# **EXHIBIT10.2**

 

**SUPPLEMENTALINDENTURE**

** **

THIS SUPPLEMENTAL INDENTURE (this *“**Supplemental Indenture*”),dated as of October 14, 2004 among UbiquiTel Operating Company (or itspermitted successor), a Delaware corporation (the *“Company”*), and The Bank of New York, a New York bankingcorporation (the “*Trustee*”), asTrustee under the indenture referred to below.

 

WITNESSETH

 

WHEREAS, the Company has heretofore executed anddelivered to the Trustee an indenture, dated as of February 26, 2003 (the “*Indenture*”) in respect of the Company’s outstanding$31,473,000 aggregate principal amount at maturity of 14% Senior Discount Notesdue 2010 (the “*Notes*”);

 

WHEREAS, Section 9.02 of the Indenture provides that theCompany and the Trustee may amend the Indenture with the consent of the Holdersof at least a majority in aggregate principal amount at maturity of the Notesthen outstanding voting as a single class;

 

WHEREAS, pursuant to the terms and conditions set forthin the Offer to Purchase and Consent Solicitation Statement dated September 28,2004 (as amended, supplemented or modified, the “*Offer to Purchase*”), the Company commenced a cash tenderoffer for, among others, any and all outstanding Notes and solicited theconsents of the Holders of the Notes to amend certain provisions of theIndenture, as set forth below;

 

WHEREAS, the Holders of a majority in aggregateprincipal amount at maturity of the Notes outstanding have consented to theamendments effected by this Supplemental Indenture pursuant to the terms andconditions of the Offer and Purchase; and

 

WHEREAS, this Supplemental Indenture has been dulyauthorized by all necessary corporate action on the part of the Company.

 

NOW, THEREFORE, in consideration of the foregoingpremises and for other good and valuable consideration, the receipt of which ishereby acknowledged, the Company and the Trustee mutually covenant and agreefor the equal and ratable benefit of the Holders of the Notes as follows:

 

1.               Amendments.  Subjectto Section 2 below, the following provisions of the Indenture shall be amendedas follows:

 

*a**.**             **Amendments to Article 1.*  Thefollowing terms defined in Section 1.01 (Definitions) of the Indenture arehereby deleted and replaced with the phrase “[Intentionally Omitted]”:

 

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“*Acquired Debt*”;

“*AnnualizedOperating Cash Flow*”;

“*Attributable Debt*”;

“*Beneficial Owner*”;

“*Change of Control*”;

“*Closing Date*”;

“*Consolidated Debt*”;

“*Consolidated Debt to AnnualizedOperating Cash Ratio*”;

“*Consolidated Interest Expense*”;

“*Consolidated Net Income*”;

“*Consolidated Net Worth*”;

“*Continuing Director*”;

“*Existing Indebtedness*”;

“*Investments*”;

“*Net Income*”;

“*Offering*”;

“*Offering Memorandum*”;

“*Operating Cash Flow*”;

“*Permitted Investments*”;

“*Permitted Liens*”;

“*Permitted Refinancing Indebtedness*”;

“*Preferred Stock*”;

“*Principals*”;

“*Refinance*”;

“*Restricted Investment*”;

“*Sale and Leaseback Transaction*”;

“*Series B Notes*”;

“*Stated Maturity*”;

“*Total Invested Capital*”;and

“*Voting Equity Interests*”.

 

The following terms listed in Section 1.02 (Other Definitions) of theIndenture are hereby deleted and replaced with the phrase “[IntentionallyOmitted]”:

 

“*AffiliateTransaction*”;

“*Asset Sale Offer*”;

“*Change of Control Offer*”;

“*Change of Control Payment*”;

“*Change of Control Payment Date*”;

“*Excess Proceeds*”;

“*Offer Amount*”;

“*Offer Period*”;

“*Payment Default*”;

“*Permitted Indebtedness*”;

“*Purchase Date*”;

“*Repurchase Offer*”; and

 

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“*Restricted Payments*”.

 

All references to such deleted terms in the Indenture are also herebydeleted in their entirety.

 

*b**.**             **Amendments to Article 3.* Section 3.09 (Offer to Purchase) of the Indenture is hereby deleted inits entirety and replaced with the phrase “[Intentionally Omitted]”.  All references to such deleted section in theIndenture is also hereby deleted in its entirety.

 

c.               *Amendments to Articles 4.*  Eachof Section 4.03 (Reports), Section 4.04 (Compliance Certificate), Section 4.05(Taxes), Section 4.06 (Stay, Extension and Usury Laws), Section 4.07(Limitation on Restricted Payment), Section 4.08 (Dividend and Other PaymentRestrictions Affecting Subsidiaries), Section 4.09 (Incurrence of Indebtednessand Issuance of Preferred Stock), Section 4.10 (Asset Sales), Section 4.11(Transaction with Affiliates), Section 4.12 (Liens), Section 4.14 (Offer to RepurchaseUpon Change of Control), Section 4.16 (Sale and Leaseback Transactions),Section 4.17 (Limitations on Issuances and Sales of Equity Interests inWholly-Owned Restricted Subsidiaries), Section 4.19 (Designation of Restrictedand Unrestricted Subsidiaries), and Section 4.20 (Designation of Restricted andUnrestricted Subsidiaries) of the Indenture is hereby deleted in its entiretyand replaced with the phrase “[Intentionally Omitted]”.  All references to such deleted sections inthe Indenture are also hereby deleted in their entirety.

