Exhibit 4.1
--------------------------------------------------------------------------------
XXXXXXXXXX COMMUNICATIONS COMPANY
SERIES A AND SERIES B
7 3/4% SENIOR SUBORDINATED NOTES DUE DECEMBER 15, 2012
-------------------------------
SUPPLEMENTAL INDENTURE
Dated as of FEBRUARY 6, 2003
to
INDENTURE
Dated as of DECEMBER 20, 2002
-------------------------------
U.S. BANK NATIONAL ASSOCIATION
(SUCCESSOR TO STATE STREET BANK AND TRUST COMPANY),
Trustee
--------------------------------------------------------------------------------
THIS SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), dated as of
February 6, 2003, by and between XXXXXXXXXX COMMUNICATIONS COMPANY, a Delaware
corporation (the "Company"), and U.S. BANK NATIONAL ASSOCIATION (successor to
STATE STREET BANK AND TRUST COMPANY), a national banking association, as trustee
(the "Trustee"), under the Indenture (as defined below). Capitalized terms used
but not defined herein shall have the meanings assigned to such terms in the
Indenture.
WHEREAS, the Company and the Trustee previously duly executed, and the
Company duly delivered to the Trustee, an Indenture dated as of December 20,
2002 ("Indenture"), relating to Series A and Series B of the Company's 7 3/4%
Senior Subordinated Notes due December 15, 2012 (the "Notes");
WHEREAS, pursuant to Section 9.01 of the Indenture, the Company and the
Trustee desire to amend the Indenture without the consent of the Holders;
WHEREAS, the Board of Directors of the Company has authorized the
execution of this Supplemental Indenture and its delivery to the Trustee;
WHEREAS, the Company has delivered an Officers' Certificate and Opinion
of Counsel to the Trustee pursuant to Section 9.06 of the Indenture; and
WHEREAS, all other actions necessary to make this Supplemental
Indenture a legal, valid and binding obligation of the parties hereto in
accordance with its terms and the terms of the Indenture have been performed;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Company and the Trustee hereby mutually covenant and
agree for the equal and proportionate benefit of all Holders of the Notes as
follows:
ARTICLE I
AMENDMENTS
At the Effective Date (as defined in Section 2.4 below) the terms of
the Notes and the Indenture shall be amended as follows:
SECTION 1.1. Paragraph 2 of the Indenture is hereby amended in its
entirety to read as follows:
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the holders (the "Holders") of
the 7 3/4% Series A Senior Subordinated Notes due December 15, 2012 issued on
December 20, 2002 (the "Series A-1 Notes"), any Additional Notes, if any, issued
from time to time substantially in the form of the Notes attached hereto as
Exhibit A ("Series A-2 Notes," and together with Series A-1 Notes, the "Series A
Notes") and the 7 3/4% Series B Senior Subordinated Notes due December 15, 2012
(the "Series B Notes" (including Additional Notes, if any, issued from time to
time substantially in the form of the Notes attached hereto as Exhibit A) and,
together with the Series A Notes, the "Notes"):
SECTION 1.2. The definition of Registration Rights Agreement in Section
1.01 of the Indenture is hereby amended to add to the end thereof before the
period, ", and any similar registration rights agreement entered into in
connection with the issuance of Additional Notes".
SECTION 1.3. Section 2.06(g)(iii) is hereby amended to delete "hereof"
from the first line of such section and to substitute therefor "of issuance
thereof."
SECTION 1.4. Item (iv) of the second paragraph of Section 4.09 is
hereby amended to add to the end thereof before the semicolon, "issued on the
Issuance Date".
SECTION 1.5. Page A-1 of Exhibit A to the Indenture is hereby amended
to delete "December 20, 2002" after the word "Dated:" and to substitute therefor
a blank space.
SECTION 1.6. Paragraph 1 of Exhibit A to the Indenture is hereby
amended to delete "December 20, 2002" from the beginning of the third line of
such paragraph and to substitute therefor a blank space.
SECTION 1.7. Paragraph 18 of Exhibit A to the Indenture is hereby
amended to delete "December 20, 2002" from the third line of such paragraph and
to substitute therefor a blank space.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(A) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture and (B) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
any particular Article, Section or other subdivision.
SECTION 2.2. On the Effective Date, the Indenture shall be modified in
accordance therewith, but except as expressly amended hereby, the Indenture is
in all respects ratified and confirmed and all the terms, conditions and
provisions thereof shall remain in full force and effect.
SECTION 2.3. On the Effective Date, this Supplemental Indenture shall
form a part of the Indenture and the Supplemental Indenture and the Indenture
shall be read, taken and construed as one and the same instrument for all
purposes, and every holder of Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound hereby.
SECTION 2.4. This Supplemental Indenture shall become effective, and
the effective date (the "Effective Date") shall be deemed to have occurred, upon
the issuance by the Company of the Company's second offering of 7 3/4% Senior
Subordinated Notes due December 15, 2002, expected to be on or about February 6,
2003.
2
SECTION 2.5. The Trustee accepts the amendment to the Indenture
effected by this Supplemental Indenture and agrees to execute the trust created
by the Indenture, as hereby amended, but only upon the terms and conditions set
forth in the Indenture, as hereby amended, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit the Trustee's
liabilities in the performance of the trust created by the Indenture, as hereby
amended. Without limiting the generality of the foregoing, the Trustee has no
responsibility for the correctness of the recitals of fact herein contained
which shall be taken as the statements of the Company and makes no
representations as to the validity or sufficiency of this Supplemental
Indenture, except as to the due and valid execution hereof by the Trustee, and
shall incur no liability or responsibility in respect of the validity thereof.
The Trustee's execution of this Supplemental Indenture should not be construed
to be an approval or disapproval of the advisability of the amendments to the
Indenture provided herein.
SECTION 2.6. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
SECTION 2.7. This Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument.
SECTION 2.8. The Company shall compensate and indemnify the Trustee in
respect of this Supplemental Indenture to the same extent as set forth in
Section 7.07 of the Indenture.
3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and the Company has caused its corporate seal to
be hereunto affixed, all as of the day and year first above written.
XXXXXXXXXX COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
(SEAL)
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
