THIRD SUPPLEMENTAL INDENTURE
Exhibit
4.4.8
FIRST PRIORITY NOTES
This THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”) dated as of
___, 2006, is entered into among AirGate PCS, Inc., a Delaware corporation
(“AirGate”), the subsidiary guarantors listed on the signature pages hereto (the
“Subsidiary Guarantors”) and The Bank of New York Trust Company, N.A., as trustee under the
Indenture referred to below (the “Trustee”).
WHEREAS, AirGate is a wholly owned subsidiary of Sprint Nextel Corporation, a Kansas
corporation (“Sprint Nextel”);
WHEREAS, AirGate desires to execute and deliver this Third Supplemental Indenture to, among
other things: (i) amend the Indenture to provide that the reports and other information required
to be provided by AirGate may instead be provided only with respect to Sprint Nextel if Sprint
Nextel has guaranteed the payment obligations of AirGate under the Notes and the Indenture; (ii)
amend the Indenture to permit certain transactions and asset transfers between AirGate, 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, pursuant to Section 9.2 of the Indenture, AirGate, the Subsidiary Guarantors and the
Trustee are authorized to execute and deliver this Third Supplemental Indenture.
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 Third Supplemental Indenture.
2.1 The definition of “Asset Sale” set forth in Section 1.1 of the Indenture is amended by:
(A) deleting “and” from the end of subsection (d) thereto; (B) adding “without limiting (f) below”
to the beginning of subsection (e) thereto and deleting “.” from the end of subsection (e) thereto
and inserting in lieu thereof “; and”; and (C) adding a subsection (f) thereto, which shall read as
follows: “any transfer or sale of assets to the Parent or any direct or indirect Subsidiary of the
Parent.”
2.2 Section 1.1 of the Indenture is amended to include the following definitions in their
proper alphabetical location:
“Parent” means any person (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act and the regulations thereunder) who is or becomes the Beneficial Owner,
directly or indirectly, of more than 50% of the total voting stock or total common equity of
AirGate.
“Parent Guarantee” means an unconditional Guarantee by a Parent, on a senior
unsecured basis, of all monetary obligations of AirGate under the Indenture and any
outstanding Notes.
2.3 Section 4.3 of the Indenture is amended by inserting the following text as a new
paragraph at the end of Section 4.3:
“Notwithstanding the foregoing, if the Parent executes and delivers a Parent
Guarantee, the reports and other information required by this Section 4.3 may
instead be those filed with the Commission by the Parent and furnished with respect
to the Parent 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 subsections (2)(a) and (2)(b)
thereof in their entirety and inserting in lieu thereof the following text:
“(2) AirGate 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 set forth in an
Officers’ Certificate certifying that such Affiliate Transaction complies with
clause (1) above.”
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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 Third Supplemental Indenture.
4. Separability Clause. In case any provision in this Third 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 Third 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 AirGate, the Subsidiary
Guarantors 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 IX of the Indenture. Until an amendment,
waiver or other action by Holders becomes effective, a consent thereto by a Holder of a Security
hereunder is a continuing consent by the Holder and every subsequent Holder of that Security or
portion of the Security that evidences the same obligation as the consenting Holder’s Security,
even if notation of the consent, waiver or action is not made on the Security. After an amendment,
waiver or action becomes effective, it shall bind every Holder.
6. Ratification of the Indenture; Third Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture and this Third 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 Third Supplemental Indenture, then the terms
and conditions of this Third Supplemental Indenture shall prevail. This Third 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.
8. Governing Law. THIS THIRD 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 Third Supplemental Indenture and agrees to execute the trust created by the
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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 AirGate, or for
or with respect to: (a) the validity or sufficiency of this Third Supplemental Indenture or any of
the terms or provisions hereof; (b) the proper authorization hereof by AirGate by corporate action
or otherwise; (c) the due execution hereof by AirGate; (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.
[Remainder
of Page Blank — Signature Page Follows]
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FIRST PRIORITY NOTES
AIRGATE PCS, INC. | ||||||
By: | ||||||
Name: | Xxxx X. Xxxxxxx | |||||
Title: | Vice President | |||||
AGW LEASING COMPANY, INC. | ||||||
By: | ||||||
Name: | Xxxx X. Xxxxxxx | |||||
Title: | Vice President | |||||
AIRGATE NETWORK SERVICES, LLC | ||||||
By: | ||||||
Name: | Xxxx X. Xxxxxxx | |||||
Title: | Vice President | |||||
AIRGATE SERVICE COMPANY, INC. | ||||||
By: | ||||||
Name: | Xxxx X. Xxxxxxx | |||||
Title: | Vice President | |||||
THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee |
By: | ||||
Name: | ||||
Title: | ||||