Contract
Exhibit 4.12
THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) dated as of May 31, 2007,
among Eureka Broadband Corporation, Eureka Holdings, LLC, Eureka Networks, LLC, Eureka Telecom,
Inc., Eureka Telecom of VA, Inc., InfoHighway Communications, Inc., ARC Networks, Inc., A.R.C.
Networks, Inc., InfoHighway Virginia, Inc., Info-Highway International, Inc. and Xxx-x.xxx, Inc.
(each, a “New Guarantor” and collectively, the “New Guarantors”), each a direct or indirect
subsidiary of Broadview Networks Holding, Inc. (the “Company”), the subsidiaries of the Company
listed on the signature pages hereto under the heading “Existing Guarantors” (collectively, the
“Existing Guarantors”) and THE BANK OF NEW YORK, a New York banking corporation, as trustee and
collateral agent (the “Trustee”) under the Indenture (as defined and referred to below). All
capitalized terms used but not otherwise defined herein shall have the meaning assigned thereto in
the Indenture.
WITNESETH:
WHEREAS the Company and the Existing Guarantors have heretofore executed and delivered to the
Trustee an Indenture dated as of August 23, 2006 and supplemented as of September 29, 2006 and May
14, 2007 (the “Indenture”), providing for the issuance of its 11 3/8% Senior Secured Notes Due
2012;
WHEREAS the Indenture permits the New Guarantors to execute and deliver to the Trustee a
supplemental indenture pursuant to which each New Guarantor shall unconditionally guarantee all of
the Company’s obligations under the Indenture and the Notes on the terms and conditions set forth
herein;
WHEREAS the Guarantee contained in this Supplemental Indenture shall constitute a
“Guarantee”, and each New Guarantor shall constitute a “Guarantor”, for all purposes of the
Indenture; and
WHEREAS pursuant to Section 4.14 and 9.01, the Trustee, the Company, the Existing Guarantors
and the New Guarantors are authorized or permitted 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 mutually covenant and
agree for the equal and ratable benefit of the Holders as follows:
1. Agreement to Guaranty. Each New Guarantor hereby agrees, jointly and severally with
all the existing Guarantors, to unconditionally guarantee the Company’s obligations under the Notes and the
Indenture on the terms and subject to the conditions set forth in Article 10 of the Indenture and to be bound by all
other applicable provisions of the Indenture and the Notes.
2. Successors and Assigns. All agreements of the New Guarantors in this Supplemental
Indenture shall bind their successors.
3. No Waiver. Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Supplemental Indenture, the Indenture or the Notes
shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise
of any right, power or privilege. The rights, remedies and benefits of the Trustee and the Holders herein and therein
expressly specified are cumulative and not exclusive of any other rights, remedies or benefits which either may
have under this Supplemental Indenture, the Indenture or the Notes at law, in equity, by statute or otherwise.
4. Modification. No modification, amendment or waiver of any provision of this
Supplemental Indenture, nor the consent to any departure by the New Guarantors therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No notice to or demand on the New Guarantors in
any case shall entitle the New Guarantors to any other or further notice or demand in the same, similar or
other circumstances.
5. Opinion of Counsel. Concurrently with the execution and delivery of this
Supplemental Indenture, the Company shall deliver to the Trustee an Opinion of Counsel and an Officer’s Certificate in
accordance with the terms set forth in Sections 4.14, 9.06 and 11.04 of the Indenture.
6. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as
expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions
and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be
bound hereby.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL
INDENTURE, THE NOTES, THE GUARANTEES, THE COLLATERAL AGREEMENTS OR THE
TRANSACTIONS CONTEMPLATED BY THIS SUPPLEMENTAL INDENTURE.
8. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy (including any facsimile) shall be an original, but all of them together represent the
same agreement.
9. Effect of Headings. The Section headings herein are for convenience only and
shall not effect the construction thereof.
10. Trustee. The Trustee makes no representations as to the validity or sufficiency of
this Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company, the New
Guarantors and the Existing Guarantors and not of the Trustee.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be
duly executed as of the date first above written.
| BROADVIEW NETWORKS HOLDINGS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer, Treasurer and Assistant Secretary | |||
| NEW GUARANTORS: EUREKA BROADBAND CORPORATION |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| EUREKA HOLDINGS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| EUREKA NETWORKS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| EUREKA TELECOM, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| EUREKA TELECOM OF VA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| INFOHIGHWAY COMMUNICATIONS CORPORATION |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| ARC NETWORKS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| A.R.C. NETWORKS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| INFOHIGHWAY VIRGINIA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| INFO-HIGHWAY INTERNATIONAL, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President, Assistant Secretary and Assistant Treasurer | |||
| EXISTING GUARANTORS: BRIDGECOM HOLDINGS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BRIDGECOM INTERNATIONAL, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BRIDGECOM SOLUTIONS GROUP, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| TRUCOM CORPORATION |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| OPEN SUPPORT SYSTEMS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BROADVIEW NP ACQUISITION CORP. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BROADVIEW NETWORKS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BROADVIEW NETWORKS OF MASSACHUSETTS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BROADVIEW NETWORKS OF VIRGINIA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| BV-BC ACQUISITION CORP. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| ATX COMMUNICATIONS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| CORECOMM-ATX, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| ATX LICENSING, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| ATX TELECOMMUNICATIONS SERVICES OF VA, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CORECOMM SERVICES, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CORECOMM COMMUNICATIONS, LLC |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CORECOMM NEWCO, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL ILLINOIS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL INDIANA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL MARYLAND, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL MASSACHUSETTS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL MICHIGAN, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL MISSOURI, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL NEW JERSEY, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL NEW YORK, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL OHIO, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL PENNSYLVANIA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL RHODE ISLAND, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL VERMONT, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CCL HISTORICAL WEST VIRGINIA, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| FCC HOLDCO I, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| XXXXXXXXX COMMUNICATIONS CORP. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CORECOMM-VOYAGER, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| VOYAGER INFORMATION NETWORKS, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| CORECOMM INTERNET GROUP, INC. |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and Assistant Secretary | |||
| THE BANK OF NEW YORK, as Trustee and Collateral Agent |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
