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EXHIBIT 4.5
THIS SUPPLEMENTAL INDENTURE, dated as of May 28, 1996, is between
PRONET INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), and FIRST INTERSTATE BANK OF TEXAS, N.A.,
acting as Trustee under the Existing Indenture referred to below (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company duly authorized the execution and delivery
of an indenture dated as of June 15, 1995 (the "Existing Indenture") to provide
for the issuance of its 11-7/8% Senior Subordinated Notes due 2005 (the
"Securities"), up to principal amount of $100,000,000;
WHEREAS, the Company has duly authorized the execution and
delivery of an indenture (the "New Indenture") to provide for the issuance of
Senior Subordinated Notes due 2006 up to principal amount of $100,000,000;
WHEREAS, the Company has duly authorized the execution and
delivery of this Supplemental Indenture deleting certain definitions and
amending certain covenants and events of default so as to make the terms and
conditions of the Existing Indenture conform to the terms and conditions of the
New Indenture;
WHEREAS, Section 9.2 of the Indenture authorizes the Company and
the Trustee, in accordance with the terms thereof, to enter into a supplement to
the Existing Indenture with the consent of the holders of the Securities;
WHEREAS, the Company has requested the Trustee, and the Trustee
has agreed, to join in the execution of this Supplemental Indenture pursuant to
Section 9.2 of the Existing Indenture on the terms and subject to the conditions
set forth below; and
WHEREAS, all acts and things necessary to make this Supplemental
Indenture a valid agreement of the Company according to its terms have been done
and performed, and the execution and delivery of this Supplemental Indenture
have in all respects been duly authorized.
In consideration of the premises, of the purchase and acceptance
of the Securities by the Holders thereof and of the sum of one dollar duly paid
to it by the Trustee at the execution and delivery of these presents, the
receipt whereof is hereby acknowledged, the Company covenants and agrees with
the Trustee for the equal and proportionate benefit of the respective Holders
from time to time of the Securities or of any series thereof, as follows:
SECTION 1. DEFINED TERMS
1.1 Defined Terms. Capitalized terms herein, not otherwise
defined, shall have the meanings given them in the Existing Indenture.
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SECTION 2. AMENDMENTS
2.1 Amendment to Section 1.1 of the Indenture. Section 1.1 of
the Existing Indenture is hereby amended by deleting the definitions of
"Capital Expenditures" and "Free Cash Flow" in their entirety.
2.2 Amendment to Section 4.9 of the Existing Indenture.
Section 4.9 of the Existing Indenture is hereby amended by (a) deleting the
first two paragraphs of such Section in their entirety and (b) inserting in
lieu thereof the following:
"The Company may not, and may not permit its Subsidiaries
to, directly or indirectly, create, incur, assume, become liable
for or guarantee the payment of (collectively, "incur") any Debt
(including Acquired Debt), provided, however, that the Company
may incur Debt (including Acquired Debt) and may permit a
Subsidiary to incur Acquired Debt if immediately thereafter the
ratio of the aggregate principal amount of Debt of the Company
and its Subsidiaries outstanding as of the most recent available
quarterly or annual balance sheet to the product of four times
Pro Forma Consolidated Cash Flow for the preceding full fiscal
quarter, determined on a pro forma basis as if any such Debt had
been incurred and the proceeds thereof had been applied at the
beginning of such fiscal quarter, would be less than 6.0 to 1.
Notwithstanding the foregoing, the Company may, and may
permit its Subsidiaries to, incur the following without regard to
the foregoing limitation and without duplication: (i) Debt of the
Company under the Credit Facility in an aggregate principal
amount not to exceed $125 million at any one time outstanding;
(ii) Guarantees by Subsidiaries of Debt of the Company under the
Credit Facility; (iii) Debt of the Company evidenced by the
Securities; (iv) Debt owed by the Company to any wholly owned
Subsidiary of the Company or owed by any wholly owned Subsidiary
of the Company to the Company or any other wholly owned
Subsidiary of the Company (but only so long as such Debt is held
by the Company or such wholly owned Subsidiary); (v) Debt
outstanding on the date the Securities are originally issued
under the indenture; (vi) Permitted Deferred Payments; (vii) Debt
arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided
that such Debt is extinguished within two Business Days of its
occurrence; (viii) Refinancing Debt; and (ix) renewals of
Guarantees permitted by clause (ii) above."
