FIRST SUPPLEMENTAL INDENTURE
Exhibit (4)(a)(3)
FIRST
SUPPLEMENTAL INDENTURE
First
Supplemental Indenture (this “Supplemental
Indenture”), dated as of December 14, 2007, among Alltel New License
Sub, LLC, a
Delaware limited liability company (the “Guaranteeing
Subsidiary”), a subsidiary
of ALLTEL Communications, Inc., a Delaware corporation (“ACI”),
Alltel Communications Finance, Inc.,
a Delaware corporation (the “Co-Issuer”
and,
together with ACI, the
“Issuers”
and
each, an “Issuer”)
and Xxxxx Fargo Bank, National
Association, as trustee (the “Trustee”).
W
I T N E
S S E T H
WHEREAS,
each of the Issuers and the Guarantors (as defined in the Indenture referred
to
below) has heretofore executed and delivered to the Trustee a Senior Notes
Indenture dated as of December 3, 2007, as may be amended or supplemented
from time to time (the “Indenture”) providing
for the issuance of an unlimited aggregate principal amount of Cash-Pay Notes
due 2015 and Toggle Notes due 2017;
WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Issuers’ Obligations under the Notes and the Indenture on the terms
and conditions set forth herein and under the Indenture (the “Guarantee”);
and
WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually
covenant and agree for the equal and ratable benefit of the Holders as
follows:
(1)
Capitalized
Terms. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
(2)
Agreement to
Guarantee. The Guaranteeing Subsidiary hereby agrees as
follows:
(a)
Along with all other Guarantors named in the Indenture (including pursuant
to
any supplemental indentures), to jointly and severally unconditionally guarantee
to each Holder of a Note authenticated and delivered by the Trustee and to
the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Issuers
hereunder or thereunder, that:
(i)
the principal of and interest
and premium, if any, on the Notes shall be promptly paid in full when due,
whether at maturity, by
acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuers to
the
Holders or the Trustee thereunder shall be promptly paid in full, all in
accordance with the terms thereof; and
(ii)
in case of any extension
of
time of payment or renewal of any Notes or any of such other obligations, that
same shall be promptly paid in full when due in accordance with the terms of
the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly
and severally obligated to pay the same immediately. This is a
guarantee of payment and not a guarantee of collection.
(b)
The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of
any
action to enforce the same, any waiver or consent by any Holder with respect
to
any provisions hereof or thereof, the recovery of any judgment against the
Issuers or any other Guarantor, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a guarantor.
(c)
The Guaranteeing Subsidiary hereby waives: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuers, any right to require a proceeding first against the Issuers,
protest, notice and all demands whatsoever.
(d)
This Guarantee shall not be discharged except by full payment of the obligations
contained in the Notes, the Indenture and this Supplemental Indenture. The
Guaranteeing Subsidiary accepts all obligations applicable to a Guarantor under
the Indenture, including Article X of the Indenture (which is deemed
incorporated in this Supplemental Indenture and applicable to this Guarantee).
The Guaranteeing Subsidiary acknowledges that by executing this Supplemental
Indenture, it will become a Guarantor under the Indenture and subject to all
the
terms and conditions applicable to Guarantors contained therein.
(e)
If any Holder or the Trustee is required by any court or otherwise to return
to
the Issuers, the Guarantors (including the Guaranteeing Subsidiary), or any
custodian, trustee, liquidator or other similar official acting in relation
to
either the Issuers or the Guarantors, any amount paid either to the Trustee
or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f)
The Guaranteeing Subsidiary shall not be entitled to any right of subrogation
in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby.
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(g)
As between the Guaranteeing Subsidiary, on the one hand, and the Holders and
the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration
of
such obligations as provided in Article VI of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by
the
Guaranteeing Subsidiary for the purpose of this Guarantee.
(h)
The Guaranteeing Subsidiary shall have the right to seek contribution from
any
non-paying Guarantor so long as the exercise of such right does not impair
the
rights of the Holders under this Guarantee.
(i)
Pursuant to Section 10.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or
on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under Article X of the Indenture, this new Guarantee shall be limited
to the maximum amount permissible such that the obligations of such Guarantor
under this Guarantee will not constitute a fraudulent transfer or
conveyance.
(j)
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuers for
liquidation, reorganization, should the Issuers become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Issuers’ assets, and shall, to
the fullest extent permitted by law, continue to be effective or be reinstated,
as the case may be, if at any time payment and performance of the Notes are,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be
restored or returned by any obligee on the Notes and Guarantee, whether as
a
“voidable preference”, “fraudulent transfer” or otherwise, all as though such
payment or performance had not been made. In the event that any
payment or any part thereof, is rescinded, reduced, restored or returned, the
Note shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
(k)
In case any provision of this Guarantee 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.
(l)
This Guarantee shall be a general unsecured senior obligation of such
Guaranteeing Subsidiary, ranking equally in right of payment with all existing
and future unsubordinated indebtedness of the Guaranteeing Subsidiary, if
any.
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(m)
Each payment to be made by the Guaranteeing Subsidiary in respect of this
Guarantee shall be made without set-off, counterclaim, reduction or diminution
of any kind or nature.
