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EXHIBIT 4.11
EXECUTION COPY
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AMERICAN COMMUNICATIONS SERVICES, INC.
$120,000,000
12 3/4% SENIOR DISCOUNT NOTES DUE 2006
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SUPPLEMENTAL INDENTURE
Dated as of January 13, 1997
to
INDENTURE
Dated as of March 26, 1996
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THE CHASE MANHATTAN BANK,
Trustee
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THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"),
dated as of January 13, 1997, by and between AMERICAN COMMUNICATIONS SERVICES,
INC., a Delaware corporation (the "Company"), having its principal office at
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000,
and THE CHASE MANHATTAN BANK (formerly known as Chemical Bank), as trustee (the
"Trustee") under the Indenture (as defined below), having its Corporate Trust
Office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000. Capitalized
terms used but not defined herein shall have the meanings assigned to such
terms in the Indenture.
WHEREAS, the Company and the Trustee previously duly executed,
and the Company duly delivered to the Trustee, an Indenture dated as of March
26, 1996 (the "Indenture"), relating to $120,000,000 aggregate principal amount
at maturity of the Company's 12 3/4% Senior Discount Notes Due 2006 (the
"Notes");
WHEREAS, pursuant to Section 9.02 of the Indenture, the
Company and the Trustee have obtained the consent of the Holders of not less
than a majority in principal amount of the outstanding Notes to the amendments
made hereby;
WHEREAS, the Board of Directors of the Company has authorized
the execution of this Supplemental Indenture and its delivery to the Trustee;
WHEREAS, the Company has delivered an Officers' Certificate
and Opinion of Counsel to the Trustee pursuant to Section 9.07 of the
Indenture; and
WHEREAS, all other actions necessary to make this Supplemental
Indenture a legal, valid and binding obligation of the parties hereto in
accordance with its terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Trustee hereby
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mutually covenant and agree for the equal and proportionate benefit of all
Holders of the Notes as follows:
ARTICLE I
AMENDMENTS
Upon execution of this Supplemental Indenture, the terms of
the Notes and the Indenture shall be amended as follows:
SECTION 1.1. (a) Section 1.01 of the Indenture shall
be amended by striking the word "and" at the end of clause (viii) in the
definition of "Permitted Investments", by renumbering the final clause (ix) of
such definition as clause (x) and by inserting a new clause (ix) on the
immediately preceding line as follows:
"(ix) Investments by the Company or a Restricted Subsidiary in
or in respect of a Person to the extent the consideration for such
Investment consists of shares of Qualified Stock of the Company; and"
(b) Section 1.01 of the Indenture shall further be
amended by renumbering clauses (xiv) and (xv) of the definition of "Permitted
Liens" as clauses (xv) and (xvi), respectively, and by inserting the following
new clause (xiv) on the line immediately preceding new clause (xv):
"(xiv) Liens on Property or assets of a Person existing prior
to the time such Person is acquired by the Company as a result of (a)
an Investment described in clause (ix) of the definition of "Permitted
Investments" herein or (b) an Investment described in clause (vii) of
Section 4.13(b) hereof; provided that such Liens were in existence
prior to the contemplation of such Investment and do not secure any
Property or assets of the Company or any of its Subsidiaries other
than the Property or assets subject to the Liens prior to such
Investment;"
(c) Section 1.01 of the Indenture shall further be
amended by striking the following definitions in their entirety: "Joint
Venture", "Lit Cities Amount", "New Financing Amount" and "Qualified Joint
Venture".
