FIRST SUPPLEMENTAL INDENTURE
August 19, 2003
Reference is made to that certain Indenture, dated March 14, 2001, and
as it may be amended and supplemented from time to time (the "Indenture")
between American Cellular Corporation, a Delaware corporation (the "Company"),
ACC Acquisition LLC, the Subsidiary Guarantors named therein and Bank of
Oklahoma, N.A., as successor to The Bank of New York, as successor to the United
States Trust Company of New York, as Trustee (the "Trustee"), relating to the
issuance by the Company of its 9-1/2% Senior Subordinated Notes due 2009 (the
"Notes"). Capitalized terms used without definition herein shall have the
meanings given to them in the Indenture.
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee the Indenture under which the Notes were issued, of
which $700 million aggregate principal amount are outstanding.
WHEREAS, holders of $681,900 of the Notes (the "Noteholders") have
agreed to exchange (the "Exchange") their Notes for a pro rata share (based on
the principal amount of Notes tendered divided by the outstanding aggregate
principal amount of Notes) of an aggregate of $50 million in cash and shares of
the Company's Class B common stock, with such shares of the Company's Class B
common stock exchanged immediately thereafter for 45,054,800 shares of Xxxxxx
Communications Corporation ("Xxxxxx Communications") Class A common stock, and
700,000 shares of a new series of convertible preferred stock of Xxxxxx
Communications.
WHEREAS, by tendering their Notes and agreeing to the Exchange, the
Noteholders consented to the amendments contemplated hereby.
WHEREAS, Section 9.02 of the Indenture provides that with the consent
of the Holders of at least a majority in principal amount of the Notes then
outstanding voting as a single class, the Company and the Trustee may enter into
an amended or supplemental Indenture.
WHEREAS, in accordance with Section 9.02 of the Indenture, the Company
and the Trustee desire to amend certain terms of the Indenture as described
below.
WHEREAS, all conditions and requirements necessary to make this First
Supplemental Indenture a valid, binding and legal instrument in accordance with
its terms have been performed and fulfilled by the parties hereto and the
execution and delivery hereof have been in all respects duly authorized by all
necessary parties.
WHEREAS, the entry into this First Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the Indenture,
and the Trustee has determined that this First Supplemental Indenture is in form
satisfactory to it.
NOW, THEREFORE, it is mutually covenanted and agreed as follows, for
the equal and proportional benefit of all Holders of the Notes.
1. Amendments to the Indenture
Subject to Section 2 hereof, the Indenture is hereby amended in the
following respects:
(a) The following sections of the Indenture shall be deleted in their
entirety, together with all references made thereto throughout the
Indenture in their entirety, and be of no force and effect:
(i) Section 4.03 Reports
(ii) Section 4.05 Taxes
(iii) Section 4.07 Restricted Payments
(iv) Section 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries
(v) Section 4.09 Incurrence of Indebtedness
(vi) Section 4.10 Future Subsidiary Guarantors
(vii) Section 4.11 Asset Sales
(viii) Section 4.12 Transactions with Affiliates
(ix) Section 4.13 Liens
(x) Section 4.14 Limitation on Layered Indebtedness
(xi) Section 4.16 Offer to Repurchase Upon Change of Control
(xii) Section 4.17 Limitations on Line of Business
(xiii) Section 4.18 Payments for Consent
(xiv) Sections 5.01(a)(iii) and (v) under Merger, Consolidation, or
Sale of Assets
(xv) Section 6.01(c) under Events of Default
(xvi) Section 6.01(e) under Events of Default
(xvii) Section 6.01(g) under Events of Default
(xviii) Section 6.01(h) under Events of Default
(xix) Section 6.01(i) under Events of Default
(xx) Section 6.01(j) under Events of Default
(b) Certain terms defined in Article 1 of the Indenture shall be deemed
deleted when references to such terms would be eliminated as a result
of the foregoing amendments.
2. Indenture
Except as specifically amended, supplemented or deleted by this First
Supplemental Indenture, all provisions of the Indenture as originally executed
by the Company, the Guarantors and the Trustee shall remain in full force and
effect and such Indenture is hereby ratified, confirmed and approved. The
Indenture and this First Supplemental Indenture shall be construed as one and
the same instrument.
3. Successors.
All of the covenants, agreements and other provisions set forth in this
First Supplemental Indenture made by or on behalf of or relating to the Company,
the Guarantors or the Trustee shall bind and inure to the benefit of their
successors and assigns.
4. Counterparts
This First Supplemental Indenture may be executed in any number of
counterparts, and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
5. Titles and Section Headings
The titles of the Section headings herein are for the convenience of
reference only and shall not affect the construction or interpretation of any of
the provisions hereof.
6. Recitals
The recitals contained herein shall be taken as the statements of the
Company only, and the Trustee assumes no responsibility for their correctness or
for the sufficiency or validity of this First Supplemental Indenture.
7. Governing Law
The First Supplemental Indenture shall be construed in accordance with
and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date and year first above
written.
AMERICAN CELLULAR CORPORATION
By: XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: President
ACC ACQUISITION, LLC, as parent Guarantor
By: XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: President and Manager
ACC of Kentucky LLC, ACC Kentucky License
LLC, ACC of Michigan Corporation, ACC
Michigan License LLC, ACC of Minnesota
Corporation, ACC Minnesota License LLC,
ACC New York I License LLC, ACC New York
II License LLC, ACC New York III License
LLC, ACC of Ohio Corporation, ACC Ohio
License LLC, ACC of Pennsylvania LLC, ACC
Pennsylvania License LLC, ACC of Tennessee
LLC, ACC Tennessee License LLC, ACC
of Wausau Corporation, ACC Wausau License
LLC, ACC of West Virginia Corporation,
ACC West Virginia License LLC, ACC of
Wisconsin LLC, ACC Wisconsin License LLC,
Alexandra Cellular Corporation, American
Cellular Wireless LLC, Chill Cellular
Corporation, Dutchess County Cellular
Telephone Co., Inc., PCPCS Corporation,
Xxxxx Celltelco Cellular Corporation, as
Subsidiary Guarantors.
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Authorized Representative
BANK OF OKLAHOMA, N.A., as Trustee
By: XXXXXXX X. XXXX
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
