Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE, dated as of February 20, 2004 (this "Third
Supplemental Indenture"), among AIRGATE PCS, INC., a Delaware corporation, as
Issuer (the "Company"), AGW LEASING COMPANY, INC., a Delaware corporation,
("AGW"), AIRGATE SERVICE COMPANY, INC., a Delaware corporation, ("ASC"), AIRGATE
NETWORK SERVICES, LLC, a Delaware limited liability company, ("ANS" and,
together with AGW and ASC, the "Guarantors"), and DEUTSCHE BANK TRUST COMPANY
AMERICAS (formerly d/b/a Bankers Trust Company), a New York banking corporation,
as Trustee (the "Trustee"), to the Indenture, dated as of September 30, 1999,
among the Company, AGW and the Trustee (as amended by the first Supplemental
Indenture, dated as of September 30, 2000, among the Company, ANS and the
Trustee, and the second Supplemental Indenture, dated as of April 1, 2002, among
the Company, ASC and the Trustee, the "Indenture").
RECITALS
WHEREAS, pursuant to and in accordance with the terms of the Indenture, the
Company established and issued debt securities denominated as the "13.5% Senior
Subordinated Discount Notes due 2009" (the "Old Notes");
WHEREAS, there are now outstanding under the Indenture, Old Securities in
the aggregate principal amount due at maturity of $300,000,000;
WHEREAS, the Company has offered to exchange all $300,000,000 of the
outstanding Old Securities (the "Exchange Offer") for newly-issued shares of the
Company's common stock (the "Common Stock") and newly-issued debt securities
denominated as the "9 3/8% Senior Subordinated Secured Notes due 2009" (the "New
Notes");
WHEREAS, the Exchange Offer was commenced by the Company pursuant to its
Prospectus and Solicitation Statement, dated January 14, 2004 (as the same may
be amended and supplemented through the date hereof, the "Public Offer to
Exchange") and its Offering Memorandum and Solicitation Statement, dated January
14, 2004 (as the same may be amended and supplemented through the date hereof,
the "Private Offer to Exchange," and together with the Public Offer to Exchange,
the "Offer to Exchange");
WHEREAS, in connection with the Exchange Offer, the Company solicited
consents ("Consents") from the holders of the Old Notes (the "Holders") to the
proposed amendments (the "Proposed Amendments") to the Indenture, as described
in the Offer to Exchange (the "Consent Solicitation");
WHEREAS, the Proposed Amendments will (1) eliminate substantially all of
the restrictive covenants in the Indenture (the "Covenant Elimination") and (2)
release the Collateral (as defined in the Pledge Agreement) from the lien
created by Article II of the Pledge Agreement, dated as of September 30, 1999,
between the Company and the Trustee (the "Pledge Agreement") (the "Collateral
Release");
WHEREAS, this Third Supplemental Indenture evidences the Proposed
Amendments described in the Offer to Exchange;
WHEREAS, in accordance with Section 9.2 of the Indenture, for the Proposed
Amendments relating to the Covenant Elimination (the "Majority Proposed
Amendments") to be effective, the Holders of at least a majority in aggregate
Accreted Value (as defined in the Indenture) of the Old Notes then outstanding
shall have consented to such Majority Proposed Amendments;
WHEREAS, in accordance with Section 9.2 of the Indenture, for the Proposed
Amendment relating to the Collateral Release (the "Supermajority Proposed
Amendment") to be effective, the Holders of at least 75% in aggregate Accreted
Value of the Old Notes then outstanding shall have consented to such
Supermajority Proposed Amendment;
WHEREAS, the Holders of a majority in aggregate Accreted Value of the Old
Notes outstanding on the date hereof have consented to the Majority Proposed
Amendments effected by this Third Supplemental Indenture;
WHEREAS, the Holders of at least 75% in aggregate Accreted Value of the Old
Securities outstanding on the date hereof have consented to the Supermajority
Proposed Amendment effected by this Third Supplemental Indenture; and
WHEREAS, all things necessary to make this Third Supplemental Indenture a
legal, valid, binding and enforceable agreement, in accordance with the terms of
the Indenture, have been done, including delivery to the Trustee no later than
the date hereof of the Officer's Certificate, Opinion of Counsel, and Board
Resolution required by Section 9.2 of the Indenture, and all amounts due and
owing to the Trustee (including counsel fees) have been paid.