SECTION 1.2. Section 4.09(b) of the Indenture shall be
amended by renumbering clauses (xi) and (xii) as clauses (xii) and (xiii),
respectively, and by inserting the following new clause (xi) on the line
immediately preceding new clause (xii):
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"(xi) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness of any Person which incurrence resulted
directly from an Investment described in clause (ix) of the definition
of "Permitted Investments" in Section 1.01 hereof; provided that, (x)
immediately after giving effect to such Investment on a pro forma
basis (and treating any Indebtedness which becomes, or is anticipated
to become, an obligation of the Company or any Restricted Subsidiary
as a result of such Investment as having been incurred by the Company
or such Restricted Subsidiary at the time of such Investment), the
Company would (A) be permitted to incur $1.00 of additional
Indebtedness under Section 4.09(a) hereof or (B) have a Debt to EBITDA
Ratio which is equal to or not worse than the Debt to EBITDA Ratio of
the Company immediately prior to such Investment or (y) such
incurrence is otherwise permitted; provided further that Indebtedness
incurred by the Company and its Restricted Subsidiaries under this
clause (xi) as a result of any such Investment does not exceed 50
percent of the Fair Market Value of the Qualified Stock used as
consideration in such Investment; provided further that the aggregate
principal amount of Indebtedness incurred under this clause (xi) does
not exceed $50,000,000;"
SECTION 1.3. Section 4.13(b) of the Indenture shall be
amended by striking existing clauses (vii) and (viii) in their entirety and by
inserting new clauses (vii) and (viii) as follows:
"(vii) making Investments in an aggregate amount not to exceed
$20,000,000 in joint ventures or other risk sharing arrangements
(which may include partnerships, limited liability companies,
corporations or other arrangements) (each a "Joint Venture Entity")
the purpose of which is to engage in the same or complementary lines
of business as the Company or a Restricted Subsidiary or in businesses
consistent with the fundamental nature of the operating business of
the Company or a Restricted Subsidiary; provided the management and
operations of any such Joint Venture Entity are controlled by the
Company pursuant to (i) the charter documents of such Joint Venture
Entity, or (ii) an agreement between or among the holders of the
Voting Stock of such Joint Venture Entity, or (iii) a management
agreement of a minimum duration of three or more years between the
Company and such Joint Venture Entity;"
"(viii) permitting a Restricted Subsidiary which became a
Restricted Subsidiary as a result of an
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Investment by the Company or a Restricted Subsidiary described in
clause (vii) of this Section 4.13(b) to declare or pay any dividend or
distribution on any Capital Stock of such Subsidiary to all holders of
Capital Stock of such Subsidiary on a pro rata basis; and"
SECTION 1.4. (a) Section 4.15 of the Indenture shall
be amended by striking the language of clause (f) thereof up to subclause (B)
thereof and by inserting the following in its place:
"(f) Capital Stock of a Person which became or will become a
Restricted Subsidiary as a result of an Investment by the Company or a
Restricted Subsidiary described in clause (vii) of Section 4.13(b)
hereof, provided that"
(b) Section 4.15(f) of the Indenture shall further be
amended by re-lettering subclauses (B), (C) and (D) thereof as subclauses (A),
(B) and (C), respectively, by inserting the word "and" before new subclause (C)
and by striking the language beginning "and (E)" through the semi-colon at the
end of subclause (E).
SECTION 1.5. Section 4.17 of the Indenture shall be amended
by striking the period at the end of the first sentence of clause (b) thereof
and by inserting in its place the following:
"; provided, however, that the foregoing restriction shall not
apply to a Person which becomes a Restricted Subsidiary as a result of
(a) an Investment described in clause (ix) of the definition of
"Permitted Investments" in Section 1.01 hereof or (b) an Investment
described in clause (vii) of Section 4.13(b) hereof."
ARTICLE II
MISCELLANEOUS
SECTION 2.1. For all purposes of this Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (A) the terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture and (B)
the words "herein," "hereof" and "hereby" and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a
whole and not any particular Article, Section or other subdivision.
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SECTION 2.2. Upon execution of this Supplemental Indenture,
the Indenture shall be modified in accordance herewith, but 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.
SECTION 2.3. Upon execution, this Supplemental Indenture
shall form a part of the Indenture and the Supplemental Indenture and the
Indenture shall be read, taken and construed as one and the same instrument for
all purposes, and every holder of Notes heretofore or hereafter authenticated
and delivered under the Indenture shall be bound hereby.
SECTION 2.4. This Supplemental Indenture shall become
effective as of the date first above written.
SECTION 2.5. The Trustee accepts the amendment to the
Indenture effected by this Supplemental Indenture and agrees to execute the
trust created by the Indenture, as hereby amended, but only upon the terms and
conditions set forth in the Indenture, as hereby amended, including the terms
and provisions defining and limiting the liabilities and responsibilities of
the Trustee, which terms and provisions shall in like manner define and limit
the Trustee's liabilities in the performance of the trust created by the
Indenture, as hereby amended. Without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the
recitals of fact herein contained which shall be taken as the statements of the
Company and makes no representations as to the validity or sufficiency of this
Supplemental Indenture, except as to the due and valid execution hereof by the
Trustee, and shall incur no liability or responsibility in respect of the
validity thereof. The Trustee's execution of this Supplemental Indenture
should not be construed to be an approval or disapproval of the advisability of
the amendments to the Indenture provided herein.
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SECTION 2.6. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY IN SAID STATE.
SECTION 2.7. This Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed to
be an original, and all of such counterparts shall together constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and duly attested, all as of the day and year
first above written.
AMERICAN COMMUNICATIONS
SERVICES, INC.
By
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Name:
Title:
[Corporate Seal]
Attest:
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THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank),
as Trustee
By
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Name:
Title:
[Corporate Seal]
Attest:
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STATE OF )
) SS.:
COUNTY OF )
On the ___ day of ________, 1997, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of American Communications Services, Inc.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said corporation, and that he signed his name
thereto by like authority.
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Notary Public
State of
My commission expires / /
[Seal]
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STATE OF )
) SS.:
COUNTY OF )
On the ___ day of ________, 1997, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he is _________________ of The Chase Manhattan Bank, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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Notary Public
State of
My commission expires / /
[Seal]
