EXHIBIT 4.4(a)
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CELLULAR COMMUNICATIONS INTERNATIONAL, INC.,
and
THE CHASE MANHATTAN BANK
(formerly known as Chemical Bank),
as Trustee
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First Supplemental Indenture
Dated as of February 23, 1998
to Indenture
Dated as of August 22, 1995
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13-1/4% Senior Discount Notes due 2000
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 23, 1998 (the "First
Supplemental Indenture"), to the Indenture, dated as of August 22, 1995 (as
amended, modified or supplemented from time to time in accordance therewith, the
"Indenture"), between CELLULAR COMMUNICATIONS INTERNATIONAL, INC., a Delaware
corporation (the "Company"), and THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank)(the "Trustee").
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Trustee
the Indenture, providing for, among other things, the creation and issuance by
the Company of its 13-1/4% Senior Discount Notes due 2000 (the "Securities");
and
WHEREAS, Section 9.02 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee, with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Securities outstanding, may amend the Indenture, subject to certain exceptions
specified in Section 9.02 of the Indenture; and
WHEREAS, the parties hereto are entering into this First Supplemental
Indenture to eliminate or amend certain of the covenants and other provisions
contained in Article 4, Article 5, Article 6 and Article 9 of the Indenture
(collectively, the "Proposals"); and
WHEREAS, the Holders of at least a majority in aggregate principal amount
of the Securities outstanding have duly consented to the Proposals; and
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company and the Trustee, in accordance with its terms,
and a valid amendment of, and supplement to, the Indenture have been done;
NOW THEREFORE:
In consideration of the premises, the parties have executed and delivered
this First Supplemental Indenture, and the Company hereby covenants and agrees
with the Trustee, for the equal and proportionate benefit of all Holders of the
Securities, that the Indenture is supplemented and amended, to the extent and
for the purposes expressed herein, as follows:
SECTION 1. Definitions. (a) For all purposes of this First Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires, terms used herein shall have the meanings assigned to them
in the Indenture.
(b) Any defined terms and any references thereto which are used solely in
the sections, subsections or provisions of the Indenture deleted by operation of
Sections 2, 3, 4 and 5 of this First Supplemental Indenture are hereby deleted
in their entireties from Section 1.01 of the Indenture.
SECTION 2. Elimination of Certain Provisions of Article 4 and Article 6 of
the Indenture. Sections 4.03, 4.04, 4.05, 4.07, 4.08 4.09, 4.11, 4.12, 4.13,
4.16, 4.19 and 4.20 and subsection 6.01(b) of the Indenture are hereby deleted
in their entireties together with any references thereto in the Indenture.
SECTION 3. Amendment of Section 4.18 of the Indenture. Section 4.18 of the
Indenture is hereby amended to read in its entirety as follows:
The Company shall not, and shall not permit any Restricted Subsidiary of
the Company, Restricted Affiliate or Restricted Subsidiary of a Restricted
Affiliate to, enter into any Sale/Leaseback Transaction with respect to any
property unless the Company or such Restricted Subsidiary or Restricted
Affiliate applies the proceeds of such transaction in compliance with Section
4.10 hereof.
SECTION 4. Amendment of Section 5.01 of the Indenture. Section 5.01 of the
Indenture is hereby amended to read in its entirety as follows:
The Company shall not consolidate or merge with or into another
corporation, Person or entity (whether or
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not the Company is the surviving corporation), or sell, assign, transfer, lease,
convey or otherwise dispose of its assets as an entirety or virtually as an
entirety in one or more related transactions, unless (i) the Company is the
surviving corporation or the entity or the Person formed by or surviving any
such consolidation or merger (if other than the Company) or to which a sale,
assignment, transfer, lease conveyance or other disposition of the assets as an
entirety or virtually as an entirety shall have been made is a corporation
organized or existing under the laws of the United States, any state thereof or
the District of Columbia; and (ii) the entity or Person formed by or surviving
any such consolidation or merger (if other than the Company) or the entity or
Person to which a sale, assignment, transfer, lease, conveyance or other
disposition of the assets as an entirety or virtually as an entirety shall have
been made assumes all the obligations of the Company pursuant to a supplemental
indenture in a form reasonably satisfactory to the Trustee, under this Indenture
and the Notes.
SECTION 5. Amendment of Section 9.04 of the Indenture. Section 9.04 of the
Indenture is hereby amended to read in its entirety as follows:
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder of a Security
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on any Security. However, any such Holder of a Security
or (subject to Section 2.12 hereof) subsequent Holder of a Security may revoke
the consent as to its Security if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder. Notwithstanding anything to
the contrary in this Section 9.04, no consent to any amendment, supplement or
waiver delivered by a Holder of a Security (or any transferee or proxy thereof)
in connection with the Offer to Purchase and Consent Solicitation of the
Company, dated February 6, 1998, and the Solicitation (as defined therein) may
be revoked by such Holder (or any transferee or proxy thereof).
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SECTION 6. Operation of Proposed Amendments. Upon the execution and
delivery of this First Supplemental Indenture by the Trustee and the Company,
this First Supplemental Indenture will become operative but the Proposals will
not become effective until the Securities validly tendered pursuant to the
Company's offer to purchase and consent solicitation contained in the Company's
Offer to Purchase and Consent Solicitation Statement dated February 6, 1998 and
the related Consent and Letter of Transmittal (in each case, as the same may be
amended, modified or supplemented from time to time in accordance therewith) are
accepted for purchase by the Company in accordance with the terms and conditions
set forth therein; provided, however, that the amendment of Section 9.04 of the
Indenture pursuant to Section 5 hereof will be effective immediately upon
execution of this First Supplemental Indenture.
SECTION 7. Recitals. The recitals of fact contained herein shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representations as to the
validity or adequacy of this First Supplemental Indenture or the due execution
hereof by the Company.
SECTION 8. Ratification and Confirmation of Indenture. Except as hereby
expressly amended, the Indenture is in all respects ratified and confirmed and
all the terms, provisions and conditions thereof shall be and remain in full
force and effect.
SECTION 9. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE.
SECTION 10. Successors. All agreements of the Company in this First
Supplemental Indenture and the Securities shall bind its successors. All
agreements of the Trustee in this First Supplemental Indenture shall bind its
successors.
SECTION 11. Duplicate Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all such executed
copies together represent the same agreement.
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SECTION 12. Separability. In case any provision of 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, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13. Headings. The headings of the sections of this First
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part hereof and shall in no way modify or restrict any of
the terms or provisions hereof.
SECTION 14. Trust Indenture Act Controls. If any provision of this First
Supplemental Indenture limits, qualifies or conflicts with the duties imposed by
TIA Sections 310-317 by operation of TIA Section 318(c), the imposed duties
shall control.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President-
General Counsel
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ Xxxxxx X. Deck
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Name: Xxxxxx X. Deck
Title: Vice President
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