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EXHIBIT 4.1(b)
AMENDMENT NO. 1 TO INDENTURE
AMENDMENT (this "Amendment"), dated as of January 28, 2000, to the
Indenture, dated as of February 1, 1998 (the "Indenture"), among Xxxxxx Media
Corp., a Delaware corporation and now known as Next Generation Network, Inc.
(the "Company"), and United States Trust Company of New York, a banking
corporation organized and existing under the laws of the State of New York, in
its capacity as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company proposes to amend the Indenture in accordance with
Article 9 thereof;
WHEREAS, the Company has obtained the consents of the requisite number
of Securityholders (as defined in the Indenture) to amend the Indenture;
NOW THEREFORE, in consideration of the premises and the mutual
agreements contained herein and other good and valuable consideration, the
parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined in
this Amendment are used herein as defined in the Indenture.
SECTION 2. Amendment to the Indenture. The Indenture is hereby amended
effective as of the date hereof as follows:
(i) The definition of an "Asset Disposition" is amended by adding the
underscored and bold language below.
"Asset Disposition" means any sale, lease, transfer, issuance
or other disposition (or series of related, sales, leases, transfers,
issuances or dispositions that are part of a common plan) of shares of
Capital Stock of (or any other equity interests in) a Restricted
Subsidiary (other than directors' qualifying shares) or of any other
property or other assets (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its Restricted
Subsidiaries (including any disposition by means of a merge,
consolidation or similar transaction) other than (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly-Owned Subsidiary, (ii) a disposition of
inventory in the ordinary course of business, (iii) a disposition of
obsolete or worn out equipment or equipment that is no longer useful in
the conduct of the business of the Company and its Restricted
Subsidiaries and that is disposed of in the ordinary course of
business, (iv) dispositions of property for net proceeds which, when
taken collectively with the net proceeds of any other such dispositions
under this clause (iv) that were consummated since the beginning of the
calendar year in which such disposition is consummated, do not exceed
$100,000, (V) THE
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LICENSING OF TECHNOLOGY, KNOW-HOW AND OTHER INTELLECTUAL PROPERTY and
(vi) transactions permitted under Section 5.01.
(ii) The definition of a "Continuing Director" is amended by adding the
underscored and bold language below.
"Continuing Director" of any Person means, as of the date of
determination, any Person who (i) was a member of the Board of
Directors of such Person on the date of the Indenture; (ii) was
nominated for election or elected to the Board of Directors of such
Person with the affirmative vote of a majority of the Continuing
Directors of such Person who were members of such Board of Directors at
the time of such nomination or election; or (iii) was nominated or
elected to the Board of Directors in accordance with the provisions of
the Stockholders Agreement dated as of September 25, 1996, as amended
by the First Amendment to the Stockholders Agreement dated as of August
29, 1997, as such agreement may be further amended or supplemented from
time to time; OR (IV) WAS NOMINATED OR ELECTED TO THE BOARD OF
DIRECTORS IN ACCORDANCE WITH THE PROVISIONS OF THE AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28, 2000, AS SUCH AGREEMENT
MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME.
(iii) Section 4.11(a) of the Indenture is amended by adding the
underscored and bold language below and deleting the crossed out language below:
SECTION 4.11. LIMITATION ON AFFILIATE TRANSACTIONS.
(a) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into or
conduct any transaction or series of related transactions for(the
purchase, sale, lease or exchange of any property or the rendering
of any service) with or for the benefit of any Affiliate of the
Company, other than a Wholly-Owned Subsidiary (an "Affiliate
Transaction") unless: (i) the terms of such Affiliate Transaction are
no less favorable to the Company or such Restricted Subsidiary, as the
case may be, than those that could be obtained at the time of such
transaction in arm's length dealings with a Person who is not such an
Affiliate; (ii) in the event such Affiliate Transaction involves an
aggregate amount in excess of $100,000, the terms of such transaction
have been approved by a majority of the members of the Board of
Directors of the Company and by a majority of the disinterested members
of such Board, if any (and such majority or majorities, as the case may
be, determines that such Affiliate Transaction satisfies the criteria
in (i) above); and (iii) in the event such Affiliate Transaction
involves an aggregate amount in excess of $10,000,000, the Company has
received a written opinion from an independent investment banking firm
of nationally recognized standing that such Affiliate Transaction is
fair to the Company or such Restricted Subsidiary, as the case may be,
from a financial point of view; provided, however, that (X) advertising
contracts entered into in the ordinary course of business between the
Company and ANY OF ITS AFFILIATES AND (Y) LICENSING AND OTHER
COMMERCIAL ARRANGEMENTS BETWEEN THE COMPANY AND XXXX ELEVATOR COMPANY
AND/OR ITS AFFILIATES need only be approved in the manner contemplated
in (A)(I) AND (a)(ii) above.
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(b) The foregoing paragraph (a) shall not apply to (i) any
issuance of securities, or other payments, awards or grants in cash,
securities or otherwise pursuant to, or the funding of, employment
arrangements, or any stock options and stock ownership plans for the
benefit of employees, officers and directors, consultants and advisors
approved by the Board of Directors of the Company, (ii) loans or
advances to employees in the ordinary course of business of the Company
or any of its Restricted Subsidiaries in aggregate amount outstanding
not to exceed $100,000 at any time, (iii) any transaction between
Wholly-Owned Subsidiaries, (iv) indemnification agreements with, and
the payment of fees and indemnities to, directors, officers and
employees of the Company and its Restricted Subsidiaries, in each case
in the ordinary course of business, (v) transactions pursuant to
agreements in existence on the Issue Date which are (x) described in
the Offering Memorandum or (y) otherwise, in the aggregate, immaterial
to the Company and its Restricted Subsidiaries taken as a whole, (vi)
any employment, non-competition or confidentiality agreements entered
into by the Company or any of its Restricted Subsidiaries with its
employees in the ordinary course of business, (vii) THE AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT DATED AS OF JANUARY 28, 2000 AMONG THE
COMPANY AND CERTAIN OF ITS SECURITY HOLDERS, THE AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT DATED AS OF JANUARY 28, 2000 AMONG THE
COMPANY AND CERTAIN OF ITS SECURITY HOLDERS, THE WARRANT AGREEMENT
BETWEEN THE COMPANY AND UNITED STATES TRUST COMPANY OF NEW YORK DATED
AS OF FEBRUARY 18, 1998, AND THE COMMON STOCK REGISTRATION RIGHTS AND
STOCKHOLDERS AGREEMENT BETWEEN THE COMPANY AND NATWEST CAPITAL MARKETS
LIMITED, AS INITIAL PURCHASER, IN EACH CASE AS THE SAME MAY BE AMENDED
FROM TIME TO TIME and (viii) the issuance of Capital Stock of the
Company (other than Disqualified Stock).
SECTION 3. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 4. Headings. The headings of this Amendment are for the
purposes of reference only and shall not affect the construction of, or
be taken into consideration in interpreting, this Amendment.
SECTION 5. Counterparts. This Amendment may be executed in
counterparts, each of which shall be deemed an original, but which
taken together shall constitute one agreement.
SECTION 6. The Trustee. The Trustee is not responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Amendment or for or in respect of the recitals contained herein, all of which
are made solely by the Company.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment
to be duly executed as of the date and year first written above.
NEXT GENERATION NETWORK, INC.
By:______________________________
Name:____________________________
Title:___________________________
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee
By:______________________________
Name:____________________________
Title:___________________________
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