tw telecom holdings inc., Company tw telecom inc., Parent Company THESUBSIDIARY GUARANTORS PARTIES HERETO And WELLS FARGO BANK, NATIONAL ASSOCIATION, Trustee FIRSTSUPPLEMENTAL INDENTURE Dated as of November 20, 2013 TO INDENTURE Dated as of August 26, 2013 5.375% SeniorNotes due 2022
Exhibit 4.2
tw telecom holdings inc.,
Company
tw telecom inc.,
Parent Company
THE SUBSIDIARY GUARANTORS PARTIES HERETO
And
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 20, 2013
TO
INDENTURE
Dated as of August 26, 2013
5.375% Senior Notes due 2022
This FIRST SUPPLEMENTAL INDENTURE is dated as of this 20th day of November, 2013 (the First Supplemental Indenture), among tw telecom holdings inc., a Delaware corporation (the Company), tw telecom inc., a Delaware corporation (the Parent Company), the Subsidiary Guarantors (as defined in the Indenture) parties hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the Trustee).
WHEREAS, the Company, the Parent Company, the Subsidiary Guarantors and the Trustee entered into an Indenture dated as of August 26, 2013 (the Indenture) for the benefit of each other and for the equal and ratable benefit of the Holders of the 5.375% Senior Notes due 2022 initially issued on August 26, 2013 (the Notes). Capitalized terms used herein without definition have the meanings ascribed to such terms in the Indenture.
WHEREAS, Section 10.03 of the Indenture requires the Parent Company and the Company to obtain regulatory approvals required in order for tw telecom of Hawaii l.p. and tw telecom of new jersey l.p. (collectively, the Prospective Subsidiary Guarantors) to grant a Subsidiary Guarantee of payment of the Notes and to execute and deliver a supplemental indenture to the Indenture providing for the issuance of Subsidiary Guarantees.
WHEREAS, the foregoing amendment is permitted under Section 9.01(6) of the Indenture.
WHEREAS, the Company, the Parent Company and the Subsidiary Guarantors desire and have requested the Trustee to join with it in the execution and delivery of this First Supplemental Indenture, and all things necessary to make this First Supplemental Indenture a legal, valid and binding agreement of the Company, the Subsidiary Guarantors and the Trustee in accordance with its terms have been done.
NOW, THEREFORE, in consideration of the addition of the Prospective Subsidiary Guarantors named below as Subsidiary Guarantors hereunder, the Company, the Parent Company, the Subsidiary Guarantors and the Prospective Subsidiary Guarantors named below covenant and agree with the Trustee as follows:
1. The following Prospective Subsidiary Guarantors hereby agree to become Subsidiary Guarantors under the Indenture as of the date hereof, to deliver their Note Guarantee and to be bound by the terms of the Indenture applicable to Guarantors, including but not limited to Article 10 thereof, by execution and delivery of this First Supplemental Indenture:
tw telecom of hawaii l.p.
tw telecom of new jersey l.p.
2. The Indenture, as supplemented and amended by this First Supplemental Indenture and all other indentures supplemental thereto, is in all respects ratified, confirmed and preserved, and the Indenture, this First Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
3. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this First Supplemental Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
4. All covenants and agreements in this First Supplemental Indenture by the Company, the Subsidiary Guarantors and the Prospective Subsidiary Guarantors shall bind their respective successors and assigns, whether so expressed or not.
5. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
6. Nothing in this First Supplemental Indenture, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Holders any benefit or any legal or equitable right, remedy or claim under this First Supplemental Indenture.
7. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, THE GUARANTORS AND THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
8. All terms used in this First Supplemental Indenture not otherwise defined herein that are defined in the Indenture shall have the meanings set forth therein.
9. This First Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
10. The provisions of this First Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with Sections 9.01 and 9.05 of the Indenture.
11. The Trustee accepts the supplements to the Indenture effected by this First Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby supplemented, but only upon the terms and conditions set forth in the Indenture.
12. The recitals contained herein shall be taken as statements of the Company, the Parent Company and the Subsidiary Guarantors, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of the Indenture, this First Supplemental Indenture or of the Notes.
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IN WITNESS WHEREOF, the parties have executed this First Supplemental Indenture as of the date first written above.
tw telecom holdings inc. | ||
by: | /s/ Tina A. Davis | |
Name: Tina A. Davis | ||
Title: Senior Vice President | ||
and General Counsel | ||
tw telecom inc. | ||
by: | /s/ Tina A. Davis | |
Name: Tina A. Davis | ||
Title: Senior Vice President | ||
and General Counsel | ||
tw telecom holdings II llc tw telecom of arizona llc tw telecom of colorado llc tw telecom of idaho llc tw telecom of illinois llc tw telecom of iowa llc tw telecom of minnesota llc tw telecom of new mexico llc tw telecom of ohio llc tw telecom of oregon llc tw telecom of south carolina llc tw telecom of tennessee llc tw telecom of texas llc tw telecom of utah llc tw telecom of washington llc tw telecom data services llc tw telecom management co. llc | ||
by: | tw telecom holdings inc., its sole member | |
tw telecom of california l.p. tw telecom of florida l.p. tw telecom of georgia l.p. tw telecom of indiana l.p. tw telecom of new york l.p. tw telecom of north carolina l.p. |
tw telecom of wisconsin l.p. tw telecom l.p. | ||
by: | tw telecom holdings inc., its general partner | |
by: | /s/ Tina A. Davis | |
Name: Tina A. Davis | ||
Title: Senior Vice President | ||
and General Counsel | ||
tw telecom of alabama llc tw telecom of arkansas llc tw telecom of d.c. llc tw telecom of kansas city llc tw telecom of kentucky llc tw telecom of louisiana llc tw telecom of maryland llc tw telecom of mississippi llc tw telecom of nevada llc tw telecom of oklahoma llc tw telecom of virginia llc | ||
by: | tw telecom management co. llc, its sole member | |
by: | /s/ Tina A. Davis | |
Name: Tina A. Davis | ||
Title: Senior Vice President | ||
and General Counsel | ||
PROSPECTIVE SUBSIDIARY GUARANTORS | ||
tw telecom of hawaii l.p. tw telecom of new jersey l.p. | ||
by: | tw telecom holdings inc., its general partner | |
by: | /s/ Tina A. Davis | |
Name: Tina A. Davis | ||
Title: Senior Vice President | ||
and General Counsel |
WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE | ||
by: | /s/ Gregory S. Clarke | |
Name: Gregory S. Clarke | ||
Title: Vice President |