1
Exhibit 99.3
FORM OF SUPPLEMENTAL INDENTURE
21ST CENTURY TELECOM GROUP, INC.,
Issuer
13-3/4% Subordinated Exchange Debentures Due 2010
---------------------
FIRST SUPPLEMENTAL INDENTURE
---------------------
Dated as of ____ __, 2000
THE BANK OF NEW YORK,
Trustee
2
This FIRST SUPPLEMENTAL INDENTURE, dated as of _____ ___, 2000, is
between 21ST CENTURY TELECOM GROUP, INC., an Illinois corporation (the
"Company"), and THE BANK OF NEW YORK (Formerly IBJ XXXXXXXXX BANK AND TRUST
COMPANY), a New York banking corporation (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated
as of February 15, 1998 (the "Indenture"), pursuant to which the Company has
originally issued its 13-3/4% Subordinated Exchange Debentures Due 2010 (the
"Securities");
WHEREAS, Section 9.02 of the Indenture provides that, subject to
certain conditions stated therein, the Company and the Trustee may amend the
Indenture, with the written consent of the Holders of a majority in principal
amount of the Securities then outstanding (the "Requisite Consents");
WHEREAS, the Company deems it desirable to make the necessary
amendments to the Indenture; and
WHEREAS, the Company has determined that all things necessary to make
this First Supplemental Indenture a valid indenture and agreement according to
its terms, including without limitation the receipt of the Requisite Consents,
have been done, and the Company has delivered to the Trustee an Officer's
Certificate and Opinion of Counsel stating that this First Supplemental
Indenture is authorized or permitted under the Indenture.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Trustee agree
as follows:
ARTICLE ONE
AMENDMENTS TO INDENTURE
1.1 AMENDMENTS TO ARTICLE 1
A. Section 1.01 of the Indenture is hereby amended with
respect to the definition of "Affiliate" by deleting such definition and
substituting the following therefor:
"Affiliate" of any specified Person means any other
Person, directly or indirectly, controlling or controlled by or under
direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any
Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
B. Section 1.01 of the Indenture is hereby amended with
respect to the definition of "Indebtedness" by deleting subsection (v) of such
definition and substituting the following therefor:
3
(v) with respect to any Subsidiary of such Person
(including any Restricted Subsidiary), the liquidation
preference with respect to any Preferred Stock (but excluding
any accrued dividends);
C. Section 1.01 of the Indenture is hereby amended with
respect to the definition of "Unrestricted Subsidiary" by deleting such
definition and substituting the following therefor:
"Unrestricted Subsidiary" means (i) any
Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of
Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may
designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary or any of its Subsidiaries
owns any Capital Stock or Indebtedness of, or holds any Lien
on any property of, the Company or any other Subsidiary of the
Company that is not a Subsidiary of the Subsidiary to be so
designated. The Board of Directors may designate any
Unrestricted Subsidiary to be a Restricted Subsidiary;
provided, however, that immediately after giving effect to
such designation no Default shall have occurred and be
continuing. Any such designation by the Board of Directors
shall be evidenced to the Trustee by promptly filing with the
Trustee a copy of the resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing
provisions.
D. Section 1.01 of the Indenture is hereby amended by deleting
the following definitions in their entirety:
"Additional Assets"
"Annualized EBITDA"
"Area 1 Franchise"
"Asset Disposition"
"Average Life"
"Change of Control"
- 3 -
4
"Consolidated Current Liabilities"
"Consolidated Interest Expense"
"Consolidated Leverage Ratio"
"Consolidated Net Income"
"Consolidated Net Tangible Assets"
"Consolidated Net Worth"
"Credit Agreement"
"EBITDA"
"Equity Offering"
"Existing Restricted Subsidiary"
"Investment"
"Market Assets"
"Market Swap"
"Net Available Cash"
"Net Cash Proceeds"
"Permitted Investment"
"Qualified Preferred Stock"
"Refinance"
"Refinancing Indebtedness"
"Related Business"
- 4 -
5
"Restricted Payments"
"Subordinated Obligation"
"Temporary Cash Investment"
C. Section 1.02 of the Indenture is hereby amended by deleting
the following definitions in their entirety:
"Affiliate Transaction"
"Change of Control Offer"
"Offer Amount"
"Offer Period"
"Purchase Date"
"Successor Company"
D. Section 1.04(6) of the Indenture is hereby deleted in its
entirety.
