Exhibit 4.4
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of February 10, 2005, among Independent Wireless One Corporation, a
Delaware corporation, and Independent Wireless One Leased Realty Corporation, a
Delaware corporation (together, the "Guaranteeing Subsidiaries"), each a
subsidiary of IWO Holdings, Inc., a Delaware corporation (the "Company"), the
Company and U.S. Bank National Association, as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, IWO Escrow Company, a Delaware corporation ("IWO
Escrow"), has heretofore executed and delivered to the Trustee an indenture (the
"Indenture"), dated as of January 6, 2005, providing for the issuance of 10.75%
Senior Discount Notes due 2015 (the "Notes");
WHEREAS, pursuant to that certain Agreement and Plan of
Merger, dated as of the date hereof, by and between the Company and IWO Escrow,
and as contemplated by the Indenture, IWO Escrow has merged with and into the
Company, with the Company as the surviving entity, whereupon the Company has
succeeded to all of the obligations and liabilities of IWO Escrow, including
those under the Indenture;
WHEREAS, the Indenture provides that under certain
circumstances each Guaranteeing Subsidiary shall execute and deliver to the
Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary
shall unconditionally guarantee all of the Company's Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Note
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 and sufficiency of which are
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. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Note Guarantee and in the Indenture including
but not limited to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator, stockholder or agent of any
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Company or any Guaranteeing Subsidiary under the Notes, any Note
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 of the Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
Such waiver may not be effective to waive liabilities under the federal
securities laws and it is the view of the SEC that such a waiver is against
public policy.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE
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.
6. 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.
7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
8. 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 Subsidiaries and the
Company.
[Remainder of page intentionally left blank.]
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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.
IWO HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
INDEPENDENT WIRELESS ONE CORPORATION,
as a Guaranteeing Subsidiary
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION,
as a Guaranteeing Subsidiary
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxx-Xxxx Xxxxxxxxx
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Authorized Signatory
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