FIRST SUPPLEMENTAL INDENTURE
Exhibit 4.5
9 7/8% NOTES
This FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) dated as of
___, 2006, is entered into between UbiquiTel Operating Company, a Delaware corporation
(the “Company”), UbiquiTel Inc., as guarantor under the Indenture referred to below (the
“Guarantor”), and The Bank of New York, as trustee under the Indenture referred to below
(the “Trustee”).
WHEREAS, the Company, the Guarantor and the Trustee have heretofore executed an Indenture,
dated February 23, 2004 (the “Indenture”), providing for two separate issuances of the
Company’s 9 7/8% Senior Notes due 2011 in the aggregate principal amounts of $270,000,000 and
$150,000,000, respectively, of which $419,960,000 aggregate principal amount are outstanding on the
date hereof;
WHEREAS, the Company is a wholly owned subsidiary of the Guarantor;
WHEREAS, the Guarantor is a wholly owned subsidiary of Sprint Nextel Corporation, a Kansas
corporation (“Sprint Nextel”);
WHEREAS, the Board of Directors of Sprint Nextel has determined it to be in the best interest
of Sprint Nextel to guarantee all of the Company’s payment obligations under the Notes and the
Indenture;
WHEREAS, the Company desires to execute and deliver this First Supplemental Indenture to,
among other things: (i) amend the Indenture to provide that the reports and other information
required to be provided by the Company may instead be provided only with respect to Sprint Nextel
if Sprint Nextel has guaranteed the payment obligations of the Company under the Notes and the
Indenture; (ii) amend the Indenture to permit certain transactions and asset transfers between the
Company, Sprint Nextel and the other Subsidiaries of Sprint Nextel; and (iii) add or modify certain
defined terms and related text in the Indenture (collectively, the “Proposed Amendments”);
WHEREAS, the Board of Directors of the Company has determined that it is in the best interest
of the Company to make the Proposed Amendments;
WHEREAS, Section 9.02 of the Indenture provides that the Company, the Guarantor and the
Trustee may amend or supplement the Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (the “Required
Consent”);
WHEREAS, the Company has obtained the Required Consent; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company, the Guarantor and the Trustee
are authorized to execute and deliver this First Supplemental Indenture.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, the Company, the Guarantor and the Trustee covenant and agree for the equal and
ratable benefit of the Holders as follows:
1. Definitions. All capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture, as amended by this First Supplemental Indenture.
2. Amendments.
2.1 The definition of “Asset Sale” set forth in Section 1.01 of the Indenture is amended by:
(A) deleting “and” from the end of subsection (5) thereto; (B) deleting “.” from the end of
subsection (6) thereto and inserting in lieu thereof “; and”; and (C) adding a subsection (7)
thereto, which shall read as follows: “any transfer or sale of assets to the Controlling
Shareholder or any direct or indirect Subsidiary of the Controlling Shareholder.”
2.2 Section 1.01 of the Indenture is amended to include the following definitions in their
proper alphabetical location:
“Controlling Shareholder” means any person (as such term is used in Sections 13(d) and
14(d) of the Exchange Act and the regulations thereunder), other than the Parent and any
direct or indirect Subsidiary of the Parent, who is or becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the total voting stock or total common equity of
the Company.
“Controlling Shareholder Guarantee” means an unconditional guarantee by a Controlling
Shareholder, on a senior unsecured basis, of all monetary obligations of the Company under
the Indenture and any outstanding Notes.
2.3 Section 4.03 of the Indenture is amended by inserting the following text as paragraph (d)
at the end of Section 4.03:
“(d) Notwithstanding paragraphs (a), (b) and (c) of this Section 4.03, if the
Controlling Shareholder executes and delivers to the Trustee a Controlling
Shareholder Guarantee, the reports and other information required by paragraphs (a),
(b) and (c) of this Section 4.03 may instead be those filed with the SEC by the
Controlling Shareholder and furnished with respect to the Controlling Shareholder
without including the condensed consolidating footnote contemplated by Rule 3-10 of
Regulation S-X promulgated under the Securities Act.”