E. Section 1.04(8) of the Indenture is hereby deleted in its
entirety:
1.2 AMENDMENTS TO ARTICLE 4
A. Section 4.02 of the Indenture is hereby deleted in its
entirety.
B. Section 4.03 of the Indenture is hereby deleted in its
entirety.
C. Section 4.04 of the Indenture is hereby deleted in its
entirety.
D. Section 4.05 of the Indenture is hereby deleted in its
entirety.
E. Section 4.06 of the Indenture is hereby deleted in its
entirety.
F. Section 4.07 of the Indenture is hereby deleted in its
entirety.
G. Section 4.08 of the Indenture is hereby deleted in its
entirety.
H. Section 4.09 of the Indenture is hereby deleted in its
entirety.
I. Section 4.10 of the Indenture is hereby deleted in its
entirety.
J. Section 4.11 of the Indenture is hereby deleted in its
entirety.
- 5 -
6
1.3 AMENDMENTS TO ARTICLE 5. Section 5.01 of the Indenture is hereby
deleted in its entirety.
1.4 AMENDMENTS TO ARTICLE 6
A. Subsections (3), (4), (6) and (9) of Section 6.01 of the
Indenture are hereby deleted in their entirety.
B. The third paragraph following existing Section 6.01(9) of
the Indenture (containing a reference to notification to the Company following
certain Defaults) is hereby amended by deleting the references therein to
subsections (3), (4), (6) and (a) of Section 6.01.
C. The fourth paragraph following existing Section 6.01(9) of
the Indenture (containing a reference to delivery to the Trustee by the Company
of an Officer's Certificate following certain events which may lead to an Event
of Default) is hereby amended by deleting the references therein to subsections
(3), (4), (6) and (a) of Section 6.01.
1.5 AMENDMENTS TO ARTICLE 8. Section 8.01(b) of the Indenture is
amended to read in its entirety as follows:
(b) Subject to Sections 8.01(c) and 8.02,
the Company at any time may terminate (i) all its obligations
under the Securities and this Indenture ("legal defeasance
option") or (ii) the operation of Sections 6.01(7) and 6.01(8)
(with respect only to Significant Subsidiaries) ("covenant
defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
If the Company exercises its legal
defeasance option, payment of the Securities may not be
accelerated because of an Event of Default with respect
thereto. If the Company exercises its covenant defeasance
option, payment of the Securities may not be accelerated
because of an Event of Default specified in Sections 6.01(7)
and 6.01(8) (with respect only to Significant Subsidiaries).
Upon satisfaction of the conditions set
forth herein and upon request of the Company, the Trustee
shall acknowledge in a writing prepared by the Company and
reasonably satisfactory
- 6 -
7
to the Trustee the discharge of those obligations that the Company terminates.
ARTICLE THREE
MISCELLANEOUS
2.1 Upon the execution and delivery of this First Supplemental
Indenture by each of the Company and the Trustee, the Indenture shall be
amended and supplemented in accordance herewith, and this First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every holder
of Securities heretofore or hereafter authenticated and delivered under the
Indenture shall be bound hereby, as hereby amended and supplemented; provided,
however, that the provisions of the First Supplemental Indenture shall not
become operative until the Company has notified the Trustee that it has
accepted for exchange or payment the Securities which represent at least a
majority of all Securities outstanding under the Indenture (and at such time
the provisions of this First Supplemental Indenture shall automatically become
operative without the requirement of any further action by or notice to the
Company, the Trustee or any holder of Securities).
2.2 This First Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes. Except
as specifically modified herein, the Indenture and the Securities are in all
respects ratified and confirmed and shall remain in full force and effect in
accordance with their terms, with all capitalized terms used herein without
definition having the same respective meanings ascribed to them as in the
Indenture.
2.3 Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this First Supplemental Indenture. This
First Supplemental Indenture is executed and accepted by the Trustee subject to
all the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
2.4 THIS FIRST SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS.
2.5 The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
- 7 -
8
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date first written
above.
21st CENTURY TELECOM GROUP, INC.
By:
-------------------------------
-------------------------------
-------------------------------
The Bank of New York,
as Trustee
By:
-------------------------------
-------------------------------
-------------------------------
- 8 -
