SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), effective as of November
5, 2004, among Xxxxxx Communications Corporation, an Oklahoma corporation (the
"Company"), and Bank of Oklahoma, National Association, as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an
indenture (the "Indenture"), dated as of September 26, 2003, providing for the
issuance of 8-7/8% Senior Notes due 2013 (the "Notes"); and
WHEREAS, Section 9.01 of the Indenture provides that the Company and the Trustee
may amend or supplement the Indenture without the consent of any Holder of a
Note to cure any ambiguity, defect or inconsistency; and
WHEREAS, the Trustee has been provided with an Officers' Certificate that the
definition of a "Credit Agreement" contained in the Indenture is ambiguous and
defective in that it does not clearly reflect that a "Credit Agreement" may be
renewed, replaced or refinanced with proceeds derived through the sale of debt
securities to institutional and other investors; 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 Guaranteeing
Subsidiaries and the Trustee mutually covenant and agree for the equal and
ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. DEFINITION OF CREDIT AGREEMENT. The definition of a "Credit Agreement"
contained in the Indenture is hereby amended to provide, in its entirety, as
follows:
"Credit Agreement" means one or more debt facilities or commercial
paper facilities with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against
such receivables) or letters of credit, or one or more indentures or
similar agreements including any related bonds, notes, debentures,
guarantees, collateral documents, instruments and agreements executed
in connection therewith, in each case as such agreement, other
agreements, instruments or documents may be amended, modified,
supplemented, extended, renewed or refinanced (including by means of
sales of debt securities to institutional investors) from time to
time, including without limitation, increases or decreases from time
to time in the amounts available for borrowings thereunder.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Company, as such,
shall have any liability for any obligations of the Company under the Notes, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
7. 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 Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: November 5, 2004
Xxxxxx Communications Corporation
By: XXXXX X. XXXXXXXXXXX
Name: Xxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
Bank of Oklahoma, National Association,
as Trustee
By: XXXXXX XXXX-XXXXXXXXX
Authorized Signatory