2.3 Amendment to Section 4.11 of the Existing Indenture.
Section 4.11 of the Existing Indenture is hereby amended by (a) deleting
Section 4.11 in its entirety and (b) inserting in lieu thereof the following:
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"Section 4.11. Limitations on Restricted Payments. The
Company may not, and may not permit any of its Subsidiaries to,
(i) directly or indirectly, declare or pay any dividend, or make
any distribution, in respect of its Capital Stock or to the
holders thereof (including pursuant to a merger or consolidation
of the Company, but excluding any dividends or distributions
payable solely in shares of its Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to
acquire its Capital Stock (other than Redeemable Stock)), other
than dividends or distributions payable to the Company or any
wholly owned Subsidiary of the Company, or by a Subsidiary of the
Company to a holder who is not the Company or a wholly owned
Subsidiary of the Company, provided that such dividend or
distribution is paid to all of the holders of the Capital Stock
of the payor of such dividend, pro rata in accordance with their
respective interests, (ii) directly or indirectly, purchase,
redeem or otherwise acquire or retire for value (a) any Capital
Stock of the Company or any Related Person or (b) any options,
warrants, or rights to purchase or acquire shares of Capital
Stock of the Company or any Related Person, (iii) make any loan,
advance, capital contribution to or investment in, or payment on
a Guarantee of any obligation of any Affiliate or any Related
Person (other than the Company or a Subsidiary of the Company),
inclusive of any loan, advance, capital contribution to or
investment in, or payment on a Guarantee of any obligation of any
Affiliate or Related Person by the Company pursuant to a
transaction whereby any such Affiliate or Related Person becomes
an Affiliate or Related Person, but exclusive of any loan,
advance, capital contribution to or investment in, or payment on
a Guarantee of any obligation of, any Person by the Company or a
Subsidiary of the Company pursuant to a transaction whereby any
such Person becomes a Subsidiary of the Company, in each case
unless otherwise prohibited by the terms of this Indenture, or
(iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or
sinking fund payment (other than with the proceeds of Refinancing
Debt), Debt of the Company which is subordinate in right of
payment to the Securities (each of clauses (i) through (iv) being
a "Restricted Payment"), if at the time of such Restricted
Payment, or after giving effect thereto: (1) an Event of Default,
or an event that with the lapse of time or the giving of notice,
or both, would constitute an Event of Default, shall have
occurred and be continuing, (2) the Company could not incur $1.00
of additional Debt under the first paragraph of Section 4.9
hereof, or (3) the aggregate of all Restricted Payments from the
date of the Indenture exceeds the sum of: (a) the remainder of
(x) 100% of cumulative Consolidated Cash Flow after June 30, 1996
through the last day of the last full fiscal quarter immediately
preceding such Restricted Payment for which quarterly or annual
financial statements of the Company are available minus (y) the
product of 2.0 times cumulative Consolidated Fixed Charges after
June 30, 1996 through the last day of the last full fiscal
quarter immediately preceding such Restricted Payment for which
quarterly or annual financial statements of the Company are
available; and
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(b) 100% of the aggregate net proceeds from the issuance, after
June 30, 1996, of Capital Stock (other than Redeemable Stock) of
the Company and options, warrants or other rights on Capital
Stock (other than Redeemable Stock) of the Company and the
principal amount of Debt of the Company that has been converted,
after June 30, 1996, into Capital Stock (other than Redeemable
Stock) of the Company.
The foregoing provision will not be violated by reason of
(i) the payment of any dividend within 60 days after declaration
thereof if at the declaration date such payment would have
complied with the foregoing provision; (ii) the purchase,
redemption, acquisition or retirement of any shares of Capital
Stock of the Company in exchange for, or out of the net proceeds
of the substantially concurrent sale (other than to a Subsidiary
of the Company) of, other shares of Capital Stock (other than
Redeemable Stock) of the Company; (iii) the purchase, redemption,
defeasance or other acquisition or retirement of Debt of the
Company which is subordinate in right of payment to the
Securities, in exchange for, by conversion into, or out of the
net proceeds of, a substantially concurrent (a) issue or sale
(other than to a Subsidiary) of Capital Stock (other than
Redeemable Stock) of the Company, or (b) incurrence of
Refinancing Debt with respect to such subordinated Debt; or (iv)
investments in telecommunications businesses in an aggregate
amount not exceeding $20.0 million; provided that no Default or
Event of Default shall have occurred and be continuing at the
time, or shall occur as a result, of any of the actions
contemplated in clauses (ii) and (iii) above. Any payment made
pursuant to clauses (i) through (iii) (other than subclause
(iii)(b)) of this paragraph shall be a Restricted Payment for
purposes of calculating aggregate Restricted Payments under the
preceding paragraph."
2.4 Amendment to Section 6.1 of the Existing Indenture.
Section 6.1 of the Existing Indenture is hereby amended by (a)
deleting paragraphs (g) and (h) of such Section in their entirety
and (b) inserting in lieu thereof the following:
"(g) final judgment or judgments for the payment of money
which in the aggregate at any one time exceeds $5 million shall
be rendered against the Company or any Subsidiary of the Company
by a court of competent jurisdiction and shall not have been
vacated, discharged, satisfied or stayed within 60 days after
such judgment becomes final and nonappealable; or
(h) a default shall have occurred under any bonds,
debentures, notes or other evidences of indebtedness of the
Company or any Subsidiary of the Company or under any mortgages,
indentures or instruments under which there may be issued or by
which there may be secured or evidenced any indebtedness by the
Company or any Subsidiary of the Company, in any case with a
principal amount of at least $5 million outstanding, and such
indebtedness already is due and payable
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in full or such default has resulted in the acceleration of the
maturity of such indebtedness, in each case after a period of
five days during which period such default shall not have been
cured or such acceleration shall not have been rescinded."
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IN WITNESS WHEREOF, ProNet Inc. has caused this Supplemental
Indenture to be signed, and acknowledged by its President, its Chairman of the
Board, one of its Vice Presidents, its Chief Financial Officer or its Treasurer,
and its corporate seal to be affixed hereunto, and the same to be attested by
its Secretary, its Assistant Secretary or one of its Attesting Secretaries, and
First Interstate Bank of Texas, N.A., as Trustee, has caused this Supplemental
Indenture to be signed and acknowledged by one of its authorized officers, and
its corporate seal to be affixed hereunto, and the same to be attested by one of
its authorized officers, as of the day and year first above written.
PRONET INC.
By:
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Vice President
Attest:
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Assistant Secretary
FIRST INTERSTATE BANK OF TEXAS,
N.A., as Trustee
By:
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Xxxxxxx X. Xxxxxx
Assistant Vice President
Corporate Trust Officer
Attest:
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Xxxxxxxxx Faith
Assistant Vice President
Corporate Trust Officer
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