NOW, THEREFORE, THIS THIRD SUPPLEMENTAL INDENTURE WITNESSETH, that, for and
in consideration of the premises herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, as follows:
AGREEMENTS
Section 1. Proposed Amendments.
(a) Majority Proposed Amendments. The Indenture is hereby amended by
deleting therefrom the following provisions in their entirety:
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Existing Section Number Heading
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Section 4.3 Commission Reports
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Section 4.4 Compliance Certificate
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Section 4.5 Taxes
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Section 4.7 Limitation on Restricted Payments
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Section 4.8 Dividends and Other Payment
Restrictions Affecting Subsidiaries
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Section 4.9 Limitation on Incurrence of
Indebtedness and Issuance of
Preferred Stock
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Section 4.10 Asset Sales
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Section 4.11 Transactions with Affiliates
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Section 4.12 Liens
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Section 4.13 Sale and Leaseback Transactions
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Section 4.14 Offer to Purchase Upon Change of
Control
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Section 4.15 Corporate Existence
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Section 4.16 Limitation on Issuances and Sales
of Equity Interests in Wholly Owned
Restricted Subsidiaries
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Section 4.17 Business Activities
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Section 4.18 Payment for Consents
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Section 4.19 No Senior Subordinated Debt
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Section 4.20 Additional Guarantees
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Section 4.21 Designation of Restricted and
Unrestricted Subsidiaries
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Section 4.22 Further Instruments and Acts
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Section 6.1(iii) Events of Default
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Section 6.1(iv) Events of Default
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Section 6.1(v) Events of Default
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Section 6.1(vi) Events of Default
----------------------------------- -----------------------------------
Section 6.1(vii) Events of Default
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Section 6.1 (viii) Events of Default
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Section 6.1 (ix) Events of Default
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Section 6.1(x) Events of Default
----------------------------------- -----------------------------------
Section 6.1(xi) Events of Default
----------------------------------- -----------------------------------
(b) Supermajority Proposed Amendments. The Pledge Agreement is hereby
amended by deleting therefrom Article II in its entirety.
(c) Each of the following provisions of the Indenture is hereby
renumbered as indicated below:
----------------------- --------------------- ----------------------
Existing Section Number New Section Number Heading
----------------------- --------------------- ----------------------
Section 4.6 Section 4.3 Stay, Extension and
Usury Laws
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(d) Any definitions used exclusively in the deleted provisions of the
Indenture set forth in paragraph (a) of this Section 1 are hereby
deleted in their entirety from the Indenture.
Section 2. Defined Terms. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Indenture.
Section 3. Effective Date. This Third Supplemental Indenture shall become
effective as of the date hereof.
Section 4. Indenture Ratified. Except as hereby otherwise expressly provided,
the Indenture is in all respects ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and remain in full force and
effect.
Section 5. Counterparts. This Third Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 6. Third Supplemental Indenture is an Amendment to Indenture. This Third
Supplemental Indenture is an amendment to the Indenture. The Indenture and
this Third Supplemental Indenture shall be read together from and after the
date hereof.
Section 7. Governing Law. This Third Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
Section 8. Trustee. The Trustee makes no representations as to the validity or
sufficiency of this Third Supplemental Indenture. The statements and
recitals herein shall be deemed to be those of the Company and the
Guarantors and not those of the Trustee.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed as of the day and year first above
written.
AIRGATE PCS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
AGW LEASING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
AIRGATE NETWORK SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
AIRGATE SERVICE COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
