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Exhibit 4.6
FOURTH SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of February 9,
2001, by and among Xxxxxxxx Construction, Inc., a Washington corporation
("Xxxxxxxx") and K&S Construction, Inc., a Wisconsin corporation ("K&S"
Construction" and together with Xxxxxxxx, 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 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.
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(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 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.
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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.
XXXXXXXX MARINE CONSTRUCTION, INC.
K&S CONSTRUCTION, INC.
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx,
Executive Vice President
(President of those companies designated
with an asterix)
FENIX TELECOM SERVICES LIMITED PARTNERSHIP
By: Fenix Telecommunications Services,
Inc.
Its: General Partner
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President
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[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE CONT.]
XXXXX TELECOM SERVICES, L.P.
By: Xxxxx Telecom Services, Inc.
Its: General Partner
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Executive Vice President
NETWORK COMPREHENSIVE TELECOM, L.P.
By: Network Cabling Services, Inc.
Its: General Partner
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Executive Vice President
NATG HOLDINGS, LLC
By: Orius Corp.
Its: Sole Member
/S/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
President
ORIUS INFORMATION TECHNOLOGIES LLC
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
President
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[SIGNATURE PAGE TO SUPPLEMENTAL INDENTURE CONT.]
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Its: Assistant Vice President
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