SECOND SUPPLEMENTAL INDENTURE
Exhibit 2.3
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this “Supplemental Indenture”), dated as of
January 25, 2008, among Sierra Comunicaciones Globales, S.A. de C.V. (the “Guaranteeing
Subsidiary”), a direct subsidiary of Maxcom Telecomunicaciones, S.A.B. de C.V., a limited
liability public stock corporation (sociedad anónima bursátil de capital variable), organized under
the laws of Mexico (the “Company”), the Company, the existing Guarantors set forth on the
signature page hereto (the “Existing Guarantors”) and Deutsche Bank Trust Company Americas,
a New York banking corporation, as trustee under the Indenture referred to below (the
“Trustee”).
W I T N E S S E T H
WHEREAS, the Company and the Existing Guarantors have heretofore executed and delivered to the
Trustee an indenture (the “Base Indenture”), dated as of December 20, 2006, between the
Company and the Trustee, as amended by a first supplemental indenture (the “First Supplemental
Indenture”), dated as of September 5, 2007, among the Company, the Guarantors named therein and
the Trustee (together with the Base Indenture, the “Indenture”) providing for the issuance
of 11% Senior Notes due 2014 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Note
Guarantee”);
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture; and
WHEREAS, pursuant to Section 4.16 of the Indenture, the Trustee, the Company and the
other Guarantors are authorized and required 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 Guaranteeing Subsidiary and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
2. Agreement to be Bound; Guarantee. The Guaranteeing Subsidiary hereby provides an
unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee
and in the Indenture including but not limited to Article 11 thereof.
3. No Recourse Against Others. No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any
Note Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a
Note waives and releases all such liability. The waiver and release are part of the consideration
for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal
securities laws if it is the view of the SEC that such a waiver is against public policy.
1
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 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. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the
recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and
the Company.
* * * * *
2
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed and attested, all as of the date first above written.
Guaranteeing Subsidiary: | ||||||
SIERRA COMUNICACIONES GLOBALES, S.A. DE C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
Company: | ||||||
MAXCOM TELECOMUNICACIONES, S.A.B de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
Existing Guarantors: | ||||||
MAXCOM SERVICIOS ADMINISTRATIVOS, S.A. de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
OUTSOURCING OPERADORA de PERSONAL, S.A. de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
TÉCNICOS ESPECIALIZADOS en TELECOMUNICACIONES, S.A. de C.V. |
||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary |
Signature Page 1 to Second Supplemental Indenture
CORPORATIVO en TELECOMUNICACIONES, S.A. de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
MAXCOM SF, S.A. de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
MAXCOM TV, S.A. de C.V. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary | |||||
MAXCOM USA, Inc. | ||||||
By: Name: |
/s/ Xxxxxxx Xxxxxxx I.
|
|||||
Title: | Secretary |
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By: Name: |
/s/ Xxxxx Xxxxxxx
|
|||
Title:
|
Vice President | |||
By: Name: |
/s/ Xxxxx Xxxxxxxxxxxx
|
|||
Title:
|
Assistant Vice President |
Signature Page 2 to Second Supplemental Indenture