 

d.              *Amendments to Article 5*.  Eachof the clauses (a)(ii) and (a)(iii) of Section 5.01(Merger, Consolidation orSale of Assets) of the Indenture is hereby deleted in its entirety and replacedwith the phrase “[Intentionally Omitted]”. All references to such deleted clauses in the Indenture are also herebydeleted in their entirety.

 

e.               *Amendments to Article 6.*  Eachof the clauses (e) and (f) of Section 6.01(Events of Default) of the Indentureis hereby deleted in its entirety and replaced with the phrase “[IntentionallyOmitted]”.  All references to suchdeleted clauses in the Indenture are also hereby deleted in their entirety.

 

2.               Operative Effect.  Theamendments to the Indenture set forth in Section 1 above will become operativeas of, and subject to, the acceptance for purchase and payment by the Companyof Notes validly tendered and not withdrawn pursuant to the Offer to Purchaserepresenting a majority of the aggregate principal amount at maturity of Notesoutstanding.

 

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3.               The Trustee.

 

a.               *Trustee’s Acceptance.* Subject to Section 2 above, the Trustee hereby accepts this SupplementalIndenture and agrees to perform the same under the terms and conditions setforth in the Indenture.

 

b.              *TrusteeNot Responsible for Recitals.*  The Trusteeshall not be responsible in any manner whatsoever for or in respect of thevalidity or sufficiency of this Supplemental Indenture or for or in respect ofthe recitals contained herein, all of which recitals are made solely by theCompany.

 

c.               *Certain Duties andResponsibilities of the Trustee.*  In entering into thisSupplemental Indenture, the Trustee shall be entitled to the benefit of everyprovision of the Indenture relating to the conduct or affecting the liabilityof affording protection to the Trustee, whether or not elsewhere herein soprovided.

 

4.               Interpretation. Subject to Section 2 above, the Indenture shall be modified and amendedin accordance with this Supplemental Indenture, and all the terms andconditions of both shall be read together as though they constitute oninstrument, except that, in case of conflict, the provisions of thisSupplemental Indenture will control.  TheIndenture, as modified and amended by this Supplemental Indenture, is herebyratified and confirmed in all respects and shall bind every Holder ofNotes.  In case of conflict between theterms and conditions contained in the Notes and those contained in the Indenture,as modified and amended by this Supplemental Indenture, the provisions of theIndenture, as modified and amended by this Supplemental Indenture, shallcontrol.

 

5.               Severability.  Inany case any provision of this Supplemental Indenture shall be invalid, illegalor unenforceable, the validity, legality and enforceability of the remainingprovisions shall not in any way be affected or impaired thereby.

 

6.               Conflict with Trust Indenture Act.* *If any provision of this Supplemental Indenture limits, qualifies ofconflicts with any provision of the TIA that is required under the TIA to bepart of and govern any provision of this Supplemental Indenture, the provisionof the TIA shall control.  If anyprovision of this Supplemental Indenture modifies of excludes any provision ofthe TIA that may be so modified or excluded, the provision of the TIA shall bedeemed to apply to the Indenture as so modified or to be excluded by thisSupplemental Indenture, as the case may be.

 

7.               Terms defined in the Indenture.  Allcapitalized terms not otherwise defined herein shall have the meanings ascribedto them in the Indenture.

 

8.               Benefits of this Supplemental Indenture. Nothing in this Supplemental Indenture or the Notes, express or implied,shall give to any Person, other than the parties hereto and thereto and theirsuccessors hereunder and thereunder

 

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and the Holders of the Notes, any benefit of any legal or equitableright, remedy or claim under the Indenture, this Supplemental Indenture orNotes.

 

9.               Successors.  All agreements of the Companyand the Trustee in this Supplemental Indenture shall bind their successors.

 

10.         NEW YORK LAW TO GOVERN.  THE INTERNAL LAW OF THE STATE OF NEW YORKSHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUTGIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THATTHE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

11.         Effect of Headings.  The Section headings herein are forconvenience only and shall not affect the construction hereof.

 

12.         Counterparts.  The parties may sign any number of copies ofthis Supplemental Indenture.  Each signedcopy shall be an original, but all of them together represent the sameagreement.

 

**[Signature Page Follows]**

 

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IN WITNESS WHEREOF, the parties hereto have caused thisSupplemental Indenture to be duly executed and attested, all as of the datefirst above written.

 
| ** ** | **THE COMPANY**                        |
|------------|----------------------------------------|
| ** ** | ** **                             |
|       | UbiquiTel Operating Company       |
|       |                                   |
|       |                                   |
|       | By:                                    |   |   |
|       | Name:  James J. Volk         |
|       | Title: Chief Financial Officer    |
|       |                                   |
|       |                                   |
| ** ** | **TRUSTEE**                            |
| ** ** | ** **                             |
|       | The Bank of New York, as Trustee  |
|       |                                   |
|       |                                   |
|       | By:                                    |   |   |
|       | Name:  Van K. Brown     |
|       | Title: Vice President             |
|            |                                        |  |  |  |  |

 

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