdings, LLC, 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 who are guarantors under the Indenture
(as hereinafter defined) as of the date hereof (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 (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 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
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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.
(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 fixed liabilities of
such Guaranteeing Subsidiary (including its guarantee of
obligations in respect 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
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obligations of such Guaranteeing Subsidiary under the Note
Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
2. 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.
3. 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.
4. 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.
5. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
7. 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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[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE CONT.]
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: February 9, 2001 ORIUS CORP.*
ORIUS CAPITAL CORP.*
CATV SUBSCRIBER SERVICES, INC.
CABLEMASTERS CORP.
CHANNEL COMMUNICATIONS, INC.
EXCEL CABLE CONSTRUCTION, INC.
U.S. CABLE, INC.
DAS-CO OF IDAHO, INC.
NETWORK CABLING SERVICES, INC.
NETWORK CABLING HOLDINGS, INC.*
XXXXXX UNDERGROUND CABLE, INC.
COPENHAGEN UTILITIES & CONSTRUCTION, INC.
TEXEL CORPORATION*
LISN COMPANY
ARION SUB, INC.
LISN, INC.
XXXXX TELECOM HOLDINGS, INC.
XXXXX TELECOM SERVICES, INC.
FENIX HOLDINGS, INC.*
FENIX TELECOMMUNICATIONS SERVICES, INC.*
MIDWEST SPLICING & ACTIVATION, INC.
HATTECH, INC.
ORIUS HOLDINGS, INC.*
ORIUS TELECOM SERVICES, INC.*
ORIUS BROADBAND SERVICES, INC.
ORIUS TELECOMMUNICATION SERVICES, INC.
ORIUS CENTRAL OFFICE SERVICES, INC.
ORIUS TELECOM PRODUCTS, INC.
ORIUS INTEGRATED PREMISE SERVICES, INC.
QMW COMMUNICATIONS, INC.
ORIUS TELECOMMUNICATION SERVICES (WI), INC.
ORIUS TELECOMMUNICATION HOLDINGS (WI), INC.
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxx, Executive Vice President
(President of those companies designated
with an asterisk)
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[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE CONT.]
FENIX TELECOM SERVICES LIMITED PARTNERSHIP
By: Fenix Telecommunications Services, Inc.
Its: General Partner
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
President
XXXXX TELECOM SERVICES, L.P.
By: Xxxxx Telecom Services, Inc.
ts: General Partner
/s/ XXXXXXX X. XXXXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
NETWORK COMPREHENSIVE TELECOM, L.P.
By: Network Cabling Services, Inc.
Its: General Partner
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
NATG HOLDINGS, LLC
By: Orius Corp.
Its: Sole Member
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
President
ORIUS INFORMATION TECHNOLOGIES LLC
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
President
ORIUS TELECOMMUNICATION SERVICES (WI) LIMITED
PARTNERSHIP
By: Orius Telecommunication Services (WI), Inc.
Its: General Partner
/s/ XXXXXXX X. XXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
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[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE CONT.]
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
By: /s/ XXXXXXXX X. XXXXXXXXXXXX
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxxx
-------------------------------------------
Its: Assistant Vice President
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