2.4 Section 4.11 of the Indenture is amended by deleting clause (a)(2) thereof in its entirety
and inserting in lieu thereof the following text:
“(2) the Company delivers to the trustee, with respect to any Affiliate Transaction
or series of related Affiliate Transactions involving aggregate consideration in
excess of $10.0 million, a determination by the Board of Directors of the Company
set forth in an Officers’ Certificate certifying that such Affiliate Transaction
complies with clause (1) of this Section 4.11(a).”
3. Amendments to Notes. The Notes are hereby deemed to be amended, mutatis mutandis,
to correspond to the amendments to the Indenture set forth in this First Supplemental Indenture.
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4. Separability Clause. In case any provision in 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.
5. Modification, Amendment and Waiver. The provisions of this First Supplemental
Indenture may not be amended, supplemented, modified or waived, unless otherwise provided in the
Indenture, except by the execution of a supplemental indenture executed by the Company, the
Guarantor and the Trustee, and, to the extent such amendment, supplement or waiver adversely
affects the rights of any Holders, with the Required Consent of such Holders. Any such amendment
or supplemental indenture shall comply with Article 9 of the Indenture. Until an amendment, waiver
or other action by Holders becomes effective, a consent thereto by a Holder of a Note hereunder is
a continuing consent by the Holder and every subsequent Holder of that Note or portion of the Note
that evidences the same obligation as the consenting Holder’s Note, even if notation of the
consent, waiver or action is not made on the Note. After an amendment, waiver or action becomes
effective, it shall bind every Holder.
6. Ratification of the Indenture; First Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture and this First Supplemental Indenture are in all
respects ratified and confirmed and all the terms, conditions and provisions thereof and hereof
shall remain in full force and effect. In the event of a conflict between the terms and conditions
of the Indenture and the terms and conditions of this First Supplemental Indenture, then the terms
and conditions of this First Supplemental Indenture shall prevail. This First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore
or hereafter authenticated and delivered shall be bound hereby.
7. Trust Indenture Act Controls. If any provision of this First Supplemental
Indenture limits, qualifies or conflicts with any provision of the TIA that is required under the
TIA to be part of and govern any provision of this First Supplemental Indenture, the provision of
the TIA shall control. If any provision of this First Supplemental Indenture modifies or excludes
any provisions of the TIA that may be so modified or excluded, the provisions of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this First Supplemental
Indenture, as the case may be.
8. Governing Law. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREUNDER THAT WOULD INDICATE THE APPLICABILITY OF THE LAWS OF ANY
OTHER JURISDICTION.
9. Trustee Disclaimer. The Trustee has accepted the amendment of the Indenture
effected by this First 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,
including the terms and provisions defining and limiting the liabilities and responsibilities of
the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals or statements
contained herein, all of which recitals or statements are made solely by the Company, or for or
with respect to: (a) the validity or sufficiency of this First Supplemental Indenture or any of the
terms or
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provisions hereof; (b) the proper authorization hereof by the Company by corporate action or
otherwise; (c) the due execution hereof by the Company; (d) the consequences (direct or indirect
and whether deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes
no representations with respect to any such matters; and (e) the validity or the sufficiency of the
solicitation or the consent solicitation materials or procedure in connection therewith.
10. Multiple Originals. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
11. Effect of Headings. The Section headings herein are for convenience only and
shall not effect the construction thereof.
12. Notices. Any request, demand, authorization, notice, waiver, consent or
communication to any of the parties shall be made as set forth in Section 12.02 of the Indenture.
13. Successors. All agreements of the Company and the Guarantor in respect of this
First Supplemental Indenture shall bind their respective successors.
[Remainder of Page Blank – Signature Pages Follow]
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9 7/8% NOTES
IN WITNESS WHEREOF, this First Supplemental Indenture has been duly executed by the Company,
the Guarantor and the Trustee as of the date first written above.
| UBIQUITEL OPERATING COMPANY | ||||
| By: | ||||
| Xxxx X. Xxxxx | ||||
| Chief Financial Officer | ||||
| UBIQUITEL INC., as Guarantor | ||||
| By: | ||||
| Xxxx X. Xxxxx | ||||
| Chief Financial Officer | ||||
| THE BANK OF NEW YORK, as Trustee | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