(3)
Execution and
Delivery. The Guaranteeing Subsidiary agrees that the
Guarantee shall remain in full force and effect notwithstanding the absence
of
the endorsement of any notation of such Guarantee on the Notes.
(4)
Merger, Consolidation
or Sale of All or Substantially All Assets.
(a)
Except as otherwise provided in Section 5.01(e) of the Indenture, the
Guaranteeing Subsidiary may not consolidate or merge with or into or wind up
into (whether or not a Guaranteeing Subsidiary is the surviving Person), or
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
(i)
(A) such
Guaranteeing Subsidiary is the surviving Person or the Person formed by or
surviving any such consolidation or merger (if other than such Guaranteeing
Subsidiary) or to which such sale, assignment, transfer, lease, conveyance
or
other disposition will have been made is a corporation organized or existing
under the laws of the jurisdiction of organization of the Guaranteeing
Subsidiary, as applicable, or the laws of the United States, any state thereof,
the District of Columbia, or any territory thereof (the Guaranteeing Subsidiary
or such Person, as the case may be, being herein called the “Successor
Person”);
(B) the Successor Person, if other than such Guaranteeing
Subsidiary, expressly assumes all the obligations of the Guaranteeing Subsidiary
under the Indenture and the Guaranteeing Subsidiary’s related Guarantee pursuant
to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists;
and
(D) the Company shall have delivered to the Trustee an Officer’s
Certificate of the Company and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indentures, if any,
comply with the Indenture; or
(ii)
the transaction is made
in
compliance with Section 4.10 of the Indenture;
(b)
Subject to certain limitations described in the Indenture, the Successor Person
will succeed to, and be substituted for, such Guaranteeing Subsidiary under
the
Indenture and the Guaranteeing Subsidiary’s Guarantee.
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Notwithstanding
the foregoing, such Guaranteeing Subsidiary may merge into or transfer all
or
part of its properties and assets to another Guarantor or the
Issuers.
(5)
Releases. The
Guarantee of the Guaranteeing Subsidiary shall be automatically and
unconditionally released and discharged, and no further action by the
Guaranteeing Subsidiary, the Issuers or the Trustee is required for the release
of the Guaranteeing Subsidiary’s Guarantee, upon:
(1)
(A) any sale, exchange or transfer (by merger or otherwise) of the Capital
Stock
of the Guaranteeing Subsidiary, after which the Guaranteeing Subsidiary is
no
longer a Restricted Subsidiary or all or substantially all the assets of the
Guaranteeing Subsidiary, in each case if such sale, exchange or transfer is
made
in compliance with the applicable provisions of the Indenture and the
Guaranteeing Subsidiary is released from the guarantee, if any, of, and all
pledges and security, if any, granted in connection with, the Senior Secured
Credit Facilities;
(B) the release or discharge of the guarantee by the Guaranteeing Subsidiary
of
the Senior Secured Credit Facilities or the release or discharge of the
guarantee which resulted in the creation of the Guarantee, except a discharge
or
release by or as a result of payment under such guarantee;
(C) the proper designation of the Guaranteeing Subsidiary as an Unrestricted
Subsidiary; or
(D) the Issuers exercising their Legal Defeasance option or Covenant Defeasance
option in accordance with Article VIII of the Indenture or the Issuers’
obligations under the Indenture being discharged in accordance with the terms
of
the Indenture; and
(2)
the Guaranteeing Subsidiary delivering to the Trustee an Officer’s Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for in the Indenture relating to such transaction have been complied
with.
(6)
No Recourse Against
Others. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any
obligations of the Issuers or the Guarantors (including the Guaranteeing
Subsidiary) under the Notes, any Guarantees, the Indenture or this Supplemental
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting Notes waives
and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.
(7)
Governing
Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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(8)
Counterparts. The
parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
(9)
Effect of
Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
(10) The
Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary.
(11) Subrogation. The
Guaranteeing Subsidiary shall be subrogated to all rights of Holders against
the
Issuers in respect of any amounts paid by the Guaranteeing Subsidiary pursuant
to the provisions of Section 2 hereof and Section 10.01 of the Indenture; provided that, if
an
Event of Default has occurred and is continuing, the Guaranteeing Subsidiary
shall not be entitled to enforce or receive any payments arising out of, or
based upon, such right of subrogation until all amounts then due and payable
by
the Issuers under the Indenture or the Notes shall have been paid in
full.
(12) Benefits
Acknowledged. The Guaranteeing Subsidiary’s Guarantee is
subject to the terms and conditions set forth in the Indenture. The
Guaranteeing Subsidiary acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Indenture and
this
Supplemental Indenture and that the guarantee and waivers made by it pursuant
to
this Guarantee are knowingly made in contemplation of such
benefits.
(13) Successors. All
agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall
bind its Successors, except as otherwise provided in this Supplemental
Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
[Signatures
on following page]
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IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to
be duly executed, all as of the date first above written.
ALLTEL NEW LICENSE SUB, LLC
By: /s/
Xxxxx X.
Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Treasurer
and
Secretary
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/
Xxxxxx X.
X'Xxxxxxx
Name:
Xxxxxx
X. X'Xxxxxxx
Title: Vice President
