SECOND SUPPLEMENTAL INDENTURE
This
SECOND SUPPLEMENTAL INDENTURE (this “Second
Supplemental Indenture”),
dated
as of January 31, 2007, is entered into by and between Pac-West Telecomm, Inc.,
a California corporation, (the “Company”)
and
Xxxxx Fargo Bank, N.A. (successor by merger to Norwest Bank Minnesota, National
Association), as trustee (the “Trustee”)
in
connection with an amendment to the Indenture, dated as of January 29, 1999,
as
supplemented by that certain First Supplemental Indenture, dated November 25,
2003 between the Company and the Trustee (the “Indenture”),
relating to the Company’s 13 1/2% Senior Notes due 2009 (the “Notes”).
Capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Indenture.
W
I T N E S S E T H:
WHEREAS,
Section 9.02 of the Indenture provides that the Company, when authorized by
a
resolution of its Board of Directors, and the Trustee may (subject to certain
exceptions), with the written consent of the holders of a majority in principal
amount of Notes outstanding (the “Requisite
Consents”),
amend
or supplement the Indenture;
WHEREAS,
the Company has made an offer to exchange the Notes for newly issued 13 1/2%
Senior Priority Notes and has solicited consents with respect to an amendment
to
Section 4.03 of the Indenture (the “Proposed
Amendment”)
pursuant to the terms and conditions of that certain Offering Circular and
Consent Solicitation Statement, dated as of December 21, 2006, as may be amended
from time to time by the Company (the “Offering
Circular”);
WHEREAS,
the Company has received the Requisite Consents to effect the Proposed Amendment
under the Indenture and has delivered an Officers’ Certificate to the Trustee so
certifying; and
WHEREAS,
the Company has been authorized by a resolution of its Board of Directors to
enter into this Second Supplemental Indenture.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows for the
benefit of each other party and for the equal and ratable benefit of the Holders
of the Notes, the Company and the Trustee hereby agree as follows:
ARTICLE
1
AMENDMENT
Section
4.03 of the Indenture is hereby amended and restated in its entirety to read
as
follows:
“(a) Whether
or not required by the rules and regulations of the SEC, so long as any Notes
are outstanding, the Company shall furnish to the Holders of Notes, within
the
time periods specified in the SEC’s rules and regulations all quarterly and
annual financial statements that would be required to be contained in a filing
with the SEC on Forms 10-Q and 10-K if the Company were required to file such
forms, a “Management’s Discussion and Analysis of Financial Condition and
Results of Operations” with respect to all such quarterly and annual financial
statements furnished and, with respect to such annual financial statements
only,
a report thereon by the Company's certified independent
accountants.
(b) For
so
long as any Notes remain outstanding, the Company shall furnish to the Holders
and to prospective investors, upon their request, the information required
to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.”
ARTICLE
2
EFFECTIVENESS;
OPERATIVENESS
This
Second Supplemental Indenture will become effective and binding upon the
Company, the Trustee and the holders of Notes upon consummation of the Exchange
Offer and Consent Solicitation (the “Effective
Date”).
On
the
Effective Date, the Indenture shall be modified and amended in accordance with
this Second Supplemental Indenture, and all the terms and conditions of both
shall be read together as though they constitute one instrument, except that,
in
case of conflict, the provisions of this Second Supplemental Indenture will
control. The Indenture, as modified and amended by this Second Supplemental
Indenture, is hereby ratified and confirmed in all respects and shall bind
every
holder of Notes. In case of conflict between the terms and conditions contained
in the Notes and those contained in the Indenture, as modified and amended
by
this Second Supplemental Indenture, the provisions of the Indenture, as modified
and amended by this Second Supplemental Indenture, shall control.
ARTICLE
3
CONFLICT
WITH THE TRUST INDENTURE ACT
If
any
provision of this Second Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act of 1939 (the “TIA”)
that
is required under the TIA to be part of and govern any provision of this Second
Supplemental Indenture, the provision of the TIA shall control. If any provision
of this Second Supplemental Indenture modifies or excludes any provision of
the
TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture.
ARTICLE
4
SEVERABILITY
In
case
any provision in this Second 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 thereby.
ARTICLE
5
HEADINGS
The
Article and Section headings of this Second Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part
of
this Second Supplemental Indenture and shall in no way modify or restrict any
of
the terms or provisions hereof.
ARTICLE
6
BENEFITS
UNDER THE SECOND SUPPLEMENTAL INDENTURE
Nothing
in this Second Supplemental Indenture or the Notes, express or implied, shall
give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the holders of the Notes, any benefit
of
any legal or equitable right, remedy or claim under the Indenture, this Second
Supplemental Indenture or the Notes.
ARTICLE
7
SUCCESSORS
All
agreements of the Company in this Second Supplemental Indenture shall bind
their
respective successors. All agreements of the Trustee in this Second Supplemental
Indenture shall bind its successors.
ARTICLE
8
THE
TRUSTEE
The
Trustee shall not be responsible in any manner whatsoever for or in respect
of
the validity or sufficiency of this Second Supplemental Indenture or for or
in
respect of the recitals contained herein, all of which are made solely by the
Company.
ARTICLE
9
CERTAIN
DUTIES AND RESPONSIBILITIES OF THE TRUSTEE
In
entering into this Second Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to the conduct
or
affecting the liability or affording protection to the Trustee, whether or
not
elsewhere herein so provided.
ARTICLE
10
GOVERNING
LAW
THIS
SECOND 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
CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW.
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
Second Supplemental Indenture.
ARTICLE
11
COUNTERPART
ORIGINALS
The
parties may sign any number of copies of this Second Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent one
and the same agreement.
*
* * *
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, all as of the date first above written.
PAC-WEST
TELECOMM, INC.
By: __/s/XXXXXXX
SARINA____________
Name: Xxxxxxx
Xxxxxx
Title: Chief
Financial Officer
XXXXX
FARGO BANK, N.A., as Trustee
By: __/s/XXXXXXX
X. MOWDY__________
Name: Xxxxxxx
X. Xxxxx
Title: Vice-President
Signature
Page to Second Supplemental Indenture
