Exhibit 4.1A
______________________________________
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC.
as ISSUER
AND
MARINE MIDLAND BANK
as TRUSTEE
__________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 23, 1998
__________________________
14% Senior Secured Discount Notes due 2001
Supplemental to Indenture
Dated as of August 15, 1996
______________________________________
FIRST SUPPLEMENTAL INDENTURE, dated as of January 23, 1998, between
INTERNATIONAL WIRELESS COMMUNICATIONS HOLDINGS, INC., a Delaware corporation,
having its principal office at 000 Xxxxx Xx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000
(hereinafter called the "Company"), and MARINE MIDLAND BANK, a New York
banking corporation and trust company, as Trustee under the Indenture
mentioned below (hereinafter called the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture, dated as of August 15, 1996 (hereinafter called the "Original
Indenture"), to provide, among other things, for the issuance of the 14%
Senior Secured Discount Notes due 2001;
WHEREAS, Section 9.01 of the Original Indenture provides that, without
the consent of the Holders of any of the Securities, the Company, when
authorized by a Board Resolution, and the Trustee may amend or supplement the
Original Indenture for the purpose of, among other things, curing any
ambiguity, defect or inconsistency;
WHEREAS, the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Original
Indenture, and the Trustee has determined that this First Supplemental
Indenture is in form satisfactory to it; and
WHEREAS, all acts and proceedings required by law, by the Original
Indenture and by the Certificate of Incorporation and By-laws of the Company
necessary to constitute this First Supplemental Indenture a valid and binding
agreement of the Company for the uses and purposes herein set forth, in
accordance with its terms, have been done and taken, and the execution and
delivery of this First Supplemental Indenture have been in all respects duly
authorized.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS. For all purposes of this Supplemental
Indenture, except as otherwise herein expressly provided or unless the
context otherwise requires:
(1) terms used herein in capitalized form and defined in the Original
Indenture shall have the meaning specified in the Original Indenture;
(2) the words "herein", "hereof" and "hereunder" and other words of
similar import used in this Supplemental Indenture refer to this Supplemental
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(3) the term defined in the first paragraph of the Recitals herein shall
have the meaning specified therein.
For all purposes of the Original Indenture, except as otherwise
expressed provided or unless the context otherwise requires:
The terms defined in this Article I have the meaning assigned to them in
this Article I and include the plural as well as the singular.
"FIRST SUPPLEMENTAL INDENTURE" or THIS "SUPPLEMENTAL INDENTURE" means
this instrument as originally executed or, if amended or supplemented
pursuant to the applicable provisions of the Original Indenture, as amended
or supplemented.
ARTICLE II.
MODIFICATION
SECTION 2.1. AMENDMENT TO SECTION 1.01 OF THE ORIGINAL INDENTURE.
Section 1.01 of the Original Indenture is hereby amended by amending the
following definition contained therein to read in full as follows:
"Non-Recourse Debt" means, with respect to any Person, Indebtedness or
that portion of Indebtedness (a) as to which the specified Person (i) does
not provide credit support of any kind (including, without limitation,
pursuant to any undertaking, agreement or instrument that would constitute
Indebtedness), (ii) is not directly or indirectly liable (as a guarantor or
otherwise), or (iii) does not constitute the lender; and (b) no default with
respect to which (including any rights that the holders thereof may have to
take enforcement action against an Unrestricted Subsidiary) would permit
(upon notice, lapse of time or both) any holder of such Indebtedness to take
any action against the specified Person or, except in the case of any Project
Financing otherwise permitted by clause (e) of the second paragraph of
Section 4.09 hereof, would permit any holder of Indebtedness of the specified
Person to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its stated maturity; and (c) as
to which the lenders have been notified in writing that they will not have
any recourse to the stock or assets of the specified Person.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. REPRESENTATIONS, WARRANTIES, COVENANTS, AND AGREEMENTS OF
THE COMPANY. The Company makes and reaffirms as of the date of execution of
this Supplemental Indenture all of its representations, warranties, covenants
and agreements set forth in the Original Indenture.
SECTION 3.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness, except for the
recital indicating the Trustee's approval of the form of this First
3
Supplemental Indenture. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
SECTION 3.3. EFFECT OF HEADINGS. The Article and Section headings
herein are for convenience only and shall not affect the construction hereof.
SECTION 3.4. SUCCESSORS AND ASSIGNS. All covenants, stipulations,
promises and agreements in this Supplemental Indenture by or on behalf of the
Company shall bind and inure to the benefit of its successors and assigns,
whether so expressed or not.
SECTION 3.5. SEPARABILITY CLAUSE. In case any provision in this
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.
SECTION 3.6. BENEFITS OF INDENTURE. Nothing in this Supplemental
Indenture, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Registrar and their successors under
the Indenture and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
SECTION 3.7. GOVERNING LAW. This Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
SECTION 3.8. COUNTERPARTS. This 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.
4
IN WITNESS WHEREOF, the parties have executed this Supplemental
Indenture as of the date first above written.
INTERNATIONAL WIRELESS
COMMUNICATIONS HOLDINGS, INC.
By:
-----------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President and
Chief Financial Officer
MARINE MIDLAND BANK,
as Trustee
By:
----------------------------------
Name:
Title:
5
